A 21-year-old man who had sex with a 13-year-old girl he met on Instagram has gone to prison. The Court of Appeal recalls that it is necessary to actively ascertain the age of a sexual partner and that to say “I thought she was older, she looked like a mature woman” is far from being a staunch defence.
After rejecting Nicolas Nzeyimana’s appeal, the Court of Appeal ordered him to surrender to the prison authorities.
The man will have to serve a prison sentence of 42 months there. He was found guilty of sexual assault and sexual interference with a minor under the age of 16.
This decision illustrates one of the many ways in which minors are solicited on social networks.
The man was eight years older than the girl. He appeared on social networks as a musician. The Court of Appeal accepts from the evidence that he knew that several of his subscribers were under 18 years old. It was the teenager who contacted him through Instagram: they had discussions of a sexual nature and the complainant sent him photos of herself naked. Then, he prepaid a taxi for her to come to his house: they had full sex on that first occasion, as well as afterwards.
In its decision rendered last week, the Court of Appeal reiterates the rules when it comes to sexual activity with minors: the age of consent is 16 in Canada, except in certain specific cases.
When a person is under the age of 16, an accused cannot avoid a conviction by invoking his consent to sexual acts, except in the following situations: if a young person is 12 or 13 years old, he can consent if his partner is under two years his senior, and, when the young person is 14 or 15 years old, when his partner is less than five years his senior, explained in an interview Me Jérôme Laflamme, a lawyer in the sexual violence team within the Director of Criminal and Penal Prosecutions (DPCP).
Here, the eight-year age difference precluded the defendant from raising the “consent defence,” Ms.e Laflamme, who was not the prosecutor in this case, but who agreed to outline the state of the law on sex crime defenses.
The accused, who denies having intended to have sexual activities with a minor, therefore pleaded the defense of “mistaken age”, that is to say that he believed that his partner was over 16 years old.
“A mature woman”
At trial, Nicolas Nzeyimana maintained that the complainant was “an adult and a mature woman. He presented the judge with photos of her and argued that her clothing, her travels from Lanaudière to Montreal by taxi on a weekday, as well as her initiatives in sexual matters supported her belief. He had only had discussions of a sexual nature with her, and nothing about her life, he testified. An allegation “obviously useful” for his version, but unlikely, decided the trial judge by rejecting his defense.
Nathalie Duchesneau of the Court of Quebec recalled that for this means of defense to be accepted, the accused “certainly did not have to do all the possible and imaginable verifications” but that he had to demonstrate “that he took all reasonable measures to ascertain the age of his partner”. Which, according to her, was not the case.
Dissatisfied, Nicolas Nzeyimana appealed the decision, but without success, since the Court confirmed the decision of Judge Duchesneau.
“The Appellant testified that the Complainant appeared to be an adult due to the circumstances he explained. In the end, he let his impressions guide him and did no other verification,” write the three judges of the Court. However, “appearances are rarely enough. »
But there is more, writes the Court of Appeal: there was a “significant” age gap, a lack of dating before sex, and the fact that he knew that minors were following him on Instagram.
Moreover, he never asked the girl about her age. Worse, at the second meeting where he had taken his friends, he told him to lie: “Tonight you are 18, I told my friends that you were 18, if they ask you questions, you you are 18! writes Judge Duchesneau.
“Asking for age is good, but it’s not always enough,” says Ms.e Laflamme, noting that sometimes victims don’t tell the truth about their age.
The defense of “reasonable and honest belief in age” depends on the circumstances of each case, he says, insisting that it is an infrequent defense because it is “quite demanding” and therefore difficult for an accused to establish. .
When it comes to dating on social networks, the requirements may even be a little higher, “because behind a screen, you can say anything,” commented the specialized prosecutor. In short, if you have a doubt: you check, he summarizes.