Update of the Law section: May 12, 2022

Legal Framework

A number of statutes pertaining to criminal law and civil law apply in the area of sexual assault.

In 1983, the offences of rape, attempted rape and indecent assault were replaced in the Criminal Code by sexual assault offences. Both male and female spouses can now be accused of sexually assaulting the other spouse, whereas previously men were not punished if they sexually assaulted their spouse.

The Criminal Code, adopted by the Parliament of Canada, defines and penalizes sexual assault offences and other sexual offences committed against children (persons under the age of 18) or adults. Sexual assault is included as an “offence against the person and reputation” in the provisions that penalize assaults. The Criminal Code also defines the notion of sexual consent, provides for specific rules on evidence management in the area of sexual assault and governs sentencing1.

Since 2014, a new sexual offence has been included in the Criminal Code, namely, publication of an intimate image without consent (art. 162.1)3. This offence is defined as publishing, distributing, transmitting, selling, making available or advertising an intimate image of a person, knowing that the person depicted in the image did not give their consent to that conduct or being reckless as to whether or not that person gave their consent to that conduct. In addition, new provisions allow judges to order the removal of such images from the Internet, restitution for the person who incurred costs to remove the image and forfeiture of the material used to commit the offence.

The term “child pornography”, which designates a sexual offence in the Criminal Code, is being used less and less to refer to material representing the sexual exploitation of children. It now seems more appropriate to use the expression “material derived from the sexual exploitation and sexual abuse of children” in order to dissociate the child from the pornography and emphasize their status of victims2.

In addition to defining sexual assault offences and other sexual offences, the Criminal Code provides for preventive provisions. These include provisions for reporting and recognizance in situations where there are reasonable grounds to believe that the person might commit an offence against a child under 16 years of age, such as sexual assault (ss. 271, 272 and 273), publication of an intimate image without consent (s. 810), sexual interference or invitation to sexual touching, sexual exploitation, luring a child or child pornography (s. 810.1).

Sexual assault offences

In the Criminal Code, the offence of sexual assault is an assault defined as wilful touching of a sexual nature committed by a person who knows that the victim did not agree to the touching or who displays wilful blindness or recklessness in that regard. Three levels of sexual assault have been defined depending on the severity of the offence: sexual assault (s. 271), sexual assault with a weapon (s. 272) and aggravated sexual assault (s. 273)1.

Sexual assault (level 1): Sexual assault that causes no or almost no bodily harm to the victim.

Sexual assault with a weapon, threats to a third party or causing bodily harm (level 2): Sexual assault in which the perpetrator:

  1. carries, uses or threatens to use a weapon or an imitation of a weapon;
  2. threatens to cause bodily harm to a person other than the victim;
  3. causes bodily harm to the victim;
  4. chokes, suffocates or strangles the victim;
  5. is a party to the offence with any other person.

Aggravated sexual assault (level 3): Sexual assault in which the victim is wounded, maimed or disfigured, or their life is endangered by the perpetrator.

Sexual consent as defined in the Criminal Code

Sexual assault occurs when the perpetrator knows that the victim did not consent to sexual touching, or displays wilful blindness or recklessness in that regard. In other words, it is not a question of knowing whether the victim refused the touching, but whether there was an absence of consent. The concept of consent is defined by several provisions of the Criminal Code as well as a number of influential cases:

  • Consent is the voluntary agreement of a person to the sexual activity in question.
  • Consent may be expressed through words or behaviours and must be freely given. Consent must be present at the time the sexual activity in question takes place.
  • No consent is obtained if:  
    • the person did not express, by words or conduct, that they agreed to engage in the activity;
    • the person expressed, by words or conduct, a lack of agreement to engage in the activity;
    • the person, having consented to engage in sexual activity, expresses, by words or conduct, a lack of agreement to continue to engage in the activity;
    • the agreement is expressed by the words or conduct of a person other than the victim;
    • the person is incapable of consenting to the activity (e.g., because they are unconscious or intoxicated);
    • the person is induced to engage in the activity by a person who abuses a position of trust, power or authority;
    • one of the people involved is in a position of trust or authority or uses threats, force or fraud to obtain consent;
    • the consent is given by a person under 16 years of age (see exceptions in the box below) or in a relationship of dependency (e.g., because of an intellectual or physical disability).
  • The mere fact that a person accused of sexual assault says that they believed that the person had given their consent is not sufficient evidence to raise a defence of belief in consent. To raise such a defence, the person must have taken reasonable means to ensure that the victim had given their consent and must not have displayed recklessness or wilful blindness in that regard.

Legal age of consent to sexual activities

In Canada, the legal age of consent to sexual activity is 16. Believing that a person is older than 16 (or older than 18 in cases of sexual exploitation)* is not an admissible defence, unless reasonable means were taken to determine the person’s real age.

However, certain exceptions apply to age of consent in cases of sexual activity between young people (s. 150.1)1 :

  • In situations where the younger partner is 12 or 13 years of age: consent is valid if the older partner is less than two years older. 
  • In situations where the younger partner is 14 or 15 years of age: consent is valid if the older partner is less than five years older.

These exceptions apply only if the older person is not in a position of trust or authority towards the younger partner, is not a person with whom the younger partner is in a relationship of dependency and is not in a relationship with the younger partner that is exploitative in any way. It is important to note that children under 12 cannot consent to sexual activities.  

*People aged 16 or 17 cannot consent, from a legal standpoint, to sexual exploitation (s. 153).

Judicial intervention for sexual offences

Several principles and provisions of the Criminal Code govern judicial intervention in the area of sexual offences:

  • In regard to sentencing: The Criminal Code provides for various types of penalties. In ascending order of severity, they are: absolute discharge, conditional discharge, a fine, a probation order (including a suspended sentence) and imprisonment. A prison sentence may be served intermittently (e.g. two days a week) if it is for 90 days or less; otherwise, it must be served on consecutive days. In addition, a sentence may be served in the community if it does not exceed two years less a day; otherwise, it must be served in prison. Certain orders may also be issued for taking DNA samples, prohibiting the possession of firearms and registering offenders in the National Sex Offender Registry.
  • In the case of sexual offences against minors, orders may be issued to prohibit a person convicted of sexually abusing a child from (s. 161):
    • being in public places where people under the age of 16 might be present; being near (e.g. within two kilometres of) any dwelling-house where the victim ordinarily resides;
    • seeking, obtaining or continuing any employment or volunteer work that would place them in a position of trust or authority towards persons under the age of 16;
    • having any contact with a person who is under the age of 16, unless the offender does so under the supervision of a person designated by the court;
    • using the Internet or other digital network, unless the offender does so in accordance with conditions set by the court.

For more information, consult the section Criminal Justice Process.

Penalties for sexual offences

General information on the length of sentences for sexual offences, which include sexual assault offences and a list of other sexual offences, is presented for information purposes only and does not consider the specific nature of certain offences.

For the latest sentences, see the Criminal Code1.

Minimum and maximum length of sentences for sexual offences under the Criminal Code

Sexual offencesa Indictable offenceb Offence punishable on summary conviction
Minimum sentencec Maximum sentence Minimum sentence Maximum sentence

Indecent acts (subs. 1731)

-

2 years

-

-

Sexual assault (s. 271)

1 year

10 years
14 years if the victim is under 16

6 months

18 months
2 years less 1 day if the victim is under 16

Sexual assault with a weapon, threats to a third party or causing bodily harm (s. 272)

4 years
5 years if the victim is under 16

14 years
For life if the victim is under 16

-

-

Aggravated sexual assault (s. 273)

4 years
5 years if the victim is under 16

For life

-

-

Bestiality (subss. 1601 and 2)

-

10 years

-

-

Bestiality in presence of or by a child (subs. 1603)

1 year

14 years

6 months

2 years less 1 day

Sexual interference (s. 151)

1 year

14 years

90 days

2 years less 1 day

Luring a child (subs. 1721)

-

2 years

-

-

Agreement or arrangement — sexual offence against child (s. 172.2)

1 year

14 years

6 months

2 years less 1 day

Exposure (subs. 1732)

90 days

 2 years

30 days

6 months

Sexual exploitation (s. 153)

1 year

14 years

90 days

2 years less 1 day

Incest (s. 155)

5 years if the victim is under 16

14 years

-

-

Invitation to sexual touching (s. 152)

1 year

14 years

90 days

2 years less 1 day

Luring a child (s. 172.1)

1 year

14 years

6 months

2 years less 1 day

Householder permitting sexual activity by or in presence of child (s. 171)

1 year

14 years

-

-

Obtaining sexual services for consideration (subss. 286.11 and 286.12)

Fine of $2 000 to $4 000
6 months to 1 year if the victim is under 18

5 years
10 years if the victim is under 18

Fine of $500 to $2 000

2 years less 1 day and fine of $5 000

Removal of a child from Canada (s. 273.3)

-

5 years

-

-

Parent or guardian procuring sexual activity (s. 170)

 1 year

14 years

-

-

Child pornography (making, distribution, possession, accessing (s. 163.1)

1 year

14 years

6 months

2 years less 1 day

Procuring (subss. 286.31 and 286.32)

5 years if the victim is under 18

14 years

-

-

Publication, etc.  of an intimate image without consent (s. 162.1)

-

5 years

-

-

Making sexually explicit material available to a child (s. 171.1)

6 months

14 years

90 days

2 years less 1 day

Trafficking in persons (ss. 279.01 and 279.011)

Between 4 and 5 years
Between 5 and 6 years if the victim is under 18

Between 14 years and life

-

-

Voyeurism (s. 162)

-

5 years

-

-

ADefinitions of the various types of sexual offences are provided in the Understanding sexual assault section.
BWhat does “offence punishable by indictment or on summary conviction mean”? Several of the offences provided for in the Criminal Code are hybrid offences, which means that they can be prosecuted by indictment or on summary conviction. The procedure for offences punishable on summary conviction is different from that for offences punishable by indictment, and the penalties are less severe. When both procedures can be used, the criminal and penal prosecuting attorney decides on the type of charges they will lay, depending in particular on the seriousness of the offence.
CWhat are “maximum and minimum sentences”? When a judge finds an accused guilty of an offence, the judge must impose at least the prescribed minimum sentence or at most the prescribed maximum sentence.

In accordance with section 13 of the Criminal Code, children under the age of 12 cannot be convicted of an offence, be it sexual or not.

Since 2015, a new statute regarding persons convicted of child sex offenses has been in effect: the Tougher Penalties for Child Predators Act4. It provides, in particular, for longer minimum and maximum sentences for certain sexual offences against children and tougher penalties for breach of the conditions of a supervision order. It also requires that sex offenders registered with the National Sex Offender Registry provide more information regarding their travel abroad.

To consult the Criminal Code: https://laws-lois.justice.gc.ca/eng/acts/c-46/   

Under one of the provisions of the Civil Code of Québec (art. 1974.1), a lessee may resiliate their lease without penalty if, because of the violent behaviour of a current spouse or former spouse or because of a sexual assault, the safety of the lessee or of a child living with the lessee is threatened.

The Civil Code of Québec governs persons, relations between persons, and property, and contains all of the rules that lay down the common law. Among other things, it provides for  the right to life, the right to the inviolability and integrity of the person, and the right to the respect of a person’s name, reputation and privacy (art. 3). It stipulates that every person is inviolable and is entitled to the integrity of their person and that, except in cases provided for by law, no one may interfere with their person without their free and enlightened consent (art. 10)5.

The Civil Code of Québec clearly establishes civil liability, i.e. the duty of individuals to abide by rules of conduct so as to not cause injury to others and to make reparation for any bodily, moral or material injury caused by their failure to abide by those rules of conduct (art. 1457). Any person who has suffered bodily, moral or material injury may ask the court for compensation. In so doing, they institute an action in civil liability, which is generally aimed at obtaining compensation. A person who has been a victim of sexual assault can institute an action in civil liability against the perpetrator in order to obtain compensation for the damage suffered, even though they do not file a criminal complaint.

Prescriptive period for instituting a civil lawsuit

In 2020, the Parliament of Québec adopted Bill 55 to abolish the prescriptive period in the Civil Code of Québec for bodily injury resulting from sexual assault, spousal violence and violence suffered during childhood6. Previously, the prescriptive period, or time limit, for instituting a lawsuit was 30 years from the time a person became aware that the injury they had suffered could be attributed to the sexual assault, and not from the time when the sexual assault occurred. This change was made in response to recommendations by the Québec Ombudsman to abolish all time limits for sexual assault victims considering, in particular, that it can take time for such victims to realize the injury they have suffered. It is important to note that, due to its retroactive scope, this new legislation enables victims whose lawsuits were dismissed by the court simply because the former time limit had expired to bring proceedings again within three years of passage of the Act7.

A person may be tried in both criminal and civil court for a single sexual assault. In that case, the criminal proceedings focus on the commission of a criminal offence, while the civil proceedings aim to determine whether a civil fault has been committed.

Differences between civil and criminal proceedings8

  Criminal Code Civil Code of Québec

Principle

  • A person is prosecuted because they have been accused of committing a crime.
  • A person asks a judge for compensation for damage suffered because of someone else’s fault or to settle a civil problem.

Who is being sued or prosecuted?

  • The government (criminal and penal prosecuting attorney) prosecutes the person accused of committing a crime.
  • The person who suffered damage sues the person they consider to be liable.

Subject-matter of the proceedings

  • Criminal offences (e.g. sexual assault).
  • Damage suffered as a result of a fault.

Court

  • Court of Québec (Criminal and Penal Division) or Superior Court
  • Court of Québec (Civil Division) or Superior Court

Burden of proof

  • The criminal and penal prosecuting attorney is responsible for proving that an offence has been committed.
  • The victim acts as a witness.
  • The victim is responsible for proving 1) that the person being sued committed a fault, 2) that the victim suffered damage, and 3) that the damage was caused by the said fault.
  • The accused is presumed innocent. 
  • There must be proof “beyond a reasonable doubt” that the offences the accused is alleged to have committed actually occurred.
  • The victim must convince the judge that their version of events is the most likely one (balance of probabilities).
  • The burden of proof is lower than in a criminal trial, for the judge may conclude that the allegations made actually occurred even though a doubt remains

Prescriptive period

  • No prescriptive period (no time limit) for bodily injury resulting from a sexual assault.

Possible outcomes

  • Guilty verdict (penalty in the form of a fine, imprisonment or community work);
  • Verdict of not criminally responsible on account of mental disorder;
  • Acquittal.
  • Compensation for damage suffered;
  • No civil liability.

To consult the Civil Code of Québec : https://www.legisquebec.gouv.qc.ca/en/document/cs/CCQ-1991

Under the Canadian Charter of Rights and Freedoms10and the Québec Charter of Human Rights and Freedoms11,the citizens of Canada and Québec have various fundamental rights, including the right to life, freedom, equality, security and inviolability of the person. These charters also provide for certain legal guarantees and judicial rights for victims of sexual assault, such as the right to freedom of expression, dignity, protection of privacy and personal inviolability.

In Canada, it is necessary to prove “beyond a reasonable doubt” that an offence has been committed in order to find someone guilty in a penal or criminal case. This means that the judge or jury no longer has any reasonable doubt as to the guilt of the accused, without being absolutely certain9.

In addition to rights that protect victims, the Canadian Charter of Rights and Freedoms stipulates that the accused has the right to:

  • retain and instruct counsel on arrest or detention (s. 10b);
  • be tried within a reasonable time (s. 11b);
  • be presumed innocent until proven guilty (s. 11d).

The Canadian Victims Bill of Rights12, passed in 2015, provides for rights for victims of crime. These rights are divided into four main categories: the right to information, the right to protection, the right to participation and the right to restitution. The Bill stipulates, in particular, that victims deserve to be treated with courtesy, compassion and respect, that their privacy and security must be taken into consideration, that they have the right to information on the criminal justice system and that they must be protected from retaliation.

For more information:

TheAct to assist persons who are victims of criminal offences and to facilitate their recovery(AAPVCO)13 came into force in Québec on October 13, 2021. It replaced the Act respecting assistance for victims of crime and the Crime Victims Compensation Act. It guarantees rights to people who suffer physical or psychological harm as a result of a criminal offence against them, their close relations or their dependants. It also guarantees that they will be treated with courtesy, fairness, and respect for their dignity and privacy14.

The AAPVCO aims to place crime victims at the center of the process and to provide them with the assistance and support they need to facilitate their recovery.

The AAPCO guides the application of the crime victim compensation plan (CVCP), which provides financial benefits to help crime victims mitigate the consequences of a traumatic event and to support them throughout their recovery. The Direction de l’IVAC, which falls under the jurisdiction of the Commission des normes, de l’équité, de la santé et de la sécurité du travail (CNESST), is responsible for processing applications for qualification and ensures that the processing is done in compliance with the Act15.

The Déclaration des droits des victimes d'actes criminel (crime victims’ rights statement) was announced in 2017 to bolster service quality and strengthen the bond of trust between crime victims and the Direction de l’IVAC. It sets forth the rights of victims, specifying that they are entitled to, in particular: complete, accurate and clear information provided in a timely fashion; professional, fair and courteous treatment; their privacy and the confidentiality of their protected personal information; and representation by a person of their choice.

The AAPVCO has made major changes to the legislation in force16:

  • The concept of victim has been broadened in order to recognize more victims.
  • The time limit for submitting applications in the area of sexual violence, spousal violence and violence suffered during childhood has been abolished.
  • The list of criminal offences eligible for compensation has been abolished to ensure coverage for all offences against the person under the Criminal Code.
  • Offences committed abroad are now eligible for compensation.
  • The needs of victims are now taken in charge more rapidly.
  • Emergency financial assistance has been introduced to support people who have to leave a situation where their life or their integrity is threatened.
  • Victims now have access to a broader range of professionals offering psychosocial support services.  
  • Departments and bodies that work with victims are now required to adopt a service statement and a complaints procedure.

Time limit for filing an application

Since the coming into force of the AAPVCO in 2021, there is no longer any time limit for filing an application for a qualification for offences involving sexual violence, spousal violence or violence suffered during childhood. This change is retroactive. A person whose application was refused because it was outside the time limit can file a new application within 3 years of the coming into force of the AAPVCO. In the case of other criminal offences, the time limit is 3 years from the moment the victim becomes aware of the injury they have suffered as a result of a criminal offence17.

The IVAC system is subject to certain rules and eligibility requirements

  • A person who files an application must have been the victim of a criminal offence committed after March 1, 1972. In the case of offences committed in Québec between March 1, 1972 and October 12, 2021, they must be on the list of eligible offences under the CVCP. For offences committed in Québec or outside Québec as of October 13, 2021, they simply have to be registered as offences against the person under the Criminal Code.
  • Victims are no longer required to file a complaint against the perpetrator. They may receive compensation even though the perpetrator has not been identified, prosecuted or convicted following criminal proceedings.
  • Victims may file an application for qualification on their own only if they are 14 years of age or over.
  • In the case of events that occurred after October 13, 2021, victims are no longer required to attach to their application proof that the criminal offence they have suffered interfered with their integrity.

Examples of indemnities and services offered​​: Reimbursement of expenses related to psychotherapeutic or psychosocial rehabilitations sessions, moving, or the acquisition of protective measures (e.g. alarm system).

For more information about victim compensation, services covered and procedures to follow, visit the IVAC website: https://www.ivac.qc.ca/en/

To consult the AAPCVO: https://www.legisquebec.gouv.qc.ca/en/document/cs/P-9.2.1

Under the YPA, every individual who has reasonable grounds to believe that a child is a victim of sexual or physical abuse must bring the situation to the attention of the Direction de la protection de la jeunesse (DPJ) (s. 39). It is not up to the person who reports a situation to decide whether or not it is admissible or true. This responsibility lies with the DPJ.

The purpose of the Youth Protection Act (YPA) is to protect children and to intervene in situations where their security or development is or may be considered to be in danger (s. 2)18.

The YPA provides for measures that enable the government to remedy situations where the health or development of a child is in danger, regardless of whether the proceedings are civil rather than criminal in nature. However, reporting a perpetrator under the YPA does not prevent the perpetrator from being prosecuted under the Criminal Code or from having an action in civil liability filed against them under the Civil Code of Québec.

In 2019-2020, sexual abuse accounted for 6.2% of reports retained by the DPJ, representing a total of 2 716 reports, while serious risk of sexual abuse accounted for 3.9% of retained reports, for a total of 1 677 reports. Based on an evaluation of the accepted retained reports, sexual abuse and serious risk of sexual abuse accounted, respectively, for 4.1% and 2.9% of the situations where the security or development of a child was in danger19.

Under subparagraph of the second paragraph of section 38of the YPA, sexual abuse occurs:

  • When a child is subjected to gestures of a sexual nature by their parents or another person, with or without physical contact, including any form of sexual exploitation, and the parents fail to take the necessary steps to put an end to the situation, or;
  • When a child runs a serious risk of being subjected to gestures of a sexual nature by their parents or another person, with or without physical contact, including a serious risk of sexual exploitation, and the parents fail to take the necessary steps to put an end to the situation.  

Special Commission on the Rights of the Child and Youth Protection

In 2019, the Québec government created the Special Commission on the Rights of the Child and Youth Protection (SCRCYP), also known as the Laurent Commission. The Commission was tasked with examining the youth protection system in order to identify issues and challenges and to make recommendations. In March 2021, the first national director of youth protection was appointed, as recommended by the SCRCYP, and she is responsible, in particular, for implementing the  Commission’s recommendations and for the reform of the DPJ and the YPA.

For more information about the SCRCYP: https://www.csdepj.gouv.qc.ca/home/?L=1.

When the Direction de la protection de la jeunesse (DPJ) receives a report, it must ascertain whether or not the report is admissible. If the report is retained, the DPJ undertakes an evaluation of the situation in order to: determine if the security or development of the child is in danger; determine if the parents are taking the necessary steps to put an end to the situation; and, where appliable, choose and implement appropriate protective measures to remedy the situation. Interventions by the DPJ are aimed at putting an end to situations that put the security or development of a child or young person in danger and to prevent the situations from reoccurring. For example, the DPJ may decide to do one or more of the following: refer the child and their parents to support resources; put immediate protective measures in place (e.g. remove the child from their family or entrust them to another family member); reach an agreement with the parents on the application of voluntary measures; or refer the matter to court in cases where voluntary measures are not an appropriate option, when the parents or the child do not think that the child’s security or development is in danger, or when the parents do not agree with the measures proposed by the DPJ to remedy the situation20.

The following chart presents the main steps taken by the DJP when it intervenes.

 

Source: Ministère de la Santé et des Services sociaux. (2021). On a signalé la situation de votre enfant au DPJ : Que devez-vous savoir maintenant? [online], Québec, (Retrieved on December 3,  2021).

Sociolegal intervention under the Youth Protection Act (YPA) in the case of minors who are victims of sexual assault

When the victim of a sexual assault is under 18 years of age, a specific sociolegal intervention protocol is implemented to ensure an adequate ongoing response that is in line with the child’s needs for assistance and protection and to streamline assessment and intervention procedures21.

When a complaint concerning the sexual assault of a child is filed with the police, a report is made to the Direction de la protection de la jeunesse (DPJ). Conversely, when a case of sexual assault is brought to the attention of the DPJ, a caseworker contacts the police authorities and the Direction des poursuites criminelles et pénales. This multisectoral team, made up of a representative of the DPJ, a police officer, and a criminal and penal prosecutor, assesses the situation. If the allegations are confirmed, the team agrees on an action plan to ensure the security and immediate protection of the child, to support the family and to determine what specific measures should be taken going forward. At the same time, the DPJ evaluates the report to determine whether the allegations are founded, if the safety or development of the child is in danger or if the DPJ must intervene on their behalf22). If the facts reported are founded, each member of the multisectoral team will work in their area of expertise to ensure a global response to the needs of the child and their family.

Other bodies (educational institutions, community organizations, early childhood and daycare centres, health and social services organizations) can also offer services and provide assistance and support to the child and their family.

For more information about the YPA and the DPJ:

The Youth Criminal Justice Act(23) (YCJA) applies to young people 12 to 17 years of age accused of an offence under the Criminal Code, including sexual assault offences. Children under the age of 12 cannot be convicted of an offence . The purpose of the YCJA is to protect the public by holding young offenders accountable, and by rehabilitating and reintegrating them into society. It also aims to prevent crime. The YCJA stipulates that young offenders must take fair and proportionate accountability for their offences, consistent with their state of dependency and level of maturity. The criminal justice system for young people differs from that for adults in that it is based on the principle of diminished moral blameworthiness or culpability and recognizes that young people lack the maturity of adults.

Four mechanisms are provided for in the YCJA to foster a sense of responsibility in young offenders and hold them accountable for their actions: extrajudicial measures (not applicable to sexual offences), extrajudicial sanctions (for certain less serious sexual offences), youth sentences, and adult sentences (in certain exceptional cases such as aggravated sexual assault). For more information, see the section entitled Sociolegal intervention under the Youth Criminal Justice Act (YCJA) .

The YCJA also provides for the protection of the privacy and identity of young offenders. Section 110(1) prohibits the publication of the name or any other identifying information of a young offender or of a child who has been a victim of an offence committed by a young person or who appeared as a witness in connection with the offence. The publication ban does not apply in cases where the young offender receives an adult sentence.

Sexual assault by a young person: behavioural disorder or indictable offence?

When a minor commits a sexual assault, two laws with different objectives are brought into play: the Youth Protection Act (YPA), a provincial statute, and the Youth Criminal Justice Act (YCJA), a federal statute. The YPA aims to ensure the security and development of children and young people, particularly those with a serious behavioural disturbance (subparagraph f of the second paragraph of section 38), including inappropriate or risky sexual behaviour. Minors who adopt such behaviours and whose parents do not take action or refuse to take measures to remedy the situation and minors aged 14 or over who are opposed to such action or measures are likely to be taken in charge by the Direction de la protection de la jeunesse (DPJ) and to follow the associated procedures. However, children under 12 cannot be convicted of an offence under the Criminal Code. In the case of young people aged 12 to17 who commit sexual assault, the YCJA is usually applied in conjunction with the Criminal Code. The principles, procedures and sentences applicable to young people 12 to 17 years of age under the Criminal Code are also applied. In the case of aggravated sexual assault, the young person must go through the court system and appear in youth court (Youth Division of the Court du Québec).

For more information about the YCJA:

The purpose of the Sex Offender Information Registration Act24  (SOIRA) is to assist police services in preventing and investigating crimes of a sexual nature by requiring the registration of certain information about sex offenders. Information collected under SOIRA is recorded in the National Sex Offender Registry, which is administered by the Royal Canadian Mounted Police25.

Sex offenders are automatically registered in the National DNA Data Bank for future use of this information during criminal investigations26, since the court is required to make an order for the taking of DNA samples in the case of primary designated offences, including a large number of sexual offences under the Criminal Code.

Pursuant to SOIRA, a sexual offender is a person who:

  • has been convicted of, or found not criminally responsible due to mental disorder for, a designated sexual offence;
  • has been convicted of a non-sexual offence committed for the purpose of committing a designated sexual offence;
  • in the case of a young offender, has been convicted of a sexual offence and has been given an adult sentence, or;
  • has been convicted outside Canada of a designated sexual offence and has received a notice to that effect from the Attorney General of Québec.

National Sex Offender Registry

The National Sex Offender Registry is a national directory of offenders convicted of a “designated” sexual offence, that is, an offence listed in the Criminal Code as being subject to SOIRA (e.g., sexual assault, sexual exploitation, child pornography). Any person who has been convicted of a designated sexual offence is automatically registered in the registry. The registry contains the following information on each sexual offender: given name and surname, date of birth, current address, recent photograph, distinguishing marks (e.g. tattoos, scars), driver’s licence number, vehicle registration in their name, type of work, address of their employer and sexual offence(s) for which the offender has been convicted. It also contains information on the sex offender’s modus operandi.

Sex offenders who are registered in the National Sex Offender Registry have certain obligations under SOIRA. In particular, they must report to their Registration office annually, notify the registration office of any change of address or any absence from their main or secondary residence lasting more than seven days. Offenders convicted of sexual abuse of a child must notify the registration centre of any trips outside Canada, regardless of their duration.

If a person is acquitted of each designated sexual offence for which an order was made or has received an absolute pardon for these offences, the information gathered under the SOIRA is destroyed.

The length of time a sex offender must be registered in the registry varies according to the sentence received. A sex offender's obligation to comply with the registration provisions of the SOIRA ends after 10 years if the offender was prosecuted by summary conviction or is liable to a maximum term of imprisonment of two or five years; and after 20 years if the offender is liable to a maximum term of imprisonment of 10 or 14 years. The obligation to register in the registry applies for life if the offender is liable to a maximum term of imprisonment for life or if they have been found guilty of more than one designated offence. Offenders who fail to comply with the requirements may be imprisoned for two years and fined $10 000.

Use of the registry by the police

In Québec, sex offenders’ information is registered in the registry through the Centre québécois d’enregistrement des délinquants sexuels of the Sûreté du Québec, and police officers alone may consult it for the purpose of conducting an investigation or to prevent crimes of a sexual nature. The registry is not accessible to the general public.
The registry provides police services with:

  • A list of registered sex offenders who live in a given area;
  • Up-to-date information on convicted sex offenders.

The registry may be used to produce a list of possible suspects in order to prevent crimes of a sexual nature, and some of the information it contains may be communicated to the Canada Border Services Agency.

To consult the SOIRA: https://laws-lois.justice.gc.ca/eng/acts/s-8.7/

 

References

  1. Criminal Code, R.S.C., 1985, cH. C-46 (1985) (Retrieved on March 1, 2022).
  2. ECPAT International, & ECPAT Luxembourg (2017). Guide de terminologie pour la protection des enfants contre l’exploitation et l’abus sexuels, [online] (Retrieved on January 10, 2022).
  3. Protecting Canadians from Online Crime Act, S.C., ch. 31 (2014) (Retrieved on March 1, 2022).
  4. Tougher Penalties for Child Predators Act, S.C., ch. 23 (2015) (Retrieved on March 1, 2022).
  5. Civil Code of Québec, CCQ (1991) (Retrieved on March 1, 2022).
  6. Act to amend the Civil Code, in particular to make civil actions for sexual aggression, violence suffered during childhood and spousal violence imprescriptible, Bill 55, L.Q., ch. 13 (2020) (Retrieved on March 1, 2022).
  7. Protecteur du citoyen (2020). « Civil actions for assault: All time limits abolished », in Protecteur du citoyen, [online] (Retrieved on March 1, 2022).
  8. Éducaloi (n.d.). « Differences Between Civil and Criminal Cases », in Éducaloi, [online] (Retrieved on March 1, 2022).
  9. Public Services and Procurement Canada (2011). « Preuve hors de tout doute raisonnable » (Retrieved on March 31, 2022).
  10. Canadian Charter of Rights and Freedoms, Constitution Act, ch. 11 (1982) (Retrieved on December 3, 2021).
  11. Charter of Human Rights and Freedoms, ch. C-12 (1976) (Retrieved on March 1, 2022).
  12. Canadian Victims Bill of Rights, L.C., ch. 13 (2015) (Retrieved on December 3, 2021).
  13. Act to assist persons who are victims of criminal offences and to facilitate their recovery, ch. P-9.2.1 (2021) (Retrieved on March 1, 2022).
  14. Gouvernement du Québec (2022). « Définition et droits d’une personne victime d’une infraction criminelle » (Retrieved on February 24, 2022).
  15. IVAC « IVAC - Home », in IVAC - Indemnisation des victimes d’actes criminels, [online] (Retrieved on March 31, 2022).
  16. IVAC « Qualification criteria for the victim of a criminal offence », in IVAC - Indemnisation des victimes d’actes criminels, [online] (Retrieved on March 1, 2022).
  17. IVAC « Act to assist persons who are victims of criminal offences and to facilitate their recovery », in Indemnisation des victimes d’actes criminels, [online] (Retrieved on March 1, 2022).
  18. Youth Protection Act, RLRQ, ch. P-34.1 (1977) (Retrieved on March 1, 2022).
  19. Directeurs de la protection de la jeunesse / directeurs provinciaux (2020). Bilan des directeurs de la protection de la jeunesse/directeurs provinciaux 2020, [online] (Retrieved on November 30, 2021).
  20. Gouvernement du Québec (2018). « Steps Taken by the DYP When a Situation is Reported », in Gouvernement du Québec, [online] (Retrieved on March 1, 2022).
  21. Ministère de la Santé et des Services sociaux (2001). Entente multisectorielle relative aux enfants victimes d’abus sexuels, de mauvais traitements physiques ou d’une absence de soins menaçant leur santé physique, [online], Québec, Ministère de la Santé et des Services sociaux (Retrieved on December 3, 2021).
  22. Ministère de la Famille du Québec (2019). « Entente multisectorielle dans les cas de signalement », dans Ministère de la Famille, [online] (Retrieved on December 3, 2021).
  23. Youth Criminal Justice Act, S.C., ch. 1 (2002) (Retrieved on March 1, 2022).
  24. Sex Offender Information Registration Act, S.C., ch. 10 (2004) (Retrieved on March 1, 2022).
  25. Royal Canadian Mounted Police (2020). « Sex offender management », in Royal Canadian Mounted Police, [online] (Retrieved on March 1, 2022).
  26. Royal Canadian Mounted Police (2017). The National DNA Data Bank of Canada - Annual Report 2016/2017, [online], Ottawa, Royal Canadian Mounted Police (Retrieved on March 1, 2022).

Author: Maude Lachapelle, Scientific Advisor, INSPQ
In collaboration with: Dominique Gagné, Scientific Advisor, INSPQ, and Michaël Lessard, Lawyer and PhD student, University of Toronto

Last update: 

May-12-22