Canadian Criminal Law/Offences/Invitation to Sexual Touching

Legislation 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 10 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 18 months 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. CCC Proof of Offence The Crown should prove: identity of accused date and time of incident jurisdiction (incl. region and province) the accused communicated with a person that person was under 14 years of age at the time of communication knew that the child was under the age of 14 the communication was in a manner constituting an invitation, incitement or counselling R. v. Legare, 2008 ABCA 138, [2008] A.J. No. 373 at 33 and 37 to touch any part of the accused's body, the complainant's body, or object the communication was for a sexual purpose the accused 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. R v Legare 2008 ABCA 138 at 41 2 Interpretation Actus Reus A request by the accused to touch the victims private parts is an invitation to touch for a sexual purpose.R. v. Gray, [2004] O.J. No. 4100 (C.A.) R. v. Phippard, [2005] N.J. No. (P.C.), at para 10 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.R. v. Fong 1994 ABCA 267, (1994), 92 C.C.C. (3d) 171 2 Mens Rea Sexual touching is a specific intent offence.see R. v. J.A.B. [2002] O.T.C. 723 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."R. v. Pellerin, [2011] O.J. No. 1623 (C.J.) R. v. Chase, 1987 CanLII 23 (SCC), [1987] 2 S.C.R. 293 2 Typical Motions or Orders Witness motions Exclusion of public from court (486) Prohibition of self-represented accused from Cross-examining a witness under the age of 18 years (486.3) Sexual Offence Publication Ban (486.4) Publication Ban of in relation to victims, witnesses or justice system participants (486.5) Witness Screen (486.2) Testimony by Video (714.1) Case Digests R v CMM, 2012 MBQB 141 - offender convicted for asking child to touch her toes while he took pictures of her private area History On August 9, 2012, this section was amended to increase the minimum penalties from 14 days for summary and 45 days indictable to 90 days and 1 year, respectively. Invitation to Sexual Touching