By Farid Zamani
If you are reading a police charge sheet, you might see “sexual assault” or “sexual interference.” People often use these terms to mean the same thing in everyday conversation. But in Canadian criminal law, they are two completely different charges.
One main difference usually comes down to age and consent, although the exact charge still depends on the facts and the Criminal Code provisions involved.
If you or someone you know is facing these charges, you need to understand exactly what the Crown is trying to prove. Here is a clear look at how the law separates sexual interference from sexual assault, and why that matters for your defence.
Key Takeaways
- Sexual assault is generally about the absence of legally valid consent. It can be charged in cases involving adults, and it can also apply where the complainant is under 16.
- Sexual interference is an age-based offence that involves touching a person under 16 for a sexual purpose.
- Consent is generally not a defence where the complainant is under 16, subject to the close-in-age exceptions and the rules about trust, authority, dependency, and exploitation.
- Both charges are serious and can carry major penalties, including jail, a criminal record, and sex offender registration consequences.
What is Sexual Assault?
In Canada, sexual assault generally means sexual touching without the complainant’s voluntary agreement.
To prove a sexual assault charge, the Crown Attorney has to show that the sexual contact happened without the other person’s voluntary agreement. The main focus here is consent.
It does not just mean rape. A forced kiss, grabbing someone’s body over their clothes, or continuing sexual activity after someone says “stop” are all sexual assaults. Sexual assault can apply in cases involving adults, and it can also be charged in cases involving a complainant under 16, depending on the facts and the charge laid.
If the person was asleep, incapable of consenting because of intoxication or another reason, or if the apparent agreement resulted from force, threats, fear, fraud, or abuse of authority, there is no legal consent. And if there is no consent, it is an assault.
What is Sexual Interference?
Sexual interference is a highly specific charge under Section 151 of the Criminal Code. Section 151 applies where a person touches a person under 16, directly or indirectly, for a sexual purpose.
Here is the key point: for this offence, consent is generally not a defence, subject to the close-in-age exceptions in section 150.1. In many cases involving a complainant under 16, the issue is not whether the young person agreed to the contact. A mistaken belief about age is not a defence unless the accused took all reasonable steps to ascertain the complainant’s age. In Canada, the general age of consent is 16, but section 150.1 creates close-in-age exceptions for some 12-15 year olds, and those exceptions do not apply where there is trust, authority, dependency, or exploitation.
The Crown does not have to prove that the touching was forced or unwanted. The Crown must prove the complainant’s age and that the touching was for a sexual purpose.
The Age of Consent Nuance
To understand the difference between these charges, you have to understand the age of consent. In Canada, the general age of consent is 16. The close-in-age exceptions and mistake-of-age rules are set out in section 150.1 of the Criminal Code.
But there are exceptions. These are called the “close-in-age” exemptions. The law recognizes that teenagers date each other.
- If the younger person is 14 or 15: They can consent to sexual activity with someone who is up to 5 years older.
- If the younger person is 12 or 13: They can consent to sexual activity with someone who is up to 2 years older.
A 14- or 15-year-old may be able to consent to sexual activity with a partner who is less than five years older, but not where there is a relationship of trust, authority, dependency, or exploitation. In those situations, the close-in-age exception does not apply and charges, including sexual interference, may follow depending on the facts.
Comparing the Defences
Because the charges are different, the way a criminal lawyer defends against them is different.
Defending Sexual Assault Charges
In a sexual assault trial involving adults, the defence usually revolves around the issue of consent.
- Did the complainant actually consent?
- Did the accused honestly but mistakenly believe there was communicated consent, and is there evidence that reasonable steps were taken in the circumstances to confirm that consent?
- Is the complainant’s memory reliable, or are there inconsistencies in their story?
Defending Sexual Interference Charges
Consent from the complainant is generally not a defence to sexual interference. Instead, a lawyer looks at other angles.
- Lack of Sexual Purpose: Not all touching is sexual. A hug, a pat on the back, or accidental contact in a crowded space might be misinterpreted. The Crown has to prove that the touching was for a sexual purpose.
- The Age Exemption: A lawyer will review the exact ages and dates to see whether a close-in-age exception may apply.
- Factual Innocence: The defence may also challenge whether the alleged event occurred as described, based on the evidence. The defence may closely examine the evidence, including witness testimony, to test whether the allegation has been proven beyond a reasonable doubt.
The Stakes Are High
Whether the charge is sexual assault or sexual interference, the consequences of a conviction can be severe and long-lasting. Both can carry significant penalties, including jail. Both can lead to a criminal record and may also carry sex offender registration consequences. This can affect employment, travel, and other parts of daily life.
Getting legal advice early can be important. If police want to question you, speaking with counsel first may help you understand how any statement could affect the case.
This article provides general information about Canadian criminal law. It is not legal advice. The exact charge, available defences, and likely outcome depend on the facts and the evidence in the specific case.
About the Author
Farid Zamani is the founder of Zamani Law, a criminal defence firm based in the GTA committed to protecting clients’ rights with professionalism and compassion. After earning his law degree at Buckingham Law School in the U.K., Farid worked at Daley Byers Criminal Law for 12 years before launching his own firm. Farid practises criminal law and has experience handling a wide range of serious and complex cases. Dedicated to the community, Farid is the co-founder of the non-profit Children Without Borders and has contributed to many other charitable organizations.