What Section 152 Prohibits
Section 152 of the Criminal Code makes it an offence to invite, counsel, or incite a person under the age of 16 to touch, directly or indirectly, the body of any person for a sexual purpose. The statute reads:
“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, is guilty of an indictable offence and is liable to imprisonment for a term of not more than fourteen years and to a minimum punishment of imprisonment for a term of one year”
Several features of this offence are worth noting. The “body of any person” language is broad — it includes the accused’s own body, a third party’s body, or even the child’s own body. The offence is complete once the invitation is made. No touching needs to occur.
What the Crown Must Prove
To secure a conviction under section 152, the Crown must prove beyond a reasonable doubt:
- Identity — the accused is the person who made the invitation.
- Invitation, counselling, or incitement — the accused invited, counselled, or incited the complainant to touch the body of any person. This can include verbal requests, text messages, online communications, or conduct that amounts to encouragement.
- Sexual purpose — the invitation was for a sexual purpose, assessed objectively based on all the circumstances.
- Age — the complainant was under 16 at the time.
The Crown does not need to prove that any touching occurred. The offence targets the solicitation, not the result.
How It Differs from Sexual Assault and Sexual Interference
Sections 151, 152, and 271 are three distinct offences that are frequently confused:
| Sexual Assault (s. 271) | Sexual Interference (s. 151) | Invitation to Sexual Touching (s. 152) | |
|---|---|---|---|
| The offence | Accused touches complainant without consent | Accused touches complainant (under 16) for sexual purpose | Accused invites complainant (under 16) to touch |
| Key element | No consent | Complainant under 16 | Complainant under 16 |
| Consent a defence? | Yes | No | No |
| Maximum (indictment) | 10 years | 14 years | 14 years |
| Mandatory minimum | None | 1 year | 1 year |
The practical distinction matters. In a sexual interference case, the Crown must prove the accused touched the complainant. In an invitation to sexual touching case, the Crown must prove the accused asked the complainant to touch someone. The evidence, the defence strategy, and the trial dynamics are different.
Penalties and Sentencing
Section 152 is a hybrid offence. The Crown can proceed by indictment or summary conviction:
- Indictment: Mandatory minimum 1 year, maximum 14 years.
- Summary conviction: Mandatory minimum 90 days, maximum 2 years less a day.
The mandatory minimum means a judge cannot impose a conditional discharge, a suspended sentence, or a conditional sentence (house arrest). On indictment, the accused will serve at least 1 year in custody.
A conviction also triggers mandatory ancillary orders: registration on the National Sex Offender Registry under SOIRA (20 years for an offence with a 14-year maximum), a DNA order, a weapons prohibition, and potentially section 161 orders restricting contact with persons under 16, attendance at parks and schools, and internet use.
How These Cases Are Investigated
Invitation to sexual touching cases are increasingly built on digital evidence. Police examine text messages, social media direct messages, dating app conversations, and online chat logs. In some investigations, officers conduct undercover operations, posing as minors in chat rooms or on social media platforms to engage with suspects.
Forensic analysis of phones and computers is common. Police may obtain production orders or search warrants for devices and online accounts. The complainant’s statement to police often forms the foundation of the Crown’s case, but in digital cases, the communications themselves may constitute the primary evidence.
The investigative method matters for the defence. Undercover operations raise issues about entrapment. Search warrants for devices raise issues about the scope and legality of the search. Digital evidence can be challenged on authenticity, completeness, and context.
Defence Strategies
The invitation did not occur. Where the allegation rests on the complainant’s testimony alone, credibility and reliability are central. Inconsistencies between the complainant’s statement to police and their testimony at trial, contradictions with other evidence, and implausibilities in timing or logistics can raise a reasonable doubt.
No sexual purpose. The invitation must have been for a sexual purpose, assessed objectively. The defence may argue that the communication was misinterpreted, taken out of context, or was not sexual in nature. Context is critical — the same words can carry different meanings depending on the relationship and circumstances.
Mistaken belief in age. Under section 150.1(4), the accused can argue they honestly believed the complainant was 16 or older and took all reasonable steps to ascertain the complainant’s age. This defence requires affirmative steps — asking the complainant, checking identification, relying on specific representations about age.
Close-in-age exception. Section 150.1(2) provides a limited exception where both parties are close in age: a 12 or 13-year-old can consent to sexual activity with a partner less than 2 years older; a 14 or 15-year-old can consent with a partner less than 5 years older. The exception does not apply if the older person is in a position of trust, authority, or dependency.
Charter challenges. If evidence was obtained through unlawful searches of phones or computers, failure to provide the right to counsel during interrogation, or entrapment in undercover operations, that evidence may be excluded under section 24(2) of the Charter.
What to Do If You Are Charged
Invitation to sexual touching carries mandatory minimum sentences, mandatory sex offender registration, and severe collateral consequences for employment, travel, and immigration. If you have been charged:
- Exercise your right to silence. Do not give a statement to police without speaking to a lawyer.
- Do not delete anything. Deleting text messages, chat logs, or other digital communications after being charged can result in additional charges for obstruction and eliminates evidence that may support your defence.
- Do not contact the complainant. Bail conditions will prohibit contact. Any contact is a separate criminal offence under section 145.
- Retain a criminal defence lawyer. The mandatory minimums, evidentiary complexities involving digital evidence and child witnesses, and the collateral consequences make early legal representation essential.