Criminal Code Offences Related to CSEC
Since CSEC involves sex or sexual acts and engagement in the commercial sex trade, understanding Criminal Code offences related to the issue is crucial.
Consent
the voluntary agreement to engage in sexual activity.
Consent
Includes anything from kissing, touching, to sexual intercourse.
Sexual Activity
A person consented on behalf of someone else
The person is unconscious
The person is incapable of consenting to the activity for any reason
A person attempts to get consent by abusing a position of trust, power, or authority
The person expresses a lack of agreement to engage in the activity
The person consented before but changed their mind
There is No Consent if…
Canada’s consent laws also make it clear that consent (or lack of) can be expressed by words or conduct. This means that a lack of a “no” does not mean a “yes”.
Silence is NOT Consent!
Age is an important factor to consider when youth are participating in sexual activities!
Criminal Code, RSC 1985, c C-46, s 273.1
No legal consent can be given for any sexual activity
Under 12
Years Old
Can consent with someone less than 2 years older…
12-13 Years Old
Can consent with someone less than 5 years older…
14-15 Years Old
Can consent with adults…
16-17 Years Old
…as long as there is no relationship of trust, authority, or dependency, or any other exploitation of the young person.
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is when someone has power over the youth or is someone the youth relies on.
examples include:
parents/guardians
teachers
doctors
police officers
babysitters
youth counsellors
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Anyone who helps to meet a youth’s needs would be in a relationship of dependency with that youth.
This includes anyone who provides things like:
money
drives
food
substances
a place to stay
any other material items
This also includes anyone who offers these things in exchange for sexual acts.
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To determine if someone is in an exploitative relationship with a young person, the nature and circumstances of the relationship need to be examined.
Some of the factors that are considered include:
the young person’s age
the age difference between the young person and their partner
how the relationship developed (quickly, secretly, over the internet, etc.)
The degree of control or influence the partner has over the young person
Sexual Exploitation
No one in a position of power, trust, or authority or who is in a relationship of dependency or an exploitative relationship with a young person (under 18) may sexually touch that young person or ask the young person to sexually touch them. This includes both direct or indirect, with a part of the body or with an object.
Sexual Exploitation of a Young Person
No one in a position of trust or authority or who is in a relationship of dependency with someone who has a physical or mental disability may counsel that person without their consent to sexually touch their own body or anyone else’s body. This includes both direct or indirect touching, with a part of the body or with an object.
Sexual Exploitation of a Person with a Disability
Selling Sex
It is not a crime to advertise or sell your own sexual services.
No one under the age of 18 can consent to sell sexual services
Buy or attempt to buy sexual services
Financially or materially benefit from the sale of sexual services other than your own
recruit, conceal, or exercise control or influence over the movements of a person who sells sexual services
advertise or offer the sexual services of another person
It is illegal to:
Exploitation & Human Trafficking
Is an act committed for the purpose of exploiting someone’s labour or services.
The kind of “acts” involved in human trafficking can include:
recruiting, transporting, receiving, holding, concealing and/or harbouring a person;
exercising control, direction or influence over the movements of a person.
A perpetrator only needs to commit one of these “acts” to be guilty of human trafficking.
Human Trafficking
(AKA “Trafficking in Persons” in the Canadian Criminal Code)
Canadian law does not distinguish sexualized human trafficking from other forms of human trafficking.
Contrary to what is often portrayed in mainstream culture, physical violence is not always a component of human trafficking, and it does not have to be present to prove exploitation in a court of law. The entire relationship between the victim and perpetrator is looked at, including whether the following circumstances are present:
It’s not like what you see on TV!
threats;
physical, emotional or psychological coercion;
deception;
abuse of trust/authority;
victim vulnerability;
isolation;
directive behaviour by
the perpetrator;influence over the nature
& location of services provided
control over advertising of services;
limitations on the victim’s movement;
control of finances;
financial benefit to the perpetrator;
control or monitoring the victim’s communications with others.
Sexually Explicit Materials,
Intimate Images, and Child Pornography
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Any visual representation, written material, or audio recording (of adults 18+) in which the main purpose is to show or depict someone naked/semi-naked or engaged in explicit sexual activity.
Criminal Code, 1985, s 171.1 (5) -
Adults (18+) can create and possess as long as it does not include obscene content (sexual exploitation or sex involving crime, horror, cruelty, or violence).
Criminal Code, 1985, s. 163 -
It is a crime to send, sell, or make available to anyone under the age of 18.
Criminal Code, 1985, s 171.1It is illegal to print, publish, distribute, or circulate any obscene materials.
Criminal Code, 1985, s. 163
Sexually Explicit Materials
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Any visual recording (picture, video, drawing, digital rendering, animation, etc.) of a person in which they are nude/semi-nude or engaged in explicit sexual activity and there was a reasonable expectation of privacy when the recording was made and shared.
Criminal Code, 1985, s 162.1 (2) -
Adults (18+) can create and possess other adults’ intimate images as long as
Everyone in the recording consented to the activity depicted in the recording, to being recorded, and for that recording to be shared.
Criminal Code, 1985, s 162.1 (1)
Youth (under 18) can create or possess intimate images under limited situations:
Youth can possess images of themselves as long as it is for private use and they do not share it.
Youth can possess recordings of themselves with consenting partners as long as the content shows only lawful sexual activity (close-in-age laws are considered), and the recording is not shared to anyone who is not in the recording.
Any intimate images of a youth that does not fall into these specific situations is considered child pornography.
R v Sharpe, 2001 -
Adults (18+) can send/share as long as everyone in the recording consented to it being shared.
Youth cannot send, transmit, or print their intimate images. Doing so is considered child pornography.
R v Sharpe, 2001Threatening to send/share another person’s intimate image to make them do/not do something is considered extortion.
Criminal Code, 1985, s. 346 (1)
Intimate Images
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Any visual representation, written material, or audio recording in which the main purpose is to show or depict someone under the age of 18 engaged in explicit sexual activity, or naked/semi-naked for a sexual purpose, or advocates sexual activity with someone under 18. This includes both real or imagined people.
Criminal Code, 1985 s 163.1 -
It is illegal for anyone to create, posses, or access child pornography.
It is illegal to ask someone under 18 to take or send an intimate image of themselves.
Criminal Code, 1985 s 163.1 (4) -
It is illegal to share, post, or send child pornography in any way
It is possible for youth to be convicted under child pornography laws.
Criminal Code, 1985 s 163.1