Sexual Exploitation (Offence)

From Criminal Law Notebook
Jump to navigation Jump to search


Sexual Exploitation
s. 153 and 153.1 of the Crim. Code
Election / Plea
Crown Election Hybrid
summary proceedings must initiate within 12 months of the offence (786(2))
Jurisdiction Prov. Court

Sup. Court w/ Jury (*)
Sup. Court w/ Judge-alone (*)

* Must be indictable. Preliminary inquiry also available.
Summary Dispositions
Avail. Disp. Discharge (730)*

Suspended Sentence (731(1)(a))*
Fine (734)*
Fine + Probation (731(1)(b))*
Jail (718.3, 787)
Jail + Probation (731(1)(b))
Jail + Fine (734)
Conditional Sentence (742.1)*

(* varies)
Minimum 90 days incarceration (153)
Maximum 18 months incarceration (2 years less a day)
Indictable Dispositions
Avail. Disp. Discharge (730)*

Suspended Sentence (731(1)(a))*
Fine (734)*
Fine + Probation (731(1)(b))*
Jail (718.3, 787)
Jail + Probation (731(1)(b))
Jail + Fine (734)
Conditional Sentence (742.1)*

(* varies)
Minimum 1 year incarceration (153)
Maximum 2, 14 years incarceration
Reference
Offence Elements
Sentence Digests

Overview

Offences relating to sexual exploitation are found in Part V of the Criminal Code relating to "Sexual Offences, Public Morals and Disorderly Conduct".

Pleadings
Offence
Section
Offence
Type
Crown Election Defence Election
s. 536(2)
Preliminary Inquiry
s. 153 [sexual exploitation] Hybrid Offence(s) OK Symbol.png OK Symbol.png (* only if Crown proceeds by Indictment) OK Symbol.png (14 years max)
s. 153.1 [sexual exploitation of person with disability] Hybrid Offence(s) OK Symbol.png OK Symbol.png (* only if Crown proceeds by Indictment) X Mark Symbol.png (under 14 years max)

Offences under s. 153 [sexual exploitation] and 153.1 [sexual exploitation of person with disability] are hybrid with a Crown election. If prosecuted by indictment, there is a Defence election of Court under s. 536(2).

Before the Crown can rely on provisions increasing the duration of the weapons prohibition order due to a prior weapons prohibition order notice under s. 727 must be given prior to plea.

Release
Offence(s) Appearance Notice
by Peace Officer

s. 497
Summons
by Judge or Justice

s. 508(1), 512(1), or 788
Release by
Peace Officer
on Undertaking

s. 498, 499, and 501
Release By
a Judge or Justice
on a Release Order

s. 515 to 519
Direct to Attend
for Fingerprints, etc.
Identification of Criminals Act

s. 2 ID Crim. Act
s. 153 [sexual exploitation]
s. 153.1 [sexual exploitation of person with disability]
OK Symbol.png OK Symbol.png OK Symbol.png OK Symbol.png OK Symbol.png

When charged under s. 153 [sexual exploitation] or s. 153.1 [sexual exploitation of person with disability], the accused can be given an appearance notice without arrest under s. 497 or a summons. If arrested, he can be released by the arresting officer under s. 498 or 499 on an undertaking with or without conditions. He can also be released by a justice under s. 515.

Reverse Onus Bail

If police decide to bring the accused before a Justice pursuant to s. 503, there will be a presumption against bail (i.e. a reverse onus) if the offence, prosecuted by indictment, was committed:

  • while at large under s. 515 [bail release], 679 or 680 [release pending appeal or review of appeal] (s. 515(6)(a)(i));
  • "for the benefit of, at the direction of, or in association" with a criminal organization (s. 515(6)(a)(ii));
  • where the offence involved a firearm, cross-bow, prohibited weapon restricted weapon, prohibited device, ammunition, prohibited ammunition or explosive substance, while the accused was subject to a prohibition order preventing possession of these items (s. 515(6)(a)(viii)); or
  • where the accused is not "ordinarily a resident in Canada" (s. 515(6)(b)).
Fingerprints and Photos

A peace officer who charges a person under s. 153 [sexual exploitation] and 153.1 [sexual exploitation of person with disability] of the Code can require that person to attend for the taking of fingerprints, photographs or other similar recordings that are used to identify them under the Identification of Criminals Act.

Publication Bans

For all criminal or regulatory prosecutions, there is a discretionary general publication ban available on application of the Crown, victim or witness to prohibit the publishing of "any information that could identify the victim or witness" under s. 486.5(1) where it is "necessary" for the "proper administration of justice". Other available publication bans include prohibitions for publishing evidence or other information arising from a bail hearing (s. 517), preliminary inquiry (s. 539) or jury trial (s. 648). There is a mandatory publication ban in all youth prosecutions on information tending to identify young accused under s. 110 of the YCJA or young victims under s. 111 of the YCJA.

Section s. 153 [sexual exploitation] and 153.1 [sexual exploitation of person with disability] offences permit a judge to order a discretionary publication ban for sexual offences under s. 486.4 that protects "information that could identify the victim or a witness". Where the witness is under the age of 18 or if in relation to a victim, the order is mandatory under s. 486.4(2).

Offence Designations
Offence(s) Wiretap
Eligible

s. 183
Dangerous Offender
Designated Offence

s. 752
Serious Personal
Injury Offence

s. 752
AG Consent Required Serious Criminality
Offence
s. 36 IRPA
s. 153 [sexual exploitation] X Mark Symbol.png OK Symbol.png (primary) OK Symbol.png X Mark Symbol.png
s. 153.1 [sexual exploitation of person with disability] X Mark Symbol.png OK Symbol.png X Mark Symbol.png (under 10 years max) X Mark Symbol.png

Section s. 153 [sexual exploitation] offences are "primary designated offences" under s. 752 for a Dangerous Offender Order. The offender will be deemed a "substantial risk" for a Long-Term Offender Order under s. 753.1.

Offences under s. 153.1 [sexual exploitation of person with disability] are "designated" offences under s. 752 for dangerous offender applications.

See below in Ancillary Sentencing Orders for details on designations relating to sentencing orders.

Offence Wording

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) [sexual exploitation]

(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.

...
R.S., 1985, c. C-46, s. 153; R.S., 1985, c. 19 (3rd Supp.), s. 1; 2005, c. 32, s. 4; 2008, c. 6, s. 54; 2012, c. 1, s. 13; 2015, c. 23, s. 4.
[annotation(s) added]

CCC


Note up: 153(1) and (1.1)


Sexual exploitation of person with disability

153.1 (1) Every person who is in a position of trust or authority towards a person with a mental or physical disability or who is a person with whom a person with a mental or physical disability is in a relationship of dependency and who, for a sexual purpose, counsels or incites that person to touch, without that person’s consent, his or her own body, the body of the person who so counsels or incites, or the body of any other person, directly or indirectly, with a part of the body or with an object, is guilty of

(a) an indictable offence and liable to imprisonment for a term not exceeding five years; or
(b) an offence punishable on summary conviction.


...
1998, c. 9, s. 2; 2018, c. 29, s. 10; 2019, c. 25, s. 52.

CCC


Note up: 153.1(1)


Draft Form of Charges

See also: Draft Form of Charges
Pre-ambles
"THAT [accused full name] stands charged that, between the <DATE> day of <MONTH>, <YEAR> and <DATE> day of <MONTH>, <YEAR>***, at or near <COMMUNITY/TOWN/CITY>, <PROVINCE>, he [or she]..." OR
"THAT [accused full name] stands charged that, on or about the <DATE> day of <MONTH>, <YEAR>, at or near <COMMUNITY/TOWN/CITY>, <PROVINCE>, he [or she]..." OR
"AND FURTHER at the same time and place aforesaid, he [or she]..."
Code Section Subject of Offence Draft Wording
153 "..., contrary to section 153 of the Criminal Code.
153.1 "..., contrary to section 153.1 of the Criminal Code.

Proof of the Offence

Proving sexual exploitation by sexual touching under s. 153(1)(a) should include:[1]

  1. identity of accused as culprit
  2. date and time of incident
  3. jurisdiction (incl. region and province)
  4. the culprit engaged in prohibited sexual conduct:
    1. the culprit touches something
    2. the touching was of the complainant direct or indirectly
    3. the touching was for a sexual purpose
  5. the complainant was a "young person" (between 16 and 17 years old) at the time of the accused's conduct
  6. the culprit was in a position of trust or authority with respect to the complainant, the complainant was dependent upon the accused, or the complainant was in an exploitative relationship at the time of the accused's conduct

Proving sexual exploitation by invitation to sexual touching under s. 153(1)(b) should include:

  1. identity of accused as culprit
  2. date and time of incident
  3. jurisdiction (incl. region and province)
  4. the culprit engaged in prohibited sexual conduct:
    1. the culprit "invites, counsels or incites" the complainant to touch something;
    2. the act of touching with "a part of the body or with an object";
    3. the target of the touch was "the body of any person";
    4. the conduct was for a sexual purpose
  5. the complainant was a "young person" (between 16 and 17 years old) at the time of the accused's conduct
  6. the culprit was in a position of trust or authority with respect to the complainant, the complainant was dependent upon the accused, or the complainant was in an exploitative relationship at the time of the accused's conduct

Proving sexual exploitation of a person with disability under s. 153.1(1) should include:

  1. identity of accused as culprit
  2. date and time of incident
  3. jurisdiction (incl. region and province)
  4. the culprit is in "a position of trust or authority towards" the complainant or the complainant has "a relationship of dependency" with the accused;
  5. the complainant has "a mental or physical disability" ;
  6. the prohibited conduct is "for a sexual purpose";
  7. the culprit "counsels or incites" the complainant to touch something;
  8. the complainant did not consent to the touching;
  9. the target of touching is the complainant's "own body", the body of the accused, or a third party, directly or indirectly; and
  10. the act of touching was "with a part of the body or with an object"
  1. R v Aird, 2013 ONCA 447 (CanLII), per Laskin JA, at para 25

Interpretation of the Offence

Purpose

Ther purpose of s. 153 is to "make it clear that a person in a position of authority or trust towards a young person is not to engage in sexual activity with that person, even though there is apparent consent".[1] It also to "protect children" [2] given their "position of vulnerability and weakness".[3]

Two Forms of Sexual Exploitation

Section 153(1)(a) is an offence of "sexual exploitation by sexual touching" and s. 153(1)(b) is an offence of "sexual exploitation by invitation to sexual touching".[4]

Mens Rea

The mens rea consists of:[5]

  1. knowingly communicating with a child for a sexual purpose; and
  2. the intention that the communication be received as an invitation, etc. to physical contact, or knowledge that there was a substantial and unjustified risk the child would receive the communication as an invitation, etc. to physical contact.
  1. R v TGF, (1992), 55 O.A.C. 355 (C.A.)(*no CanLII links)
    R v GB, 2009 BCCA 88 (CanLII), per Kirkpatrick JA, at para 27
  2. R v Hann, 1992 CanLII 7133 (NL CA), (1992), 75 CCC (3d) 355 (N.L.C.A.), per Marshall JA ("...our society for generations has dictated that persons of tender and youthful years require the protection from laws which assures that no excuse based upon the consent of a vulnerable mind can justify sexual invasions of their persons by adults.")
  3. R v Audet, 1996 CanLII 198 (SCC), [1996] 2 SCR 171, per La Forest J, at paras 23, 36
  4. R v King, 2012 ABQB 57 (CanLII), per Burrows J
  5. R v Careen, 2013 BCCA 535 (CanLII), per Frankel JA, at para 22

"Young Person"

Under s. 153(2), "young person" for this offence means "a person 16 years of age or more but under the age of eighteen years."

"Invites, Counsels or Incites"

The phrase "invites, counsels or incites" adopts the same interpretation from Invitation to Sexual Touching (Offence).

Direct or Indirect Touching

Touching under s. 153(1)(a) requires that the accused "touches, directly or indirectly, with a part of the body or with an object, any part of the body of the young person".

While touching under s. 153(1)(b) requires a "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" The phrase under s. 153 adopts the same interpretation from Invitation to Sexual Touching (Offence).

Position of Trust or Authority

"Trust" should 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.’” [1]

Where the accused runs the operation that employs the complainant and is physically larger than the complainant is not sufficient on its own to establish a position of trust or authority over the complainant. [2]

A teacher will often be found to be in a position of trust.[3] When considering this issue, the judge should look at the age discrepancy between the victim and accused, and the evolution of their relationship.[4]

Factors to consider include:[5]

  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.
"Relationship of Dependency"

Determination of whether there existed a "relationship of dependency" will depend on the entirety of the circumstances.[6]

  1. R v Audet, 1996 CanLII 198 (SCC), [1996] 2 SCR 171, per La Forest J, at para 35
  2. R v Caskenette, 1993 CanLII 6879 (BC CA), (1993), 80 CCC (3d) 439, per Hollinrake JA - Accused testified that he was not regularly on the work site
  3. R v McLachlan, 2012 SKCA 74 (CanLII), per Richards JA - suggests absent exceptional circumstances they will be persons in authority R v VK, [2001] OJ No 2317(*no CanLII links) - music tutor found to be in position of authority
  4. VK, supra
  5. R v Aird, 2013 ONCA 447 (CanLII), per Laskin JA, at para 28
    Audet, supra
  6. R v Galbraith (1994), 1994 CanLII 215 (ON CA), 90 CCC (3d) 76 (Ont. C.A.), per Finalyson JA, at para 18
    R v Blackmore, 2017 BCSC 192 (CanLII), per Pearlman J, at para 187

"For a Sexual Purpose"

It is not necessary for the Crown to prove that the accused touched the victim for his own sexual gratification.[1]

Language "for a sexual purpose" is also found in Sexual Interference (Offence).

  1. R v GB, 2009 BCCA 88 (CanLII), per Kirkpatrick JA, at paras 27 to 29

Sexual Exploitation

There is no requirement that the Crown prove that the accused actually exploited the relationship in the course of the impugned conduct.[1]

The meaning of "exploitive relationship" is largely determined by the scope of the other types of relationships set for in ss. (1.2).[2]

Of some use is the definition of "exploitive" from Black’s Law Dictionary 8th ed. which defines it as "the act of taking unfair advantage of another for one’s own benefit."[3]

The key factor to "exploitation" is the presence of a power imbalance.[4]

153.
...

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.

(2) In this section, young person means a person 16 years of age or more but under the age of eighteen years.
R.S., 1985, c. C-46, s. 153; R.S., 1985, c. 19 (3rd Supp.), s. 1; 2005, c. 32, s. 4; 2008, c. 6, s. 54; 2012, c. 1, s. 13; 2015, c. 23, s. 4.

CCC


Note up: 153(1.2) and (2)

There is some suggestion that the "exploitive relationship" can occur by way of grooming over the internet.[5]

It has been suggested that signs of exploitation include:[6]

  • power imbalance or authoritative position;
  • violence or threats of violence
  • coercion
  • exercise of physical or psychological control or domination over the victim

The existence of some quid pro quo between the parties does not negate any exploitive relationship. It is hard to image where an exchange will not take place.[7]

  1. see R v Audet. [1996] 2 SCR 171, 1996 CanLII 198 (SCC), per La Forest J, at paras 17 to 18
    R v SJB, 2018 MBCA 62 (CanLII), per Mainella JA, at para 18
  2. R v Anderson, 2009 PECA 4 (CanLII), per McQuaid JA, at para 67
  3. Anderson, supra, at para 68
  4. R v Damaso, 2013 ABCA 79 (CanLII), per curiam, at paras 29 to 30
  5. R v Woodward, 2011 ONCA 610 (CanLII), per Moldaver JA, at paras 40 to 42 - in reference to a sentencing for luring
  6. R v G(C), 1994 CanLII 215 (ON CA), (1994), 90 CCC (3d) 76, per Finlayson JA, at para 15
  7. R v Beckers, 2012 ONSC 6709 (CanLII), per Hourigan J, at para 128

Consent in Relation to Young Persons

Consent is not defence against an allegation under s. 153.[1]

  1. see s. 150.1
    R v Audet, 1996 CanLII 198 (SCC), [1996] 2 SCR 171, per La Forest J, at para 19
    R v Barabash, 2015 SCC 29 (CanLII), per Karakatsanis J, at para 35

Consent in Relation to Person with Disability

See also: Consent in Sexual Offences

153.1. ...

Definition of “consent”

(2) Subject to subsection (3) [sexual exploitation of person with disability – no consent], “consent” means, for the purposes of this section, the voluntary agreement of the complainant to engage in the sexual activity in question.

Consent

(2.1) Consent must be present at the time the sexual activity in question takes place.

Question of law

(2.2) The question of whether no consent is obtained under subsection (3) [sexual exploitation of person with disability – no consent] or (4) [sexual exploitation of person with disability – no limitations on consent] or 265(3) [where consent is deemed unavailable in common assault] is a question of law.

When no consent obtained

(3) For the purposes of this section, no consent is obtained if

(a) the agreement is expressed by the words or conduct of a person other than the complainant;
(a.1) the complainant is unconscious;
(b) the complainant is incapable of consenting to the activity for any reason other than the one referred to in paragraph (a.1);
(c) the accused counsels or incites the complainant to engage in the activity by abusing a position of trust, power or authority;
(d) the complainant expresses, by words or conduct, a lack of agreement to engage in the activity; or
(e) the complainant, having consented to engage in sexual activity, expresses, by words or conduct, a lack of agreement to continue to engage in the activity.
Subsection (3) not limiting

(4) Nothing in subsection (3) [sexual exploitation of person with disability – no consent] shall be construed as limiting the circumstances in which no consent is obtained.

When belief in consent not a defence

(5) It is not a defence to a charge under this section that the accused believed that the complainant consented to the activity that forms the subject-matter of the charge if

(a) the accused’s belief arose from
(i) the accused’s self-induced intoxication,
(ii) the accused’s recklessness or wilful blindness, or
(iii) any circumstance referred to in subsection (3) [sexual exploitation of person with disability – no consent] or (4) [sexual exploitation of person with disability – no limitations on consent] or 265(3) [where consent is deemed unavailable in common assault] in which no consent is obtained;
(b) the accused did not take reasonable steps, in the circumstances known to the accused at the time, to ascertain that the complainant was consenting; or
(c) there is no evidence that the complainant’s voluntary agreement to the activity was affirmatively expressed by words or actively expressed by conduct.
Accused’s belief as to consent

(6) If an accused alleges that he or she believed that the complainant consented to the conduct that is the subject-matter of the charge, a judge, if satisfied that there is sufficient evidence and that, if believed by the jury, the evidence would constitute a defence, shall instruct the jury, when reviewing all the evidence relating to the determination of the honesty of the accused’s belief, to consider the presence or absence of reasonable grounds for that belief.
1998, c. 9, s. 2; 2018, c. 29, s. 10; 2019, c. 25, s. 52.
[annotation(s) added]

CCC


Note up: 153.1(2), (2.1), (2.2), (3), (4), (5), and (6)

Evidence

Modification of Rules of Evidence

For offences under this section (s. 153 and 153.1):

Limitations on Admissibility of Evidence

For offences under this section (s. 153 and 153.1):

  • prior sexual history of the complainant "is not admissible to support an inference that...by reason of the sexual nature of that activity, the complainant...is more likely to have consented to the sexual activity that forms the subject-matter of the charge; or... is less worthy of belief.": see Evidence of complainant’s sexual activity under s. 276.
  • any "evidence of sexual reputation, whether general or specific, is not admissible for the purpose of challenging or supporting the credibility of the complainant.": See reputation evidence under s. 277.
Holdback of Disclosure

For offences under this section (s. 153 and 153.1), s. 278.2 prevents the Crown from disclosing any records attracting a "reasonable expectation of privacy" that relate "to a complainant or a witness" unless applied for through the process described in s. 278.3 to 278.91: see Production of Records for Sexual Offences. Should the privacy-holder agree to waive their privacy rights, the protected materials may be disclosed.

Included Offences

Sexual assault is not an included offence. Exploitation is a specific intent offence and involves more subjective proof than sexual assault.[1]

  1. R v Nelson (1989), 51 CCC (3d) 150(*no CanLII links) , per Philp J (Ont. H.C.)

Participation of Third Parties

See also: Role of the Victim and Third Parties and Testimonial Aids for Young, Disabled or Vulnerable Witnesses
Testimonial Aids

Certain persons who testify are entitled to make application for the use of testimonial aids: Exclusion of Public (s. 486), Use of a Testimonial Screen (s. 486), Access to Support Person While Testifying (s. 486.1), Close Proximity Video-link Testimony (s. 486.2), Self-Represented Cross-Examination Prohibition Order (s. 486.3), and Witness Security Order (s. 486.7).

A witness, victim or complainant may also request publication bans (s. 486.4, 486.5) and/or a Witness Identity Non-disclosure Order (s. 486.31). See also, Publication Bans, above.

On Finding of Guilt
Offence(s) Victim Notice
of Agreement
s. 606(4.1), (4.2)
Victim Notice
for Restitution
s. 738
Victim Notice
of Impact Statement
s. 722(2)
s. 153 [sexual exploitation]
s. 153.1 [sexual exploitation of person with disability]

For serious personal injury offences or murder, s. 606(4.1) requires that after accepting a guilty plea, the judge must inquire whether "any of the victims had advised the prosecutor of their desire to be informed if such an agreement were entered into, and, if so, whether reasonable steps were taken to inform that victim of the agreement". Failing to take reasonable steps at guilty plea requires the prosecutor to "as soon as feasible, take reasonable steps to inform the victim of the agreement and the acceptance of the plea" (s. 606(4.3)).

For any indictable offence with a maximum penalty no less than 5 years (including offences under s. 153.1), but are not serious personal injury offences, s. 606(4.2) requires that after accepting a guilty plea, the judge must inquire whether "any of the victims had advised the prosecutor of their desire to be informed if such an agreement were entered into, and, if so, whether reasonable steps were taken to inform that victim of the agreement". Failing to take reasonable steps at guilty plea requires the prosecutor to "as soon as feasible, take reasonable steps to inform the victim of the agreement and the acceptance of the plea" (s. 606(4.3)).

Under s. 738, a judge must inquire from the Crown before sentencing whether "reasonable steps have been taken to provide the victims with an opportunity to indicate whether they are seeking restitution for their losses and damages".

Under s. 722(2), the judge must inquire "[a]s soon as feasible" before sentencing with the Crown "if reasonable steps have been taken to provide the victim with an opportunity to prepare" a victim impact statement. This will include any person "who has suffered, or is alleged to have suffered, physical or emotional harm, property damage or economic loss" as a result of the offence. Individuals representing a community impacted by the crime may file a statement under s. 722.2.

Sentencing Principles and Ranges

See also: Purpose and Principles of Sentencing, Sentencing Factors Relating to the Offender, and Sentencing Factors Relating to the Offence
For general principles on sentence for sexual offences, see Sexual Offences
Maximum Penalties
Offence(s) Crown
Election
Maximum Penalty
s. 153 [sexual exploitation]
From July 17, 2015
summary election 2 years less a day custody
s. 153 [sexual exploitation]
November 1, 2005 to July 16, 2015
summary election 18 months incarceration
s. 153 [sexual exploitation]
Until October 31, 2005
summary election 6 months custody and/or $5,000
s. 153 [sexual exploitation]
From July 17, 2015
indictable election 14 years incarceration
s. 153 [sexual exploitation]
November 1, 2005 to July 16, 2015
indictable election 10 years incarceration
s. 153 [sexual exploitation]
Until October 31, 2005
indictable election 5 years incarceration
s. 153.1 [sexual exploitation of person with disability] summary election 18 months incarceration
s. 153.1 [sexual exploitation of person with disability] indictable election 2 years incarceration

Offences under s. 153 and 153.1 are hybrid. If prosecuted by indictment, the maximum penalty is 14 years incarceration under s. 153 or 2 years incarceration under s. 153.1. If prosecuted by summary conviction, the maximum penalty is 2 years less a day incarceration under s. 153 or 18 months incarceration under s. 153.1.

Minimum Penalties
Offence(s) Crown
Election
Minimum Penalty
First Offence
Minimum Penalty
Subsequent Offence
s. 153 [sexual exploitation]
From August 9, 2012
summary election 90 days incarceration Same
s. 153 [sexual exploitation]
November 1, 2005 to August 8, 2012
summary election 14 days incarceration Same
s. 153 [sexual exploitation]
From August 9, 2012
indictable election 1 year incarceration Same
s. 153 [sexual exploitation]
November 1, 2005 to August 8, 2012
indictable election 45 days incarceration Same

Offences under s. 153 have a mandatory minimum penalty of 1 year incarceration when prosecuted by indictment and 90 days incarceration when prosecuted by summary conviction.

Offences under s. 153.1 have no mandatory minimum penalties.

Available Dispositions
Offence(s) Crown
Election
Discharge
s. 730
Suspended
Sentence

s. 731(1)(a)
Stand-alone
Fine

s. 731(1)(b)
Custody
s. 718.3, 787
Custody and
Probation
s. 731(1)(b)
Custody and
Fine
s. 734
Conditional
Sentence
(CSO)
s. 742.1
s. 153 [sexual exploitation],
s. 153.1 [sexual exploitation of person with disability]
any X Mark Symbol.png X Mark Symbol.png X Mark Symbol.png OK Symbol.png OK Symbol.png OK Symbol.png X Mark Symbol.png

Offences under s. 153 [sexual exploitation] and 153.1 [sexual exploitation of person with disability] have mandatory minimums. There are no discharges, suspended sentences, stand-alone fines, or conditional sentences available.

Consecutive Sentences

Under s. 718.3(7), where the judge sentences an accused at the same time for "more than one sexual offence committed against a child", a sentence must be consecutive where:

  • one of the sexual offences against that child is an offence relating to child pornography under s. 163.1. (see s. 718.3(7)(a)); or
  • each of the sexual offences against a child, other than a child pornography offence, related to a different child. (see s. 718.3(7)(a))

[note: this only applies for offences occurring after enactment of Tougher Penalties for Child Predators Act on July 16, 2015]

Constitutionality of Mandatory Minimums

In some jurisdictions, the mandatory minimum of 1 year found in s. 153(1.1) has been found to be unconstitutional under s. 12 of the Charter for being "cruel and unusual punishment".[1]

  1. R v EJB, 2017 ABQB 726 (CanLII), per Horner J
    R v Hood, 2018 NSCA 18 (CanLII), per MacDonald CJNS and Beveridge JA - re section 153(1.1)(a)
    R v EO, 2019 YKCA 9 (CanLII), per Bennett JA

Principles

Section 718.01 requires sentencing judges to "give primary consideration to the objectives of denunciation and deterrence" when conduct "involved the abuse of a person under the age of eighteen years". Where the evidence shows that the offender, "in committing the offence, abused a person under the age of eighteen years,... shall be deemed to be an aggravating circumstances" under s. 718.2(a)(ii.1). Where the offender is in a "position of trust or authority" in relation to the victim, it will also be aggravating under s. 718.2(a)(iii).

Actual Exploitation of Relationship

The presence of actual exploitation is not an essential element to the offence, however, its presence is an aggravating factor to sentence. Its absence however is not mitigating.[1]

Extended and Repeated Exploitation

The proof of extended periods of exploitation, as opposed to a momentary loss of control, will be treated as aggravating.[2]

Repeated activities cannot be seen as mere "acts of opportunity" that have mitigating value.[3]

  1. R v SJB, 2018 MBCA 62 (CanLII), per Mainella JA, at para 18
  2. SJB, ibid., at para 29
  3. SJB, ibid., at paras 27 to 30

Ranges

see also: Sexual Exploitation (Sentencing Cases)

Ancillary Sentencing Orders

See also: Ancillary Orders
Offence-specific Orders
Order Conviction Description
DNA Orders s. 153 [sexual exploitation] or 153.1 [sexual exploitation of person with disability]
SOIRA Orders s. 153 [sexual exploitation] or 153.1 [sexual exploitation of person with disability]
  • On conviction under s. 153, as listed under s. 490.011(a), a SOIRA Order is mandatory as "designated offence" under s. 490.011(1)(a) regardless of Crown election
      • If there is a concurrent or prior conviction for a designated offence, the duration is life (s. 490.012(3))
      • Otherwise, the duration is 10 years where the offence has been "prosecuted summarily or if the maximum term of imprisonment for the offence is two or five years" (s. 490.013(2)(a))) or 20 years where the offence has a "maximum term of imprisonment for the offence is 10 or 14 years" (s. 490.013(2)(b)).
      • There is an option for early termination under s. 490.015 available after 5 years (if 10 year order), 10 years (if 20 year order), or 20 year (if life order).

Note that by function of s. 490.011(2) of the Code, SOIRA orders are not available when sentencing under the Youth Criminal Justice Act

  • On conviction under s. 153.1, as listed under s. 490.011(a), a SOIRA Order is mandatory as "designated offence" under s. 490.011(1)(a) regardless of Crown election
      • If there is a concurrent or prior conviction for a designated offence, the duration is life (s. 490.012(3))
      • Otherwise, the duration is 10 years as the offence was "prosecuted summarily or if the maximum term of imprisonment for the offence is two or five years".
      • There is an option for early termination under s. 490.015 available after 5 years (if 10 year order) or 20 years (if life order)

Note that by function of s. 490.011(2) of the Code, SOIRA orders are not available when sentencing under the Youth Criminal Justice Act

Section 161 Orders s. 153
  • If convicted under s. 153, the judge may make discretionary 161 Order.
Weapons Prohibition Orders s. 153 or 153.1
  • On conviction under s. 153 where "violence against a person was used, threatened or attempted", and punishable by "imprisonment for ten years or more", the weapons prohibition order is mandatory under s. 109(1)(a) or where "violence was used, threatened or attempted against" an enumerated party relating to a domestic partnership a weapons prohibition order is mandatory under s. 109(1)(a.1).The order prohibits "the person from possessing any firearm, cross-bow, prohibited weapon, restricted weapon, prohibited device, ammunition, prohibited ammunition and explosive".
      • Duration (first offence): The Order prohibiting to "firearms" (other than a prohibited firearm or restricted firearm) and "crossbow, restricted weapon, ammunition and explosive substance" is for not less than 10 years starting at release from custody or at sentencing where custody is not ordered. The Order prohibiting "prohibited firearm, restricted firearm, prohibited weapon, prohibited device" is for life.
      • Duration (subsequent s. 109 offence): The duration must be life for all enumerated weapons and firearms. Notice of increased penalty under s. 727 required.
  • Where there is a conviction under s. 153.1 for an offence not otherwise referred to in s. 109, where "violence against a person was used, threatened or attempted" or "involves, or the subject-matter of which is a firearm, a cross-bow, a prohibited weapon, a restricted weapon, a prohibited device, ammunition, prohibited ammunition or an explosive substance", a discretionary prohibition order of any of these items is permitted under s. 110 regardless of Crown election where "it is desirable, in the interests of the safety of the person or of any other person".
      • Duration: The Order is for no more than 10 years starting at release from custody or at sentencing where custody is not ordered. If there is a prior conviction for an offence eligible for a s. 109 Order, the duration must be life. If violence is "used, threatened or attempted against" their past or present intimate partner, a child or parent of the said partner, or a person who resides with the said partner or the offender, the duration can be up to life in duration.
      • If the judge declines to make an Order or not order all the possible terms, "the court shall include in the record a statement of the court's reasons for not doing so." (s. 110(3))
Delayed Parole Order s. 153 or 153.1
  • Periods of imprisonment of 2 years or more for convictions under s. 153 or 153.1 are eligible for delayed parole order under s. 743.6(1) requiring the offender to serve at least "one half of the sentence or ten years, whichever is less", "where denunciation of the offence or the objective of specific or general deterrence so requires".
General Sentencing Orders
Order Conviction Description
Non-communication order while offender in custody (s. 743.21) any The judge has the discretion to order that the offender be prohibited "from communicating...with any victim, witness or other person" while in custody except where the judge "considers [it] necessary" to communicate with them.
Restitution Orders (s. 738) any A discretionary Order is available for things such as the replacement value of the property; the pecuniary damages incurred from harm, expenses fleeing a domestic partner; or certain expenses arising from the commission of an offence under s.402.2 or 403.
Victim Fine Surcharge (s. 737) any A discretionary surcharge under s. 737 of 30% of any fine order imposed, $100 per summary conviction or $200 per indictable conviction. If the offence occurs on or after October 23, 2013, the order has smaller minimum amounts (15%, $50, or $100).
General Forfeiture Orders
Forfeiture Conviction Description
Forfeiture of Proceeds of Crime (s. 462.37(1) or (2.01)) any Where there is a finding of guilt for an indictable offence under the Code or the CDSA in which property is "proceeds of crime" and offence was "committed in relation to that property", the property shall be forfeited to Her Majesty the Queen on application of the Crown.
Fine in Lieu of Forfeiture (s. 462.37(3)) any Where a Court is satisfied an order for the forfeiture of proceeds of crime under s. 462.37(1) or (2.01) can be made, but that property cannot be "made subject to an order", then the Court "may" order a fine in "an amount equal to the value of the property". Failure to pay the fine will result in a default judgement imposing a period of incarceration.
Forfeiture of Weapons or Firearms (s. 491) any Where there is finding of guilt for an offence where a "weapon, an imitation firearm, a prohibited device, any ammunition, any prohibited ammunition or an explosive substance was used in the commission of [the] offence and that thing has been seized and detained", or "that a person has committed an offence that involves, or the subject-matter of which is, a firearm, a cross-bow, a prohibited weapon, a restricted weapon, a prohibited device, ammunition, prohibited ammunition or an explosive substance has been seized and detained, that the item be an enumerated weapon or related item be connected to the offence", then there will be a mandatory forfeiture order. However, under s. 491(2), if the lawful owner "was not a party to the offence" and the judge has "no reasonable grounds to believe that the thing would or might be used in the commission of an offence", then it should be returned to the lawful owner.
Forfeiture of Offence-related Property (s. 490.1) any Where there is a finding of guilt for an indictable offence, "any property is offence-related property" where (a) by means or in respect of which an indictable offence under this Act or the Corruption of Foreign Public Officials Act is committed, (b) that is used in any manner in connection with the commission of such an offence, or (c) that is intended to be used for committing such an offence". Such property is to be forfeited to Her Majesty in right of the province.

Record Suspensions and Pardons

Convictions under s. 153 and 153.1 [sexual exploitation of person with disability] (where victim is under 18) are ineligible for record suspensions pursuant to s. 4 of the Criminal Records Act. An exception can be made under s. 4(3) for those offences where there was no relationship of “trust”, “authority” or “dependency”; no violence, threats or coercion; and age difference between victim and offender is less than 5 years.

Victim 18 Years or Older

Convictions under s. 153.1 [sexual exploitation of person with disability] are eligible for record suspensions pursuant to s. 3 and 4 of the Criminal Records Act after 5 years after the expiration of sentence for summary conviction offences and 10 years after the expiration of sentence for all other offences. The offender may not have the record suspended where the offender was (1) convicted of 3 or more offences with a maximum penalty of life, and (2) for each 3 offences he "was sentenced to imprisonment for two years or more".

History

See also: List of Criminal Code Amendments and Table of Concordance (Criminal Code)

See Also

References