The lawyers at Stern Shapray have extensive experience representing clients charged with Invitation to Sexual Touching and reaching favourable outcomes for them. It is vital that one charged with this offence seeks out the legal advice of an experienced criminal lawyer in order to put forth the best possible defence(s) before the Court or pursue alternate ways to resolve the matter without going to trial.

When assessing whether to hire a lawyer when charged, it is important to first be aware of the legal consequences in the event one is found guilty of Invitation to Sexual Touching. The sentence one receives will depend on whether the charge was prosecuted summarily or by indictment.

For sentencing under summary proceedings, the accused will be subjected to a minimum jail sentence of 90 days, with the maximum being 2 years less a day. For sentencing under proceedings by indictment, the accused will be subjected to a minimum jail sentence of 1 year, with the maximum being 14 years. Under both types of proceedings, the jail sentence may be accompanied by a fine and/or probation order.

For an accused to be found guilty of Invitation to Sexual Touching, the Court must be satisfied beyond a reasonable doubt that each of the following requirements has been met:

1. The accused invited, counselled, or incited the complainant to directly or indirectly touch the body of the accused or another person
2. The accused did so intentionally and for a sexual purpose; and
3. The complainant was under the age of 16 years at the time of the alleged communication to touch.

There are various ways in which charges of Invitation to Sexual Touching can be defended. This is ideally accomplished by raising a reasonable doubt toward one or more required elements of the offence, such as

• identity of the accused,
• whether or not the accused actually communicated (i.e., invited, counselled, or incited) to the complainant to touch the body of any person,
• whether or not the alleged communication was for a sexual purpose,
• the complainant consented to the touching (only if certain exceptions apply – please refer below),
• the accused honestly believed that the complainant was 16 years old or over at the time of the alleged communication (only if certain exceptions apply – please refer below), and
• the truthfulness of the complainant’s allegations.

Consent as a Defence

Generally, it is not a defence that the complainant consented to the touching, UNLESS:

1. the accused is less than 2 years older than the complainant and the complainant was 12 or 13 at the time of the alleged communication, or, the accused is less than 5 years older than the complainant and the complainant was 14 or 15 at the time of the alleged communication, and
2. the accused is not in a position of trust or authority with the complainant, is not a person on whom the complainant is dependent, and is not in an exploitative relationship with the complainant.

In the case where the complainant was 14 or 15 at the time of the alleged communication and the accused is 5 years or more older than complainant, the defence of consent applies only if:

1. the accused and the complainant are in a common-law relationship, or in a relationship of cohabitation for less than a year but have or are expecting a child due to the cohabitation, and
2. the accused is not in a position of trust or authority with the complainant, is not a person on whom the complainant is dependent, and is not in an exploitative relationship with the complainant.

Mistaken Belief in the Complainant’s Age as a Defence

Generally, it is not a defence that the accused believed the complainant to be 16 years old or over at the time of the alleged communication to touch, UNLESS the accused had taken all reasonable steps to verify the complainant’s age at that time.

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For reference, the offence of Invitation to Sexual Touching and the applicable defences are outlined in the Criminal Code as follows:

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.

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Consent no defence

150.1 (1) Subject to subsections (2) to (2.2), when an accused is charged with an offence under section…152……....it is not a defence that the complainant consented to the activity that forms the subject-matter of the charge.

Exception — complainant aged 12 or 13

(2) When an accused is charged with an offence under section…152…….it is a defence that the complainant consented to the activity that forms the subject-matter of the charge if the accused

(a) is less than two years older than the complainant; and

(b) is not in a position of trust or authority towards the complainant, is not a person with whom the complainant is in a relationship of dependency and is not in a relationship with the complainant that is exploitative of the complainant.

Exception — complainant aged 14 or 15

(2.1) If an accused is charged with an offence under section…152……….it is a defence that the complainant consented to the activity that forms the subject-matter of the charge if the accused

(a) is less than five years older than the complainant; and

(b) is not in a position of trust or authority towards the complainant, is not a person with whom the complainant is in a relationship of dependency and is not in a relationship with the complainant that is exploitative of the complainant.

Exception for transitional purposes

(2.2) When the accused referred to in subsection (2.1) is five or more years older than the complainant, it is a defence that the complainant consented to the activity that forms the subject-matter of the charge if, on the day on which this subsection comes into force,

(a) the accused is the common-law partner of the complainant, or has been cohabiting with the complainant in a conjugal relationship for a period of less than one year and they have had or are expecting to have a child as a result of the relationship; and

(b) the accused is not in a position of trust or authority towards the complainant, is not a person with whom the complainant is in a relationship of dependency and is not in a relationship with the complainant that is exploitative of the complainant.

Exception for transitional purposes

(2.3) If, immediately before the day on which this subsection comes into force, the accused referred to in subsection (2.1) is married to the complainant, it is a defence that the complainant consented to the activity that forms the subject-matter of the charge.

Exemption for accused aged twelve or thirteen

(3) No person aged twelve or thirteen years shall be tried for an offence under section…152…..unless the person is in a position of trust or authority towards the complainant, is a person with whom the complainant is in a relationship of dependency or is in a relationship with the complainant that is exploitative of the complainant.

Mistake of age

(4) It is not a defence to a charge under section….152…….that the accused believed that the complainant was 16 years of age or more at the time the offence is alleged to have been committed unless the accused took all reasonable steps to ascertain the age of the complainant.

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Mistake of age

(6) An accused cannot raise a mistaken belief in the age of the complainant in order to invoke a defence under subsection (2) or (2.1) unless the accused took all reasonable steps to ascertain the age of the complainant.

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