Offence 153(1)(b): Sexual Exploitation

Note: Specimen jury instructions serve as a template that trial judges must adapt to the particular circumstances of each trial, not simply read out in whole. They are not designed to be delivered "as-is." More information about the use of specimen instructions is found in the Preface and A Note to Users, which you can find here.

(s. 153(1)(b))

(Last revised March 2014)

[1] (NOA) is charged with sexual exploitation. The charge reads:

(Read relevant parts of indictment or count.)

[2] You must find (NOA) not guilty of sexual exploitation unless the Crown has proved beyond a reasonable doubt that (NOA) is the person who committed the offence on the date and in the place described in the indictment.[324] Specifically, the Crown must prove each of the following essential elements of the offence beyond a reasonable doubt:

1. that (NOC) was a “young person” at the time;

2. that (NOA) invited (counselled, incited) (NOC) to touch, either directly or indirectly, (specify (NOA), (NOC), (NO3P))’s body;

3. that the invitation (counselling, incitement) to touch was for a sexual purpose; and

4. that (NOA) was in a position of trust (or, authority) towards (NOC) (or, that (NOC) was in a relationship of dependency with (NOA)).

Unless you are satisfied beyond a reasonable doubt that the Crown has proved all these essential elements, you must find (NOA) not guilty of sexual exploitation.

If you are satisfied beyond a reasonable doubt of all these essential elements [and you have no reasonable doubt[325] after considering the defence(s) (specify defences) about which I will instruct you], you must find (NOA) guilty of sexual exploitation.

[3] To determine whether the Crown has proved these essential elements, consider the following questions:

[4] First – Was (NOC) a “young person” at the time?

A “young person” is someone who is sixteen years old or more, but less than eighteen years old. (NOC) must have had his/her sixteenth birthday, but not his/her eighteenth birthday, when these events happened.

(Review relevant evidence and relate to issue.)

Unless you are satisfied beyond a reasonable doubt that (NOC) was a “young person” - over sixteen, but under eighteen, at the time - you must find (NOA) not guilty. Your deliberations would be over.

If you are satisfied beyond a reasonable doubt that (NOC) was a “young person” at the time, you must go on to the next question.

[5] Second – Did (NOA) invite (counsel, incite) (NOC) to touch, directly or indirectly, (specify (NOC), (NOA), (NO3P))’s body?

Where “invite” is alleged:

To “invite” means to request, ask or suggest, by words or gestures, or both, that something be done.

Where “counsel” is alleged:

To “counsel” means to suggest that someone do something, or to advise or recommend that he or she do it.

Where “incite” is alleged:

To “incite” means to encourage or urge someone by words or gestures, or both, to do something.

In all cases:

The invitation (counselling, incitement) must be to touch the body of a person.

The proposed touching must involve physical contact with any part of a person’s body. The contact could be direct, for example, touching a person with a hand or other part of the body, or indirect, for example, touching a person with an object. Force is not required.

All that matters for this essential element is that (NOA) invited (counselled, incited) (NOC) to touch (specify him/herself, (NOA), (NO3P)). It does not matter whether (NOC) agreed to touch or actually touched (specify him/herself, (NOA), (NO3P)).

(Review relevant evidence and relate to issue.)

Unless you are satisfied beyond a reasonable doubt that (NOA) invited (counselled, incited) (NOC) to touch (specify (NOC), (NOA), (NO3P))’s body, you must find (NOA) not guilty. Your deliberations would be over.

If you are satisfied beyond a reasonable doubt that (NOA) invited (counselled, incited) (NOC) to touch (specify (NOC), (NOA), (NO3P))’s body, you should go on to the next question.

[6] Third – Was (NOA)’s invitation (counselling, incitement) to touch for a sexual purpose?

The invitation (counselling, incitement) to touch had a sexual purpose if it was done for (NOA)’s sexual gratification or for the purpose of violating (NOC)’s sexual integrity, including any act meant to degrade or demean (NOC) in a sexual way.

(Review relevant evidence and relate to issue.)

To determine the purpose of the invitation (counselling, incitement) to touch, you should consider all the circumstances surrounding it. Consider what was said and what was done. Take into account the part of the body that (NOA) invited (counselled, incited) (NOC) to touch, and the nature of the contact in which (NOA) invited (counselled, incited) (NOC) to participate. Bear in mind any words or gestures that accompanied (NOA)’s invitation (counselling, incitement). It is for you to say whether, in all the circumstances, you are satisfied beyond a reasonable doubt that (NOA) had a sexual purpose when s/he invited (counselled, incited) (NOC) to touch (specify him/herself, (NOA), (NO3P)).

Unless you are satisfied beyond a reasonable doubt that (NOA)’s invitation (counselling, incitement) to touch was for a sexual purpose, you must find (NOA) not guilty. Your deliberations would be over.

If you are satisfied beyond a reasonable doubt that (NOA)’s invitation (counselling, incitement) to touch was for a sexual purpose, you must go on to the next question.

[7] Fourth – Was (NOA) in a position of trust (or, authority) toward (NOC) (or, was (NOC) in a relationship of dependency with (NOA))?[326]

Where “position of trust” is alleged:

An individual is in a position of trust toward a young person when the relationship between them creates an obligation or responsibility. For there to be a position of trust, there might be, but does not have to be, a formal legal relationship between the young person and the other person.

What is important is the nature of their relationship. A position of trust creates an opportunity for an individual to persuade or influence a young person.

To decide whether (NOA) was in a position of trust toward (NOC), you have to consider all the circumstances, including the age difference between (NOA) and (NOC) and the status of (NOA) in relation to (NOC). It is the nature of the relationship that is important.

(Review relevant evidence and relate to issue.)

Where “position of authority” is alleged:

An individual is in a position of authority toward a young person if he or she is in a position either to enforce obedience by the young person, or to influence the young person’s conduct. For there to be a position of authority, there might be, but does not have to be, a formal legal relationship between them.

What is important is the nature of their relationship. A position of authority includes any relationship in which one person exercises power or influence over another. A position of authority creates an opportunity for an individual to persuade or influence a young person.

To decide whether (NOA) was in a position of authority toward (NOC), you have to consider all the circumstances, including the age difference between (NOA) and (NOC) and the status of (NOA) in relation to (NOC). It is the nature of the relationship that is important.

(Review relevant evidence and relate to issue.)

Where “relationship of dependency” is alleged:

“Dependency” is the relation of one person to another by whom he or she is supported. Dependency is a relationship in which a young person relies on another person who, in some manner, has assumed a position of power or influence over the young person.

To decide whether (NOC) was in a relationship of dependency with (NOA), you have to consider all the circumstances, including the age difference between (NOA) and (NOC) and the status of (NOA) in relation to (NOC). It is the nature of the relationship that is important.

(Review relevant evidence and relate to issue.)

In all cases:

Unless you are satisfied beyond a reasonable doubt that (NOA) was in a position of trust (or, authority) towards (NOC) (or, that (NOC) was in a relationship of dependency with (NOA)), you must find (NOA) not guilty.

If you are satisfied beyond a reasonable doubt that (NOA) was in a position of trust (or, authority) towards (NOC) (or, that (NOA) was in a relationship of dependency with (NOA)), [and you have no reasonable doubt with respect to (specify defence)], you must find (NOA) guilty.

[324] Where identity is an issue, remember to include any further instructions that may be relevant (e.g., eyewitness identification, alibi, similar fact, etc.). Where date is an issue, the jury must be told that the Crown must prove that the offence occurred within the time frame indicated in the indictment. Where place is an issue, the jury must be told that the Crown must prove that some part of the offence occurred in the place indicated in the indictment.

Generally, the Crown must prove the date and place specified in the indictment. However, where there is a variation between the evidence and the indictment, refer to s. 601(4.1) of the Criminal Code and the jurisprudence following R. v. B. (G.), [1990] 2 S.C.R. 3.

[325] Insert the bracketed words if appropriate. This instruction will have to be modified where the accused has a legal burden of proof, such as for mental disorder or non-insane automatism.

[326] The instructions that follow may require some modification where there is evidence that (NOA) did not actively abuse or exploit his/her position of trust or authority: see R. v. Audet, [1996] 2 S.C.R. 171.