Sexual Interference / Invitation to Touching

Under s. 151 of the Criminal Code everyone who, for a sexual purpose, touches a person under the age of 16 years is guilty of an indictable offence or a summary offence. Either way, the penalties are serious. If the Crown proceeds by indictment, there is a one year mandatory minimum jail sentence; if Crown proceeds summarily, there is a 90-day minimum jail sentence on conviction. Where a person is found guilty of this offence the court will often impose onerous terms of probation following the jail sentence. These terms may include prohibiting the offender from attending certain public areas and facilities or taking employment that will bring them into contact with persons under 16 years of age or using a computer to communicate with young people.

The offence of sexual interference may be committed by touching the young person’s body directly or indirectly. Under s. 150.1 (1) of the Criminal Code it is not a defence to a charge of sexual interference or sexual assault where the complainant is under the age of 16, that the complainant consented to the sexual activity. In short, a young person between 12 and 14 years of age is legally incapable of consenting to sexual activity with a person who is 2 years or older in age than them. Likewise, a young person between 14 and 16 years of age is incapable of consenting to sexual activity with a person who is 5 years or older than them.

We are experienced trial lawyers and know that the techniques employed by police and the rules of evidence and court procedure can be complex. This is especially true in sexual interference allegations. Police, social workers, Crown victim service workers, doctors and Crown prosecutors join forces and can, at times, overwhelm the suspect. Our experience in defending sexual interference cases allows us to analyze your version of events along with the complainant’s allegations and the whole of the Crown’s case.

Every case is unique, but typically, in a sexual interference charge, the complaint is first made to a parent, a teacher, a friend, a doctor or a counsellor. The complaint then goes to police who investigate further. The police are skilled in gathering information and will always want to talk to the subject of a sexual interference complaint. As experienced defence counsel, this is where we can help clients understand that the Charter protects them from having to speak to police as their right to remain silent is guaranteed by section 7. In situations where we are contacted before our client makes a statement to police, we can be of significant help. We will make enquiries to determine the nature of the complaint. Because of the laws involving “solicitor/client privilege,” we are able to act as a “buffer” between you and police. If appropriate to do so, we can tell police your side of the story in an effort to persuade them to not recommend charges. There is nothing that we as lawyers can say to police or Crown that can be used in court against our clients.

In the event that charges are recommended and approved, we will strive to obtain police agreement to not arrest our client. Rather, we will endeavor to arrange that our client appears in court to have the arrest warrant “deemed executed” without the need for our client to be taken into custody. We will always argue that our client can be released from custody on the most liberal bail conditions that are appropriate.

The Crown’s first hurdle in a sexual interference case is proving that there was any contact whatsoever between the complainant and the accused. The location, date, and time of the alleged incident is certainly important because it may be that the accused can establish that they were, in fact, in another place at the time of the alleged incident. There are various rules that govern such alibi defences, and we have the necessary experience and skill required to advance such defences where appropriate.

The defence of consent is limited in sexual interference cases. Section 150.1 sets out that where the complainant is between 12 and 14 years of age, consent may only serve as a defence if the accused is less than 2 years older than the complainant. Where the complainant is between 14 and 16 years of age, consent may only serve as a defence if the accused is less than 5 years older than the complainant. In all cases, in order for consent to be considered as a defence, the accused must not be in a position of trust or authority over the complainant. Additionally, the accused must take “all reasonable steps to ascertain the age of the complainant.”

In essence, the Crown has the burden of proving, beyond a reasonable doubt, that the accused did not take reasonable steps to ascertain that the complainant was within the legal range of age. In appropriate cases, we can advance the defence of honest but mistaken belief in the age of a consenting complainant, but only where we can show that the accused did take all reasonable steps to ascertain that the complainant was of legal age.