Invitation to Sexual Touching (s. 152) Laws in Canada

What is an Invitation to Sexual Touching charge?

Invitation to Sexual Touching is covered under s. 152 of the Criminal Code.

An invitation to sexual touching occurs when a person touches someone under the age of 16 years for a sexual purpose. Or, if that person has someone under the age of 16 touch them for a sexual purpose. Sexual touching can occur by directly touching a part of the body or touching a body part with an object.

The sexual purpose of an invitation is determined by an objective standard. This means that the court will evaluate the situation in which the invitation occurred, the part of the body touched, as well as the nature of the contact requested.

Crimes against young persons are treated very seriously in Canadian society, therefore, if you or a loved one face this type of charge, it is extremely important to have the help of a seasoned criminal defence lawyer.

Invitation to Sexual Touching is a hybrid offence with a Crown election. This means that depending on the circumstances of your case the Crown can elect to proceed by indictment or summarily.

Examples

Some examples of an Invitation to Sexual Touching charge may include the following: 

• Suggesting a child touch themselves for a sexual purpose;
• Having a child touch the accused or a third party for sexual purposes;
• Inviting, counselling or inciting a child to have sexual contact with the accused; and
• Handing a child a tissue containing ejaculate.

Defences

The defences available to an Invitation to Sexual Touching charge are entirely dependent on the facts of your case. There are strict laws surrounding crimes against young persons which limit the availability of a defence.

However, some defences to an invitation to sexual touching charge may include:

• The accused did not knowingly communicate for a sexual purpose with a child under 16 (there was a mistaken belief of age);
• The accused held no sexual purpose in their communications; and
• There was no intention or risk that the child would receive the communication as an invitation or counselling to have physical contact with the accused.

Punishment

An Invitation to Sexual Touching charge is a serious criminal offence, which entails a maximum punishment as follows:

• Imprisonment for a term not exceeding 14 years.

Invitation to sexual touching punishments depends on if the Crown elects to pursue the charge as an indictable offence or summarily. The minimum punishment for an indictable invitation to sexual touching charge is 1 year of incarceration. The maximum is no more than 14 years. For an invitation to a sexual touching charge pursued summarily, the minimum sentence is imprisonment for 90 days. The maximum sentence for a summary charge is imprisonment for no more than 2 years less a day.

Invitation to sexual touching charges can also entail severe consequences for current and future employment opportunities and immigration status.

Overview of the Offence 

According to s. 152 of the Criminal Code:

The Guilty Act (Actus Reus)

The actus reus for an invitation to sexual touching charge under s. 152 is established by proof, beyond a reasonable doubt, of the following:

• The accused directly or indirectly touches the body of a person under the age of 16;
• The accused invited, counselled, or invited the touching;
• The touching occurred with a part of the accused’s body or with an object; or
• The accused had a person under the age of 16 directly or indirectly touch the accused, a third party, or themselves.

R v Fong held that indirect touching by the accused includes having a child hold a tissue that contains ejaculate. Additionally, R v Legare maintained that any direction of a child to touch themselves would likely amount to the actus reus of an offence under s. 152.

R v SG stated that an invitation occurs when the accused asks for permission to touch the victim or if the accused asks the victim to touch the accused. Finally, counselling is defined in s. 22 of the Criminal Code and the definition includes “incite” in s. 22(3).

The Guilty Mind (Mens Rea)

The mens rea for an invitation to sexual touching charge under s. 152 includes proving, beyond a reasonable doubt, that:

• The accused had the specific intent of sexual touching;
• The accused knowingly communicated with a child under the age of 16 for a sexual purpose; and
• The accused intended that the child would receive the communication as being an invitation to counsel or incite the child to do or allow the sexual touching, or the accused knew there was a substantial and unjustified risk that the child would interpret the communication as an invitation to counsel or incite the child to do or allow the sexual touching.

The case of R v GDG held that the mental element must be present at the time the communication to the child was made. R v Pellerin stated that when looking at the “sexual purpose” of an invitation, the court “can look to the part of the body that was to be touching, 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.”

Invitation to Sexual Touching Defences

How to Beat an Invitation to Sexual Touching Charge

Every case is different. The availability and strength of any defence depend entirely on the specific facts of your case. The strength of any available defence rests on the evidence against you and the precise details of the allegations. However, the following are some common defences that may be used when fighting an invitation to sexual touching charge:

Factual innocence

A strong defence against an invitation to sexual touching charge is to maintain that you are factually innocent. If you can show that the facts and the evidence do not support that you touched a young person in a sexual way, you did not have the young person touch you for a sexual purpose, or other basic elements of the offence are not met, then the Crown will not be able to secure a conviction for an invitation to sexual touching charge.

Mistaken Belief of Age

For this to be a defence against an invitation to sexual touching charge, under section 150.1(4) of the Criminal Code, you must be able to show that you took all reasonable steps to ascertain the age of the complainant.

Complainant Aged 14 or 15

Under section 150.1(2.1) of the Criminal Code and the accused is charged with an invitation to sexual touching, if the complainant is 14 or 15 years of age their consenting to sexual touching may be a defence. This is only a defence if the accused is less than five years older than the complainant and is not in a position of trust or authority toward the complainant and is not in a relationship with the complainant that is exploitative.

Identity

Depending on the circumstances of your case, a possible defence to an invitation to sexual touching charge may be to raise an identity defence. For example, you may have been incorrectly identified as the perpetrator if the conduct in question was captured on a poor-quality video or wiretap. In this case, for this defence to be raised successfully, you will have to prove that you were not the person who was found to be inviting a young person to some form of sexual touching. This can be done by corroborating evidence, such as an alibi, to remove yourself from the offence.

Any applicable Charter defences 

The Charter sets out your rights and freedoms before and after your arrest. If the police fail to abide by these rights deliberately or inadvertently, it could aid in your defence. If any of your Charter rights have been violated before or after your arrest, you may be able to have some or all of the evidence that the Crown is relying on to secure a conviction excluded under s. 24(2) of the Charter.

Invitation to Sexual Touching Punishments

The Criminal Code provides for a possible maximum term of imprisonment of 14 years for those convicted of an invitation to sexual touching charge if prosecuted by indictment. If prosecuted by summary conviction, the maximum penalty is 18 months of incarceration.

Consequently, persons found guilty of an invitation to sexual touching charge are not eligible for sentencing entailing a discharge, suspended sentence, stand-alone fine, or conditional sentence order. An invitation to sexual touching charge carries a mandatory minimum incarceration sentence and will always result in a person charged being incarcerated.

Beyond any immediate jail and/or probation sentence you receive, you can also expect to receive additional penalties, including:

• An order that you give a DNA sample to the national DNA databank;
• A prohibition against owning any weapons;
• A prohibition against going near any pool, schoolyard, public park, or any other location where people under 18 years of age may be found;
• Registry with the National Sex Offender Registry in accordance with the National Sex Offender Information Registry Act (SOIRA).

As a registered sex offender, you will have to provide the police with personal information including:

• Where you live;
• What car you drive; and
• What you do for work

Frequently Asked Questions

What is an invitation to sexual touching charge?

An invitation to sexual touching occurs when a person touches someone under the age of 16 years for a sexual purpose. Or, if that person has someone under the age of 16 touch them for a sexual purpose. Sexual touching can occur by directly touching a part of the body or touching a body part with an object.

Can you go to jail for a sexual touching charge?

Yes. If you are found guilty of an invitation to sexual touching charge, it is expected that the Crown will ask for jail time in line with the sentencing range provided in the Criminal Code. This includes a minimum 90-day incarceration period if the Crown proceeds summarily, and a 1-year period if by indictment.

What is sexual interference?

Sexual interference is an offence that is committed when a person indirectly or directly touches any part of the body of a person younger than 16 years for a sexual purpose. This is captured under section 151 of the Criminal Code.

Published Decisions

R v R.V., 2021 SCC 10 (CanLII)

The accused was charged with sexual interference and invitation to sexual touching after being convicted by a jury. The jury also acquitted the accused of sexual assault. The Court of Appeal held that the convictions for sexual interference and invitation to sexual touching were unreasonable and the convictions were quashed. The SCC found that the convictions were not unreasonable and restored the accused’s convictions of sexual interference and invitation to sexual touching.

You can read the full decision here.

R v R.N.S., 2000 SCC 7 (CanLII)

The accused was convicted of sexual assault and invitation to sexual touching in relation to incidents with his step-granddaughter. The offences were committed between 1990 and 1994 when the victim was between ages 5 and 8. The Court of Appeal allowed for a conditional sentence and the Crown appealed that sentence. The SCC allowed the appeal as the conditional sentence given by the court of appeal was held not to be a fit sentence.

You can read the full decision here.

R v C.J., 2019 SCC 8 (CanLII)

The accused was convicted at trial of one count of invitation to sexual touching. The court of appeal set aside that conviction and ordered a new trial. The SCC held that the trial judge did not err and restored the accused’s convictions.

You can read the full decision here.