Sexual Interference (Offence): Difference between revisions
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Latest revision as of 21:11, 26 August 2024
This page was last substantively updated or reviewed August 2021. (Rev. # 96255) |
Sexual Interference | |
---|---|
s. 151 of the Crim. Code | |
Election / Plea | |
Crown Election | Hybrid summary proceedings must initiate within 12 months of the offence (786(2)) |
Jurisdiction | Prov. Court Sup. Court w/ Jury (*) |
Summary Dispositions | |
Avail. Disp. |
|
Minimum | 90 days incarceration |
Maximum | 2 years less a day incarceration |
Indictable Dispositions | |
Avail. Disp. | same as summary |
Minimum | 1 year incarceration |
Maximum | 14 years incarceration |
Reference | |
Offence Elements Sentence Digests |
Overview
Offences relating to sexual interference are found in Part V of the Criminal Code relating to "Sexual Offences, Public Morals and Disorderly Conduct".
- Pleadings
Offence Section |
Offence Type |
Crown Election | Defence Election s. 536(2) |
Preliminary Inquiry |
---|---|---|---|---|
s. 151 [sexual interference] | Hybrid Offence(s) | (* only if Crown proceeds by Indictment) | (14 years max) |
Offences under s. 151 [sexual interference] are hybrid with a Crown election. If prosecuted by indictment, there is a Defence election of Court under s. 536(2) to trial to trial in provincial court, superior court with a judge-alone (with or without a preliminary inquiry) or superior court with judge-and-jury (with or without a preliminary inquiry).
- Release
Offence(s) | Appearance Notice by Peace Officer s. 497 |
Summons by Judge or Justice s. 508(1), 512(1), or 788 |
Release by Peace Officer on Undertaking s. 498, 499, and 501 |
Release By a Judge or Justice on a Release Order s. 515 to 519 |
Direct to Attend for Fingerprints, etc. Identification of Criminals Act s. 2 ID Crim. Act |
---|---|---|---|---|---|
s. 151 [sexual interference] |
When charged under s. 151 [sexual interference], the accused can be given an appearance notice without arrest under s. 497 or a summons. If arrested, he can be released by the arresting officer under s. 498 or 499 on an undertaking with or without conditions. He can also be released by a justice under s. 515.
- Fingerprints and Photos
A peace officer who charges a person under s. 151 [sexual interference] of the Code can require that person to attend for the taking of fingerprints, photographs or other similar recordings that are used to identify them under the Identification of Criminals Act.
- Publication Bans
Section s. 151 [sexual interference] offences permit a judge to order a discretionary publication ban for sexual offences under s. 486.4 that protects "information that could identify the victim or a witness". Where the witness is under the age of 18 or if in relation to a victim, the order is mandatory under s. 486.4(2).
- Offence Designations
Offence(s) | Wiretap Eligible s. 183 |
Dangerous Offender Designated Offence s. 752 |
Serious Personal Injury Offence s. 752 |
AG Consent Required | Serious Criminality Offence s. 36 IRPA |
---|---|---|---|---|---|
s. 151 [sexual interference] | (Primary) | (by indictment only) | (14 years max) |
Section s. 151 [sexual interference] offences are "primary designated offences" under s. 752 for a Dangerous Offender Order. The offender will be deemed a "substantial risk" for a Long-Term Offender Order under s. 753.1.
Offences under s. 151 [sexual interference] are designated "serious personal injury" offences under s. 752(a) only if it has a maximum penalty of 10 years incarceration or more and involves "use or attempted use of violence against another person" or "conduct endangering or likely to endanger the life or safety of another person or inflicting or likely to inflict severe psychological damage on another person".
See below in Ancillary Sentencing Orders for details on designations relating to sentencing orders.
Offence Wording
- Sexual interference
151 Every person who, for a sexual purpose, touches, 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 years
- (a) is guilty of an indictable offence and is liable to imprisonment for a term of not more than 14 years and to a minimum punishment of imprisonment for a term of one year; or
- (b) is guilty of an offence punishable on summary conviction and is liable to imprisonment for a term of not more than two years less a day and to a minimum punishment of imprisonment for a term of 90 days.
R.S., 1985, c. C-46, s. 151; R.S., 1985, c. 19 (3rd Supp.), s. 1; 2005, c. 32, s. 3; 2008, c. 6, s. 54; 2012, c. 1, s. 11; 2015, c. 23, s. 2.
Draft Form of Charges
Pre-ambles | ||
---|---|---|
"THAT [accused full name] stands charged that, between the <DATE> day of <MONTH>, <YEAR> and <DATE> day of <MONTH>, <YEAR>***, at or near <COMMUNITY/TOWN/CITY>, <PROVINCE>, he [or she]..." OR | ||
"THAT [accused full name] stands charged that, on or about the <DATE> day of <MONTH>, <YEAR>, at or near <COMMUNITY/TOWN/CITY>, <PROVINCE>, he [or she]..." OR | ||
"AND FURTHER at the same time and place aforesaid, he [or she]..." | ||
Code Section | Subject of Offence | Draft Wording |
151 [sexual interference] (2008 to present) | Sexual Interference (with hands) | "...did for a sexual purpose touch [alleged victim name or initialism] a person under the age of sixteen years [directly or indirectly] with a part of his body, to wit [identify accused's body part], contrary to section 151 of the Criminal Code."[1] |
151 [sexual interference] (2008 to present) | Sexual Interference (with object) | "...did for a sexual purpose touch [alleged victim name or initialism] a person under the age of sixteen years [directly or indirectly] with an object, to wit [identify the object used by the accused], contrary to section 151 of the Criminal Code." |
- ↑ e.g. R v GG, 2018 SKQB 169 (CanLII)
Proof of the Offence
Proving sexual interference under s. 151 should include: [1]
|
- ↑ R v Quinones, 2012 BCCA 94 (CanLII), per Hinkson JA
- ↑ see Consent in Sexual Offences
Interpretation of the Offence
Mens Rea
It is suggested that sexual interference is a specific intent offence.[1]
- Touching
"[A]n accused who intends sexual interaction of any kind with a child and with that intent makes contact with the body of a child “touches” the child and is guilty of an offence. The section addresses not the instigator of the sexual conduct but rather the adult who for his or her own sexual purposes makes contact, whether as a primary actor or not, with the body of a child." [2]
- Age
The Crown needs only prove that the accused was aware, willfully bling, or subjectively reckless as to whether the victim was under the age of 16.[3]
- ↑ R v B(KW), 1993 CanLII 14711 (MB CA), 81 CCC (3d) 389, per Twaddle JA
- ↑ R v Sears, 1990 CanLII 10938 (MB CA), 58 CCC (3d) 62, per Helper JA
- ↑ R v WG, 2021 ONCA 578 (CanLII), per Watt JA, at para 69 ("The fault element under s. 151 may be proven by establishing that the accused believed that the complainant was under 16, or that the accused was wilfully blind to the fact that the complainant was under 16. The Crown may also establish the fault element by proving beyond a reasonable doubt that the accused believed that there was a risk that the complainant was under 16, but went ahead anyway, choosing to do so despite the risk. In other words, the accused was reckless as to the complainant’s true age.")
Sexual Purpose
Interference is a specific intent offence that requires proof that the touching was done for a "sexual purpose."[1]
A "sexual purpose" refers to the "sexual gratification" of the accused.[2] A "sexual purpose" can be found from the "circumstances of the situation, including the nature of the touching and any words or gestures accompanying the act."[3]
The term is also found in Definition of Child Pornography as well as the offences of Invitation to Sexual Touching (Offence), Sexual Exploitation (Offence), Voyeurism (Offence), and Indecent Act (Offence).
- ↑
R v KWB, 1993 CanLII 14711 (MB CA), 81 CCC (3d) 389, per Twaddle JA, at p. 392
R v Sears, 1990 CanLII 10938 (MB CA), 58 CCC (3d) 62, per Helper JA, at p. 64
- ↑ Sears, ibid., at p. 64
- ↑
R v JAB, 2002 CarswellOnt 3241, [2002] OJ No 3755(*no CanLII links)
, at para 43
See also Sexual Assault (Offence)#Sexual Purpose
Evidence
- Modification of Rules of Evidence
For offences under this section (s. 151):
- corroboration is not required for conviction and the judge cannot instruct on need for corroboration: see Corroboration under s. 274.
- common law rules relating to "recent complaint" do not apply: see Credibility under s. 275.
- Limitations on Admissibility of Evidence
For offences under this section (s. 151):
- prior sexual history of the complainant "is not admissible to support an inference that...by reason of the sexual nature of that activity, the complainant...is more likely to have consented to the sexual activity that forms the subject-matter of the charge; or... is less worthy of belief.": see Evidence of complainant’s sexual activity under s. 276.
- any "evidence of sexual reputation, whether general or specific, is not admissible for the purpose of challenging or supporting the credibility of the complainant.": See reputation evidence under s. 277.
- Holdback of Disclosure
For offences under this section (s. 151), s. 278.2 prevents the Crown from disclosing any records attracting a "reasonable expectation of privacy" that relate "to a complainant or a witness" unless applied for through the process described in s. 278.3 to 278.91: see Production of Records for Sexual Offences. Should the privacy-holder agree to waive their privacy rights, the protected materials may be disclosed.
Defences
Participation of Third Parties
- Complainant Privacy Rights in Sexual Offences
A complainant has a right to be notified of any party seeking to admit any evidence of sexual activity other than the activity making up the alleged offence.
- Testimonial Aids
Certain persons who testify are entitled to make application for the use of testimonial aids: Exclusion of Public (s. 486), Use of a Testimonial Screen (s. 486), Access to Support Person While Testifying (s. 486.1), Close Proximity Video-link Testimony (s. 486.2), Self-Represented Cross-Examination Prohibition Order (s. 486.3), and Witness Security Order (s. 486.7).
A witness, victim or complainant may also request publication bans (s. 486.4, 486.5) and/or a Witness Identity Non-disclosure Order (s. 486.31). See also, Publication Bans, above.
- On Finding of Guilt
Offence(s) | Victim Notice of Agreement s. 606(4.1) [SPIO] |
Victim Queried for Interest in Agreement s. 606(4.2) [5+ years] |
Victim Notice for Restitution s. 737.1 |
Victim Notice of Impact Statement s. 722(2) |
---|---|---|---|---|
s. 151 [sexual interference] |
For serious personal injury offences or murder, s. 606(4.1) requires that after accepting a guilty plea, the judge must inquire whether "any of the victims had advised the prosecutor of their desire to be informed if such an agreement were entered into, and, if so, whether reasonable steps were taken to inform that victim of the agreement". Failing to take reasonable steps at guilty plea requires the prosecutor to "as soon as feasible, take reasonable steps to inform the victim of the agreement and the acceptance of the plea" (s. 606(4.3)).
Under s. 738, a judge must inquire from the Crown before sentencing whether "reasonable steps have been taken to provide the victims with an opportunity to indicate whether they are seeking restitution for their losses and damages".
Under s. 722(2), the judge must inquire "[a]s soon as feasible" before sentencing with the Crown "if reasonable steps have been taken to provide the victim with an opportunity to prepare" a victim impact statement. This will include any person "who has suffered, or is alleged to have suffered, physical or emotional harm, property damage or economic loss" as a result of the offence. Individuals representing a community impacted by the crime may file a statement under s. 722.2.
Sentencing Principles and Ranges
- For general principles on sentence for sexual offences, see Sexual Offences
- Maximum Penalties
Offence(s) | Crown Election |
Maximum Penalty |
---|---|---|
s. 151 [sexual interference] From July 17, 2015 |
summary election | 2 years less a day incarceration |
s. 151 [sexual interference] From July 17, 2015 |
indictable election | 14 years incarceration |
s. 151 [sexual interference] Until July 16, 2015 |
summary election | 18 months incarceration |
s. 151 [sexual interference] Until July 16, 2015 |
indictable election | 10 years incarceration |
s. 151 [sexual interference] November 1, 2005 to July 16, 2015 |
summary election | 18 months incarceration |
s. 151 [sexual interference] Until October 31, 2005 |
summary election | 6 months and/or $5,000 |
Offences under s. 151 [sexual interference] are hybrid. If prosecuted by indictment, the maximum penalty is 14 years incarceration. If prosecuted by summary conviction, the maximum penalty is 18 months incarceration.
- Minimum Penalties
Offence(s) | Crown Election |
Minimum Penalty First Offence |
Minimum Penalty Subsequent Offence |
---|---|---|---|
s. 151 [sexual interference] From August 9, 2012 |
summary election | 90 days incarceration | Same |
s. 151 [sexual interference] From August 9, 2012 |
indictable election | 1 year incarceration | Same |
s. 151 [sexual interference] November 10, 2005 to August 8, 2012 |
summary election | 14 days incarceration | Same |
s. 151 [sexual interference] November 10, 2005 to August 8, 2012 |
indictable election | 45 days incarceration | Same |
Offences under s. 151 [sexual interference] have a mandatory minimum penalty of 1 year incarceration when prosecuted by indictment and 90 days incarceration when prosecuted by summary conviction.
- Available Dispositions
Offence(s) | Crown Election |
Discharge s. 730 |
Suspended Sentence s. 731(1)(a) |
Stand-alone Fine s. 731(1)(b) |
Custody s. 718.3, 787 |
Custody and Probation s. 731(1)(b) |
Custody and Fine s. 734 |
Conditional Sentence (CSO) s. 742.1 |
---|---|---|---|---|---|---|---|---|
s. 151 [sexual interference] | any |
Offences under s. 151 [sexual interference] have mandatory minimums. There are no discharges, suspended sentences, stand-alone fines, or conditional sentences available.
- Consecutive Sentences
Under s. 718.3(7), where the judge sentences an accused at the same time for "more than one sexual offence committed against a child", a sentence must be consecutive where:
- one of the sexual offences against that child is an offence relating to child pornography under s. 163.1. (see s. 718.3(7)(a)); or
- each of the sexual offences against a child, other than a child pornography offence, related to a different child. (see s. 718.3(7)(a))
[note: this only applies for offences occurring after enactment of Tougher Penalties for Child Predators Act on July 16, 2015]
- Constitutionality
There is some sugestion that the s. 151 mandatory minimums violate s. 9 of the Charter but are saved by s. 1.[1] Other courts have found the mandatory minimum of 1 year jail to be "cruel and unusual punishment" under the Charter.[2]
The minimum in s. 151(b) does not violate s. 15 of the Charter.[3]
- ↑
R v Lonegren, 2009 BCSC 1678 (CanLII), per Barrow J and 2010 BCSC 960 (CanLII), per Barrow J
R v EJB, 2018 ABCA 239 (CanLII), 72 Alta LR (6th) 29, per McDonald JA, at para 73
- ↑
R v Ford, 2017 ABQB 322 (CanLII), 11 WWR 108, per Veit J (section 151(1)(a))
R v Hussein, 2017 ONSC 4202 (CanLII), 141 WCB (2d) 231, per Code J (section 151(1)(a))
R v BJT, 2016 ONSC 6616(*no CanLII links) (section 151(1)(a))
R v P(SJ), 2016 NSPC 50 (CanLII), 377 NSR (2d) 32, per Ross J - s 151(1)(a)
R v Hood, 2018 NSCA 18 (CanLII), 45 CR (7th) 269, per MacDonald CJ and Beveridge JA (s. 151(1)(a))
R v Scofield, 2019 BCCA 3(*no CanLII links) , per Harris JA (Fisher JA dissenting)
R v BS, 2018 BCSC 2044 (CanLII), per Sharma J re s. 151 and 172.1
R v Horswill, 2019 BCCA 2 (CanLII), per Harris J re s. 151(a)
- ↑ R v TMB, 2013 ONSC 4019 (CanLII), 299 CCC (3d) 493, per Code J
Principles
The sexual interference is a "serious violation of the physical and sexual integrity of the child" and has forseeably causes "serious psychological or emotional harm."[1]
It is an error of law to consider sexual interference less serious than sexual assault.[2]
Section 718.01 requires sentencing judges to "give primary consideration to the objectives of denunciation and deterrence" when conduct "involved the abuse of a person under the age of eighteen years". Where the evidence shows that the offender, "in committing the offence, abused a person under the age of eighteen years,... shall be deemed to be an aggravating circumstances" under s. 718.2(a)(ii.1). Where the offender is in a "position of trust or authority" in relation to the victim, it will also be aggravating under s. 718.2(a)(iii).
- Factors
Section 718.2(a)(ii.1) requires that the judge treat as aggravating any "evidence that the offender, in committing the offence, abused a person under the age of eighteen years".
It is an aggravating factor for the offender to have been in a position of trust. A position of trust is distinctive from a position of authority and will be determined on the specific facts including the conduct of the offender.[3]
- ↑ R v Hajar, 2016 ABCA 222 (CanLII), 338 CCC (3d) 477 [Headnote], per Paperny, Watson and Fraser JJA
- ↑ R v Friesen, 2020 SCC 9 (CanLII), 391 CCC (3d) 309, per Wagner CJ and Rowe J, at para 120
- ↑ R v Audet, 1996 CanLII 198 (SCC), [1996] 2 SCR 171, per La Forest J
Ranges
- see also: Sexual Interference (Sentencing Cases)
- Ontario
Unless there are exceptional circumstances, the range of sentence for sexual intercourse with a child by a person in a position of trust is 3 to 5 years.[1]
However, the upper end of the range can go beyond 5 years.[2]
- Manitoba
In Manitoba, the starting point for sexual interference is 4 to 5 years where a major sexual assault occurs, including vaginal/anal intercourse, fellatio, or cunnilingus, on a child where the offender is in a position of trust.[3]
- Alberta
There is a starting point for serious sexual interference of 3 years.[4]
- ↑ R v WWM, 2006 CanLII 3262 (ON CA), [2006] OJ No 440, per Juriansz J, at para 14
- ↑ R v Mullings, 2012 ONCA 911 (CanLII), OJ No 6087, per curiam
- ↑
R v RJ, 2017 MBCA 13 (CanLII), per Mainella JA, at para 17
R v Sidwell (KA), 2015 MBCA 56 (CanLII), 319 Man R (2d) 144, per Steel JA, at para 49
- ↑
R v Hajar, 2016 ABCA 222 (CanLII), 338 CCC (3d) 477, per Paperny, Watson and Fraser JJA, at paras 63 to 68
Ancillary Sentencing Orders
- Offence-specific Orders
Order | Conviction | Description |
---|---|---|
Weapons Prohibition Orders | s. 151 [sexual interference] |
|
DNA Orders | s. 151 [sexual interference] |
|
SOIRA Orders | s. 151 [sexual interference] |
Note that by function of s. 490.011(2) of the Code, SOIRA orders are not available when sentencing under the Youth Criminal Justice Act |
Section 161 Orders | s. 151 [sexual interference] |
|
Delayed Parole Order | s. 151 [sexual interference] |
|
- General Sentencing Orders
Order | Conviction | Description |
---|---|---|
Non-communication order while offender in custody (s. 743.21) | any | The judge has the discretion to order that the offender be prohibited "from communicating...with any victim, witness or other person" while in custody except where the judge "considers [it] necessary" to communicate with them. |
Restitution Orders (s. 738) | any | A discretionary Order is available for things such as the replacement value of the property; the pecuniary damages incurred from harm, expenses fleeing a domestic partner; or certain expenses arising from the commission of an offence under s.402.2 or 403. |
Victim Fine Surcharge (s. 737) | any | A discretionary surcharge under s. 737 of 30% of any fine order imposed, $100 per summary conviction or $200 per indictable conviction. If the offence occurs on or after October 23, 2013, the order has smaller minimum amounts (15%, $50, or $100). |
- General Forfeiture Orders
Forfeiture | Conviction | Description |
---|---|---|
Forfeiture of Proceeds of Crime (s. 462.37(1) or (2.01)) | any | Where there is a finding of guilt for an indictable offence under the Code or the CDSA in which property is "proceeds of crime" and offence was "committed in relation to that property", the property shall be forfeited to His Majesty the King on application of the Crown. NB: does not apply to summary offences. |
Fine in Lieu of Forfeiture (s. 462.37(3)) | any | Where a Court is satisfied an order for the forfeiture of proceeds of crime under s. 462.37(1) or (2.01) can be made, but that property cannot be "made subject to an order", then the Court "may" order a fine in "an amount equal to the value of the property". Failure to pay the fine will result in a default judgement imposing a period of incarceration. |
Forfeiture of Weapons or Firearms (s. 491) | any | Where there is finding of guilt for an offence where a "weapon, an imitation firearm, a prohibited device, any ammunition, any prohibited ammunition or an explosive substance was used in the commission of [the] offence and that thing has been seized and detained", or "that a person has committed an offence that involves, or the subject-matter of which is, a firearm, a cross-bow, a prohibited weapon, a restricted weapon, a prohibited device, ammunition, prohibited ammunition or an explosive substance has been seized and detained, that the item be an enumerated weapon or related item be connected to the offence", then there will be a mandatory forfeiture order. However, under s. 491(2), if the lawful owner "was not a party to the offence" and the judge has "no reasonable grounds to believe that the thing would or might be used in the commission of an offence", then it should be returned to the lawful owner. |
Forfeiture of Offence-related Property (s. 490.1) | any | Where there is a finding of guilt for an indictable offence, "any property is offence-related property" where (a) by means or in respect of which an indictable offence under this Act or the Corruption of Foreign Public Officials Act is committed, (b) that is used in any manner in connection with the commission of such an offence, or (c) that is intended to be used for committing such an offence". Such property is to be forfeited to Her Majesty in right of the province. NB: does not apply to summary offences. |
Record Suspensions and Pardons
Convictions under s. 151 [sexual interference] are ineligible for record suspensions pursuant to s. 4 of the Criminal Records Act. An exception can be made under s. 4(3) for those offences where there was no relationship of “trust”, “authority” or “dependency”; no violence, threats or coercion; and age difference between victim and offender is less than 5 years.
History
See Also
|
- 2021
- Level Zero
- Criminal Law
- Sentencing
- Offences
- Serious Personal Injury Offences
- 1985, c. C-46
- 1985, c. 19 (3rd Supp.)
- 2005, c. 32
- 2008, c. 6
- 2012, c. 1
- 2015, c. 23
- Notice of Settlement to Victim
- Offences Requiring Notice to Victim
- Offences with Maximum Penalty of 2 Years Less a Day
- Offences with Maximum Penalty of 14 Years
- Offences with Maximum Penalty of 18 Months
- Offences with Maximum Penalty of 10 Years
- Hybrid Offences
- Offences with Minimum Penalty of 90 Days
- Offences with Minimum Penalty of 1 Year
- Offences with Minimum Penalty of 14 Days
- Offences with Minimum Penalty of 45 Days
- Section 109 or 110 Prohibition Offences
- Primary Designated Offences for DNA Orders
- SOIRA Designated Offences
- Section 161 Prohibition Offences
- Delayed Parole
- Sexual Offences