What is sexual exploitation under the Criminal Code?

Sexual exploitation is defined under section 153 of the Criminal Code. It is the offence of touching, for a sexual purpose, any part of the body of a young person aged 16 or 17 when the accused is in a position of trust or authority toward them, or the young person is in a relationship of dependency with the accused. The age of consent in Canada is 16, but section 153 effectively raises it to 18 where these relationships exist.

Who qualifies as being in a position of trust or authority?

The Criminal Code does not provide an exhaustive list. Courts determine this on a case-by-case basis, considering the nature and circumstances of the relationship. Examples that courts have recognized include teachers, coaches, tutors, employers, religious leaders, counsellors, foster parents, and family members. The question is whether the relationship involves a power imbalance that could be exploited. Section 153(1.2) allows the court to infer exploitation from the nature of the relationship, the circumstances, and the age difference.

What is the mandatory minimum sentence for sexual exploitation?

Sexual exploitation carries a mandatory minimum sentence of 1 year imprisonment when prosecuted by indictment (maximum 14 years) and 90 days when prosecuted by summary conviction (maximum 2 years less a day). These mandatory minimums apply regardless of the circumstances. A conviction also triggers mandatory registration on the National Sex Offender Registry, a DNA order, a weapons prohibition, and potentially section 161 orders.

What is the difference between sexual exploitation and sexual assault?

Sexual assault under section 271 applies to any non-consensual sexual touching, regardless of age. Sexual exploitation under section 153 applies specifically where a person in a position of trust or authority engages in sexual activity with a 16 or 17-year-old. The complainant may have appeared to consent, but that consent is vitiated by the power imbalance in the relationship. A person can be charged with both offences arising from the same conduct.

Can the complainant's apparent consent be a defence?

No. Unlike sexual assault involving adults, where consent is a complete defence, apparent consent is not a defence to sexual exploitation. The purpose of section 153 is to protect young persons from exploitation by people in positions of power over them. Parliament has determined that a 16 or 17-year-old cannot freely consent to sexual activity with someone who holds authority over them, regardless of whether the young person appeared willing.

What defences are available to sexual exploitation charges?

The primary defences include: no position of trust or authority existed (the relationship was not one of trust, authority, or dependency); the sexual touching did not occur; the complainant was 18 or older at the time; and Charter challenges if evidence was obtained unconstitutionally. The defence that the accused believed the complainant was 18 or older is available only if the accused took all reasonable steps to ascertain age under s.150.1(4).

What collateral consequences follow a sexual exploitation conviction?

A conviction triggers mandatory registration on the National Sex Offender Registry under SOIRA (20 years for an offence with a 14-year maximum), a mandatory DNA order, a mandatory weapons prohibition, and potentially section 161 orders restricting contact with persons under 16, attendance at parks and schools, and internet use. For regulated professionals such as teachers, coaches, or counsellors, a conviction results in loss of professional certification. Immigration consequences include automatic serious criminality for permanent residents.

Can a sexual exploitation charge be dropped?

The Crown can withdraw or stay a sexual exploitation charge if there are evidentiary problems, credibility issues, or difficulties proving the position of trust element. These outcomes are more likely when the defence identifies weaknesses in the Crown's case early and presents them through pre-trial discussions or at preliminary inquiry. RH Criminal Defence has secured discharges at preliminary inquiry in cases involving sexual exploitation charges.

Sexual Exploitation Charges

What Section 153 Prohibits

Section 153 of the Criminal Code makes it an offence for a person in a position of trust or authority, or with whom a young person is in a relationship of dependency, to touch any part of the body of a young person aged 16 or 17 for a sexual purpose, or to invite, counsel, or incite such a young person to touch any person for a sexual purpose.

The effect of section 153 is to raise the age of consent from 16 to 18 in relationships involving a power imbalance. While a 16-year-old can generally consent to sexual activity, that consent is not legally valid when the other person holds a position of trust or authority over them.

Who Is in a “Position of Trust or Authority”?

The Criminal Code does not provide an exhaustive definition. Courts assess the nature of the relationship on a case-by-case basis. Factors include the degree of control the accused had over the young person, the dependence of the young person on the accused, and whether the relationship created an opportunity for exploitation.

Relationships that courts have found to constitute a position of trust or authority include:

Teachers and professors in relation to their students
Coaches and trainers in relation to athletes they supervise
Employers in relation to young employees
Counsellors and therapists in relation to clients
Religious leaders in relation to congregants
Foster parents and guardians in relation to youth in their care
Family members such as step-parents, uncles, or older siblings acting in a caregiving role

Section 153(1.2) provides that a judge may infer that a person is in a relationship of exploitation based on the nature and circumstances of the relationship, including the age of the young person, the age difference between the parties, how the relationship developed, and the degree of control or influence exercised over the young person.

What the Crown Must Prove

To secure a conviction under section 153, the Crown must prove beyond a reasonable doubt:

Identity — the accused is the person who committed the act.
Sexual touching or invitation — the accused touched the young person for a sexual purpose, or invited, counselled, or incited the young person to touch any person for a sexual purpose.
Age — the complainant was 16 or 17 at the time.
Position of trust, authority, or dependency — the accused was in such a position relative to the complainant, or the relationship was exploitative.

The position of trust element is often the most contested. It requires more than an age difference or an acquaintance — the Crown must establish a genuine relationship of trust, authority, or dependency that created the opportunity for exploitation.

How It Differs from Sexual Assault

Sexual assault under section 271 applies to any non-consensual sexual touching, regardless of age. Consent is the central issue — if the complainant consented and was old enough to do so, sexual assault is not made out.

Sexual exploitation under section 153 applies even where the complainant appeared to consent. The charge recognizes that a 16 or 17-year-old in a relationship of trust cannot freely consent to sexual activity with the person who holds power over them. The complainant’s apparent willingness is not a defence.

	Sexual Assault (s. 271)	Sexual Exploitation (s. 153)
Complainant age	Any age	16 or 17
Key element	No consent	Position of trust/authority
Consent a defence?	Yes	No
Maximum (indictment)	10 years	14 years
Mandatory minimum	None	1 year

Penalties and Sentencing

Section 153 is a hybrid offence:

Indictment: Mandatory minimum 1 year, maximum 14 years.
Summary conviction: Mandatory minimum 90 days, maximum 2 years less a day.

The mandatory minimum means a judge cannot impose a conditional discharge, a suspended sentence, or a conditional sentence. On indictment, the accused will serve at least 1 year in custody.

A conviction triggers mandatory ancillary orders: registration on the National Sex Offender Registry under SOIRA (20 years), a DNA order, a weapons prohibition, and potentially section 161 orders. For professionals in positions of trust — teachers, coaches, counsellors — the professional consequences are typically career-ending.

Defence Strategies

No position of trust or authority. The most common defence. Not every relationship with a young person constitutes a position of trust. A casual acquaintance, a peer, or someone the young person met socially may not qualify. The defence must establish that the relationship lacked the power imbalance that section 153 is designed to address.

The sexual touching did not occur. Where the case rests on the complainant’s testimony, credibility challenges are central. Inconsistencies, contradictions with other evidence, and implausibilities can raise a reasonable doubt.

Mistaken belief in age. Under section 150.1(4), the accused can argue they honestly believed the complainant was 18 or older and took all reasonable steps to verify age. This defence is narrow but available.

Charter challenges. Evidence obtained through unlawful searches, failure to provide the right to counsel, or improper interrogation techniques may be excluded under section 24(2) of the Charter.

Representative Case Results

The following result involving sexual exploitation charges is drawn from the firm’s published case outcomes:

R v P.R. — Client was discharged after a preliminary inquiry of sexual exploitation, sexual interference and sexual assault x 5 at 1000 Finch Court in Toronto. After two days of cross-examination of the complainant, the Crown invited the Judge to discharge my client due to the problems with the evidence. The Crown had sought my client’s detention at the bail hearing and was originally seeking a penitentiary sentence.

What to Do If You Are Charged

Sexual exploitation carries mandatory minimum sentences, sex offender registration, and consequences that extend far beyond the criminal case. If you have been charged:

Exercise your right to silence. Do not give a statement to police without speaking to a lawyer.
Preserve all communications. Text messages, emails, and other communications between you and the complainant may be critical evidence.
Do not contact the complainant. Bail conditions will prohibit contact. Any communication is a separate criminal offence.
Retain a criminal defence lawyer. The position of trust element, the evidentiary complexities, and the severe consequences make experienced legal representation essential.

Sexual Exploitation: Section 153 and Positions of Trust