Sexual interference is one of the most serious offences in Canada’s criminal justice system, targeting the protection of minors. It criminalizes any form of direct or indirect sexual touching of a person under the age of 16, regardless of consent, under Section 151 of the Criminal Code. This legal provision reflects Canada’s commitment to safeguarding its youth.
This article will clarify its legal framework, differentiate it from related offences, and outline key implications under the Criminal Code, to fully understand the gravity and scope of sexual interference in Canada.
What Is Sexual Interference in Canada?
Sexual interference occurs when a person directly or indirectly touches any part of the body of someone under the age of 16 for a sexual purpose. In Section 151 of the Criminal Code of Canada, sexual interference is defined by the following statement:
“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”
The law precisely shows that making any contact with individuals under 16 for sexual purposes is inherently criminal and that they cannot legally consent to sexual activity. Canada’s highest court ruled that sexual offences against children are fundamentally violent, exploitative, and demand stronger legal sanctions.
Can a Minor Consent to Sexual Activity in Canada?
In Canada, an individual of 16 years old can lawfully consent to sexual activity. This standard underpins the Criminal Code; regardless of apparent agreement or maturity, the age of consent is higher in some cases.
The law includes two close-in-age exceptions to prevent criminalizing consensual teenage relationships.
Close-in-Age Exceptions
- 12–13 years old: Individuals aged 12 or 13 may consent to sexual activity with a partner less than two years older, if there is no relationship of trust, authority, dependency, or exploitation of the young person. This means, any sexual activity is a criminal offence if the partner is 2 years or older than a 12 or 13-year-old.
- 14–15 years old: A 14 or 15-year-old may consent if their partner is less than 5 years older, again only in the absence of a relationship of trust, authority, or dependency or any other exploitation of the young person.
Exploitative Scenarios Override Consent
Even if someone is 16 or 17 cannot consent to sexual activity if the other party holds a position of trust or authority, like their teacher or coach, if there is a dependency for care or support, or if the relationship is otherwise exploitative.
The young person’s age, the age difference between the young person and their partner, how the relationship developed, and whether the partner may have controlled or influenced the young person may be taken into account when determining whether a relationship is exploitative of the young person.
Who Can Be Charged with Sexual Interference?
According to Section 151 of the Criminal Code of Canada, anyone who touches a person under the age of 16 can be charged with sexual interference. The prohibition is deliberately broad and not limited to certain roles or relationships. Adults of any background, including strangers, neighbors, or family members, peers, or older teenagers, can be charged with sexual interference.
The expansive reach of these provisions ensures that no form of sexual contact involving a minor is left unaccounted for, regardless of who commits it.
Legal Penalties and Consequences for Sexual Interference
Sexual interference in Canada is classified as a hybrid offence, which means the Crown can prosecute it either by indictment or by summary conviction. An indictable offence carries a mandatory minimum sentence of one year in prison, and a maximum sentence of up to 14 years. A minimum sentence of 90 days and a maximum of two years less one day will be subject to summary conviction. Discharges, suspended sentences, or stand-alone fines options are not available for both offences, as these sentences are mandatory.
Convicted individuals will also be entered into the provincial sex offender registry on the National Sex Offender Registry (NSOR). The registry will contain personal details and a description of the crime. To keep the registry up to date, convicted individuals must report any change of address or other relevant information; or, it may result in fines or imprisonment. The convicted offender also needs to submit a DNA sample that will be preserved in the national or provincial database.
Courts may impose temporary or indefinite prohibition orders restricting contact with minors, access to places like schools or parks, and certain employment or volunteer positions. A conviction results in a permanent criminal record, where an exception exists only in very narrow circumstances, like when there was no relationship of trust or dependency, no violence or coercion, and the age difference was less than five years.
Convicted persons also may suffer long-term societal impact, where they may face employment barriers, travel restrictions, and societal stigma, deeply affecting personal and professional life.
How to Defend Sexual Interference Charges in Canada?
Defending such serious allegations requires a strategic and nuanced approach, given the serious legal and personal consequences involved. To prove the case, the crown must confirm beyond a reasonable doubt that the touching was intentional, sexual in nature, and involved a person under the age of 16.
To defend the case, one of the primary defences can be challenging the intent behind the alleged act. It may not meet the criteria for sexual interference if the touching was accidental or not for a sexual purpose.
If the accused had a mistaken but reasonable belief that the complainant was of legal age, one can provide a defence. Evidence suggesting that the complainant consented to the act can be used to dispute the allegations. Presenting an alibi or third-party evidence can be effective.
Conclusion
According to Section 151 of the Criminal Code of Canada, sexual interference is a serious criminal offence. Understanding the legal framework surrounding sexual interference is important for both legal professionals and the public. It is imperative to seek legal counsel promptly if anyone is facing charges related to sexual interference.
Early legal intervention can significantly impact the outcome of the case and develop appropriate defence strategies. To safeguard both minors and the broader community, awareness of the law, its scope, and the severe consequences of a conviction is essential.