Experienced Criminal Lawyers

What is Sexual Interference and Sexual Invitation To Touching?

Sexual interference is an offence found in the Criminal Code under section 151. This offence prohibits the touching of another person under the age of 16 for a sexual purpose directly or indirectly. The term “interference” was meant to be broad so that this concept would include a wide variety of circumstances and contact. If a person is charged with this offence, the prosecutor must prove the following:

1. The accused person touched the person (complainant) for a sexual purpose. This touching may be with body parts or objects.
2. The touching was intentional.
3. The accused person knew the person was below the age of consent or did not take reasonable steps to determine his or her age.

It is important to understand that the age of consent is 16 years old, but a person could be charged with sexual interference of a person between the ages of 16 to 18 in certain circumstances, such as being in a position of trust. This means a step-parent, a teacher, a babysitter could be charged because this type of position is a position of authority or trust.

Consent – What if the complainant was under the age of consent but consented?

This is a common question. In law a person under the age of consent cannot legally consent. Unless there is a close-in-age exception the law is clear that there is no legal consent.

Close-in-age – What exceptions apply to this offence?

The law allows for close-in-age exceptions for legal consent. For example, a 14- or 15-year-old may consent to sexual activity if (i) their partner is less than five years older than they are; and (ii) the relationship is not one of trust, authority, dependency, or any other form of exploitation. Another example is that a 12- or 13-year-old may consent to sexual activity if (i) their partner is less than two years older than they are; and (ii) the relationship is not one of trust, authority, dependency, or any other form of exploitation.

What does the law require I do to ensure the other person is the age of consent?

The law requires that you take reasonable steps to ascertain the other person’s age. Simply believing the person is of the age of consent will not suffice. Reasonable steps is not a check list nor is it legally defined. Each case will depend on the circumstances. In some cases, visual observations may be enough. In other situations, more will be required. For example, if you have suspected the person is young, reasonable steps could include asking to see the person’s photo identification. If this is a close-in-age exception, understanding what school or what grade the person goes to may be enough. Taking proactive steps to ensure that the person is the age of consent may be required.

What is the punishment if I am convicted of sexual interference?

Sexual interference is a hybrid offence. This means that if the prosecution will elect which way to proceed. The choices are summary conviction or indictable.

The minimum sentence of imprisonment under the Criminal Code is as follows:

• 90 days if the case proceeds by summary conviction(less serious),
• 1 year if the case proceeds by indictment (struck down by the ABCA in R v Ford, 2019 ABCA 87.)

The maximum punishment for both offences is 14 years in prison. Although, the Alberta Court of Appeal has struck the mandatory minimum down the sentencing range includes many months to years in prison.

Additionally, there are court orders that accompany sentences.

Under the Sex Offender Information Registration Act (SOIRA), if you are found guilty, you will be registered on the federal National Sex Offender Registry. You will also be registered on the provincial registry where you live. Only the police have access to these registries. The registry will contain your name, your address, photographs of you, and a description of the crime you have been found guilty of. You must report any change of address or other relevant information (such as changing your last name) to keep the registry up-to-date. You can be charged criminally for failing to comply with these requirements. Punishments for this criminal offence includes fines or further imprisonment.

A court may also make a prohibition order, which prevents you from being in contact with people under the age of 16. This order is discretionary, which means that it is up-to the judge if he or she will make such an order, and if so, for how long it will last.

A prohibition orders may include many restrictions, such as:

• preventing you attending public parks where people under the age of 16 would be expected to be, and/or
• preventing you from having a job that involves working with young people, and/or
• having your internet use restricted or monitored.

If you do not comply with the order, you may be charged and found guilty of another criminal offence and face another period of imprisonment.

Other court orders include seizing your dna and inputting it into a national databank as well as a weapons prohibition that would prohibit you from having, owning or being in possession of specified weapons. This order can be for a shorter period of time up to a lifetime. Finally, failure to comply with these court orders can also lead to further criminal charges with a wide variety of punishments similar to the abovementioned court orders.

What are the defences to sexual inferference and how can I avoid a conviction?

The most common defences include:

• Mistake of age
• Unintentional touching
• Touching for a non-sexual purpose

The law allows for a defence known as mistake of fact. If you were mistaken in fact about the person’s age this is a common defence. In order to be successful at trial, a critical area will come down to questioning the person who made the complaint against you (the complainant). Defence lawyers are trained to cross-examination. Stellar defence lawyers are diligent in this craft by constantly refining the process in order to be strategic and cunning.  This is why it is critical to have competent and astute counsel at your side and at the helm. If you don’t have a lawyer, you will not be permitted to cross-examine the complainant. The court will appoint a lawyer to ask questions. This lawyer is not your lawyer, and their duty is to the court, not you.

What is Invitation to Sexual Touching?

This is a criminal offence under section 152 of the Criminal Code. It is an offence under Section 152 of the Criminal Code to counsel, invite, or incite a person under the age of 16 to touch their own or someone else’s body directly or with an object for a sexual purpose. This is a complicated offence because it can be committed in a variety of ways. To “invite” sexual touching means to request, ask, or suggest, by words or gestures or both, that some sexual touching occur. To “counsel” means to suggest that someone do something, or to advise or to recommend that the other person do it. Finally, to “incite” means to encourage or urge someone, by words or gestures, or both, to do something.

Invitation to sexual touching is a criminal charge which is typically included with other child sex offences such as sexual interference, child luring and child pornography. The invitation could be made over the phone, text message, social media, or in person. A person can be charged with this offence regardless of whether any actual physical contact or sexual activity ever took place.

What are the defences to Invitation to Sexual Touching?

·         Mistaken belief in age,

·         Asserting that the invitation was not for a sexual purpose, or

·         Denial of all allegations.

This allegation, like most child sexual offences, is typically defended by challenging the complainant’s statements and motivations for making them. Other areas of attack may include challenging the authenticity of the infringing comments or alleged invitations, the identity of who was responsible for making them, the accused’s reasonable belief as to the age of the complainant, the admissibility of any proposed technology or electronic communications that allegedly link the accused to the statements. Another area of attach may include whether the police investigation contained any Charter breaches both in the treatment of the accused and in the gathering of evidence (statements, computer and phone searches, warrants, etc.).

It is important to know that the police, as part of their investigation, will try to obtain incriminating statements from the accused. A statement to the police or to a third party is a common way for the prosecution to admit inculpatory evidence as part of the case. However, some cases including most internet or offences are difficult to prove without an admission of guilt. That is why it is so critical to exercise any rights that are explained. Some inculpatory admissions could be admitting to using a particular device, having access to a certain device or even just being present in a residence at a particular time. This is why skilled police interrogators will offer an accused person his or her “only opportunity” to give his or her side of the story. This is just one of law enforcement’s common tactics they use in an attempt to gain inculpatory evidence.

What is the punishment for invitation to sexual touching?

Invitation to sexual touching carries a maximum punishment of 14 years in prison and a minimum punishment of 90 days in jail. Those convicted will have a criminal record for life that is not eligible for a records suspension (pardon), may have to register as a sex offender for up to life and be banned from attending parks, pools, and other places children may be present for up to the rest of their life.

What is the punishment if I am convicted of Invitation to Sexual Touching?

Invitation to Sexual Touching is a hybrid offence. This means that if the prosecution will elect which way to proceed. The choices are summary conviction or indictable.

The minimum sentence of imprisonment under the Criminal Code is as follows:

• 90 days if the case proceeds by summary conviction(less serious),
• 1 year if the case proceeds by indictment (struck down by the ABQB in R v Reeves, 2020 ABQB 78.)

The maximum punishment for both offences is 14 years in prison. Although, the Alberta Court of Queen’s Bench has struck the mandatory minimum down in one case because of the principle of comity this may not apply to your case. It will be important to discuss this issue with your lawyer. It is important to understand that the sentencing range includes many months to years in prison especially because it is not common for this offence alone to end in a finding of guilt.

Finally, the same court orders mentioned above apply to convictions under Invitation to Sexual Touching.