Sexual Interference Investigations
Common ways Sexual Interference Accusations Arise
What to do if You Have been Wrongfully Accused of Sexual Interference?
New Sentencing Principles in 2021 for Child Sex Offences
The Importance of the Right to Counsel
Theory of the Defence
Gathering Defence Investigative Evidence
Third Party Records
Peliminary Inquires are Gone
Assaulting a Peace Officer
Children’s Aid Society
Sexual Assault Law in Canada
Sex Offender Prohibition Orders
Consequences of a Criminal Record
Keeping Charges Private
Travel & US Waivers
Vulnerable Sector Screening
Elements of a Crime
Common ways Sexual Interference Accusations Arise
Sexual interference allegations may arise in a variety of circumstances. In almost all cases the accused and complainant are known to one another at the time of the alleged incident. Many sexual interference allegations are leveled against a parent, family member or family friend. In some cases, a babysitter or coach may be accused. In most cases allegations of sexual interference arise from incidents that occurred in private. This means that there is often little to no evidence or third-party witnesses to corroborate the story. This, however, does not mean an individual will not be convicted. The courts can and do convict individuals based on the statements of their accuser alone.
Sexual interference charges may also arise from allegations of historical abuse. In some cases, complainants do not come forth with their allegations for years or even decades. Since there is no statute of limitations on criminal offences where the Crown proceeds by indictment, an individual accused of sexual interference could be arrested for the incident at any point after it occurs, even decades later.
What to do if you have been Wrongfully Accused of Sexual Interference
If you have been wrongfully accused of sexual interference it is important to hire experienced legal counsel to represent you as soon as possible. Many people may have the misconception that if they are innocent, or there is no evidence, they cannot possibly be convicted. Unfortunately, this is not the case.
There is generally very little physical evidence in sexual assault or sexual interference cases. These offences also typically occur behind closed doors, meaning there is often no third-party witnesses. This evidence, however, is not needed to gain a conviction. An individual accused of sexual interference or sexual assault may be convicted on the statement of their accuser alone. At trial, the judge or jury presiding over the case will decide on the complainant’s credibility and reliability. If the complainant’s story is believed by the court, the accused will be convicted. Because of this, it is often prudent for the accused to attempt to undermine the credibility of the complainant and any other witnesses called by the Crown.
Due to the complicated nature of sexual interference cases, it is important to have experienced counsel to assist you in developing a defence specific to the allegations against you. Donich Law has experience defending individuals charged with sexual assault, sexual interference, and invitation to sexual touching as well as individuals accused of historical sexual offences and those who have been wrongfully accused. We combine risk management and litigation to achieve the best results for our clients.
Sentencing Principles for Sexual Interference and other Sexual Offences against Children
The sentencing principles utilized when sentencing those convicted of sexual offences against children have evolved significantly over the years. Decades ago, the sentences imposed on those convicted of such offences were significantly more lenient than they are today. Individuals convicted of sexual interference were routinely sentenced to months, instead of years in prison.
As recently as the early 2010’s, the average sentence imposed on an individual convicted of sexual interference was a lower single digit prison sentence. In 2020, the Supreme Court of Canada released its decision in the case of R. v. Freisen, a case involving a man charged with sexual interference. After being convicted and sentenced to six years at trial, the sentence was appealed and ultimately lowered to 4.5 years. The Crown appealed, arguing that the six-year sentence should not have been overturned on appeal. Ultimately, the Supreme Court of Canada granted the appeal and restored the original six-year sentence imposed by the trial judge.
The Supreme Court went on to opine that the sentences being imposed on individuals convicted of sexual offences against children are too low. Shortly before the Freisen case was heard, the legislature amended the Criminal Code to increase the maximum penalties for certain sexual offences against children including sexual interference. The Court reasoned that since the maximum penalty had been increased (to fourteen years imprisonment), so too should the average sentences imposed on those convicted. The Court indicated that sentences in the range of upper single digits to lower double digit prison sentences would be more appropriate.
The Court also provided guidance to assist the judges of lower courts in determining the appropriate sentence for an offender. The Court provided a list of non-exhaustive factors to consider when determining a fit sentence. A judge should consider the criminal history of the accused, whether the accused has expressed remorse, whether the accused has insight into their actions and understands the trauma their actions have caused to their victims, and whether or not the offender poses a high risk to reoffend. Where an offender lacks remorse and poses a high risk to reoffend, the greater the need to separate the individual from society for a longer period of time.
The Importance of the Right to Counsel
Section 10(b) of the Charter of Rights and Freedoms guarantees all persons the right, upon arrest and detention, to retain and instruct legal counsel without delay and to be informed of that right. This means that upon arrest, everyone has the inalienable right to speak to a lawyer to discuss their legal rights. This right is particularly important for individuals charged with sexual offences including sexual offences against children.
Sexual assault and sexual interference cases can be particularly difficult to litigate making the right to a lawyer even more important. Due to the complicated nature of sexual assault and sexual interference cases, it is important to have experienced legal counsel to assist in formulating a defence.
There is a misconception that if there is no physical evidence and no third-party witnesses, an accused cannot be convicted. However, there is little to no physical evidence or third-party witnesses in most sexual assault and sexual interference cases. For the most part, these types of offences occur in private, behind closed doors. In most cases, victims do not go to the hospital for a sexual assault examination after being assaulted, and in many cases, victims do not report the assault to law enforcement immediately.
Individuals accused of sexual offences are often surprised when they discover they may be convicted of the offence despite the lack of real evidence. In reality, many sexual interference cases rely heavily on the statements of the accuser alone. No physical evidence or third-party witnesses are needed for an accused to be convicted. Simply, if the Court believes the accuser’s story, the accused will be convicted.
This puts an accused person in a precarious position, legally. While under no obligation to present any evidence, an accused who fails to present evidence runs the risk of being convicted if the complainant’s story is believed at trial. Because of this, it is important to have experience legal counsel to assist you in developing a defence.
Donich Law has experience defending those charged with sexual interference including those who have been wrongfully accused, and those who are being charged with a criminal offence for the first time.
A limitation period places a deadline on when charges must be laid. In the context of criminal cases, limitations periods only apply to summary conviction offences. Section 786(2) of the Criminal Code sets the limitation period for summary conviction offences at 12 months. This means that charges cannot be laid more than 12 months after the date of the alleged offence.
There is no limitations period for indictable offences. Where the Crown elects to proceed by indictment on a hybrid offence, or where the offence is straight indictable, an accused can be charged and prosecuted at any point after the offence occurs. This allows law enforcement to charge those accused of committing serious offences years or even decades after the alleged offence was committed.
Where the limitation period has passed for a hybrid offence, the Crown will have no choice but to proceed by indictment in order to proceed with prosecution. In some situations, the defendant may choose to waive the limitation period to allow the Crown to proceed summarily.
Importance of the Defence having a Strong Theory
Sexual interference and sexual assault cases often become quite complicated as a result of the rules governing prosecution of these types of offences and the lack of evidence available. Because of this, it is important to have defence counsel to develop a strong defence theory. Often, even where an individual has been wrongfully accused, denial alone is not enough. For example, pleading fabrication may not be enough without a theory behind why the complainant would fabricate the story.
There is a common misconception that if there is no evidence in the case the accused will not be convicted. The reality is, there is rarely physical evidence available in sexual offence cases. Sexual offences tend to occur in private where there are no third-party witnesses. The result is that the only evidence in many cases is the statements of the complainant and sometimes the accused.
These cases come down to the credibility and reliability. If the Court finds the complainant to be reliable and credible in their testimony, the accused will be convicted. Impeaching the credibility of a witness, especially the complainant, in a sexual assault trial may not be enough to secure an acquittal. This is especially true with historical sexual offences, where the memories of those involved may have faded.
This makes it all the more important to have a strong defence theory. Experienced legal counsel can help you develop the best strategy based on the allegations against you. A strong theory aims to create reasonable doubt in the evidence presented by the Crown.
Defence Gathering its own Evidence
The disclosure process in all criminal cases ensures that the defendant has access to all of the evidence in the possession of the Crown. This includes evidence the Crown intends to use at trial and evidence the Crown does not intend to use at trial. Disclosure will include all evidence gathered by police including witness statements and statements made by the complainant.
In some cases, it is advisable for the defence to conduct an investigation of their own to collect evidence. The defence will want to seek out any evidence that creates reasonable doubt in the evidence collected by the Crown or in the Crown’s theory of the case. One way a defendant can collect evidence to defend himself is a through Third-Party Records Application. This is discussed more in detail below. Evidence gathered by the defence may be used to negotiate a favourable plea deal with the Crown or may be used as evidence at trial.
Third Party Records
While the defence is entitled to all evidence in the possession of the Crown, this does not include exculpatory evidence in the possession of third parties. Whether or not records are considered in the possession of the Crown (first party records) or records in the possession of another entity (third-party records) will depend on a number of factors.
These factors include; the purpose for which the records were created, whether the information is considered “fruits of the investigation” of the Crown or law enforcement, the nature and contents of the information, whether any third parties have a privacy interest in the information, where there is an intrinsic link, whether the information is sufficiently related to the investigation, and whether the information was created or obtained as a result of, or in connection with the investigation.
A defendant seeking access to exculpatory evidence in the possession of a third-party is required to submit a Third-Party Records Application. If granted, the application will force the third-party to produce the records for the defendant.
For example, in cases involving historical sexual assault or sexual interference, a defendant may wish to submit a Third-Party Records Application to obtain copies of the psychological records of the complainant.
For the application to be granted, the records must be relevant to the case. For information to be considered relevant there must be a reasonable possibility that the information may assist the accused in the exercise of the right to make full answer and defence, or otherwise consider the conduct of the defence. Third-Party Records Application’s in sexual assault cases are governed by s. 278.1 and 278.91 of the Criminal Code.
The Implication of the Elimination of Preliminary Inquiries
A preliminary inquiry is screening mechanism used to determine whether there is enough evidence for a case to go to trial. During a preliminary inquiry, the Crown will present evidence to demonstrate to the Court that there is enough evidence to run a trial. In many cases, this involves live witnesses testifying before the Court.
Aside from this screening function, preliminary inquiries were also commonly used tactically as a way for the defence to better understand the Crown’s case. By understanding the Crown’s witnesses, a defendant can better prepare their defence for trial.
In 2019, Bill C-75 received Royal Assent from the federal government of Canada. The Bill, among other things, amended the Criminal Code to restrict preliminary inquiries to offences where the maximum punishment is life imprisonment. The government believed that preliminary inquiries were revictimizing victims, especially in sexual assault cases, by forcing them to testify twice.
While in the best interest of victims, the elimination of the preliminary inquiry except for cases involving a maximum penalty of life imprisonment puts defendants at a disadvantage. Preliminary inquiries provided the defence a unique opportunity to hear witness testimony before trial. In some cases, witnesses provide one account of events during the inquiry and another version at trial, which creates obvious credibility issues. The elimination of preliminary inquiries also eliminates this opportunity for impeachment.
What is Sexual Interference?
Sexual interference is a sex offence in Canada which is outlined in s.151 of the Criminal Code. The offence can be the same or very similar to sexual assault, except that the complainant is under the age of 16.
What is the Punishment for Sexual Interference?
When a person is convicted of sexual interference there is almost always a jail sentence. The length of custody will depend on a number of factors, including the relationship between the offender and complainant and nature of the sexual conduct. Sentences can range from months to several years.
What if the allegations happened a long time ago?
Many cases of sexual interference are advanced years or decades later. The most common complainants are close family members. Just because the allegation is historical does not mean the accused won't be prosecuted. Rather, it is quite normal for the Crown to prosecute these types of cases years later.
How to Defend Sexual Interference?
Sexual interference charges are difficult to defend. Given the severity of the offence, these proceedings almost always proceeds to trial. In some cases the offender can be difficult to identify at the commission of the offence, given the length of time which has passed.
Will I be put on the Sex Offenders Registry?
When someone is convicted of sexual interference, they will be put on the Sex Offenders Registry. Often the litigation comes down to whether the offender will be on the registry for a duration of time, such as 10 years, or for life.
Will my Bail Conditions remain the same?
When someone is charged with sexual interference, they will have strict bail conditions. Some of the conditions will prohibit contact with children or to attend areas where children can reasonably by found. This will include a prohibition on attending parks, schools and swimming pools among others. Depending on how the matter is resolved, these may remain additional conditions after conviction for several years.
What if I want to Plead Guilty to Sexual Interference?
Some offenders choose to plead guilty to these offences for a number of reasons. However, in certain jurisdictions there will be litigation about what particular facts the offender will admit. These facts will ultimately determine the amount of jail and conditions. So, even if the offender wants to plead guilty, the defence strategy will shift toward litigating the relevant facts to admit.