• Vancouver at night

Sexual Interference / Invitation to Touching

The Charge

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.

The Investigation

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.

Recent Successes

R. vs. C.Y. – Richmond Provincial Court

Charges: Assault with a weapon ( reduced to Peace Bond).
Issue: Given the rehabilitative steps we were able to guide our client through, whether it was in the public interest to proceed with the criminal prosecution.
Result: Mr. Mines was able to persuade Crown counsel to allow our client to resolve this matter with a s. 810 Recognizance (Peace Bond) for a period of 12 months. Stay of proceedings on the criminal charge. No criminal record.

R. vs. F.K. – Vancouver Provincial Court

Charges: Theft and Fraud Over $5000 (from employer).
Issue: Whether the pre-charge delay of 3.5 years would reduce the sentence in this $215,000 employee fraud case.
Result: Mr. Mines was able to persuade the trial judge and Crown counsel that there was merit to our application for a judicial stay of proceedings based on our client's inability to properly defend the charges due to a delay of about 4 years in getting the charges approved. Notwithstanding this breach of trust, Mr. Mines was able to negotiate a plea arrangement in which our client received a 2 year conditional sentence order with a 10 pm curfew for 12 months. No monies were ordered to be repaid. No jail.

R. vs. M.P. – Abbotsford Police Investigation

Charges: Uttering Threats.
Issue: Whether it was in the public interest to proceed with a criminal prosucution.
Result: Mr. Gauthier was able to provide information to Crown and to ultimately persuade Crown counsel to not approve any charge in this case. No charge approves. No criminal record.

R. vs. J.H. – Abbotsford Provincial Court

Charge: Failing to stop at an accident resulting in bodily harm.
Issue: Given the circumstances of the offence, our client's background and his extreme remorse, whether a jail sentence was warranted.
Result: Mr. Gauthier was ble to direct our client through a course of psychological counselling and was able to persuade Crown counsel to agree to a non-custodial sentence. After hearing Mr. Gauthier's submissions, the Court sentenced our client to a 12 month conditional sentence. No jail.

R. vs. Q.G. – Vancouver Provincial Court

Charges: Theft Over $5000 (from employer).
Issue: Whether Crown counsel had sufficient evidence to meet the charge approval standard.
Result: Mr. Mines was able to persuade Crown counsel that important evidence would be missing from a cenrtal witness and to not approve any charges. No criminal record.

R. vs. K.H. – Abbotsford Provincial Court

Charges: Breaking and entering a dwelling house and committing an indictable offence, wearing a mask for the purpose of committing an indictable offence, breach of release order.
Issue: Whether it would be consistent with the principles of sentencing for our client to serve his sentence in the community.
Result: Mr. Johnston provided Crown counsel with information which, along with our client's rehabilitative progress and good compliance with strict bail conditions, persuaded the Crown to seek a jail sentence of under two years for his role in a violent "home invasion". After hearing Mr. Johnston's submissions, the court agreed it would not be inconsistent with the principles of sentencing for our client to serve his sentence in the community instead of in custody. This was a significant result for our client as home invasion convictions typically result in lengthy jail sentences served in federal prison. No further time in custody.

R. vs. G.T. – Surrey Provincial Court

Charge: Assault.
Issue: Given the rehabilitative steps we were able to guide our client through, whether there was a public interest in proceeding with a criminal prosecution.
Result: Mr. Johnston provided Crown counsel with information which, along with our client’s progress with counselling, persuaded the Crown to gradually relax our client’s bail conditions and ultimately direct a stay of proceedings on the charge. No further prosecution. No criminal record.

R. vs. B.K. – Vancouver Provincial Court

Charges: Impaired Driving.
Issue: Whether Crown counsel could prove the impaired driving offence in light of evidence brought forward by Mr. Gauthier which suggested that our client did not voluntarily consume the drug that may have contributed to the the manner of his driving and the ensuing accident.
Result: Mr. Gauthier was able to persuade Crown counsel to proceed on the lesser charge of dangerous operation and, rather than being convicted of impaired driving, our client was granted a conditional discharge. No criminal conviction.

R. vs. D.H.P. – Vancouver Provincial Court

Charges: Assault causing bodily harm; mischief to property under $5000.
Issue: Whether there was a substantial likelihood of a conviction on the assault causing bodily harm charge.
Result: Mr. Mines was able to persuade Crown counsel to enter a stay of proceedings on the assault causing bodily harm charge. After hearing Mr. Mines' submissions, the court granted our client a conditional discharge and ordered restitution in relation to the smart phone that was damaged. No criminal conviction.

R. vs. W.J.M. – Port Coquitlam Provincial Court

Charge: Assault.
Issue: Given the rehabilitative steps we were able to guide our client through, whether there was a public interest in proceeding with a criminal prosecution.
Result: Upon presenting Crown counsel with a psychological report regarding our client's low risk to commit a similar act, Mr. Gauthier was able to persuade Crown to not approve any criminal charges whatsoever. No prosecution. No criminal record.

R. vs. J.A. – Vancouver Provincial Court (DCC)

Charges: Assault; Assault Peace Officer (x2).
Issue: Given the circumstances of our client being severely intoxicated and acting out f character, whether a criminal conviction was appropriate.
Result: Mr. Mines was able to provide Crown counsel with our client's background information resulting in a joint recommendation to the Court for a conditional discharge. No criminal conviction.

R. vs. E.L. – Vancouver Provincial Court

Charges: Aggravated Assault; Breach of Probation.
Issue: Given the context of the offences and our client's rehabilitative efforts, whether a jail sentence was appropriate.>br> Result: Mr. Johnston informed Crown counsel of the significant rehabilitative progress our client had made since the offence dates and persuaded Crown to not pursue the 16 month  jail sentence they had been seeking. Crown agreed to proceed on the less serious charge of assault causing bodily harm and to stay the remaining charges. After hearing Mr. Johnston's submissions, the court granted our client a one year conditional sentence sentence and two years of probation. This was a particularly positive outcome for our client, who had a prior conviction for a similar offence. No jail.

The Defence

No Sexual Contact

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.

Consent

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.

Start with a free consultation.

If you are being investigated by police or if you’ve been charged with a criminal or driving offence, don’t face the problem alone. Being accused of an offence is stressful. The prospects of a criminal record or jail sentence can be daunting. Even if you think there is no defence, we may be able to help. To schedule a free initial consultation with one of our Vancouver lawyers, contact us now.