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Defend Sexual Interference Charges

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Our Experience

In the case of R. v. S.T. [2024], handled by the Firm, a school photographer was wrongfully accused of sexual assault, facing nine charges involving three child complainants. The allegations allegedly happend while the photographer was at the school. This high-profile case saw the Firm develop a comprehensive strategy, underpinned by concrete evidence. The police and prosecution overlooked crucial details in the video surveillance. The defence initiated two pre-trial motions, successfully requiring the employer of the accused to produce defence evidence. This evidence was critical for cross-referencing the data provided by law enforcement. After about 18 months court, including a trial, the Firm secured an acquittal on all charges, fully exonerating the accused.

In the Firm’s R. v. J.C. [2024], the Firm defended a historical sexual interference case from the 1980s. It was alleged that the client of the Firm was the babysitter of the complainant at the time who was a child. Over several decades the complainant came forward with the allegations to law enforcement. The accused was eventually charged and was now being prosecuted in his retirement. Over a year of litigation, the Firm discovered that the prosecution lost key evidence which resulted in a s.7 Charter defence. We were also able to confirm the accused was not read his rights to counsel, which means his statement was excluded from evidence. After proceeding to trial, the Firm was able to secure a withdrawal of all charges against the accused without any admission or consequences.

In 2021, the Firm represented an individual charged with two counts of sexual assault and two counts of sexual interference in Toronto as well as one count of sexual assault and one count of sexual interference in British Columbia in R. v. V.G. [2021]. The accused was alleged to have sexually assaulted two different young complainants roughly 30 years ago. The Firm had the B.C. charges waived to Toronto and resolved the matter globally without any jail time for the accused. This represented one of the lowest sentences in Canada. The accused was initially facing 5-7 years in jail.

In 2019, Donich Law represented an individual charged with sexual interference and invitation to sexual touching in Perth, Ontario in R. v. A.E. [2019]. The accused was alleged to have engaged in sexual activity with a family member while both individuals were children in 1985. The Firm litigated the matter for more than a year, ultimately proving that the complainant had fabricated the allegations in an attempt to gain control over a family inheritance. The defence was required to proceed to trial and conducted a contested application to vary the accused’s bail conditions. The Firm’s strategy eventually resulted in the Crown withdrawing all criminal charges.

Sexual Assault Trial Challenges

In 2018, Donich Law represented an individual charged with invitation to sexual touching, sexual assault, and sexual interference in R. v. D.D. [2018]. The trial was held in youth court as the allegations dated back to more than 20 years prior when the accused was a young person. The Firm was able to show the complainant was inconsistent based on the evidence she gave in another proceeding, where a different family member was also simultaneously accused. The two trials with different family members proceeded together, where the Firm ultimately secured an acquittal at trial.

In 2018, Donich Law represented an individual charged with 11 counts of sexual assault and sexual interference in R. v. C.Z. [2018]. The charges were brought forward by multiple children. After months of litigation the Firm was able to raise suspicion about collusion between family members. Proceedings involving children are handle differently in the justice system, so care should be taken by defence during cross-examination. In some cases, child complainants will have to testify between a screen or in a separate room by video link. The Firm was eventually able to have 10 of the charges withdrawn.

Common Sexual Assault Defences used by Lawyers

Donich Law - International Child Pornography Investigations we have Defended

In the Firm’s R. v. T.B. [2022], it secured a dismissal of all child sexual assault charges in Oshawa. The allegations were advanced by the son of the accused for an alleged incident that occurred in 1992, when the father was alone with his son. As with many historical sexual assault charges, they involved allegations of sexual interference and invitation to sexual touching. The defence was required to bring a complex s.276 application and was ultimately successful, utilizing evidence against the complainant at trial, specifically that he was once reported to the police for sexually assaulting another family member. This argument was combined with a section 11(b) Charter application for delay in getting to trial. At trial the defence was also able to prove the complainant’s memory was affected by years of drug abuse along with the theory that revenge was a motivating factor for fabricating the allegations. The defence was able establish through testimony by the ex-wife that a bitter divorce from 30 years ago pitted the biological mother and son, against the father.

New Changes to Sexual Assault Laws in 2024

In 2017, the Firm secured a withdrawal in its R. v. M.M. [2017], of sexual assault and sexual interference allegations after three years of litigation. The allegations dated back to 1977 when the complainant was five years old. The file proceeded to the Superior Court where the Firm conducted a preliminary inquiry at the time. The Firm was able to extract evidence from the complainant regarding her alleged therapy. This information was then used by the defence as the basis for a third party records application to review the therapy notes. With the developments that followed, the Crown agreed to withdraw all charges.

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Frequently Asked Questions

What is Sexual Interference?

Sexual interference is among the most serious offences in the Criminal Code and carries one of the longest maximum prison sentences available in Canada; fourteen years imprisonment. As outlined in section 151 of the Criminal Code, an individual who touches, directly or indirectly, with a part of the body or an object, an individual under the age of 16 for a sexual purpose, is guilty of sexual interference. Essentially, this offence criminalizes sexual activity between an adult and an individual under the age of consent.

To gain a conviction for sexual interference, the Crown must prove that the accused engaged in sexual activity with the complainant, and that the complainant was under the age of 16 at the time the sexual activity occurred. The Crown need not prove that the complainant did not consent to the sexual activity, because their consent is invalid as a result of their age. In many cases, the only evidence available is the statement of the complainant. The testimony of the complainant alone is enough to convict an accused.

An individual is guilty of sexual interference even where the young person was agreeable to the sexual contact. This is because under Canadian law, persons under the age of 16 are unable to consent to sexual activity with an adult. Sexual interference is considered a child sexual abuse offence. Those convicted will face prison time in addition to ancillary orders. Ancillary orders common with sexual interference convictions include orders restricting access to the internet, orders restricting access to children, an order to register as a sex offender, and a weapons prohibition.

What is the Difference Between Sexual Assault and Sexual Interference?

In situations where an adult has had sexual contact with a minor, it is common for them to be charged with both sexual assault and sexual interference. While very similar, the offences are separate and distinct from one another.

Sexual assault occurs when one individual makes physical contact with another individual without consent, and the physical contact violates the sexual integrity of the individual being touched. This could include anything from an unwanted hug to a violent rape. To prove sexual assault, the Crown must prove only that the complainant did not consent to the physical force the accused applied to them, and that the complainant’s sexual integrity was violated.

Sexual interference occurs when an adult touches a minor, directly or indirectly, with a part of the body or an object, for a sexual purpose. Essentially, any sexual contact between an adult and minor completes offence of sexual interference. An adult who has sexual contact with a minor is guilty of sexual interference even if the minor was agreeable to the activity. This is because individuals under the age of consent are legally incapable of providing consent to sexual activity with an adult.

The main difference between sexual assault and sexual interference is the age of the complainant. Often, when an individual is charged with sexual interference, they will also be charged with sexual assault for having had sexual contact with someone legally incapable of providing consent.

Both sexual assault and sexual interference carry serious penalties upon conviction. However, an individual cannot be convicted of multiple offences that result from the same set of facts and the same act. This is known as the Keinapple principle. As a result of this principle, an individual cannot be convicted of both sexual interference and sexual assault if both charges arise out of the same sexual interaction with the same complainant. In these cases, if the accused is found guilty of both offences, one charge will be stayed.

What are Common Types of Disclosure in Sexual Interference Cases?

Disclosure is the process by which the Crown provides a person accused of a criminal offence all the information and evidence that forms the case against them. Disclosure is a crucial part of the criminal justice process because it allows the accused to fully defend themselves from the charges against them. There are several pieces of information that are common to all types of criminal offences. These are the accused’s criminal background check, the statement of the complainant, or victim, any witness statements, and if applicable, the notes and body cam footage from the arresting officer.

The nature of sexual interference cases leads them to produce very little evidence other than the testimony of the complainant and accused. Therefore, the key part of the disclosure in these cases is the complainant’s statement. Depending on the facts of the case there may be other uncommon pieces of evidence included in the disclosure package such as a record of messages between the accused and the complainant, the testing results for a rape kit, or video or photographic evidence of the offence.

How Long Does It Take to Receive Disclosure?

The process of receiving full disclosure can be a long one. The amount of time it will take to receive full disclosure may vary significantly from one case to the next. The length of time will depend on a number of factors including the number of charges, complexity of the charges, and type of offences.

Once charges are laid against an individual, the police will create a file on the accused. This file will contain details of the accused’s arrest as well as any evidence the police have collected on the case. The police will share this file with the Crown’s office who will use it to prosecute the accused. It typically takes about a month for the police to pass an accused’s initial file along to the Crown’s office. As the police uncover new evidence, they will continue to share it with the Crown’s office.

Typically, an accused will not receive any disclosure at least until their first appearance court date, which is generally scheduled between four and eight weeks after the accused’s arrest. In most jurisdictions throughout Ontario, disclosure is shared electronically. To get disclosure, the accused should reach out to the Crown’s office via email to make a formal request. Where the accused has retained counsel, their lawyer will request and receive disclosure on the accused’s behalf.

In most cases, disclosure will be provided to the accused or their counsel bit by bit as it becomes available. It may take anywhere from a month to several months to receive full disclosure. Prior to releasing any disclosure to the accused, the Crown will review the file to remove any sensitive information from the evidence, including personal information about the complainant or any witnesses in the case. This process must be completed before any disclosure item can be released to the accused. As a result, disclosure can often take several months to be shared. The accused or their counsel can get regular updates in court during set date appearances.

How Does a Person Charged with Sexual Interference Get Their Disclosure Package?

When an individual is arrested and charged with a criminal offence like sexual interference in Toronto, the police will create a file on the accused containing all the evidence collected in the case. This file will then be passed along to the Crown’s office, and eventually to the accused through the disclosure process. Individuals charged with a criminal offence in Canada are legally entitled to review any and all relevant evidence related to their case.

To get a copy of disclosure, the accused or their counsel can attend the Crown’s office inside the New Toronto Courthouse located at 10 Armoury St. in Toronto. Alternatively, an accused may request their disclosure in writing via email. The applicable virtual Crown’s email address can be found on the release paperwork given to the accused upon release from custody. Disclosure in Toronto is shared with the accused or their counsel electronically via either evidence.com or the Ontario Disclosure Hub. In most cases, disclosure is provided bit by bit. The accused or their counsel will be notified of new disclosure as it becomes available until everything has been shared.

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Recent Cases

R. v. P.R.J., 2023 BCCA 169

The British Columbia Court of Appeal case of R. v. P.R.J. explores the process of what happens when the original sentence for sexual interference offence is too light. The original 23-month conditional sentence with two years of probation was appealed by the Crown, who instead argued that four years imprisonment was a more fit sentence. The original sentence was a response to a series of sexual offences, including interference, assault, and invitation to sexual touching. The context of the offences was that the offender was the mother and sole guardian of the victim. On the night of the offence, the two were in the same bed when the intoxicated offender began touching the victim without consent. The offender also wanted the victim to perform the same acts on them.

The issue on appeal was that the sentencing judge did not give proper weight to all the aspects of the offence. It was clear that their belief was stronger sentences should be given to repeat offenders, and this was a one-time offence and a first-time offender. However, the appeal court sided with the Crown and took in a more complete view of the situation. This included the serious harm suffered by the victim, the violation of the parental relationship of trust, and the victimization of a child. The impacts of sexual offences also go beyond the victim themselves, which the appeal court noted, “The Crown has persuaded me that the judge did not consider the harms associated with child sexual offending “in a manner that reflects society’s deepening and evolving understanding of their severity” …He did not give meaningful effect to those harms. Doing so was required to properly assess the gravity of PRJ’s offending and her moral blameworthiness.” [at para 52]

R. v. Collins, 2023 ABKB 134

The Alberta Court of King’s Bench case of R. v. Collins is an example of the sentencing process for sexual interference. Here, the offender was charged and convicted of two counts of child luring and sexual interference. Both offences stemmed from the offender contacting young girls under the age of consent and beginning a relationship with them that included unprotected sex. The second set of offences occurred after the offender was arrested and released on bail for the first set instance of sexual interference.

Of note, was the fact that the offender pled guilty to the offences and that he had sought to bring a Charter challenge concerning his treatment in prison. That challenge was never brought because of a delay that was not the fault of the offender, so the Crown and defence agreed to lessen his sentence by one year to avoid the challenge. The total sentence received before credit for time served in pre-trial custody was six and a half years imprisonment.

Ancillary orders were also issued for DNA, a SOIRA order, a 10-year weapons prohibition, and an order restricting access to children for 15 years. Among the most important aspects of the case is the predatory nature of sexual interference, particularly where the victims seem willing to engage in the activity. To that effect the judge stated, “The fact that the child readily responded is an illustration of why this offence is so dangerous, and teenage girls are so vulnerable. Using social media platforms that are popular with adolescents to randomly locate and converse with a nearby child, with sexual activity in mind, must be denounced and deterred in the strongest terms.” [at para 70]

R. v. L.S., 2023 ONSC 1281

The Ontario Superior Court of Justice case of R. v. L.S. is another example of sentencing in the context of sexual interference and sexual assault. Here, the offender, a 21-year-old man, and the victim, a 15-year-old girl, engaged in sex after the victim had drunk some vodka provided to her by the offender. The victim did not consent to the activity, and the offender could not rely on the defences of mistaken belief in age or consent based on the facts accepted by the trial judge. As a result of these offences, the offender was sentenced to 30 months imprisonment, and additional orders were made concerning DNA, SOIRA, and a 10-year weapons prohibition.

As with every criminal sentence, the court must balance the principles of sentencing, as well as the individual circumstances of the offender that suggest a stronger or more lenient punishment would be fitting. The principles of sentencing include denouncing criminal conduct and deterring others from behaving similarly, but the principles also prioritize the rehabilitation of the offender. Here, the judge balanced the seriousness of the offence and the fact that the offender induced the victim’s intoxication with several mitigating factors that included a lack of a criminal record, and the offender’s genuine remorse. There was one specific circumstance of the offender’s life that lent itself to the lenient sentenced imposed. “In my view, however, there is good reason to impose upon L.S. a custodial sentence that is lower than 3 years, on account of his intellectual disability and his soon-to-be role as a father to his child with special needs.  Those circumstances, collectively, are the type of “highly mitigating factor” spoken about by the Court of Appeal for Ontario in A.J.K…. that would justify a departure from what might otherwise be the low end of the range.” [at para 34]

About the Author

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Jordan Donich

Jordan Donich has been a Lawyer for over 10 years and is a trusted legal analyst by Canadian Media. He is as a leader in Canada’s tech sector for lawyers and developer of Law Newbie. Jordan is a Black Belt with the Japan Karate Association and trained in Krav Maga. He won a Gold Medal at 2004 Canadian National Championships and was published in the National Newspaper Awards.

Jordan has been featured in Forbes and is a member of DMZ Angels in Toronto.