Position of Trust as a Factor in Sentencing: Difference between revisions
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[[fr:La position de confiance comme facteur de détermination de la peine]] | |||
{{Currency2|January|2022}} | |||
{{LevelZero}}{{HeaderPrinciples}} | {{LevelZero}}{{HeaderPrinciples}} | ||
==General Principles== | ==General Principles== | ||
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see [{{CCCSec|718.2}} s. 718.2(a)(iii)]</ref> | see [{{CCCSec|718.2}} s. 718.2(a)(iii)]</ref> | ||
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.<ref> | 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.<ref> | ||
{{CanLIIRP|Audet|1fr9r|1996 CanLII 198 (SCC)|[1996] 2 SCR 171}}{{perSCC|La Forest J}}</ref> | |||
"Position of trust" is not defined in the criminal code. Courts will occasionally resort to the use of dictionary definition to interpret its meaning.<ref> | "Position of trust" is not defined in the criminal code. Courts will occasionally resort to the use of dictionary definition to interpret its meaning.<ref> | ||
{{ | {{CanLIIRP|MC|fr2tj|2012 ONSC 2505 (CanLII)|OJ No 1797}}{{perONSC|Thorburn J}}{{atL|fr2tj|26}}<br> | ||
</ref> | </ref> | ||
"Trust" refers to "confidence in or reliance on some quality or attribute of a person" | "Trust" refers to "confidence in or reliance on some quality or attribute of a person."<ref> | ||
{{supra1|Audet}}{{atL|1fr9r|35}}</ref> | {{supra1|Audet}}{{atL|1fr9r|35}}<Br> | ||
{{CanLIIRT|RT||2017 ONSC 2625 (CanLII)}}{{perONSC|Pomerance J}}{{atL||26}} | |||
</ref> | |||
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.<ref> | 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.<ref> | ||
{{supra1|Audet}}{{atL|1fr9r|36}}</ref> | {{supra1|Audet}}{{atL|1fr9r|36}}</ref> | ||
The existence will depend on "all the factual circumstances relevant to the characterization of the relationship" | The existence will depend on "all the factual circumstances relevant to the characterization of the relationship."<ref> | ||
{{supra1|Audet}} | {{supra1|Audet}} | ||
</ref> | </ref> | ||
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; Limited Trust Positions | ; 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" | Adult persons who enter into relationships with young persons can put themselves into "qualified positions of trust" or form "low-end trust relationships."<ref> | ||
see | see {{CanLIIRP|Fones|fv825|2012 MBCA 110 (CanLII)|[2012] MJ No 407}}{{perMBCA|Hamilton JA}}{{atL|fv825|68}}<br> | ||
{{CanLIIRP|R(GW)|fmh2k|2011 MBCA 62 (CanLII)|[2011] MJ No 246}}{{perMBCA|Steel JA}}{{atL|fmh2k|42}}<br> | |||
</ref> | |||
; Child and Parent or GuardianRelationship | |||
A relationship between a child and an adult is one that imposes influence and creates vulnerability for the child.<ref> | |||
{{supra1|RT}} at para 26 ("An adult occupies a position of trust towards a young person where the nature of their relationship “is such that it creates an opportunity for all of the persuasive and influencing factors which adults hold over children and young persons to come into play, and the child or young person is particularly vulnerable to the sway of these factors.") | |||
</ref> | |||
An adult who invites or welcomes a child into their residence to look after or allow them to play in their place assume a position of trust and authority over the child.<Ref> | |||
{{CanLIIR|RG|hxmhf|2019 ONCA 135 (CanLII)}}{{TheCourtONCA}}{{AtsL|hxmhf|4| and 5}}<br> | |||
R. v. Colson, [2001] N.S.J. No. 525 (N.S.S.C.){{atL||4}} | |||
</ref> | </ref> | ||
A person who is a babysitter will generally be considered in a position of trust.<ref> | A person who is a babysitter will generally be considered in a position of trust.<ref> | ||
e.g. {{ | e.g. {{CanLIIRP|AGA|2875r|2010 ABCA 61 (CanLII)|474 AR 304}}{{TheCourtABCA}} | ||
</ref> | </ref> | ||
; Employees | ; Employees | ||
An aircraft maintenance employee is not in a position of trust with respect to passengers on a plane.<ref> | An aircraft maintenance employee is not in a position of trust with respect to passengers on a plane.<ref> | ||
{{ | {{CanLIIRP|Rocha|fq4vd|2012 ABPC 24 (CanLII)|532 AR 344}}{{perABPC| Groves J}} (offence of voyeurism by taking photos up the skirt of a passenger)<br> | ||
</ref> | </ref> | ||
Latest revision as of 13:56, 1 November 2024
| This page was last substantively updated or reviewed January 2022. (Rev. # 96684) |
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 and Parent or GuardianRelationship
A relationship between a child and an adult is one that imposes influence and creates vulnerability for the child.[9]
An adult who invites or welcomes a child into their residence to look after or allow them to play in their place assume a position of trust and authority over the child.[10]
A person who is a babysitter will generally be considered in a position of trust.[11]
- Employees
An aircraft maintenance employee is not in a position of trust with respect to passengers on a plane.[12]
- ↑ see s. 718.2(a)(iii)
- ↑ R v Audet, 1996 CanLII 198 (SCC), [1996] 2 SCR 171, per La Forest J
- ↑
R v MC, 2012 ONSC 2505 (CanLII), OJ No 1797, per Thorburn J, at para 26
- ↑
Audet, supra, at para 35
R v RT, 2017 ONSC 2625 (CanLII) (working hyperlinks pending), per Pomerance J, at para 26 - ↑ Audet, supra, at para 36
- ↑ Audet, supra
- ↑ Audet, supra
- ↑
see R v Fones, 2012 MBCA 110 (CanLII), [2012] MJ No 407, per Hamilton JA, at para 68
R v R(GW), 2011 MBCA 62 (CanLII), [2011] MJ No 246, per Steel JA, at para 42
- ↑ RT, supra at para 26 ("An adult occupies a position of trust towards a young person where the nature of their relationship “is such that it creates an opportunity for all of the persuasive and influencing factors which adults hold over children and young persons to come into play, and the child or young person is particularly vulnerable to the sway of these factors.")
- ↑
R v RG, 2019 ONCA 135 (CanLII), per curiam, at paras 4 and 5
R. v. Colson, [2001] N.S.J. No. 525 (N.S.S.C.), at para 4 - ↑ e.g. R v AGA, 2010 ABCA 61 (CanLII), 474 AR 304, per curiam
- ↑
R v Rocha, 2012 ABPC 24 (CanLII), 532 AR 344, per Groves J (offence of voyeurism by taking photos up the skirt of a passenger)