Sexual Assault vs Sexual Interference in Canada

What is Sexual Assault and Sexual Interference?

Sexual assault and sexual interference are both sexual offences under Canadian criminal law. Sexual assault is dealt with under s. 271 of the Criminal Code, whereas sexual interference is set out within s. 151. The criminal behaviour that is the focus of both crimes is non-consensual sexual contact. This means that any offender that touches a victim in a sexual manner or for a sexual purpose, without that victim’s consent can found guilty of either offence depending on the facts of each case.

Non-consensual sexual activity is a broad concept that covers a wide variety of actions. It is more than the commonly-thought-of example of non-consensual intercourse, otherwise known as rape. A sexual assault or sexual interference offence may occur based on lesser forms of contact such as an unwanted kiss or hug. Each of these actions may violate a victim’s sexual integrity, though to a different degree.

A sexual assault occurs when an individual touches another person without consent, and the touch violates the sexual integrity of the victim. Sexual interference on the other hand, occurs when an individual touches a person under the age of 16, either with their hand or an object, for a sexual purpose. This means that even if the young person is agreeable to the touch, because of their age they are unable to consent, and a crime has been committed.

It is the responsibility of the justice system to then assign the proper penalty to an offender through sentencing based on the offence they are convicted of. The more serious the sexual assault or interference, the stronger the sentence faced by the offender will be.

Why are they Different Offences?

Sexual assault and sexual interference are very similar offences but there are key differences between the two. The main difference between the two is that sexual interference is specifically a sexual offence that is committed against children. The wording of the offence specifically prohibits anyone from directly or indirectly touching a part of the body of a child under the age of 16 for a sexual purpose. An offender can be convicted of sexual interference for touching a child’s body with a part of their own body or an item if they are found to have the required purpose for the touching. The offence focuses on the action of touching and the intent of the offender because in most cases, the victim of sexual interference will not have reached the age of 16, which is the general age of consent to Canada. Without the ability to consent to sexual contact, sexual interference cases separate themselves from sexual assault cases. Furthermore, Canadian law treats sexual offences seriously, but those offences committed against children more so. Therefore, the minimum penalties faced by offenders who victimize children are greater than other offenders.

Sexual assault is distinct from sexual interference not just because it covers offences against adults and must address the possible defence of consent.

There are also two additional offences related to sexual assault that consider the specific circumstances of the assault and its impact on the victim. These offences are sexual assault with a weapon, threats, or bodily harm, and aggravated sexual assault. Each of these offences could also lead to stricter punishments for offenders. Sexual assault with a weapon or bodily harm occurs any time an offender carries, threatens to use or uses a weapon during a sexual assault, or where the assault leads to some non-minor harm or injury to the victim. Choking a victim would fall under this category. Aggravated sexual assault charges will be the result of offences that lead to more serious injuries to victims, including those that maim, disfigure, or endanger the victim’s life.

What are the Common Penalties for These Offences?

Both sexual assault and sexual interference are a type of criminal offence known in Canadian law as a hybrid offence. A hybrid offence allows the Crown to choose how to prosecute an offender. The choice is made based on the severity of the offence committed by the offender. Less serious examples of sexual assault or interference are classified as summary offences and are subject to a lesser range of sentences. The more serious examples are deemed indictable offences.

Under the law, an offender guilty of summary offence sexual interference may be sentenced to between a minimum of 90 days imprisonment up to two years less a day. Indictable offence interference carries a range from a one year minimum to a 14-year maximum. It is rare for an offender to receive the maximum sentence for any crime in Canada’s legal system. In each case, a court will consider several factors, including those around the offence and the offender themselves before deciding on the appropriate sentence that reflects our legal system’s principles of sentencing. The court will assess these factors and increase or decrease the sentence as they see fit. Some factors that may reduce a sentence include a guilty plea, or if the offence at issue is the offender’s first.

The range of punishment for summary offence sexual assault has no mandatory minimum and the maximum allowable sentence is 18 months’ imprisonment if the victim is at least 16 years old. If they are younger, the minimum is six months, and the maximum is two years less a day. Similarly, there is no minimum punishment for indictable sexual assault up to 10 years imprisonment. If the victim is under 16, that range shifts to a minimum of one year up to 14 years. It is also important to know that an offender can face consequences in addition to their main sentence, many of which are mandatory. These consequences can be ordered by a judge and are known as ancillary orders. They include: SOIRA orders, DNA orders, and weapons prohibitions, or orders restricting access to children and other orders imposed as necessary.

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.