Invitation to Sexual Touching (Offence)

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Invitation to Sexual Touching
s. 152 of the Crim. Code
Election / Plea
Crown Election Hybrid
summary proceedings must initiate within 6 months of the offence (786(2))
Jurisdiction Prov. Court

Sup. Court w/ Jury (*)
Sup. Court w/ Judge-alone (*)

* Must be indictable. Preliminary inquiry also available.
Types of Release Release by Officer, Officer-in-charge, or Judge
Summary Dispositions
Avail. Disp. Discharge (730)

Suspended Sentence (731(1)(a))
Fine (734)
Fine + Probation (731(1)(b))
Jail (718.3, 787)
Jail + Probation (731(1)(b))
Jail + Fine (734)

Conditional Sentence (742.1)
Minimum 90 days incarceration
Maximum 2 years less a day incarceration
Indictable Dispositions
Avail. Disp. same as summary
Minimum 1 year incarceration
Maximum 14 years incarceration
Reference
Offence Elements
Sentence Digests

Overview

Offences relating to invitation to sexual touching are found in Part V of the Criminal Code relating to "Sexual Offences, Public Morals and Disorderly Conduct".

Pleadings

Offence
Section
Offence
Type
Crown Election Defence Election
s. 536(2)
s. 152 [invitation to sexual touching] Hybrid Offence(s) Yes Yes, if Crown proceeds by Indictment

Offences under s. 152 are hybrid with a Crown election. If prosecuted by indictment, there is a Defence election of Court under s. 536(2).

Section 727 notice prior to plea is required if Crown is relying upon increased duration on a subsequent s. 109 weapons prohibition order.

Release

Offence(s) Attendance Notice
Without Arrest

s. 496
Summons
Without Arrest
s. 497
Release By
Arresting Officer
On Attendance Notice
s. 497
Release By
Officer-in-Charge
On a Promise to Appear
Undertaking or Recognizance
s. 498
Release By
a Judge or Justice
on a PTA, Undertaking or Recog.

s. 515
Direct to Attend
for Fingerprints, etc.
Identification of Criminals Act

s. 2 ID Crim. Act
s. 152 OK Symbol.png OK Symbol.png OK Symbol.png OK Symbol.png OK Symbol.png OK Symbol.png

When charged under s. 152, the accused can be given an attendance notice without arrest under s. 496 or a summons. If arrested, he can be released by the arresting officer under s. 497 on a attendance notice or by an officer-in-charge under s. 498 on a promise to appear or recognizance. He can also be released by a justice under s. 515.

If police decide to bring the accused before a Justice pursuant to s. 503, there will be a presumption against bail (i.e. a reverse onus) if the offence, prosecuted by indictment, was committed:

  • while at large under s. 515 [bail release], 679 or 680 [release pending appeal or review of appeal] (s. 515(6)(a)(i));
  • "for the benefit of, at the direction of, or in association" with a criminal organization (s. 515(6)(a)(ii));
  • where the offence involved a firearm, cross-bow, prohibited weapon restricted weapon, prohibited device, ammunition, prohibited ammunition or explosive substance, while the accused was subject to a prohibition order preventing possession of these items (s. 515(6)(a)(viii)); or
  • where the accused is not "ordinarily a resident in Canada" (s. 515(6)(b)).

A peace officer who charges a person under s. 152 of the Code can require that person to attend for the taking of fingerprints, photographs or other similar recordings that are used to identify them under the Identification of Criminals Act.

Publication Bans
For all offences there is a discretionary general publication ban available on application of the Crown, victim or witness to prohibit the publishing of "any information that could identify the victim or witness" under s. 486.5(1) where it is "necessary" for the "proper administration of justice". Other available publication bans include prohibitions for publishing evidence or other information arising from a bail hearing (s. 517), preliminary inquiry (s. 539) or jury trial (s. 648). There is a mandatory publication ban in all youth prosecutions on information tending to identify young accused under s. 110 of the YCJA or young victims under s. 111 of the YCJA.

Section s. 152 offences permit a judge to order a discretionary publication ban for sexual offences under s. 486.4 that protects "information that could identify the victim or a witness". Where the witness is under the age of 18 or if in relation to a victim, the order is mandatory under s. 486.4(2).

Offence Designations
Section s. 152 offences are "primary designated offences" under s. 752 for the purpose of a Dangerous Offender Order. The offender will be deemed a "substantial risk" for the purpose of a Long-Term Offender Order under s. 753.1.

See below in Ancillary Sentencing Orders for details on designations relating to sentencing orders.

Offence Wording

Invitation to sexual touching
152 Every person who, for a sexual purpose, invites, counsels or incites a person under the age of 16 years to touch, directly or indirectly, with a part of the body or with an object, the body of any person, including the body of the person who so invites, counsels or incites and the body of the person under the age of 16 years,

(a) is guilty of an indictable offence and is liable to imprisonment for a term of not more than 14 years and to a minimum punishment of imprisonment for a term of one year; or
(b) is guilty of an offence punishable on summary conviction and is liable to imprisonment for a term of not more than two years less a day and to a minimum punishment of imprisonment for a term of 90 days.

R.S., 1985, c. C-46, s. 152; R.S., 1985, c. 19 (3rd Supp.), s. 1; 2005, c. 32, s. 3; 2008, c. 6, s. 54; 2012, c. 1, s. 12; 2015, c. 23, s. 3.


CCC

Proof of the Offence

Proving invitation to sexual touching under s. 152 should include:[1]

  1. identity of accused as culprit
  2. date and time of incident
  3. jurisdiction (incl. region and province)
  4. the culprit communicated with a person
  5. that person was under 16 years of age at the time of communication
  6. knew that the child was under the age of 16
  7. the communication was in a manner constituting an invitation, incitement or counselling[2] to touch any part of the accused's body, the complainant's body, or object
  8. the communication was for a "sexual purpose"
  9. the culprit knew that the communication would be received as an an invitation, incitement or counselling to do the physical conduct of the offence, or knew that there was a "substantial and unjustified risk" that the child would receive that communication as being an invitation, incitement or counselling to do that physical conduct. [3]
  1. R v D.L.W., 2013 BCSC 1327 (CanLII) at para 235
  2. R v Legare, 2008 ABCA 138 (CanLII), [2008] A.J. No. 373 at paras 33 and 37
  3. R v Legare at para 41


Interpretation of the Offence

The offence of invitation to sexual touching is an offence of communication, not assault.[1]

Section 152 should be interpreted "purposively in a manner consistent with the philosophy and rationale underlying Parliament's objectives."[2]

The accused is guilty of the offence by giving a child a tissue containing his ejaculate.[3]

If an accused suggests to a child to touch herself for a sexual purpose, the offence would be made out.[4]

The offence includes "inviting, counseling or inciting of the young person to have sexual contact with either the accused or a third person."[5]

The offence is still made out if the victim is the only person touching.[6]

  1. R v G.D.G., 2013 MBQB 244 (CanLII), at para 93
  2. R v Fong, 1994 ABCA 267 (CanLII), (1994), 92 CCC (3d) 171 (Alta. C.A.) at 172
  3. R v Fong
  4. R v Legare, 2008 ABCA 138 (CanLII), at para 66
  5. R v Sears, (1990), 58 CCC (3d) 62 (Man. C.A.)(*no link) at 64
  6. Sears at 5

"Inviting, Counseling or Inciting"

The actus reus requires "positive action" by the accused.[1]

The three means of committing the offence must "either singularly or cumulatively, communicate the request to have the child touch for a sexual purpose".[2]

The communication does not need to be explicit, it can be implied.[3]

Inviting
Invitation can work either way whereby the accused asks for permission to touch the victim in addition asking the victim to touch him.[4]

A request by the accused to touch the victims private parts is an invitation to touch for a sexual purpose.[5]

Actual physical touching or an invitation for physical touching is not necessary. Even an invitation to hold a tissue used by the accused can be sufficient.[6]


Counselling
"Counselling" is defined in s. 22.[7] The definition includes "incite".

Inciting
To "incite" it is sufficient for the accused to in some manner recommend or suggest that the acts take place.[8] Mere "passive acquiescence" is not sufficient.[9]

The phrase "inviting, counselling or inciting" is also found in the offence of Sexual Exploitation (Offence)

  1. R v DLW, 2013 BCSC 1327 (CanLII) at para 240
  2. R v Rhynes, 2004 PESCAD 15 (CanLII), at para 45
  3. R v Legare, 2008 ABCA 138 (CanLII), at para 35
  4. R v S.G., 2004 CanLII 33213 (ON CA)
  5. R v Gray, [2004] O.J. No. 4100 (C.A.)(*no link)
    R v Phippard, [2005] N.J. No. (P.C.)(*no link) at para 10
  6. R v Fong, 1994 ABCA 267 (CanLII), (1994), 92 CCC (3d) 171
  7. See Counselling
  8. R v D.L.W. at para 240
    R v Rhynes, 2004 PESCTD 30 (CanLII)
  9. R v Rhynes

Direct or Indirect Touching

The actus reus related to the act of "touch[ing], directly or indirectly, with a part of the body or with an object, the body of any person, including the body of the person who so invites, counsels or incites and the body of the person under the age of 16 years".

Indirect touching by the accused includes the ejaculation in a tissue held by the victim.[1]

The language is the same as that found in "sexual exploitation" under s. 153.

Any sort of direction of a child to touch themselves would usually amount to an offence under s. 152.[2] Asking a child to touch her toes while he took pictures of her private area will constitute the actus reus.[3]

  1. R v Fong, 1994 ABCA 267 (CanLII)
  2. R v Legare, 2008 ABCA 138 (CanLII) at para 66
  3. R v CMM, 2012 MBQB 141 (CanLII)

Mens Rea

Sexual touching is a specific intent offence.[1]

  1. see R v J.A.B. [2002] O.T.C. 723(*no link)

"Sexual Purpose"

See also: Sexual Interference (Offence)

The "sexual purpose" of an invitation is determined based on an objective standard in light of all the circumstances. In looking at whether the words used had a sexual purpose, the court "can look to the part of the body that was to be touched, the nature of the contact requested, the situation in which the invitation occurred, including the words used, together with any accompanying gestures and all other circumstances surrounding the conduct."[1]

  1. R v Pellerin, [2011] O.J. No. 1623 (C.J.)(*no link)
    R v Chase, 1987 CanLII 23 (SCC), [1987] 2 SCR 293

Evidence

As an enumerated offence under s. 274, 275, 276, 277, and 278.2 the following additional evidentiary rules apply:

  • Corroboration is not required for conviction and the judge cannot instruct on need for corroboration (s. 274);
  • common law rules relating to "recent complaint" do not apply for this offence (s. 275);
  • prior sexual history of the complainant "is not admissible to support an inference that...by reason of the sexual nature of that activity, the complainant...is more likely to have consented to the sexual activity that forms the subject-matter of the charge; or... is less worthy of belief." (s. 276);
  • any evidence of sexual activity other than the "activity that forms the subject-matter of the charge" must be admitted through a s. 276 application (s. 276);
  • any "evidence of sexual reputation, whether general or specific, is not admissible for the purpose of challenging or supporting the credibility of the complainant." (s. 277);
  • "no record relating to a complainant or a witness" shall be disclose to the accused except in accordance with a production application under s. 278.3 to 278.91 (s. 278.2).

Defences

Participation of Third Parties

See also: Role of the Victim and Third Parties and Testimonial Aids for Young, Disabled or Vulnerable Witnesses

Testimonial Aids
Certain persons who testify are entitled to make application for the use of testimonial aids: Exclusion of Public (s. 486), Use of a Testimonial Screen (s. 486), Access to Support Person While Testifying (s. 486.1), Close Proximity Video-link Testimony (s. 486.2), Self-Represented Cross-Examination Prohibition Order (s. 486.3), and Witness Security Order (s. 486.7).

A witness, victim or complainant may also request publication bans (s. 486.4, 486.5) and/or a Witness Identity Non-disclosure Order (s. 486.31). See also, Publication Bans, above.

On Finding of Guilt
For any indictable offence with a maximum penalty no less than 5 years (including offences under s. 152), but are not serious personal injury offences, s. 606(4.2) requires that after accepting a guilty plea the judge must inquire whether "any of the victims had advised the prosecutor of their desire to be informed if such an agreement were entered into, and, if so, whether reasonable steps were taken to inform that victim of the agreement". Failing to take reasonable steps at guilty plea requires the prosecutor to "as soon as feasible, take reasonable steps to inform the victim of the agreement and the acceptance of the plea" (s. 606(4.3)).

Under s. 738, a judge must inquire from the Crown before sentencing whether "reasonable steps have been taken to provide the victims with an opportunity to indicate whether they are seeking restitution for their losses and damages".

Under s. 722(2), the judge must inquire "[a]s soon as feasible" before sentencing with the Crown "if reasonable steps have been taken to provide the victim with an opportunity to prepare" a victim impact statement. This will include any person "who has suffered, or is alleged to have suffered, physical or emotional harm, property damage or economic loss" as a result of the offence. Individuals representing a community impacted by the crime may file a statement under s. 722.2.

Sentencing Principles and Ranges

See also: Purpose and Principles of Sentencing, Sentencing Factors Relating to the Offender, and Sentencing Factors Relating to the Offence
For general principles on sentence for sexual offences, see Sexual Offences

Maximum Penalties

Offence(s) Crown
Election
Maximum Penalty
s. 152 [invitation to sexual touching]
From July 17, 2015
Summary Election 2 years less a day custody
s. 152 [invitation to sexual touching]
From July 17, 2015
Indictable Election 14 years custody
s. 152 [invitation to sexual touching]
November 1, 2005 to July 16, 2015
Summary Election 18 months custody
s. 152 [invitation to sexual touching]
Up to July 16, 2015
Indictable Election 10 years custody
s. 152 [invitation to sexual touching]
Up to October 31, 2005
Summary Election six months jail and/or a $5,000 fine

Offences under s. 152 are hybrid. If prosecuted by indictment, the maximum penalty is 14 years incarceration. If prosecuted by summary conviction, the maximum penalty is 18 months jail.

Minimum Penalties

Offence(s) Crown
Election
Minimum Penalty
First Offence
Minimum Penalty
Subsequent Offence
s. 152 [invitation to sexual touching]
August 9, 2012 to July 17, 2015
Summary Election 90 days custody Same
s. 152 [invitation to sexual touching]
August 9, 2012 to July 17, 2015
Indictable Election 1 year custody Same
s. 152 [invitation to sexual touching]
November 1, 2005 to August 8, 2012
Summary Election 14 days custody Same
s. 152 [invitation to sexual touching]
November 1, 2005 to August 8, 2012
Indictable Election 45 days custody Same
s. 152 [invitation to sexual touching]
Until October 31, 2005
Any None Same

Offences under s. 152 have a mandatory minimum penalty of 1 year incarceration when prosecuted by indictment and 90 days jail when prosecuted by summary conviction.

Available Dispositions

Offence(s) Crown
Election
Discharge
s. 730
Suspended
Sentence

s. 731(1)(a)
Stand-alone
Fine

s. 731(1)(b)
Custody
s. 718.3, 787
Custody and
Probation
s. 731(1)(b)
Custody and
Fine
s. 734
Conditional
Sentence
(CSO)
s. 742.1
s. 152 any X Mark Symbol.png X Mark Symbol.png X Mark Symbol.png OK Symbol.png OK Symbol.png OK Symbol.png X Mark Symbol.png

Offences under s. 152 have mandatory minimums. There are no discharges, suspended sentences, stand-alone fines, or conditional sentences available.

Consecutive Sentences
There are no statutory requirements that the sentences be consecutive.

Principles

Section 718.01 requires sentencing judges to "give primary consideration to the objectives of denunciation and deterrence" when conduct "involved the abuse of a person under the age of eighteen years". Where the evidence shows that the offender, "in committing the offence, abused a person under the age of eighteen years, shall be deemed to be an aggravating circumstances" under s. 718.2(a)(ii.1). Where the offender is in a "position of trust or authority" in relation to the victim, it will also be aggravating under s. 718.2(a)(iii).

Factors
Section 718.2(a)(ii.1) requires that the judge treat as aggravating any "evidence that the offender, in committing the offence, abused a person under the age of eighteen years".

Ranges

see also: Invitation to Sexual Touching (Sentencing Cases)

Ancillary Sentencing Orders

See also: Ancillary Orders

Offence-specific Orders

Order Conviction Description
DNA Orders s. 152
SOIRA Orders s. 152
  • On conviction under s. 152, as listed under s. 490.011(a), a SOIRA Order is mandatory as "designated offence" under s. 490.011(1)(a) regardless of Crown election
      • If there is a concurrent or prior conviction for a designated offence, the duration is life (s. 490.012(3))
      • Otherwise, the duration is 10 years where the offence has been "prosecuted summarily or if the maximum term of imprisonment for the offence is two or five years" (s. 490.013(2)(a))) or 20 years where the offence has a "maximum term of imprisonment for the offence is 10 or 14 years" (s. 490.013(2)(b)).
      • There is an option for early termination under s. 490.015 available after 5 years (if 10 year order), 10 years (if 20 year order), or 20 year (if life order).

Note that by function of s. 490.011(2) of the Code, SOIRA orders are not available when sentencing under the Youth Criminal Justice Act

Section 161 Orders s. 152
  • If convicted under s. 152, the judge may make discretionary 161 Order.
Firearms Prohibition Orders s. 152
  • On conviction under s. 152 where "violence against a person was used, threatened or attempted", and punishable by "imprisonment for ten years or more", the weapons prohibition order is mandatory under s. 109(1)(a) or where "violence was used, threatened or attempted against" an enumerated party relating to a domestic partnership a weapons prohibition order is mandatory under s. 109(1)(a.1).The order prohibits "the person from possessing any firearm, cross-bow, prohibited weapon, restricted weapon, prohibited device, ammunition, prohibited ammunition and explosive".
      • Duration (first offence): The Order prohibiting to "firearms" (other than a prohibited firearm or restricted firearm) and "crossbow, restricted weapon, ammunition and explosive substance" is for not less than 10 years starting at release from custody or at sentencing where custody is not ordered. The Order prohibiting "prohibited firearm, restricted firearm, prohibited weapon, prohibited device" is for life.
      • Duration (subsequent s. 109 offence): The duration must be life for all enumerated weapons and firearms. Notice of increased penalty under s. 727 required.
  • Where there is a conviction under s. 152 for an offence not otherwise referred to in s. 109, where "violence against a person was used, threatened or attempted" or "involves, or the subject-matter of which is a firearm, a cross-bow, a prohibited weapon, a restricted weapon, a prohibited device, ammunition, prohibited ammunition or an explosive substance", a discretionary prohibition order of any of these items is permitted under s. 110 regardless of Crown election where "it is desirable, in the interests of the safety of the person or of any other person".
      • Duration: The Order is for no more than 10 years starting at release from custody or at sentencing where custody is not ordered. If there is a prior conviction for an offence eligible for a s. 109 Order, the duration must be life. If violence is "used, threatened or attempted against" their past or present intimate partner, a child or parent of the said partner, or a person who resides with the said partner or the offender, the duration can be up to life in duration.
      • If the judge declines to make an Order or not order all the possible terms, "the court shall include in the record a statement of the court's reasons for not doing so." (s. 110(3))
Delayed Parole Order s. 152
  • Periods of imprisonment of 2 years or more for convictions under s. 152 are eligible for delayed parole order under s. 743.6(1) requiring the offender to serve at least "one half of the sentence or ten years, whichever is less", "where denunciation of the offence or the objective of specific or general deterrence so requires".

General Sentencing Orders

Order Conviction Description
Non-communication order while offender in custody (s. 743.21) any The judge has discretion to order that the offender be prohibited "from communicating...with any victim, witness or other person" while in custody except where the judge "considers [it] necessary" to communicate with them.
Restitution Orders (s. 738) any A discretionary Order is available for things such as the replacement value of the property; the pecuniary damages incurred from harm, expenses fleeing a domestic partner; or certain expenses arising from the commission of an offence under s.402.2 or 403.
Victim Fine Surcharge (s. 737) any A mandatory surcharge under s. 737 of 30% of any fine order imposed, $100 per summary conviction or $200 per indictable conviction. If offence occurs on or after October 23, 2013, the order is discretionary based on ability to pay and the minimum amounts are smaller (15%, $50, or $100).

General Forfeiture Orders

Forfeiture Conviction Description
Forfeiture of Proceeds of Crime (s. 462.37(1) or (2.01)) any Where there is a finding of guilt for an indictable offence under the Code or the CDSA in which property is "proceeds of crime" and offence was "committed in relation to that property", the property shall be forfeited to Her Majesty the Queen on application of the Crown.
Fine in Lieu of Forfeiture (s. 462.37(3)) any Where a Court is satisfied an order for the forfeiture of proceeds of crime under s. 462.37(!) or (2.01) can be made, but that property cannot be "made subject to an order", then the Court "may" order a fine in "an amount equal to the value of the property". Failure to pay the fine will result in a default judgement imposing a period of incarceration.
Forfeiture of Weapons or Firearms (s. 491) any Where there is finding of guilt for an offence where a "weapon, an imitation firearm, a prohibited device, any ammunition, any prohibited ammunition or an explosive substance was used in the commission of [the] offence and that thing has been seized and detained", or "that a person has committed an offence that involves, or the subject-matter of which is, a firearm, a cross-bow, a prohibited weapon, a restricted weapon, a prohibited device, ammunition, prohibited ammunition or an explosive substance has been seized and detained, that the item be an enumerated weapon or related item be connected to the offence", then there will be a mandatory forfeiture order. However, under s. 491(2), if the lawful owner "was not a party to the offence" and the judge has "no reasonable grounds to believe that the thing would or might be used in the commission of an offence", then it should be returned to the lawful owner.
Forfeiture of Offence-related Property (s. 490.1) any Where there is a finding of guilt for an indictable offence, "any property is offence-related property" where (a) by means or in respect of which an indictable offence under this Act or the Corruption of Foreign Public Officials Act is committed, (b) that is used in any manner in connection with the commission of such an offence, or (c) that is intended to be used for committing such an offence". Such property is to be forfeited to Her Majesty in right of the province.

History

See also: List of Criminal Code Amendments