Criminal Code of Canada - section 151

section 151

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.

SECTION WORDING

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.

EXPLANATION

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.

COMMENTARY

Section 151 of the Criminal Code of Canada addresses the sexual assault of minors, specifically individuals under the age of 16. This section considers any form of direct or indirect sexual touching as a serious offense, regardless of the minor's consent or participation. It is crucial to note that this law considers any form of sexual activity with a minor as an indictable offense, which is one of the most severe forms of criminal offenses under the Canadian legal system. An indictable offense has the potential to lead to imprisonment for a period covering up to ten years, along with a minimum of one year in prison. The sexual assault of minors is one of the most heinous crimes that sadly remains prevalent in society. Children are amongst the most vulnerable members of the community and are hence commonly targeted by offenders. However, this section of the Criminal Code of Canada exists to deter such actions effectively. This law imposes strict punishments for individuals who engage in the sexual assault of minors, intending to dissuade individuals from committing these offenses. The law similarly recognizes that sexual assault, in any form, can be traumatizing to the victim. As such, the law curtails any form of sexual touching with an object or part of the body of a person under the age of 16, whether it occurs directly or indirectly. The law takes into consideration the power dynamics that exist between adults and minors. Young individuals lack the maturity, life experience, and decision-making skills that mature adults possess. Hence, it becomes a responsibility for adults to ensure that they do not abuse their positions of power to carry out such heinous acts. It is worth mentioning that the law still differentiates between the severity of punishment for individuals charged with these offences. Whereas in the case of an indictable offense, the offender could face up to ten years in prison with a minimum of one year's confinement, the summary conviction covers a smaller prison term of not more than 18 months and a minimum of 90 days imprisonment. The law not only stipulates fair punishment for perpetrators but also recognizes the need for a minimum punishment term, even for individuals charged with summary convictions. This minimum sentence is essential, as it helps prevent individuals who predate on minors from receiving undeservedly reduced sentence awards just because of the complexity and difficulty of the victim's case. In conclusion, section 151 of the Criminal Code of Canada provides robust protection of minors against sexual assault, setting clear punishments that match the severity of the offence. It's also a clear statement from the Canadian government that it prioritizes the protection of children in the country, holding perpetrators accountable and, as much as possible, providing relief and justice to victims of these horrific crimes.

STRATEGY

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.

VIDEOS AND MEDIA

Criminal Code of Canada - Section 151 - Sexual Interference

Ottawa criminal defence lawyer Paul Lewandowski discusses section 151 of the Criminal Code of Canada and the offence of sexual interference.

RELATED CASES

R v. G.R.

The Supreme Court of Canada dissects the elements of the offence of sexual interference, and delineates the necessary actus reus and mens rea elements.