A former Nakusp teacher has been found guilty of sexually exploiting a high school student at Nakusp Secondary School in the fall of 2016.
Judge Phillip Seagram handed down the sentence on 27-year-old Shanny McIvor on Feb. 28.
McIvor faced two charges of sexual exploitation, under Sec 153 of the Criminal Code, which prohibits sexual touching of a young person with whom the accused is in a position of trust or authority.
But in handing down his sentence, the judge threw out one of the charges. Seagram said inconsistencies in one of the witnesses’ testimony created enough reasonable doubt to have that charge dismissed.
McIvor, 27, was hired to work at the Nakusp Secondary School as a physical education teacher in the fall of 2016. She also taught a First Nations cultural course at the school.
The court heard testimony the novice teacher was having difficulty controlling her classes, felt isolated and was in conflict with other staff members at the high school.
She befriended two students at the high school, one 16 and one 17 at the time, who were to become the complainants in the case. Each testified that between October 1 and November 4 they had had a sexual encounter with McIvor.
The names of the complainants are protected under a publication ban.
During closing arguments in January, defence attorney Richard Fowler had called on the court to consider the “exceptional factual circumstances” in the case. He said there was no evidence McIvor had engaged in seducing the students, had not groomed them for sexual exploitation, or used her position of authority or trust to control them. He described McIvor as “vulnerable, weak, lonely, immature, sad ” — not a person using their power to control others.
While Seagram said he agreed the complainants may not have felt vulnerable, and McIvor may not have singled out the students and groomed them for a sexual encounter, it was proven that as a teacher, she was in a position of trust and authority.
“The law recognizes a young person may want sexual contact,” said Seagram. “but the law imposes a duty [on the teacher] to resist those advances.”
“McIvor had a duty to decline the sexual advances, and did not,” he said, finding McIvor guilty of the one remaining charge of sexual exploitation.
McIvor had originally faced four charges in total, but two others of sexually assaulting the teens were thrown out during the trial.
McIvor could face up to 14 years in prison for the crime, and a minimum of one year. Seagram ordered a pre-sentence report on the case, to be ready in May.
As an aboriginal person, the Gladue principle may apply in McIvor’s case. The principle states that a court is required to take into account all reasonable alternatives to incarcerations, especially with aboriginal offenders.
Wikipedia states that “where the crime is relatively anything other than severe, the court should consider Aboriginal-based sentencing principles such as restorative justice. This incorporates community members and the victim in determining a fit sentence”.
A sentencing date will be fixed at the next court date in Nakusp, in late March.
