Sexual Interference (s. 151) Laws in Canada

What is sexual interference?

Sexual interference is covered under s.151 of the Criminal Code.

Sexual interference is similar to a charge of sexual assault; however, sexual interference is an offence that is committed when a person indirectly or directly touches any part of the body of a person younger than 16 years for a sexual purpose. Unlike, regular sexual assault, a charge of sexual interference will require that there be a sexual purpose.

Sexual interference is a hybrid offence. This means that depending on the circumstances of your offence the Crown can elect to proceed either summarily or by indictment.

Examples

Some common examples of sexual interference may include the following when the victim is under the age of 16 years old:

• Touching;
• Kissing
• Fondling;
• Coerced sexual contact;
• Forcible sodomy;
• Rape; or

Defences

A strong defence to a sexual interference charge will heavily depend on the individual circumstances of your case.

However, the following may be some applicable defences:

• Lack of intent;
• Mistaken belief in age; and
• Any applicable Charter

Punishments

Depending on whether the Crown elects to proceed either by indictment or summarily and whether there are any aggravating or mitigating factors present, this will impact the severity of the punishment that you will receive.

If you are convicted of sexual interference, you may be faced with the following penalties:

• Summary: a minimum imprisonment term of 90 days up to maximum imprisonment term of two years less a day;
• Indictment: a minimum imprisonment term of one year and up to a maximum imprisonment term of 14 years.

Overview of the Offence

Under s. 151 of the Criminal Code:

In order for the Crown to secure a conviction for a sexual interference offence, they must prove, beyond a reasonable doubt, both the actus reus and the mens rea of the offence.

The Guilty Act (Actus reus)

The actus reus for sexual interference that the Crown must prove, beyond a reasonable doubt, is that:

• You touched the complainant with a part of your body or an object; and
• The complainant was under the age of 16.

The Guilty Mind (Mens rea)

The mens rea for sexual interference that the Crown must prove, beyond a reasonable doubt, is that the touching was:

• Intentional;
• For a sexual purpose; and
• knew the complainant was under 16 or you did not take “all reasonable steps” to ascertain the age of the complainant.

Anyone who intends any sort of sexual interaction with a child and with that intent makes contact with the child is said to have “touched” the child and is guilty of sexual interference.

With respect to age, for the purposes of this section, the Crown needs to only prove that the accused was aware, willfully blind, or subjectively reckless as to whether the victim was under the age of 16. This was reiterated in the case of R v WG, 2021 ONCA 578 (CanLII).

As indicated in the case of R v KWB, 1993 CanLII 14711 (MB CA) sexual interference is a specific intent offence. This means that all the Crown requires is proof that the touching was done for a sexual purpose.

In relation to the “sexual purpose,” it is important to note that in the context of a sexual interference charge it refers to the sexual gratification of the accused. The court in R. v. T.L.P, 2015 BCSC 618 (CanLII) indicated that a “sexual purpose” means “…for one or more of the following: a) sexual gratification; b) the violating of the complainant’s sexual integrity; or c) the sexual domination of the complainant. Additionally, the court in R v JAB, 2002 CarswellOnt 3241, [2002] OJ No 3755 further stated that a “sexual purpose” can be inferred by the court from looking at from the “circumstances of the situation, including the nature of the touching and any words or gestures accompanying the act”.

What constitutes “all reasonable steps” is determined on a case-by-case basis as it depends on the specific circumstances of the case, but is assessed on the basis of an objective and reasonable person.

Although there is no checklist to determine what amounts to “all reasonable steps” some factors to consider may include the following:

• level of knowledge of the complainant;
• physical appearance;
• age and appearances of the complainant’s friends; and/or
• difference of age between the accused and the complainant;

Defences

A strong defence to a sexual interference charge will depend heavily on the individual circumstances of your case. However, some defences against a sexual interference charge may include the following:

• Lack of intent;
• Mistaken belief in age; and
• Any applicable Charter

Mistaken Belief in Age

If you honestly believed that the complainant was 16 years of age or older at the time the sexual activity occurred, you may have a defence to a sexual interference charge. However, it is important to note that the Criminal Code requires that you take “all reasonable steps” to ascertain the complainant’s age before you can raise a defence of mistaken belief in age. This means that you point to some evidence that you honestly believed the complainant was 16 years or more and that you took reasonable steps to ascertain the complainant’s age. What constitutes to “reasonable steps” is fairly contextual and fact-specific, however, if you are able to showcase that you did in fact take all reasonable steps you cannot be convicted of sexual interference

Charter Defences

The Charter sets out your rights and freedoms before and after your arrest. In the event that the police fail to abide by these rights, either deliberately or inadvertently, it could aid in your defence for a charge of sexual interference. If any of your Charter rights have been violated before or after your arrest, you may be able to have some or all of the evidence that the Crown is relying on to secure a conviction excluded under s.24(2) of the Charter.

Common Charter breaches include:

• Section 8- Right to be secure from search and seizure;
• Section 9- Right not to be arbitrarily detained;
• Section 10- Right to be informed of reasons for detention or arrest:
• Section 11- General: legal rights apply to those “charged with an offence”
• Section 12- Cruel and unusual treatment or punishment

Lack of Intent

A conviction of a sexual interference offence requires that you possessed the requisite intention. If you are able to demonstrate that you did not possess the intention, the men’s rea element of the offence cannot be made out and the Crown will not be able to secure a conviction.

Punishment

The penalty that you receive for a sexual interference charge will be dependent on a variety of factors such as whether the Crown proceeded by indictment or summarily and whether there are any aggravating or mitigating factors present. However, the following penalties may be applicable:

s.151 – Summary

If you have been convicted of sexual interference and the Crown elected to proceed summarily, then you are subject to a minimum imprisonment term of 90 days and can face up to a maximum imprisonment term of two years less a day.

s.151 – Indictment

If you have been convicted of sexual interference and the Crown elected to proceed by indictment, then you are subject to a minimum imprisonment term of one year and can face up to a maximum imprisonment term of 14 years.

You will also have available to you sentences which include custody and probation, custody and fine and conditional sentence. Note that you will not have available a discharge, suspended sentence, stand-alone fines, or conditional sentences available.

Additionally, beyond any immediate jail and/or probation sentence that you may receive, if you are convicted of sexual interference, you will also have to submit your DNA to a national DNA databank. This means that the police will have access to information about your DNA which may be used when the police conduct any future investigations. Furthermore, in accordance with the Sexual Offender Information Registration Act (SOIRA) if you are convicted of a child luring offence you will also be put on the registered sex offender list for a mandatory minimum of 10 years. This means that the government will be able to monitor you after your conviction by obtaining information such as where you live, work, volunteer, and what kind of car you drive.

Under a SOIRA order you are required to report to the Sexual Registry anytime you:

• Change your address or place of residence;
• Change employment or volunteer positions; or
• Travel internationally for more than 7 days.

Frequently Asked Questions

Is sexual interference a criminal offence?

Yes, sexual interference is a serious criminal offence. Even for a first-time offence you will be prosecuted harshly and may receive significant jail time.

What is the punishment for sexual interference?

Sexual interference is a hybrid offence in which the Crown can choose to proceed either by indictment or summarily.

If convicted of sexual interference, you may also be subject to the following penalties:

• Jail
• DNA orders
• Prohibition against owning weapons
• Prohibition against going to any location where a person under the age of 16 may be present
• Register as a National Sex Offender

Can you go to jail for sexual interference?

Yes, you can go to jail for a sexual interference conviction, even if it is your first offence. If the Crown proceeds summarily, you can face a minimum of 90 days in jail and a maximum of up to two years less a day in jail.

If the Crown proceeds by indictment, you can face a minimum of one year in jail or up to maximum of 14 years in jail.

How do you prove sexual interference in Canada?

The Crown needs to prove the basic elements of the offence of sexual interference in order to secure a conviction.

This would include proving, beyond a reasonable doubt, that:

• You touched the complainant for a sexual purpose either with your body or with an object;
• The sexual touching was intentional; and
• That you knew the complainant was under the age of 16, or that you did not take reasonable steps to ascertain the complainant’s age.

Published Decisions

v. J.L.V., 2019 BCPC 113 (CanLII)

In this case, there were four complainants who were siblings that disclosed sexual abuse by the accused, who was their uncle. The accused was charged with sexual assault, sexual interference, an invitation to sexual touching, and obstruction of a peace officer. The accused was convicted of sexual interference and an invitation to sexual touching of three complainants, sexual assault of complainant I, and obstruction; the accused was acquitted on the remaining charges.

You can read the full decision here.

v. Sears, 1990 CanLII 10938 (MB CA)

In this case, the complainant, who was 12 years old, asked the accused if she could give him sexual favours in return for money. The accused agreed to this, and the complainant performed an act of fellatio in return for $10. The accused was charged and convicted of sexual interference. The accused proceeded to appeal this conviction on the ground that s. 151 of the Code precluded a conviction where the accused was not the primary actor or instigator. However, the appeal was dismissed as the court indicated that s.151 addressed not the instigator of the sexual conduct but rather the adult who, for his own sexual purposes, made contact, whether as a primary actor or not.

You can read the full decision here.

v. Peterson, 2015 ABPC 241 (CanLII)

In this case, the complainant was 15 years old at the time of the allegations. In an interview with police, the accused stated he responded to an advertisement on “Craigslist” which said that an 18-year-old was looking for an older, “daddy type” individual. The Complainant disclosed to the accused that he was 15 years old. The accused asked a lawyer in a law office for which he provided consulting services about the age of consent for sexual activity and was told that sexual intercourse was not permitted until the complainant was 18 years of age. There were three instances of touching (direct or indirect) between the accused and the complainant. The accused was charged with sexual assault, touching a person under 16 years old for a sexual purpose, and obtaining sexual services of a person under 18 years old, all against the same complainant. The accused was acquitted of sexual touching and found not to have contravened s. 151 Criminal Code.

You can read the full decision here.