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 mature” is not a defense at all test.
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 having had two full sex acts with a minor in December 2018 and January 2019.
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. The complainant contacted him through Instagram: they had discussions of a sexual nature and the complainant sent him nude photos. Then, they met in person and had sex on that first occasion.
In its decision rendered last week, the Court of Appeal recalls the principles of law when it comes to sexual relations with minors.
The age of consent to sexual relations is 16 in Canada, except in certain cases where the law is even stricter.
When a person is under the age of 16, their consent to sexual acts cannot therefore be invoked by the accused, unless there is not a great difference in age between the two partners: for example, if a young at 12 or 13 years old, the law allows a difference of less than two years, and when the young person is 14 or 15 years old, an age difference of less than 5 years can be admitted, explained in an interview Me Jérôme Laflamme, a lawyer for the sexual violence team within the Director of Criminal and Penal Prosecutions (DPCP).
Here, the eight-year age difference prevented the accused from pleading the “defence of consent”, continued Me Laflamme, who was not the prosecutor in this case, but who agreed to describe the state of the law. sexual defences.
The accused therefore pleaded the defense of “mistaken age”, that is to say that he believed that she was over 16 years old.
At trial, Nicolas Nzeyimana said 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.
The trial judge dismissed his defence. Nathalie Duchesneau of the Court of Quebec recalled that for this defense to be accepted, the accused must demonstrate “that he took all reasonable measures to ascertain the age of his partner”. What he did not do, according to her.
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 further verification,” write the three judges. However, “appearances are rarely enough. »
But there is more, writes the Court of Appeal: there was a “significant” age difference, a lack of dating before the first meeting – “which can sometimes support a reasonable belief” – 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 took his friends, he told him to lie about his age.
And again: “asking for age is good, but it’s not always enough,” said Me Laflamme, noting that sometimes complainants will not tell the truth. The “reasonable and honest belief in age” defense is a very contextual defence, the requirements of which will vary from case to case, he says, emphasizing that it is a “fairly demanding” and therefore difficult for an accused to establish.
When it comes to dating on social networks, the requirements may be a little high, “because behind a screen, you can say anything,” commented the specialized prosecutor.
The Court of Appeal therefore ruled that Judge Duchesneau did not commit any error of law in her analysis and thus confirmed her verdict.