Sexual Interference criminalizes any touching of a person under 16 for a sexual purpose, regardless of perceived consent.

Sexual Interference: Criminal Code Provisions (s. 151)

Criminal Code Provision (s. 151)

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

Penalties:

1. Is guilty of an indictable offence and is liable to imprisonment for a term of not more than 14 years and to a minimum punishment of imprisonment for a term of one year; or
2. Is guilty of an offence punishable on summary conviction and is liable to imprisonment for a term of not more than two years less a day and to a minimum punishment of imprisonment for a term of 90 days.

Understanding Sexual Interference

Sexual interference criminalizes any touching of a person under 16 for a sexual purpose. This includes both direct and indirect touching, whether done with a body part or an object. The offences include all types of sexual contact, not limited to intercourse.

The legislation aims to safeguard minors under the age of 16 since they are not legally permitted to give consent for sexual activities.

What the Crown Must Prove

1. The complainant was less than 16 years of age.
2. The accused made contact with the complainant directly or indirectly.
3. The contact was made with a sexual intent.

Consent and Defences

Consent has a minimal impact in cases of sexual interference. The legislation aims to safeguard individuals who are under the age of 16, as they are considered not to be legally able to consent to sexual relations with an adult. This means:

• No legal consent under 16 – even if a child verbally agrees or initiates contact, the law treats it as if they did not consent.
• No exceptions for “apparent willingness” – “the child seemed willing and did not resist” is not a defence. The burden and responsibility always lie on the adult to refrain from engaging in sexual conduct with a minor.
• Mistaken belief in age – the limited defence available is the claim of mistaken belief that the complainant was under 16. The accused must be able to prove that they took reasonable steps to determine the complainant’s age; this is a very strict interpretation by the courts.
• Power, trust, and authority – Some examples of individuals who are considered to hold a position of trust and authority include teachers, coaches, caregivers or family members. Where the accused is someone who holds this position, courts will treat the lack of consent more strictly, as there is often pressure and influence on the child.

Sentencing for Sexual Interference

This is a hybrid offence, but it is treated very seriously in courts.

1. Summary Conviction – The maximum penalty for a summary conviction is 2 years less a day in jail.
2. Indictment – When the Crown proceeds with an indictment, the maximum is 10 years in prison.
3. Other Consequences: long with the sentence, an accused may face a mandatory inclusion on the Sex Offender Registry, a DNA order and weapons prohibitions, and long-term supervision orders or restrictions may apply.
4. Factors considered by courts: Some of the factors determined by the courts when deciding a sentence for the accused include the age difference between the accused and complainant, the relationship of trust, authority, or dependency, the vulnerability of the victim, the number of incidents and whether the conduct was repeated, and lastly, the psychological and emotional harm to the complainant.