What happens if I am convicted of invitation to sexual touching?

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What happens if I am convicted of invitation to sexual touching?

If you are convicted of invitation to sexual touching, you will likely go to prison, either a provincial jail or a federal penitentiary. 

If you receive a prison sentence of less than two years, you will serve your sentence in a provincial jail, and may receive a term of probation after your sentence, which will have certain conditions that you must follow. If you receive a prison sentence of two years or more, you will be imprisoned at a federal institution.

You will be required to provide a sample of your DNA and to comply with the requirements of the Sex Offender Information Registration Act (SOIRA). There may be other orders you face as well, such as an order not to have any weapons.

Your sentence will depend on the circumstances of the offence and offender (you), including aggravating and mitigating factors. Aggravating factors are circumstances that call for a higher sentence, such as a related criminal record. Mitigating factors are circumstances that call for a lower sentence, such as an early guilty plea.

One of the best predictors of the length of a sentence is whether the crown proceeded by summary or indictment. In Alberta, the mandatory minimum sentence for the offence of invitation to sexual touching when the prosecutor proceeds by way of indictment has been struck down.

What is the mandatory minimum sentence for Invitation to sexual touching?

Invitation to sexual touching carries the following mandatory minimum and maximum sentences under the Criminal Code:

• A minimum of one year to a maximum of 14 years of imprisonment on indictment.
• A minimum of 90 days to a maximum of two years less a day on summary conviction.

The courts are not allowed to give sentences that are below the mandatory minimum unless the mandatory minimum has (1) been struck down by a superior court in the province or territory, or (2) the defence can persuade the judge that the mandatory minimum sentence is unconstitutional in their client’s case and a lower sentence is required. The second situation is rare.

The superior courts of Alberta and Ontario have struck down the mandatory minimum sentence for indictable invitation to sexual touching, so it does not apply in those provinces. However, the mandatory minimum sentence for summary invitation to sexual touching has not been struck down in Alberta, so it still applies (at least for now).

Although indictable invitation to sexual touching no longer has a mandatory minimum sentence in Alberta and summary invitation to sexual touching does, sentences still tend to be higher when the crown elects by indictment. This begs the question: What is the difference between the two?

What is the difference between indictable and summary offences?

All criminal offences in Canada are either summary offences, indictable offences, or hybrid offences. Most crimes are hybrid offences. If you are charged with a hybrid offence, the crown will choose (i.e., “elect”) to proceed by summary or not. If the crown does not elect, or elects by indictment, then you will be facing an indictable offence.

Most people will have heard of “felonies” and “misdemeanours.” These are United States criminal law terms; there are no felonies or misdemeanours in Canada. However, indictable offences are kind of like felonies, and summary offences are kind of like misdemeanours. This is because summary offences tend to be less serious and carry lighter sentences, and indictable offences tend to be more serious and carry longer sentences. For summary offence sentences, the maximum fine is $5000.00, and the maximum term of imprisonment is two years less a day. For indictable offences, you can face much larger fines, and receive a life prison sentence.

Some offences, although hybrid, are almost always prosecuted by indictment because our judicial system takes them so seriously. 

When is invitation to sexual touching a summary offence?

The crown almost always proceeds by indictment on invitation to sexual touching charges. This is because sexual crimes against children are taken very seriously. Children are vulnerable and can be deeply impacted for the rest of their lives by what happens to them as children. That said, some invitation to sexual touching charges are prosecuted summarily.

It is likely safe to say that no crown prosecutor will proceed summarily on an invitation to sexual touching charge based on an allegation of vaginal or anal intercourse or oral sex (i.e., fellatio or cunnilingus). Similarly, it is extremely unlikely that a crown prosecutor will proceed summarily on an invitation to sexual touching charge that involves skin-to-skin genital touching.

Charges most likely to proceed summarily are those based on allegations of over-the-clothes touching, such as someone slapping a fifteen-year-old’s clothed butt in a public setting. 

The Bottom Line

If you are convicted of invitation to sexual touching, you will probably be sentenced to a prison term – possibly a very long one. Sentences for sexual crimes against children have become much harsher since the 2020 Supreme Court of Canada decision R v Friesen, which instructed Canada’s sentencing judges that prison sentences for a number of years in the “high single digits to double digits” should be the norm.