155

Constitutionality

  • Section 155 does not violate sections 2(a), 2(d), 7, or 15(1) of the Canadian Charter of Rights and Freedoms; R v MS, [1996] BCJ No 2302 at para 5, 84 BCAC 104 (BCCA).

     

  • Freedom of conscience and religion under s. 2(a) of the Charter engages all crimes. The fact that an offence can be traced back to a religiously based moral system does not mean it violates an individual's freedom of religion; R v MS, [1996] BCJ No 2302 at paras 5, 53-56, 84 BCAC 104 (BCCA).

     

  • Freedom of association under s. 2(d) of the Charter engages social, not sexual relations. Freedom of association does not protect the kinds of intimate sexual relations covered under the incest provisions; therefore, they do not violate s. 2(d); R v MS, [1996] BCJ No 2302 at paras 5, 23, 84 BCAC 104 (BCCA).

     

  • The absence of an age limitation on the concept of "child" under s. 155 does not violate the fundamental freedoms protected under s. 7 of the Charter because incestuous conduct is considered offensive to society. For those same reasons, denying the defence of consent to a charge of incest does not violate the freedoms guaranteed under section 7; R v MS, [1996] BCJ No 2302 at para 5,30-41, 84 BCAC 104 (BCCA); R v CJF, [1996] NSJ No 79 at para 32, 105 CCC (3d) (NSCA).

     

  • Finally, section 15(1) of the Charter is not engaged because it is not discriminatory to prosecute individuals who commit incest. The criminalization of the act is applied to all members of society to avoid harm to vulnerable family members and the community at large; R v MS, [1996] BCJ No 2302 at para 5,47-50, 84 BCAC 104 (BCCA).

     

Incest

155 (1) Every one commits incest who, knowing that another person is by blood relationship his or her parent, child, brother, sister, grandparent or grandchild, as the case may be, has sexual intercourse with that person.

Punishment

(2) Everyone who commits incest is guilty of an indictable offence and is liable to imprisonment for a term of not more than 14 years and, if the other person is under the age of 16 years, to a minimum punishment of imprisonment for a term of five years.

Defence

(3) No accused shall be determined by a court to be guilty of an offence under this section if the accused was under restraint, duress or fear of the person with whom the accused had the sexual intercourse at the time the sexual intercourse occurred.

Definition of brother and sister

(4) In this section, brother and sister, respectively, include half-brother and half-sister.

Annotations | French

  • Section 155

     

  • Under subsection 4(5), sexual intercourse is defined as penetration, even to the slightest degree, and does not require ejaculation. Sexual intercourse under this section also includes “penile penetration of the anus”; R v DWL, 2018 BCSC 2480 at para 74; R v KH, 2015 ONSC 7760 at para 18.

     

  • Elements of the Offence:

     

  • A conviction under section 155(1) requires proof beyond a reasonable doubt that “sexual intercourse,” as defined in s. 4(5), has occurred between the alleged parties; R v GR, 2005 SCC 45 at para 24.

     

  • To convict an accused under subsection (2), a judge must be satisfied beyond a reasonable doubt that the complainant was under 16 years old, that the parties are blood-related, and were aware of their blood relations; R v DWL, 2018 BCSC 2480 at para 73.

     

  • Included Offences:

     

  • The offences of sexual interference (s. 151) and sexual assault (s. 271) are not included offences under s. 155.. Sexual assault is not included as it is concerned with consent and consent is irrelevant to the charge of incest. Sexual interference is not included as it is related to the age of the victim, but incest is indifferent to the age of the victim ; R v GR, 2005 SCC 45 at paras 13-16.

     

  • Offences may be included to the offence of incest if the wording of the count charging the offender includes all the elements of other offences. For example, if the act includes the commission of a sexual assault or an underage complainant, the wording of the charge should include information about there being no consent and that the complainant is under the age of consent. To be convicted of an included offence the charge wording must put the accused on notice that the facts, if proven, could disclose the commission of an included offence, with sufficient detail of the circumstances and transactions giving rise to the principal and included offences; R v GR, 2005 SCC 45 at paras 13, 24, 32, 37-39, 56.

     

  • Defences:

     

  • The defences available under section 155(3) are limited to situations where an accused acted involuntarily due to restraint, fear, duress, or where the offender was unaware of the blood relationship. These defences apply to situations where the accused engaged in incest at the direction of their parents or guardians. The term "knowing," as used in subsection (1), does not refer to a specific intent, but applies to the defence where the offender was unaware of their blood relation to the other party; R v SJB, 2002 ABCA 143 at para 85.

     

  • Consent is not an element of the offence under s. 155 and is not an applicable defence to the charge of incest: R v GR, 2005 SCC 45 at para 16; R v MS, [1994] BCJ No 1028 at paras 6, 36; R v CJF, [1996] NSJ No 79 at paras 6, 32 (NSCA); R v SJB, 2002 ABCA 143 at para 83.

     

  • The defence of voluntary intoxication is not available for those charged under s. 155(1) because incest is an offence of general intent, and voluntary intoxication is not a defence available for general intent offences.. However, evidence of intoxication resulting in automatism that renders the accused incapable of forming general intent or voluntarily committing the act can be used as a defence to a charge under s. 155(1); R v SJB, 2002 ABCA 143 at paras 61, 86-87.

     

  • Sentencing:

     

  • The minimum sentence under subsection (2) does not apply when the complainant is over 16 years of age. However, it can serve as a sentencing guide against older complainants where they are entirely dependent on their parents and exceptionally vulnerable; R v JCJ, 2017 ONSC 6704 at para 28, aff’d in part 2020 ONCA 228 at para 8.

     

  • Denunciation and deterrence are prominent sentencing objectives for offenders convicted under this section. The offence, whether consensual or non-consensual, violates the fundamental taboos of society. The sentence must strongly denounce the conduct and deter other like-minded individuals from engaging in similar behaviour; R v PBK, 2013 ONSC 427 at para 70.

     

  • It is not a mitigating sentencing factor that an accused is the grandparent (and not the parent or guardian) of the complainant; R v W (E), [1990] OJ No 2549 (Ont Prov Ct CD).

     

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