Under section 151 of the criminal code, a person can be charged for committing sexual
interference. The section is a hybrid offence, and so it gives a lot of different punishments that a crown attorney can use. For more serious offences, the crown attorney can prosecute on indictment, with a minimum sentence of one-year imprisonment and a maximum sentence of fourteen years. If the crown chooses to proceed on a summary conviction, the punishment is much more lenient, with a minimum sentence of 90 days imprisonment and a maximum sentence of two years less a day. Section 151 of the criminal code gives the offence of sexual interference. The code states:
“Every person who, for a sexual purpose, touches, directly or indirectly, with a part of the body or with an object, any part of the body of a person under the age of 16 years”
A person is guilty of sexual interference if they are an adult who touches a person under 16 years of age in any way with a sexual purpose. This is different from section sexual assault in section 271 of the criminal code. Sexual assault requires the touching be done without consent. “Without consent” is an essential element of sexual assault but is not mentioned at all in sexual interference.
Sexual interference can also be charged to persons between the ages of 16 and 18 if they are in a position of trust or authority with the victim.
When you are charged with sexual interference, you are innocent until proven guilty. The crown attorney needs to prove all the different parts of the offence beyond a reasonable doubt for you to be convicted.
The crown needs to prove seven different things to show that the accused actually committed sexual interference. The elements that must be proven are 1:
1. That the accused was the offender (The accused’s identity)
2. The time and place the offence occurred
3. The age of victim at the time of the offence (were they under 16?)
4. That that the accused touched the victim
5. That that touching was for a sexual purpose
6. That the accused knew the victim was under 16 or the accused did not take reasonable steps to ascertain the age of the victim
For more serious offences, the crown attorney can prosecute on indictment, and for a less serious offence they have the option to prosecute summarily. The crown attorney gets to choose which way they will charge you deepening on how serious the alleged crime is.
If you are prosecuted on indictment, there is a minimum sentence of one-year imprisonment and a maximum sentence of fourteen years. If the crown chooses to proceed on a summary conviction, the punishment is much less, with a minimum sentence of 90 days in jail and a maximum sentence of two years less a day in jail.
Sexual interference is much different from a sexual assault charge when the question of consent is raised. Since persons under the age of 16 cannot consent to sexual intercourse, consent is not a defence in most cases. Consent may be a defense when a complainant meets certain requirements which differ based on their age. Consent is never a defense if the complainant is below the age of 12, but if the complainant is between the ages of 12 and 14 years or 14 and 16, then consent is available as a defense in certain circumstances.
If a complainant is between the ages of 12 and 14, consent is a possible defense ONLY if:
• The accused is less than two years older than the complainant
• The accused is not in a position of trust or authority and it is not a relationship of dependency (i.e., not in a situation where they have influence over the accused, or the accused depends on them)
If a complainant is between the ages of 14 and 16, consent is a possible defense ONLY if:
• The accused is less than five years older than the complainant, and
• There is no relationship of trust or dependency; or
Not knowing the age of the complainant or making a mistake as to the age of the complainant is not usually a defence to sexual interference. Thinking the complainant is over the age of 16 at the time the offence occurred is not enough for the mistaken belief in age defense unless the accused took all reasonable steps to find out the age of the complainant. What a judge would consider reasonable steps may be different in every case. More steps would be needed if the age gap between the complainant and accused is larger or if the accused is older and more sophisticated than the youth. The courts look at factors such as:
• The age different between the accused and complainant
• The complainant’s physical appearance
• The complainant’s behaviour
• All the surrounding circumstances.
The accused’s belief that the complainant is of age is a relevant consideration but is not determinative of if a valid mistake of age has been made. The onus to proving the age exemption is on the accused, and they must prove that all reasonable steps have been taken. The requirement of all reasonable steps is not that some or most reasonable steps were taken. It is a higher bar than a reasonable doubt, “all” reasonable steps must be taken for mistake of age to be a valid defense.