Thursday, June 27, 2013

Sexual exploitation and a position of trust

R. v. Aird, 2013 ONCA 447 holds:

[27]       Parliament chose not to specify the relationships that would constitute relationships of trust under s. 153(1), likely for two reasons: because of the varied circumstances in which these relationships can arise; and because of the "very fact specific nature of such an inquiry":  see 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.).

[28]       The considerations that bear on whether a relationship comes within s. 153 flow from the obvious purpose of this section:  to protect a young person who is vulnerable to an adult because of the imbalance in their relationship.  With this purpose in mind, the courts have identified several considerations relevant to an assessment of whether a relationship of trust exists.  They include:

·                    The age difference between the accused and the young person;

·                    The evolution of their relationship;

·                    The status of the accused in relation to the young person;

·                    The degree of control, influence or persuasiveness exercised by the accused over the young person; and

·                    The expectations of the parties affected, including the accused, the young person and the young person's parents.[1]

See R. v. AudetR. v. C.D., [2000] O.J. No. 1667 (C.A.). See also R. v. D.E., [2009] O.J. No. 1909 (S.C.).

[29]       No one consideration is determinative.  But each one may play a role.  At bottom, "trust", wrote La Forest J. for the majority in Audet, at para. 35, must be "interpreted in accordance with its primary meaning: '[c]onfidence in or reliance on some quality or attribute of a person or thing, or the truth of a statement.'"

No comments: