When Does a “Position of Trust” Begin — and End?

The Ontario Court of Appeal’s decision in R. v. J.B. draws a critical line between moral wrongdoing and criminal liability, reminding courts that vulnerability alone cannot ground a sexual exploitation conviction.

Background

The appellant was a professional actor and theatre director in his mid-thirties with an established reputation in the local arts community. At the invitation of a high school drama teacher, he volunteered to direct a school production — a time-limited role that brought him into contact with M.D., a 16-year-old Grade 11 student who was cast in the play.

S.H., a fellow student and friend of M.D., was also enrolled in the same arts program but never participated in the play. Her meaningful contact with the appellant began only at a drama festival during March break and a subsequent community production — both entirely independent of the school.

The sexual relationships with both complainants began only after the appellant’s volunteer role at the school had ended. All parties agreed that when the appellant was directing the school play, he was in a position of trust relative to M.D. The contested question was whether that position of trust persisted after his role concluded and, separately, whether it ever existed at all in relation to S.H.

At trial, the appellant was convicted of two counts of sexual exploitation, along with child luring, making sexually explicit material available to a child, and possession of child sexual abuse and exploitation material in relation to S.H. He received a global sentence of five and a half years.

The Legal Framework: Sexual Exploitation Under s. 153

Those aged 16 and 17 are legally capable of consenting to sexual activity in Canada. Section 153(1) of the Criminal Code carves out an important exception: that consent becomes legally irrelevant where the adult stands in one of four defined relationships to the young person — a position of trust, a position of authority, a relationship of dependency, or an exploitative relationship.

The Court of Appeal’s reasons focus on the most elusive of these categories: the position of trust. The Code does not define it, and Parliament deliberately chose not to enumerate specific roles, given how fact-specific the inquiry is.

Importantly, Fairburn A.C.J.O. is clear that these factors are not a mechanical checklist or legal test. They are indicia — markers pointing toward or away from a relationship grounded in confidence and reliance. “No one consideration is determinative,” and all must be interpreted in light of what trust actually means: the confidence placed in a person that they will not exploit their privileged position.

“The question is not whether he engaged in morally offensive conduct… Rather, the question is whether he engaged in criminal conduct.”

The Trial Judge’s Errors

The Court of Appeal agreed with the appellant that the trial judge misapplied the legal standard in several respects.

The “status” error. Rather than asking what role the appellant had assumed toward the complainants at the time of the sexual touching, the trial judge focused primarily on how the complainants perceived the appellant’s stature in the theatre community. He noted that they were impressed by his reputation, hoped he could help their careers, and that he “did nothing to disabuse them” of this view. The Court of Appeal found this insufficient. Status must be grounded in a role the accused actually took on — not in the admiring eye of the beholder. As Fairburn A.C.J.O. wrote, the appellant’s “role or status was in the eye of the beholder,” which is not the correct standard.

The irrelevant factors. The trial judge also weighed a series of factors that the Court of Appeal found either tangential or irrelevant to the trust analysis:

The fact that both complainants and the appellant thought the relationship was “wrong” speaks to moral condemnation, not criminal liability. A relationship between an older adult and a 16-year-old can be socially unacceptable without falling within s. 153(1).

The complainants’ hopes for long-term romantic relationships, the giving of pet names, and expressions of love are features that can exist in any relationship — including ones that are perfectly lawful. They do not speak to whether the young person could reasonably rely on the accused not to exploit a privileged position.

The trial judge’s finding that the appellant was “a willing participant” in the sexual activity is similarly unhelpful. Willing participation is equally present in relationships that are entirely outside the scope of s. 153(1).

The failure to grapple with “no control or influence.” Most striking of all, the trial judge expressly agreed with defence counsel that there was “little or no evidence of control, influence or persuasiveness.” Yet he never engaged with what that finding meant for the overall analysis — he simply moved past it to his conclusion. For the Court of Appeal, this was an error that went to the heart of the trust inquiry.

The Distinction Between Morality and Criminal Law

Perhaps the most important contribution of this decision is its clear articulation of why the criminal law does not simply mirror society’s moral judgments. Fairburn A.C.J.O. opens the analysis with a principled reminder: the criminal law insists on certainty, predictability, and fair notice. People must have a reasonable chance of knowing when they are approaching the line between criminal and non-criminal conduct.

Parliament’s choice, in enacting s. 153(1), was deliberate. It did not criminalize all sexual contact between adults and 16- and 17-year-olds — it criminalized such contact only within specific categories of relationship. The existence of vulnerability, an age gap, or social disapproval is not enough on its own. The Crown must prove that a position of trust — properly understood — actually existed.

Outcome and Practical Significance

CONVICTION APPEAL ALLOWED  A new trial was ordered on all counts except possession of child sexual abuse and exploitation material.

SENTENCE APPEAL DISMISSED  The six-month custodial sentence for possession of child sexual abuse and exploitation material was upheld as fit and appropriate on its own, independent of the sexual exploitation counts.

For practitioners, this case is a timely reminder that the trust analysis must be anchored in what the accused actually did — what role he assumed, what responsibility he undertook, and what the parties could reasonably rely upon — not in the subjective impressions of those who were impressed by him. Vulnerability, admiration, and a power imbalance may all exist in a relationship, but they cannot substitute for the essential elements of confidence and reliance that define a position of trust at law.

Courts and counsel alike should pay close attention to how the relationship evolved and, critically, what role (if any) the accused held at the precise moment the sexual touching occurred. As this case illustrates, a position of trust can arise from informal arrangements as well as formal roles — but it must be grounded in something more than the young person’s hope that an admired adult might help them get ahead.

Contact Neuberger & Partners LLP

Allegations involving sexual offences or exploitation carry serious legal and personal consequences, even at the investigation stage. As this case illustrates, the outcome often turns on precise legal definitions, careful analysis of the relationship at issue, and a detailed examination of the evidence.

Neuberger & Partners LLP is a leading criminal defence firm based in Toronto, representing individuals facing complex and high-stakes criminal charges across Ontario. The firm has extensive experience in sexual assault and exploitation cases, including matters involving positions of trust, credibility assessments, and appellate litigation.

If you are under investigation or have been charged, it is critical to obtain experienced legal advice as early as possible. To discuss your situation confidentially, contact Neuberger & Partners LLP

Key Principles

“Status” cannot be defined solely by the young person’s subjective view of the accused.  Para. 87

Vulnerability alone is insufficient to ground a position of trust.  Para. 88

The trust inquiry is concerned primarily on the moment of sexual touching, not an earlier role.  Para. 84

Moral wrongdoing and criminal liability do not perfectly overlap.  Para. 58–60

Cases Referenced

1. v. Audet, [1996] 2 S.C.R. 171 SCC — foundational position of trust analysis
2. v. Aird, 2013 ONCA 447 ONCA — expanded Audet factors
3. v. R.T., 2017 ONSC 2625 ONSC — factor list applied at trial
4. v. Mabior, 2012 SCC 47 SCC — criminal law and morality

This blog post is for informational purposes only and does not constitute legal advice. For questions about criminal law matters, contact Neuberger & Partners LLP at (416) 364-3111.