ONTARIO
SUPERIOR COURT OF JUSTICE
COURT FILE NO.: YCJA(P)428/14
DATE: 2015-12-14
B E T W E E N:
HER MAJESTY THE QUEEN
C. Valarezo, for the Crown
- and -
K.H.
S. Butler, for the Defence
HEARD: December 2, 2015
REASONS FOR JUDGMENT
Barnes, J.
INTRODUCTION
[1] K.H. is charged with a number of sexual offences including incest contrary to s. 155 of the Criminal Code. At the conclusion of the evidence, the defence brought a motion for a directed verdict on the incest charge. After hearing the submissions of counsel, I dismissed the motion. These are my reasons.
RELEVANT BACKGROUND FACTS
[2] K.H is charged with sexual assault, sexual interference, invitation to sexual touching and incest. The complainant in the incest charge is his underage sister. The inappropriate sexual conduct alleged is several incidents of fellatio and K.H’s penetration of the complaint’s anus with his penis. There is no allegation that K.H. put his penis in the complainant’s vagina.
ISSUE
[3] Section 155 of the Criminal Code states:
- (1) Everyone commits incest who, knowing that another person is by blood relationship with his or her parent, child, brother, sister, parent grandparent or grandchild, as the case may be, has sexual intercourse with that person.
[4] Section 4(5) of the Criminal Code states:
For the purposes of this Act, sexual intercourse is complete on penetration to even the slightest degree, notwithstanding that the seed is not emitted.
[5] The defence has not raised a constitutional challenge in relation to s. 155 of the Criminal Code. The issue is whether penile penetration of the complainant’s anus constitutes sexual intercourse. The defence has raised the issue in the context of a motion for a directed verdict; however, it raises an issue of statutory interpretation which must be resolved before the motion for the direct verdict can be considered.
POSITION OF THE PARTIES
[6] The defence submits that the mischief s. 155 of the Criminal Code is designed to prevent is sexual intercourse between persons who have a blood relationship. Defence counsel says the words “notwithstanding that seed is not emitted” means the act contemplated by s. 4(5) is the penetration of a vagina by a penis. This is what constitutes sexual intercourse.
[7] The defence explains that the intent of the legislature was to prevent genetic mutations that can result from inbreeding and the protection of vulnerable members of a family. The defence submits that Parliament has also enacted the offence of anal intercourse described in s. 159 of the Criminal Code. This is a demonstration of Parliament’s intent to keep anal intercourse and sexual intercourse separate.
[8] The defence argues that there is no evidence that K.H. penetrated the complaint’s vagina with his penis. He is alleged to have penetrated the complaint’s anus with his penis. The defence explains that sexual intercourse is penile penetration of the vagina. Therefore, there is no evidence on which a reasonable jury, properly instructed, can render a guilty verdict. Thus, the incest charge should be removed from the jury’s consideration.
[9] I note that appellate courts have found s. 159 of the Criminal Code to infringe s. 15 of the Charter of Rights and Freedoms and not saved by s. 1. Section 159 has been found to be of no force and effect: R. v. M. (C.) (1995), 1995 8924 (ON CA), 23 O.R. (3d) 629 (C.A.); R. v. S. (A.) (1998), 1998 14610 (ON CA), 130 C.C.C. (3d) 320 (Ont. C.A.), leave to appeal to S.C.C. refused, [1998] S.C.C.A. No. 636; R. v. Talbot (2002), 2002 23584 (ON CA), 161 C.C.C. (3d) 256 (Ont. C.A.); R. v. Roy (1998), 1998 12775 (QC CA), 125 C.C.C. (3d) 442 (Que. C.A.).
[10] The Crown reiterates that s. 159 of the Criminal Code has been found to be unconstitutional, is therefore of no force and effect, and thus has no application. The Crown submits that, in the definition of sexual intercourse, Parliament decided to omit a specific reference to sexual acts of penile penetration of a vagina and include acts of penetration which do not result in the emission of “seed” – i.e. the ejaculation of sperm. This demonstrates Parliament’s intent that sexual intercourse is not limited to penile penetration of a vagina but includes penile penetration of an anus.
LAW AND ANALYSIS
Governing Principles
[11] There were no authorities provided to support the proposition that sexual intercourse includes acts of anal penetration. There were no authorities provided to support the contrary view. I reiterate that this is not a constitutional challenge of s. 155 of the Criminal Code.
Statutory Interpretation
[12] The law on statutory interpretation is settled. The section under consideration must be interpreted in the context of all provisions of the statute. For our purposes, this involves an interpretation of s. 155 and s. 4(5) of the Criminal Code. The objective is to determine the legislators' intention. The words of the statute must be read in their entire context; the words must be considered in their ordinary and grammatical sense: see Rizzo & Rizzo Shoes Ltd. (Re), 1998 837 (SCC), [1998] 1 S.C.R. 27, at para. 21; Bell ExpressVu Limited Partnership v. Rex, 2002 SCC 42, [2002] 2 S.C.R. 559, at para. 26.
[13] The purpose for the prohibition against incest is twofold. The first is to prevent the increased risks of birth defects in children born from incestuous relationships: R. v. G.R., 2005 SCC 45, [2005] 2 S.C.R. 371, at para. 17; R. v. F. (R.P.) (1996), 1996 NSCA 72, 105 C.C.C. (3d) 435 (N.S.C.A), at pp. 443-444. The second is to protect vulnerable family members: R. v. G.R., at paras. 18-20; R. v. F. (R.P.), at p. 445; R. v. M.S., [1994] B.C.J. No. 1028 (S.C.), at para. 13.
[14] It follows that “a vulnerable family member” is a person who is related to the person accused by virtue of a blood relationship. In this category is the person’s child, brother, sister, parent, grandparent or grandchild: Criminal Code, s. 155.
[15] The defence position that sexual intercourse is limited to penile penetration of a vagina seems to find support under the legislative intent to discourage the high incidence of genetic birth defects associated with incestuous relationships. It is not disputed that a child is born as a result of the fertilisation of the female reproductive agent, the egg, by the male reproductive agent, the sperm.
[16] The defence argument falls apart when considered in the context of the second legislative intent, which is the protection of vulnerable members of the family. A definition of sexual intercourse limited to penile penetration of the vagina means that a male can only commit incest if he uses his penis to penetrate the vagina of a blood relation. Under this circumstance, the “vulnerable family member” is only protected from incest if she is female and if the penis is inserted into her vagina. The same female blood relation is not protected from incest if her male blood relation inserts his penis into her anus.
[17] Another consequence of restricting sexual intercourse to the penile penetration of the vagina is that a vulnerable family member cannot receive the protections provided by s. 155 of the Criminal Code simply because he is not female. On the defence theory, if a male places his penis in the anus of a vulnerable family member who is male, he cannot be charged with incest. The protection of vulnerable female family members to the exclusion of vulnerable male family members could not have been the intention of the legislature.
[18] For all the forgoing reasons, I conclude that sexual intercourse includes penile penetration of the anus.
Directed Verdict
[19] The test on a directed verdict motion is whether there is sufficient evidence upon which a reasonable jury properly instructed can return a verdict of guilty: United States of America v. Shephard, 1976 8 (SCC), [1977] 2 S.C.R. 1067, at p. 1080; R. v. Arcuri, 2001 SCC 54, [2001] 2 S.C.R. 828, at para. 21. If sexual intercourse is limited to penile penetration of a vagina, the motion for directed verdict will succeed. There is no evidence of penile penetration of a vagina in this case. If sexual intercourse includes anal penetration, the motion for directed verdict will be dismissed. There is evidence upon which a reasonable jury properly instructed can render a verdict of guilty.
[20] There is evidence that K.H. penetrated the complaint’s anus with his penis on multiple occasions. I am satisfied that this is sufficient evidence upon which a reasonable jury properly instructed could render a verdict of guilty. Therefore, the motion for a directed verdict is dismissed.
Barnes, J.
Released: December 14, 2015
COURT FILE NO.: YCJA(P)428/14
DATE: 2015-12-14
ONTARIO
SUPERIOR COURT OF JUSTICE
B E T W E E N:
HER MAJESTY THE QUEEN
- and –
K.H.
REASONS FOR JUDGMENT
Barnes, J.
Released: December 14, 2015