Exception for Transitional Purposes

This section provides a defense for an accused who is in a sexual relationship with a complainant who is five or more years younger, as long as they are in a common-law relationship or cohabiting and expecting or have had a child, and are not in a position of trust or authority over the complainant or in an exploitative relationship.

Section 150.1(2.2) of the Criminal Code of Canada provides a defense for an accused who is five or more years older than the complainant, who is alleged to have engaged in sexual activities with the complainant. This defense is only available in specific circumstances where the complainant has consensual sexual relations with the accused. The defense is only available if the accused and complainant are in a conjugal relationship, such as being common-law partners or having cohabited in a conjugal relationship for less than one year and if the couple has had or is expecting to have a child as a result of the relationship. The accused must not be in a position of trust or authority towards the complainant, not be a person with whom the complainant is in a relationship of dependency and not be in a relationship with the complainant that is exploitative of the complainant. The general rule in Canadian law is that sexual activity between an adult and a child under 16 is illegal. This defense provides an exception to this rule in limited circumstances, where the accused and the complainant meet the criteria specified in the section. This section of the Criminal Code of Canada poses some challenges as there may be arguments as to what constitutes a "conjugal relationship," or if the sexual activity was exploitative. However, if the accused can provide evidence that they meet these criteria, it is possible for them to raise this defense in court.

Section 150.1(2.2) of the Criminal Code of Canada has been a subject of criticism from feminist groups and advocacy organizations for its potential to endanger the safety and well-being of young people, particularly women. The section creates a legal defence for an accused charged with sexual activity with a minor aged 14 to 16 years old who is more than five years younger than the accused, provided certain conditions are met. This section is commonly known as the "close-in-age" exemption, and it was first introduced in the early 2000s and later amended in 2008. The primary objective of this defence is to reduce the stigma and harm associated with criminalizing sexual activity between consenting young people. At the same time, however, it also acknowledges that sexual activity between young people and adults can be exploitative, abusive, and harmful if there is an imbalance of power or trust. The exemption is intended to protect young people from sexual exploitation while recognizing that there may be circumstances where the accused's culpability and harm to the complainant are low. The conditions of the defence are narrow. The accused must be in a relationship of trust or authority over the complainant. The accused cannot be a person with whom the complainant is dependent or exploitive of the complainant. The offence must also occur when the accused and the complainant have been cohabiting in a conjugal relationship or have become common-law partners, and they are either expecting a child, or they have already had a child as a result of their relationship. While the defence only applies to sexual activity between heterosexual partners, its impact can still be far-reaching. The exemption only applies to sexual activity that falls within the definition of offences under Section 151 to 153 of the Criminal Code. Provinces and territories may have additional laws that prohibit consensual sexual activity between young people and adults. Critics argue that the defence does not adequately protect young people from abuse and exploitation. It is possible for an accused to exploit or abuse a young person even if they do not meet the criteria for inclusion in the exemption. For example, an accused who engages in sexual activity with a young person aged 14 to 16 can still be charged with child sexual exploitation under Section 153 of the Criminal Code if they use their power, trust, or authority over the complainant to obtain sexual services, material benefits, or any other advantage. Furthermore, the exemption's emphasis on physical intimacy and conjugal relationships may disregard other forms of abusive and exploitative behaviour that can be prevalent in young-people-adult relationships. For instance, emotional manipulation, coercion, and financial exploitation may coerce or pressure young people into sexual activity. Overall, Section 150.1(2.2) of the Criminal Code of Canada acknowledges the complexity of young-people-adult relationships, especially concerning sexual activity. It is crucial, however, that laws and policies aimed at protecting young people from exploitation and abuse be nuanced and adequate, taking into account young people's rights, autonomy, and vulnerabilities. While the defence may be well-intentioned, it can have unintended consequences that require further examination.

Section 150.1(2.2) of the Criminal Code of Canada provides a defence to a charge of sexual exploitation if the accused is the common-law partner of the complainant, cohabiting with the complainant in a conjugal relationship for a period of less than one year and they have had or are expecting to have a child as a result of the relationship, and if the accused is not in a position of trust or authority towards the complainant, is not a person with whom the complainant is in a relationship of dependency, and is not in a relationship with the complainant that is exploitative of the complainant. This defence is available only if the accused is five or more years older than the complainant. When dealing with this section of the Criminal Code, there are a number of strategic considerations that should be taken into account. First, it is important to note that the defence is available only in limited circumstances, and therefore it may not be applicable in many cases. Additionally, it should be noted that even if the defence is applicable, it is not a complete defence, as it only addresses the issue of consent. Other elements of the offence, such as the accused's intention or the fact that the sexual activity occurred in a public place, may still be at issue. Another strategic consideration when dealing with this section of the Criminal Code is the importance of carefully examining the facts of the case to determine whether the defence is available. For example, it is important to assess whether the accused and complainant fall within the relevant age range, whether they are in a conjugal relationship, and whether they have had or are expecting to have a child as a result of the relationship. Furthermore, it is important to consider the potential impact of using this defence on the perception of the accused and the complainant in the eyes of the court and the public. The defence may be viewed with suspicion or even disapproval by members of the court and the public, particularly if the relationship between the accused and the complainant involves a significant age difference. Therefore, it may be wise to carefully consider the potential consequences of invoking this defence. Given these strategic considerations, a number of strategies could be employed when dealing with this section of the Criminal Code. For example, it may be wise to seek the advice of a experienced criminal defence lawyer, who can help to determine the applicability of the defence in the specific circumstances of the case and can help to develop a strategy for dealing with the case. Additionally, it may be useful to carefully examine the facts of the case to determine whether other defences or arguments may be appropriate, or to seek a plea agreement, if appropriate. Finally, it may be useful to engage in pre-trial negotiations with the Crown, in order to attempt to reach a resolution that is satisfactory to both parties. This may involve discussing the applicability of the defence, as well as other factors that may be relevant to the case, such as the accused's willingness to plead guilty or the severity of the alleged offence. By taking a strategic approach to dealing with this section of the Criminal Code, it may be possible to achieve a positive outcome in the case, regardless of whether the defence is ultimately applicable or not.