R. v. Aird (A.), (2013) 307 O.A.C. 183 (CA)

• Judge: Laskin, LaForme and Hoy, JJ.A.
• Court: Court of Appeal (Ontario)
• Case Date: January 10, 2013
• Jurisdiction: Ontario
• Citations: (2013), 307 O.A.C. 183 (CA);2013 ONCA 447;307 OAC 183

R. v. Aird (A.) (2013), 307 O.A.C. 183 (CA)

MLB headnote and full text

Temp. Cite: [2013] O.A.C. TBEd. JL.002

Her Majesty the Queen (respondent) v. Aaron Aird (appellant)

(C5448; 2013 ONCA 447)

Indexed As: R. v. Aird (A.)

Ontario Court of Appeal

Laskin, LaForme and Hoy, JJ.A.

June 27, 2013.

Summary:

The accused appealed his conviction on two counts of sexual exploitation and applied for leave to appeal his sentence of one year's imprisonment.

The Ontario Court of Appeal granted leave to appeal the sentence and dismissed the appeals.

Editor's Note: Certain names in the following case have been initialized or the case otherwise edited to prevent the disclosure of identities where required by an order restricting publication under s. 486.4(1) or 486.4(2) or 486.4(3) or 486.4(4) or 486.6(1) or 486.6(2) of the Criminal Code and Maritime Law Book's editorial policy.

Criminal Law - Topic 703

Sexual offences, public morals and disorderly conduct - Sexual offences - Particular offences - Sexual exploitation of a young person - Section 153(1) of the Criminal Code set out the offence of sexual exploitation - The Ontario Court of Appeal stated that "Parliament chose not to specify the relationships that would constitute relationships of trust under s. 153(1), likely for two reasons: because of the varied circumstances in which these relationships can arise; and because of the 'very fact specific nature of such an inquiry' ... The considerations that bear on whether a relationship comes within s. 153 flow from the obvious purpose of this section: to protect a young person who is vulnerable to an adult because of the imbalance in their relationship. With this purpose in mind, the courts have identified several considerations relevant to an assessment of whether a relationship of trust exists. They include: The age difference between the accused and the young person; The evolution of their relationship; The status of the accused in relation to the young person; The degree of control, influence or persuasiveness exercised by the accused over the young person; and The expectations of the parties affected, including the accused, the young person and the young person's parents. ... No one consideration is determinative. But each one may play a role." - See paragraphs 27 to 29.

Criminal Law - Topic 703

Sexual offences, public morals and disorderly conduct - Sexual offences - Particular offences - Sexual exploitation of a young person - The accused appealed his conviction on two counts of sexual exploitation, asserting that the trial judge erred by elevating his status as a tutor to that of a teacher - The Ontario Court of Appeal dismissed the appeal - The trial judge did not equate the accused's status with that of a teacher and therefore, presume a position of trust - Rather, he considered the accused's position at the school and his training as a teacher because they were key considerations in assessing whether the accused stood in a position of trust - Further, although the relationship differed from the traditional teacher/student relationship in a school, that difference did not undermine the finding of a trust relationship - The majority of teachers stood in both a position of trust and authority - These were related but different concepts and provided separate routes to sexual exploitation - Some of the distinguishing characteristics relied on by the accused reflected only a position of authority which had not been argued by the Crown - An accused not in a position of authority could be found to be in a position of trust - The complainant and her mother trusted and relied on the accused more than they would have a teacher - See paragraphs 30 to 37.

Criminal Law - Topic 4377

Procedure - Charge or directions - Jury or judge alone - Directions regarding credibility of witnesses - The accused appealed his conviction on two counts of sexual exploitation, asserting that the trial judge erred by scrutinizing his evidence more strictly than that of the complainant - The Ontario Court of Appeal, in rejecting the argument, stated that "The 'different standards of scrutiny' argument is a difficult argument to succeed on in an appellate court. It is difficult for two related reasons: credibility findings are the province of the trial judge and attract a very high degree of deference on appeal; and appellate courts invariably view this argument with skepticism, seeing it as a veiled invitation to reassess the trial judge's credibility determinations. Thus, as Doherty J.A. said in R. v. J.H. [Ont. C.A.] ... '[t]o succeed in this kind of argument, the appellant must point to something in the reasons of the trial judge or perhaps elsewhere in the record that make it clear that the trial judge had applied different standards in assessing the evidence of the appellant and the complainant.'" - See paragraph 39.

Criminal Law - Topic 4379

Procedure - Charge or directions - Jury or judge alone - Directions re evidence of character or credibility of accused - [See Criminal Law - Topic 4377 ].

Criminal Law - Topic 5404

Evidence and witnesses - Witnesses - Credibility - [See Criminal Law - Topic 4377 ].

Criminal Law - Topic 5831.1

Sentencing - Considerations on imposing sentence - Offences involving breach of trust - The accused was convicted on two counts of sexual exploitation - In the fall of 2008, the complainant's mother hired the accused, aged 28, to tutor the complainant who was almost 17 and in grade 12 - The accused was a student-teacher at the complainant's school - In November or early December 2008, the tutoring developed into a sexual relationship - The complainant was naཿve, sheltered and had no previous sexual experience - After the tutoring ended in February 2009, the sexual relationship continued until March 2010 - The accused had strong family support - A positive pre-sentence report - Not a danger to reoffend - Lost his licence to teach - The Ontario Court of Appeal affirmed a sentence of one year's imprisonment - The court rejected the assertion that the trial judge overstated the gravity of the offence by effectively treating the tutoring relationship as equivalent to a teacher/student relationship - He merely opined that the seriousness of the breach of trust was similar to the seriousness of a teacher's breach of trust - In some respect, the complainant and her family had placed more trust in the accused than they would have placed in the complainant's teachers - That they did so, elevated the seriousness of the breach - See paragraphs 51 to 57.

Criminal Law - Topic 5949

Sentence - Sexual interference or exploitation by person in position of trust or authority - [See Criminal Law - Topic 5831.1 ].

Cases Noticed:

R. v. Audet (Y.), [1996] 2 S.C.R. 171; 197 N.R. 172; 175 N.B.R.(2d) 81; 446 A.P.R. 81, refd to. [para. 25].

R. v. P.S., [1993] O.J. No. 704; 19 W.C.B.(2d) 256 (Ont. Gen. Div.), affd. [1994] O.J. No. 3775 (C.A.), refd to. [para. 27].

R. v. C.D. (2000), 132 O.A.C. 331 (C.A.), refd to. [para. 28].

R. v. D.E.,[2009] O.T.C. Uned. A72 (Sup. Ct.), refd to. [para. 28].

R. v. J.H., [2005] O.A.C. Uned. 3; 192 C.C.C.(3d) 480 (C.A.), refd to. [para. 39].

R. v. P.G. (2006), 215 O.A.C. 74 (C.A.), refd to. [para. 53].

R. v. Pham - see R. v. Ly (T.Q.).

R. v. Ly (T.Q.) (2013), 441 N.R. 375; 544 A.R. 40; 567 W.A.C. 40; 2013 SCC 15, refd to. [para. 55].

Statutes Noticed:

Criminal Code, R.S.C. 1985, c. C-46, sect. 153(1) [para. 23].

Authors and Works Noticed:

Manson, Allan, The Law of Sentencing (2001), pp. 136, 137 [para. 55].

Counsel:

David M. Humphrey and Jill D. Makepeace, for the appellant;

Gillian Roberts, for the respondent.

These appeals were heard on January 10, 2013, by Laskin, LaForme and Hoy, JJ.A., of the Ontario Court of Appeal. Laskin, J.A., released the following judgment for the court on June 27, 2013.