INTRODUCTION AND BRIEF DESCRIPTION
An analysis of section 152 of the Criminal Code of Canada and the associated punishments.
152 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, (a) is guilty of an indictable offence and is liable to imprisonment for a term of not more than 10 years and to a minimum punishment of imprisonment for a term of one year; or (b) is guilty of an offence punishable on summary conviction and is liable to imprisonment for a term of not more than 18 months and to a minimum punishment of imprisonment for a term of 90 days.
Section 152 of the Criminal Code of Canada sets out the offence of "invitation to sexual touching." This offence is often grouped with other related offences, such as section 151 (sexual interference) and section 153 (sexual exploitation). Because section 152 is an age dependent offence, it is often charged in duplicate pursuant to section 271 - sexual assault. Thus, if the Crown cannot prove the age of the victim, or alternatively, if the Crown cannot prove that the accused knew the age of the victim, a sexual assault charge could still be made out, absent the "under 16" age requirement of s.152. The charge carries mandatory minimum punishments whether the Crown elects to proceed summarily or by indictment.
Section 152 of the Criminal Code is designed to capture a wide variety of conduct. It criminalizes the act of inviting, counselling or inciting, direct or indirect sexual conduct. The offence is age specific, and requires that the victim be under the age of 16 years of age. However, section 152 must be cross-referenced with section 171.1(3) which reads: 171.1(3) Evidence that the person referred to in paragraph (1)(a), (b) or (c) was represented to the accused as being under the age of 18, 16 or 14 years, as the case may be, is, in the absence of evidence to the contrary, proof that the accused believed that the person was under that age. This subsection was enacted to allow law enforcement to conduct undercover operations, where the officer poses as a young person, and thus, can ferret out offenders pursuant to section 152. It is rare to see section 152 charged as a standalone charge. More commonly it is grouped with related offences, which will often be subjected to the Kienapple (double jeopardy) principle. The Crown lays the duplicitous charges in the event that some of the specific elements of section 152 cannot be proven, such as belief in age.
Typically, the Crown constructs their case based on the testimony of the complainant, who testifies to the "inciting, counselling or inviting" in question. Absent a "mistake in age defence" (see section 150.1(4)) the sole issue will be whether the acts occurred, and whether there was any inciting, counselling or invitation. Thus, absent an outright credibility attack on the complainant, the case will of practical necessity require the accused to take the stand and recount their version of events. In some cases, mistake in age will be available. The age of consent in Canada is 16, absent a few sections that are enumerated in 150.1(2) dealing with graduated ages of consent for young persons. Thus, if factually the complainant is below the age of 16, the defence would elicit evidence that precipitated the honest but mistaken belief in age, subject to the criteria set out 150.1(4). If the charge results from a sting operation, police will typically ensure that sufficient verbiage is created that ensures an accused cannot argue ignorance to the fact that the fictional young person foil was held out to be younger than 16.
QUESTIONS AND ANSWERS
If convicted of "invitation to sexual touching" are there mandatory minimum punishments that apply?
Yes. If the Crown elects to proceed summarily, the mandatory minimum punishment is 90 days in jail. If the Crown elects to proceed by indictment, the mandatory minimum punishment is one year in jail.
Is there any way of avoiding the mandatory minimum punishments?
No. The amendments to the Criminal Code that created the mandatory minimum punishment were enacted in 2008, 2012 and 2015 respectively. Depending on what the date of the criminal charge is, the "old regime" may still apply, since an accused always has the benefit of lesser punishment pursuant to the Charter. Thus, if a person was charged in 2015 based on an event that transpired in 2009, they would be subject to the punishments available in 2009, or the lesser available punishments depending on what the legislative changes entailed. However, unless the charge relates to a period where no mandatory minimums existed, then there is currently no way of avoiding the minimums on a conviction. Constitutional challenges have been made to the legislation, however, thus far, none have been successful.
I have been called by the police to be interviewed concerning a possible charge of section 152 of the Criminal Code. This is clearly a misunderstanding. Should I go explain to the police what really happened?
Defence lawyers hear this regularly from clients. The problem is, that what *you* perceive to be a misunderstanding may not be perceived by the police, or by the courts as a "misunderstanding." In fact, courts are routinely fed "explanations" that clearly have no basis in reality, and are thus skeptical. Without a proper review of the allegations, and a full client interview, it is difficult for any lawyer to recommend going to the police and "explaining" the situation. Moreover, the standard with which a person is charged with a criminal offence is "reasonable and probable grounds." Thus, even if a viable "explanation" existed, this would not necessarily dislodge the RPG's that the police have to charge you. Cases are routinely run through the courts on a he-said-she-said or he-said-he-said basis, where two parties have diametrically opposed versions of events. Simply advising the police of *your* position does not inexorably make it the correct one. Thus, the default position that any criminal lawyer will advise you to take, is to invoke your right to remain silent, and say nothing. If you are contemplating making a full statement to the police, contact a criminal lawyer in advance, and discuss the situation in detail, allowing a person seasoned in the milieu to properly - and critically - assess your strategy, before you become the lynchpin to your own conviction.
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