Experienced Criminal Lawyers

How to Defend Against Sexual Interference Charges in Canada

Sexual interference is a serious crime, and it’s therefore critical to understand what you are up against if you face related charges. This article will provide information about the legal process and tips on building a solid defence if you get charged for committing sexual interference.

What Is Sexual Interference?

Sexual interference is a crime under the Criminal Code of Canada. It includes any physical contact with a person under the age of 16 for sexual purposes, including kissing, touching, or other bodily interaction.

Section 151 of the Criminal Code of Canada states the legal definition of sexual interference as:

“Every person who, for a sexual purpose, touches, directly or indirectly, with a part of the body or with an object, any part of the body of a person under the age of 16 years.”

The critical element to note in this type of offence is that the contact made is of a sexual nature. And it is on the prosecution to prove that the accused knowingly and intentionally made contact of a sexual nature with the victim. The prosecution will have to show beyond doubt that any physical contact between the victim and the perpetrator was intentional and done with sexual intent. They also need to prove that the accused was aware or did not take sufficient effort to determine if the defendant was below the age of consent.

That said, several factors will contribute to the final ruling, including the nature of the contact, the body parts involved, the gestures made, and the words exchanged. The context of the situation will also be taken into account, and the court will consider all of these factors while arriving at a decision.

What Is the Difference Between Sexual Assault and Sexual Interference?

Many often confuse sexual interference with sexual assault. In fact, the terms are often used interchangeably. But they are two different crimes under the Criminal Code of Canada.

As mentioned earlier, sexual interference involves instigating physical contact with a person under the age of 16 with sexual intent. Sexual assault, meanwhile, involves actual contact of a sexual nature, regardless of the victim’s age. Therefore, sexual interference is essentially concerned with the accused’s intent, whereas sexual assault includes any attempt or threat to commit a sexual assault.

If you have been charged with committing sexual interference, it is crucial to understand the difference between the two offences. You can do that by speaking to a sexual assault lawyer in Calgary who is highly experienced in defending sexual interference and assault cases. A skilled and experienced lawyer will walk you through the law on sexual interference and advise you on how to proceed with your case.

What Are the Penalties for Sexual Interference Charges?

Interfering with a minor’s sexual integrity is considered a serious offence, and the Crown may elect to proceed by way of summary or indictment. If the prosecutor elects to proceed by indictment this is inherently more serious but allows the accused to elect the mode of trial.

What Is the Minimum Sentence for Committing Sexual Interference?

Regardless of how the court hears your case, the consequences of being charged with committing sexual interference are severe.

The offence comes with strict jail terms, which means a conviction translates to jail time. Imprisonment terms can range from 90 days to 14 years, depending on the severity of the case.

• Summary: If you are found guilty of an offence punishable based on a summary conviction, the minimum sentence is 90 days. At the same time, the maximum is “two years less than a day,” according to the Criminal Code of Canada.
• Indictment: If you are found guilty of an indictable offence, the minimum sentence is one year, while the maximum is 14 years.

What Are the Additional Penalties If You Are Found Guilty of Committing Sexual Interference?

A guilty verdict from a summary hearing or an indictment comes with additional penalties, including:

• A court order to provide your DNA sample to the national DNA databank
• A ban against owning and carrying weapons
• A prohibition against visiting places where persons under the age of 16 may be present
• Registration on the National Sex Offender Registry (NSOR)

Sex Offender Registration

If you are found guilty of committing sexual interference, the National Sex Offender Information Registry Act (SOIRA) requires that your name be included in your province’s list of sex offenders. This means giving law enforcement personal information, such as:

• Your name, including aliases if any,
• Your date of birth,
• Your address,
• Your education details,
• Your phone number,
• Your height and weight and identifying marks, if any
• Your job details,
• Details about the vehicle you drive,
• Your passport details, and
• All details if you are or were part of the Canadian Forces.

A conviction for committing sexual interference will likewise result in a 10-year SOIRA order per offence, which can have significant and overwhelming consequences on your future. If you are subject to a SOIRA order, you must notify the NSOR anytime you:

• Change your address,
• Travel abroad for more than seven days, and or
• Transfer to a new place of work.

Your personal information will be on the NSOR database indefinitely.

Prohibition Orders

The judge may also issue a prohibition order, banning you from communicating with individuals under the age of 16. The order may include other limitations, such as barring you from visiting public parks and other such places where anyone under 16 years of age may be found. In addition, you may not be permitted to work in places where there are higher chances of people under the age of 16 being found, such as schools, children’s homes, etc.

The prohibitions would depend on the judge’s discretion. And they can be imposed for a period ranging from six months or indefinitely.

What Are the Best Defences to Sexual Interference Charges?

It is difficult to prosecute and defend sexual interference cases given that in many situations, there is little to no evidence other than the complainant’s statements. In some instances, there are third-party witnesses who may be called to give evidence. Typically, this evidence is circumstantial and often times hearsay. It is critical to have a skilled lawyer that knows the rules of evidence in order to ensure only proper evidence is admitted on the record.

In addition to the lack of evidence, it is also not unusual for alleged victims to take years, if not decades, to report the crime to the authorities. Canada has no statute of limitations for sexual offences, allowing the police to file charges of sexual interference decades after the alleged crime. Memory breakdown is, therefore, an added complication in such cases and is at issue at trial.

When formulating a strategy it is critical for the defence lawyer to have a thorough knowledge of the allegations being made and evidence, if any, held by the prosecution. In some instances, an individual may assert that they had an honest but mistaken belief regarding consent. The mistake must, however, be reasonable for this defence to succeed.

In other situations, the accused may claim that they did not have the required intent to commit the crime. And that may hold bearing, for example, if the accused was unaware of the victim’s age.

The court will also consider whether or not the police followed the proper procedure when investigating and arresting the accused. If they did not, the court can issue a stay of proceedings, resulting in all charges against the accused being dropped by the court.

The defences that may be available to people charged with committing sexual interference are based on the specifics of their cases. There are, however, certain effective defences you can take recourse, to such as:

No Sexual Contact

If it can be demonstrated that there was no physical contact between you and the alleged victim, you cannot be convicted of committing sexual interference. This defence may be available if the alleged victim misidentifies you as the perpetrator or if the only contact between you and the alleged victim was nonsexual.

Lack of Intent

While the onus of proving that you touched the defendant with sexual intent is on the prosecution, if you can show that you lacked the necessary intent to be considered guilty of sexual interference or that there was no sexual intent behind the physical touch, you may be found not guilty. For example, a caregiver to a child may argue that they may have had physical contact with the child while bathing them, but it was without any sexual intent.

Honest but Mistaken Belief

Charges may be reduced or dismissed when the accused had an honest but mistaken belief that the complainant was above the age of consent. The accused may argue that they believed the complainant to be older because they took proactive measures to conceal their actual age.

Consent

If the complainant consented to be touched in a sexual context, this can be a potential defence against committing sexual interference. You must, however, be able to show that you had a reasonable belief that the complainant consented. However, this defence will fail if the alleged victim is under the age of 16 unless specified age circumstances apply.

Alibi

If you can prove that you were not in the same place as the alleged victim at the time of the alleged offense, you can avail of an alibi defence. This defence is most effective when there is corroborating evidence, such as video footage or eyewitness testimonies, to support your claim.

Identification

If the police are not 100 percent sure that you committed the offense, this is a potential defence. The authorities must have strong evidence linking you to the crime for this defence to succeed.

Mental Disorder

You may use this defence if you can show that you were suffering from a mental disorder when the offense was committed. It is available if you did not have capacity to understand the nature of your conduct or control your actions. This can apply in elderly individuals who are suffering from age related mental health issues such as dementia.

Duress

If you were threatened or coerced into committing the offense, you might use duress as a defence. It is available if you can show that you had a reasonable fear of bodily harm if you did not commit the offense.

Violation of Constitutional Rights

The Canadian Charter of Rights and Freedoms articulates your rights before, during, and after your arrest. If the police did not follow the proper procedure when they investigated and arrested you, this might aid in your defence.

Charter Challenges

If you feel that your rights were violated, you may be able to launch a Charter challenge, a formal process through which you can argue that the police conduct was unconstitutional. If your challenge succeeds, the charges against you may be dropped.

False Allegations

False allegations of sexual interference are not uncommon. In some cases, the complainant may have been mistaken about what happened. In others, the complainant may have intentionally made false allegations for malicious reasons.

How Can I Help My Lawyer Build My Defence against Sexual Interference Charges?

There are several ways an experienced lawyer can help you defend against sexual interference charges, depending on the facts and circumstances of your case. However, defending against sexual interference allegations is challenging regardless of the defence employed.

If you have been accused of committing sexual interference, it is critical to preserve your rights. Experienced legal counsel may help you develop the most effective strategy for the best possible outcome. In any case, doing the following can help your lawyer build a solid defence:

• Collecting and maintaining pertinent records and documents concerning the incident
• Providing your lawyer with detailed notes about your version of events
• Preparing a list of witnesses who may support your version of events
• Gathering any relevant documents, emails, phone calls, or photographic evidence

Consider taking the following proactive steps when dealing with the charges:

• Enroll in counseling sessions for anger management, substance abuse, abusive parenting, and the like
• Secure proof of employment
• Obtain reference letters
• Secure a record of prescriptions
• Obtain a record of any mental illnesses you suffer from

How Do I Get Myself or a Loved One Accused of Committing Sexual Interference Out on Bail?

In most situations, if you are charged with committing sexual interference, you must attend a bail hearing to get released. Unless you have a spotless criminal history, the prosecutor may request that you be detained in jail (remand) until your allegations are resolved. If you are released on bail, you can be sure that your release will be subject to certain conditions, which we will discuss later.

The bail hearing can be conducted 24 hours after your arrest or detention. However, the prosecutor has up to three days to prepare for your bail hearing and may request more time from the court. A competent criminal defence lawyer will ensure that your bail hearing is scheduled at the earliest, so you are not incarcerated for an unnecessarily long period.

Your loved ones will not be able to get in touch with you while you are detained. Nor will they receive any information about you unless you happen to be a minor. The only contact you will be allowed is with your lawyer. The police will provide information about your location if requested once your attorney’s identification has been verified.

While incarcerated, it is critical to engage a competent criminal defence attorney as soon as possible to manage the legal process and communicate with your loved ones. After your arrest, you are within your legal rights to contact a lawyer in private, and should you so wish, they must suspend questioning you until you have had a chance to speak to a lawyer.

Once you find a criminal defence lawyer, he or she will begin working to secure your release on bail. Your lawyer may also do the following:

• Contact the facility where you are being detained and inform you about the course of action to get you out
• Contact the prosecutor handling the bail hearing to begin negotiations for your release
• Order and receive a copy of the police information ahead of your bail hearing so he or she can make informed arguments to the court in favor of your release on bail
• Conduct a bail hearing in-person or via teleconference to secure your release

How Do I Pay Bail for Sexual Interference Charges?

If you are charged with committing sexual interference and granted bail, you may be required to pay a cash deposit to secure your release. The court will determine the amount and mode of payment.

Your lawyer will advise you on the legal requirements and explain the payment alternatives to you or the person making the payment on your behalf.

What Are the Restrictions When a Person Accused of Committing Sexual Interference Is Released on Bail?

If you are out on bail while awaiting trial on sexual interference charges, the court may place conditions or restrictions on your release. These restrictions are designed to ensure your attendance during future court proceedings and to protect the public, the complainant, or witnesses involved in the case.

Common bail conditions for sexual interference cases include:

• Residence restrictions: You may be required to reside at a specific address or within a particular geographical area.
• No contact orders: You may be prohibited from contacting the complainant and any potential witnesses.
• Reporting requirements: You may be required to report regularly to a bail supervisor or law enforcement official.
• Weapons restrictions: You may be prohibited from possessing or carrying any weapon.
• Curfew: You may be required to observe a curfew.
• Substance abuse treatment requirements: You may be required to participate in substance abuse treatment or abstain from consuming drugs or alcohol.
• Traveling restrictions: You may be required to surrender your passport and may also be barred from applying for travel documents.
• Employment requirements: You may be required to maintain or seek employment.
• Other conditions: The court may impose additional requirements that it deems necessary depending on the severity of the complaint.

While out on bail, you must comply with all conditions or restrictions that the court imposed. If you violate any of the terms of your release, you may be arrested and required to return to court. You may also forfeit your bail money and be required to pay a higher bail amount, if you are granted bail again.

How Can a Lawyer Help Me Build a Defence against Sexual Interference Charges?

Each case is unique and will require its own specific defence strategy. A lawyer experienced in defending against sexual interference charges can help you understand what to expect and the options available. He or she can also help you get the best possible outcome. Sexual interference cases are usually assigned to senior and seasoned prosecutors with a long track record and a solid reputation.

An experienced lawyer will immediately start working on your case by gathering evidence, interviewing witnesses, and reviewing the facts. At this time, you must stay silent and let your lawyer do his or her job.

If the prosecution decides to proceed with your case, your lawyer will work on getting the charges dropped or reduced. That may require negotiating with the prosecutor or taking the case to trial. If the case goes to trial, your lawyer will present evidence and arguments in your defence.

No matter what route the case takes, however, you should always speak to your lawyer before making any decisions. Sexual interference charges can seriously impact your life, so you must get the best possible defence.

Conclusion

Sexual interference is a serious crime not only in Canada but worldwide. As such, getting convicted can have lasting and devastating consequences for anyone accused of committing it. If you are facing charges of sexual interference, it is vital to get smart and skilled legal counsel as quickly as possible.

Our team at Alberta Legal has years of experience defending those accused of sexual offences, and we are ready to fight for your rights. Contact us today for a free consultation, and let us help you build the strongest defence possible.