Incest is a serious sexual offence under Section 155 of the Criminal Code, classified as an indictable offence in Canada and recorded under UCR Code 1360. It involves sexual intercourse between close blood relatives such as a parent, child, sibling (including half-siblings), grandparent, or grandchild. The law is designed to prevent family-based sexual abuse, protect children and other vulnerable family members from exploitation, and uphold strong public policy against sexual relationships within the immediate family. Under the incest criminal code Canada framework, penalties can be extremely severe, especially where the other person is under 16 years old.
The Legal Definition
“Every one commits incest who, knowing that another person is by blood relationship his or her parent, child, brother, sister, grandparent or grandchild, as the case may be, has sexual intercourse with that person.”
For the purposes of this section, a brother or sister includes a half-brother or half-sister.
No accused shall be determined by a court to be guilty of an offence under this section if the accused was under restraint, duress or fear of the person with whom the accused had the sexual intercourse at the time the sexual intercourse occurred.
This definition, set out in Section 155 of the Criminal Code, focuses on three key elements: (1) there must be sexual intercourse; (2) it must occur between people who are in a specifically defined close blood relationship (parent, child, brother, sister, grandparent, or grandchild, including half-siblings); and (3) the accused must know about that blood relationship at the time of the sexual act.
In plain English, this means the Crown must prove not only that two close family members had intercourse, but also that the accused understood that the other person was their parent, child, sibling, grandparent, or grandchild. The law deliberately includes half-brothers and half-sisters to close a potential loophole and ensure comprehensive protection within the nuclear and extended vertical family line. If there is no sexual intercourse (for example, only touching or other sexual activity), Section 155 may not apply, though other sexual offences in the Criminal Code might. The statute also explicitly recognizes that a person forced into incest under restraint, duress, or fear should not be found guilty of this offence.
Penalties & Sentencing Framework
- Offence classification: Indictable offence only (no summary option).
- Maximum penalty (general): Up to 14 years’ imprisonment.
- Aggravated cases (other person under 16): Up to 14 years’ imprisonment, with a mandatory minimum of 5 years.
- Mandatory minimum (adult victim): No mandatory minimum; sentence is at the judge’s discretion within the 14‑year maximum.
Under the incest criminal code Canada scheme, incest is always prosecuted as an indictable offence. There is no hybrid or summary election. This reflects Parliament’s view of the seriousness of incest as both a sexual violation and a breach of fundamental family trust. An indictable offence is the most serious category in Canadian criminal law, involving more formal procedures, longer potential sentences, and significant long‑term consequences for criminal records, immigration, and professional regulation.
For the general offence (where the other person is 16 or older), judges have wide discretion to impose a fit sentence up to the 14‑year maximum. They consider factors such as the age difference, the nature of the relationship (for example, parent–child versus adult siblings), whether there was coercion or grooming, the presence of violence or threats, the duration of the sexual relationship, and the impact on the victim. Aggravating factors can greatly increase the sentence, especially where the accused held a position of trust or authority within the family.
When the other person is under 16 years of age, Section 155 imposes a mandatory minimum sentence of 5 years’ imprisonment. This means that if the Crown proves the offence and the age element, the judge cannot impose a sentence below five years, even if there are mitigating factors like no prior criminal record or expressions of remorse. The mandatory minimum sits within the same 14‑year maximum, so sentences can range from 5 to 14 years depending on the circumstances. In practice, cases involving young children, repeated offences, or clear abuse of parental power often result in lengthy penitentiary terms closer to the upper end of the range.
Common Defenses
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Duress or fear
The Criminal Code itself states that “no accused shall be determined by a court to be guilty” of incest if they were under restraint, duress or fear of the person with whom they had sexual intercourse at the time it occurred. This creates a specific statutory defence within Section 155. In practical terms, this recognizes that some individuals—often younger or more vulnerable family members—may be forced or coerced into sexual intercourse with a close relative. Where the accused can show that they participated only because they were threatened, physically restrained, or terrified of the consequences of refusing, a conviction for incest should not be entered against them. The court will examine the nature of the threats or coercion, the power imbalance in the relationship, and whether a reasonable person in the same situation would feel compelled to comply. This defence is particularly important in complex family situations where both parties may be charged but one was effectively a victim of the other’s coercion.
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Lack of knowledge of the blood relationship
Section 155 requires that the accused committed the act “knowing that another person is by blood relationship” their parent, child, brother, sister, grandparent, or grandchild. The mental element is knowledge. If the accused genuinely did not know, and had no reasonable way of knowing, that the other person was their close blood relative, then this essential element of the offence is missing. For example, two half-siblings raised apart who meet and form a relationship as strangers may have no awareness of their biological link. Once they later learn of the relationship, continuing intercourse could attract criminal liability, but prior acts may be defended on the basis that the required knowledge did not exist at the time. Courts will consider evidence such as adoption or birth records, family history, and what information was reasonably available to the accused. A mere suspicion, if ignored, may be problematic, but a complete and reasonable lack of knowledge can be a powerful defence.
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Lack of sexual intercourse
Incest under Section 155 specifically targets sexual intercourse. If the Crown cannot prove beyond a reasonable doubt that intercourse occurred, the charge of incest fails. This is different from many other sexual offences, which can apply to a broad range of sexual activity including touching, invitations to sexual contact, or exploitation. Evidence in incest cases often includes witness testimony, physical or medical evidence, digital communications, and sometimes admissions by the accused. Any significant doubt about whether intercourse actually took place can raise a reasonable doubt, leading to an acquittal on the incest charge. However, it is important to note that even if incest cannot be proved because there was no intercourse, other charges—such as sexual assault, sexual interference, or invitation to sexual touching—may still be available where other sexual activity occurred.
Real-World Example
Imagine a situation where two half-siblings are born to the same biological father but different mothers, and are raised in separate households without ever meeting. As adults, they encounter each other through work or social media, feel an attraction, and eventually enter into a consensual sexual relationship. At this point, neither of them knows they are related. Later, through family disclosures or DNA testing, they discover they share a biological parent and are, in fact, half-brother and half-sister.
Under the incest criminal code Canada provisions, half-siblings fall within the definition of “brother” and “sister,” so the relationship is legally within the scope of Section 155. However, a crucial element of the offence is that the accused must have known of the blood relationship at the time of intercourse. For sexual activity that occurred before they became aware of their shared parentage, both individuals may have a strong defence based on lack of knowledge of the relationship. Once they learn the truth, if they decide to continue having sexual intercourse, the defence of lack of knowledge would no longer apply. At that point, police investigating the situation could recommend incest charges. Prosecutors would assess the evidence about what each person knew and when, and a court would evaluate whether the legal elements, including knowledge and proof of intercourse, are met for the time periods in question.
Record Suspensions (Pardons)
Because incest under Section 155 is an indictable offence with a maximum penalty of 14 years’ imprisonment, it is treated as a serious offence for record suspension (pardon) purposes. Under current Parole Board of Canada rules, individuals convicted of an indictable offence like incest are generally required to wait 10 years after the completion of their entire sentence before they can apply for a record suspension. “Completion of sentence” means the end of any jail term, probation, parole, and payment of fines or surcharges. A record suspension is not automatic; the Parole Board reviews factors such as the person’s conduct since the offence, any new criminal activity, and evidence of rehabilitation. While a successful record suspension can limit public access to the conviction in many contexts, it does not erase the past, and certain agencies (such as police, courts, and some regulatory bodies) may still have access to non-public records when legally authorized.
Related Violations
- Sexual Assault
- Sexual Exploitation
- Invitation to Sexual Touching
These related offences may be charged alongside or instead of incest depending on the facts of the case, particularly where the victim is a minor or where the conduct involves coercion, abuse of a position of trust, or non-consensual sexual activity.