Wednesday, August 26, 2015

Tuesday, August 25, 2015

Sentencing sexual offences against children

R. v. S.N., 2015 NUCJ 25:
[34] As outlined by this Court in DeJaeger, at paragraphs 173 and 174, Nunavut leads the country in its per capita rate of sexual offences committed against children. This high incidence of sexual crimes against children – in all of Nunavut's communities – requires a firm response by the territory's sentencing court. The need to emphasize denunciation and general deterrence through an exemplary sentence is enhanced under these circumstances. The Court's sentencing posture in Nunavut must reflect what has become a pressing systemic problem in all of Nunavut's communities. 

Wednesday, August 19, 2015

Age of consent

Sexual activity is a normal part of adult life.  But it's a normal part of adult life - it's not something appropriate or normal for children. 

That means there is a age below which someone can never legally agree to any sexual activity.  And agreement to sexual activity is always required. Unconsented to sexual activity at any age is always unlawful. 

The age of consent means the age at which a person can legally consent to sexual activity.  Sexual activity means all types of sexual conduct ranging from kissing to fondling to sexual intercourse.
In Canada the age of consent for sexual activity is generally 16 yearsHowever, the age of consent is 18 years where the sexual activity "exploits" the young person -- when it involves prostitution, pornography or occurs in a relationship of trust.  So, an 17 year old can legally have sex with a 25 year old but if that 25 year old is the 17 year old's teacher or pastor the sexual activity is unlawful. 
There are some exceptions to these fairly strict rules - these exceptions are intended to recognize teenagers, even young teens, have boyfriends and girlfriends and that is not a problem.  Specifically there are "close in age" exceptions to the age of consent. 
For example, a 14 or 15 year old can consent to sexual activity as long as the partner is less than five years older and there is no relationship of trust or any other exploitation of the young person. 
There is also a "close-in-age" exception for 12 and 13 year olds: a 12 or 13 year old can consent to sexual activity with another young person who is less than two years older and with whom there is no relationship of trust or other exploitation.
So a 13 year old girl can lawfully have sex with a 15 year old boy provided the boy is not, for example, the girl's superior in the Rangers. 

Monday, August 17, 2015

Burdens of Proof

Burdens of proof are often seen as something boring and only important for lawyers. 

In fact, the burden of proof is important for everyone and can sometimes lead to results that, on the face of things, seem very weird indeed. 

Remember O. J. Simpson?  He was acquitted of murder by a jury and then a couple of years later found liable by another jury for wrongful death. That seems inconsistent, to say the least, but in fact it makes perfectly good sense when you realize the first jury was a criminal jury and the second was a civil jury. 

In a criminal case the jury (or judge of there is no jury) must be convinced to beyond a reasonable doubt that the accused is guilty. The jury must be sure of guilt. That's the criminal burden of proof. 

In a civil case the jury (or judge if there is no jury) must believe the defendant is probably in the wrong. That's the civil burden of proof. 

Between probably and being sure there is a big gap. 

So if both juries in the O. J. Simpson case thought he was probably guilty of murder the criminal jury would acquit and the civil jury find liability. And that's likely what happened. 

Of course if a criminal jury convicts that means they are sure an accused is guilty; that means a civil jury should always find liability.