Canadian Criminal Law/Offences/Invitation to Sexual Touching

Proof of Offence
The Crown should prove:
 * 1) identity of accused
 * 2) date and time of incident
 * 3) jurisdiction (incl. region and province)
 * 4) the accused communicated with a person
 * 5) that person was under 14 years of age at the time of communication
 * 6) knew that the child was under the age of 14
 * 7) the communication was in a manner constituting an invitation, incitement or counselling to touch any part of the accused's body, the complainant's body, or object
 * 8) the communication was for a sexual purpose
 * 9) the accused knew that the communication would be received as an an invitation, incitement or counselling to do the physical conduct of the offence, or knew that there was a "substantial and unjustified risk" that the child would receive that communication as being an invitation, incitement or counselling to do that physical conduct.

Actus Reus
A request by the accused to touch the victims private parts is an invitation to touch for a sexual purpose.

Actual physical touching or an invitation for physical touching is not necessary. Even an invitation to hold a tissue used by the accused can be sufficient.

Mens Rea
Sexual touching is a specific intent offence.

The "sexual purpose" of an invitation is determined based on an objective standard in light of all the circumstances. In looking at whether the words used had a sexual purpose, the court "can look to the part of the body that was to be touched, the nature of the contact requested, the situation in which the invitation occurred, including the words used, together with any accompanying gestures and all other circumstances surrounding the conduct."

Witness motions

 * Exclusion of public from court (486)
 * Prohibition of self-represented accused from Cross-examining a witness under the age of 18 years (486.3)
 * Sexual Offence Publication Ban (486.4)
 * Publication Ban of in relation to victims, witnesses or justice system participants (486.5)
 * Witness Screen (486.2)
 * Testimony by Video (714.1)

Case Digests

 * R v CMM, 2012 MBQB 141 - offender convicted for asking child to touch her toes while he took pictures of her private area

History
On August 9, 2012, this section was amended to increase the minimum penalties from 14 days for summary and 45 days indictable to 90 days and 1 year, respectively.