INTRODUCTION AND BRIEF DESCRIPTION
Section 151 is an age-specific charge that criminalizes touching of a person under the age of 16. The manner of touching - termed "interference" - is designed to be broad and capture a wide variety of contact, whether direct or indirect. The section contains mandatory minimums whether the Crown proceeds by indictment or summary conviction process.
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 10 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 18 months and to a minimum punishment of imprisonment for a term of 90 days.
Section 151 is a more specific version of sexual assault simpliciter as found in section 271 of the Criminal Code. The two charges are often paired together duplicitously, enabling a conviction in the event that the Crown is unable to prove that the complainant is under the age of 16. This offence requires that the accused have knowledge of the age of the complainant, recognizing that it is possible that the complainant could have consented in fact, yet lack the capacity to do so at law.
This section was modified in 2012. The current version sets out the mandatory minimum punishment of one year in jail when the Crown elects to proceed by indictment. The section's predecessor had a 45 day mandatory minimum between 2005 and 2012. Counsel should be mindful of the time frame captured in the indictment or information to determine what penalties are applicable upon conviction.
Section 151 of the Criminal Code is designed to be broad and capture any form of touching. The touching can be direct or indirect. Typically, the accused will have two lines of defence available to them, depending on the facts of the case. First, that the touching in question did not occur. Thus, at trial, it will be a test of credibility and reliability. Second, the accused may raise the defence of honest but mistaken belief in age. In this respect, reference must be made to the provisions set out in section 150.1(4) which reads as follows:
(4) It is not a defence to a charge under section 151 or 152, subsection 160(3) or 173(2), or section 271, 272 or 273 that the accused believed that the complainant was 16 years of age or more at the time the offence is alleged to have been committed unless the accused took all reasonable steps to ascertain the age of the complainant.
The determination of what constitutes "all reasonable steps" will be made on a case by case and context specific analysis. Practically, the wider the disparity in age, the less likely the argument is to be accepted.
QUESTIONS AND ANSWERS
Do the mandatory minimum sentences always apply?
So long as the date of the alleged sexual interference post-dates the amendments to the Criminal Code that instituted mandatory minimums, then yes, upon conviction, the minimum punishment must be imposed.
Who decides whether the charge is prosecuted by way of summary conviction or indictment?
The decision as to whether a charge is pursued through a summary conviction or indictment methodology rests entirely with the Crown. Because there is no limitation period on indictable offences, it is unfortunately not unusual to see the Crown electing to proceed by indictment, even when the gravamen of the conduct in question is on the lower end of the scale, respectively. However, in such cases, on consent, the Crown can proceed by summary conviction, making lesser penalties available to the accused and accordingly, offering a more palatable resolution.
How is the term "sexual purpose" defined?
A concise definition of the term "sexual purpose" is found in R. v. T.L.P. wherein the court defines it as follows: "...for a sexual purpose means for one or more of the following: a) sexual gratification; b) the violating of the complainant's sexual integrity; or c) the sexual domination of the complainant.
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