What is sexual interference?
Section 151 of the Criminal Code states that it is a crime for an adult to sexually touch anyone under the age of 16. Section 152 of the Code states it is a crime for an adult to invite or encourage someone under 16 to sexually touch them. In both cases, illegal touching can be with any part of the adult’s body or with an object, and it can involve any part of the youth’s body. The accused is often charged with both offences, with police leaving it up to the Crown to decide which has the best chance of prosecution. For these charges to be proven, it must be shown the adult knew the complainant was under 16 or that they did not take reasonable steps to ascertain the person’s age.
What is the age of consent?
According to a Department of Justice (DoJ) document, the age of consent “is the age at which a young person can legally agree to sexual activity. Age of consent laws apply to all forms of sexual activity, ranging from kissing and fondling to sexual intercourse.”
Without consent, all sexual activity is a criminal offence regardless of age, the DoJ adds.
Can the age of consent be higher than 16?
The age of consent can be higher if there is a relationship of trust, authority or dependency between the complainant and the adult. The DoJ says this exception is a factor if a teacher, coach or someone else in an authority position has an inappropriate relationship with a young person. If may also arise if the young person is dependent on the adult for care or support.
Adults in this situation are often charged with sexual exploitation, which is an offence under Section 153 (1) of the Code. According to the DoJ, the factors the court will consider to determine if exploitation occurred are: the young person's age; the age difference between them and the adult; how the relationship developed (secretly or over the internet; and whether the adult controlled or influenced the young person
What are ‘close in age’ exceptions?
According to the DoJ, a “14- or 15-year-old can consent to sexual activity as long as the partner is less than five years older and there is no relationship of trust, authority or dependency or any other exploitation of the young person.” This means that if the partner is five years or older than the 14- or 15-year-old, any sexual activity is a criminal offence.
There is also a “close in age” exception for 12- and 13-year-olds. They can consent to sexual activity with a partner as long as the partner is less than two years older and there is no relationship of trust, authority or dependency or any other exploitation of the young person. This means that if the partner is more than two years older than the 12- or 13-year-old, any sexual activity is a criminal offence. And keep in mind that two years means exactly two years, or 730 days. If someone is two years and two months older, they do not qualify for the “close in age” exemption.
What is the punishment for sexual interference/invitation to sexual touching?
With both these crimes, the Crown has the option to prosecute them either as an indictable or summary conviction offence. Convictions for an indictable offence carry much harsher penalties with a maximum sentence of 14 years in prison, while the minimum punishment is one year in jail.
If the charge is treated as a summary conviction, the maximum penalty upon conviction is two years behind bars, and a minimum of 90 days in jail.
What is the National Sex Offender Registry?
Those found guilty of sexual interference or invitation to sexual touching will be registered in the National Sex Offender Registry (NSOR), administered by the RCMP. The information contained in this database includes: your name, date of birth, gender, main and secondary residence, employer name and address, vehicle description, phone numbers, height, weight, photograph, identifying marks (e.g. tattoos, scars) and the offence for which the offender has been convicted. You will also be registered with a provincial database, depending on where you live. Only the police have access to these registries.
You must report any change of address or other relevant information (such as changing your last name) to keep the registry up-to-date. You can be fined or imprisoned for not complying with these requirements.
According to the Sex Offender Information Registration Act, those registered in the database only have seven days to report changes if they have changed residences, altered their given or surname, or have been given a driver’s licence or passport.
As a registered sex offender, you may also have restrictions put on your liberty, preventing you from going to places frequented by minors such as playgrounds and schools.
The Act adds that “information that is registered in the database in accordance with this Act shall be kept in the database indefinitely.” Exceptions to this rule can be granted if “the person who is subject to the order is finally acquitted of every offence in connection with which the order was made or receives a free pardon granted under Her Majesty’s royal prerogative of mercy or under section 748 of the Criminal Code.”
Consent cannot be given for sexual interference
In 2021, a judge of the Court of Queen’s Bench of Alberta sentenced a 48-year-old man to five-and-a-half years in prison after finding him guilty of sexual interference and sexual luring in a case involving a 15-year-old girl.
Court documents show they started chatting over the internet and he suggested they meet for sex. The youth agreed and met him in his hotel room where they had intercourse. After dinner and a movie they returned to the room and continued to have sexual relations, but were interrupted by police, after the teen’s mother intercepted some of the online messages sent to her daughter.
In handing down the sentence, the judge referenced another court decision that noted: “Sexual interference constitutes a major sexual interference where the sexual interference is a serious violation of the physical and sexual integrity of the child and is of a nature or character such that a reasonable person could foresee that it is likely to cause serious psychological or emotional harm, whether or not physical injury occurs. Vaginal intercourse, anal intercourse, fellatio and cunnilingus all fall into this category.”
In dismissing the idea that the 15-year-old consented to the sex act, the judgment noted: “There is a foreseeable and significantly increased risk of profound short- and long-term negative developmental and psycho-social outcomes even where the children gave their de facto consent, including in the context of a ‘relationship’ with an older ‘partner.’ The risk is of lowered self-esteem, depression, suicidal ideation, poor school performance or lower levels of educational attainment or school completion and significant negative impact on current and future social relationships and intimate relationships.”
Reasonable doubt leads to an acquittal
A 2020 Ontario Superior Court of Justice decision shows how reasonable doubt can result in an acquittal when someone is charged with sexual assault involving an invitation to sexually touch.
Court documents state that a step-father had been charged with sexual assault after his stepdaughter alleged that he would occasionally stand in her doorway late at night, naked, and sometimes would come into her room and sexually touch her.
The step-father denied any such touching or bodily exposure, though he did “indicate that if he and the complainant’s mother had been intimate, they might have a shower together and walk back to their bedroom wearing only a towel” by the daughter’s bedroom door that may have been open.
In explaining the decision to acquit the man, the judge noted numerous “gaps and inconsistencies” in the Crown’s case, whereas the father’s testimony was “consistent and plausible,” the judgment reads.
“I remind myself of the meaning of the phrase ‘Proof beyond a reasonable doubt,’” the judge states. “A reasonable doubt is not an imaginary or frivolous doubt. It is not a doubt based on sympathy for or prejudice against anyone involved in the trial. It is a doubt based on reason and common sense that arises logically from the evidence or absence of evidence. It is therefore not enough for me to believe [the step-father] is probably or likely guilty.”
Let me build your defence
The charges of sexual interference and invitation to sexual touching are taken very seriously by the court. If convicted, you could be looking at spending the next 14 years in prison. Your personal reputation will also be shattered. Don’t take that chance. Contact me for a free consultation so I can hear the details of your case, in French or English. We can then start working on your best defence against the charges.