Sexual Exploitation (Offence)
This page was last substantively updated or reviewed January 2020. (Rev. # 95111) |
Sexual Exploitation | |
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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 (*) |
Summary Dispositions | |
Avail. Disp. |
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Minimum | 90 days incarceration (153) |
Maximum | 18 months incarceration (2 years less a day) |
Indictable Dispositions | |
Avail. Disp. |
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Minimum | 1 year incarceration (153) |
Maximum | 10, 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".
The wording significantly mirrors the offence of sexual interference under s. 151 with the addition of a requirement that an offender be in a position of authority.
- Pleadings
Offence Section |
Offence Type |
Crown Election | Defence Election s. 536(2) |
Preliminary Inquiry |
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s. 153 [sexual exploitation] | Hybrid Offence(s) | ![]() |
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s. 153.1 [sexual exploitation of person with disability] | Hybrid Offence(s) | ![]() |
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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 |
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s. 153 [sexual exploitation] s. 153.1 [sexual exploitation of person with disability] |
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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 weapon, being 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)).
And, regardless of Crown election, if the offence alleged was one:
- where the offence was an allegation of violence against an "intimate partner" and the accused had been previously convicted of an offence of violence against an "intimate partner" (s. 515(6)(b.1));
- where the offence alleged is a breach under s. 145(2) to (5) while (s. 515(6)(c));
- where the offence committed (or conspired to commit) was an offence under s. 5 to 7 of the CDSA that is punishable by life imprisonment (s. 515(6)(d));
- 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 |
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s. 153 [sexual exploitation] | ![]() |
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s. 153.1 [sexual exploitation of person with disability] | ![]() |
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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.
[omitted (1.2) and (2)]
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]
- 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 10 years; or
- (b) an offence punishable on summary conviction.
[omitted (2), (2.1), (2.2), (3), (4), (5) and (6)]
1998, c. 9, s. 2; 2018, c. 29, s. 10; 2019, c. 25, s. 52; 2023, c. 28, s. 1.
Draft Form of Charges
Pre-ambles | ||
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"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(1)(a) | "..., being in a position of trust or authority towards [name1] a young person, did for a sexual purpose, touch directly or indirectly the body of [name1], a young person, with a part of his body or with an object, to wit: [body part or object], contrary to section 153(1)(a) of the Criminal Code." | |
153(1)(a) | "..., being a person with whom [name1] a young person was in a relationship of dependency, did for a sexual purpose, touch directly or indirectly the body of [name1], a young person, with a part of his body or with an object, to wit: [body part or object], contrary to section 153(1)(a) of the Criminal Code." | |
153(1)(a) | "..., being a person who is in a relationship with a young person that is exploitative of [name1], a young person, did for a sexual purpose, touch directly or indirectly the body of [name1], a young person, with a part of his body or with an object, to wit: [body part or object], contrary to section 153(1)(a) of the Criminal Code." | |
153(1)(b) | "..., being in a position of trust or authority towards [name1] a young person, did for a sexual purpose invite, counsel or incite [name1], a young person, to touch directly or indirectly with a part of his body or with an object, to wit: [body part or object], the body of [name1], [name2] and/or [name3] contrary to section 153(1)(b) of the Criminal Code." | |
153(1)(b) | "..., being a person with whom [name1] a young person was in a relationship of dependency, did for a sexual purpose invite, counsel or incite [name1], a young person, to touch directly or indirectly with a part of his body or with an object, to wit: [body part or object], the body of [name1], [name2] and/or [name3] contrary to section 153(1)(b) of the Criminal Code." | |
153(1)(b) | "..., being a person who is in a relationship with a young person that is exploitative of [name1], a young person, did for a sexual purpose invite, counsel or incite [name1], a young person, to touch directly or indirectly with a part of his body or with an object, to wit: [body part or object], the body of [name1], [name2] and/or [name3] contrary to section 153(1)(b) of the Criminal Code." | |
153.1 | "..., being in a position of trust or authority to [name1], a person with a physical disability, did without that person’s consent and for a sexual purpose did touch directly or indirectly with a part of his body or with an object, to wit: [body part or object], the body of [name1], [name2] and/or [name3] contrary to section 153.1 of the Criminal Code" |
while in a position of trust or authority
Proof of the Offence
Proving sexual exploitation by sexual touching under s. 153(1)(a) should include:[1]
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Proving sexual exploitation by invitation to sexual touching under s. 153(1)(b) should include:
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Proving sexual exploitation of a person with disability under s. 153.1(1) should include:
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- ↑
R v Aird, 2013 ONCA 447 (CanLII), 307 OAC 183, 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]
- knowingly communicating with a child for a sexual purpose; and
- 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.
- ↑
R v TGF, (1992), 55 OAC 355 (CA)(*no CanLII links)
R v GB, 2009 BCCA 88 (CanLII), 244 CCC (3d) 185, per Kirkpatrick JA, at para 27
- ↑ R v Hann, 1992 CanLII 7133 (NL CA), 75 CCC (3d) 355, 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.")
- ↑
R v Audet, 1996 CanLII 198 (SCC), [1996] 2 SCR 171, per La Forest J, at paras 23, 36
- ↑ R v King, 2012 ABQB 57 (CanLII), per Burrows J
- ↑
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]
- 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.
- "Relationship of Dependency"
Determination of whether there existed a "relationship of dependency" will depend on the entirety of the circumstances.[6]
- ↑ R v Audet, 1996 CanLII 198 (SCC), [1996] 2 SCR 171, per La Forest J, at para 35
- ↑ R v Caskenette, 1993 CanLII 6879 (BCCA), 80 CCC (3d) 439, per Hollinrake JA - Accused testified that he was not regularly on the work site
- ↑ R v McLachlan, 2012 SKCA 74 (CanLII), 399 Sask R 77, 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
- ↑ VK, supra
- ↑
R v Aird, 2013 ONCA 447 (CanLII), 307 OAC 183, per Laskin JA, at para 28
Audet, supra - ↑
R v Galbraith, 1994 CanLII 215 (ON CA), 90 CCC (3d) 76, 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).
- ↑
R v GB, 2009 BCCA 88 (CanLII), 244 CCC (3d) 185, 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
[omitted (1) and (1.1)]
- 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.
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]
- ↑
see R v Audet, 1996 CanLII 198 (SCC), [1996] 2 SCR 171, per La Forest J, at paras 17 to 18
R v SJB, 2018 MBCA 62 (CanLII), per Mainella JA, at para 18
- ↑ R v Anderson, 2009 PECA 4 (CanLII), 241 CCC (3d) 432, per McQuaid JA, at para 67
- ↑ Anderson, supra, at para 68
- ↑
R v Damaso, 2013 ABCA 79 (CanLII), 544 AR 69, per curiam, at paras 29 to 30
- ↑ R v Woodward, 2011 ONCA 610 (CanLII), 276 CCC (3d) 86, per Moldaver JA, at paras 40 to 42 - in reference to a sentencing for luring
- ↑ R v G(C), 1994 CanLII 215 (ON CA), 90 CCC (3d) 76, per Finlayson JA, at para 15
- ↑ 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]
- ↑
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), [2015] 2 SCR 522, per Karakatsanis J, at para 35
Consent in Relation to Person with Disability
153.1
[omitted (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]
Evidence
- Modification of Rules of Evidence
For offences under this section (s. 153 and 153.1):
- corroboration is not required for conviction and the judge cannot instruct on need for corroboration: see Corroboration under s. 274.
- common law rules relating to "recent complaint" do not apply: see Credibility under s. 275.
- 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]
Participation of Third Parties
- Complainant Privacy Rights in Sexual Offences
A complainant has a right to be notified of any party seeking to admit any evidence of sexual activity other than the activity making up the alleged offence.
- 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) [SPIO] |
Victim Queried for Interest in Agreement s. 606(4.2) [5+ years] |
Victim Notice for Restitution s. 737.1 |
Victim Notice of Impact Statement s. 722(2) |
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s. 153 [sexual exploitation] | ![]() |
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s. 153.1 [sexual exploitation of person with disability] | ![]() |
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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
- 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 |
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s. 153 [sexual exploitation], s. 153.1 [sexual exploitation of person with disability] |
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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]
- ↑
R v Hood, 2018 NSCA 18 (CanLII), 45 CR (7th) 269, per MacDonald CJNS and Beveridge JA - re section 153(1.1)(a)
R v EO, 2019 YKCA 9 (CanLII), per Bennett JA
contra R v EJB, 2018 ABCA 239 (CanLII), 72 Alta LR (6th) 29, per McDonald 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]
- ↑
R v SJB, 2018 MBCA 62 (CanLII), per Mainella JA, at para 18
- ↑
SJB, ibid., at para 29
- ↑
SJB, ibid., at paras 27 to 30
Ranges
- see also: Sexual Exploitation (Sentencing Cases)
Ancillary Sentencing 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] |
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
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 |
|
Weapons Prohibition Orders | s. 153 or 153.1 |
|
Delayed Parole Order | s. 153 or 153.1 |
|
- 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 His Majesty the King on application of the Crown. NB: does not apply to summary offences. |
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. NB: does not apply to summary offences. |
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
- References
|
- 2020
- Level Zero
- Criminal Law
- Sentencing
- Offences
- Serious Personal Injury Offences
- 1985, c. C-46
- 1985, c. 19 (3rd Supp.)
- 2005, c. 32
- 2008, c. 6
- 2012, c. 1
- 2015, c. 23
- 1998, c. 9
- 2018, c. 29
- 2019, c. 25
- 2023, c. 28
- Notice of Settlement to Victim
- Offences Requiring Notice to Victim
- Offences with Maximum Penalty of 18 Months
- Offences with Maximum Penalty of 14 Years
- Offences with Maximum Penalty of 10 Years
- Offences with Maximum Penalty of 5 Years
- Offences with Maximum Penalty of 2 Years
- Offences with Maximum Penalty of 2 Years Less a Day
- Hybrid Offences
- Offences with Minimum Penalty of 90 Days
- Offences with Minimum Penalty of 14 Days
- Offences with Minimum Penalty of 1 Year
- Offences with Minimum Penalty of 45 Days
- Primary Designated Offences for DNA Orders
- SOIRA Designated Offences
- Section 161 Prohibition Offences
- Section 109 or 110 Prohibition Offences
- Delayed Parole
- Sexual Offences