(s. 152)
(Last revised March 2014)
(Read relevant parts of indictment or count.)
1. that (NOC) was less than sixteen years old at the time;
2. that (NOA) invited (counselled, incited) (NOC) to touch, either directly or indirectly, (specify (NOA), (NOC), (NO3P))’s body; and
3. that the invitation (counselling, incitement) to touch was for a sexual purpose.
Unless you are satisfied beyond a reasonable doubt that the Crown has proved all these essential elements, you must find (NOA) not guilty of invitation to sexual touching.
If you are satisfied beyond a reasonable doubt of all these essential elements [and you have no reasonable doubt[317] after considering the defence(s) (specify defences) about which I will instruct you], you must find (NOA) guilty of invitation to sexual touching.
A person becomes sixteen years old on his or her sixteenth birthday. The Crown does not have to prove that (NOA) knew how old (NOC) was at the time.[318]
(Review relevant evidence and relate to issue.)
Unless you are satisfied beyond a reasonable doubt that (NOC) was less than sixteen years old at the time, you must find (NOA) not guilty of invitation to sexual touching. Your deliberations would be over.
If you are satisfied beyond a reasonable doubt that (NOC) was less than sixteen years old at the time, you must go on to the next question.
Where “invite” is alleged:
To “invite” means to request, ask or suggest, by words or gestures, or both, that something be done.
Where “counsel” is alleged:
To “counsel” means to suggest that someone do something, or to advise or recommend that he or she do it.
Where “incite” is alleged:
To “incite” means to encourage or urge someone, by words or gestures, or both, to do something.
In all cases:
The invitation (counselling, incitement) must be to touch the body of a person.
The proposed touching must involve physical contact with any part of a person’s body. The contact could be direct, for example, touching a person with a hand or other part of the body, or indirect, for example, touching a person with an object. Force is not required.
All that matters for this essential element is that (NOA) invited (counselled, incited) (NOC) to touch (specify him/herself, (NOA), (NO3P)).[319] It does not matter whether (NOC) agreed to touch or actually touched (specify him/herself, (NOA), (NO3P)).
(Review and relate relevant evidence to the issue.)
Unless you are satisfied beyond a reasonable doubt that (NOA) invited (counselled, incited) (NOC) to touch (specify (NOC), (NOA), (NO3P))’s body, you must find (NOA) not guilty of invitation to sexual touching. Your deliberations would be over.
If you are satisfied beyond a reasonable doubt that (NOA) invited (counselled, incited) (NOC) to touch (specify (NOC), (NOA), (NO3P))’s body, you must go on to the next question.
The invitation (counselling, incitement) to touch had a sexual purpose if it was done for (NOA)’s sexual gratification or for the purpose of violating (NOC)’s sexual integrity, including any act meant to degrade or demean (NOC) in a sexual way.
(Review relevant evidence and relate to issue.)
To determine the purpose of the invitation (counselling, incitement) to touch, you should consider all the circumstances surrounding it. Consider what was said and what was done. Take into account the part of the body that (NOA) invited (counselled, incited) (NOC) to touch, and the nature of the contact in which (NOA) invited (counselled, incited) (NOC) to participate. Bear in mind any words or gestures that accompanied (NOA)’s invitation (counselling, incitement). It is for you to say whether, in all the circumstances, you are satisfied beyond a reasonable doubt that (NOA) had a sexual purpose when s/he invited (counselled, incited) (NOC) to touch (specify him/herself, (NOA), (NO3P)).
Unless you are satisfied beyond a reasonable doubt that (NOA)’s invitation (counselling, incitement) to touch was for a sexual purpose, you must find (NOA) not guilty.
If you are satisfied beyond a reasonable doubt that (NOA)’s invitation (counselling, incitement) to touch was for a sexual purpose, [and you have no reasonable doubt with respect to (specify defence)], you must find (NOA) guilty.
[316] Where identity is an issue, remember to include any further instructions that may be relevant (e.g., eyewitness identification, alibi, similar fact, etc.). Where date is an issue, the jury must be told that the Crown must prove that the offence occurred within the time frame indicated in the indictment. Where place is an issue, the jury must be told that the Crown must prove that some part of the offence occurred in the place indicated in the indictment.
Generally, the Crown must prove the date and place specified in the indictment. However, where there is a variation between the evidence and the indictment, refer to s. 601(4.1) of the Criminal Code and the jurisprudence following R. v. B. (G.), [1990] 2 S.C.R. 3.
[317] Insert the bracketed words if appropriate. This instruction will have to be modified where the accused has a legal burden of proof, such as for mental disorder or non-insane automatism.
[318] This paragraph should be modified if the accused asserts a mistaken belief in age and there is evidence on which the jury could find that the accused had taken all reasonable steps to find out the child’s age. See Criminal Code, s. 150.1(4).
[319] This instruction should be modified if the “adolescent sex” defence in s. 150.1(2) applies.