section 152

INTRODUCTION AND BRIEF DESCRIPTION

An analysis of section 152 of the Criminal Code of Canada and the associated punishments.

SECTION WORDING

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.

EXPLANATION

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.

COMMENTARY

Section 152 of the Criminal Code of Canada serves as an important legal provision aimed at protecting minors from sexual exploitation. It criminalizes the act of inviting, counseling or inciting a person under the age of 16 years to touch themselves or another person in a sexual manner. This section is necessary because children below the age of 16 years are considered incapable of giving sexual consent. As per this section, if an adult invites, counsels or incites a minor to touch themselves or someone else inappropriately, they have committed an offense punishable by law. This law applies whether the adult is using physical force or simply using words or other means to encourage the minor to engage in sexual behavior. The provision is designed to ensure that minors are protected from sexual predators and that the dignity and self-respect of children are maintained. Section 152 focuses on the sexualization of minors and the responsibility of adults to refrain from such behaviors. It is aimed at preventing the exploitation of young children, who may not have the emotional and cognitive development to understand the sexual implications of such activities. This provision is an integral part of the Canadian legal framework aimed at protecting children from harm. One of the most notable features of this section is the minimum punishment prescribed by law for anyone found guilty of the offense. The minimum punishment for anyone convicted of this offense is a term of imprisonment for one year for an indictable offense and a minimum punishment of imprisonment for a term of 90 days for an offense punishable on summary conviction. This provision ensures that adults who lure minors into sexual behavior face severe consequences that will serve as a deterrent to others. The punishment prescribed by section 152 of the Criminal Code of Canada has served as an important tool in the fight against sexually-based offenses against minors. In particular, the provision has been instrumental in protecting minors from sexual exploitation by individuals who are in a position of trust, such as teachers and coaches. It sends a clear message that any adult who manipulates a minor in pursuit of sexual desires will face significant legal ramifications. In conclusion, section 152 of the Criminal Code of Canada is an important legal provision aimed at protecting minors from sexual exploitation. It provides legal consequences for adults who invite, counsel, or incite minors to engage in sexual behavior. It is an essential tool in protecting the dignity, self-respect, and well-being of minors and ensuring that adults take responsibility for their actions concerning minors. The minimum punishment prescribed by law reinforces the seriousness of the offense, serving as a powerful deterrent to prevent such activities, thus making Canada a safer place for children.

STRATEGY

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

Q.

If convicted of "invitation to sexual touching" are there mandatory minimum punishments that apply?

A.

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.

Q.

Is there any way of avoiding the mandatory minimum punishments?

A.

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.

Q.

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?

A.

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.

VIDEOS AND MEDIA

A criminal defence lawyer discusses section 152 of the Criminal Code of Canada and some of the penalties that can be imposed.

RELATED CASES

An attempt to strike down the mandatory minimums contained in section 152 of the Criminal Code of Canada was denied by the Ontario Court of Justice. The defence cited section 12 (cruel and unusual punishment) as well as section 7 (security of the person) but the Judge ultimately ruled that the sentence was fit in the circumstances.

RELATED LINKS

An analysis of various sections of the Criminal Code of Canada by Ottawa criminal lawyer Paul Lewandowski.
Ines Gavran is a criminal defence lawyer who accepts client charged with invitation to sexual touching.