Sexual Exploitation Lawyers in Toronto

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SEXUAL EXPLOITATION LAWYERS IN TORONTO

Donich Law Professional Corporation defends allegations of sexual interference, child pornography and sexual exploitation on a regular basis. These charges are often laid together and commonly involve accusations made by family members.

In February 2018, Donich Law secured a withdrawal of 11 Sexual Assault and Sexual Interference charges made against a family member by multiple child complainants in R. v. Z.C. [2018]. In R.v. R.K. [2014] Donich Law secured a withdrawal of a sexual assault charge laid against a Jehovah’s Witness. In November 2015, the Firm secured the withdrawal of two sexual assault charges in R.v. K.C. [2015], after proving that the female student accusers had fabricated the allegations. In R. v. J.S. [2017], after two years of litigation, the Firm secured a withdrawal of all charges where the defendant was accused of sexually assaulting a co-worker at Canada Post.

Donich Law defends of a wide range of sexual based offences including historic sexual assault and incest cases dating as far back as the 1970’s. In R v. M.M. [2017] the firm defended an individual charged with sexually assaulting a five-year-old girl in the late 1970’s. Furthermore, the Firm secured a withdrawal of an incest charge in R. v. W.C. [2017] where the complainant accused her father of sexually assaulting her in the 1980’s. In R. v. D.N. [2016] the Firm secured a full acquittal after a three-day trial of all charges relating to the alleged sexual assault on a ten-year-old child a decade ago.

The Firm also vigorously defends child pornography offences including cases where the defendant is charged with luring or soliciting a minor over the internet. The Firm has experience defending regular law abiding citizens with no criminal history, who have been charged with child pornography based offences. In many cases those who are charged are educated professionals with regular family lives, who may not even be aware that their actions are criminal. Donich Law can help guide these, and all other offenders through the system, providing them with the best outcome in their case. The Firm works with a team of forensic computer experts who are able to analyze hard drives and computers to collect evidence that could be used to vigorously defend the charges. The Firm will also scrutinize the investigative techniques employed by police, including analysing search warrants used to gather evidence.

Sexual based offences are aggressively prosecuted in Ontario and come with not only the potential for serious penal consequences, but also a multitude of other ramifications on the offender’s family, social relationships, employment opportunities and travel options. The Firm will work diligently to defend the charges laid and secure the best possible outcome for its clients.

Frequently Asked Questions

What is Sexual Interference?
What are the Penalties for Sexual Interference?
What is the Difference Between Sexual Interference and Sexual Assault?
What is Sexual Exploitation?
What are the Penalties for Sexual Exploitation?
What is the Difference Between Sexual Interference and Sexual Exploitation?
What is a Position of Trust or Authority as referred to in s. 153(1) of the Criminal Code?
What is a Relationship of Dependency?
What is an Exploitative Relationship?
What Possible Defenses are Available for an Accused Charged with Sexual Exploitation?
What is Invitation to Sexual Touching?
What are the Penalties for Invitation for Sexual Touching?
What is Incest?
What are the Penalties for Incest?

What is Sexual Interference?

The offence of Sexual Interference is outlined under s. 151 of the Criminal Code:

Every person who, for a sexual purpose, touches, directly or indirectly, with a part of the body or with an object, any part of the body of a person under the age of 16 years

For “touching” to be considered sexual interference it must be for a sexual purpose. A “sexual purpose” generally refers to an act that was carried out for the purpose of the sexual gratification or arousal of the accused. This requires that the accused intended for the contact with the child’s body to be for sexual gratification. The contact between the accused and the child’s body can be direct or with an object.

What are the Penalties for Sexual Interference?

Sexual Interference is a hybrid offence, meaning it is up to the Crown’s discretion whether to prosecute the charge as a summary conviction or as an indictable offence. This gives the Crown a great deal of discretion on the maximum possible penalty the accused will receive should they be convicted. Which avenue they choose will depend largely on the circumstances surrounding the case including the personal characteristics of the accused and the alleged victim. Indictable offences and the penalties that come with them are generally far more serious than summary conviction offences.

The Criminal Code does not specify the exact penalty for crimes, rather it provides a maximum penalty and in some situations a minimum penalty. This means the sentence handed down is left largely to the discretion of the court. The court will take into consideration many factors including the offenders age, the victims age, the specifics of the offence, the offenders past criminal history, the effect on the victim and the circumstances that led to the crime being committed.

If an accused is convicted of sexual interference as a summary conviction offence the maximum penalty that can be imposed is 18 months’ imprisonment and the minimum that can be imposed is 90 days’ imprisonment. If the accused is convicted of sexual interference as an indictable offence the maximum penalty that can imposed is 10 years’ imprisonment and the minimum penalty that can be imposed is 1 years’ imprisonment.

What is the Difference Between Sexual Interference and Sexual Assault?

The elements of the charge of sexual interference are very similar to the elements of a sexual assault charge, one major difference being the age of the victim. This means that an individual can only be convicted of one of the two offences, never both, in one case. Another difference between sexual assault and sexual exploitation is the nature of the touching involved in the assault. As mentioned above, to prove a charge of sexual interference the Crown must prove that the touching was for a sexual purpose, in other words, for sexual gratification. Touching in sexual assault is less specific. To prove a sexual assault charge the Crown is only required to prove that the accused touched the complainant in a way that was sexual in nature. “Sexual in nature” does not necessarily require an element of sexual gratification, the phrase is much more vague. This allows the court to determine if the touching was sexual in nature on a case-by-case basis.

What is Sexual Exploitation?

The offence of Sexual Exploitation is outlined under s. 153 of the Criminal Code:

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 relationship with a young person that is exploitative of the young person, 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.

For the purposes of this section, a “young person” refers to an individual over the age of 16 but under the age of 18. Additionally, “sexual purpose” generally refers to an act that was carried out for the purpose of the sexual gratification or arousal of the accused. The Crown is required to present evidence of this purpose at trial in order to secure a conviction. This can be accomplished through the introduction of circumstantial evidence, however, for this to be successful the Crown must show that the only rational conclusion as shown by the evidence is that the accused committed the act for a sexual purpose.

What are the Penalties for Sexual Exploitation?

Sexual Exploitation is a hybrid offence, meaning it is up to the Crown’s discretion whether to prosecute the charge as a summary conviction or as an indictable offence. This gives the Crown a great deal of discretion on the maximum possible penalty the accused will receive should they be convicted. Which avenue they choose will depend largely on the circumstances surrounding the case including the personal characteristics of the accused and the alleged victim. Indictable offences and the penalties that come with them are generally far more serious than summary conviction offences.

The Criminal Code does not specify the exact penalty for crimes, rather it provides a maximum penalty and in some situations a minimum penalty. This means the sentence handed down is left largely to the discretion of the court. The court will take into consideration many factors including the offenders age, the victims age, the specifics of the offence, the offenders past criminal history, the effect on the victim and the circumstances that led to the crime being committed.

If an accused is convicted of sexual exploitation as a summary conviction offence the maximum penalty that can be imposed is 2 years’ less a days’ imprisonment and the minimum that can be imposed is 90 days’ imprisonment. If the accused is convicted of sexual exploitation as an indictable offence the maximum penalty that can imposed is 14 years’ imprisonment and the minimum penalty that can be imposed is 1 years’ imprisonment.

What is the Difference Between Sexual Interference and Sexual Exploitation?

In many respects, the elements to the charges of sexual interference and sexual exploitation are very similar. It is necessary under both charges to prove that the accused touched the victim, with the intent of doing so, and for a sexual purpose, either directly or indirectly, and with either a part of the accused’s body or with an object. The two charges differ however, when it comes to the age of the victim. In cases where the accused has allegedly assaulted someone under the age of 16 they will be charged with sexual interference. If, however, the victim was between the ages of 16 and 18 the accused will be charged with sexual exploitation. In addition to the age of the victim, the position of the accused in the victim’s life will also be taken into consideration when determining which of these charges to lay. In cases where the accused occupies a position of power or authority (such as a teacher, police officer, parent, school counsellor, etc.) or the victim is in some way dependent on them, or in an exploitative relationship with them, they will be charged with sexual exploitation. If they do not occupy such a position of power or authority they will likely be charged with sexual interference. To secure a conviction on a charge of sexual exploitation the Crown will be required to prove beyond a reasonable doubt that the accused occupied one of the three categories of relationships with the victim at the time the alleged assault occurred.

In both cases of sexual interference and sexual exploitation the fact that the victim was consenting at the time of the act or touching does not work to acquit the accused. The Criminal Code has made it illegal for adults to have sexual interactions with those under the age of 18 even where the underage individual is consenting. These laws are put in place to protect vulnerable populations and ensure that those in vulnerable positions are protected even when they are unable to protect themselves.

What is a Position of Trust or Authority as referred to in s. 153(1) of the Criminal Code?

The first category of relationship mentioned by the Criminal Code in s. 153(1) is a relationship where the accused is in a position of trust or authority. The courts have interpreted the phrase “position of trust or authority” in the everyday usage of the words, meaning that these words should be understood how they would be in everyday conversation. A person can be both in a position of trust and authority at the same time, however both are not required to secure a conviction.

A position of authority can refer to those in formal positions of authority such as police officers, immigration officers, border patrol agents and those with positions of power in the government. A position of authority can also exist in situations where the accused does not hold a formal position of authority but nonetheless has authority over the individual. This could include teachers, babysitters, day care workers and even parents or other family members.

A position of trust involves relationships where there are perceptions of safety, reliability and confidence on the part of the alleged victim in relation to the accused. This means that the victim trusted or relied upon the accused. A person who is in a position of trust owes a duty of care to the alleged victim and has breached that duty. An example of this would be the duty of care a day care worker owes to the children under their supervision.

It is important to note that a position of trust or authority does not have to be formal such as with teacher-student relationships or police officer and civilian relationships. A position of trust or authority can also occur in totally informal settings, such as when the accused cultivates a “big brother” relationship with a victim. Though no formal relationship exists, the accused has formed a relationship with the victim that allows the victim to depend upon and trust the accused.

Whether an accused occupies a position of trust or authority over the alleged victim will be determined by the courts on a case-by-case basis. The courts will look at the nature of the relationship between the accused and alleged victim, the circumstances of the alleged assault, the age difference between the two parties, the accused’s status in relation to the alleged victim as well as any other factors that may be helpful in making the determination. In many cases courts have found that no position of trust or authority existed even in relationships like the one’s listed above. Some examples include:

  • The owner of a video arcade where the alleged victim was employed.
  • A teaching assistant who worked at the alleged victim’s high school.
  • A stepfather and his stepdaughter who lived in the same residence.
  • A “horse trainer” who worked with the alleged victim.

When the accused and alleged victim are close in age, the court is less likely to find that a position of trust or authority existed. However, the courts have found that a position of trust or authority existed in cases where the accused and alleged victim were very close in age. Some examples include a tutor, lifeguard, babysitter or camp counsellor.

What is a Relationship of Dependency?

When outlining the charge of sexual exploitation, the Criminal Code outlines relationships where the accused is either in a position of trust or authority (as discussed above) or relationships where the alleged victim is dependent on the accused. A relationship of dependency is similar to a position of trust or authority, the major difference being that a relationship of dependency is generally less formal. A relationship of dependency exists where the young person has a de facto dependence on the accused.

This category of relationship is intended to be flexible leaving the discretion up to the courts to determine which relationships meet the standard. The courts will look at the facts of the case, the characteristics of both the accused and the alleged victim, the circumstances surrounding the alleged offence and the relationship between the accused and alleged victim. For example, the court found in one case that there was a relationship of dependency between a 27-year-old accused and a teenage runaway he was housing. In another example the courts found no relationship of dependency between a girlfriend and her boyfriend with a large age discrepancy.

What is an Exploitative Relationship?

The final category of relationship mentioned by the Criminal Code under s.153(1) is an exploitative relationship, where the accused is utilizing their position of power to exploit the young alleged victim. This category encompasses relationships that do not fit into the other two categories of relationships, where there is an imbalance of power between the accused and the alleged victim. When determining whether a relationship exists, the court will look at the facts of the case as well as the factors outlined in s. 153(1.2) of the Criminal Code:

Inference of Sexual Exploitation

153(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.

The court will analyze all of the factors and must be able to infer that a power imbalance existed between the accused and alleged victim at the time of the alleged offence and that the accused was utilizing that power imbalance to exploit the young person for the accused’s’ own benefit. The fact that a large age gap existed between the accused and alleged victim will not be enough on its own to prove that there was an exploitative relationship. For example, in one case the accused was the assistant coach of the alleged victim’s soccer team. The court found that no exploitative relationship existed because the alleged incident in question occurred after the accused was acting as the complainant’s soccer coach.

What Possible Defenses are Available for an Accused Charged with Sexual Exploitation?

To secure a conviction for sexual exploitation, the Crown must prove beyond a reasonable doubt that the accused touched the victim for the purposes of sexual gratification. This means that sexual exploitation is a specific intent offence. As such, one way to defend this type of allegation is to argue that there was no intention behind the accused’s actions. One way of doing this is arguing intoxication. If the accused was intoxicated at the time of the offence, it could be argued that they were unable to form the intention required by this offence due to their intoxication. For this type of defense to be successful, the level of intoxication must be so severe that the accused lacked the mental capacity to make decisions.

Arguing that the alleged victim consented to the sexual touching will not be a possible defense for sexual exploitation. This is due to the fact that the law is intended to protect a vulnerable group (minors) and assumes that an individual under the age of 18 is unable to consent to sexual touching when the individual doing the touching occupies a position of authority or power, is in a relationship of dependency with the victim or is in an exploitative relationship with the victim. If any of these categories of relationships are proven by the Crown, then the victim was unable to provide consent due to their age.

What is Invitation to Sexual Touching?

The offence of Invitation to Sexual Touching is outlined in s. 152 of the Criminal Code:

152. Every person who, for a sexual purpose, invites, counsels or incites a person under the age of 16 years 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 person under the age of 16 years

Invitation to Sexual Touching refers to situations where the accused counsels, invites or incites a person under the age of 16 to touch the body of the accused or another person for sexual purposes. The touching can be done with the young person’s body or with an object and can be direct or indirect. “Invitation” refers to scenarios where the accused asks or encourages the complainant to touch another person or the accused. The invitation could be done in person, over the phone or over the internet. The invitation must suggest actual physical contact between the complainant and either the accused or another person. “Incite” refers to a positive act, urging or encouragement by the accused for the complainant to touch for a sexual purpose. Additionally, the accused must intend for the minor to receive the communication as an invitation to touch for sexual purposes.

In some circumstances “dirty talk” can be considered an invitation for sexual touching, however this is decided on a case-by-case basis by the courts. Generally, the court must be convinced that the dirty talk was utilized to groom the child and make suggestions of physical touching become normal to the minor.

What are the Penalties for Invitation for Sexual Touching?

Invitation for sexual touching is a hybrid offence, meaning it is up to the Crown’s discretion whether to prosecute the charge as a summary conviction or as an indictable offence. This gives the Crown a great deal of discretion on the maximum possible penalty the accused will receive should they be convicted. Which avenue they choose will depend largely on the circumstances surrounding the case including the personal characteristics of the accused and the alleged victim. Indictable offences and the penalties that come with them are generally far more serious than summary conviction offences.

The Criminal Code does not specify the exact penalty for crimes, rather it provides a maximum penalty and in some situations a minimum penalty. This means the sentence handed down is left largely to the discretion of the court. The court will take into consideration many factors including the offenders age, the victims age, the specifics of the offence, the offenders past criminal history, the effect on the victim and the circumstances that led to the crime being committed.

If an accused is convicted of invitation for sexual touching as a summary conviction offence the maximum penalty that can be imposed is 18 months’ imprisonment and the minimum that can be imposed is 90 days’ imprisonment. If the accused is convicted of invitation to sexual touching as an indictable offence the maximum penalty that can imposed is 10 years’ imprisonment and the minimum penalty that can be imposed is 1 years’ imprisonment.

What is Incest?

The offence of incest it outlined under s. 155 of the Criminal Code:

155(1) Everyone commits incest who, knowing that another person is by blood relationship his or her parent, child, brother, sister, grandparent or grandchild, as the case may be, has sexual intercourse with that person

In cases where the accused was under duress, restraint or fear of the person with whom he or she had sexual intercourse, then the accused person will not be found guilty of incest. It is also important to note that “brother” and “sister” can refer to half-brothers and half-sisters.

What are the Penalties for Incest?

Unlike many of the other sexually based offences outlined in the Criminal Code, incest can only be prosecuted as an indictable offence, meaning the Crown prosecutor has no discretion. This reflects the serious nature of the offence; however, it also affords the accused with more rights during trial.

The Criminal Code does not specify the exact penalty for crimes, rather it provides a maximum penalty and in some situations a minimum penalty. This means the sentence handed down is left largely to the discretion of the court. The court will take into consideration many factors including the offenders age, the victims age, the specifics of the offence, the offenders past criminal history, the effect on the victim and the circumstances that led to the crime being committed. If an accused is convicted of incest the maximum penalty that can imposed is 14 years’ imprisonment and the minimum penalty that can be imposed is 5 years’ imprisonment.

 

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