What are my defences against the charge of sexual interference?

If an adult is alleged to have sexually touched someone under the age of 16, they can be charged with sexual interference under s. 151 of the Criminal Code. Likewise, if an adult is accused of inviting a young person to sexually touch them, they can be charged with invitation to sexual touching under s. 152 of the Code. With both charges, illegal touching can be with any part of the adult’s body or with an object, and it can involve any part of the youth’s body.

Both of these charges are vigorously prosecuted by Crown attorneys, who have the choice of treating them as indictable or summary conviction offences. Those found guilty of an indictable offence on these charges face a maximum penalty of 14 years in prison. If the charge is treated as a summary conviction, the maximum penalty is two years behind bars. In addition, your name and biometric information will be included in national and provincial sex offender registries. Once you are part of these registries, you may be prevented from going to places frequented by minors such as playgrounds and schools.

Speak to a lawyer right away

If you are being investigated for sexual interference or invitation to sexual touching, speak to an experienced defence lawyer before giving a statement to the police. If you are under arrest, the police must allow you to make a phone call to a lawyer or a free duty counsel to receive legal advice. If the police continue to question you, tell them you are exercising your right to remain silent, as guaranteed under s. 7 of the Canadian Charter of Rights and Freedoms and Canadian common law.

According to information from the Department of Justice, “A detained person must be in a position to make a free choice on the matter of whether to speak to the authorities or to remain silent.” It adds that “an accused’s silence at trial may not be treated as evidence of guilt and no adverse inference may be drawn from the failure to testify.”

In every case, I listen to the defendant’s story and examine the evidence to support their case, before suggesting what the best defence would be against these allegations. The most common defences are listed below.

The sexual act did not occur

Most cases of sexual interference involve an alleged private interaction between an adult and a child, with no witnesses to vouch for either side. Physical evidence – DNA, hair samples, videos – is usually not available or relevant. Many of these he said/she said situations come down to credibility. By reading through the complainant’s statements to police at the start of the investigation and comparing that to what is given in court, I may be able to find inconsistencies and flaws in the evidence.

There could be reasons why a youth would make a false sexual interference allegation against an adult. Mental health issues or pressure from a family member are two examples.

If enough inconsistencies or questionable statements emerge, I will argue the court cannot convict, as the Crown cannot meet the standard of reaching a burden of proof that is “beyond a reasonable doubt,” required to achieve a finding of guilt.

You honestly thought the youth was over 16

According to information from the DoJ, the age of consent “is the age at which a young person can legally agree to sexual activity. Age of consent laws apply to all forms of sexual activity, ranging from kissing and fondling to sexual intercourse.” In most cases the age of consent is 16, but it can be higher if there is a relationship of trust, authority or dependency between a youth and an adult, such as with teachers or coaches.

It is not enough to say you thought the complainant was over 16, based on their appearance or what they may have told you. Instead the court will look to see if you took all reasonable steps to ascertain the actual age of the complainant despite the deception. What constitutes “reasonable steps” will be determined with reference to the perspective of the reasonable observer in the circumstance, not what you personally believed to be reasonable at the time of the offence.

The age of consent can be lower than 16. For example, a 14- or 15-year-old can consent to sexual activity with someone who is less than five years older, as long as there is no relationship of trust, authority or dependency between the two.

There is also a “close in age” exception for 12- and 13-year-olds, who can consent to sexual activity as long as the partner is less than two years older and there is no relationship of trust, authority or dependency. And keep in mind that two years means exactly two years, or 730 days. If someone is two years and two months older, they do not qualify for a “close in age” exemption.

If you fall within the allowable for obtaining consent of the minor, you may be able to rely on the defence that you believed you obtained the complainant’s consent.

Touching was not for a sexual purpose

In some cases, the accused can argue that the touching was not for a sexual purpose. Maybe it was inadvertent or accidental, or done for a medical purpose.

In Nova Scotia, a 67-year-old man was found not guilty of sexual assault and sexual interference by the province’s Supreme Court, according to a news report, after complaints from a 10-year-old girl, who alleged the man played a game where picked her up while she kept her elbow locked, but then he put his hands on her breasts. The man told the court the touch was accidental, the story states, though the complainant said the same thing happened at various times over a two-year period.

While the judge found the complainant to be “credible in her testimony,” the story states, it notes that other children were present at the time of the alleged incidents and they “never saw any fondling happen.”

The judge ruled the Crown failed to prove beyond a reasonable doubt that the accused was guilty, the story adds.

Unreliable testimony leads to acquittal

Citing a lack of reliability in the complainant’s testimony and an incomplete police investigation, a Nova Scotia judge acquitted a man of sexual assault and sexual interference, according to a news report. The story notes that a youth alleged that she and the man were standing at a wharf looking at eels when he kissed her and put his hand down her shorts.

“Her recollection of events is very murky. I have real concerns with respect to her reliability,” said the judge, according to the story.

The judge also criticized the police for conducting an “investigation that was anything but thorough or complete,” the report states, noting that potential witnesses were not interviewed. “The evidence, as it came out, seemed to suggest a heavy-handedness and certain degree of arrogance on the part of the investigators who seem to have, very early on, made a determination in their own mind as to the accused’s guilt instead of carrying out a thorough, complete and impartial investigation as is their responsibility,” the judge stated, according to the news story.

‘All reasonable steps to ascertain the age’

A 54-year-old man in British Columbia described in court documents as having “significant intellectual disability and an IQ of 45” was found not guilty of sexual interference after he was accused of forcing a 16-year-old youth to place his hand on his crotch during bus rides.

The judgment notes that while the youth was too young to give consent, the accused’s lawyer said the man took “all reasonable steps to ascertain the age of the complainant and believed the complainant was sixteen years of age or older, and that he had an honest but mistaken belief in consent.”

The judge accepted that defence, noting that the man “heard someone say [the complainant] was 17, and he relied on that statement. Given his significant intellectual disability and limited life experience, I have a reasonable doubt that more was required of him.”

Sex crime allegations are ‘difficult’

As noted in a 1998 Supreme Court of British Columbia judgment, “cases involving charges of sexual assault are very difficult. Although the law in these cases is quite straightforward, the level of emotion that surrounds them from all sides makes them challenging to adjudicate. In these kinds of cases, courts must be particularly vigilant in applying the principles of law on which our system of justice is founded.”

If you are charged with sexual interference or invitation to sexual touching, you need an experienced defence lawyer to guide you through the court system and ensure your best defence is presented to the court. Contact me for a free consultation in French or English.