B.C. Civil Liberties Union on Section 273.1(2)(c)

Section 273.1(2)(c):

The Board is concerned that what will constitute "abuse" of a position of trust or authority is left open for the courts to decide. If by "abuse" is meant that the accused used their position of trust or authority to actively coerce or intimidate the complainant into agreeing to sexual activity (say, by threatening to withhold some benefit of that position), then the subsection should be drafted to reflect this. If, on the other hand, the mere possession of a position of trust or authority is sufficient to render any sexual activity with a client subject to criminal sanctions, then the Board opposes the subsection.

The Board is aware that some of those in a "client" position may feel they have no choice but to assent to sexual activity with a person in a position of trust or authority, or they may engage in the activity just because a person who occupies a position of trust or authority expressed a desire for sexual contact. It is, therefore, unacceptable conduct for any person in a position of trust or authority to engage in sexual relations with a "client", and this issue needs to be addressed. However, the Board does not believe that the criminal courts are the appropriate place to address it.

It must be remembered that it is adult clients who are referred to here. Adults may be presumed to be capable of recognizing when a person in a position of trust or authority is attempting to manipulate them, and capable of rejecting unwanted sexual contact. If a person has sexual contact with a minor, whether or not they are in a position of trust or authority, there are already Criminal Code sanctions under which they can be prosecuted. The disciplinary bodies of many professions have addressed this issue in their codes of ethics, and such conduct is subject to disciplinary action, including suspension or revocation of the person’s license to practice. Where there is no active attempt to coerce or intimidate the client, the Board believes that disciplinary bodies are the appropriate ones to address such misconduct.