Sexual Interference vs. Sexual Assault

Charges involving sexual offences are among the most heavily prosecuted in the Canadian legal system. In Alberta, confusion often arises regarding the difference between Sexual Assault and Sexual Interference. While they may seem similar, they are distinct offences under the Criminal Code of Canada with different legal elements and severe consequences if convicted. The defence lawyers at Ivy Law have the expertise required to navigate these complex cases.

Sexual Assault (Section 271 of the Criminal Code)

Sexual assault is an assault (intentional application of force without consent) of a sexual nature. It applies to victims of any age.

• The Actus Reus (Guilty Act): The Crown prosecutor must prove the following three elements beyond a reasonable doubt:

1. There was touching;
2. The touching was of a sexual nature; and
3. There was an absence of consent.

The first two elements are assessed objectively. The Court will consider whether a reasonable person would conclude that there was voluntary touching and that the said touching was of a sexual nature.
The third element is assessed subjectively. It is determined by reference to the complainant’s internal state of mind towards the touching. If the Court believes that the complainant did not consent to the sexual activity, the third element will be made out.

• The Mens Rea (Guilty Mind): The Crown prosecutor must prove the following two elements beyond a reasonable doubt:

1. There was intention to touch on the part of the accused; and
2. The accused knew, or was reckless or wilfully blind to, the lack of consent on the part of the person touched.

Consent and honest but mistaken belief in consent are often central issues in adult sexual assault trials in Alberta. Under Canadian law, consent must be voluntary, ongoing, and cannot be obtained through threats, fraud, or the abuse of a position of trust. Further, a person incapable of consenting (e.g., due to severe intoxication) cannot legally give consent.

Sexual Interference (Section 151 of the Criminal Code)

Sexual interference specifically protects young persons. It is defined as directly or indirectly touching, for a sexual purpose, any part of the body of a person under the age of 16 years.
A person under 16 years of age cannot legally consent to sexual activity with an adult (subject to the “close in age” exceptions). In a sexual interference case, the Crown does not need to prove a lack of consent. If the complainant is under 16, and the act in question was for a sexual purpose, the offence is complete.

The “Close in Age” Exemption

Section 150.1(2) and (2.1) of the Criminal Code provides an exception if the accused is close in age to the complainant:

• If the youth is 14 or 15 years old, they can consent to sexual activity with someone less than 5 years older.
• If the youth is 12 or 13 years old, they can consent to sexual activity with someone less than 2 years older.

 
Note: These exceptions do not apply if the older person is in a position of trust or authority towards the complainant (e.g., a teacher or coach), is a person with whom the complainant is in a relationship of dependency or is in a relationship with the complainant that is exploitative of the complainant.

Evidentiary Rules and Credibility (W.(D.) Principles)

Trials for both offences frequently come down to “he-said/she-said” scenarios. In Canada, the Supreme Court’s ruling in R. v. W.(D.) provides the following framework judges must use to assess credibility when the accused’s version of events contradicts the complainants:

1. If the judge believes the evidence of the accused, they must acquit.
2. If the judge does not believe the evidence of the accused, but the evidence leaves a reasonable doubt, they must acquit.
3. If the judge is not left in reasonable doubt by the evidence of the accused but, on the basis of the evidence that the judge does accept, is not convinced beyond a reasonable doubt of the guilty of the accused, they must acquit.
4. If the judge does not know who to believe (i.e. the accused or the complainant), they must acquit.

Severe Consequences (SOIRA)

Convictions for either sexual assault or sexual interference may result in life-altering penalties, including potential federal imprisonment and registration on the National Sex Offender Registry (SOIRA).
A robust, strategic defence is vital. Contact Ivy Law immediately if you are facing these allegations in Alberta.