What is Sexual Interference in Canada?

What is Sexual Interference in Canada?

What’s the definition of sexual interference?

What is Sexual interference? It is a sexual offence against anyone who touches another person under the age of consent for a sexual purpose.

The idea behind that is that a person under that age of consent can’t consent, and so any touching is not allowed even if they agree to it.

This also makes a lot of the usual sexual assault defences, like mistaken belief in consent, unavailable because it doesn’t matter if you believed they consented, they can’t consent either way.

Can a child consent?

While the age of consent is 16 in Canada, there are some situations where a young person can consent to sexual activity. The situation where it may  be possible to consent differ based on the age of the child.

If the complainant is over the age of 12 and under thee age of 14 years old, consent can be a defense to sexual interference IF the person accused is:

  • Less than two years older than the complainant
  • Is not in a position of trust or authority,
  • Is not in a relationship of dependency, and
  • Is not in an exploitative relationship

If the complainant is at least 14 years old but under 16, then they are able to consent IF the accused is:

  • Less than five years older than the complainant,
  • Is not in a position of trust or authority,
  • Is not in a relationship of dependency, and
  • Is not in an exploitative relationship

What this means is that it may be possible that consent Is as defense so long as the accused and complainant are close in age and there is no special relationship between them.

Some examples of relationships that may be positions of trust, authority or dependency are teachers, coaches, parents, babysitters etc.

This can vary from case to case so you should be sure to obtain legal advice for any specific information on if such a relationship exists.

What if they said they were 16? Mistaken belief in age?

If the complainant lies about their age, this could give rise to what is called mistaken belief in age. This defense is available when the accused has an honest belief that the age of the complainant is one which would allow them to consent to sexual activity. But how do you prove you honestly believed someone is a different age than they say?

The way the law works is that the crown would be the one that needs to prove beyond a reasonable doubt that the accused did not take enough steps to find out the complainants age.

What steps the accused needs to take changes depending on the situation. The exact wording is that the accused take “all reasonable steps” to learn the age of the complainant in a case of sexual interference.

What are “all reasonable steps”?

Taking all reasonable steps is what is called a due diligence defense. The courts would look at the steps that a reasonable person would take in the circumstances.

This means they would look at the situation as a whole and ask, what would a reasonable person do if they were in that same situation? To help analyze the situation, the courts look at a list of factors in each situation:

  1. If the accused had knowledge of the complainant
  2. The physical appearance of the complainant
  3. The age and appearance of the complainant’s associates
  4. The age differential between the accused and the complainant
  5. The demeanour of the complainant
  6. The time and location of the alleged sexual assault
  7. Any other relevant times or places

Typically, the less familiar the accused is with the complainant, the more steps they are expected to take to find out their age before sexual activity.

This is also true if the complainant is much younger than het accused, a bigger age gap means the accused needs to take more steps to find out their age.

Exactly how many steps need to be taken is something that will be different in each case. Sometimes just the way the accused acts or looks is enough, while other times you might need to make multiple inquiries.

But she does this all the time!? Prior history?

Often people rely on their partner’s sexual history as justification on why they thought they were older. Especially when closer in age, the fact that someone’s partner had a relationship with a friend or acquaintance is something people try to rely upon to show their belief.

The issue here is that in Canadian law, someone’s prior sexual history is inadmissible in court (not allowed to go in). To get such information admitted into court, something called a 276 application is required.

What is a 276 application?

A section 276 application is an application which is made before a trial to request evidence of prior sexual activity be allowed into the court.

The idea is that prior sexual history causes a large amount of prejudice when allowed into a trial if they are admitted for the purpose of one of the “twin myths”.

Twin myths reasoning is reasoning in which the complainant is more likely to have consented to the sexual activity in question because of past activity, or that they are less worthy of belief.

To ensure the evidence does not go to one of the twin myths, a 276 application is necessary and the evidence is examined before it is admitted.

If the evidence is shown to have significant probative value (it gives a lot of proof), and little prejudicial effect (very little prejudice), then it can be allowed to be shown in the trial.

This application is done in front of a different judge than the trial to help make sure nobody is influenced negatively by the application.

What is sexual interference charge? 

Sexual interference is what’s called a hybrid offence, meaning it can be prosecuted by the crown as either an indictable offence or as a summary offence.

An indictable offence is one which is more serious, while a summary offence is typically less serious. As such, the choice the crown makes in how they proceed changes the maximum prison time if the accused is convicted.

What is the minimum sentence for sexual interference?

If the crown proceeds by indictment, the maximum sentence is 14 years in prison. If the crown chooses to proceed summarily, the maximum sentence is two years less a day.

In addition to time in prison, a sexual interference with minors conviction would require other orders to be made. Anyone convicted  would also be subject a DNA order, a section 161 order, and a SOIRA order (including registration in the Sex Offender Registry). These orders remain in place and can effect a convicted person long after their term in prison is over.

What is a section 161 order?

How does the Criminal Code define sexual interference?

A section 161 order under the sexual interference criminal code of Canada is an order which may be made when someone is convicted of sexual interference. In sentencing, the court may make an order which will:

  1. Restrict the ability of the offender to attend at public places and other locations where persons under the age of 16 years are present or can reasonably be expected to be present,
  2. Prohibit the offender from working, or becoming or being a volunteer, in a capacity that involves being in a position of trust or authority towards persons under the age of 16 years,
  3. Prohibit he offender from having contact or communication with a person who is under the age of 16 years unless under the supervision of a person designated by the court, and
  4. Prohibit the offender from using the internet or other digital network.

The court has the ability to alter the conditions or make exemptions as they see fit. An order under section 161 may also last as long as the court thinks is suitable based on the facts of the case. The conditions can last for life or be given any duration the court wishes.

There may be other consequences of a conviction, which include possible effects on immigration status, issues with employment, family law proceeds etc. To ensure you are properly advised and aware of the far reaching consequences of a conviction, we highly recommend you speak to a lawyer.

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