Canadian Criminal Law/Offences/Invitation to Sexual Touching
| Invitation to Sexual Touching | |
|---|---|
| s. 152 of the Crim. Code | |
| Election / Plea | |
| Crown Election | Hybrid |
| Jurisdiction | Prov. Court SC Judge + PI (I) SC Jury + PI (I) (536(2)) |
| Summary Dispositions | |
| Minimum | 90 days jail |
| Maximum | 18 months jail or $5,000 fine |
| Indictable Dispositions | |
| Avail. Disp. | same as summary |
| Minimum | 1 year jail |
| Maximum | 10 years jail |
| References | |
| Offence Elements Sentence Principles Sentence Digests | |
| Comments | |
| DNA Primary designated offence DO/LTO primary designated offence | |
Legislation
[edit | edit source]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
[edit | edit source]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[1] 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. [2]
- ↑ R. v. Legare, 2008 ABCA 138, [2008] A.J. No. 373 at 33 and 37
- ↑ R v Legare 2008 ABCA 138 at 41
Interpretation
[edit | edit source]Actus Reus
[edit | edit source]A request by the accused to touch the victims private parts is an invitation to touch for a sexual purpose.[1]
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.[2]
Mens Rea
[edit | edit source]Sexual touching is a specific intent offence.[1]
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."[2]
Typical Motions or Orders
[edit | edit source]Witness motions
[edit | edit source]- 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
[edit | edit source]- R v CMM, 2012 MBQB 141 - offender convicted for asking child to touch her toes while he took pictures of her private area
History
[edit | edit source]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.