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 12 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.
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)	Preliminary Inquiry
s. 152 [invitation to sexual touching]	Hybrid Offence(s)		(* only if Crown proceeds by Indictment)	(14 years max)

Offences under s. 152 [invitation to sexual touching] are hybrid with a Crown election. If prosecuted by indictment, there is a Defence election of Court under s. 536(2) to trial to trial in provincial court, superior court with a judge-alone (with or without a preliminary inquiry) or superior court with judge-and-jury (with or without a preliminary inquiry).

Before the Crown can rely on provisions increasing the duration of the weapons prohibition order due to a prior weapons prohibition order notice under s. 727 must be given prior to plea.

Release

Offence(s)	Appearance Notice by Peace Officer s. 497	Summons by Judge or Justice s. 508(1), 512(1), or 788	Release by Peace Officer on Undertaking s. 498, 499, and 501	Release By a Judge or Justice on a Release Order s. 515 to 519	Direct to Attend for Fingerprints, etc. Identification of Criminals Act s. 2 ID Crim. Act
s. 152 [invitation to sexual touching]

When charged under s. 152 [invitation to sexual touching] , the accused can be given an appearance notice without arrest under s. 497 or a summons. If arrested, he can be released by the arresting officer under s. 498 or 499 on an undertaking with or without conditions. He can also be released by a justice under s. 515.

Reverse Onus Bail

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 weapon, being 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)).

And, regardless of Crown election, if the offence alleged was one:

• where the offence was an allegation of violence against an "intimate partner" and the accused had been previously convicted of an offence of violence against an "intimate partner" (s. 515(6)(b.1));
• where the offence alleged is a breach under s. 145(2) to (5) while (s. 515(6)(c));
• where the offence committed (or conspired to commit) was an offence under s. 5 to 7 of the CDSA that is punishable by life imprisonment (s. 515(6)(d));

Fingerprints and Photos

A peace officer who charges a person under s. 152 [invitation to sexual touching] 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 criminal or regulatory prosecutions, 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 [invitation to sexual touching] 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

Offence(s)	Wiretap Eligible s. 183	Dangerous Offender Designated Offence s. 752	Serious Personal Injury Offence s. 752	AG Consent Required	Serious Criminality Offence s. 36 IRPA
s. 152 [invitation to sexual touching]		(primary)	/ (varies on facts) (by indictment only)		(14 years max)

Section s. 152 [invitation to sexual touching] offences are "primary designated offences" under s. 752 for a Dangerous Offender Order. The offender will be deemed a "substantial risk" for 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

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Draft Form of Charges

		Pre-ambles
		"THAT [accused full name] stands charged that, between the <DATE> day of <MONTH>, <YEAR> and <DATE> day of <MONTH>, <YEAR>***, at or near <COMMUNITY/TOWN/CITY>, <PROVINCE>, he [or she]..." OR
		"THAT [accused full name] stands charged that, on or about the <DATE> day of <MONTH>, <YEAR>, at or near <COMMUNITY/TOWN/CITY>, <PROVINCE>, he [or she]..." OR
		"AND FURTHER at the same time and place aforesaid, he [or she]..."
Code Section	Subject of Offence	Draft Wording
152	invitation to sexual touching	"..., contrary to section 152 of the Criminal Code."

Proof of the Offence

Proving invitation to sexual touching under s. 152 should include: ☐ identity of accused as culprit ☐ date and time of the incident ☐ jurisdiction (incl. region and province) ☐ the culprit communicated with a person ☐ that person was under 16 years of age at the time of communication ☐ knew that the child was under the age of 16 ☐ the communication was in a manner constituting an invitation, incitement or counselling to touch any part of the accused's body, the complainant's body, or object ☐ the communication was for a "sexual purpose" ☐ the culprit knew that the communication would be received as 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.

Interpretation of the Offence

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

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

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

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

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

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

"Inviting, Counseling or Inciting"

The actus reus requires "positive action" by the accused.

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

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

Inviting

An invitation can work either way whereby the accused asks for permission to touch the victim, in addition, asking the victim to touch him.

A request by the accused to touch the victim's private parts is an invitation to touch for a sexual purpose.

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.

Counselling

"Counselling" is defined in s. 22. 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. Mere "passive acquiescence" is not sufficient.

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

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.

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. Asking a child to touch her toes while he took pictures of her private area will constitute the actus reus.

Mens Rea

Sexual touching is a specific intent offence.

Proof of the mens rea for the offence requires:

1. the accused knowingly communicated for a sexual purpose with a child under 16
2. there was an intention that the child would receive the communication as being an invitation or counselling to do the physical conduct or the accused knew there was a substantial and unjustified risk that the child would receive that communication as being an invitation or counselling to do that physical conduct

The mental element must be present at the time the communication is made.

"Sexual Purpose"

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."

Evidence

Modification of Rules of Evidence

For offences under this section (s. 152):

• corroboration is not required for conviction and the judge cannot instruct on need for corroboration: see Corroboration under s. 274.
• common law rules relating to "recent complaint" do not apply: see Credibility under s. 275.

Limitations on Admissibility of Evidence

For offences under this section (s. 152):

• 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.": see Evidence of complainant’s sexual activity under 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.": See reputation evidence under s. 277.

Holdback of Disclosure

For offences under this section (s. 152 [invitation to sexual touching] ), s. 278.2 prevents the Crown from disclosing any records attracting a "reasonable expectation of privacy" that relate "to a complainant or a witness" unless applied for through the process described in s. 278.3 to 278.91: see Production of Records for Sexual Offences. Should the privacy-holder agree to waive their privacy rights, the protected materials may be disclosed.

Defences

• Mistaken Belief of Age

Participation of Third Parties

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

Offence(s)	Victim Notice of Agreement s. 606(4.1) [SPIO]	Victim Queried for Interest in Agreement s. 606(4.2) [5+ years]	Victim Notice for Restitution s. 737.1	Victim Notice of Impact Statement s. 722(2)
s. 152 [invitation to sexual touching]

For any indictable offence with a maximum penalty no less than 5 years (including offences under s. 152 [invitation to sexual touching] ), 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

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 incarceration
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 incarceration
s. 152 [invitation to sexual touching] Up to October 31, 2005	summary election	2 years less a day jail and/or a $5,000 fine (from Sept 19, 2019)

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 incarceration.

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 [invitation to sexual touching] 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 [invitation to sexual touching]	any

Offences under s. 152 [invitation to sexual touching] have mandatory minimums. There are no discharges, suspended sentences, stand-alone fines, or conditional sentences available.

Consecutive Sentences

Under s. 718.3(7), where the judge sentences an accused at the same time for "more than one sexual offence committed against a child", a sentence must be consecutive where:

• one of the sexual offences against that child is an offence relating to child pornography under s. 163.1. (see s. 718.3(7)(a)); or
• each of the sexual offences against a child, other than a child pornography offence, related to a different child. (see s. 718.3(7)(a))

[note: this only applies for offences occurring after enactment of Tougher Penalties for Child Predators Act on July 16, 2015]

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

Offence-specific Orders

Order	Conviction	Description
DNA Orders	s. 152 [invitation to sexual touching]	For convictions under s. 152 [invitation to sexual touching] , as listed under s. 487.04(a), a DNA Order is mandatory as a primary designated offence under s. 487.051(1) regardless of Crown election.
SOIRA Orders	s. 152 [invitation to sexual touching]	On conviction under s. 152, a "primary offence" listed as under s. 490.011(1)(a), a SOIRA Order is presumed mandatory unless "there would be no connection between making the order and the purpose of helping police services prevent or investigate crimes of a sexual nature by requiring [registration]" or "the impact of the order on the person, including on their privacy or liberty, would be grossly disproportionate to the public interest in protecting society through the effective prevention or investigation of crimes of a sexual nature, to be achieved by [registration]". If the offender was previously convicted of a "primary offence" the duration is life (s. 490.012(2)) 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 [invitation to sexual touching]	If convicted under s. 152, the judge may make discretionary 161 Order.
Firearms Prohibition Orders	s. 152 [invitation to sexual touching]	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 [invitation to sexual touching]	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 the 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 discretionary surcharge under s. 737 of 30% of any fine order imposed, $100 per summary conviction or $200 per indictable conviction. If the offence occurs on or after October 23, 2013, the order has smaller minimum amounts (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 His Majesty the King on application of the Crown. NB: does not apply to summary offences.
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(1) 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. NB: does not apply to summary offences.

Record Suspensions and Pardons

Convictions under s. 152 [invitation to sexual touching] are ineligible for record suspensions pursuant to s. 4 of the Criminal Records Act. An exception can be made under s. 4(3) for those offences where there was no relationship of “trust”, “authority” or “dependency”; no violence, threats or coercion; and age difference between victim and offender is less than 5 years.

History

• History of Invitation to Sexual Touching (Offence)