Sexual Interference Charge: Youth Sexual Assault Not Guilty At Trial

I recently represented an adult male charged with sexual interference and an invitation to sexual touching in youth court. In this case, the accusations were historical. The complainant alleged sexual abuse starting when she was in Grade 5 and ending when the Grade 8/9. My client vehemently denied these heinous accusations made against him by his sister. Despite the client's denial, defences like mistaken belief in age are challenging to argue, as not knowing the age of the complainant or making a mistake as to their age is usually not considered a valid defence to sexual interference. To further complicate matters, there were multiple jurisdictions where the complainant alleged the sexual abuse occurred. In making these accusations, the complainant spoke with the police and provided two audio/video recorded interviews. There was also email correspondence sent by her to my client and his wife. She maintained to the police and at trial that the sexual abuse occurred regularly and sometimes daily for years.

My client denied the accusations outright. In some cases, a denial is called a “bald denial”. A bald denial describes nothing but a protestation from an accused person that “I didn’t do it” with nothing more.

Sexual Offences In Criminal Code

Although lawyers will regularly recite the law and explain that these types of cases are not to be analyzed as a “she said/he said” where the trier of fact picks the version, they like better, this unfortunately can and does happen. In fact, there is a decision from Ontario, R v JJRD (2006), 215 CCC (3d) 252 (ONCA) that has been interpreted by many courts to say that if the complainant is “so compelling” that can, in fact, take away any doubt and allow a trier of fact to convict the accused.

In this case, my client scoured his brain to find any details he could from nearly 20 years ago to support his denial of sexual assault. In this case, my client testified and explained to the judge he did not do any of what the complainant alleged.

When analyzing the evidence, the trial judge considered the R v WD test. This test has three steps. The trier of fact to consider the following:

1. If you believe the evidence of the accused, obviously you must acquit.
2. If you do not believe the testimony of the accused but you are left in reasonable doubt by it, you must acquit.
3. Even if you are not left in reasonable doubt by the evidence of the accused you must ask yourself whether on the basis of the evidence that you do accept you are convinced beyond a reasonable doubt by that evidence of the guilt of the accused.

Sexual interference cases often involve determining the 'sexual purpose' behind the accused's actions, emphasizing that the touching must be done for sexual gratification or aimed towards a sexual purpose. The Crown must prove that the touching had a sexual purpose, particularly when it involves a person under the age of 16, and detail the elements that must be proven for a sexual assault.

Trial courts have recently started the analysis on the third step because courts have recognized that the evidence of the accused cannot be analyzed in a vacuum. Courts of Appeal have consistently told lower courts that there is no actual requirement to recite the WD test and that trial judges can analyze the test in any order they wish.

“She said/he said” cases require an analysis of the credibility of each party who gives evidence and an analysis of the reliability of each party who gives evidence. Credibility is referred to as the witness’s ability to be honest and to give truthful testimony. Reliability is determined based on the witness’s ability to recall, observe, and recount the facts at issue. This is sometimes referred to as accuracy. This law and these interpretations of this legal test have concluded that a credible witness may still make an honest mistake and therefore may give unreliable evidence. However, in law, a discreditable witness cannot be said to give reliable evidence.

Sexual Interference Case: The Outcome

In this case, after a hard-fought and strategic battle, this trial judge found doubt based on the third step of the test after analyzing the complainant’s evidence and the correspondence that she sent which was ultimately admitted into evidence. Had the accused been found guilty, the potential legal outcomes could have ranged from a minimum sentence to a summary conviction, highlighting the severity of the offence and the legal consequences associated with sexual interference.

This case demonstrates skill and advocacy and how planning is critical in the court process. Sexual assault litigation requires admissibility hearings which occur in stages. This means if you have been charged with a sexual assault or a sexual offence and you have evidence (whether it is documentary or viva voce) a hearing has to be held and admissibility must be determined prior to trial. This unfortunately is viewed as “reverse disclosure” which means the complainant will likely become aware of the evidence being used in defence. However, there are still strategic ways to handle this reality. It’s important to tell your lawyer everything so that we can plan and advance the best possible defence against accusations of sexual violence, including sexual interference. Charges within the broader spectrum of sexual assault cases emphasize the protection of persons under the age of sexual exploitation. A conviction could lead to long-term consequences, such as registration on the sex offender registry, underscoring the importance of a robust defence strategy.

If you have been charged with a sexual offence, contact a serious lawyer who defends these serious accusations every single day.