Sexual Assault vs Sexual Interference in Canada: Understanding the Difference

Facing charges related to sexual activity can be an extremely stressful and complicated experience. One of the most important things to understand is the difference between sexual assault and sexual interference. While both are serious offences under Canadian law, there are some key differences that can affect the nature of the charges, the potential penalties, and the legal defences available. 

If you or someone you know is facing sexual assault or sexual interference charges, contact a sex crimes lawyer in BC as soon as possible.

Under the Criminal Code of Canada, sexual assault is defined as any sexual activity without consent. This can include a wide range of behaviours, from unwanted touching to sexual intercourse. In order to be convicted of sexual assault, the Crown must prove that the accused engaged in the sexual activity without the complainant’s consent, and that the accused knew or was reckless about the complainant’s lack of consent.

Sexual interference is another type of sexual offence under Canadian law. This charge typically applies in situations where a person touches a young person for a sexual purpose. Unlike sexual assault, sexual interference does not require proof of lack of consent. Instead, the Crown must prove that the accused touched the complainant for a sexual purpose and that the complainant was under the age of 16 at the time.

Sexual interference can include any direct or indirect physical contact with the child’s body, as well as any act that involves touching the child with an object or having the child touch the offender’s body. Examples of sexual interference may include inappropriate touching of a child’s genitals, forcing a child to touch the offender’s genitals, or engaging in sexual activity in front of a child. Other acts that can result in sexual interference charges include inviting a child to participate in sexual activity, or asking a child to watch sexual acts.

While both sexual assault and sexual interference involve sexual activity without consent, there are some key differences between the two charges. One of the main differences is the age of the complainant. Sexual interference charges can only apply when the complainant is under the age of 16, while sexual assault charges can apply to any age.

Another important difference is the mental state of the accused. Sexual assault charges require proof that the accused knew or was reckless about the lack of consent, while sexual interference charges do not require proof of lack of consent.

Unlike with sexual assault charges, consent cannot be used as a defence for a sexual interference charge (or an invitation to sexual touching charge). In sexual interference cases, the defence of consent is rarely used as the complainant is under 16 years of age and cannot legally consent to sexual activity, with few exceptions.

Close-in-age exceptions can apply in specific cases where children who are 12 or 13 can consent to sexual activity with someone who is less than two years older than them, and minors who are 14 or 15 can consent to sexual activity with someone who is less than 5 years older.

However, these exceptions only apply when there is no relationship of trust, authority, dependency, or exploitation of the young person. Honest but mistaken belief in consent, not a defence, unless they have taken necessary steps to ascertain it.