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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. B.J. – Downtown Community Court

Charge: Theft of property of a value not exceeding $5,000
Issue: Whether there was a substantial likelihood of conviction and whether it was in the public interest to proceed with the prosecution.
Result: Mr. Johnston identified weaknesses in the available video evidence which persuaded the Crown to direct a stay of proceedings on the charge. No jail. No criminal record.

R. vs. A.M. = Vancouver Provincial Court

Charges: Assault with a Weapon; Assault Causing Bodily Harm.
Issue: Whether there was a substantial likelihood of conviction and whether it was in the public interest to proceed with the prosecution.
Result: Mr. Johnston provided Crown counsel with information about our client’s circumstances, including his lack of prior criminal offending, his efforts at rehabilitation, and the fact that a conviction for either offence could result in the client’s deportation, an outcome which Mr. Johnston argued would be disproportionate to the seriousness of alleged offences. At the same time, Mr. Johnston pointed out weaknesses in the evidence against our client. The Crown directed stays of proceedings on both charges. No jail. No criminal record.

R. vs. A.V. – Vancouver Provincial Court

Charges: Uttering Threats x3; Criminal Harassment; Breach of Release Order (domestic).
Issue: Whether there was a substantial likelihood of conviction and whether it was in the public interest to proceed with the prosecution of these matters.
Result: Mr. Gauthier was able to persuade Crown counsel that it was more appropriate to deal with these matters in the context of Family Court. Ultimately Crown did not approve the uttering threats and criminal harassment charges and Mr. Gauthier persuaded Crown that there was no public interest in prosecuting the breach charge and to enter a stay of proceedings. No jail. No criminal record.

R. vs. K.L. – Terrace RCMP Investigation

Charges: Assault.
Issue: Whether there was a substantial likelihood of a conviction and whether it was in the public interest to proceed with the prosecution.
Result: Mr. Mines presented additional information to Crown counsel which resulted in Crown  declining to approve any charge.  No criminal record.

R. vs. O.P. – Victoria Provincial Court

Charges: Voyeurism; Criminal harassment.
Issue: Whether Crown could prove that our client actually recorded and distributed images without consent of the complainant.
Result: Mr. Gauthier was able to persuade Crown counsel to proceed only on the criminal harassment charge. After hearing Mr. Gauthier's submissions, the trial judge granted our client a conditional sentence order with a curfew for two months. No jail.

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

Charges: Indecent Act; Assault With a Weapon; Possessing of a Weapon for Dangerous Purpose (x2); Robbery; Uttering Threats; Theft of Property of a Value not Exceeding $5,000.
Issue: Whether there was a substantial likelihood of conviction and whether it was in the public interest to proceed with prosecution of all counts; whether a jail sentence was appropriate.
Result: Mr. Johnston identified weaknesses in the evidence which persuaded the Crown there was no reasonable prospect of conviction on the Indecent Act charge.  Mr. Johnston persuaded Crown counsel  to resolve the case on three of the remaining counts and to stay all remaining charges. After hearing Mr. Johnston's submissions regarding our client's personal circumstances and his significant rehabilitation efforts,  the Court agreed to release our client from custody and to place him on a probation order with conditions supporting his rehabilitation. No further jail time.

R. vs. M.G. – RCMP Investigation

Charges: Possession for the purpose of trafficking.
Issue: Whether there was a substantial likelihood that Crown could establish that our client was a willing participant in the alleged drug trafficking scheme.
Result: Mr. Mines was able to provide information and persuade police to not seek any criminal charges against our client. No No charges were approved. Our client's vehicle was retuned. No criminal record.

R. vs. A.K. – New Westminster Provincial Court

Charges: Assault.
Issue: Whether there was a reasonable likelihood of a conviction and whether it was in the public interest to proceed.
Result: Mr. Mines was able to provide additional information and persuaded Crown counsel stay the charge upon our client completing the Alternative Measures Program. No criminal record.  

R. vs. K.L. – Vancouver Police Investigation

Charge: Assault Peace Officer.
Issue: Whether there was a substantial likelihood of a conviction in this case which involved an alleged assault of a police officer.
Result: Mr. Gauthier provided information and a video to Crown counsel which showed that the police made an unlawful arrest thereby giving our client lawful grounds to defend himself. Mr. Gauthier was able to persuade Crown to not approve any charges. No criminal record.

R. vs. C.D. – Vernon Provincial Court

Charges: Assault with a weapon; Mischief to property.
Issues: Whether there was a substantial likelihood of a conviction and whether it was in the public interest to proceed with the criminal prosecution in this case where our client allegedly intentionally collided with the complainant's vehicle.
Result: Mr. Gauthier provided additional information to Crown counsel and was able to persuade Crown to resolve this matter with a s.810 Recognizance (Peace Bond).    

R. vs. R.V. – Surrey Provincial Court

Charge: Driving While Prohibited.
Issue: Given our client's circumstances and the circumstances in which he drove, whether it was in the public interest to proceed with the charge.
Result: Mr. Mines presented our client's background information to Crown and was able to persuade Crown to procceed on the lesser charge of Driving without a valid drivers' licence. Rather than a 12 month minimum driving prohibition, our client was sentenced to a nighttime driving prohibition from 10 pm to 6 am.

R. vs. M.M. – Vancouver Provincial Court

Charges: Attempted Breaking and Entering; Breaking and Entering.
Issue: Whether our client could be released on bail given the Crown's concerns about our client's potential to commit further offences.
Result: Mr. Johnston worked with our client to develop a plan which ultimately persuaded Crown to consent to his release on reasonable conditions, even though our client was alleged to have committed these offences while already on bail with numerous other charges, including several counts of breaking and entering.

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.