153

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.

Punishment

(1.1) Every person who commits an offence under subsection (1)

(a) is guilty of an indictable offence and is liable to imprisonment for a term of not more than 14 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 two years less a day and to a minimum punishment of imprisonment for a term of 90 days.

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.

Definition of young person

(2) In this section, young person means a person 16 years of age or more but under the age of eighteen years.a

Annotations | French

• Section 153
• Elements of the Offence:
• Sexual exploitation applies to four distinct categories of individuals:
  • (1) Those who are in a position of trust towards a young person;
  • (2) Those who are in a position of authority with respect to a young person;
  • (3) Those with whom the young person has a relationship of dependency or reliance; and
  • (4) Those who are in an exploitative relationship with a young person.
• An individual who falls into one or more of the above categories is prohibited from engaging in the sexual activities described in paragraphs (a)-(b) of subsection (1). For the purposes of this section, “young person” is defined under subsection (2) as those who are 16 years or older but under the age of 18; R v Audet, [1996] 2 SCR 171 at para 16; R v Anderson, 2009 PECA 4 at paras 64, 71.
• Under subsection 1, the Crown must prove beyond a reasonable doubt that:
  • (1) The complainant is a "young person" within the meaning of subsection (2);
  • (2) The accused had the intention to engage in one or more of the activities referred to in subsection (1);
  • (3) The accused engaged in one or more of the activities referred to in subsection (1) for a sexual purpose;
  • (4) The accused was in a position of trust, authority, dependency, or an otherwise exploitative relationship with the young person.
• The Crown does not need to establish that an accused "actually" abused their power or position in regard to the young person to obtain their "consent" for the sexual activities. Activity falling under this subsection is criminal regardless of whether it is consensual. because it is always the responsibility of the adult to decline sexual contact with a young person; R v Audet, [1996] 2 SCR 171 at paras 16, 22-23, 26 (SCC); R v Hann, [1990] NJ No 342 (TD); R v G(TF), [1992] OJ No 264 at paras 5-6 (Ont CA), leave to appeal to SCC refused, [1992] 3 SCCA No 398; R v PBB, 2007 ONCA 722 at paras 6-7, leave to appeal to SCC refused, [2007] SCCA No 616.
• The fact that the young person appears to consent to the sexual activity, does not appear vulnerable, or does not view the relationship as one of trust, authority, dependency, or as exploitative is not relevant to the analysis under subsection (1); R v Aird, 2013 ONCA 447 at para 24 (Ont CA); R v PS, [1993] OJ No 704 at para 30(ONCJ); R v Audet, [1996] 2 SCR 171 at para 16 (SCC); R v Anderson, 2009 PECA 4 at paras 52; R v Guitard, 2002 NBCA 99 at para 23; R v Friesen, 2020 SCC 9 at paras 151, 154.
• The Crown must prove that the touching identified in ss. 153(1)(a) and (b) is for "sexual purpose". The test is objective and considers whether, in the circumstances, a reasonable observer would be able to see the "sexual or carnal" context of the assault. Some of the relevant (but non-exhaustive) considerations in this inquiry are:
  • (1) The area of the body touched;
  • (2) The nature of the contact;
  • (3) The situational context in which it occurred;
  • (4) Any words and gestures accompanying the act; and
  • (5) Any other circumstance surrounding the conduct, including threats and application of force.
• The accused’s intent may be a relevant factor in determining if the conduct was sexual, including for a motive of sexual gratification. However, a motive of sexual gratification is not necessary for a finding of sexual purpose; R v Trachy, 2019 ONCA 622 at para 3; R v Chase, 1987] 2 SCR 293 at para 11 (SCC); R v D.C.S., 2023 NSSC 255 at para 53
• General Principles
• When assessing whether a sexually exploitative relationship between an accused and a young person exists, the perspective of the young person's family in the matter is relevant but not determinative to the analysis. For instance, the amount of trust the family of a young person places on the accused may be relevant to whether they were in a position of trust, authority, dependency, or an otherwise exploitive relationship; R v D(C), [2000] OJ No 1667 at para 76-78 (Ont CA); R v L (DB), [1995] OJ No 2775 at para 7 (Ont CA).
• An accused viewing the relationship as high stakes where they would personally have "a lot to lose" through the discovery of their relationship with a young person does not mean that the young person held a position of strength in the relationship. It is not determinative of whether that relationship was exploitative; R v Olson, 2016 BCPC 150 at para 58.
• A difference in age is not determinative of the nature of the relationship. A significant gap in age between the accused and the young person may support the conclusion that the accused was in a position of trust, authority, or dependency with the young person. However, the court is not prevented from finding that the relationship falls into one of the four categories under subsection (1) when the accused and the victim are close in age; R v L (DB), [1995] OJ No 2775 at para 9;; R v Poncelet, 2008 BCSC 202 at para 58; R v Martin, 2011 ONCJ 401 at para 32, 38-39.
• Adults in a Position of Trust or Authority
• When assessing whether a relationship of trust exists between an adult and a young person, several non-exhaustive considerations include:
  • (1) The age gap between the accused and young person;
  • (2) How their relationship evolved;
  • (3) The accused's status compared to the young person;
  • (4) The accused's degree of control, influence, or persuasiveness exercised over the young person; and
  • (5) The expectations of the parties affected, which includes the accused, the young person, and their parents.
• R v Aird, 2013 ONCA 447 at para 28; R v Audet, [1996] 2 SCR 171 at para 38, (SCC); R v G(G), 2001 BCCA 462 at para 71.
• “Position of trust” and “position of authority” are legally different categories. However, they are related because a position of authority involves a power imbalance, requiring the ability to influence or control the future outcomes of the young person. While a “position of trust” may have those characteristics; it is not required. A position of trust is founded on notions of safety, confidence, and reliability that the nature of the relationship will not be breached.; R v Kyle, [1991] OJ No 2009, (Ont CA); R v PS, [1993] OJ No 704 at para 37 (ONCJ); R v EJB, 2017 ABCA 176 at paras 11-17.
• Individuals who areoften considered in a position of trust include a young persons parents and grandparents, legal guardians, foster parents and certain relatives. Even in relationships outside those listed, a position of trust can exist if the relationship creates an opportunity for the accused to persuade or influence the young person. The vulnerability of the young person to such influence is also a factor to be considered; R v PS, [1993] OJ No 704 at paras 33, 36 (ONCJ).
• In most cases, teachers will be in a position of trust or authority with respect to their students. However, it is possible that a teacher will not be in a position of trust of authority with respect to a particular student, but these cases will be rare and require evidence. For example, even when school is not in session (i.e., during the summer months), a teacher may still be in a position of trust or authority with a student, especially if there is a chance the student will be in their class the next school year. This approach does not undermine the accused's presumption of innocence. The presumption does not require the defence to prove that a teacher-student relationship is not a relationship of trust. Rather, the accused will be required to lead some evidence to reject such a characterization of their relationship. It then falls to the Crown to prove beyond a reasonable doubt that the relationship between the teacher and student is one of trust or authority.; R v Audet, [1996] 2 SCR 171 at paras 43-47 (SCC); R v Hann, [1990] NJ No 342 (NLTD).
• Boarding schoolteachers and administrators are placed in a more significant position of trust with students because they take the place of the student's parents while they are attending school and away from home; R v Olson, 2016 BCPC 150 at para 59.
• An aspect of “ongoing control” that an accused has over a part of the young person’s life is relevant to the analysis of whether there is a position of trust or authority. For instance, a teacher will have ongoing control over the student when they are no longer their teacher if they continue to teach at the school the student attends while supervising clubs they are involved in; R v Dussiaume, 98 CCC (3d) 217 at p 2-3 (Ont CA), leave to appeal to SCC refused, [1995] 4 SCCA No 272.
• Relationships of Dependency
• A relationship of dependency will involve reliance by the young person on an adult who is in a position of power, trust, or authority, creating a power imbalance. The analysis is fact-dependent, and all the circumstances surrounding the offence must be considered. A young person's reliance on the accused can prove the existence of dependency between the young person and the accused. For example, an exchange of sexual services for goods that the young person becomes reliant upon can create a relationship where the young person is dependent upon the accused; R v Galbraith, [1994] OJ No 808 (Ont CA), leave to appeal to SCC refused, [1994] SCCA No 278.
• Exploitative Relationships with Young Persons
• An exploitative relationship can arise where there is a power imbalance between a young person and an adult even when there is no relationship of trust, authority, or dependency between the two. For a finding of exploitation, the relationship between the parties must be exploitative even in the absence of sexual conduct. This means that the sexual conduct between the accused and complainant cannot be the factor that makes the relationship exploitative. A power imbalance between the parties should be assessed by looking at all the surrounding circumstances, including those set out under subsection 1.2. An exploitative relationship will be found where there is a power imbalance between the adult and young person that makes the young person vulnerable to the conduct and actions of the adult; R v Anderson, 2009 PECA 4 at paras 64, 71, 74.
• Relevant to a consideration of an exploitative relationship is whether the accused insisted that the relationship cease and only resumed upon the strong insistence of the young person. Evidence of this nature can be exculpatory for the accused: R v Anderson, 2009 PECA 4 at para 85.
• The Mandatory Minimum Sentence is Constitutional
• The mandatory minimum sentence under paragraph 153(1.1)(a) is constitutional and does not violate section 12 of the Charter. The vulnerability of young persons captured under subsection (2) and the high degree of moral blameworthiness for sexual exploitation (a specific intent offence) make the one-year minimum sentence proportionate to the offence; R v EJB, 2018 ABCA 239 at para 74; R v Friesen, 2020 SCC 9 at para 114. Defences
• Under subsection 150.1(5), an accused can defend themselves from a sexual exploitation charge if:
  • (1) They believed the complainant was over 18 at the time of the sexual encounter; and
  • (2) They took all reasonable steps to ascertain this information.
• R v Slater, 2005 SKCA 87 at para 23; R v Osborne, [1992] NJ No 312 at para 59 (NLCA); R v Akumu, 2017 BCSC 527 at para 6.
• The requirement to take "all reasonable steps" to ascertain the complainants age is assessed contextually, measuring the steps taken by the accused compared to a reasonable personThe accused must take reasonable steps to ascertain the young person's age before the sexual contact occurs. Only the information known to the accused before the encounter can be assessed in the reasonable steps analysis. In some circumstances, an accused's visual observation that the complainant was 18 or older will be enough. Whether further steps are required depends on whether they are reasonable in the circumstances, and includes (but is not limited to):
  • (1) The knowledge of the accused regarding the complainant's physical appearance and behaviour;
  • (2) The ages and appearance of those the complainant is around;
  • (3) The activities engaged in by the complainant individually, or as part of a group; and
  • (4) The times, places, and other circumstances where the accused observes the complainant's conduct.
• The more reasonable an accused’s perception of the complainant’s age, the fewer steps reasonably required of them; R v Akumu, 2017 BCSC 527 at para 7; R v LTP, [1997] BCJ No 24 at para 20 (BCCA); R v George, 2017 SCC 38 at para 9; R v Duran, 2013 ONCA 343 at paras 52-54; R v Osborne, [1992] NJ No 312 (NLCA).
• After looking at the above factors, a court should assess whether a reasonable person in the same circumstances as the accused would believe that the complainant was 18 years or older. If not, they must identify what other steps a reasonable person in the situation would have taken to ascertain the complainant's age; R v LTP, [1997] BCJ No 24 at para 20 (BCCA).
• While the accused's state of mind is relevant to the analysis, their belief that they took all reasonable steps in the circumstances may not necessarily align with what a reasonable person would have done in the situation; R v Hayes, [1991] AJ No 1232 at para 27 (ABQB); R v LTP, [1997] BCJ No 24 at para 20 (BCCA).
• The accused is not required to testify and give evidence supporting their defence of mistaken belief; however, a failure to do so may compromise the accused’s ability to meet their evidential burden. This burden essentially requires some evidence beyond the claim that they were mistaken about the complainant's age in order to adequately raise a defence; R v Osolin, [1993] 4 SCR 595 at 686-687 (SCC); R v Moise, 2016 SKCA 133 at para 23; R v Slater, 2005 SKCA 87 at paras 22-25.
• The fact that a complainant initiated a discussion about sexual intercourse for money with an accused does not dimmish the requirements necessary under subsection 150.1(5). An accused cannot assume a complainant was 18 or older simply because they are a sex trade worker; R v Moise, 2016 SKCA 133 at para 33; R v Akumu, 2017 BCSC 527 at para 48; R v Gashikanyi, 2015 ABCA 1 at para 16.
• The “private use exception” to making and possessing child pornography under s. 163.1. does not apply to the offence of sexual exploitation. The private use exception covers visual recordings that:
  • (1) Do not depict unlawful sexual activity;
  • (2) Are created with the consent of participants; and
  • (3) That are held for private use only.
• Sexual exploitation fails to meet the first portion of the private use exception because it is an offence for an adult to engage in sexual activity with young persons in a relationship based on exploitation, dependency, trust, or authority. If the Crown relies on sexual exploitation to refute the legality of the depicted sexual activity, a judge must determine whether the recordings occurred in the context of an exploitative relationship, and if they did, the private use exception will not apply; R v Barabash, 2015 SCC 29 at paras 1, 18-23, 53.
• Jury Charges
• When charging a jury for the offence of sexual exploitation, judges must ensure that they do not leave the jury to decide whether the accused was in a position of trust, authority, and dependency with the young person if only one of those theories has sufficient evidence to result in a conviction. For example, if there is only sufficient evidence to convict an accused based on findings that they were in a position of trust with the young person, the judge must not invite the jury to also consider if they were in a position of authority or dependency unless there is supporting evidence for those theories; R v GG, 2001 BCCA 462 at para 72.
• Sentencing Principles of Sexual Exploitation
• When sentencing an offender, judges must give primary consideration to the sentencing objectives of denunciation and deterrence under section 718.01 of the Criminal Code. Those factors take precedence over other sentencing objectives, such as rehabilitation of the offender; R v Hajar, 2016 ABCA 222 at para 112.
• To effectively redress sexual violence against young persons, judges must fully comprehend the act's wrongfulness and the current and future harms it causes. Young people are considered a vulnerable population that are disproportionately targeted as the victims of sexual crimes. Sentencing judges must pay particular attention to the groups at greater risk for sexual exploitation, including girls and young women, youth from Indigenous and other marginalized groups, youth with disabilities, and LGBT2Q+ youth. When imposing a sentence in cases of sexual exploitation against a young person who is Indigenous, the court can consider the racialized nature of the crime and the prominence of the sexual victimization of Indigenous youth; R v Friesen, 2020 SCC 9 at paras 50, 68-74.
• In recognition of the severe physical and psychological harms sexual violence causes, sentencing judges must impose sentences that reflect
  • (1) the effects of the offender's actions on the child, their family, caregivers, and community at large.
• R v Friesen, 2020 SCC 9 at paras 50, 58, 74–75.
• In assessing the gravity of the offence, courts must understand and give effect to:
  • (1) The inherent wrongfulness of sexual offences against minors;
  • (2) The potential harm that children experience due to these offences; and,
  • (3) The actual harm that children suffer as a result of these offences.
• Emphasis must be put on the fact that sexual offences committed against children and young persons are inherently wrong and will always pose a risk of serious harm to victims. However, the degree of wrongfulness and actual harm caused will vary in each case. Courts must reject the belief that there is no serious harm to children and young persons without physical violence. Any physical contact of a sexual nature with a child always constitutes a wrongful act of physical and psychological violence; R v Friesen, 2020 SCC 9 at paras 76-79, 82.
• Sentencing courts must consider the "reasonably foreseeable potential harm that flows from sexual violence against children [and young persons] when determining the gravity of the offence." Even if there is no proof the acts have materialized into actual harm to the victim, certain harms associated with sexual violence against children and young persons may only materialize in adulthood. When available, courts shall consider the actual harm experienced by victims as a result of the offence. Victim impact statements will usually provide the best evidence. However, direct evidence from complainants and caregivers is not required for a court to find that a complainant has suffered harm from sexual violence offences; R v Friesen, 2020 SCC 9 at paras 82-90.
• When assessing the offender's degree of responsibility, it is important to consider whether they have an underlying misogynistic attitude toward the sexual objectification of women and girls. This consideration is necessary to address the prevalence of sexual violence against girls under 18 years of age; R v Friesen, 2020 SCC 9 at paras 89, 180.
• Mitigating and Aggravating Sentencing Factors
• A young person's "willing participation" in sexual acts is not a mitigating factor or legally relevant at sentencing; R v Friesen, 2020 SCC 9 at paras 152-154; R v Pritchard, 2005 ABCA 240 at para 7; R v Hajar, 2016 ABCA 222 at para 100.
• Aggravating sentencing factors for sexual exploitation include, but are not limited to:
  • (1) A young person's "extreme vulnerability" due to a developmental disorder;
  • (2) Sexual acts where no protection was used;
  • (3) That the sex act performed by the accused on the victim caused physical pain to the victim;
  • (4) An accused lying about their age to the young person; and
  • (5) Significant age gaps between the accused and the young person.
• R v Deck, 2006 ABCA 92 at para 20; R v Hajar, 2016 ABCA 222 at para 119.