Position of Trust as a Factor in Sentencing: Difference between revisions
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==General Principles== | ==General Principles== | ||
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It is an aggravating factor in sentencing for the offender to have been in a position of trust.< | It is an aggravating factor in sentencing for the offender to have been in a position of trust.<ref> | ||
see [http://canlii.ca/t/7vf2#sec718.2 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.< | see [http://canlii.ca/t/7vf2#sec718.2 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>Audet [http://canlii.ca/t/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.< | "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> | ||
''R v MC'', [http://canlii.ca/t/fr2tj 2012 ONSC 2505] (CanLII){{perONSC|Thorburn J}} at para 26<br> | ''R v MC'', [http://canlii.ca/t/fr2tj 2012 ONSC 2505] (CanLII){{perONSC|Thorburn J}} at para 26<br> | ||
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"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> | ||
Audet at para 35</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}} at para 36</ref> | Audet at para 35</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}} at para 36</ref> | ||
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'''Limited Trust Positions'''<br> | '''Limited Trust Positions'''<br> | ||
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 ''R v Fones'', [http://canlii.ca/t/fv825 2012 MBCA 110] (CanLII), [2012] M.J. No. 407{{perMBCA|Hamilton JA}}, para 68<br> | see ''R v Fones'', [http://canlii.ca/t/fv825 2012 MBCA 110] (CanLII), [2012] M.J. No. 407{{perMBCA|Hamilton JA}}, para 68<br> | ||
R v R. (G.W.), [http://canlii.ca/t/fmh2k 2011 MBCA 62] (CanLII), [2011] M.J. No. 246{{perMBCA|Steel JA}}, para 42<br> | R v R. (G.W.), [http://canlii.ca/t/fmh2k 2011 MBCA 62] (CanLII), [2011] M.J. No. 246{{perMBCA|Steel JA}}, para 42<br> | ||
Revision as of 10:14, 13 January 2019
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]
- ↑ see s. 718.2(a)(iii)
- ↑ Audet 1996 CanLII 198 (SCC), [1996] 2 SCR 171, per La Forest J
- ↑
R v MC, 2012 ONSC 2505 (CanLII), per Thorburn J at para 26
- ↑ Audet at para 35
- ↑ Audet, supra at para 36
- ↑ Audet, supra
- ↑ Audet
- ↑
see R v Fones, 2012 MBCA 110 (CanLII), [2012] M.J. No. 407, per Hamilton JA, para 68
R v R. (G.W.), 2011 MBCA 62 (CanLII), [2011] M.J. No. 246, per Steel JA, para 42
- ↑ e.g. R v AGA, 2010 ABCA 61 (CanLII), per curiam
- ↑
R v Rocha, 2012 ABPC 24 (CanLII), per Groves J - offence of voyeurism by taking photos up the skirt of a passenger