Position of Trust as a Factor in Sentencing

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General Principles

It is an aggravating factor in sentencing for the offender to have been in a position of trust.[1] A position of trust is distinctive from a position of authority and will be determined on the specific facts including the conduct of the offender.[2]

"Position of trust" is not defined in the criminal code. Courts will occasionally resort to the use of dictionary definition to interpret its meaning.[3]

"Trust" refers to "confidence in or reliance on some quality or attribute of a person".[4] In considering whether there is a position of trust, courts must consider parliament's purpose in protecting young persons who are vulnerable and weak in relation to the accused.[5]

The existence will depend on "all the factual circumstances relevant to the characterization of the relationship".[6]

Considerations include:[7]

  • difference in ages
  • evolution of the relationship
  • status of the accused in relation to the victim

Limited Trust Positions
Adult persons who enter into relationships with young persons can put themselves into "qualified positions of trust" or form "low-end trust relationships".[8]

Child Abuse
A person who is a babysitter will generally be considered in a position of trust.[9]

Employees
An aircraft maintenance employee is not in a position of trust with respect to passengers on a plane.[10]

  1. see s. 718.2(a)(iii)
  2. Audet 1996 CanLII 198 (SCC), [1996] 2 SCR 171
  3. R. v. M.C., 2012 ONSC 2505 (CanLII), at para 26
  4. Audet at para 35
  5. Audet at para 36
  6. Audet, ibid.
  7. Audet
  8. see R v Fones, 2012 MBCA 110 (CanLII), [2012] M.J. No. 407, para 68
    R v R. (G.W.), 2011 MBCA 62 (CanLII), [2011] M.J. No. 246, para 42
  9. e.g. R v A.G.A., 2010 ABCA 61 (CanLII)
  10. R v Rocha, 2012 ABPC 24 (CanLII) - offence of voyeurism by taking photos up the skirt of a passenger

See Also