Invitation to Sexual Touching and the Criminal Code

Facing a charge under Section 152 of the Criminal Code for inviting a person under 16 to engage in sexual touching is a serious legal matter with life-changing consequences.

• What the Law Covers: No physical contact is required — simply inviting, counselling, or inciting sexual touching for a sexual purpose can lead to a conviction.

• Severe Penalties: Convictions carry up to 14 years in prison, mandatory sex offender registration, and lifetime criminal records for offences involving minors.

• Key Elements for Conviction: The Crown must prove four elements beyond a reasonable doubt — sexual purpose, the nature of the invitation, complainant’s age, and knowledge or willful blindness to the complainant being under 16.

• Defence Strategies: Common defences include mistaken belief in age, lack of sexual purpose, or disputing whether an “invitation” occurred.

• Aggravating Factors: Use of technology, positions of trust, or multiple complainants can significantly increase sentencing.

• Collateral Consequences: Conviction can lead to employment bans, immigration issues, restrictions on internet use, and travel limitations.

• Close-in-Age Exceptions: Certain age-gap defences exist but apply only under very narrow circumstances and exclude cases involving authority or exploitation.

To fully understand your rights, possible defences, and the lasting impacts of a Section 152 charge, read the full article for a detailed breakdown of the law, penalties, and legal strategies.

Facing an accusation of invitation to sexual touching is a deeply stressful and frightening experience. A conviction under Section 152 of the Criminal Code carries severe, life-altering consequences, including facing mandatory minimum jail terms, and mandatory registration as a sex offender. Understanding the law is the first step toward building a defence. This guide explains the charge, the potential penalties, and the defence strategies available.

 

 

Key points on invitation to sexual touching charges

Section 152 of the Criminal Code criminalizes inviting, counselling, or inciting persons under 16 to engage in sexual touching. Penalties can include significant jail time, with maximum sentences up to 14 years for indictable offences and 18 months for summary convictions. There are also mandatory minimum jail sentences of 90 days for summary conviction offences and 1 year for indictable offences. 

Key aspects of these charges include:

• Conviction results in permanent criminal record and sex offender registration
• No physical contact required – the invitation itself constitutes the offence
• Available defences include mistaken belief in age and lack of sexual intent
• Section 161 conditions may restrict future activities and internet use
• Immediate legal counsel is critical to navigate these complex charges

 

 

Section 152 of the Criminal Code

Section 152(1) of the Criminal Code of Canada states that “Every person who, for a sexual purpose, invites, counsels or incites a person under the age of sixteen 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 sixteen years, is guilty of an offence.”

While the definition in Section 152(1) appears straightforward, the law establishes a high threshold. To secure a conviction, the Crown must prove each of the following elements beyond a reasonable doubt. Understanding these elements is crucial for anyone facing these charges, as each represents a potential avenue for defence.

The offence of invitation to sexual touching is fundamentally different from other sexual offences in that it criminalizes the solicitation itself, rather than any physical act. This distinction has significant implications for how these cases are prosecuted and defended. The law recognizes that the mere act of inviting a minor to engage in sexual touching can cause psychological harm and represents a serious breach of societal norms designed to protect children.

 

Elements the Crown must prove

For a successful prosecution under Section 152, the Crown must establish four essential elements beyond a reasonable doubt. Each element presents opportunities for defence counsel to challenge the prosecution’s case.

Sexual purpose: The invitation, counselling, or incitement must be for a sexual purpose, determined by an objective standard considering the context, body parts involved, and nature of the requested contact. Courts typically examine the nature of communications, explicit language used, or the overall context of the interaction to establish sexual purpose. This element can be particularly challenging for the Crown to prove in cases involving ambiguous communications or where the accused’s intent is unclear.

Invitation, counselling, or inciting behaviour: These terms have distinct legal meanings that courts interpret carefully:

• Invitation: A direct request or suggestion to engage in sexual touching
• Counselling: Advising or encouraging the minor to engage in sexual touching
• Inciting: Stirring up or provoking the minor to engage in sexual touching

The distinction between these actions can be significant in determining the strength of the Crown’s case and the appropriate defence strategy.

Complainant under 16 years of age: This is an objective element that the Crown must prove regardless of the accused’s knowledge of the complainant’s age. However, the accused’s knowledge or belief about the complainant’s age forms a separate element and potential defence.

Knowledge or willful blindness regarding age: The Crown must prove the accused knew the complainant was under 16 or was willfully blind to their age. Willful blindness occurs when an accused deliberately avoids knowing the complainant’s true age, which is legally distinct from a genuine mistaken belief about age.

 

 

Penalties and consequences for invitation to sexual touching

The penalties for invitation to sexual touching reflect the serious nature of this offence, with both immediate and long-term consequences that can profoundly impact an individual’s life. Understanding these consequences is essential for anyone facing these charges, as they extend far beyond potential jail time.

Sentencing ranges vary significantly based on how the Crown proceeds:

• Summary conviction: Maximum 18 months imprisonment
• Indictable offence: Maximum 14 years imprisonment
• Mandatory minimums:  90 day mandatory minimum jail terms for summary conviction offences and 1 year if the Crown elects to proceed by indictment.

 

Aggravating factors

Courts consider several factors that can significantly increase sentence severity, and understanding these factors is crucial for developing an effective defence strategy. The presence of aggravating factors can transform what might otherwise be a relatively lenient sentence into a substantial period of incarceration.

When the accused holds a position of trust or authority over the complainant, such as a teacher, coach, religious leader, family member, or caregiver, sentences are typically more severe. These relationships involve a breach of trust and abuse of power that courts view as particularly egregious. The law recognizes that individuals in positions of authority have special responsibilities toward those under their care, and violations of this trust warrant enhanced punishment.

Technology-related aggravating factors include:

• Use of social media platforms to contact minors
• Employment of chat apps or messaging platforms
• Creation or sharing of digital content as part of the invitation
• Use of anonymizing technology to conceal identity

The digital age has created new avenues for these offences, and the legal system has responded by treating technological facilitation as an aggravating circumstance. Courts view online targeting of minors as particularly serious due to the reach, potential for anonymity, and predatory nature of such behaviour.

Cases involving multiple complainants significantly increase the gravity of the offence and potential sentence. When an accused person has allegedly targeted multiple minors, courts interpret this as evidence of predatory behaviour that poses a greater risk to public safety.

 

Collateral consequences

Beyond direct penalties, conviction carries severe long-term consequences that can be more impactful than the initial sentence:

Permanent criminal record: For sexual offences involving minors, a record suspension is generally not available, meaning the criminal record is permanent and will appear on background checks indefinitely.

Sex Offender Information Registration Act (SOIRA): Convicted individuals must register with the National Sex Offender Registry, requiring:

• Regular reporting to police (annually or more frequently)
• Providing updated personal information when changes occur
• Compliance with registration requirements often lasting for life
• Potential criminal charges for failing to comply with registration duties

Section 161 prohibition orders: Courts can impose restrictions that may include:

• Prohibition from attending public parks, swimming areas, daycare centres, or schools
• Restrictions on internet and computer use
• Prohibition from seeking, obtaining, or continuing employment involving minors
• Restrictions on communicating with persons under 16 years of age

Employment and professional consequences: A criminal record for sexual offences severely restricts employment opportunities, particularly in fields involving vulnerable persons, affects professional licensing, and can result in inadmissibility to other countries, including the United States.

Immigration consequences: Non-citizens face potential deportation or inadmissibility to Canada following conviction, regardless of how long they have lived in Canada or their family ties to the country.

 

 

Potential defences

Every case presents unique circumstances, and skilled criminal defence counsel will meticulously review the evidence to build the most effective defence strategy tailored to the specific situation. The availability and strength of various defences depends entirely on the particular facts of each case, making thorough case analysis essential.

The complexity of Section 152 charges means that multiple defence strategies may be available simultaneously. Defence counsel must carefully evaluate which approaches offer the best prospects for success, whether pursued individually or in combination. The goal is always to create reasonable doubt about one or more elements of the offence, thereby preventing the Crown from meeting its burden of proof.

Common defence strategies include:

• Challenging the Crown’s evidence regarding sexual purpose
• Questioning whether communications actually constituted an “invitation”
• Raising mistaken belief in age with proper foundation
• Arguing lack of knowledge regarding the complainant’s age
• Challenging the reliability or credibility of evidence

 

Mistaken belief in age defence

The mistaken belief in age defence represents one of the most commonly raised defences for Section 152 charges, but it requires meeting specific and demanding legal requirements. This defence acknowledges that the accused may have genuinely believed the complainant was 16 years of age or older, thereby negating the mental element required for conviction.

To succeed with this defence, the accused must demonstrate both an honest belief that the complainant was of legal age and that all reasonable steps were taken to ascertain the complainant’s age. The honest belief requirement means the accused must genuinely and honestly have believed the complainant was 16 years of age or older at the time of the alleged offence.

The “all reasonable steps” standard requires proactive measures such as:

• Asking for government-issued identification
• Making specific inquiries about age and grade in school
• Observing apparent maturity level and behaviour
• Asking mutual acquaintances about the person’s age
• Verifying age through reliable third-party sources

Simply accepting someone’s stated age without question is insufficient to meet this standard. The law requires positive and proactive measures that demonstrate a genuine effort to determine age.

Recent case law developments have clarified and refined the application of this defence. R. v. Carbone, 2016 SCC 3 established that the “all reasonable steps” requirement demands positive and proactive measures rather than mere passive inquiry. The Supreme Court emphasized that the steps must be reasonable in the circumstances and that the accused bears the burden of demonstrating what specific steps were taken.

 

Close-in-age exceptions

Section 150.1 of the Criminal Code provides limited exceptions where consent may be a defence, recognizing that consensual sexual activity between young people of similar ages should not automatically result in criminal liability.

These exceptions apply in very specific circumstances:

• Ages 12-13: Consent may be a defence if the accused is less than two years older
• Ages 14-15: Consent may be a defence if the accused is less than five years older

However, these exceptions do not apply if the accused is in a position of trust or authority towards the complainant, is in a relationship of dependency with the complainant, or has exploited or abused the complainant. The exceptions are narrow and require careful legal analysis to determine their applicability.

 

 

Frequently asked questions

What constitutes “invitation” to sexual touching?

An invitation to sexual touching can take many forms and is not limited to direct verbal requests. The law recognizes that invitations can be communicated through various means, including direct verbal requests such as “Would you like to touch me?”, written communications like “Let’s touch each other,” or even suggestive images or videos accompanied by text.

Examples of communications that may constitute invitations include:

• Direct verbal or written requests for sexual touching
• Suggestive comments that imply a desire for sexual contact
• Sharing of sexual images with accompanying text
• Role-playing scenarios that involve sexual touching
• Implied requests through context and circumstances

The key legal test is whether the communication invites, counsels, or incites sexual touching, regardless of the specific format or medium used.

 

Can text messages or online communications lead to charges?

Absolutely. In the digital age, a significant proportion of these charges arise from online interactions, including text messages, social media chats, video calls, and other digital communications. The lack of physical presence does not diminish the severity or legality of the invitation.

Digital communications that can lead to charges include:

• Text messages and instant messaging
• Social media direct messages and posts
• Video chat conversations
• Email communications
• Dating app conversations
• Gaming platform communications

Digital communications present particular challenges and opportunities in these cases. They often create permanent records that can serve as evidence, but they may also be subject to interpretation issues, questions about context, or challenges regarding who actually sent the communications.

 

Is consent ever a defence for these charges?

Generally, no. For anyone under the age of 16, consent is legally irrelevant for the charge of invitation to sexual touching. The law is designed to protect children by recognizing that minors cannot legally consent to such invitations, regardless of their apparent willingness or maturity.

However, very limited close-in-age circumstances outlined in Section 150.1 provide narrow exceptions to this general rule. These exceptions recognize that consensual sexual activity between young people of similar ages should not automatically result in criminal liability, but they apply only in very specific circumstances with strict age and relationship requirements.

 

What should someone do if charged with this offence?

The most important steps to take immediately upon being charged include:

• Exercise your right to remain silent – Do not speak to police without a lawyer
• Contact a criminal defence lawyer immediately – Time is essential in building an effective defence
• Preserve all evidence – Do not delete communications, devices, or records
• Avoid discussing the case – Do not speak about the charges with anyone except your lawyer
• Comply with any release conditions – Failure to comply can result in additional charges

Early legal intervention can be crucial in protecting your interests and ensuring that your rights are respected throughout the legal process.

 

How does this differ from sexual assault charges?

The key distinction lies in the requirement for physical contact:

Invitation to sexual touching (Section 152): • No physical contact required • Criminalizes the solicitation or incitement itself • Specifically protects individuals under 16 years of age • Offence is complete upon making the invitation

Sexual assault (Section 271): • Requires actual physical contact of a sexual nature • Can involve complainants of any age • Focuses on non-consensual physical touching • Different penalties and legal requirements

While both offences are serious, they address different types of harmful behaviour and carry different legal requirements for prosecution.

 

What are the long-term consequences of conviction?

The long-term consequences extend far beyond any jail sentence and can include:

Permanent impacts:

• Criminal record that cannot be sealed for sexual offences involving minors
• Mandatory sex offender registration lasting years or for life
• Section 161 prohibition orders restricting activities and locations
• Severe employment restrictions, particularly in fields involving vulnerable persons
• Professional licensing consequences
• Travel restrictions and potential inadmissibility to other countries

Immigration consequences for non-citizens:

• Potential deportation for non-Canadian citizens regardless of length of residence in Canada
• Inadmissibility to Canada for future applications
• Impact on family members’ immigration status

The social stigma and personal impact of these convictions can be devastating and permanent, affecting relationships, career prospects, and community standing for decades.

 

 

Protect your future with experienced legal defence

If you have been charged with invitation to sexual touching, your future and freedom are at stake. Do not wait. The actions you take now are critical. Contact the criminal defence team at Kruse Law for a confidential consultation to protect your rights and begin building your defence.

Kruse Law provides dedicated criminal defence representation across Ontario, with offices in London, Windsor, Toronto, and Kitchener. Our team offers focused support and has experience handling complex cases throughout Ontario, including Southwestern Ontario, the GTA, and the Waterloo Region. 

For more information on defending against these charges, read our comprehensive guide on Ontario defences to sexual interference and invitation to sexual touching.