R. v. Storey, 2021 ONSC 1760
This Ontario Superior Court of Justice case is an example of when age of consent becomes an issue during criminal proceedings. In this circumstance, the offender was a 21-year-old man with a mental disability that limited his intelligence and ability to function. He was charged with several sexual offences, including sexual interference and sexual assault in connection with a relationship he had formed with two young girls. The assault and interference charges were committed against only one victim. It was found that the offend had engaged in a sexual relationship with the 13-year-old girl that involved unprotected intercourse. Since the victim had not reached the age of consent, the offender could not rely on it as a defence, especially considering he claimed to be aware that the age of consent was 16.
The total sentence the offender received was five years imprisonment and several ancillary orders, including: DNA and SOIRA orders, as well as a 10-year weapons ban. Almost four years of that sentence was the result of the sexual interference charge. In issuing this sentence, the court considered the seriousness of the criminal conduct, as well as the circumstances of the offender.
In some cases, an established mental disability can demonstrate that an offender cannot understand the consequences of their actions, which would mean they cannot be held to the level of accountability faced by a typical offender. However, in this case the offender made several statements that spoke to the fact that he was aware of the illegal nature of his activities, and he intended to lie to the police. This meant the sentence was not reduced due to the offender’s disability. “In the face of evidence such as that, and in the absence of any clear indication by Dr. Martin that Mr. Storey does not appreciate the consequences of his actions, I am simply unable to find that Mr. Storey’s intellectual challenges operated in such a way as to render him unaware of the potential consequences of the actions and decisions he took which resulted in him being brought up before this court.” [at para 60]
R. v. Eichner, 2021 ONSC 520
This Ontario Superior Court of Justice case also dealt with a sexual relationship where one party had not reached the age of consent. The offender, a 29-year-old man was charged with sexual interference and invitation to sexual touching against a 13-year-old girl. The relationship involved intercourse and repeated instances of sexual touching on other days. The offender was sentenced to a total of four years and 10 months imprisonments. Ancillary SOIRA and DNA orders were also issued, along with a lifetime weapons ban.
There were several factors in this case that influenced the sentencing decision. The court highlighted the significant age gap between the parties, the severe nature of the sexual contact, and the fact that several incidents occurred. The court also emphasized that the age of consent issue meant that any argument that the victim apparently willingly participated in the sexual activity could not be considered. “As the Supreme Court has said, ‘a victim’s participation should never distract the court from the fact that adults always have a responsibility to refrain from engaging in sexual violence towards children. Adults, not children, are responsible for preventing sexual activity between children and adults.’
The courts have recognized that where a child appears to acquiesce or even seek out the sexual attention of an adult, it is the legal responsibility of the adult to protect the child. Adults who see these situations as opportunities to satisfy their own sexual urges are no better or worse than those who take steps to actively seek out under-age child victims.” [at paras 83-84]