WARNING
The court hearing this matter directs that the following notice be attached to the file:
A non-publication and non-broadcast order in this proceeding has been issued under subsection 486.4(1) of the Criminal Code. This subsection and subsection 486.6(1) of the Criminal Code, which is concerned with the consequence of failure to comply with an order made under subsection 486.4(1), read as follows:
486.4 Order restricting publication — sexual offences. —(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or justice may make an order directing that any information that could identify the complainant or a witness shall not be published in any document or broadcast or transmitted in any way, in proceedings in respect of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) Mandatory order on application. — 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.
486.6 Offence. —(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.
Court Information
Ontario Court of Justice
Between:
Her Majesty the Queen
— AND —
M.M.A.
Before: Justice J.W. Bovard
Heard on: December 2, 2014; May 13; June 24, 2015
Ruling released: August 12, 2015
Counsel:
V. Puls and R. Prihar — counsel for the Crown
A. Lerner — counsel for the defendant M.M.A.
BOVARD J.:
[1] Introduction
1These are the court's reasons for ruling on committal after a preliminary hearing.
[2] The Charges
2M.M.A. is charged with the following offences:
Between December 11, 2012 and March 11, 2013 for a sexual purpose invite, or counsel, or incite, A.J.-P., a person under the age of sixteen years, to touch directly with a part of her body the body of M.M.A. (s. 152 Criminal Code);
Between December 11, 2012 and March 11, 2013 did for a sexual purpose touch A.J.-P., a person under the age of sixteen years, directly with a part of his body (s. 151 Criminal Code);
Between March 4, 2013 and April 4, 2013 did being in a position of trust or authority towards A.J.-P. a young person, did for a sexual purpose invite, or counsel or incite A.J.-P., a young person to touch directly with a part of her body the body of M.M.A. (s. 153(b) Criminal Code);
Between March 4, 2013 and April 4, 2013 did being in a position of trust or authority towards A.J.-P. a young person, did for a sexual purpose touch directly the body of A.J.-P., a young person, with a part of his body (s. 153(a) Criminal Code);
Between January 4, 2013 and April 4, 2014 commit a sexual assault on A.J.-P. (s. 271 Criminal Code).
The Issues
3There is no issue with regard to committal on counts 1 and 2. With regard to the remaining counts the only issue is whether M.M.A. was in a position of trust. The Crown stated that it is not arguing that he was in a position of authority.
The Evidence
4A.J.-P.'s birthdate is March 12, 1997. Therefore, the time frame for the counts in issue spans a period during which she was 15 and 16 years old.
5Defence counsel consented to her testimony being heard pursuant to an application under s. 715.1 of the Criminal Code. Her videotaped statement and the transcript are exhibits on consent. She adopted them as true.
6Her evidence in the video statement and in court was that she started a relationship with M.M.A. when she was 15 years old. She had known him for a couple of months. He knew that she was 15 years old. She was not sure how old he was; she guessed 50 or 60 years old.
7During the time of the alleged offences A.J.-P. was a ward of the Catholic Children's Aid Society. She lived in a foster home run by Milestone Foster Homes. M.M.A. was a driver employed by the company to take the children to various places, such as to visit their parents. He had been her driver for a "bit less than a year…"
8They got along very well. Eventually, on December 20, 2012, they started a romantic relationship. She was shy at first because she was "relatively new to a whole like relationship thing". But after a while she warmed up to him and they got closer. She said that their whole relationship was not based on sex. They had a lot of other things in common that they talked about. She did not feel used or intimidated or controlled by him.
9They knew that they were not supposed to be in a relationship because she was in care and he was her driver. If someone found out he would lose his job because what they were doing was illegal. In spite of this they "entered it willingly". They started kissing about one month afterwards in January 2013. Their first kiss was in the car.
10After a while they asked each other to perform oral sex and they escalated to mutual oral sex. In total, they performed oral sex on each other two or three times. She said that he did not wear a condom because it was too awkward for her. He never ejaculated when she fellated him.
11On her 16th birthday they had sexual intercourse in the back seat of the car. He did not force her to do anything she did not want to do. She could not remember how many times they had sex, but it was more than 10. It was always in the car. He always wore a condom. In addition to when he drove her to see her parents, they met at other times.
12In text messages they professed their love for each other. He bought her a necklace, and once he bought her a rose for Valentine's Day.
13On April 4, 2013 she forged a note so that he could pick her up from school. She said in the note that he was her designated driver through Milestone Foster Homes. Otherwise, the school would not have let him pick her up.
14They went to park in an industrial area by a factory where they had gone before. They talked and had a couple of kisses and held hands for a couple of hours. Then they went to pick up her sisters so that they could go visit their parents.
15They got back to the foster home at about 7:00 p.m. A.J.-P. asked her foster mother if M.M.A. could drive her to see some friends. She agreed and they left, but instead of visiting friends they went to the industrial area where they normally went.
16They chatted and kissed a little. She said that she likes to cuddle so they laid down in the back seat of the car. He felt her breasts under her clothing and both under and on top of her bra. The officer asked her in the video statement if he used any other parts of his body. She said "He can only really use his hands, except for his lips…yeah, he did yesterday". The officer asked her if he was "using his mouth" on her breasts. She said that he was. He also felt her thighs. She was fully clothed. He had his shirt off because she likes that. Then a police officer knocked on the window, which led to M.M.A.'s arrest.
17Regarding the dates of their sexual activity, the account that she gave in her video statement was that except for the sexual intercourse, they took place before her 16th birthday. She told the officer that she had a difficult time with dates. When defence counsel suggested to her that "it's possible that it all happened on or after your 16th birthday…" she said "Yes, as well as before".
18She started giving her testimony on December 2, 2014. The case was adjourned to May 13, 2015 to finish her evidence. On May 13, 2015 she reiterated that she had problems with dates. She also said that it was possible that their sexual activities did not start until after she was 16 years old.
19Ms. Ashley McCurley, the manager and overseer of operations for Milestone Foster Homes testified regarding the nature of M.M.A.'s employment.
20He was a volunteer driver. He was charged with taking children to visit their biological parents and to tutoring services in cases where the foster parents could not take them.
21Milestone requests a resume from their volunteers and does background checks for criminal records and vulnerable persons checks. When they accept them they send them to training. After the training they interview them and meet with the trainers to get information regarding how they performed in the training.
22M.M.A. provided Milestone with a certificate for police studies for August 2005 from Sheridan College and one for achievement from the Peel Regional Police Crime Prevention Academy from October 2004. These are exhibits.
23The drivers are required to have insurance in the minimum amount of 1 million dollars liability and they have to tell their insurance company that they are going to be transporting children. They do not get a salary, but they are reimbursed at the rate of 48 cents per kilometer. If they have to wait anywhere during a drive, after one hour they are paid $12.00 per hour. They do not have a contractual relationship with the drivers. They are not their employees.
24Ms. McCurley said that the drivers are responsible for the children's care as is Milestone who hires them. This is why they train them. The training lasts four to five hours. They orientate them to the agency, the type of children they will be transporting and they go over the company's policy and procedures manual. The Child and Family Services Act sets standards and Milestone has to indicate in writing how they are going to comply with them.
25Ms. McCurley considers that the drivers are in a position of trust because they provide a service for vulnerable persons that are entrusted to Milestone's care.
26The manual does not address sexual activities between drivers and children. Since it is against the law Milestone assumes that the drivers know not to engage in this activity.
27Ms. McCurley produced a log that showed that M.M.A. drove A.J.-P. 32 times between September 4, 2012 and April 4, 2013. Milestone terminated his employment immediately when he was arrested. The log is an exhibit.
28Yusica Nann Lookbauth, a trainer for Milestone, testified. The volunteer drivers receive 3 hours of training on the procedural manual. The volunteers sign off on a Statement of Orientation that the trainer goes over with them. They give the volunteers a copy of the manual and they require them to read it and keep it up to date.
29There is a section on children alleging and disclosing abuse by persons other than Milestone employees. Milestone trains the volunteers to report this type of occurrence immediately because it is a child protection concern and to ensure their safety.
30Milestone trains the volunteers that no one who has not been cleared by a police and vulnerable persons check can come into contact with the children.
31M.M.A. completed the training satisfactorily.
32That was all of the evidence.
The Test for Committal
33In deciding whether or not there is sufficient evidence to commit M.M.A. to stand trial I have to apply the test set out in United States of America v. Sheppard (1976), 30 C.C.C. (2d) 424 at p. 427. The test is whether there is "admissible evidence, which could, if it were believed, result in a conviction".
34A "scintilla" of evidence is enough to justify a committal to trial at a preliminary hearing. Re Skogman and The Queen, 13 C.C.C. 161 at p. 173.
35At the preliminary hearing stage, any doubt concerning whether or not there is sufficient evidence to commit an accused to trial should be resolved in favour of the Crown. Ex Parte Hill, 2 C.C.C. 264 at p. 272, Pennell J. (Ont. Sup. Ct.); R. v. Robinson 19 C.C.C. 175 at p. 177, (B.C.S.C.); R. v. Cowden (1947), 5 C.R. 18 (Ont. H.C.); Re Martin, Simard and Desjardins and the Queen (1977), 41 C.C.C. (2d) 308 (Ont. H.C.J.), rev'd on other grounds (1977), 41 C.C.C. (2d) 336 (Ont. C.A.); aff'd (1978), 41 C.C.C. (2d) 342 (S.C.C.); Regina v. Verasky, [1979] O.J. No. 1298 (H.C.J.); aff'd [1980] O.J. No. 2036 (C.A.).
36The only issue is whether M.M.A. was in a position of trust in relation to A.J.-P. The Crown is not asking the court to find that he was a person in authority.
37In R. v. P.S., [1993] O.J. No. 704 (Ont. Ct. Justice – General Division) para. 36, Blair J. said the following about the concept of "position of trust":
What is in question is a broader social or societal relationship between two people, an adult and a young person. "Trust", according to the Concise Oxford Dictionary (8th ed.), is simply "a firm belief in the reliability or truth or strength of a person". Where the nature of the relationship between an adult and a young person is such that it creates an opportunity for all of the persuasive and influencing factors which adults hold over children and young persons to come into play, and the child or young person is particularly vulnerable to the sway of these factors, the adult is in a position where those concepts of reliability and truth and strength are put to the test. Taken together, all of these factors combine to create a "position of trust" towards the young person.
38Justice Blair held that a position of trust is "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), 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 (para. 37).
39In P.S. the accused was 10 – 15 years older than the 14 year old complainant. The accused resided with the complainant and her family. Justice Blair found at paragraph 40 that:
Mr. S. is 10 to 15 years older than the complainant. He was living in these very close circumstances with this young girl as she entered the difficult teenage years and began turning into a young woman. She was particularly vulnerable. Opportunities existed for the development of an intimate relationship between them. It is in this very sort of situation that the law places the onus on the adult to prevent the occurrence of conduct which constitutes sexual exploitation of the young.
40In R. v. Mason, [2001] O.J. No. 6097 (Ont. Sup. Ct. Justice), para. 15, the court stated that:
The Court in Audet at paragraph 23 described the purpose of Parliament in enacting section 153 of the Criminal Code as, "to afford greater protection to young persons". And quoted with approval the words of Woolwich, J. of the Newfoundland Court in the case of Hann, [1990] N.J. No. 342, number 2, 1990, 86 Newfoundland and Prince Edward Island reports, page 33 at page 36:
"The implication from the wording of section 153 is that notwithstanding the consent, desire or wishes of the young person it is the adult in a position of trust who has the responsibility to decline having any sexual contact whatsoever with that young person."
41Regarding the age difference between M.M.A. and A.J.-P., in R. v. L (D.B.), [1995] O.J. No. 2775 (C.A.) the court found that "A difference in age, whether large or small, is not alone sufficient to create or negate a position of trust" (para. 9).
42In R. v. Audet, [1996] 2 S.C.R. 171, the court said that:
It will be up to the trial judge to determine, on the basis of all the factual circumstances relevant to the characterization of the relationship between a young person and an accused, whether the accused was in a position of trust or authority towards the young person or whether the young person was in a relationship of dependency with the accused at the time of the alleged offence.
43In R. v. D.E., [2009] O.J. No. 1909, para. 43 (6) (S.C.), Hill J. reviewed the authorities and found that:
The determination as to whether an accused was in a position of trust towards the young person when sexual relations occurred is essentially a question of fact having regard to all the circumstances of the relationship (Audet, at para. 37-8; Anderson, at para. 74; R. v. LeBlanc (2000), 147 C.C.C. (3d) 1 (N.S.C.A.) at para. 25; R. v. S.(P.) (C.A.) at para. 2).
44Justice Hill said in paragraph 43 (7) that the relevant factors that the court should consider are:
… "[t]he age difference between the accused and the young person, the evolution of their relationship, and above all the status of the accused in relation to the young person" (Audet, at para. 38; R. v. Guitard (2002), 8 C.R. (6th) 317 (N.B.C.A.) at 323; R. v. G.(G.) (2001), 156 C.C.C. (3d) 497 (B.C.C.A.) at para. 71).
45In D.E., the court concluded that the accused was in a position of trust toward the victim. Some of the circumstantial factors on which the court relied that have relevance to the case at bar were that:
The victim's mother "as her custodial parent, entrusted her daughter's safety and well-being to the accused, a family member, in permitting her to spend more time with him including overnight stays at his home";
The accused and the victim's relationship evolved;
The victim was "an immature teenager with no depth of life experience";
The accused knew that the victim was having trouble with her parents.
(para. 45 (4), (6), (8))
46In R. v. Aird, [2013] O.J. No. 3027, para. 28 the court found that:
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.
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.).
Disposition
47Based on the evidence and the law cited above and for the following reasons I conclude that the Crown has adduced sufficient evidence to pass the Sheppard test that M.M.A. was in a position of trust with regard to A.J.-P.
48Although a difference in age alone does not create or negate a position of trust, it is a relevant factor that M.M.A. was approximately 35 to 45 years older than A.J.-P. This is based on her estimate of his age. I acknowledge that her estimate of age may not possess a high degree of accuracy because of her young age, but there is no doubt that he was much older than she was.
49The log introduced as evidence shows that the relationship between M.M.A. and A.J.-P. developed over approximately 3 months before any sexual activity took place.
50She was shy at first because she was new to relationships. But after a while she warmed up to him and they got closer. In text messages they said that they loved each other. He bought her a necklace, and once he bought her a rose for Valentine's Day. This speaks to the factor of the development of the relationship.
51Both A.J.-P. and M.M.A. thought that what they did was wrong.
52A position of trust "is founded on notions of safety and confidence and reliability that the special nature of the relationship will not be breached". In this case, the special nature of the relationship was that A.J.-P.'s foster parents and the company that was responsible for her in her capacity as a foster child entrusted her to M.M.A. to escort her to important visits with her parents. In this setting A.J.-P. should have been safe from the sexual desires of M.M.A., who should have resisted any of A.J.-P.'s inclinations toward such a liaison.
53Although A.J.-P. was not "just" entering her teenage years, she was a 15 year old foster child who was inexperienced in relationships. Therefore, the court's statement in P.S. (supra) that "It is in this very sort of situation that the law places the onus on the adult to prevent the occurrence of conduct which constitutes sexual exploitation of the young" is apt to the case at bar.
54Ms. McCurley considers that the drivers are in a position of trust because they provide a service for vulnerable persons that are entrusted to Milestone's care. This is not a determinative factor, but it is relevant.
55M.M.A. was significantly older and more experienced than A.J.-P. He was her driver and had a chance to be alone with her on a frequent basis. She was in foster care that indicates that there existed a difficult situation with her parents. He knew this. She was in the middle of her teenage years and was inexperienced in relationships.
56These circumstances created "an opportunity for all of the persuasive and influencing factors which adults hold over children and young persons to come into play". I find that in the circumstances of the case at bar, although A.J.-P. came across as forward in a certain sense, in another sense she was "particularly vulnerable to the sway of these factors".
57In D.E. the court stated that it was a relevant factor that "The victim's mother as her custodial parent, entrusted her daughter's safety and well-being to the accused, a family member, in permitting her to spend more time with him including overnight stays at his home". In the case at bar the custodial parent, the foster home and Milestone, entrusted A.J.-P.'s safety and well-being to M.M.A.
58It is true that A.J.-P. equivocated regarding the dates of the alleged incidents. However, part of her evidence was that except for the sexual intercourse, they occurred prior to her 16th birthday. This is sufficient to pass the Sheppard test. The court does not make credibility findings on a preliminary hearing.
59Therefore, for these reasons M.M.A. is committed to stand trial on all of the charges.
Released: August 12, 2015
Justice J.W. Bovard