Conversion Therapy (s. 320.102) Charges in Canada: Offences, Defences, Punishments

What is a charge of Conversion Therapy?

Conversion therapy is covered under 320.102 of the Criminal Code of Canada. Conversion therapy occurs when a person knowingly causes another person to undergo conversion therapy; including by providing conversion therapy to that other person. Conversion therapy means to provide a treatment designed to change a person’s sexual orientation to heterosexual, change a person’s change identity to cisgender or their gender at birth, or repress a person’s non-cisgender identity.

Conversion therapy is a hybrid offence.

Examples

Some examples of a charge of Conversion therapy may include the following:

• Psychotherapy or cognitive therapy, with interpersonal communication designed to repress same-sex attraction.
• Psychotherapy or cognitive therapy, with interpersonal communication designed to incite heterosexual attraction.
• Providing medical or hormone therapies to adversely affect one’s sexual orientation or gender identity for transgender people.

Defences

The defences available to a charge of Conversion therapy are entirely dependent on the facts of your case.

However, some defences to a charge of Conversion therapy may include:

• The accused was wrongly identified as the person who committed/provided conversion therapy
• The accused did not intend to provide conversion therapy by providing medical services
• The accused was mistaken in providing counselling services in good faith, and did not intend to convey communication constituting conversion therapy

Punishment

A charge of Conversion therapy is a hybrid offence, which entails a maximum punishment as follows: 

• If the crown proceeds summarily, Imprisonment for a term not exceeding two (2) years less a day, and/or a $5000 fine,
• If the crown proceeds by indictable, Imprisonment for a term not exceeding five (5) years incarceration.

Punishments for Conversion therapy depends on if the Crown elects to pursue the charge as an indictable offence or summarily. There are no mandatory minimum penalties for this offence. The maximum is no more than 5 years of incarceration. A charge of Conversion therapy can also entail severe consequences for current and future employment opportunities.

Overview of the Offence 

According to s. 320.102 of the Criminal Code:

The Guilty Act (Actus Reus)

The actus reus for a charge of conversion therapy under s. 320.102 is established by proof, beyond a reasonable doubt, of the following:

• The accused communicated in writing, verbally, or otherwise to other persons, a plan to cause contempt and/or incite violence against the government

The Guilty Mind (Mens Rea)

The mens rea for a charge of conversion therapy under s. 320.102 includes proving, beyond a reasonable doubt, that:

• The accused, knowing that their actions were likely to incite, cause contempt, or violence against the government

Defences

How to Beat a Conversion therapy Charge

Every case is different. The availability and strength of any defence depend entirely on the specific facts of your case. The strength of any available defence rests on the evidence against you and the precise details of the allegations. However, the following are some common defences that may be used when fighting a Conversion therapy charge:

Factual innocence

A strong defence against a Conversion therapy charge is to maintain that you are factually innocent. If you can show that the facts and the evidence do not support that you engaged in conversion therapy, then you may have a defence that you were factually innocent.

Lack of Intent/Mistake

If you can show that you were never seeking to commit conversion therapy, and were merely providing counselling services in good faith without seeking to provide repressive counselling based on gender or sexual orientation, then this may be a defence for conversion therapy. For you to be convicted of conversion therapy, the crown must prove that you had knowledge that your actions would result in painful or uncomfortable methods toward a person’s attractions if they are not heterosexual. If this cannot be proved this could be a suitable defence.

Identity

Depending on the circumstances of your case, a possible defence to a conversion therapy charge may be to raise an identity defence. In this case, for this defence to be raised successfully, you will have to prove that you were not the person who committed the prohibited acts.

Any applicable Charter defences 

The Charter sets out your rights and freedoms before and after your arrest. If the police fail to abide by these rights deliberately or inadvertently, it could aid in your defence. If any of your Charter rights have been violated before or after your arrest, you may be able to have some or all of the evidence that the Crown is relying on to secure a conviction excluded under s. 24(2) of the Charter.

Punishments

The Criminal Code provides for a possible maximum term of imprisonment of no more than 5 years for those convicted of a Conversion therapy charge.

Frequently Asked Questions  

What does Conversion therapy mean?

In order to be convicted of conversion therapy, the Crown prosecutor must prove that your actions constituted that which sought to cause a non-heterosexual person to become heterosexual by using behaviour modification, counselling, or both.

Is conversion therapy an indictable offence?

Conversion therapy is a hybrid offence. This means that the Crown prosecutor can choose to prosecute someone charged with conversion therapy either summarily or by indictment. The crown prosecutor is required to proceed by indictment.

Can you go to jail for conversion therapy?

If you are convicted of conversion therapy, you can go to jail. A charge of conversion therapy carries a maximum sentence of no more than five (5) years in jail if the crown proceeds by indictment, and two (2) years less a day if the crown proceeds summarily (by summary offence). Therefore, there is a possibility that you can go to jail for a conversion therapy charge.

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