Offence 155: Incest

Note: Specimen jury instructions serve as a template that trial judges must adapt to the particular circumstances of each trial, not simply read out in whole. They are not designed to be delivered "as-is." More information about the use of specimen instructions is found in the Preface and A Note to Users, which you can find here.

(s. 155)

[1] (NOA) is charged with incest. The charge reads:

(Read relevant parts of charge or indictment.)

[2] You must find (NOA) not guilty of incest unless the Crown has proved beyond a reasonable doubt that (NOA) is the person who committed the offence on the date and in the place described in the indictment. [1] Specifically, the Crown must prove each of the following essential elements of the offence beyond a reasonable doubt:

1. that (NOC) was the (specify blood relationship) of (NOA);

2. that (NOA) knew that (NOC) was his/her (specify blood relationship) at the time alleged; and

3. that (NOA) had sexual intercourse with (NOC).

Unless you are satisfied beyond a reasonable doubt that the Crown has proved all these essential elements, you must find (NOA) not guilty of incest.

If you are satisfied beyond a reasonable doubt of all these essential elements [and you have no reasonable doubt[2] after considering the defence(s) (specify defences) about which I will instruct you], you must find (NOA) guilty of incest.

[3] To determine whether the Crown has proved these essential elements, consider the following questions:

[4] First – Was (NOC) the (specify blood relationship) of (NOA)?[3]

(Review relevant evidence and relate to issue.)

Unless you are satisfied beyond a reasonable doubt that (NOC) was the (specify blood relationship) of (NOA), you must find (NOA) not guilty of incest. Your deliberations would be over.

If you are satisfied beyond a reasonable doubt that (NOC) was the (specify blood relationship) of (NOA), you should go on to the next question.

[5] Second – At the time alleged, did (NOA) know[4] that (NOC) was his/her (specify blood relationship)?

You must decide whether (NOA) knew of his/her relationship with (NOC) at the time described in the charge based on all the evidence, including anything said or done in the circumstances.

(Review relevant evidence and relate to issue.)

Unless you are satisfied beyond a reasonable doubt that (NOA) knew that (NOC) was his/her (specify blood relationship), you must find (NOA) not guilty of incest. Your deliberations would be over.

If you are satisfied beyond a reasonable doubt that (NOA) knew that (NOC) was his/her (specify blood relationship), you must go on to the next question.

[6] Third – Did (NOA) have sexual intercourse with (NOC)?

Sexual intercourse requires some penetration, even if it is only slight. If (NOA)’s penis was inside (NOC)’s vagina, even if just barely, sexual intercourse has taken place. (NOA) does not have to ejaculate.[5]

It does not matter whether (NOC) agreed to have sexual intercourse with (NOA). What the law forbids is sexual intercourse between blood relatives. If that happens, this element is proven.[6]

(Review relevant evidence and relate to issue.)

Unless you are satisfied beyond a reasonable doubt that (NOA) had sexual intercourse with (NOC), you must find (NOA) not guilty.

If you are satisfied beyond a reasonable doubt that (NOA) had sexual intercourse with (NOC), [and you have no reasonable doubt with respect to (specify defence)], you must find (NOA) guilty.

[1] Where identity is an issue, remember to include any further instructions that may be relevant (e.g., eyewitness identification, alibi, similar fact, etc.). Where date is an issue, the jury must be told that the Crown must prove that the offence occurred within the time frame indicated in the indictment. Where place is an issue, the jury must be told that the Crown must prove that some part of the offence occurred in the place indicated in the indictment.

Generally, the Crown must prove the date and place specified in the indictment. However, where there is a variation between the evidence and the indictment, refer to s. 601(4.1) of the Criminal Code and the jurisprudence following R. v. B. (G.), [1990] 2 S.C.R. 3.

[2] Insert the bracketed words if appropriate. This instruction will have to be modified where the accused has a legal burden of proof, such as for mental disorder or non-insane automatism.

[3] In most instances, no elaboration is necessary about the nature of the relationship between (NOC) and (NOA). Some explanation may be necessary where half-brother or half-sister relationships are involved.

[4] Where the Crown relies on recklessness or wilful blindness, further instructions may be required. See, for example, the relevant instructions in Offence 271 (Sexual Assault) at para. [7].

[5] This instruction assumes the accused is male. If the accused is female, (NOA) and (NOC) may require reversal.

[6] Where there is evidence that gives rise to a defence under s. 155(3) (i.e., a defence of restraint, duress or fear), specific instructions are required.