In 2008, Canada’s Parliament increased the age of sexual consent from 14 years of age to 16 years of age (with a close-in-age exception that allows for non-criminal sexual contact between children and by children with adults who are similar to their age). This change resulted in widely varying sentences for adults that engaged in sexual activity with children between 14 and 15 years old – an age at which they had previously been legally capable of consenting to sexual activity, provided it was outside of exploitative relationships.
In R v Hajar (2016 ABCA 222), the Alberta Court of Appeal considered the sentencing considerations that should apply when adults commit the offence of sexual interference with children under 16 years of age, in circumstances where the child was an ostensibly willing participant – circumstances that some courts have previously referred to as “de facto consent”. The case establishes a starting point sentence for major sexual interference, such as intercourse, fellatio and cunnilingus.
The facts in Hajar can be briefly stated. Mr. Hajar, a 20 year old man at the time of the offence, had online communications with his victim, a 14-year-old girl, over a two month period. Mr. Hajar persuaded the victim to send him a topless photo on one occasion and detailed sex acts he would like to engage in with her. They met four times in person. On the fourth of these meetings, the victim performed fellatio on Mr. Hajar in the back seat of his car. The activity was observed by a passer-by, who reported the matter to police. Mr. Hajar acknowledged what had happened during a later interview with police.
Mr. Hajar pleaded guilty to sexual interference (Criminal Code, s. 151) and to luring a child (Criminal Code, s. 172.1), receiving a sentence of 15 months imprisonment on the first charge and 3 months, consecutive, on the second. The Crown appealed the sentence.
Hajar was decided by a panel of five judges of the Court of Appeal and there are three decisions: A majority decision of three justices (Justices Fraser, Paperny and Watson), a minority judgment which concurs in the result by Madam Justice Bielby and a minority dissenting judgment by Mr. Justice Slatter.
The majority judgment noted that:
- The 2005 amendments to the Criminal Code were made, in part, because previous rules that criminalized sexual conduct by adults with children of 14 and 15 years old only in circumstances of a relationship which was exploitative had provided limited protection to children, given the legal challenges of proving that the relationship was exploitative in nature; and
- Research provided a foundation for the decision of Parliament. There was strong evidence that those under the age of 16 are not psychologically mature enough to provide “true” consent to sexual activity with persons who are not within their close-in-age peer group.
The Crown had called expert evidence on the sentencing regarding the effect of early sexual contact on adolescents, including where that sexual contact was with a much older person. The trial judge’s decision on the admission of that evidence was challenged on appeal; a challenge that was rejected. The majority also noted that even in the absence of that expert evidence, there was earlier judicial commentary on the harm to children resulting from sexual interference.
The majority rejected the term “de facto consent”, noting that the translation of “de facto” is “in fact” or “in reality”. The majority noted that this terminology gives too much weight to the willing participation of the child in the sexual act. There is, in the case of a child under 16, no consent to sexual activity with a person outside of the close-in-age exception. Rather, there is the appearance of consent. The majority preferred the term “ostensible consent” to describe this circumstance of an appearance of consent. The majority went on to state clearly that ostensible consent will never be a mitigating factor in sentencing for sexual interference. Looking to the court’s jurisprudence on the starting point for major sexual assault, the majority established a starting point of three years imprisonment for major sexual interference.
Madam Justice Bielby, who had concurred in the result in this case, felt that the three year starting point set by the majority should not be applied where the accused had rebutted the presumption of exploitation. In contrast, the majority felt that one could never “rebut” exploitation; such relationships are inherently exploitative. The majority did, however, allow that relationships might evolve between a child and an older person which was mitigating in nature:
 … [W]e agree with our colleague Bielby JA that, in certain circumstances, the sentencing judge may well conclude that there is an established relationship of genuine affection that developed naturally between the parties and within which the relevant circumstances arose that warrants mitigation of sentence. In that event, the sentencing judge may, depending on all the circumstances, determine that the nature of the relationship is such that it should be a weighty factor in mitigation of sentence. A relationship of genuine affection does not eliminate the harm and exploitation inherent in the offence. But it may reduce them. As repeatedly stated, a starting point is just that, a starting point, not an ending point. Sentencing remains within the good judgment, transparently explained, of the sentencing judge. The result must always be a proportionate sentence.
In dissent, Justice Slatter disagreed with setting a starting point for major sexual interference which was the same as that for major sexual assault. He concluded that the two acts were not equivalent. Sexual assault, it had been noted in R v Arcand, is always an act of violence. While Justice Slatter did not say that sexual interference could be committed without violence, that was inherent in his Lordship’s argument. In Justice Slatter’s view, the moral culpability for sexual interference may, in many cases, be different than that for sexual assault. Accordingly, his dissent rejects the three year starting point set by the majority. Justice Slatter went on to find that sexual interference was not an offence which was amenable to the setting of a starting point sentence, given the wide range of circumstances in which the offence can be committed.
The reasoning of the majority in Hajar is powerful. In particular, the rejection of the phrase “de facto consent” and the use of that concept as a mitigating factor is valuable. As the majority says: Using the “willing participation of the child” as a mitigating factor in sentencing, despite the fact the child is incapable of consenting, must be recognized for what it is – blaming the victim. It also improperly diminishes the offender’s culpability. It is akin to saying to the offender: “You’re technically guilty and must be convicted of this crime, but you’re not really at fault. Or at least, you’re not that much at fault.” The result of this flawed thinking – the adult offender is treated as if he or she is not actually responsible for their behaviour, but the child victim is. And thus, through this distortion of reality, sentencing is effectively turned upside down. The child becomes the perpetrator and the offender becomes the victim.
In Mr. Hajar’s circumstances, the majority, along with Justice Bielby, concluded that a 2.5 year sentence for sexual explotation, along with a one year consecutive sentence for luring, would have been appropriate at the time of sentencing. As Mr. Hajar had already completed his earlier sentence some time before the appeal, which had taken a lengthy time, the majority nevertheless dismissed the Crown’s appeal and upheld the original sentence.
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