FIRST OFFENDER? DEFEND SEXUAL INTERFERENCE CHARGES. 416-DEFENCE.
Sexual interference is one of the most serious offences an individual can be charged with in Canada. Being charged with any offence can be an unsettling experience and being charged with something as serious as sexual interference even more so. Further, those who are convicted face serious criminal sanctions. Donich Law has experience defending those accused of sexual interference in York Region and regularly achieve positive results for our clients.
At Donich Law we have dedicated a portion of our practice to defending sexual interference offences. It is not uncommon for complainants to come forward with sexual interference claims years and sometimes even decades after the alleged incident occurred. There is no limitation period for reporting a sexual interference offence and for many victims, it takes time before they are ready to come forth with their claims. In many cases, individuals are accused of sexual interference by a family member or close family friend. Most of our clients are individuals with no prior criminal record who have been contacted by law enforcement in relation to a sexual interference investigation.
In criminal cases involving children, the Children’s Aid Society will almost always become involved. This is especially true with violent or sexual offences involving children. In the vast majority of cases of sexual interference, the complainant and the accused are known to one another. In many cases, the accused is a family member of the complainant.
When allegations involving a sexual offence against a child are made, even if the accusations are fabricated, the Children’s Aid will immediately prohibit the accused from having any contact with children, including the accused’s own children. If the accused resides in the same home as the complainant or with other children, the Children’s Aid Society will prohibit the accused from continuing to reside in the home. The Children’s Aid Society are also an important source of evidence for police and police will use any evidence gathered by the Children’s Aid Society to prosecute an accused. As a result, it is important to hire experienced legal counsel as soon as possible to ensure all of your rights are protected throughout the investigation, arrest and court process.
In R. v. A.E. , the Firm defended an individual in Perth Ontario who had been charged with sexual assault, sexual interference and invitation to sexual touching charges related to events that allegedly occurred in 1985. After over a year of litigation, the Firm was able to prove that the allegations had been fabricated by a family member of the accused and the charges were ultimately withdrawn.
In R. v. Z.C. , the Firm represented a client charged with eleven counts of sexual interference and sexual assault. The Firm was able to prove that the complainant family member had fabricated the allegations and the charges were withdrawn.
In R. v. D.D. , the Firm represented an accused charged with sexual interference, sexual assault and invitation to sexual touching offences stemming from incidents that allegedly occurred over twenty years prior. The accused was a youth when the incidents occurred and as a result the trial was held in youth court, despite the accused being an adult at the time. The Firm ultimately secured an acquittal on all charges at trial.
In 2017, the Firm defended an individual charged with sexual assault and sexual interference. The incident had allegedly occurred in 1977 when the complainant was five years old. After three years of litigation the Firm was able to have the charges withdrawn.
In 2016, the Firm represented a TTC driver who was charged with nine different sexual offences including child luring. The Firm was able to secure a withdrawal of all nine charges. In R. v. K.C. , the Firm secured the withdrawal of two sexual assault charges after proving that the complainants had fabricated the allegations.
In addition to defending high profile sexual assault and sexual interference allegations, the Firm is also regularly consulted by the media in relation to sexual assault and sexual interference cases in Toronto. We also have experience working with the Children’s Aid Society and negotiating the reunification of families where appropriate.
Global News: Historical Sexual Assault Charges and Bill Cosby.
Global News Radio: Justin Bieber facing allegations of Sexual Assault.
AM900 CHML: Children’s Aid Society has too much power.
Frequently Asked Questions
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Sexual Assault Law in Canada
Consequences of a Criminal Record
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Elements of a Crime
What is Sexual Interference?
In Canada, the offence of sexual interference is essentially a sexual assault on a minor. Section 151 of the Criminal Code outlines the offence. It states that an individual is guilty of the offence where they touch, either directly or indirectly, with a part of their body or an object, any part of the body of a minor. The touching must be for a sexual purpose, meaning the accused must have received some sort of sexual gratification from it. The accused must also have known that the complainant was a minor or have taken reasonable steps to ascertain the complainants real age. An individual who fails to take reasonable steps to ascertain the complainants age or was reckless or willfully blind as to the complainants age, will be guilty of sexual interference.
Individuals who are under the age of consent are legally unable to consent to sexual activity with an adult. As a result, any adult who engages in sexual activity with a minor will be guilty of a criminal offence. It is not relevant if the minor agreed to the sexual activity, or even that the minor initiated the sexual activity.
In the majority of cases, individuals are accused by a member of their family or someone they are closely connected to. In some cases, the minor’s parents or another member of their family will report the inappropriate relationship.
How to Beat a Sexual Interference Charge in York Region?
Sexual interference offences can be particularly difficult to defend due to the severity of the offence. Law enforcement, Crown attorneys and the Courts all devote considerable resources towards arresting and prosecuting those accused of committing sexual offences against children. The best defence to any sexual interference charge will always depend on the specifics of the allegations being made.
Defences commonly used to defend sexual interference offences in York Region include; arguing that the allegations have been fabricated, arguing that the accused lacked the necessary intent, arguing consent, and arguing that the accused genuinely believed the minor was over the age of consent.
In some situations, those who are charged with sexual interference are not guilty of the crimes they have been accused of. Where a complainant has been wrongfully accused of sexual interference it is important to understand what evidence the Crown has in its possession. Generally, where allegations are fabricated there will be no evidence other than the statement of the complainant. In these situations, the Crown may not have enough evidence to make their case and the accused will not be required to present any evidence to bolster their defence. In other situations, sexual interference cases can become he-said-she-said situations. In these scenarios, it may be preferable to offer evidence to the Court to explain why the allegations may have been fabricated by the complainant.
An individual accused of sexual interference may also argue that they lacked the necessary intent to be guilty of the offence. Sexual interference is a specific intent offence, meaning the accused must have intended to commit the offence to be guilty. Further, to be guilty of sexual interference, the accused’s physical contact with the complainant must have been for a sexual purpose. If the contact is not for a sexual purpose, the accused is not guilty of sexual interference. For example, an adult touching their child’s genitals while giving them a bath would not be considered sexual interference, because there is no sexual purpose to the touching.
Accused’s may also argue in some circumstances that they genuinely believed the complainant was over the age of consent. In Canada, the age of consent is sixteen years old. To advance this defence successfully, the accused must prove that they took reasonable steps to ascertain the true age of the complainant. The accused must not have acted recklessly or been willfully blind as to the true age of the complainant. If for example, a minor took elaborate steps to conceal their age, the accused will generally not be guilty of sexual interference.
In rare cases, an accused charged with sexual interference may be able to argue consent. While consent is generally not a defence to a sexual interference, since minors cannot consent to sexual activity with an adult, where the accused and complainant were close in age, consent may be a viable defence. If the accused is less than two years older than the complainant, consent may be valid. The Criminal Code states that a minor who is twelve or thirteen years old may consent to sexual activity with another individual who is within two years of their age and does not hold a position of trust or authority over the complainant.
If you have been charged with sexual interference, our Firm can assist you in developing the best strategy to defend the allegations. We have experience defending a wide array of sexual interference allegations in York Region and regularly achieve positive results for our clients.
Will I go to Jail for Sexual Interference?
In many cases, yes. Sexual interference is one of the most serious offences an individual can be charged with in Canada. As a result, those who are convicted are often sentenced to a period of incarceration. Whether or not an individual will be sentenced to a period of incarceration will depend on a variety of factors. One of the most important factors is the severity of the allegations being made.
Sexual interference is a dual procedure offence, meaning the Crown has discretion regarding the case’s path through the criminal justice system and the maximum penalties available if the accused is convicted. In cases involving more serious allegations, the Crown will generally proceed by indictment and in cases involving more minor allegations, the Crown will elect to proceed summarily. If the Crown proceeds by indictment the accused will face a maximum penalty of ten years’ imprisonment. If the Crown proceeds summarily the accused will face a maximum penalty of two years less a day imprisonment and/or a $5,000 fine.
The Court will weigh all relevant aggravating the mitigating factors in the case to determine the most appropriate sentence if the accused is convicted. The Court will look at the specific facts of the case, the accused’s criminal history, the circumstances leading up to the offence, the relationship between the accused and the complainant and any other factors the Court deems relevant. In some cases, the victim will read a victim impact statement at sentencing which may also impact the sentence handed down by the Court.
What is a SOIRA Order?
In Canada, those who are convicted of certain sexual offences must register as a sex offender under the federal Sex Offender Information Registration Act (SOIRA). This allows the government to monitor the accused after their criminal sentence has expired, to ensure the accused does not reoffend. When an accused is convicted of certain sexual offences, including sexual interference, the Court will issue a SOIRA order, which requires the accused to register as a sex offender. The Court will determine the duration of the order, which can last for ten years, twenty-five years, or life, depending on the severity of the offence.
If you have been charged with sexual interference in York Region our Firm can assist you in developing a strategy to defend your charges. We have experience defending a wide variety of sexual interference allegations and regularly advocate for our client’s rights to ensure they receive the best possible outcome.
What is Sexual Interference?
An individual is guilty of sexual interference when they touch, with a part of their body or an object, an individual under the age of consent, or whom the accused believes to be under the age of consent, for a sexual purpose. In Canada the age of consent is sixteen. This means that individuals under the age of sixteen cannot legally consent to sexual activity with an adult.
Will I go to Prison for Sexual Interference?
In many cases those who are convicted of sexual interference are sentenced to a period of incarceration. Whether or not an individual will be sentenced to prison will depend on the severity of the allegations being made, the criminal history of the accused, the harm done to the complainant and various other aggravating and mitigating circumstances relevant to the case.
Will I be Required to Register as a Sex Offender if I am Convicted?
Yes. Those convicted of sexual interference in Canada must register as a sex offender under the Sex Offender Information Registration Act (SOIRA) on a mandatory basis. The Court will determine the period for which the SOIRA order will remain in the place which could be a period of ten years, twenty-five years or life.
Will I be able to see my Children if I am Charged with Sexual Interference?
When an individual is charged with sexual interference their release conditions will almost always include provisions prohibiting them from being around children. If an accused has children of their own this prohibition can prohibit them from seeing them until the case has resolved or the condition can be varied in Court.
What if the Complainant Lied about their Age?
To be guilty of the offence of sexual interference, the accused must have known the complainant was under the age of consent and must have taken reasonable steps to ascertain the true age of the complainant. If the complainant took elaborate steps to conceal their true age and appear to be over the age of consent, an accused will not be guilty of the offence.
What if the Alleged Incident Occurred a Long Time Ago?
There is no limitation period on reporting a sexual interference offence. Such an offence can be reported to law enforcement at any time after it occurs, even if several decades have passed. While historical cases are more difficult to prosecute due to faded memories and a loss of evidence, individuals may still be convicted of sexual interference for incidents that occurred in the past.
What are Common Bail Conditions?
Those who are convicted of sexual interference will often be placed on strict bail conditions pending the outcome of their case. In many cases an individual charged with sexual interference will be required to reside with a residential surety, remain away from children or places children are known to frequent, not to contact the complainant and to notify the police of any change of address or employment within twenty-four hours of the change.