Most Canadians know that children are off-limits when it comes to engaging in sexual activities. An adult who engages in any type of sexual activity with anyone under age 16 risks criminal charges even if the activity was consensual . With limited age-related exceptions, police can charge adults who engage in consensual sexual activities with a minor with sexual interference . However, when it comes to sex and children, even words can have consequences, as it is illegal for an adult to invite, counsel, or incite an underage person to touch another person for a sexual purpose.
The Criminal Code’s “invitation to sexual touching” offence is far less often investigated by police and prosecuted by the courts than sexual interference. Ontario Police investigated almost 2,000 incidents of sexual interference in 2022, according to the latest Statistics Canada data , compared to only 214 invitation to sexual touching incidents in the same period. These investigations led police to charge almost 1,200 persons for sexual interference and 111 for invitation to sexual touching.
While the criminal invitation to sexual touching charge can be based on mere words, the Greater Toronto Area sexual assault defence lawyers of Mass Tsang warn clients that the offence carries severe penalties with a conviction. Given the severity of punishment and the fact that verbal communication can be misunderstood, let’s take a closer look at the offence.
Section 152 of the Criminal Code defines Invitation to Sexual Touching as:
“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 another person, including the body of the person who so invites, counsels or incites and the body of the person under the age of 16.”
Note that the offence focuses on the invitation, counselling, or inciting rather than the actual touching. Even if no physical contact occurs, the mere act of inviting, counselling, or inciting a person under 16 to engage in sexual touching constitutes the offence.
As with many other sex-related criminal offences, a conviction results in mandatory minimum punishment. When charged as an indictable offence, the minimum sentence is one year imprisonment, while a summary conviction carries a mandatory minimum 90-day jail term. The maximum penalties are 14 years imprisonment by indictment or two years as a summary conviction.
The punishment for invitation to sexual touching goes far beyond imprisonment, with life-disrupting conditions that can last for years. Judges can order those convicted to mandatory registration with the National Sex Offender Registry (NSOR) and subject them to Criminal Code Section 161 conditions.
NSOR registrants must provide law enforcement agencies with up-to-date personal information that allows police to keep track of their whereabouts and investigate their potential role in other sex crimes. Registrants must provide police with:
Offenders must update these details with any changes and report any travel plans away from home that will exceed a week’s duration. Non-compliance penalties include fines of up to $25,000 and prison sentences of up to two years.
Section 161 conditions include:
To convict a person on invitation to touching charges, the Crown must prove — beyond a reasonable doubt threshold — that the defendant invited, counselled, or incited the underage victim to engage in sexual touching and that the act was intentionally committed for a sexual purpose.
The beyond-a-reasonable doubt threshold to gain a conviction can serve as the crux of a defendant’s defence during trial. Skilled criminal defence lawyers are adept at raising doubts about the Crown’s evidence and challenging the veracity of the narrative describing how the offence ensued. Doubts can be raised about what was said between the defendant and the alleged victim, the alleged intentions of the accused, and whether the invited touching was truly of a sexual nature. Any flaws in the evidence or inconsistencies in the narrative raise doubts that help weaken the Crown’s case and reduce the likelihood of conviction.
Other defence strategies used to avoid conviction include:
Proving factual innocence — this strategy can be used if the defendant has any evidence that can prove that the invitation to sexual touching did not happen or that the invitation was not made for a sexual purpose.
Mistaken Belief of Age — this defence may be used if the defendant can prove that they took “all reasonable steps” to determine the victim’s age.
Mistaken Identity — mistakes happen, and people are sometimes accused of things they never did. If there is any evidence suggesting that the defendant wasn’t responsible for the invitation to sexual touching, a defence lawyer will use it.
Applicable Charter Rights Violations — if police violated any Charter Rights before, during or after the arrest, the defence can move to have related evidence excluded from the trial.
Given the severe penalties that come with a conviction for invitation to sexual touching and related sexual crimes, anyone facing such charges should always consult with experienced sexual assault criminal defence lawyers. Mass Tsang lawyers have successfully defended hundreds of Greater Toronto Area clients against sexual offence charges. If Ontario police have charged you or someone you know with criminal sexual offences, contact the expert lawyers at Mass Tsang today for a free consultation.
