What is Sexual Interference Under Canadian Law?
Canada’s Criminal Code treats sexual assault and related sexual offences as serious criminal offences that can result in severe penalties upon conviction. During the 2019-2020 reporting period, Ontario courts addressed 4,374 cases of sexual assault and 5,486 other sexual offences, according to the latest Statistics Canada data .
Most people understand the basic legal definition of sexual assault, but what about those other sexual offences? Do any carry the same severe penalties as sexual assault and if so, which ones?
Perhaps the easiest way to understand those other sexual offences is to know that are distinctly addressed with their own chapter in the Criminal Code. While the Code addresses sexual assault under its assault provisions in the Offences Against the Person or Reputation chapter, the other sexual offences are covered by the Sexual Offences, Public Morals and Disorderly Conduct chapter.
And, yes, many offences detailed in this chapter carry penalties that can be as severe as those for sexual assault. In particular, the Code mandates harsh penalties for sexual offences involving children. Many such violations are straightforward, such as those dealing with child pornography, child prostitution, and luring a child for sexual purposes. However, the crime of sexual interference is not as clear-cut due to the issue of consent.
So, What Exactly is Sexual Interference?
Strictly speaking, sexual interference is any physical contact made for sexual purposes against a person under 16, which is Canada’s legal age of consent.
Under Section 151 of the Criminal Code, the crime carries the same 14 years maximum imprisonment sentence as sexual assault when charged as an indictable offence. When charged as a summary conviction offence, the offence has a maximum of two years less a day prison term and a minimum 90-day term. As with sexual assault, a conviction results in other significant penalties that we will highlight further below.
Because of this legal age of consent, the consent defence cannot be raised in many sexual interference cases, though distinct exceptions exist. Such exceptions are based primarily on the difference in age between the defendant and the minor. However, other factors play a role as well. A defendant can successfully mount a consent defence under the following parameters.
With minors ages of 12 or 13, the defendant:
- Must be less than two years older
- Cannot be in a position of trust or authority
- Cannot be in a relationship of dependency
- Cannot be in an exploitive relationship
For minors who are 14 or 15 years old, the defendant:
- Must be less than five years older
- Cannot be in a position of trust or authority
- Cannot be in a relationship of dependency
However, a defendant who is more than five years older than a 14- or 15-year-old minor can successfully claim consent if they are the common-law partner of or married to the minor. In such situations, the defendant cannot also be in a position of trust or in a relationship of dependency over the minor.
Defence Based on Mistaken Belief in Age Hard to Make
Sexual interference defendants can raise a defence based on having a mistaken belief about the minor’s age. However, proving this erroneous belief in court can be difficult unless you have distinct evidence proving that the minor lied about their age. Absent such evidence, you have to prove to the court that you took “all reasonable steps” to learn the minor’s age prior to the sexual interference. The subjective nature of what might constitute reasonable steps means the court weighs numerous factors in determining what would be reasonable under the circumstances. Thus, the court might analyze —
- How well the defendant knew the minor prior to the interference.
- The age difference between the defendant and the minor.
- The physical appearance of the minor.
- The age and appearance of the minor’s friends and associates.
- Time and location of alleged interference(s).
- Any prior sexual history of the minor.
— to determine what steps the defendant should have taken to ascertain the minor’s age.
If the defendant did not know the minor well, they would be expected to make much more effort to determine age. Likewise, if there is a large gap between the ages. If the minor’s prior sexual history is to be raised by the defence, it will necessitate the filing of a 276 application , which the court uses to assess whether the evidence can be introduced in court.
Other Penalties that Come with a Sexual Interference Conviction
Potential imprisonment is terrible enough, but a conviction for sexual interference carries other penalties that can seriously disrupt your life. Those convicted of sexual interference are also subject to a minimum of 10-years registration with the National Sex Offender Registry (NSOR) and Ontario Sex Offender Registry (OSOR) . Law enforcement agencies use the registries to investigate sex-related crimes and keep track of high-risk sexual offenders.
Registration provides police with:
- Name and valid proof of identity.
- Residential address.
- Telephone numbers.
- Current employment and/or education details.
- Details about your sex offence(s).
- Physical descriptors such as height, weight, race, build, gender, scars, tattoos, and any other distinguishing features.
- Current photos.
- Vehicle ownership details, including registration and license numbers.
- Passport information.
Offenders are required to provide police annual updates on these details. Registrants must also report any change of address or name change and any travel away from home of more than a week’s duration. Non-compliance penalties include fines of up to $25,000 and prison sentences of up to two years.
A conviction for sexual interference can also result in the issuance of a Section 161 order, which carries restrictions on where you can go and who you associate with. These restrictions may include:
- Barring you from public parks, schools, playgrounds, community centres or other areas when persons under the age of 16 are present or can be expected to be present.
- Designating physical distance in kilometres you must maintain between you and the victim (minor).
- Barring you from working or volunteering in any capacity in which you might hold a position of authority or trust over minors.
- Having any contact with those under 16.
- Limits on your use of the Internet or digital networks.
Consult with Toronto’s Mass Tsang for your Criminal Defence Needs
Because the penalties for a conviction for sexual interference or other sexual crimes are so severe, you should always consult with experienced sexual assault criminal defence lawyers if charged. Mass Tsang lawyers have successfully defended hundreds of Toronto-area clients who have been charged with sexual offences. If you or someone you know is facing sexual interference or other sexual-related charges, contact the expert lawyers at Mass Tsang today for a free consultation.