The lawyers at Stern Shapray have extensive experience representing clients charged with Sexual Exploitation and reaching favourable outcomes for them. It is vital that one charged with this offence seeks out the legal advice of an experienced criminal lawyer in order to put forth the best possible defence(s) before the Court or pursue alternate ways to resolve the matter without going to trial.

When assessing whether to hire a lawyer when charged, it is important to first be aware of the legal consequences in the event one is found guilty of Sexual Exploitation. The sentence one receives will depend on whether the charge was prosecuted summarily or by indictment.

For sentencing under summary proceedings, the accused will be subjected to a minimum jail sentence of 90 days, with the maximum being 2 years less a day. For sentencing under proceedings by indictment, the accused will be subjected to a minimum jail sentence of 1 year, with the maximum being 14 years. Under both types of proceedings, the jail sentence may be accompanied by a fine and/or probation order.

For an accused to be found guilty of Sexual Exploitation, the Court must be satisfied beyond a reasonable doubt that each of the following requirements has been met:

1. The accused directly or indirectly touched the complainant, or invited, counselled, or incited the complainant to directly or indirectly touch the body of the accused or another person
2. The accused did so intentionally and for a sexual purpose;
3. The complainant was 16 years old or more but under the age of 18 years at the time of the alleged touching or communication, and
4. The accused was in a position of trust or authority toward the complainant, was a person with whom the complainant was in a relationship of dependency, or was in a relationship with the complainant that was exploitative of the complainant.

The accused will not be subjected to any statutory minimum sentence when prosecuted either summarily or by indictment. Under summary proceedings, the maximum jail sentence an accused can receive is 2 years less a day and/or a $5000 fine. Under proceedings by indictment, the maximum jail sentence is 5 years.

Less extreme forms of sentence are available under both summary and indictable proceedings, such as absolute discharge, suspended sentence, fine with or without probation, intermittent sentence, and conditional sentence. That being said, the ultimate sentence imposed on an accused will largely depend on the circumstances of their case.

For an accused to be found guilty of Sexual Exploitation of a Person with Disability, the Court must be satisfied beyond a reasonable doubt that each of the following requirements has been met:

1. The accused counselled or incited the complainant to directly or indirectly touch the body of the accused or another person
2. The accused did so intentionally and for a sexual purpose;
3. The accused was in a position of trust or authority toward the complainant or was a person with whom the complainant was in a relationship of dependency,
4. The complainant had a physical or mental disability at the time of the alleged communication, and
5. The complainant did not consent to the touching at the time the sexual activity in question took place.

There are various ways in which charges of Sexual Exploitation of a Person with Disability can be defended. This is ideally accomplished by raising a reasonable doubt toward one or more required elements of the offence, such as

• identity of the accused,
• whether or not the accused actually communicated (i.e., counselled or incited) to the complainant to touch the body of any person,
• whether or not the alleged communication was for a sexual purpose,
• the accused was not in a position of trust or authority toward the complainant or was not a person with whom the complainant was in a relationship of dependency,
• the complainant did not have a physical or mental disability at the time of the alleged communication,
• the complainant consented to the touching at the time the sexual activity in question took place (subject to certain exceptions under s. 153.1(3)),
• the accused honestly believed that the complainant consented to the touching at the time the sexual activity in question took place (subject to certain exceptions under s. 153.1(3) and (5)), and
• the truthfulness of the complainant’s allegations.

For reference, the offence of Sexual Exploitation of a Person with Disability and the applicable defences are outlined in the Criminal Code as follows:

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 five years; or

(b) an offence punishable on summary conviction.

(2) Subject to subsection (3), consent means, for the purposes of this section, the voluntary agreement of the complainant to engage in the sexual activity in question.

(2.1) Consent must be present at the time the sexual activity in question takes place.

(2.2) The question of whether no consent is obtained under subsection (3) or (4) or 265(3) is a question of law.

(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.

(4) Nothing in subsection (3) shall be construed as limiting the circumstances in which no consent is obtained.

(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) or (4) or 265(3) 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.

(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.

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