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Defend invitation to sexual touching

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Frequently Asked Questions

Invitation to sexual touching is a crime that typically involves an older individual, often in a position of power, inciting or encouraging a minor to perform an act of a sexual nature. The sexual action in question could be performed on the accused, the complainant themselves, or on a third party. This crime carries serious penalties given the repugnance in which Canadian law views crimes involving the exploitation of children. As such, it is crucial to find an experienced and skilled attorney so that you are not subject to the harsh penalties that may ensue.

What is Invitation to Sexual Touching?

Invitation to Sexual Touching is an offence that is set out in section 152 of the Canadian Criminal Code. This crime typically involves an adult encouraging, inviting, counselling, or inciting children under the age of 16 to make contact with another person’s body (or their own body) for sexual gain. This is a serious offence that often demands a skilled lawyer. Note that this touching can be direct or indirect in nature.

How does the Crown Prove Invitation to Sexual Touching? 

To establish that the crime of invitation to sexual touching has occurred, the Crown has to prove two key elements: first, that the touching was intentional; and second, that the touching was done with a sexual purpose. Intentionality is highly important, because it distinguishes accidental contact from deliberate actions.

In Canadian criminal law, it is important to establish a mental intent, also referred to as a mens rea, to find a defendant guilty of a certain crime. The sexual nature of the touch is determined by examining the context in which the touch occurred, including the specific parts of the body that were involved. In general, contact with areas of the body commonly recognized as private or sexual in nature is a significant indicator.

Additionally, the Court will consider any accompanying communications or behaviours that might clarify the intent of the touching. For example, verbal recommendations, evidence of any grooming behaviours, or explicit messages may be used as evidence that the touch was sexual. The overall circumstances, including the relationship between the involved parties and the setting in which the contact occurred, also play essential roles in interpreting the nature of the touch. The prosecution needs to piece together these various elements to present a clear and convincing argument that the accused engaged in an act of invitation to sexual touching.

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Consent and Invitation to Sexual Touching

The defence of “consent” cannot be used for the crime of invitation to sexual touching. There are exceptions, however. In cases where the accused can demonstrate that they had a mistaken belief in the complainant’s age and took all reasonable steps to determine the complainant’s age, consent might be a valid defence. For example, asking the complainant for identification would be a reasonable step. The rules regarding consent also depends on several factors, including the complainant’s age, the accused’s age, and the nature of their relationship.

What is a Relationship of Trust and Dependency?

Relationships of trust and dependency are established when the complainant significantly relies on the accused, who is expected to provide protection and care. This relationship dynamic can be observed in familial bonds, such as those between children and their caregivers, as well as in professional settings such as teacher-student relationships. These connections are crucial in legal contexts as they often involve an innate power imbalance, which can distort the nature of consent.

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What will Happen if I am Convicted of Invitation to Sexual Touching?

Being convicted of invitation to sexual touching in Canada carries serious repercussions due to the serious nature of the offence. The gravity of this crime typically results in a custodial sentence, the duration of which may vary based on the specifics of the conduct, the offender’s criminal history, and the minor’s age. In addition, Canadian Courts commonly issue several ancillary orders to alleviate future risks and emphasize the offence’s severity.

Common orders might involve a Sex Offender Information Registration Act (SOIRA) registration, a Section 161 order that restricts access to children and limits internet use to prevent interactions with minors, and a DNA order to include the offender’s DNA in the national criminal database. The Court does this as a way to restrict the offender’s access to children and their communication with children, preventing future incidents from re-occurring.

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Recent Cases

R.  v. R.V., 2021 SCC 10

This case is about inconsistent verdicts rendered by a jury in a trial involving charges of sexual interference, invitation to sexual touching, and sexual assault against a single complainant. The jury found the defendant guilty of sexual interference and invitation to sexual touching but acquitted him of sexual assault, even though all charges arose from the same conduct and evidence.

The inconsistency in verdicts led to appeals by both the defence and the prosecution. The defence asserted that the convictions were not reasonable because of their inconsistency with the acquittal on the sexual assault charge. The prosecution contended that the charge to the jury was difficult to understand and legally inaccurate, thereby contributing to the inconsistent verdicts.

The Supreme Court of Canada found that the trial judge did misdirect the jury on the charge of sexual assault, specifically concerning the requirement of “force,” which should have been equated with the “touching” required for the other two charges. The Court concluded that this misdirection might explain the inconsistency in the verdicts, meaning that the convictions were not unreasonable.

R.  v. D.L.W.., 2016 SCC 22

The case R. v. D.L.W. is a significant decision from the SCC that focused on the definition of bestiality under Canadian criminal law. D.L.W. was initially found guilty of multiple sexual offences involving his two stepchildren, including one count of bestiality. The issue arose from an elusive sexual act where the defendant actively encouraged and counselled sexual activity between one of the children and the family’s dog—an act that he had recorded. At trial, the Court rightfully ruled that penetration was not required for an act to be deemed bestiality.

Following this ruling, the Canadian government amended the bestiality provisions in the Criminal Code with Bill C-84 to clarify that penetration is not required for an act to constitute bestiality, expanding the scope of what is considered a criminal offence in such cases. This case highlights the importance of legislative clarity and the role of the judiciary in interpreting statutes based on historical context unless there is explicit legislative change.

R. v. R.N.S., [2000] 1 S.C.R. 149

R. v. R.N.S. involves a case where the accused, after being convicted of sexual crimes towards his young step-granddaughter, initially received a prison sentence. Upon appeal, this was substituted with a conditional sentence due to the introduction of a new sentencing regime. The issue was whether the appellate court made an error by substituting a conditional sentence for a jail term for a man convicted of sexual assault and invitation to sexual touching of his step-granddaughter. The Supreme Court of Canada (SCC) evaluated the appropriateness of using a conditional sentence in light of the newly introduced sentencing regime. The analysis focused on whether the substituted sentence adequately addressed the seriousness of the offences and the high moral culpability of the defendant—also called moral blameworthiness.

The SCC critiqued the appeal court’s decision to substitute a conditional sentence, stating that it underplayed the gravity of the offences, which involved a young child in a relationship of trust. The analysis acknowledged that while the conditional sentencing regime was applicable, the specific circumstances of this case—specifically, the need for denunciation and deterrence—demanded a more punitive sentence to reflect the seriousness of these kinds of offences toward children. The appeal was validated by the SCC which affirmed that the sentence was not an accurate reflection of society’s condemnation of the defendant’s actions.

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About the Author

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Jordan Donich

Jordan Donich has been a Lawyer for over 10 years and is a trusted legal analyst by Canadian Media. He is as a leader in Canada’s tech sector for lawyers and developer of Law Newbie. Jordan is a Black Belt with the Japan Karate Association and trained in Krav Maga. He won a Gold Medal at 2004 Canadian National Championships and was published in the National Newspaper Awards.

Jordan has been featured in Forbes and is a member of DMZ Angels in Toronto.