WARNING

The President of the panel hearing this appeal directs that the following should be attached to the file:

An order restricting publication in this proceeding under ss. 486.4(1), (2), (3) or (4) or 486.6(1) or (2) of the Criminal Code shall continue. These sections of the Criminal Code provide:

486.4 (1) Subject to subsection (2), the presiding judge or justice may make an order directing that any information that could identify the complainant or a witness shall not be published in any document or broadcast or transmitted in any way, in proceedings in respect of

(a) any of the following offences;

(i) an offence under section 151, 152, 153, 153.1, 155, 159, 160, 162, 163.1, 170, 171, 172, 172.1, 173, 210, 211, 212, 213, 271, 272, 273, 279.01, 279.02, 279.03, 346 or 347,

(ii) an offence under section 144 (rape), 145 (attempt to commit rape), 149 (indecent assault on female), 156 (indecent assault on male) or 245 (common assault) or subsection 246(1) (assault with intent) of the Criminal Code, chapter C-34 of the Revised Statutes of Canada, 1970, as it read immediately before January 4, 1983, or

(iii) an offence under subsection 146(1) (sexual intercourse with a female under 14) or (2) (sexual intercourse with a female between 14 and 16) or section 151 (seduction of a female between 16 and 18), 153 (sexual intercourse with step-daughter), 155 (buggery or bestiality), 157 (gross indecency), 166 (parent or guardian procuring defilement) or 167 (householder permitting defilement) of the Criminal Code, chapter C-34 of the Revised Statutes of Canada, 1970, as it read immediately before January 1, 1988; or

(b) two or more offences being dealt with in the same proceeding, at least one of which is an offence referred to in any of subparagraphs (a)(i) to (iii).

(2) In proceedings in respect of the offences referred to in paragraph (1)(a) or (b), the presiding judge or justice shall

(a) at the first reasonable opportunity, inform any witness under the age of eighteen years and the complainant of the right to make an application for the order; and

(b) on application made by the complainant, the prosecutor or any such witness, make the order.

(3) In proceedings in respect of an offence under section 163.1, a judge or justice shall make an order directing that any information that could identify a witness who is under the age of eighteen years, or any person who is the subject of a representation, written material or a recording that constitutes child pornography within the meaning of that section, shall not be published in any document or broadcast or transmitted in any way.

(4) An order made under this section does not apply in respect of the disclosure of information in the course of the administration of justice when it is not the purpose of the disclosure to make the information known in the community. 2005, c. 32, s. 15; 2005, c. 43, s. 8(3)(b).

486.6 (1) Every person who fails to comply with an order made under subsection 486.4(1), (2) or (3) or 486.5(1) or (2) is guilty of an offence punishable on summary conviction.

(2) For greater certainty, an order referred to in subsection (1) applies to prohibit, in relation to proceedings taken against any person who fails to comply with the order, the publication in any document or the broadcasting or transmission in any way of information that could identify a victim, witness or justice system participant whose identity is protected by the order. 2005, c. 32, s. 15.

COURT OF APPEAL FOR ONTARIO

CITATION: R. v. Aird, 2013 ONCA 447

DATE: 20130627

DOCKET: C54448

Laskin, LaForme and Hoy JJ.A.

BETWEEN

Her Majesty the Queen

Respondent

and

Aaron Aird

Appellant

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

Gillian Roberts, for the respondent

Heard: January 10, 2013

On appeal from the conviction entered on June 22, 2011 and the sentence imposed on October 20, 2011 by Justice James W. Sloan of the Superior Court of Justice, sitting without a jury.

Laskin J.A.:

A. overview

[1] Aaron Aird appeals his conviction on two counts of sexual exploitation of the complainant S.L. and his sentence of one year imprisonment.

[2] The appellant and the complainant met in the fall of 2008. He was 28 and in his second year of teacher’s college. She was nearly 17 and in grade 12. The complainant’s mother hired the appellant to tutor the complainant in math. Tutoring sessions took place twice a week.

[3] Eventually, the appellant and the complainant started a sexual relationship. It began with sexual touching and progressed to oral sex and then sexual intercourse. The appellant stopped tutoring the complainant in February 2009, but their sexual relationship continued until March 2010, when a close friend persuaded the complainant to go to the police.

[4] There were two main issues at trial. The first issue was whether the appellant and the complainant had a sexual relationship before the complainant turned 18. The appellant testified that the sexual relationship began after tutoring ended and after the complainant turned 18. The complainant testified that their sexual relationship began while the appellant tutored her and before she turned 18. The trial judge rejected the appellant’s evidence and accepted the complainant’s evidence.

[5] The second issue was whether the appellant was in a position of trust towards the complainant. The trial judge found that he was.

[6] On his conviction appeal, the appellant makes two submissions: the trial judge erred in finding that the appellant was in a position of trust towards the complainant because he equated the appellant’s position with that of a teacher; and the trial judge erred by scrutinizing the appellant’s evidence more strictly than that of the complainant. On his sentence appeal, the appellant submits that the trial judge erred by drawing “very little if any distinction” between the appellant’s position and that of a teacher.

B. background

(1) The tutoring relationship

[7] The complainant’s birthday is November 25, 1991. As I said in the overview, in the fall of 2008, she was nearly 17 and was in grade 12. She was a good student, getting marks in the “80s” but wanted to do better, as she intended to apply to university.

[8] In the fall of 2008, the appellant was placed as a student-teacher at an elementary school in Waterloo. He was assigned to a grade 8 class, and one of his students was the complainant’s younger sister, J.L.. J.L. brought home a flyer about the appellant, which said that he had a university degree in mathematics. The complainant’s mother, K.L., approached the appellant and asked him if he gave private lessons. He said that he did, and they exchanged telephone numbers.

[9] K.L. arranged for the appellant to meet the complainant twice weekly to help her with “advanced functions”. She agreed to pay him $50 per week for the two sessions.

[10] The complainant described the tutoring sessions. They began either in late September or early October. The first session was at Wilfred Laurier University; the other sessions were at a coffee pub, as it offered free internet access. The sessions took place on Tuesdays and Thursdays at 6:00 p.m. and were scheduled for an hour, though they sometimes went longer. During the sessions, the complainant worked through her homework problems.

[11] The complainant testified that the tutoring sessions were helpful and increased her confidence on tests. She said that the appellant explained things well, was not intimidating, and tried to keep her ahead of the class.

[12] The appellant and the complainant gave different evidence of when the tutoring sessions ended. The appellant said that they ended in the first week of December 2008, as the complainant no longer needed his help. The complainant said the sessions ended in February 2009. She finished the course in advanced functions at the end of January. She then began a course in data management, but it was easier and she did not need the appellant’s help with it.

(2) The sexual relationship

[13] The complainant and the appellant gave different accounts of when their sexual relationship began. As I have said, the trial judge accepted the complainant’s account.

(i) The complainant’s version

[14] The complainant said that their sexual relationship began in late November or early December 2008. On one occasion, while waiting in the appellant’s truck for her mother to pick her up, the appellant kissed her on the lips and she kissed him back.

[15] The complainant testified that the first time they had oral sex was over the Christmas holidays of 2008. After one of their tutoring sessions ended, they started kissing and the appellant “wanted to go further”. They went to a parking lot where the appellant “introduced” oral sex, which she then performed on him. Afterwards, he drove her to her car and she went home. On another occasion over the holidays, the complainant saw the appellant at a Starbucks coffee shop. They kissed and touched each other and then went for a drive.

[16] Their sexual relationship continued in January 2009. Early that month, the appellant invited the complainant over to his apartment. While giving her a tour of his place, he pulled her onto his bed and they had oral sex. The complainant testified that by late January 2009. they began to have sexual intercourse. Their sexual relations took place at the appellant’s apartment at times other than their tutoring sessions. The complainant said that she agreed to have sexual intercourse with the appellant because she thought they were in a boyfriend/girlfriend relationship. On Valentine’s Day 2009, she went to his apartment and gave him a bracelet with his name engraved on it.

[17] Although the complainant’s tutoring sessions ended in February 2009, her sexual relationship with the appellant continued until March 2010. She testified that their relationship did not consist of anything other than going to his apartment for sex. She complained about this. But he said that they could not do other things together because their relationship was wrong.

(ii) The appellant’s version

[18] In August 2009, the appellant was certified as teacher. He obtained a long-term occasional contract position teaching math at a high school in Elmira. He had a girlfriend but was on and off with her in the fall of 2009. He would get in touch with the complainant during the “off” periods.

[19] The complainant turned 18 in late November 2009. The appellant testified that in December, he had a “complete falling out” with his girlfriend. He said that he then began a sexual relationship with the complainant, which lasted until March 2010, when she went to the police.

[20] The appellant admitted that his sexual relationship with the complainant included sexual intercourse, oral sex, mutual masturbation, and kissing and that it all took place at his apartment.

(3) Disclosure

[21] The complainant reported her allegations to the police in March 2010. She was upset that the appellant was not giving her definitive answers about his ex-girlfriend and particularly whether they had rekindled their relationship. She pestered him for answers, and he continued to ask for sex. She testified that she decided to go to the police because she and the appellant were arguing a lot and because he began to make inappropriate sexual comments, including suggesting a threesome.

[22] The complainant said that she had told a few close girl friends about her relationship with the appellant. One of them initially went to the police. Several days later, the complainant also went to the police.

C. The conviction appeal

(1) Did the trial judge err in finding that the appellant was in a position of trust towards the complainant?

(a) Position of trust

[23] Section 153(1) of the Criminal Code, R.S.C. 1985, c. C-46, sets out the offence of sexual exploitation:

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.

Section 153(2) defines a “young person” as “a person 16 years of age or more but under the age of eighteen years.”

[24] Section 153(1) thus bans any sexual contact between an adult and a young person within any of the four relationships enumerated in the section. That the young person consents, does not appear vulnerable, or does not subjectively view the relationship as one of trust, authority, or dependency or as exploitative is irrelevant.

[25] In this case, to prove that the appellant was guilty of sexual exploitation, the Crown was required to establish four elements:

• The appellant engaged in a form of sexual conduct prohibited by s. 153(1).

• The complainant was at least 16 and under the age of 18 when the conduct occurred.

• The appellant had the mens rea for each element of the offence.

• The appellant stood in a position of trust towards the complainant when the sexual acts took place.

See R. v. Audet, 1996 198 (SCC), [1996] 2 S.C.R. 171, at para. 16.

[26] In this case, on the complainant’s evidence, the first three elements were easily established. Thus, the central issue in the case was whether the appellant stood in a relationship of trust towards the complainant.

[27] 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”: see R. v. P.S., [1993] O.J. No. 704 (Gen. Div.), at para. 31; aff’d R. v. Sharma, [1994] O.J. No. 3775 (C.A.).

[28] 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.[1]

See R. v. Audet; R. v. C.D., [2000] O.J. No. 1667 (C.A.). See also R. v. D.E., [2009] O.J. No. 1909 (S.C.).

[29] No one consideration is determinative. But each one may play a role. At bottom, “trust”, wrote La Forest J. for the majority in Audet, at para. 35, must be “interpreted in accordance with its primary meaning: ‘[c]onfidence in or reliance on some quality or attribute of a person or thing, or the truth of a statement.’”

(b) Application to this case

[30] In finding that the appellant stood in a position of trust towards the complainant, the trial judge applied the principles in Audet. The crux of his finding is at pp. 35-36 of his reasons:

Aird was hired by K.L. to be S.L.’s tutor because he was a student teacher and because he had a university degree in mathematics. Certainly K.L. relied on Aird’s position in the teaching community and his integrity when she hired him to tutor her daughter. Aird was a professional tutor in the sense that he had the credentials and was paid for his work. The fact that Aird was a tutor was his introduction to S.L. Aird’s university degree in mathematics, the fact that he was a student teacher and 28 years of age gave Aird significant status in relation to S.L. who, in October, 2008, was a 16-year-old high school student.

The nature of the tutor/student relationship between Aird and S.L. created an opportunity for Aird, 11 and ½ years S.L.’s senior, to use his status and the persuasive and influencing factors he held in their relationship to effectively groom her into a sexual relationship.

[31] That finding is a finding of fact. It is, therefore, entitled to the usual appellate deference unless the appellant can show that it rests on an error of law or principle. Mr. Humphrey submits that the trial judge erred in principle because he elevated the appellant’s status as a tutor to that of a teacher. He points to several characteristics of the relationship between the appellant and the complainant that distinguishes it from a teacher/student relationship. For example:

• The complainant was not required to take tutoring sessions; she did so by choice.

• The tutoring sessions were paid for privately; they were not part of a publicly-funded education system.

• The appellant was employed by the complainant and her mother; his employment could be terminated at their discretion.

• Tutoring sessions took place in a public coffee shop at selected times, not in a school as part of a formal academic program.

• The appellant had no authority over the complainant’s grades.

• The appellant had no ability to discipline the complainant.

[32] I do not accept this submission for two reasons. First, the trial judge did not equate the appellant’s status as a tutor with that of a teacher and therefore, presume a position of trust. Rather, he took into account the appellant’s position at the school and his training as a teacher because they were key considerations in assessing whether the appellant stood in a position of trust. The appellant’s position as a student teacher and his expertise in mathematics undoubtedly informed the complainant’s and, perhaps more importantly, K.L.’s expectations about the relationship.

[33] Second, although the relationship between the appellant and the complainant differed from the traditional teacher/student relationship in a school, that difference does not undermine the trial judge’s finding of a relationship of trust. The vast majority of teachers stand not only in a position of trust towards their students, they also stand in a position of authority towards them. Some of the distinguishing characteristics Mr. Humphrey relies on – for example, authority over grades and ability to discipline – reflect only a position of authority.

[34] Positions of trust and authority are related concepts. But they are different concepts and provide separate routes to the offence of sexual exploitation. An accused not in a position of authority towards a young person may nonetheless be found to be in a position of trust. Blair J. made this point in P.S., at para. 37:

I take a “position of trust” to be somewhat different than a “position of authority”. The latter invokes notions of power and the ability to hold in one’s hands the future or destiny of the person who is the object of the exercise of the authority: see, R. v. Kyle (1991), 1991 11758 (ON CA), 68 C.C.C. (3d) 286 (Ont. C.A.). A position of trust may, but need not necessarily, incorporate those characteristics. It is founded on notions of safety and confidence and reliability that the special nature of the relationship will not be breached.

[35] The Crown did not argue that the appellant was in a position of authority towards the complainant, only that he was in a position of trust. And, as Ms. Roberts noted in her factum, in some important ways, the complainant and her family trusted or relied on the appellant more than they would have were he her teacher at school. In particular:

• The complainant’s family allowed the appellant to meet alone with the complainant.

• They did so although the appellant was not subject to any of the oversight, safeguards, or discipline that a teacher would be subjected to in a school.

• They allowed the appellant to set his own rules (within the context of tutoring math) and decide when and where he conducted the tutoring sessions.

[36] According to the trial judge, when the complainant met the appellant, she was naïve, “easy to lead on”, and had no sexual experience. She, along with her mother, looked to the appellant for his help and guidance. She was entitled to trust that he would not take advantage of his position and use it to start a sexual relationship with her.

[37] I would not give effect to this ground of appeal.

(2) Did the trial judge err by scrutinizing the appellant’s evidence more strictly than that of the complainant?

[38] Mr. Humphrey submits that the trial judge erred by applying different standards in assessing the evidence of the appellant and the complainant. Specifically, he contends that the trial judge scrutinized the appellant’s evidence more strictly than that of the complainant. His contention has two parts to it: the trial judge was unforgiving in his criticism of the appellant’s evidence; and he was not critical at all of various aspects of the complainant’s evidence that warranted scrutiny.

[39] 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. (2005), 2005 253 (ON CA), 192 C.C.C. (3d) 480 (Ont. C.A.), at para. 59: “[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.”

(a) The appellant’s evidence

[40] To support his argument, the appellant points to the trial judge’s rejection of his explanation why he could not remember certain details, at p. 33:

When Aird allegedly had difficulty remembering things, he tried to blame his memory problems on a motor vehicle accident which took place approximately 12 years ago. I find this extremely unlikely since he’s been able to obtain two university degrees since the motor vehicle accident.

[41] When viewed in context, I do not think this example assists the appellant’s different standards of scrutiny argument. In his evidence-in-chief, the appellant did not mention that his car accident 12 years earlier had affected his memory. In cross-examination, the Crown questioned the appellant’s evidence that he scheduled twice weekly physiotherapy appointments to begin across town at the same time as his tutoring sessions with the complainant ended. During this questioning, the Crown asked for the name of the appellant’s physiotherapist. Although the appellant apparently had been going to the physiotherapy twice a week for 16 months, he claimed not to recall the names of his therapists. The Crown asked: “[d]o you have an issue with your memory?” The appellant answered: “I don’t know.”

[42] Later in his cross-examination, the Crown returned to the theme of the appellant’s poor memory. The appellant claimed not to recall where he met the complainant for their first tutoring session. The following exchange then took place:

Q. Okay. Again, do you have any issues with your memory?

A. I don’t know

Q. Have you ever seen a doctor about your memory?

A. Sure.

Q. Okay. For what purpose?

A. I was in a bad car accident over 12 – well, not this year, no. It’s almost 12 years ago…

Q. Okay. And so do you have issues with your memory?

A. To an extent. That’s why I write things down. That’s why I make sure that I keep records of stuff.

[43] This was the only evidence that the appellant had a memory problem. The trial judge was entitled to reject his attempt to blame his memory on a car accident many years earlier, when in the years following, the appellant obtained a university degree in mathematics, completed teacher’s college, and became a skilled tutor. Indeed, the appellant had no difficulty directly contradicting specific aspects of the complainant’s evidence.

[44] However, even if the trial judge ought not to have rejected the appellant’s explanation for his poor memory, this error did not taint the trial judge’s assessment of the appellant’s credibility. The appellant did not testify that he had trouble remembering what happened in his relationship with the complainant. Instead, he gave a different account, and much of that account made little sense.

[45] It made little sense that the appellant would schedule tutoring sessions back to back with his physiotherapy appointments, with no allowance for travel time. It made little sense that the appellant stopped tutoring the complainant in December 2008, as he claimed, when her examination did not take place until the end of January 2009. And it made little sense that the complainant would give the appellant an engraved bracelet on Valentine’s Day if, as he claimed, he stopped tutoring her months earlier, he had virtually no contact with her since then, and he had not yet begun an intimate relationship with her.

[46] The trial judge did not err in rejecting the appellant’s evidence about his relationship with the complainant and in concluding that it did not raise a reasonable doubt about his guilt.

(b) The complainant’s evidence

[47] The appellant points to the following aspects of the complainant’s evidence that he says called for scrutiny by the trial judge:

• The complainant’s assertion at trial, for the first time, that she was uncomfortable with her relationship with the appellant because he was a tutor and she saw him as a professional. The defence contended that the complainant tailored her evidence at trial to accord with the key issue in the case: whether the appellant was in a position of trust towards her.

• The complainant’s admitted anger towards the appellant when she reported him to the police.

• The inconsistency between the complainant’s evidence that tutoring ended in February 2009 and K.L.’s evidence that she continued to give the complainant cash to pay the appellant for tutoring until March or April.

• The inconsistency between the complainant’s initial statement that she was not shocked when the appellant kissed her and her evidence at trial that she was shocked.

[48] The trial judge, however, addressed and scrutinized each of these aspects of the complainant’s evidence. In particular:

• The trial judge noted that before discussing the case with the Crown, the complainant did not complain about the tutor/student relationship. But the trial judge also noted that the complainant saw the appellant as her sister’s teacher and that he felt like a teacher to her.

• The trial judge recognized that when the complainant spoke to the police she was angry with the way the appellant had treated her. However, it was not the complainant, but her girlfriend, who initially went to the police.

• During the Crown’s submissions, the trial judge directly asked about the inconsistency between the complainant’s evidence and K.L.’s evidence as to when tutoring ended.

• The trial judge noted the inconsistency in the complainant’s evidence about whether she was shocked when the appellant kissed her. However, the trial judge concluded that it made sense “that a young 17-year-old girl would think it was weird that a man, more than 11 years her senior and her tutor, would hold her hand after a tutoring session and on another occasion kiss her on the mouth.”

[49] It therefore seems to me that the appellant’s different standard of scrutiny argument cannot prevail. The trial judge did scrutinize the complainant’s evidence appropriately. He took into account the defence concerns about her testimony. However, he found the complainant’s evidence to be “candid” and “highly believable”. That was his call to make.

[50] I would not give effect to this ground of appeal. Accordingly, I would dismiss the appellant’s appeal against his conviction.

D. The sentence appeal

[51] At trial, the Crown asked that the appellant be sentenced to 12 to 18 months imprisonment. The appellant asked for a sentence of between 45 days, which was the mandatory minimum at the time, and six months. The trial judge imposed a sentence of one year imprisonment plus one year probation.

[52] The appellant submits that his prison term ought to be reduced. He contends that the trial judge overstated the gravity of his offence by effectively treating his tutoring relationship with the complainant as equivalent to a teacher/student relationship. In support of his contention, he points to the following passage from the trial judge’s reasons on sentence:

The court draws very little if any distinction between the position of trust of a teacher and a tutor under the circumstances of this case. As set out in the reasons for judgment, it was that position of trust that allowed Mr. Aird entre to the victim and gave him the continuing ability to groom her.

[53] I do not agree with the appellant’s contention. The trial judge knew that the appellant was not the complainant’s actual teacher. And he did not sentence the appellant as if he were her teacher. Later in his sentencing reasons, he noted that the cases the Crown relied on to support a sentence in the range of 15 to 18 months were all cases in which the accused was the victim’s teacher. See for example, R. v. Gaukrodger (2006), 2006 31292 (ON CA), 215 O.A.C. 74 (C.A.). By sentencing the appellant to 12 months, the trial judge rejected the range of sentence for teachers, who, unlike the appellant, stand in a position of authority as well as trust towards a young person.

[54] In the passage the appellant relies on, the trial judge was merely expressing his opinion that “under the circumstances of this case” the seriousness of the appellant’s breach of trust was similar to the seriousness of a teacher’s breach of trust. I agree with the trial judge’s assessment. As I said earlier in these reasons, in some respects the complainant and her family placed more trust on the appellant than they would have placed on the complainant’s teacher. That they did so elevates the seriousness of the appellant’s breach. Therefore, the trial judge did not err in the way the appellant alleges that he did.

[55] That leaves the issue whether the trial judge was justified in imposing a one year term of imprisonment. The appellant can claim several mitigating considerations:

• He had no previous criminal record;

• He had a positive pre-sentence report;

• He is not a danger to reoffend;

• He has strong support from his family;

• He worked long and hard to overcome the effects of his car accident and to obtain his teaching qualfication; and

• He has suffered the collateral consequence of the loss of his licence to teach, at least for some time. See Allan Manson, The Law of Sentencing, (Toronto: Irwin Law, 2001) at pp. 136-7; R. v. Pham, 2013 SCC 15.

[56] However, balanced against these mitigating considerations are several aggravating considerations. The appellant’s abuse of trust of a young person by itself is an aggravating consideration, though it is inherent in the offence of sexual exploitation. But even apart from that consideration, other considerations are aggravating in the present case. They include:

• The sexual activity took place over a considerable period of time: 15 months.

• The sexual relationship included oral sex and ongoing sexual intercourse for at least a year.

• The complainant was vulnerable because, although she was highly intelligent, she was also naïve, sheltered, and had no previous sexual experience.

• In the light of the complainant’s vulnerability, the age difference between her and the appellant was significant: 11 years.

• The complainant suffered because of this relationship. She went from a “very happy and trusting girl” to a girl who lost her confidence and her trust in others.

• The appellant’s breach of trust included the complainant’s mother, who hired him because of his skill and status and who placed her bright though naïve daughter under his guidance.

[57] Despite the mitigating considerations, these highly aggravating considerations justify a one-year term of imprisonment. The trial judge did not err in imposing it. Accordingly, although I would grant leave to appeal sentence, I would dismiss the sentence appeal.

E. conclusion

[58] I would dismiss the appellant’s conviction and sentence appeal.

Released:

“JUN 27 2013” “John Laskin J.A.”

“JL” “I agree H.S. LaForme J.A.”

“I agree Alexandra Hoy J.A.”

[1] Several of these considerations are captured in s. 153(1.2) of the Code, which allows the trial judge to infer that a relationship is exploitative.