CAPCJ / ACJCP

Keeping Up Is Hard to Do:
A Trial Judge’s Reading Blog

THE BRITISH COLUMBIA COURT OF APPEAL HOLDS THAT THE OFFENCE OF INVITATION TO SEXUAL TOUCHING (SECTION 152 OF THE CRIMINAL CODE) CAN BE COMMITTED BY MEANS THAT EXTEND BEYOND THE ACT OF INVITING

In R. v. P.R.J., 2023 BCCA 13, January 11, 2023, the accused was convicted of the offence of invitation to sexual touching, contrary to section 152 of the Criminal Code.  That section states:

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…offence.

The evidence at the trial established that the accused took a child’s hand and placed it on her vagina. The Court of Appeal noted that the accused argued that “her actions amount to only an act of sexual interference (s. 151) and not an invitation to sexual interference (s. 152). Her position is that while an invitation can be both verbal and non-verbal, once there is physical contact for a sexual purpose, s. 152 is inapplicable” (at paragraph 37).

The appeal was dismissed.  The British Columbia Court of Appeal concluded that the “means” by which the offence of invitation to sexual touching “can be committed extends beyond actions that fall under the verb ‘invite’” (at paragraphs 49 and 50):

…although the offence created by s. 152 is commonly referred to “invitation to sexual touching”, the means by which that offence can be committed extends beyond actions that fall under the verb “invite”.  In particular, by virtue of the definition of “counsel” in s. 22(3) of the Criminal Code, an offence under s. 152 is committed when someone “procure[s]” a person under the age of 16 to touch them for a sexual purpose.  In this regard, it is of note that in discussing the meaning to be given to the words “procure, solicit, or incite” in s. 22(3), Justice Fish said this in R. v. Hamilton, 2005 SCC 47, [2005] 2 S.C.R. 432, a case that involved charges of counseling the commission of indictable offences that were never committed:

[22]      In their relevant senses, the Canadian Oxford Dictionary (2nd ed. 2004) defines “counsel” as “advise” or “recommend (a course of action)”; “procure” as “bring about”; “solicit” as “ask repeatedly or earnestly for or seek or invite”, or “make a request or petition to (a person)”; and “incite” as “urge”. “Procure” has been held judicially to include “instigate” and “persuade”: R. v. Gonzague (1983), 4 C.C.C. (3d) 505 (Ont. C.A.).

[Emphasis added by Court of Appeal.]

Black’s Law Dictionary, 11th ed. (St. Paul, Minn.: Thomson Reuters, 2019), contains the following definition of “procure”:

1.       To obtain (something), esp. by special effort of means. 2. To achieve or bring something about (a result). 3. To obtain a sexual partner for another, esp. an unlawful partner such as a minor or a prostitute.

Returning to the case at bar, when P.R.J. took P.’s hand and placed it on her vagina, she instigated/brought about/ procured P. to touch her for a sexual purpose, thereby committing an offence under s. 152.