Sexual Interference Charges

Sex crimes are high profile in Canada and we often hear terms such as “rape” or “sexual assault” used in connection with such offences.

However, there is a multitude of other charges related to illegal sexual activity. Sexual interference and invitation to sexual touching are examples that most people are less familiar with.

If you are charged with sexual interference or invitation to sexual touching, it is important to first understand what these charges mean and what the potential consequences are.

Then you need to defend the charge as best you can as a guilty verdict can have a major impact upon your future rights and freedoms, as well as your reputation.

The experienced sex crime lawyers at Friedman Mansour LLP will vigorously defend you if you are wrongly charged with sexual interference or invitation to sexual touching in Ottawa.

What is sexual interference?

Sexual interference is an offence committed against a person under the age of consent, which is 16 in Canada.

It is the touching (directly or indirectly) of any part of the body of a person under the age of 16 for a sexual purpose, as detailed in Section 151 of the Criminal Code.

To secure a conviction in a criminal court, the prosecution will need to prove beyond a reasonable that:

• Direct or indirect sexual touching occurred
• The touching was intentional
• It was done for a sexual purpose (regardless of whether sexual gratification was received)
• The defendant knew the complainant was under 16 years of age or did not take reasonable steps to confirm the age

Touching “directly” usually means with the defendant’s own body while “indirectly” normally means with an object.

Sexual Interference and Invitation to Sexual Touching

What is invitation to sexual touching?

Invitation to sexual touching is outlined in Section 152 of the Criminal Code.

This crime involves inviting, counselling or inciting a person under the age of 16 to touch the body of any person (including the victim’s) for a sexual purpose.

To secure a conviction in a criminal court, the prosecution will need to prove beyond a reasonable that:

• The complainant was asked or directed to touch his or herself or another person
• The communication was for a sexual purpose (according to the body part invited to be touched or words/gestures used during the communication)
• The defendant knew the complainant was under 16 years of age or did not take reasonable steps to confirm the complainant’s age
• The defendant was aware that the communication may be received by the complainant as an invitation, incitement, or counselling to engage in the offence

With the crimes of sexual interference and invitation to sexual touching, a person can still be charged with a sex crime if the alleged victim is over the age of 16 but under 18 AND the defendant held a position of trust and authority over them.

Can a “consent defence” be used in Ottawa?

A person under the age of 16 cannot legally consent to sexual activity in Canada.

Even if the defendant is adamant that he or she believed that the complainant was above the age of consent, this is generally no defence either. However, there are exceptions to the rule.

If the defendant can prove that all reasonable steps were taken to ascertain the age of the complainant before the sexual interference or invitation to sexual touching took place AND, because of these steps, he or she believed the complainant to be aged 16 or over, it may be a valid defence.

In cases where the complainant is 12 or 13 years of age, consent is only a valid defence if the defendant is:

• Less than two years older than the complainant, and
• Not in a position of trust or authority toward the complainant, and
• Not in a relationship of dependency, and
• Not in an exploitative relationship with the complainant.

If the complainant is 14 or 15 years of age, consent is only a valid defence if the defendant is:

• Less than five years older than the complainant, and
• Not in a position of trust or authority toward the complainant, and
• Not in a relationship of dependency, and
• Not in an exploitative relationship with the complainant.

Where the defendant is more than five years older than a 14- or 15-year-old complainant, consent is a valid defence if the defendant is:

• The common-law partner or married partner of the complainant, and
• Not in a position of trust or a relationship of dependency over the complainant.

A “position of trust” is like a teacher or the coach of a sports team. A “relationship of dependency” is a parent, grandparent, guardian, or any other type of relationship where the complainant should be able to trust and rely on the protection of the defendant.