If you have been charged with Invitation to Sexual Touching pursuant to s. 152 of the Criminal Code you may be wondering what exactly this allegation involves. The section states that 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, including the body of the person who invites, counsels or incites, is guilty of an offence.
The offence is made out if the appellant invites, counsels or incites a person under the age of 16 to touch directly or indirectly any person’s body, for a sexual purpose. The touching may be with a part of the body or with an object and the body touched may be the appellant’s or any other person’s, including the complainant, if it is for a sexual purpose. The offence is made out when the invitation, counselling or inciting occurs, not when the touching occurs, if at all.
The word “incite” is in common usage and it is sufficient that the appellant “in some manner, recommended or suggested” that the act take place. The conduct does not itself have to be imminent. The two individuals do not have to directly touch each other, as the touching may be indirect. Indeed, there does not need to be any touching at all for the offence to be made out. However, in order to establish that the accused “incited” the complainant, the Crown must prove beyond a reasonable doubt that there was some positive conduct by the accused, not just passive acquiescence.
An example of a successful defence to the charge can be found in the case of R. v. Rhynes. The complainant repeatedly tried to get the accused to engage in sexual activity. He repeatedly resisted the advances but eventually acquiesced. The Court found that the accused did not spur on or encourage the behaviour and as a result was acquitted.