Canadian Criminal Law/Offences/Sexual Exploitation

Sexual Exploitation
Sexual Exploitation
	s. 153 of the Crim. Code
Election / Plea
Crown Election	Hybrid
Jurisdiction	Prov. Court ; SC Judge + PI (I) ; SC Jury + PI (I) (536(2))
Summary Dispositions
Avail. Disp.	Discharge (730); Suspended Sentence (731(1)(a)); Fine (734); Fine + Probation (731(1)(b)); Jail (718.3, 787); Jail + Probation (731(1)(b)); Jail + Fine (734); Conditional Sentence (742.1)
Minimum	90 days jail
Maximum	18 months jail
Indictable Dispositions
Avail. Disp.	Discharge (730); Suspended Sentence (731(1)(a)); Fine (734); Fine + Probation (731(1)(b)); Jail (718.3, 787); Jail + Probation (731(1)(b)); Jail + Fine (734); Conditional Sentence (742.1);
Minimum	1 year jail
Maximum	10 years jail
Designations
	DNA Primary designated offence; SOIRA designated offence; DO/LTO primary designated offence;
References
	Offence Elements ; Sentence Principles ; Sentence Digests;
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Legislation

Sexual exploitation
153. (1) Every person commits an offence who is in a position of trust or authority towards a young person, who is a person with whom the young person is in a relationship of dependency or who is in a relationship with a young person that is exploitative of the young person, and who

(a) for a sexual purpose, touches, directly or indirectly, with a part of the body or with an object, any part of the body of the young person; or

(b) for a sexual purpose, invites, counsels or incites a young person 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 young person.

...
R.S., 1985, c. C-46, s. 153; R.S., 1985, c. 19 (3rd Supp.), s. 1; 2005, c. 32, s. 4; 2008, c. 6, s. 54.

– CCC

Sexual exploitation of person with disability
153.1 (1) Every person who is in a position of trust or authority towards a person with a mental or physical disability or who is a person with whom a person with a mental or physical disability is in a relationship of dependency and who, for a sexual purpose, counsels or incites that person to touch, without that person’s consent, his or her own body, the body of the person who so counsels or incites, or the body of any other person, directly or indirectly, with a part of the body or with an object, is guilty of

(a) an indictable offence and liable to imprisonment for a term not exceeding five years; or

(b) an offence punishable on summary conviction and liable to imprisonment for a term not exceeding eighteen months.

Definition of “consent”
(2) Subject to subsection (3), “consent” means, for the purposes of this section, the voluntary agreement of the complainant to engage in the sexual activity in question.

When no consent obtained
(3) No consent is obtained, for the purposes of this section, if

(a) the agreement is expressed by the words or conduct of a person other than the complainant;

(b) the complainant is incapable of consenting to the activity;

(c) the accused counsels or incites the complainant to engage in the activity by abusing a position of trust, power or authority;

(d) the complainant expresses, by words or conduct, a lack of agreement to engage in the activity; or

(e) the complainant, having consented to engage in sexual activity, expresses, by words or conduct, a lack of agreement to continue to engage in the activity.

Subsection (3) not limiting
(4) Nothing in subsection (3) shall be construed as limiting the circumstances in which no consent is obtained.
When belief in consent not a defence
(5) It is not a defence to a charge under this section that the accused believed that the complainant consented to the activity that forms the subject-matter of the charge if

(a) the accused’s belief arose from the accused’s
(i) self-induced intoxication, or

(ii) recklessness or wilful blindness; or

(b) the accused did not take reasonable steps, in the circumstances known to the accused at the time, to ascertain that the complainant was consenting.

Accused’s belief as to consent
(6) If an accused alleges that he or she believed that the complainant consented to the conduct that is the subject-matter of the charge, a judge, if satisfied that there is sufficient evidence and that, if believed by the jury, the evidence would constitute a defence, shall instruct the jury, when reviewing all the evidence relating to the determination of the honesty of the accused’s belief, to consider the presence or absence of reasonable grounds for that belief.
1998, c. 9, s. 2.

– CCC

Proving the Offence

Sexual Exploitation
In addition to the essential elements of time, location, and identity, the prosecution should prove:

the complainant was a young person (between 16 and 17 years old)
the accused was in a position of trust or authority with respect to the complainant, the complainant was dependant upon the accused, or the complainant was in an exploitive relationship
the accused touched a party of the complainant's body
the touching was direct (with the body of the accused) or indirectly ( with an object)
the touching was for a sexual purpose

Interpretation

"Young Person"

Under s. 153(2), "young person" for this offence means "a person 16 years of age or more but under the age of eighteen years."

Position of Trust or Authority

Where the accused runs the operation that employs the complainant and is physically larger than the complainant is not sufficient on its own to establish a position of trust or authority over the complainant. ^[1]

A teacher will be in a position of trust absent exceptional circumstances.^[2]

↑ R. v. Caskenette (1993), 80 C.C.C. (3d) 439 - Accused testified that he was not regularly on the work site
↑ R v McLachlan, 2012 SKCA 74 (CanLII)

Sexual Exploitation

The meaning of "exploitive relationship" is largely determined by the scope of the other types of relationships set for in ss. (1.2). (R. v. Anderson, 2009 PECA 4 at 67)

Of some use is the definition of "exploitive" from Black’s Law Dictionary 8th ed. which defines it as "the act of taking unfair advantage of another for one’s own benefit."^[1]

Inference of sexual exploitation
(1.2) A judge may infer that a person is in a relationship with a young person that is exploitative of the young person from the nature and circumstances of the relationship, including

(a) the age of the young person;

(b) the age difference between the person and the young person;

(c) the evolution of the relationship; and

(d) the degree of control or influence by the person over the young person.

– CCC

↑ R. v. Anderson, 2009 PECA 4 at 68

Included Offences

Sexual assault is not an included offence. Exploitation is a specific intent offence and involves more subjective proof than sexual assault.^[1]

↑ R. v. Nelson (1989), 51 C.C.C. (3d) 150, Philp J. (Ont. H.C.)

History

In 2005, "An Act to amend the Criminal Code (protection of children and other vulnerable persons) and the Canada Evidence Act, S.C. 2005, c. 32" amended 153(1) and added 153(1.1) and (1.2). It came into force November 1, 2005.

In 2008, "Tackling Violent Crime Act, S.C. 2008, c. 6" added s. 153(2). It came into force May 1, 2008.

[1] R. v. Caskenette (1993), 80 C.C.C. (3d) 439 - Accused testified that he was not regularly on the work site

[2] R v McLachlan, 2012 SKCA 74 (CanLII)

[3] R. v. Anderson, 2009 PECA 4 at 68

[4] R. v. Nelson (1989), 51 C.C.C. (3d) 150, Philp J. (Ont. H.C.)

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