Sexual exploitation | Toronto Criminal Lawyers
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S 153 of the Criminal Code: Sexual Exploitation

The offence sexual exploitation prohibits both sexual contacts as well as an invitation to engage in sexual contact between a young person and a person who holds a position of trust or authority over the young person.   

  1. (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 friendship with a young person that is exploitative of the young person, and who
    (a) for a sexual purpose, touches, directly or directly, 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.

(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 for a term of 90 days

(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.

(2) in the section “young person” means a person of 16 years of age or more but under the age of eighteen years. 

Common Questions:

If I am contacted by police what should I do regarding an allegation of sexual exploitation?

Contact a lawyer immediately.  Your lawyer should talk to the police in advance of any discussions you have with the authorities.  Your lawyer should act as the intermediary to determine whether the police intend to charge you or are just conducting an investigation.  The police have a direction and mission when conducting their investigation and in most cases, your lawyer will advise you not to talk to the police.  We have in some cases spoken to police, advised our client not to attend to discuss matters with police and charges were never laid. 

If arrested or detained what should I do?

Exercise your right to consult counsel.  Exercise your right to remain silent.  Do not pick and chose which questions to answer.  The police are allowed to lie to you about what evidence they have as a means to get you to talk to them. Put simply, at this point you are like a prisoner – give them your name, address and date of birth and nothing else.  Even the most simple questions with obvious answers should not be responded to except with I wish to exercise my right to remain silent.

If the police ask for my phone and computer what should I do?

Do not provide any information voluntarily without talking to a lawyer first.  The police will need search warrants to authorize the seizure and search of these devices.  Do not provide your security passwords. Refusal or failure to provide these items cannot be used against you at your trial.

Note, if pictures have been transferred digitally, this can lead to further charges of possession of child pornography or distribution of child pornography and if pictures were taken, the charge of making child pornography is also a possibility.

How can you win against a charge of sexual exploitation?

We have won many cases for clients charged with sexual exploitation.  Each case depends on its own facts. In some instances, the case will reduce itself to he said/she said scenario where there is no reason to believe on a person over the other.  In these situations, the accused must be acquitted.  

In other cases, the evidence of the complainant after cross-examination has been so unreliable that the Crown has not been able to establish proof beyond a reasonable doubt.  

If an inculpatory statement has been made to the police, there may be avenues available to keep that statement out.  

In addition, if the case involves seizure and search of digital devices, those searches may be subject to challenge and the evidence obtained is excluded.  

The onus is on the Crown to prove the charge beyond a reasonable doubt.  There is no onus on the defence to prove anything. 

What falls in the category of dependence or trust in sexual exploitation charges?

Teacher/student and doctor/patient relationships would in almost every circumstance fall into the category of dependence or trust. Other examples are parent, step-parent, foster parent, adoptive parent, common-law partner or child’s parent, grandparent, uncle, aunt baby sitter group home worker and employer.

Coaches, and activity leaders, and co-workers may be in positions of trust or authority towards the young people they are supervising but not necessarily inevitably as courts look at the entirety of the relationship to determine if such a relationship, in fact, existed at the time the sexual activity took place.

Courts will consider the age of a young person, the age difference between the two parties, the evolution of the relationship, and the degree of control or influence by the person over the young person.

What must the Crown prove?

Section 153 limits the circumstances in which young persons are legally capable of consenting to sexual activity. In order for the section to be engaged the Crown must prove:

  1.  one of the parties to the sexual activity must be a young person (between 16 and 18), and 
  2.  must also be in a position of dependency, trust or in a situation that is inherently exploitive.
  3.  And that sexual activity or the counselling/inciting of sexual activity occurred.

If there is not a relationship of trust or authority between the parties and provided the young person otherwise freely consents to the sexual activity no offence is made out.    

What if the accused believed the young person was 18 years of age or older?

 

  1. 150.1(5) states clearly that it is a complete defence to the charge if the accused honestly believed that the young person was 18 or older provided the accused took all reasonable steps to ascertain the age of the complainant.  What qualifies as reasonable steps will depend on the circumstances of each case.

What if the complainant consented to the sexual activity?

Consent of the young person is not a defence to the charge of sexual exploitation.

What if the allegations are historical     

These cases are often more difficult for the Crown to prove beyond a reasonable doubt.  There is no requirement or onus on the accused to speculate as to why many years later the complainant is making the allegations.

What if the chances of success at trial are not very good?

Firstly, you will get straight answers from us.  If it appears that your chances at trial are not good, we will advise you accordingly.  We will help you make your decision as to how to proceed.  Should you instruct us to negotiate a resolution rather than go to trial there remains a number of steps we can take on your behalf.  We may try to negotiate a resolution to a lesser charge. We will likely arrange for you to take counselling. We would likely arrange for you to undergo a risk assessment relating to possible future issues. If the Crown refuses a lesser charge, we will attempt to persuade them to proceed by summary conviction rather than an indictment. We would conduct a judicial pretrial with a Judge and present your personal circumstances to obtain the least sentence possible.  

It is possible to proceed along the path for trial and at the same time canvass various possible resolutions short of a trial.            

What are the penalties if convicted of sexual exploitation?

If the Crown proceeds by way of indictment on the charge of sexual exploitation there is a minimum term of imprisonment of 1 year. (note:  the minimum sentence is subject to constitutional challenge – many minimum sentences have been struck down by the courts).  The maximum penalty is 14 years.

If the Crown proceeds by way of summary conviction, there is a minimum sentence of 90 days and a maximum sentence of 2 years. 

Persons convicted under this section are also placed on the sex offender registry pursuant to the Sex Offender Information and Registry Act (SOIRA) and the Ontario Sex Registry Act (Christopher’s Law).

How can we help?

Experience: Each of the senior partners has over 35 years of criminal law defence experience and have successfully defended clients facing the charge of sexual exploitation many times.

Communication: We will provide you with the advice you need and you will get the straight forward answers. We will work together to construct your defence. It is important that you know that your lawyer is in your corner and easy to communicate with.

Free Consultation: We will take the time to provide you with a free consultation to review your situation.

Availability: We are available 24/7. Our clients are given our cellular numbers so that they can reach us at any time in case of emergency. We exchange text messages and emails when appropriate. Meetings are arranged to keep you involved and up to date on the progress of your file.

Payment Plans: Nobody plans on hiring a criminal defence lawyer and therefore we will do our best to accommodate your financial situation. We will set up payment plans to cover the costs for your defence.

Commitment: We are committed to providing the best criminal defence available. In our business winning is everything.

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