R. v. Audet

R. v. Audet
Collection
Supreme Court Judgments
Date
1996-05-30
Report
[1996] 2 SCR 171
Case number
24653
Judges
La Forest, Gérard V.; L'Heureux-Dubé, Claire; Sopinka, John; Gonthier, Charles Doherty; Cory, Peter deCarteret; McLachlin, Beverley; Major, John C.
On appeal from
New Brunswick
Subjects
Criminal law
Notes
SCC Case Information: 24653
Decision Content
R. v. Audet, [1996] 2 S.C.R. 171
Her Majesty The Queen Appellant
v.
Yves Audet Respondent
Indexed as: R. v. Audet
File No.: 24653.
1996: January 25; 1996: May 30.
Present: La Forest, L'Heureux‑Dubé, Sopinka, Gonthier, Cory, McLachlin and Major JJ.
on appeal from the court of appeal for new brunswick
Criminal law ‑‑ Sexual offences ‑‑ Persons in position of authority ‑‑ Teachers ‑‑ Elements of offence of sexual exploitation ‑‑ Meaning of terms “position of authority” and “position of trust” ‑‑ Criminal Code, R.S.C., 1985, c. C‑46, s. 153(1) .
The accused, a 22‑year‑old teacher, was charged, under s. 153(1) of the Criminal Code , with touching a young person for a sexual purpose while in a position of trust or authority towards her. The accused went to a nightclub with a friend a few weeks after the summer holidays began. By chance, he there encountered the young person, then 14 years of age, whom he had taught during the school year when she was in Grade 8. She was accompanied by two of her cousins, both in their twenties. At about two o’clock in the morning, at the suggestion of the accused’s friend, the group went to a cottage. The young person stated during her testimony that the accused complained of a headache and went to lie down in a room containing two beds. Shortly thereafter, the young person joined the accused and lay down in the same bed. She also fell asleep. During the night, the accused and the young person woke up and engaged in oral sex. In a statement to the authorities that was adduced in evidence at trial, the accused admitted that he had initiated the touching. At the time of the incident, he had already been informed that his contract of employment had been renewed for the following year and that he would again be teaching students in Grades 7, 8 and 9 at the young person’s school. The accused was acquitted on the ground that he was not in a position of trust or authority towards the young person at the time of the incident. The Court of Appeal affirmed the acquittal in a majority decision.
Held (Sopinka and Major JJ. dissenting): The appeal should be allowed.
Per La Forest, L'Heureux‑Dubé, Gonthier, Cory and McLachlin JJ.: Parliament passed s. 153 of the Criminal Code to protect young persons who are in a vulnerable position towards certain persons because of an imbalance inherent in the nature of the relationship between them. To obtain a conviction under this provision, 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. The Crown must also prove that the accused had the mens rea required for each element of the offence. It does not have to prove, however, that the accused actually exploited his or her privileged position with respect to the young person. To attain its objective in passing s. 153(1) , Parliament chose to criminalize the sexual activity itself, regardless of whether it is consensual (s. 150.1(1) of the Code), in so far as it involves a person who is in a position or relationship referred to in s. 153(1) with respect to the young person. In this case, it is clear from the trial judge’s reasons that he assumed the Crown had to prove that the accused had abused or exploited his particular position towards the young person. The trial judge and, incidentally, the Court of Appeal therefore erred in law in incorrectly assessing the nature of the constituent elements of the offence set forth in s. 153(1) .
The words “authority” and “trust” used in s. 153(1) must be interpreted in accordance with their ordinary meaning and the term “position of authority” must not be restricted to cases in which the relationship of authority stems from a role of the accused but must extend to any relationship in which the accused actually exercises such a power. In declining to include in s. 153(1) a list of the cases in which a person must refrain from sexual contact with a young person, Parliament intended to direct the analysis to the nature of the relationship between the young person and the accused rather than to their status in relation to each other. The definition of the terms “position of authority” and “position of trust”, 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. It will be up to the trial judge to take into account all the factual circumstances relevant to the characterization of the relationship between the two in order to determine whether the accused was in a position of trust or authority towards the young person or whether the young person was in a relationship of dependency with the accused at the time of the offence. Although teachers are not in a de jure position of trust or authority towards their students, they are in fact in such a position in the vast majority of cases given the importance of the role entrusted to them by society. In the absence of evidence raising a reasonable doubt in the mind of the trier of fact as to the existence of a position of trust or authority, to conclude that a teacher is not in such a position towards his or her students would be an error of law. This approach, which imposes an evidential burden on the accused, does not violate the presumption of innocence, since in the absence of such evidence, the unknown fact (the existence of a position of trust or authority) follows inexorably from the basic fact (the fact that the accused is the teacher of the complainant, his or her student). In such circumstances, there is no possibility that the accused will be convicted despite the existence of a reasonable doubt. Finally, such an approach does not have the effect of making the crime of sexual exploitation an absolute liability offence. The Crown is not relieved of its obligation to prove beyond a reasonable doubt that the accused had the mens rea required for each element of the offence, which is a specific intent offence.
In this case there is no circumstance relevant to the determination of the nature of the relationship between the accused and the young person that could raise a reasonable doubt in the mind of the trier of fact as to the accused’s position of trust towards the young person. Even though the incident took place during the summer holidays, those holidays had just begun and it appeared from the circumstances that the accused would be the young person’s teacher once again. He was therefore at the very least in a position of trust towards her. This Court is accordingly justified in exercising the power conferred on it by s. 686(4) of the Criminal Code to set aside the verdict of acquittal entered by the trial judge and substitute a verdict of guilty, since it is clear that the accused would have been found guilty but for the trial judge’s error in law. Furthermore, the trial judge made all the findings necessary to support a verdict of guilty.
Per Sopinka and Major JJ. (dissenting): In enacting s. 153(1) of the Code, Parliament did not intend that teachers be conclusively presumed to be in positions of trust or authority. Rather, it intended that each case be examined on its facts to determine whether an accused in fact occupied a position of trust or authority towards a young person. In light of the importance of their role in our society, in most cases teachers will have established a nurturing relationship with their students, and the degree of dependency necessary to establish a position of trust will exist. In each case, however, that position of trust should be based on the nature of the relationship between the particular teacher and the particular student and not simply on the teacher's status. To create as a matter of law a presumption of fact that teachers are automatically and in all circumstances in positions of trust or authority would make sexual exploitation an absolute liability offence in circumstances where the accused is a teacher. Any absolute liability offence when paired with the potential for imprisonment violates s. 7 of the Canadian Charter of Rights and Freedoms . In addition, this approach would place an obligation on the accused teacher to disprove that a position of trust and authority existed. This is a burden that an accused in our system should not bear. The right to be presumed innocent guaranteed by s. 11 (d) of the Charter is paramount and should not be compromised, whether by presumption of fact or otherwise.
On the facts of this case, the trial judge concluded that the accused was not in a position of trust or authority at the time of the sexual touching. There was sufficient evidence in the circumstances of this case to reach that conclusion. That finding of fact was supported by the majority in the Court of Appeal and should not, and cannot, be interfered with by this Court. To overturn an acquittal the Crown must demonstrate with a reasonable degree of certainty that the verdict would not necessarily have been the same had the judge, without a jury, properly instructed himself. Since the trial judge did not commit any error of law, the Crown has not met its onus.
Cases Cited
By La Forest J.
Distinguished: Norberg v. Wynrib, [1992] 2 S.C.R. 226; referred to: Léon v. La Reine, [1992] R.L. 478; R. v. L.A.M. (1993), 86 Man. R. (2d) 179; R. v. P.S., [1993] O.J. No. 704 (QL); R. v. Palmer, [1990] O.J. No. 51 (QL); R. v. Hann (No. 2) (1990), 86 Nfld. & P.E.I.R. 33; R. v. Dunk (1991), 117 A.R. 161; R. v. G. (T.F.) (1992), 11 C.R. (4th) 221, leave to appeal refused, [1993] 3 S.C.R. ix; Eastman Photographic Materials Co. v. Comptroller‑General of Patents, Designs, and Trade‑Marks, [1898] A.C. 571; R. v. Jobidon, [1991] 2 S.C.R. 714; R. v. Dussiaume (1995), 98 C.C.C. (3d) 217, leave to appeal refused, [1995] 4 S.C.R. vi; R. v. Morin, [1988] 2 S.C.R. 345; R. v. MacKenzie, [1993] 1 S.C.R. 212; R. v. Cassidy, [1989] 2 S.C.R. 345; Ross v. New Brunswick School District No. 15, [1996] 1 S.C.R. 825; R. v. Forde, [1992] O.J. No. 1698 (QL); R. v. Downey, [1992] 2 S.C.R. 10; R. v. Vaillancourt, [1987] 2 S.C.R. 636; R. v. Whyte, [1988] 2 S.C.R. 3; R. v. City of Sault Ste. Marie, [1978] 2 S.C.R. 1299.
By Major J. (dissenting)
Re B.C. Motor Vehicle Act, [1985] 2 S.C.R. 486.
Statutes and Regulations Cited
Canadian Charter of Rights and Freedoms, ss. 7 , 11 (d).
Criminal Code, R.S.C., 1985, c. C‑46, ss. 150.1(1) [ad. c. 19 (3rd Supp.), s. 1 ], 153 [rep. & sub. idem], 265(3), 271 [am. idem, s. 10 ; am. 1994, c. 44, s. 19], 272 [repl. 1995, c. 39, s. 145], 273 [am. idem, s. 146 ], 273.1 [ad. 1992, c. 38, s. 1], 686(4) [am. c. 27 (1st Supp.), s. 145(3) ], 693(1)(a) [idem, s. 146 ].
Authors Cited
Bryant, Alan W. “The Issue of Consent in the Crime of Sexual Assault” (1989), 68 Can. Bar Rev. 94.
Canada. Committee on Sexual Offences Against Children and Youths. Sexual Offences Against Children. Ottawa: Minister of Supply and Services Canada, 1984.
Coleman, Phyllis. “Sex in Power Dependency Relationships: Taking Unfair Advantage of the ‘Fair’ Sex” (1988), 53 Alb. L. Rev. 95.
Grand Robert de la langue française, 2e éd. Paris: Le Robert, 1986, “autorité”, “confiance”.
Oxford English Dictionary, 2nd ed. Oxford: Oxford University Press, 1989, “authority”, “confidence”, “trust”.
APPEAL from a judgment of the New Brunswick Court of Appeal (1995), 155 N.B.R. (2d) 369, 398 A.P.R. 369, affirming the acquittal of the accused by McIntyre J. (1993), 142 N.B.R. (2d) 382, 364 A.P.R. 382, on a charge of sexual exploitation of a young person contrary to s. 153(1) of the Criminal Code . Appeal allowed, Sopinka and Major JJ. dissenting.
François Doucet, for the appellant.
Anne E. Bertrand and Paul A. Bertrand, for the respondent.
English version of the judgment of La Forest, L'Heureux‑Dubé, Gonthier, Cory and McLachlin JJ. delivered by
1 La Forest J. -- For the first time, this Court has the opportunity to analyse the meaning and scope of s. 153(1) of the Criminal Code, R.S.C., 1985, c. C‑46 , which prohibits every person who is in a position of trust or authority towards a young person or with whom a young person is in a relationship of dependency from engaging in any sexual activity described in paras. (a) and (b) with that young person ‑‑ even, according to s. 150.1(1) of the Code, where the activity is consensual. The instant appeal raises a number of issues concerning the nature of the constituent elements of the offence of sexual exploitation and the meaning and scope of the terms “position of authority” and “position of trust”.
I. Background
2 On July 8, 1992, the respondent, a 22‑year‑old physical education teacher, went to a club in Campbellton, New Brunswick with a friend, Serge Maltais. By chance, he there encountered the complainant, whom he had taught during the 1991‑92 school year when she was in Grade 8. The complainant, who had just turned 14 ten days earlier, was accompanied by two of her cousins, both in their twenties. The respondent did not hide his surprise at seeing one of his young students at a place where minors were not allowed. The respondent, Mr. Maltais, the complainant and her two cousins spent the evening together at the club. The complainant drank a few beers offered to her by her cousins.
3 The respondent did not testify at trial. The complainant stated during her testimony that later in the evening, at Mr. Maltais' suggestion, the three young women accompanied the two young men to a cottage near Val‑d'Amour. The respondent complained of a headache and decided to lie down in a room where there were two beds. Shortly thereafter, the complainant joined him and lay down next to him in the same bed. She also fell asleep. During the night, the respondent and the complainant woke up and engaged in oral sex. The complainant became increasingly uncomfortable and entreated the respondent to stop, which he did immediately. In a statement to the authorities, which was later adduced in evidence at trial, the accused admitted that he had initiated the touching. The respondent then asked the complainant to say nothing about the incident and told her that they might see each other again before the beginning of the next school year. He had in fact been informed 16 days before the incident that his contract of employment as a physical education teacher had been renewed for the 1992‑93 school year. He had also been told that he would again be teaching students in Grades 7, 8 and 9 at the complainant’s school.
4 The respondent was subsequently formally charged with touching the complainant for a sexual purpose while in a position of trust or authority towards her, thereby contravening s. 153(1) of the Criminal Code . He was acquitted at trial, a decision affirmed by the New Brunswick Court of Appeal on the ground that he was not in a position of trust or authority towards the complainant at the time of the incident. However, the Court of Appeal was divided on this issue. Ayles J.A. felt that the respondent was indeed in such a position towards the complainant and would have entered a verdict of guilty. In accordance with s. 693(1)(a) of the Code, the Crown appealed as of right to this Court on April 6, 1995.
Court of Queen's Bench (1993), 142 N.B.R. (2d) 382
5 First of all, McIntyre J. was persuaded by the evidence that the incident had occurred at the place and time alleged in the indictment and that the complainant was at that time a young person within the meaning of s. 153(2) of the Criminal Code . He stated that the only real issue was whether the accused was a person in a position of trust or authority towards the complainant at the time of the incident.
6 McIntyre J. quoted and approved passages from the reasons of Proulx J.A. of the Quebec Court of Appeal in Léon v. La Reine, [1992] R.L. 478, with respect to the purpose of the prohibition enacted by Parliament in s. 153(1) and the meaning of the terms “position of authority” and “relationship of dependency”. At p. 481, Proulx J.A. explained the origins of s. 153(1) , which was passed after the tabling of the Report of the Committee on Sexual Offences Against Children and Youths (the “Badgley Committee”), Sexual Offences Against Children (1984) (the “Badgley Report”), for the purpose of [translation] “suppressing the sexual exploitation of young people by persons who are in a position of trust or authority towards the young person or with whom the young person is in a relationship of dependency”. Further on, at p. 483, Proulx J.A. wrote that a position of authority stems primarily from the adult’s role in relation to the young person, but also extends to any [translation] “lawful or unlawful power to command which the adult may acquire in the circumstances”. In his view, the term “relationship of dependency” refers to a relationship ‑‑ originating from biological, legal or social ties or even specific circumstances ‑‑ in which the young person is subject, related or tied to the adult in such a way that he or she loses independence or freedom of action.
7 McIntyre J. specifically identified the facts that he considered relevant to characterizing the accused's position towards the complainant in the instant case. It is helpful to reproduce them in full (at pp. 388‑89):
[translation] In my view, the relevant facts are, first of all, that Mr. Audet did not invite or encourage [the complainant] to meet him at the club. He in no way encouraged her, either by dancing with her or by buying her alcohol. The three beers that she drank were, according to her own testimony, procured for her by her cousins who, in my opinion, were older and in a position of authority towards her at that moment. It was not the accused who suggested going to the cottage but, rather, his friend, Serge Maltais.
According to [the complainant's] own testimony, Audet made no sexual pass at her but, rather, complained of tiredness and a headache. He went to bed and fell asleep. A little later, [the complainant] went to join him in the bedroom and, even though there were two beds in the room, she chose to lie down beside him in the same bed.
. . . I noticed that during her testimony, [the complainant] alternately used “Mr. Yves” and simply “Yves” when referring to the accused. In several parts of her statement which were referred to in cross‑examination, she said “Yves” when referring to the accused. I draw the inference from this evidence as well as from the rest of the evidence that [the complainant] showed a familiarity towards the accused which is uncommon or unusual as between a student and her former teacher.
It must also be recalled that Mr. Audet was only 22 years old. In my view, there is an enormous difference between a 22-year‑old teacher and a teacher, let's say, who is 52 years old, and a young girl 14 years old. In my opinion, it is reasonable to conclude that a young 14‑year‑old girl feels more comfortable with a young man 22 years old than with a 52‑year‑old man.
On the whole, McIntyre J.'s opinion was that the accused was neither in a position to exercise some sort of power over the complainant nor in a position of trust within the meaning of s. 153(1) of the Code. He added the following at p. 389:
[translation] Even though [the complainant] afterwards regretted participating in these acts, the evidence does not establish that at the time of her participation, she was aware of some authoritative power which in some way obliged her to submit to the accused's advances.
McIntyre J. also took account of the fact that the incident occurred during the summer holidays and thus, in his view, outside the framework of the teacher‑student relationship.
New Brunswick Court of Appeal (Angers and Rice JJ.A., Ayles J.A. dissenting) (1995), 155 N.B.R. (2d) 369
8 The majority, per Angers J.A., described the offence provided for in s. 153(1) of the Criminal Code as follows (at pp. 372‑73):
[translation] The purpose of s. 153 of the Criminal Code is to protect young persons from sexual exploitation by persons who have some degree of power over them thus creating a situation of trust, authority or dependency. The father‑child or, as in the present case, the teacher‑student relationship, does not in and of itself create such a relationship of trust, authority or dependency. Of course, it would be a very important factor and, I have no doubt, a material factor in the majority of cases. However, it is only by examining all of the facts of each case that a judge can determine whether, at the time of the alleged act, the accused was in a position of trust, authority or dependency.
Relying on R. v. L.A.M. (1993), 86 Man. R. (2d) 179 (Q.B.), and R. v. P.S., [1993] O.J. No. 704 (Gen. Div.), the majority held that characterizing a person's position towards a young person is a question of fact to be determined by the trial judge.
9 In the case at bar, the majority’s view was that McIntyre J. had correctly analysed the evidence and had relied on the relevant facts in characterizing the relationship that existed between the accused and the complainant. It thus showed deference to McIntyre J.'s conclusion. Angers J.A. wrote the following at pp. 374‑75:
[translation] The judge reviewed the particular circumstances of the case: the school year was over, the cousins were in a position of authority towards [the complainant] that evening and there was no exploitation by the accused. Having observed [the complainant] during her testimony, the judge found that she was not aware of “some authoritative power which in some way obliged her to submit to the accused’s advances”. Finally, the judge ruled that the Crown had not established beyond a reasonable doubt that at the time of the incident, the accused was in a position of trust or authority towards [the complainant].
10 Ayles J.A. saw matters differently. He began by noting the difference between the English and French versions of s. 153(1) . Finding that the term “situation” in the French version was ambiguous, he inferred the following from the term “position” in the English version (at p. 377):
[translation] . . . the relationship between this teacher and this student cannot be described in terms of a relationship of power (authority/subjugation) but, rather, in terms of the relative status of two parties in relation to one another.
Ayles J.A. then considered the accused’s relationship with the complainant in the instant case. Drawing a parallel with this Court’s decision in Norberg v. Wynrib, [1992] 2 S.C.R. 226, he affirmed that teachers have a fiduciary relationship with their students. He also referred to the comments of Cosgrove Dist. Ct. J. of the Ontario District Court in R. v. Palmer, [1990] O.J. No. 51, and of Woolridge J. in R. v. Hann (No. 2) (1990), 86 Nfld. & P.E.I.R. 33 (Nfld. S.C.), and found that teachers are in a position of trust towards young persons.
11 Ayles J.A. further stated that the complainant’s consent to the acts is irrelevant in the context of a charge of sexual exploitation and that the courts have consistently held that the Crown need not establish any nexus between the person's position and the alleged sexual activity: R. v. Dunk (1991), 117 A.R. 161 (C.A.), and R. v. G. (T.F.) (1992), 11 C.R. (4th) 221 (Ont. C.A.).
II. Analysis
12 The difference of opinion between the majority and the dissent lies in determining the analytical approach that should be taken in dealing with charges of sexual exploitation. The trial judge and the majority of the Court of Appeal based their analysis on the immediate circumstances of the offence in order to determine whether those circumstances showed, in addition to the existence of some imbalance between the young person and the accused that established a position of trust or authority or a relationship of dependency within the meaning of s. 153(1) of the Criminal Code , that the accused had actually exploited his or her privileged position with respect to the young person. For his part, Ayles J.A. was of the view that s. 153(1) requires a comprehensive analysis of the nature of the relationship between the young person and the accused, regardless of the question of exploitation. His view differed because he felt that all young persons are in a relationship of dependency with teachers because of the fiduciary relationship that exists between them, which derives from the role conferred on teachers by society.
13 In my view, the appeal must be allowed and a verdict of guilty entered. First of all, McIntyre J.’s position, with which the majority of the Court of Appeal agreed, implies that the Crown must prove, as a constituent element of the offence of sexual exploitation, that the accused actually exploited his or her position of trust or authority towards the young person or the young person's relationship of dependency with the accused. An analysis of the means chosen by Parliament to meet the objective it was pursuing by creating the offence of sexual exploitation and of the legislative context of s. 153(1) shows that this approach is incorrect and contrary to previous judgments on this matter. I therefore find that the trial judge erred in law. Further, I am of the view that the circumstances of the case at bar warrant this Court's exercise of the power conferred on it by s. 686(4) of the Criminal Code to set aside the verdict of acquittal entered by the trial judge and substitute a verdict of guilty.
A. The Error of Law Committed by the Trial Judge
(1)Section 153 of the Criminal Code : Objective, Rationale and Constituent Elements of the Offence of Sexual Exploitation
14 Section 153 of the Criminal Code came into force on January 1, 1988. It was passed by Parliament in response to the Badgley Committee's recommendations in a report made public a few years earlier. It reads as follows:
153. (1) Every person who is in a position of trust or authority towards a young person or is a person with whom the young person is in a relationship of dependency 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,
is guilty of an indictable offence and liable to imprisonment for a term not exceeding five years or is guilty of an offence punishable on summary conviction.
(2) In this section, “young person” means a person fourteen years of age or more but under the age of eighteen years.
Although, as the Earl of Halsbury L.C. recognized at the end of the last century in Eastman Photographic Materials Co. v. Comptroller‑General of Patents, Designs, and Trade‑Marks, [1898] A.C. 571 (H.L.), at p. 575, the courts may use a commission report like the Badgley Report to identify Parliament's objective in enacting a given piece of legislation, I see no need to refer to it in the case at bar. It is evident that Parliament passed s. 153 of the Criminal Code to protect young persons who are in a vulnerable position towards certain persons because of an imbalance inherent in the nature of the relationship between them. This is merely stating the obvious, and it would not be helpful, nor is it necessary, for the purposes of this appeal to elaborate on the extent and scope of the social aspect of the problem.
15 However, while the purpose of the provision and the objective being pursued are relevant in interpreting s. 153(1) , great care must be taken to distinguish them from the means chosen by Parliament to achieve this purpose and meet this objective.
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.
17 In this Court, the respondent argued that, to find that an accused was in such a position towards or relationship with a young person, the Crown must necessarily show that the accused abused or exploited his or her position of trust or authority towards the young person or the young person’s relationship of dependency with the accused. In support of these arguments, the respondent referred this Court to my reasons in Norberg v. Wynrib, supra, and the two‑step analytical approach I there discussed. I wrote the following at p. 256:
It must be noted that in the law of contracts proof of an unconscionable transaction involves a two‑step process: (1) proof of inequality in the positions of the parties, and (2) proof of an improvident bargain. Similarly, a two‑step process is involved in determining whether or not there has been legally effective consent to a sexual assault. The first step is undoubtedly proof of an inequality between the parties which, as already noted, will ordinarily occur within the context of a special “power dependency” relationship. The second step, I suggest, is proof of exploitation. A consideration of the type of relationship at issue may provide a strong indication of exploitation.
18 In my view, the accused is in fact arguing that there is another constituent element to the offence of sexual exploitation, namely that the accused, in performing the alleged acts, abused his or her special position vis‑à‑vis the young person, a position deriving from the fact that the accused was in a position or relationship referred to in s. 153(1) .
19 In my view, the respondent's argument is incorrect. This interpretation cannot be reconciled with s. 150.1(1) of the Criminal Code , which provides that the young person’s consent is not a defence to a charge of sexual exploitation, because requiring such proof of exploitation would amount to implicitly recognizing that the quality of consent is somehow relevant in such a context. The interpretation proposed by the respondent suggests that the means chosen by Parliament to meet its legislative objective was to criminalize the abuse or exploitation by persons in a position or relationship mentioned in s. 153(1) of their position for the purpose of engaging in one of the prohibited activities. This is not the case. Adopting such an interpretation would make the offence of sexual exploitation totally irrelevant by confusing the objective of the provision and the standard adopted by Parliament.
20 The relative positions of the parties have always been relevant to the validity of consent under Canadian criminal law. The common law has long recognized that exploitation by one person of another person’s vulnerability towards him or her can have an impact on the validity of consent (see the historical review prepared by A. W. Bryant, “The Issue of Consent in the Crime of Sexual Assault” (1989), 68 Can. Bar Rev. 94, at pp. 127‑31; R. v. Jobidon, [1991] 2 S.C.R. 714, at p. 740; and my comments in Norberg v. Wynrib, supra, at pp. 250 and 252).
21 Moreover, in 1983 Parliament passed what is now s. 265(3) of the Criminal Code . This provision, which lists certain circumstances that may vitiate consent (Norberg v. Wynrib, supra, at p. 251), reads as follows:
265. . . .
(3) For the purposes of this section, no consent is obtained where the complainant submits or does not resist by reason of
(a) the application of force to the complainant or to a person other than the complainant;
(b) threats or fear of the application of force to the complainant or to a person other than the complainant;
(c) fraud; or
(d) the exercise of authority. [Emphasis added.]
Parliament also adopted a similar provision dealing specifically with consent to sexual assault, sexual assault with a weapon and aggravated sexual assault. Section 273.1 was added to the Criminal Code in 1992:
273.1 (1) Subject to subsection (2) and subsection 265(3) , “consent” means, for the purposes of sections 271, 272 and 273, the voluntary agreement of the complainant to engage in the sexual activity in question.
(2) No consent is obtained, for the purposes of sections 271, 272 and 273, where
(a) the agreement is expressed by the words or conduct of a person other than the complainant;
(b) the complainant is incapable of consenting to the activity;
(c) the accused induces 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. [Emphasis added.]
22 The Code thereby specifically provides that, for the purposes of ss. 271, 272 and 273, the exercise of authority (s. 265(3) (d)) and the abuse of a position of trust, power or authority (s. 273.1(2)(c)) will vitiate consent. While conscious of the minor differences in terminology in s. 153(1) , s. 265(3) (d) and s. 273.1(2)(c), I note that in most if not all cases in which the evidence shows that an accused in a position or relationship referred to in s. 153(1) with respect to the complainant actually abused his or her position in relation to the complainant to obtain the alleged sexual favours, the accused will at least have committed a sexual assault ‑‑ a more serious offence ‑‑ against the young person, since ss. 265(3) (d) and 273.1(2)(c) provide that there is no consent in such a situation. The interpretation proposed by the respondent therefore leads to a rather absurd situation. The offence provided for in s. 153(1) would be rendered totally irrelevant, since almost all the situations covered by s. 153(1) of the Criminal Code would in any event be covered by s. 271 , 272 or 273 , as the case may be. The offence of sexual exploitation would ultimately add nothing. Moreover, a person in a position of trust or authority towards a young person, or with whom the young person is in a relationship of dependency, would commit a less serious offence by abusing his or her privileged position to obtain sexual favours from a young person than by doing the same thing in relation to an adult. It is patently obvious that such an interpretation is totally at odds with Parliament’s objective in passing s. 153 of the Code.
23 Clearly, Parliament wanted to afford greater protection to young persons. It chose harsher means by criminalizing the activity itself, regardless of whether it is consensual (s. 150.1(1) of the Code), in so far as it involves a person who is in a position or relationship referred to in s. 153(1) with respect to the young person. As Woolridge J. eloquently stated in Hann (No. 2), supra, at p. 36:
The implication from the wording of s. 153 is that notwithstanding the consent, desire or wishes of the young person, it is the adult in the position of trust who has the responsibility to decline having any sexual contact whatsoever with that young person. [Emphasis added.]
It thus seems evident to me that the respondent’s argument is incorrect and that the Crown does not have to establish that the accused actually abused his or her position towards or relationship with the young person in order to obtain the young person’s consent to the alleged sexual activities.
24 As well, I would like to make it clear that the two‑step analytical approach I adopted in Norberg v. Wynrib, supra, cannot be unthinkingly applied in the context of a charge of sexual exploitation. That case is distinguishable from the case at bar, in that the whole argument there revolved around the validity of consent given by a patient to sexual relationships entered into with her physician. The legal context was very different, since unlike the situation here, the validity of the consent was relevant, the question having been raised in the context of civil proceedings for the tort of battery.
25 Finally, it is important to note, as Ayles J.A. did, that the courts have up to now consistently rejected any argument similar to that proposed by the respondent. In G. (T.F.), supra, the Ontario Court of Appeal, referring to the Alberta Court of Appeal's decision in Dunk, supra, expressed its complete agreement with this at pp. 222‑23:
Counsel for the appellant concedes that, on the facts of this case, the appellant was in a position of authority with respect to the complainant. He contends, however, that under s. 153 there must be a nexus between the position of authority and the giving of consent by the young person to the sexual activity; and since there was no proof of any such nexus in this case, the appellant should not have been convicted. With respect we do not agree.
The 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. We agree with the interpretation of the section given by Mr. Justice Kerans speaking for the Alberta Court of Appeal in R. v. Dunk, an unreported judgment dated June 3, 1991, (now reported at (1991), 117 A.R. 161, 2 W.A.C. 161) where he said:
“The section under review commands citizens dealing with children in a relationship of trust or authority not to act on apparent consent of that child to any sexual activity. That duty is not limited to cases where the Crown can show some relationship between the trust and consent. Therefore, the learned trial judge was correct not to charge the jury to assess the significance of the factor on the question of consent.”
Since, on the appeal against conviction the appellant raised only the one point that we have rejected, the appeal against conviction must be dismissed. [Emphasis added.]
Leave to appeal to this Court was refused: [1992] 3 S.C.R. ix. The Ontario Court of Appeal reiterated its position in R. v. Dussiaume (1995), 98 C.C.C. (3d) 217, at p. 219, leave to appeal refused, [1995] 4 S.C.R. vi. To the same effect, see also L.A.M., supra.
26 Accordingly, I decline to find that the Crown is required to prove, for the purposes of s. 153(1) of the Code, that the accused abused his or her position of trust or authority towards or relationship of dependence with the young person.
(2)The Position of the Trial Judge and the Majority of the Court of Appeal
27 It is clear from the trial judge's reasons that he ass