Sexual Interference vs. Sexual Assault: What You’re Actually Charged With

Sexual Interference: Section 151

Section 151 of the Criminal Code makes it an offence to touch, directly or indirectly, with a part of the body or with an object, any part of the body of a person under the age of 16, for a sexual purpose.

The critical distinction from sexual assault is this: consent is not a defence. A person under 16 cannot legally consent to sexual touching under section 150.1 of the Criminal Code. It does not matter whether the complainant appeared to agree, initiated the contact, or participated willingly. If the touching was for a sexual purpose and the complainant was under 16, the offence is made out regardless of the complainant’s apparent consent.

How It Differs from Sexual Assault

Sexual assault under section 271 requires proof that:

• The accused applied force to the complainant
• The touching was sexual in nature
• The complainant did not consent
• The accused had no honest but mistaken belief in communicated consent

Sexual interference under section 151 requires proof that:

• The accused touched the complainant (directly or indirectly)
• The touching was for a sexual purpose
• The complainant was under 16

The differences are significant. Sexual assault focuses on the absence of consent. Sexual interference focuses on the age of the complainant and the purpose of the touching. A person can be charged with both offences arising from the same conduct — and frequently is.

Penalties and Mandatory Minimums

Sexual interference carries a mandatory minimum sentence, unlike basic sexual assault:

• On indictment: Mandatory minimum 1 year, maximum 14 years.
• Summary conviction: Mandatory minimum 90 days, maximum 2 years less a day.

The mandatory minimum means a judge cannot impose a conditional discharge, a suspended sentence, or a conditional sentence (house arrest). On indictment, the accused will serve at least 1 year in custody. This makes sexual interference one of the more severely punished offences in the Criminal Code even at the low end of the sentencing range.

Like all sexual offences, a conviction triggers mandatory ancillary orders: registration on the National Sex Offender Registry under SOIRA (20 years for an indictable offence with a 14-year maximum), a DNA order, a weapons prohibition, and potentially section 161 orders restricting contact with minors and access to places where children are present.

The Close-in-Age Exception

Section 150.1(2) provides a limited exception for sexual activity between peers:

• A 12 or 13-year-old can consent to sexual activity with a partner who is less than 2 years older.
• A 14 or 15-year-old can consent to sexual activity with a partner who is less than 5 years older.

In both cases, the exception does not apply if the older person is in a position of trust, authority, or dependency relative to the younger person, or if the relationship is exploitative. The exception reflects Parliament’s recognition that criminalizing all adolescent sexual activity between peers would be overbroad.

What the Crown Must Prove

To convict on sexual interference, the Crown must prove beyond a reasonable doubt:

1. Identity — the accused is the person who committed the act.
2. Touching — the accused touched the complainant, directly or indirectly, with a body part or an object.
3. Sexual purpose — the touching was for a sexual purpose. This is assessed objectively, considering all the circumstances.
4. Age — the complainant was under 16 at the time.

Notably, the Crown does not need to prove that the accused knew the complainant’s age — but the accused can raise the defence of honest but mistaken belief in age under section 150.1(4) if they took “all reasonable steps” to ascertain the complainant’s age.

Defence Strategies

No sexual purpose. The defence may argue that the touching was not for a sexual purpose — for example, that it was accidental, medical, or innocently physical (a hug, play, or incidental contact). The purpose is assessed objectively, but context matters.

The touching did not occur. In many sexual interference cases, the allegation rests on the complainant’s testimony alone. Credibility and reliability challenges — inconsistencies between the complainant’s statement to police and their trial testimony, contradictions with other evidence, implausibilities in timing or logistics — can raise a reasonable doubt.

Mistaken belief in age. Under section 150.1(4), the accused can argue they honestly believed the complainant was 16 or older and took all reasonable steps to verify the complainant’s age. This is a demanding standard — the accused must show affirmative steps, not mere assumption.

Close-in-age exception. If the accused falls within the age parameters of section 150.1(2), the complainant could legally consent, and the offence is not made out.

Charter challenges. If the police obtained evidence unconstitutionally — through unlawful searches, failure to provide the right to counsel, or improper interrogation — that evidence may be excluded. Additionally, mandatory minimum sentences for sexual interference have been the subject of constitutional challenges under section 12 of the Charter (cruel and unusual punishment).

Related Offences

Sexual interference charges are frequently laid alongside related offences:

• Invitation to sexual touching (s. 152): Inviting a person under 16 to touch, directly or indirectly, the body of any person for a sexual purpose. Mandatory minimum of 1 year on indictment, maximum 14 years.
• Sexual exploitation (s. 153): Sexual touching of a person aged 16 or 17 by a person in a position of trust or authority. Mandatory minimum of 1 year on indictment, maximum 14 years.
• Sexual assault (s. 271): Often charged alongside sexual interference where the same conduct is alleged.

Representative Case Results

The following results involving sexual offence charges against persons under 16 are drawn from the firm’s published case outcomes:

• R v D.C. — Client was a youth charged with sexual assault. The defence brought a section 276 application to admit evidence of sexual contact following the alleged offence.
• R v T.A. — Client was charged with numerous counts of sexual assault involving four complainants. The Crown brought a similar fact application.
• R v E.G. — Client was charged with a historic sexual assault against his stepdaughter. Following a trial by judge alone at the Superior Court of Justice in Toronto.

What to Do If You Are Charged

Sexual interference is a charge with mandatory minimum sentences, mandatory sex offender registration, and severe collateral consequences. Immediate steps:

• Exercise your right to silence. Do not give a statement to the police without speaking to a lawyer first.
• Preserve all communications. Text messages, social media messages, and other digital evidence may be critical to the defence.
• Do not contact the complainant or their family. Bail conditions will prohibit contact. Any contact is a separate criminal offence.
• Retain a criminal defence lawyer. The mandatory minimums, the evidentiary complexities involving child witnesses, and the collateral consequences make early legal representation essential.

Facing This Charge

Sexual interference charges carry some of the most severe consequences in the Criminal Code — mandatory minimums, SOIRA registration, section 161 orders, and devastating professional and immigration consequences. But the Crown’s burden remains proof beyond a reasonable doubt. RH Criminal Defence handles sexual offence cases involving complainants under 16 across Ontario, including the evidentiary challenges unique to these cases: child witness reliability, section 276 applications, and constitutional challenges to mandatory minimums.