S 153 of the Criminal Code: 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 friendship with a young person that is exploitative of the young person, and who
(a) for a sexual purpose, touches, directly or directly, 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.
(1.1) Every person who commits an offence under subsection (1)
(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 for a term of 90 days
(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 the section “young person” means a person of 16 years of age or more but under the age of eighteen years.
The section prohibits sexual contact as well as invitation to engage in sexual contact between a young person and a person who holds a position of trust or authority over the young person.
The section limits the circumstances in which young persons are legally capable of consenting to sexual activity. In order for the section to be engaged one of parties to the sexual activity must be a young person (between 16 and 18) and must also be in a position of dependency or in a situation that is inherently exploitive. If there is not a relationship of trust or authority between the parties and provided the young person otherwise freely consents to the sexual activity no offence is made out.
Courts consider the age of a young person, the age difference between the two parties, the evolution of the relationship, and the degree of control of influence by the person over the young person.
What falls in the category of dependence or trust?
Teacher, student and doctor patient relationships would in almost every circumstance fall into the category of dependence or trust.
Coaches, and activity leaders, and employers may be in positions of trust or authority towards the young people they are supervising but not necessarily inevitably as courts look at the entirety of the relationship to determine if such a relationship in fact existed at the time the sexual activity took place.
The offence when the Crown proceeds by indictment carries a minimum term of imprisonment of 1 year. (note: the minimum sentence is subject to constitutional challenge – many minimum sentences have been struck down by the courts). Persons convicted under this section are also placed on the sex offender registry pursuant to the Sex Offender Information and Registry Act.