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Section 153 of the Criminal Code of Canada reads as follows:

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.
The question of whether an individual is in a position of trust or authority is a fact specific question and will be gleaned from the circumstances of the relationship in question. Reference will be made as to whether any imbalance of power existed between the parties. To this effect, the section sets out permissible inferences that a judge may draw from the evidence, as per subsection 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.
As with many other sexual offences, the offence of sexual exploitation contains a mandatory minimum punishment. Specifically, if the Crown proceeds by way of summary conviction a mandatory minimum penalty of 90 days in jail is proscribed. If the Crown elects to proceed by indictment, upon conviction, a mandatory minimum punishment of one year jail is proscribed.

Typically, the defence will attack the term "position of trust or authority" to determine whether the power imbalance did in fact exists. Related to this, is the defence of honest mistake in age. However, attention must be brought to section 150.1(5) which details the circumstances in which "mistake in age" may be argued. Specifically, the accused must be able to demonstrate that he took reasonable steps in the circumstances to determine the age of the victim.

A conviction under section 153 of the Criminal Code will require the offender to register in the sex offender registry as well as pursuant to Ontario's Christopher's Law. A DNA order as well as a weapons prohibition are available to the Crown.


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Paul Lewandowski Professional Corporation
200 Elgin St,
Ottawa, Ontario, Canada,
K2P 1L5