Incest (s. 155) Charges in Canada: Offences, Defences, Punishments

What is Incest?

Incest is an offence under Section 155 of the Criminal Code of Canada. This section makes it an offense to, knowing that another person is by blood relationship, a parent, child, brother, sister, grandparent, or grandchild, as the case may be, has sexual intercourse with that person. This section of the criminal code ultimately criminalizes sex between relatives. The law recognizes that sexual intercourse with a relative not only poses physical and mental health risks, it is morally unacceptable.

Examples of Incest

Some examples of the offence of Incest may include:

• A person has sexual intercourse with their half-sibling
• A person has sexual intercourse with their child
• A person has sexual intercourse with their grandchild

Defences

There is a Defence election under section 536(2) of the Criminal Code. You can protect yourself by using a “positive defence,” or by arguing that the crown has not proven all the elements beyond a reasonable doubt.

Lack of Knowledge/ Mens Rea: If the accused can demonstrate that they did not have a knowledge of the blood/biological relationship, although unlikely, it is possible if you could show that you did not know the other person was your blood relative at the time of sexual intercourse. For example, a person who is adopted could be charged with incest for having sex with someone whom they did not know at the time is their biological sibling. In this case, incest was not committed, because the accused did not know that they were having sexual intercourse with their sibling. However, if the accused again had sexual intercourse with their sibling, after learning of the relationship, then they could be convicted of incest.

Duress: Section 155(3) of the Criminal Code provides a positive defence: You cannot be found guilty of incest if you were put “under restraint, duress, or fear” by the person you had sexual intercourse with when it was happening. This protects vulnerable persons from being convicted of incest for acts they committed as victims. However, this should be discussed during consultation with a lawyer.

Punishment

The maximum penalty for a conviction under Section 155 is fourteen years imprisonment.

Specifically, Section 155(2) states that:

(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.

Whether you intend to plead guilty to a charge under section 155, it is important to consult a lawyer prior. There may be factors which apply to your punishment/sentencing which are relevant and important for consideration, which may result in a lesser punishment.

Overview of the Offence 

Section 155 (1) of the Criminal Code states:

In order for a person to be convicted of Incest in criminal court, the crown is required to prove their case beyond a reasonable doubt. The crown must also prove several elements of the offence, such as that a person or. Proving the offence should include: confirming the accused’s identity, the date(s) and time(s) which the incident(s) occurred, the jurisdiction, that the accused had knowledge that the person they had sexual intercourse with was related to them by blood/ as a blood relative. The presumption of innocence applies in that the accused is presumed innocent until convicted of the offence.

The Guilty Act (Actus Reus)

The actus reus for the offence of Incest is established by proof, beyond a reasonable doubt, of the following:

• the accused had sexual intercourse with a blood (biological) relative, such as a sibling, parent, or grandparent.

The Guilty Mind (Mens Rea)

The mens rea for Incest is established by proof, beyond a reasonable doubt, of the following:

• the accused, knowing the person was a blood relative, engaged in sexual intercourse with that person.

Defences

How to Beat a Charge of Incest

Each circumstance is different, and the best defence available is contextual based on the details. Incest is a very serious criminal offence, as why it is straight indictable. However, the following are some common defences that may be used against a charge of Incest

Lack of Knowledge/No Mens Rea or Mental Intent

Lack of knowledge may also be raised as a defence in some circumstances if the accused can prove that they did not know that the other person was in fact, a blood (biological) relative. The crown is required to prove beyond a reasonable doubt that this has been established.

Ensuring the Evidence was Obtained Lawfully

It is advisable to consult a lawyer in such circumstances, however, there may be circumstances where evidence was obtained from the accused person without their consent, and where they held a reasonable expectation of privacy. If this is the case, it is important to seek consultation from a lawyer to ensure that the accused’s rights under section 8 of the Canadian Charter of Rights and Freedoms were not violated. If they were, there have been circumstances where the courts have deemed the evidence seized in this manner inadmissible.

For example, if following an incident, an accused person sent private text messages to a close friend discussing the matter, and the police seized and searched the accused’s cellular phone without a warrant, this evidence may not be admissible. Evidence, and how it was seized, although always important to examine diligently, is especially so in circumstances which lead to a charge of Incest. It is important to determine the accused’s expectation of privacy in this context, and whether the police obtained warrants to search the devices, or were required to.

Punishments

The maximum penalty for a conviction under Section 155 of the Criminal Code is a term of imprisonment of up to fourteen (14)years. If the other person is under the age of 16 years, the minimum penalty is 5 years incarceration.

It is a straight indictable offence, and therefore a discharge is not available under section 730(1) of the Criminal Code.

A conditional sentence is not available for a conviction of Incest.

Whether you intend to plead guilty to a charge under section 155, it is important to consult a lawyer prior. There may be factors which apply to your punishment/sentencing which are relevant and important for consideration, which may result in a lesser punishment. This depends on the unique circumstances of each matter and is determined on a case-by-case basis. Therefore, it is important to consult a lawyer.

Frequently Asked Questions

What do the courts define as “sexual intercourse” for matters of incest?

“Sexual intercourse” is defined by section 4(5) of the Criminal Code as being “complete on penetration to even the slightest degree, notwithstanding that seed is not emitted.” Canada’s courts have clarified that sexual intercourse includes not just vaginal but also anal intercourse, consistent with Parliament’s intent to protect vulnerable persons by criminalizing incest. This is settled law. Courts have suggested that “sexual intercourse” may also include other sexual acts, such as oral sex or digital penetration, but this question remains open.

Is it still considered incest in the circumstances of half-siblings?

Yes, you can be convicted of incest for having sexual intercourse with your half-sibling. Section 155(4) of the Criminal Code confirms that “brother” includes half-brother and “sister” includes half-sister.

What about in circumstances of step-siblings?

No, you cannot be convicted of incest for having sexual intercourse with your stepsibling (with whom you have no blood relationship), so long as both parties are over the age of consent.

Is consent an accepted defence to Incest?

No, the courts do not accept consent as a defence to incest.

Is inbreeding illegal in Canada?

Yes, it is an offence under section 155 of the Criminal Code.

Can a brother and a sister get married in Canada?

No. Sibling marriage is prohibited in Canada. Under section 155 of the Criminal Code, a blood relative cannot engage in an intimate relationship/sexual intercourse.

Can you date your cousin in Canada?

Yes, in Canada, first cousins are legally permitted to marry and, therefore can date.

Published Decisions

R. v. L.(B.), 2012 ONCJ 592 (CanLII),

The accused was convicted of incest after engaging in incest (unprotected sexual intercourse) with his biological daughter, multiple times over a period of three (3) years, when she was just 10 years old.

You can read the full decision here.

 R. v. G.R., [2005] 2 S.C.R. 371, 2005 SCC 45

The accused was charged with committing incest with his daughter.  At trial, the complainant was unable to confirm what the accused had done to her vagina region, as she could not see. At the time of the alleged incest, the daughter was in fact between the ages of five and nine.  The physical examination of the child as well as a sexual abuse profile revealed that there had been penetration although it could not be determined whether she had been penetrated by a finger, by a penis or by another object.  The accused testified in his own defence and categorically denied having touched his daughter in a sexual manner.  The accused was convicted of attempted incest by the trial judge. However, at the Court of Appeal, the Crown conceded that there was insufficient proof with respect to attempted incest, but argued that the accused should be convicted of sexual interference and sexual assault.  The court ultimately acquitted the accused of attempted incest and held that sexual interference and sexual assault are not included offences of incest. 

You can read the full decision here.

R. v K.H., 2015 ONSC 7760 (CanLII)

The accused was charged with a number of sexual offences including incest all perpetrated against his underage sister. Numerous incidents were alleged which included forced fellatio and several acts of the accused penetrating his sister’s anus.

The accused argued the purpose of section 155 is to prevent “sexual intercourse between persons who have a blood relationship” in an effort to “prevent genetic mutations that can result from inbreeding” and to protect vulnerable family members. The fact that section 4(5) includes the phrase “notwithstanding that seed is not emitted” indicates that what is contemplated is penetration of a vagina by a penis.

The judge dismissed this argument, as the legislative intent is to protect vulnerable family members, which includes the elements of the offence described above.

You can read the full decision here.