In Canada, any non-consensual sexual advances can result in allegations of sexual assault. When the alleged wrongdoing involves a minor, this can be classified as a crime of sexual interference with its own set of consequences.
Both sexual assault and sexual interference are serious offences which can result in grave punishments, application of minimum sentences, long-term incarceration, criminal records, and registration with the National Sex Offender Registry (NSOR).
What Is Considered Sexual Assault?
The Criminal Code of Canada defines sexual assault as a threat or application of force on another person in a sexual context.
Criminal law differentiates between several types of sexual assault, including sexual assault with a weapon, assault causing bodily harm, and aggravated sexual assault with a firearm involving a danger to life, wounds, and other aggravating factors. In addition, Section 271 of the Code specifically mentions sexual assault against minors under 16 years of age, determining aggravated consequences including minimum sentences for both summary and indictable convictions.
What Is Sexual Interference in Canada?
The crime of sexual interference is defined in Section 151 of the Criminal Code and applies only when the victim is under 16 years of age, and includes touching directly or indirectly with a part of the body or with an object on any part of the victim’s body for a sexual purpose.
Unlike sexual assault against a minor, sexual interference is a more specific crime which occurs when there is a sexual purpose. For sexual assault charges, the touching must be sexual in nature and doesn’t have to be aimed towards sexual gratification or similar motives.
These differences between sexual assault and sexual interference determine the way the Crown will lay the charges, and will define available defences in each case.
Common Defences of Sexual Assault and Sexual Interference
Sexual assault and sexual interference are serious crimes, and a conviction of either of these offences carries more than just prison time and a criminal record. Those convicted of these offences may find themselves unable to get a job, find housing for rent, and face other negative treatment from society.
Some of the most common defences against sexual assault include:
- that there was no sexual activity, or
- the sexual activity was consensual, or
- that the offender had an honest but mistaken belief that the other person gave their consent.
In cases of sexual interference, the Crown must prove that the touching was intentional, had a sexual purpose, and that the accused knew that the victim was a minor or failed to take steps to identify their age. Consequently, the defence strategies for sexual interference charge use the arguments that:
- there was no sexual purpose,
- touching was accidental and not intentional,
- the accused has taken all reasonable steps to determine the victim’s age.
Both sexual assault and sexual interference cases are highly context-specific.
When Is Consent a Defence in Sexual Interference Charges?
Consent is rarely a defence used in sexual interference cases, as the complainant, who is under 16 years of age, cannot legally consent to sexual activity with the exception of specific cases. It is also not a defence to state that the accused believed the complainant was above legal age, unless taking necessary steps to ascertain it.
Consent can only be used as a defence in sexual interference cases in a limited number of cases defined by so-called close-in-age exceptions, which provide that:
- children who are 12 or 13 years old can consent to sexual activity with someone who is less than two years older (for example, a 14-year-old),
- minors who are 14 or 15 years old can consent to sexual activity with another person who is less than 5 years older.
In addition to the specified age gap, the above close-in-age exceptions also presume that there is no relationship of trust, authority, dependency, or other exploitation of the young person.
Penalties for Sexual Assault and Sexual Interference
The penalties for sexual assault vary on the type and severity of the offence, and are defined in Sections 271-273 of the Criminal Code. In sexual assault cases involving a minor, the court must impose minimal prison sentences of six months in cases proceeding summarily, or up to one year if the Crown prosecutes by indictment.
Meanwhile, sexually assaulting a minor can lead to the maximum punishment of a term of two years in summary conviction and up to 14 years in the indictment process. Where sexual assault was aggravated by the use of a firearm, wounded, or endangered someone’s life, the maximum penalty is life in prison.
The charge of sexual interference can result in the application of a minimum sentence starting from 90 days in summary proceedings and up to one year in the indictment process. The maximum punishment for sexual interference is two years for a summary conviction and up to 14 years when the Crown proceeds by indictment.
Contact Vilkhov Law Today
When facing charges of sexual assault and sexual interference, it is essential to retain a professional criminal lawyer as soon as possible. A qualified legal professional can make all the difference in criminal proceedings and ensure the most favourable outcome.
At Vilkhov Law, our criminal defence team works tirelessly to evaluate all the evidence against our clients, assess its strengths and weaknesses, and build a robust legal defence. If you are facing charges of sexual assault or sexual interference in Toronto, contact Vilkhov Law today for a free and confidential consultation about how we can help in your case.