Sexual Interference charges (s.151, Criminal Code of Canada): Answers to Frequently Asked Questions
When a person is charged with sexual interference under section 151 of the Criminal Code, several common questions arise. We try to answer those frequently asked here:
Question: “What is ‘Sexual Interference’ under section 151 of the Criminal Code?”
Sexual interference occurs when a person directly or indirectly touches for a sexual purpose a person under the age of consent.
The Crown prosecutor must prove the following:
- You touched the person for a sexual purpose. Touching may be with your body or an object.
- The touching was intentional.
- You knew the person was below the age of consent, or you did not take reasonable steps to determine their age.
Question: “What is the age of consent for sexual intercourse or sexual activity in Canada?”
The age of consent is 16. However, you may be charged with sexual interference for touching a person younger than 18 if you are in a position of trust, authority, or dependency (e.g., parent, stepparent, teacher, boss, caregiver).
Question: “Does that mean young people cannot engage in sexual activity at all?”
No. The law allows for close-in-age exceptions.
A 14- or 15-year-old may consent to sexual activity if (i) their partner is less than five years older than they are; and (ii) the relationship is not one of trust, authority, dependency, or any other form of exploitation.
A 12- or 13-year-old may consent to sexual activity if (i) their partner is less than two years older than they are; and (ii) the relationship is not one of trust, authority, dependency, or any other form of exploitation.
Question: “What if a person under the age of consent wanted to engage in the sexual acts?”
Irrelevant. Subject to the close-in-age exceptions, a person under the age of consent cannot consent to sexual activity no matter how enthusiastically they ask for it.
Question: “I thought my sexual partner was of legal age, but I was wrong. Is that a defence?”
Mere belief that a person is of a consenting age is not a defence to sexual interference. You must have taken reasonable steps to determine your partner’s age.
The law does not provide a checklist of factors that apply to each case.
In some situations, visual observation may be enough. In other situations, you must take more proactive steps to determine your partner’s age. Such steps might include asking for their age or requesting ID.
What is reasonable depends on the circumstances. For example, if you meet someone at a house party with many high school students, you may need to take more proactive steps to determine their age than you would if you had met them at an accounting conference.
Question: “What are the legal defences to sexual interference under section 151 of the Criminal Code?”
Common defences to sexual interference include:
- Mistake of age
- Unintentional touching
- Touching for a non-sexual purpose
Making your case may come down to questioning the person who made the complaint against you (the complainant) at trial. This process is called cross-examination. If you don’t have a lawyer, you will not be permitted to cross-examine the complainant. The court will appoint a lawyer to ask questions. This lawyer is not your lawyer, and their duty is to the court, not you.
Question: “If I am charged, will I wait in jail until my trail date?”
After you are charged, you will likely be released from custody as you await trial.
The two most likely forms of release are an undertaking to a peace officer or bail.
An undertaking to a peace officer or officer in charge requires you to agree to certain conditions upon your release. In sexual interference cases, these conditions almost always include not communicating or contacting the alleged victim.
In many cases, the police will hold you for a bail hearing. If the police arrest you for a criminal offence, they may decide to keep you in custody and bring you before a court to decide whether you should be released. This process is called a bail hearing. The law requires that police bring you before the court within 24 hours. Once you are before the court, a bail hearing may commence right away, or it may be adjourned up to three days if so requested and appropriate. No bail hearing may be adjourned more than three days without your consent.
At a bail hearing, you may have to submit a robust release plan to satisfy the court that you will not flee the jurisdiction or put others at risk.
Question: “If I am found guilty, what are the penalties to the charge of sexual interference?”
The answer to this question depends on how the Crown prosecutor decides to proceed.
Sexual interference is a hybrid offence. That means the Crown prosecutor can choose to pursue the case by indictment or summarily. Indictments follow conduct that the Crown deems very serious. A summary offence is the Canadian equivalent of a misdemeanour and is a matter the Crown aims to address relatively quickly.
With hybrid offences, the Crown has complete discretion to decide whether to proceed by indictment or summarily. A court cannot intervene.
If the Crown elects by indictment, the minimum penalty for sexual interference is one-year imprisonment, and the maximum is 14 years.
If the Crown elects summarily, the minimum penalty is 90 days imprisonment, and the maximum is two years.
Question: “What happens as I await trial on sexual interference charges?”
Before trial, you will have to make numerous appearances in court to provide updates on the status of the case. These appearances are not an opportunity to discuss the evidence in your case. If you are represented, your lawyer will appear on your behalf.
Usually some time before or soon after the first appearance, the Crown will send you disclosure. Disclosure is the all the relevant information about your case that the Crown and police have.
Upon receiving disclosure, your lawyer and the Crown prosecutor will engage in resolution discussions. The Crown generally does not engage in such discussions with unrepresented accused.
Your lawyer will also attend a judicial pre-trial, which is a discussion with the defence, Crown prosecutor, and a judge where the judge aims to narrow the issues and move the parties to resolution.
If the Crown elects by indictment, you may opt into having a preliminary hearing. The preliminary hearing is a proceeding to determine whether the Crown has enough evidence for you to stand trial. The threshold required for a person to stand trial is very low.