Sexual Offences

The lawyers at Mickelson, Whysall and Moore Law Group are experienced at defending all types of sexual offences.

Being charged with a sexual offence is an incredibly stressful experience, and the potential consequences of a conviction are significant, which is why the lawyers at Mickelson, Whysall and Moore Law Group are committed to providing a strong, strategic defence tailored to each clien’s unique situation.

With their support, you can navigate this difficult time with confidence, knowing that
dedicated legal professionals are fighting for the best possible outcome in your case.

The Criminal Code criminalizes a wide range of behaviour.

Sexual Assault (Section 271)

Sexual assault is a broad legal category that includes any form of non-consensual sexual activity. This can range from unwanted touching of a sexual nature to forced sexual contact or kissing.

If the Crown prosecutes the offence by indictment, the maximum penalty can be up to 10 years in prison. Alternatively, if the Crown proceeds summarily, the maximum punishment is up to 18 months in jail. While these represent the harshest possible penalties, actual sentences can vary significantly depending on the circumstances of the case.

In addition to potential incarceration, a conviction may also require mandatory registration under the Sex Offender Information Registration Act (SOIRA), which carries long-term implications for an individual’s privacy and freedom.

Read more about sexual assault

Sexual Interference (Section 151)

Sexual interference is a distinct offence that involves touching a person under the age of 16 for a sexual purpose. Unlike general sexual assault, this offence specifically targets sexual conduct involving minors. Under Canadian law, individuals under the age of 16 are legally unable to consent to sexual activity. However, there is a close-in-age exception: if the age difference between the parties is less than 2 years (e.g., a 15-year-old engaging in consensual sexual activity with a 17-year-old), it may not constitute an offence.

If the Crown elects to prosecute by indictment, the offence carries a maximum penalty of up to 14 years in prison. If the Crown proceeds summarily, the maximum penalty is up to 2 years in jail. These are the upper limits for sentencing, but actual penalties can vary widely based on the specifics of the case.

Previously, mandatory minimum sentences were imposed for sexual interference; however, these minimums have recently been declared unconstitutional in British Columbia, allowing for greater judicial discretion in sentencing.

Read more about sexual interference

Invitation to Sexual Touching (Section 152)

This offence involves inviting, encouraging, or persuading a person under the age of 16 to engage in touching for a sexual purpose. It specifically criminalizes situations where a young person is incited to touch the accused in a sexual manner.

If the Crown chooses to proceed by indictment, the offence carries a maximum sentence of up to 14 years in prison. If the Crown opts for a summary conviction, the maximum penalty is up to 2 years in jail. Although these are the highest possible sentences, the actual penalties can vary significantly depending on the details of the case and the circumstances surrounding it.

Sexual Exploitation (Section 153)

Sexual exploitation occurs when an individual in a position of trust or authority engages in sexual activity with a person between the ages of 16 and 18, or when there is a relationship of dependency.

Determining whether someone holds a position of trust is based on the specific facts of the case, and typically includes roles such as teachers, guardians, parents, or coaches

Voyeurism (Section 162)

Voyeurism is the act of secretly observing or recording someone without their knowledge or consent in situations where they have a reasonable expectation of privacy, such as in a bathroom or bedroom. This offence is committed when a person surreptitiously watches or captures visual recordings of another individual in private settings, with the intent of sexual gratification.

If the Crown chooses to proceed by indictment, the offence carries a maximum penalty of up to 5 years in prison. If prosecuted summarily, the range of potential sentences is broader, potentially including options like a conditional discharge or other less severe penalties, depending on the circumstances of the case.

Child Pornography (Section 163.1)

This includes offences related to the possession, production, distribution, or accessing of child pornography.

The Criminal Code criminalizes photographic, film, written material and audio recordings that shows or depicts a person under the age of 18 years old in a sexually explicit manner.

The Criminal Code defined “child pornography” as follows:

• 163.1 (1) In this section, child pornography means
• (a) a photographic, film, video or other visual representation, whether or not it was made by electronic or mechanical means,
• (i) that shows a person who is or is depicted as being under the age of eighteen years and is engaged in or is depicted as engaged in explicit sexual activity, or
• (ii) the dominant characteristic of which is the depiction, for a sexual purpose, of a sexual organ or the anal region of a person under the age of eighteen years;
• (b) any written material, visual representation or audio recording that advocates or counsels sexual activity with a person under the age of eighteen years that would be an offence under this Act;
• (c) any written material whose dominant characteristic is the description, for a sexual purpose, of sexual activity with a person under the age of eighteen years that would be an offence under this Act; or
• (d) any audio recording that has as its dominant characteristic the description, presentation or representation, for a sexual purpose, of sexual activity with a person under the age of eighteen years that would be an offence under this Act.

The scope of this section is limited to written material that promotes or encourages sexual activity with a child that would be considered an offence under the Criminal Code. When it comes to visual content—such as photographs, drawings, or films—the section applies to material that depicts a person who is, or appears to be, under the age of 18 and engaged in explicit sexual activity.

It also includes content where the primary focus is the sexualized depiction of a sexual organ of someone under 18.

Importantly, the definitions related to visual material do not encompass content that depicts mere nudity without a sexual context.

Read more about child pornography

Indecent Acts and Exposure (Section 173)

This offence involves either performing an indecent act in a public place or exposing oneself to another person. It is often applied in cases where someone is accused of masturbating in public.

There are several potential defences against this charge. For example, it may not be considered a public place if the act occurred within one’s own home, even if a window was open. Additionally, the act in question might not be sexual in nature; for instance, if a person was simply urinating in public rather than engaging in a sexual act.

The Crown must prove all elements of the offence beyond a reasonable doubt in order to secure a conviction.

Age of Consent in Canada

The general age of consent in Canada is 16 years old, but there are exceptions:

• 18 years old if the person is in a position of trust, authority, or dependency.

• Close-in-age exemptions: 14- and 15-year-olds can consent to sexual activity with someone less than 5 years older, and 12- and 13-year-olds can consent with someone less than 2 years older.

Key Legal Definitions

• Consent: Consent must be active, ongoing, and can be withdrawn at any time. Silence or lack of resistance does not imply consent.

• Position of Trust or Authority: Includes teachers, coaches, family members, and others in roles of power or influence over the victim.