Can Someone be Charged with Both Offences?
It is possible for an offender to be charged with both sexual assault and sexual interference. This is because every instance of sexual interference is a sexual assault, though not every sexual assault may meet the criteria of sexual interference. However, in some cases offenders will only be convicted of one of the offences. This is because a rule exists in Canadian law that prevents offenders from being charged with multiple offences that are the result of the same act. This rule is known as the Kienapple principle, and it helps to ensure that sentences are an appropriate response to the harm caused by the offence without violating the constitutional right against cruel and unusual punishment.
What is a ‘Sexual Purpose’?
Under the Code the offence of sexual interference requires an offender to touch a child under the age of 16 for a sexual purpose. This added element of the purpose of a touch is one of the main differences between sexual assault and sexual interference offences. Sexual assault cases are concerned with the fact that the offender intended to touch the victim, the touch was sexual in nature and that it happened without the victim’s consent. If a touch is a violation of the victim’s sexual integrity, the purpose behind it is not an element the Crown must prove to establish an offender is guilty of sexual assault. In sexual interference cases, the element of a sexual purpose is required because children cannot consent to sexual activity. Therefore, any touch for a sexual purpose in these circumstances is illegal and an example of sexual interference.
Courts must determine what a sexual purpose is in the circumstances of each case. Sometimes a sexual purpose is obvious in context based on the part of the child’s body being touched, or the relationship between the offender and victim. In other instances, a touch will not have a sexual purpose even if the child’s genitals were touched. An obvious example of this would be where a parent is bathing a baby. The courts will consider all available evidence before determining whether a touch is motivated by a sexual purpose. The Ontario Court of Justice case of R. v. Jahfari, 2023 ONCJ 362 (CanLII), explores this issue. In this case a 15-year-old victim accepted a ride home from a stranger. During the ride, the offender touched the victim’s hand and thigh, then kissed him first on the forehead and the lips. The court determined that the lack of relationship between the parties, and that fact that the offender was clearly asserting control over the victim spoke to idea that the touches occurred for the offender’s benefit. Once the kissing progressed, the sexual purpose of the action became clear.