[1] The Accused was initially charged with both sexual exploitation and sexual assault contrary to ss 153 and 271 of the Criminal Code, RSC 1985, c C-46. Late in the trial proceedings, the Crown withdrew the sexual assault charge.
[3] In June 2018 the Complainant graduated from Western Canada High School (“Western”) in Calgary. The Accused was a teacher at this school. He was the Complainant’s homeroom teacher nd 11 and he taught the Complainant English in the fall semester of her grade 12 year from September 2017 to January 2018.
[4] In July of 2018, a sexual relationship between the Accused and the Complainant commenced, leading to the charges before the Court. The Accused was 35 years-old at the time of the first sexual activity with the Complainant on July 7, 2018; the Complainant was 17 on that date and turned 18 on August 13, 2018. Sexual activity continued between the Complainant and the Accused after the Complainant turned 18 for a period of approximately 2 years, ending in the spring of 2020.
ISSUE
[5] The relationship between former teachers and former students present distinct challenges for trial courts respecting both the teacher’s position of authority and their position of trust toward the student. By the time sexual activity commenced on July 7, 2018, the Accused was no longer the Complainant’s teacher as she had graduated. In July and August of 2018, all parties agree that any position of authority that the Accused may have had in relation to the Complainant terminated upon the Complainant’s completion of her exams and graduation in June of 2018.
[6] The sole issue for determination in this matter is whether a position of trust existed when the Accused and the Complainant engaged in sexual activity between the dates of July 7, 2018, and when the Complainant turned 18 on August 13, 2018. [Emphasis by PJM]
CONCLUSION
[7] For the reasons set forth below, I have reasonable doubt as to whether the Crown has proven the existence of a continuing position of trust between the Accused and the Complainant between July 7 th and August 12, 2018, and find the Accused not guilty of the charge before the Court.
CASE LAW AND THE POSITION OF TRUST
R v. Audet
[66] As acknowledged by the parties, the leading case on s 153(1) is the 1996 decision of the Supreme Court of Canada in Audet concerning a 22-year-old physical education teacher who had oral sex with a 14-year-old student he had taught while she was in eighth grade. The sexual activity took place during the summer months when the complainant was not in school. However, the accused knew at the time that he would be returning to the same school in the fall where the complainant would be completing ninth grade.
Justice La Forest, writing for the majority, identified the elements of the Offence that the Crown must prove beyond a reasonable doubt to secure a conviction:
16 First, the offence applies to three separate categories of persons: those in a position of trust towards a young person, those in a position of authority towards a young person and those with whom the young person is in a relationship of dependency. The Code prohibits every person in such a position or relationship with respect to a young person from engaging in any of the sexual activities described in paras. (a) and (b) of s. 153(1). As well, contrary to the situation that exists with respect to a charge of sexual assault, a person charged under s. 153(1) cannot raise the young person’s consent as a defence (s. 150.1(1) of the Criminal Code). To obtain a conviction under s. 153(1), the Crown must prove beyond a reasonable doubt that the complainant is a young person within the meaning of s. 153(2), that the accused engaged in one of the activities referred to in s. 153(1) and, finally, that at the time the acts in question were committed the accused was in a position of trust or authority towards the young person or the young person was in a relationship of dependency with the accused. Of course, the Crown must also prove the mens rea required for each of these elements.
[69] The Justice went on to interpret of the meaning of “position of trust” in light of the Parliament’s motivation to protect young persons in positions of vulnerability as a result of their position in relation to adults occupying the special relationships in s 153(1):
36 I would add that the definition of the words used by Parliament, like the determination in each case of the nature of the relationship between the young person and the accused, must take into account the purpose and objective pursued by Parliament of protecting the interests of young persons who, due to the nature of their relationships with certain persons, are in a position of vulnerability and weakness in relation to those persons.
[original emphasis]
[70] …this type of privileged relationship is dependent on the factual circumstances of each particular case. To assist with this determination, trial judges should look to the age difference between a complainant and an accused, the evolution of their relationship and the status of the accused in relation to a complainant, though other factors may also be considered:
[71] Justice La Forest observed that teachers may not always be in positions of trust or authority in relation to their students, though they are in the majority of situations. Further, positions of trust and authority may come to an end. The Crown, however, need not lead evidence to show the important role teachers occupy in society, nor that this generally puts them in positions of both trust and authority vis-à-vis their students.
[72] Accordingly, though teachers are not de jure in a position of trust regarding their students, it is presumed that they are. This presumption, however, can be displaced:
43 In short, I am of the view that in the vast majority of cases teachers will indeed be in a position of trust and authority towards their students. It must also be recognized that there may be situations where, owing to exceptional factual circumstances, this is not the case because, even though the accused has the status of a teacher, his or her relationship with a particular student is such that the element of trust or authority is totally absent. I will refrain from speculating and suggesting hypothetical examples to illustrate this. However, in the absence of evidence raising a reasonable doubt in the mind of the trier of fact, it cannot be concluded that a teacher is not in a position of trust and authority towards his or her students without going against common sense. [Emphasis by PJM]
R v Aird
[84]….Justice Laskin reiterated the non-exhaustive factors set out in Audet, and supplemented them with two additional factors that may be considered:
28 The considerations that bear on whether a relationship comes within s. 153 flow from the obvious purpose of this section: to protect a young person who is vulnerable to an adult because of the imbalance in their relationship. With this purpose in mind, the courts have identified several considerations relevant to an assessment of whether a relationship of trust exists. They include:
• 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.
See R. v. Audet; R. v. C.D., [2000] O.J. No. 1667 (C.A.). See also R. v. D.E., [2009] O.J. No. 1909
29 No one consideration is determinative. But each one may play a role…[.]
R v EJB
[92] The factors for consideration set out in Aird were adopted by the Alberta Court of Appeal in EJB. The additional factors in RT were not mentioned. The Court of Appeal also noted that “[a] person who is regarded by the parent or guardian of the child, and/or by the child, to be a responsible person, relied upon to do the right thing vis à vis the child, is generally in a position of trust”.
[93] EJB concerned a 36-year-old accused who had sex with his 16-year-old niece. The complainant was living with the accused at the time, with the approval of the complainant’s father, stepmother, and grandparents. The Court of Appeal found that the trial judge erred in not finding the accused in a position of trust. It was only because of accused’s position of trust that the complainant’s parents and previous guardians allowed the complainant to live with the accused in the first place.
[99] As we observe from the above, courts have struggled since Audet to reach both a clear definition of a position of trust and a framework to apply to determine whether one is present. Ultimately, determination of whether an accused is in a position of trust is contextual and depends on analysis of all of the circumstances.
SUMMARY OF THE POSITION OF TRUST
[117] Defining a position of trust and determining whether one exists have proven difficult for courts for several decades. The jurisprudence has struggled to come up with a clear definition of what constitutes a position of trust. Whether an adult is in a position of trust towards a young person is a factual inquiry determined on a case-by-case basis and is dependent upon a consideration of the unique circumstances in each case.
[118] Positions of trust are said to occur where a young person is particularly vulnerable to an adult’s persuasive influence. Adults who occupy roles where they are expected, relied upon, or required, to do the right thing in relation to their interactions with young persons are generally considered to be in positions of trust.
[119] Teachers are presumed to be in positions of trust towards their students, but they are not in de jure positions of trust, and the presumption can be rebutted. Unlike some of the other privileged relationships set out in s 153, positions of trust attach to the person in question and may persist after a position of authority would terminate, or the factual circumstances that gave rise to the relationship have ended. As with other elements of a position of trust, how long this relationship may persist is dependent on the particular circumstances and no clear time delineation can be found in law.
SUMMARY OF FACTORS TO BE CONSIDERED BY THE COURT
Although defining and identifying a position of trust remains a nebulous, fact-specific endeavour, several key points and considerations may be gleaned from the case law:
Positions of trust are found where a young person is particularly vulnerable to the persuasive influence of an adult.
Determining whether an adult is in a position of trust towards a young person depends on the factual circumstances of each c
Though not exhaustive or determinative, courts should consider the following when making this determination:
o The age difference between the adult and young person;
o The evolution of the relationship between the adult and the young person;
o The status of the adult in relation to the young person;
o The degree of control, influence or persuasiveness exercised by the adult over the young person;
o The expectations of the parties affected which includes the parents of the young person; and
o Any grooming, pressuring or incentivising behaviour by the adult. .
Consideration of these factors is mandated to determine if there existed a power imbalance that left the young person in a vulnerable position. The young person’s circumstances, maturity, sophistication, independence and agency may factor into this determination.
Age difference on its own is not enough to find an inherent power imbalance. A large age difference, however, weighs in favour of finding a relationship of trust.
Teachers are presumed to be in a position of trust towards their students, though this presumption can be overcome.
The position of trust occupied by teachers can extend beyond the classroom and outside of work hours.
An adult in a position of trust may be seen as having some duty to conduct themselves in a certain fashion towards a young person that would not be imposed on a regular person.
Whether an adult occupies a position of trust may change over time. An adult who was at one point in a position of trust towards a young person may no longer occupy that position at the time sexual activity occurs.
However, positions of trust may linger even after the circumstances originally giving rise to the relationship have ended.
An adult may be viewed as being in a position of trust when the young person would trust the adult, view them as an authority figure, or where they were given access to the young person as a result of an existing relationship.
DETERMINATION OF THE POSITION OF TRUST ON THE FACTS
[133] It is clear the Accused stood in a position of trust towards the Complainant when he was her homeroom teacher in grades 10 and 11, as well as when he was taught her English in the first semester of grade 12. It might also be argued that the Accused would have continued to occupy a position of trust during the second semester of the Complainant’s grade 12 year, though he had no control or influence over the Complainant’s school marks or performance evaluations.
[134] However, it is evident from the testimony of the Complainant, as well as that of AB, that she was interested in developing a sexual relationship with the Accused as early as the examination period of her last year and thereafter. Once the Complainant was no longer a student at Western and he was no longer her teacher, the Accused presented as similarly interested in having sexual relations, which they engaged in on for the first time on July 7th, 2018. From this date forward the parties’ relationship continued to evolve in an adult fashion.
135] Until the Complainant’s graduation, the relationship between them had been that of teacher and student. It was neither intimate nor sexual.
[136] It was not until the Complainant had left the school that the relationship between the two changed to one of intimacy. Much like in Osmond, they “flipped the switch” in their relationship, which thereafter became intimate.
[137] While there is a significant age gap between the parties, which militates in favour of finding a position of trust, the Complainant in this case was not a young child or young teenager. She presented as mature, confident, sophisticated, and independent. She was beginning to live her life as an adult, capable of making her own decisions. These included plans for future education overseas and to pursue a career elsewhere in Canada, both of which she achieved.
[138] She made a conscious decision to seek and establish a relationship with the Accused. That relationship commenced from a clear decision of personal agency. It continued by their mutual agreement, lasting throughout her time overseas and while she worked in Montreal. The parties reconnected on the occasions when she returned to Calgary and ultimately maintained their relationship for a period just shy of 2 years.
[140] Importantly, the Complainant was not a child in the care of the Accused or one who had grown up in the same household or been entrusted by relatives to stand in the quasi-parental care of the Accused. This Court has no evidence regarding any expectations of relatives of the Complainant or of her relationship with the Accused being one of dependency. Rather the Complainant was beyond the age of consent and weeks short of her 18th birthday. This distinguishes this case from the decisions in Hajar, Friesen, EJB and Lemay.
[141] There was no evidence in this case of the Complainant feeling intimidated, pressured or persuaded by the Accused to engage in sexual relations at any time. Similarly, there was no evidence of the Accused grooming her during their school years at Western, which distinguishes this case from RT.
[142] Also, unlike the decisions in RT, Aird and Allard, the Complainant was not a very vulnerable or naïve person lacking in maturity or sophistication. There is no evidence the Complainant relied on the Accused for personal advice, or for love and care she lacked in her home or social life. Neither was there evidence that she suffered from emotional or psychological challenges.
[143] Lastly, unlike the decisions in Chung and Boere, there was no continuing relationship of authority during the time sexual relations began and continued.
[144] While the Accused did stress the need for secrecy in their relationship and, on at least one occasion, reprimanded her for not taking this seriously enough, this conversation occurred after the Accused was 18, and did not involve threats against the Complainant. Moreover, the evidence reflected that the Accused did not maintain power, persuasion or control over the Complainant as she chose to disclose their relationship as she saw fit, leading to testy exchanges between the parties.
[145] The following hallmarks of concern expressed by the courts that do not present in this case include the following:
childhood bond with the Accused developed from a young age;
parental entrustment and expectations of quasi-parental responsibilities of the Accused;
dependency of the Complainant on the Accused for emotional support or personal life advice;
grooming, pressure, threats, incentivisation or persuasion on the Accused’s part;
a power imbalance, beyond their age difference, between the parties;
evidence of prior intimacy or sexual activity during their pre-existing relationship as student and teacher;
authority, control over or exploitation of the Complainant by the Accused;
a particular naïveté, vulnerability, weakness or young age on the part of the Complainant.
46] The significant age gap between the parties and the existence of a prior teacher/student relationship might make the Accused’s decision to begin an intimate relationship so quickly after graduation appear on its face to be unseemly, distasteful, ill-advised or perhaps even immoral.
[147] However, neither Parliament nor the courts have sought to prohibit a teacher absolutely from having a relationship with a former student or to define a socially acceptable “cooling-off” period.
[148] In conclusion, I am left in doubt whether there existed a position of trust at the time of the sexual activity in question.
