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Criminal - Sexual Exploitation. R. v. J.B.
In R. v. J.B. (Ont CA, 2026) the Ontario Court of Appeal allowed a criminal appeal, here brought against convictions on "two counts of sexual exploitation" and some other sex charges.
Here the court canvasses the law of sexual exploitation [CCC 153]:1. Legal background: the offence of sexual exploitation
[8] Pursuant to s. 150.1(1) of the Criminal Code, no one under the age of 16 years old can provide legal consent to sexual activity, except in certain statutorily-defined circumstances, such as those set out in ss. 150.1(2), (2.1) and (2.2) of the Criminal Code.[5] Therefore, in general, for purposes of the criminal law, those who have attained the age of 16 years old are legally capable of consenting to sexual activity with others.
[9] Of course, there are exceptions to this general rule that sexual touching is not an offence if consent is obtained from a person who is 16 or more, and this appeal fixes on one of them. Section 153(1) of the Criminal Code sets out the offence of sexual exploitation, an offence that for all intents and purposes criminalizes sexual activity with a “young person” – 16 years of age or above but under 18 years of age – if the accused is in one of four types of relationships relative to the young person: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. [Emphasis added.] [10] As can be seen, the four types of relationships captured by s. 153(1) are: (1) positions of trust; (2) positions of authority; (3) relationships of dependency; and (4) exploitative relationships. As can also be seen, the offences found in ss. 153(1)(a) and (b) are the equivalent of sexual interference in s. 151 and invitation to sexual touching in s. 152 of the Criminal Code. This means that, by virtue of s. 153(1), sexual interference and invitation to sexual touching become offences when perpetrated against those who are 16 and 17 years old, if one of the four relationships exists between the young person and the accused. In these circumstances, ostensible consent to the sexual activity is irrelevant.
[11] The Criminal Code does not define “position of trust”. As discussed below, of all the relationships set out in s. 153(1), trust is the most difficult to define. The Supreme Court and this court have established a number of factors to assist in making that determination: R. v. Audet, 1996 CanLII 198 (SCC), [1996] 2 S.C.R. 171; R. v. Aird, 2013 ONCA 447, 307 O.A.C. 183. Those factors include: (1) the age difference between the accused and the young person; (2) the evolution of their relationship; (3) the status of the accused in relation to the young person; (4) the degree of control, influence or persuasiveness exercised by the accused over the young person; and (5) the expectations of the parties affected, including the accused, the young person and the young person’s parents or guardians: Aird, at para. 28. As detailed below, the trial judge purported to apply these factors as summarized in R. v. R.T., 2017 ONSC 2625.
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[39] Following his review of the facts, the trial judge reviewed the law, including the Supreme Court’s decision in Audet. As for the relevant factors to be considered in determining whether the accused was in a position of trust, he drew upon the list set out in R.T., at para. 36. This list, which is similar, although not identical, to this court’s list in Aird, reads as follows:. The age difference between the accused and the young person – the higher the age difference, the more likely it is that the relationship is a trust relationship.
. The status of the accused – the more formal the status (teacher, father figure, big brother, mentor, etc.), the more likely it is that the relationship is a trust relationship.
. The degree of control, influence or persuasiveness exercised by the accused over the young person.
. The expectations of the parties affected, including the accused, the young person and the young person’s parents.
. The vulnerability of the young person – i.e. his or her level of intelligence, sophistication, independence, and maturity and relationship with his or her parents.
. Any grooming, pressuring, or incentivising behaviour on the part of the accused – i.e. denigrating the young person’s parents; engaging in sexual discussions and sexualizing the young person; and offering benefits, particularly things the young person cannot get or do at home (drugs, alcohol, etc.) [40] I would pause here to note that although the last factor mentioned in this list – grooming, pressuring and incentivising – was broken out into a separate category for consideration in R.T., and then repeated in the trial judge’s rendition of the law, one is left wondering about the need for this category. In Aird, Laskin J.A. reinforced the need to consider whether the accused exercised “control, influence or persuasiveness” over the young person. Although nothing turns on it in this appeal, grooming, pressuring and incentivising is all part and parcel of the Aird factor involving control, influence and persuasiveness. I would also note that this list of factors leaves out, perhaps by oversight, one of the Aird factors previously reviewed in these reasons, specifically, the evolution of the relationship.
[41] Having reviewed the law, the trial judge went on to apply the law to the facts as he found them.
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[61] As already discussed, a 16- and 17-year-old can consent to sexual activity, but there can be no consent if the relationship between the young person and the accused falls into one of the four categories of relationships governed by s. 153(1) of the Criminal Code. Parliament criminalized sexual activity in the context of those relationships because it is accepted that 16- and 17-year-olds are still at a tender time in their lives, and thus in a heightened state of vulnerability in certain relationships involving power imbalances: Aird, at para. 28; Audet, at para. 14. In determining whether one of those relationships exists, it is irrelevant “[t]hat the young person consents, does not appear vulnerable, or does not subjectively view the relationship as one of trust, authority, or dependency or as exploitative”: Aird, at para. 24.[7]
[62] Of all the relationships set out in s. 153(1), relationships of trust are the most difficult to define: Jeremy Patrick, “Sexual Exploitation and the Criminal Code” (2006) 43:4 Alta. L. Rev. 1057, at pp. 1062-1063. Parliament elected to not define “position of trust” or to enumerate the specific categories (e.g., teacher) that would give rise to a position of trust under s. 153(1). This is likely because of the varied circumstances in which such relationships can arise and because of the “very fact specific nature of such an inquiry”: Aird, at para. 27, citing R. v. P.S., [1993] O.J. No. 704 (Gen. Div.), at para. 31; aff’d R. v. Sharma, [1994] O.J. No. 3775 (C.A.).
[63] In the absence of a statutory definition of “trust”, the Supreme Court considered its meaning for purposes of sexual exploitation. La Forest J. noted its primary meaning: “[c]onfidence in or reliance on some quality or attribute of a person or thing, or the trust of a statement”: Audet, at para. 35. He then noted that the word “confidence” is defined as the “mental attitude of trusting in or relying on a person or thing; firm trust, reliance, faith.” [8] As La Forest J. put it, the definition of “position of trust” must be understood in light of the purpose pursued by Parliament, namely protecting the interests of young persons who are, by virtue of the relationships in which they find themselves, “in a position of vulnerability and weakness in relation to those persons” [emphasis in original]: at para. 36. Similarly, the purpose of s. 153(1) should infuse the determination in each case.
[64] In an attempt to provide more concrete guidance on how to recognize when an adult’s position relative to a young person has crystalized in a position of trust, La Forest J. in Audet listed three factors that would act, in “many cases”, as relevant indicia of such a position: (1) the age difference between the accused and the young person; (2) the evolution of their relationship; and (3) “above all” the status of the accused: Audet, at para. 38.
[65] Building upon the Audet criteria in Aird, Laskin J.A. pointed to two additional factors: (1) the degree of control, influence or persuasiveness exercised by the accused over the young person; and (2) the expectations of the parties affected, including the accused, the young person and the young person’s parents or guardians: at para. 28.
[66] Importantly, these factors are not a legal test or a mechanical checklist (e.g., three or more factors equals a position of trust). Rather, they are relevant considerations that include indicia or hallmarks of relationships of trust for purposes of s. 153(1). They also include other relevant considerations. No one consideration is determinative of a trust relationship, and all are to be interpreted in accordance with the primary meaning of “trust”: Audet, at para. 35; Aird, at para. 29. What follows is a brief review of the Audet/Aird factors and how they assist in determining those relationships that are positions of trust for purposes of s. 153(1).
a. Status
[67] The first and foremost factor is the question of “status”. I say first and foremost because in Audet, at para. 38, La Forest J. was clear that, in most cases, the status of the accused would be “above all” relevant in determining whether the accused stood in a position of trust vis-à-vis the young person. In other words, although “status” is not determinative of a position of trust, it will be highly relevant in most cases.
[68] As reflected in the case law[9] and Watt’s Manual of Criminal Jury Instructions, “status” envelops the accused’s role vis-à-vis the young person. The role may be a formal one or an informal one, but the accused’s status is highly germane to identifying a trust relationship founded on confidence in and reliance upon the adult not to exploit the privileged position they have assumed.
[69] Generally speaking, where the adult has taken on a formal role – such as a teacher, a coach, a choir director, a tutor, etc. – it is more likely that they will be in a position of trust: R.T., at para. 36. As stated in Audet, “certain persons, by reason of the role entrusted to them by society, will in fact and in the vast majority of cases come within the ambit of s. 153(1) by reason of their status vis-à-vis the young person and, in particular, the relationship they are engaged in with that young person as a consequence of such status”: at para. 40. Teachers, for example, generally occupy positions of trust as they are entrusted with the responsibility of educating students, are inextricably linked to the integrity of the school system, exercise influence over students and may be perceived to be “wearing their teaching hats even when off duty”: at para. 41.
[70] Determining whether an adult was in a position of trust can become more difficult where the adult was not in a formal role relative to the young person, where the adult’s role changed or where the adult had more than one role. These cases fall along a spectrum and, of course, each must be considered on its particular facts.
[71] Where an adult has undertaken an obligation or responsibility relative to the young person, the adult may be more likely to be in a position of trust. The fact that an adult has an obligation or responsibility toward the young person at the time of the sexual encounter may increase the power imbalance between them, and the young person or their parents or guardians may be more likely to rely on and have confidence in that adult.
[72] That said, contrary to one of the appellant’s submissions, an adult may be in a position of trust even if the adult has no obligation or responsibility. In Audet, the accused had been the young person’s teacher. But the sexual encounter took place with the young person during the summer vacation. The majority did not identify any obligations or responsibilities undertaken by the teacher relative to the young person while school was out. But in light of the short period of time between the end of the school term and the sexual encounter, and the likelihood that the accused would again be the young person’s teacher when school resumed in the fall, the majority found a position of trust to exist at the time of the sexual encounter. In other words, the position of trust persisted despite the official teacher role being on pause. This conclusion aligns with the purpose of s. 153(1) – to protect young people where there is a power imbalance.
b. Degree of control, influence or persuasiveness
[73] Another key factor to be considered is the degree of control, influence or persuasiveness exercised by the adult. As a consequence of the confidence and reliance at the core of a relationship of trust, the adult is in a privileged position to influence, persuade or control the young person. Section 153(1)’s very purpose is to safeguard a young person against the abuse of such a position.
c. Expectations of the parties
[74] Another important factor is the expectations of the parties. This includes not just the expectations of the young person but also the expectations of the adult and, if relevant, the expectations of the young person’s parent(s) or guardian(s). As noted, an adult may be in a position of trust even if the young person does not subjectively view the relationship as one of trust. Accepting that subjective expectations may nonetheless be relevant in some cases, an element of objectivity must come into play. For instance, in Aird, at para. 36, where the accused was a student teacher hired to tutor the complainant, Laskin J.A. noted that the complainant and her mother “looked to the appellant for his help and guidance.” In the circumstances, the complainant was “entitled to trust that he would not take advantage of his position and use it to start a sexual relationship with her”: Aird, at para. 36 (emphasis added). In other words, the complainant and her mother had a reasonable basis to trust or rely upon the accused to not abuse his privileged position. Conversely, the accused ought to have known that the complainant and her mother were relying upon him to maintain a professional relationship.
d. Age difference
[75] To state the obvious, s. 153(1) liability typically only arises where an adult invites sexual touching or engages in sexual touching with a young person. The fact that there is an age difference is not determinative since it is not illegal for an adult to engage in consensual sexual touching or to invite sexual touching with a young person unless the adult falls within one of the four s. 153(1) categories. That said, as the case law recognizes, a large age difference between the adult and young person may be important, as it may suggest a greater reason for the young person to have confidence in and place reliance on the adult, and in turn give the adult a greater ability to persuade, control and influence the young person.
e. Evolution of the relationship
[76] Finally, as Audet and Aird recognize, relationships may change and evolve over time. The question for the trier of fact is whether a position of trust existed at the time of the sexual touching. The answer to the question will be influenced by what position the adult held relative to the young person before the sexual touching, and also by the parties’ expectations, reasonably derived, as to the future relationship. This case illustrates why the “evolution of [the] relationship” is a relevant factor.
f. Summary
[77] In summary, the key factors that can assist in determining whether an adult is in a “position of trust” for purposes of s. 153(1) are the accused’s status, their ability to persuade, influence or control the young person (which may arise from their status), and the expectations of the parties (which may be shaped by the accused’s status). In assessing those factors, the age gap and the evolution of the relationship may be relevant. An adult who has undertaken an obligation or responsibility relative to a young person may be more likely to be in a position of trust than one who has not done so. In considering the relevant factors, the trier of fact must not lose sight of the ultimate question the factors are to inform—whether the adult was in a relationship founded on notions of confidence and reliability, which are the essentials of a position of trust, at the time of the sexual touching. Parliament elected not to criminalize sexual relationships between those who are 16 or 17 and adults, based solely on age or because of society’s disapproval. Rather, s. 153(1) targets categories of relationships that render the young person particularly vulnerable to sexual exploitation. . R. v. R.S.
In R. v. R.S. (Ont CA, 2023) the Court of Appeal considered the 'position of trust or authority towards a young person' element of the charge of sexual exploitation [CCC 153(1)(a)]:[11] The offence of sexual exploitation under s. 153(1)(a) of the Criminal Code, as it stood prior to 1998, provided that it was an offence for an adult to have sexual contact with a person that is 14 or older, but under the age of 18 (a “young person”), where the young person was in a relationship of dependency with the adult, or where the adult was in a position of trust or authority towards the young person. In these circumstances, any apparent consent of the young person to sexual activity was irrelevant.
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[42] Moreover, contrary to the defence submission, it was not necessary for the Crown to prove that the complainant herself viewed the relationship as one of trust: R. v. Aird, 2013 ONCA 447, 307 O.A.C. 183, at para. 24. As the trial judge correctly pointed out, it is sufficient if, having regard to the age differential between the young person and the accused, the evolution of their relationship, and the status of the accused in relation to the young person, the court is satisfied beyond a reasonable doubt that the accused was in a position of trust: R. v. Audet, 1996 CanLII 198 (SCC), [1996] 2 S.C.R. 171, at para. 38.
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