minicounsel

citation: "R. v. J.J.O., 2016 ONCJ 264" parties: "Her Majesty the Queen v. J.J.O." party_moving: "Her Majesty the Queen" party_responding: "J.J.O." court: "Ontario Court of Justice" court_abbreviation: "ONCJ" jurisdiction: "Ontario" case_type: "trial" date_judgement: "2016-05-09" date_heard:

"2015-08-28"
"2015-08-31"
"2015-10-29"
"2015-10-30" applicant:
"Her Majesty the Queen" applicant_counsel:
"S. Bradley" respondent:
"J.J.O." respondent_counsel:
"P. O'Marra" judge: "Lesley M. Baldwin" winning_degree_applicant: 1 winning_degree_respondent: 5 judge_bias_applicant: 0 judge_bias_respondent: 0 year: 2016 decision_number: 264 file_number: "Halton 14-1745" source: "https://www.canlii.org/en/on/oncj/doc/2016/2016oncj264/2016oncj264.html" summary: > The accused, a 25-year-old cheerleading coach, was charged with sexual exploitation under section 153 of the Criminal Code and sexual assault under section 271 for conduct occurring between January and April 2014 with a 16-year-old complainant. The Crown established that the accused engaged in explicit online communications with the complainant when she was 15 years old, followed by multiple sexual encounters after she turned 16. The trial judge found the accused was in a position of trust as a coach at the cheerleading gym where the complainant trained. The court rejected the defence argument that the relationship was consensual and that the accused held no position of trust. The accused was convicted on both counts. The court also found that an uncharged offence under section 152 (invitation to sexual touching) had been established based on the sexting that occurred when the complainant was 15. interesting_citations_summary: > This decision provides significant guidance on the interpretation of "position of trust" under section 153 of the Criminal Code. The court clarified that a position of trust need not involve formal authority or disciplinary power, but rather is founded on notions of safety, confidence, and reliability. The judgment emphasizes that an adult in a coaching or instructional position cannot use that employment to enter into sexual relationships with young persons aged 16-18, regardless of apparent consent. The court rejected arguments that the complainant's maturity, the absence of gifts or coercion, or her post-incident behaviour were relevant to determining whether a position of trust existed. The decision also addresses the vulnerability factors relevant to assessing exploitative relationships and provides a working definition of position of trust that moves beyond the "elusive" standard previously criticized in case law. final_judgement: "Guilty on both counts. The accused was found to be in a position of trust toward the complainant as a coach at the cheerleading gym. A conditional stay of proceedings was entered on the sexual assault count based on the Kienapple principle." keywords:
Sexual exploitation
Position of trust
Criminal Code section 153
Sexual assault
Coaching relationship
Young person protection
Grooming
Online sexual communication
Vulnerability
Consent areas_of_law:
Criminal Law
Sexual Offences
Youth Protection
Coaching Standards legislation:
title: "Criminal Code, R.S.C. 1985, c. C-46, section 152" url: "https://laws-lois.justice.gc.ca/eng/acts/C-46/section-152.html"
title: "Criminal Code, R.S.C. 1985, c. C-46, section 153" url: "https://laws-lois.justice.gc.ca/eng/acts/C-46/section-153.html"
title: "Criminal Code, R.S.C. 1985, c. C-46, section 271" url: "https://laws-lois.justice.gc.ca/eng/acts/C-46/section-271.html"
title: "Criminal Code, R.S.C. 1985, c. C-46, section 273.1" url: "https://laws-lois.justice.gc.ca/eng/acts/C-46/section-273.1.html"
title: "Criminal Code, R.S.C. 1985, c. C-46, section 486.4" url: "https://laws-lois.justice.gc.ca/eng/acts/C-46/section-486.4.html"
title: "Criminal Code, R.S.C. 1985, c. C-46, section 486.6" url: "https://laws-lois.justice.gc.ca/eng/acts/C-46/section-486.6.html" case_law:
title: "R. v. Audet, 1996 CanLII 198 (SCC), [1996] 2 S.C.R. 171" url: "https://www.minicounsel.ca/scc/1996/198"
title: "R. v. Aird, 2013 ONCA 447, [2013] O.J. No. 3027" url: "https://www.minicounsel.ca/oca/2013/447"
title: "R. v. Howe, 2005 CanLII 2 (ON CA)" url: "https://www.canlii.org/en/on/onca/doc/2005/2005canlii2/2005canlii2.html"
title: "R. v. Delbert Wright, [2013] ONSC 3258" url: "https://www.minicounsel.ca/scj/2013/3258"
title: "R. v. M.K., [2000] O.J. No. 5328" url: "https://www.canlii.org/en/on/onsc/doc/2000/2000canlii14906/2000canlii14906.html"
title: "R. v. Osmond, [2015] S.J. No. 259" url: "https://www.canlii.org/en/sk/skqb/doc/2015/2015skqb259/2015skqb259.html"
title: "R. v. Weston, [1997] A.J. No. 263" url: "https://www.canlii.org/en/ab/abqb/doc/1997/1997canlii2649/1997canlii2649.html"
title: "R. v. Poncelet, 2008 BCSC 202, [2008] B.C.J. No. 289" url: "https://www.canlii.org/en/bc/bcsc/doc/2008/2008bcsc202/2008bcsc202.html"

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.

ONTARIO COURT OF JUSTICE

DATE: 2016-05-09

COURT FILE NO.: Halton 14-1745

BETWEEN:

HER MAJESTY THE QUEEN

— AND —

J.J.O.

Before: Justice Lesley M. Baldwin

Heard on: August 28, 2015; August 31, 2015; October 29, 2015 and October 30, 2015

Reasons for Judgment released on: May 9, 2016

Counsel:

S. Bradley — counsel for the Crown
P. O'Marra — counsel for the defendant J.J.O.

INDEX

SECTION ONE - Charges and Issues to be Determined

CROWN WITNESSES

SECTION TWO - Testimony of M.M.

Background
First Sexual Physical Encounter (Third Week of January 2014)
Other Physical Encounters in J.J.O.'s Car
At Her Parents' House – Early February 2014
At His Parents' House – Early March 2014
Sexual Assault in his Car – Early April 2014
Mid-June 2014 Hospitalization
Cross-Examination on Nature of their Relationship
Disclosure to A.C.

SECTION THREE - Testimony of T.M.

Background
Why M.M.'s Cell phone and Internet Devices Were Taken Away
Text Messages Between J.J.O. and M.M. and T.M. in 2013 and 2014
How T.M. learned of the Relationship

SECTION FOUR - Testimony of K.P. (C[…] Cheerleader)

SECTION FIVE - Testimony of A.C. (Disclosure Witness)

DEFENCE WITNESSES

SECTION SIX - Testimony of C.M.

'C[…]' Cheerleading Gym Business
J.J.O.'s Status at C[...]
J.J.O.'s Dealings With M.M. at the Gym

SECTION SEVEN - Testimony of J.J.O.

Background and Work at C[...]
Relationship with M.M.
Why it was Kept Secret
Sexual Assault Allegation: Early April 2014
The Hospital Visit: June 2014
Private Tumbling Lessons

SECTION EIGHT - Position of the Parties

Defence Position on Sexual Assault Count
Defence Position on Sexual Exploitation Count
Position of the Crown

SECTION NINE - Case Law

SECTION TEN - Findings of Fact

M.M.'s Vulnerabilities
J.J.O.'s Circumstances When the Sexual Relationship Began

SECTION ELEVEN - An Offence Under s. 152 Has Been Established (Although Not Charged)

SECTION TWELVE - Nature of the C[...] Cheerleading Gym Business

SECTION THIRTEEN - Decision

Dictionary Definitions of the Gym Terms Appearing in this Judgment

Coach – The sense of instructor, teacher, trainer, and the related verb meanings appear to derive from the idea of a school tutor being a means for carrying, or driving, the student through his or her examinations.

Athlete – A person trained in exercises of physical strength, speed and skill.

Sport – A game, contest or other pastime requiring some skill and a certain amount of exercise.

Cheerleading – It combines dance and some gymnastics.

Stunting – Building pyramids – composed of a flyer and one or more bases; occurs when the flyer is elevated in some fashion by the bases; also called a mount.

Tumbling – Any gymnastics acrobatic skill that can be done on the ground.

Jumps – A basic component of cheerleading that requires cheerleaders to lift both feet off of the ground. Each jump has specific feet and hand positions.

Spotter – A person who usually stands in back or front of a stunt for extra safety and control. Spotters can also be used for tumbling.

SECTION ONE

BALDWIN J.:

1J.J.O. is charged that between the 14th day of January, 2014, and the 30th day of April, 2014, both dates inclusive, at the Town of Oakville, while being in a position of trust or authority towards M.M., a young person, he did for a sexual purpose touch directly the body of M.M. with a part of his body to wit: his penis to her vagina, contrary to section 153 of the Criminal Code.

2J.J.O. is further charged that between the 14th day of January, 2014, and the 30th day of April, 2014, both dates inclusive, at the Town of Oakville, he did sexually assault M.M. contrary to section 271 of the Criminal Code.

3The Crown proceeded summarily.

4Date, jurisdiction and identity were admitted at the outset of trial.

5The complainant was born […], 1998. She was 16 years of age when the charges before the Court are alleged. She was 17 years of age when she testified at this trial.

6The accused was born August 23rd, 1988. He was 25 years of age when the allegations occurred. He was 27 years of age when he testified at this trial.

7At the end of trial, there was no issue that there had been at least 4 sexual contacts which included sexual intercourse and fellatio between the complainant and the accused. The physical sexual relationship began one week after her 16th birthday.

8This had been preceded by numerous explicit sexting, Skyping and messages, and Snapchat photographs between both of them. This started when M.M. was 15 years of age in the fall of 2013 before Christmas time.

9The defence submits that all sexual contacts, including sexual intercourse and fellatio, were consensual.

10The defence submits that during the period in question, the accused, who was in a coaching position at the cheerleading club that the complainant attended, but he was not in a position of trust or authority to her as required by s. 153:

SEXUAL EXPLOITATION / Inference of sexual exploitation / Definition of "young person"

s. 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.

(1.2) A judge may infer that a person is in a relationship with a young person that is exploitative of the young person from the nature and circumstances of the relationship, including

(a) the age of the young person;

(b) the age difference between the person and the young person;

(d) the degree of control or influence by the person over the young person.

(2) In this section, "young person" means a person 16 years of age or more but under the age of eighteen years.[1]

11Consent of the young person is not a defence pursuant to s. 150.1(2.2)(b) of the Criminal Code.

12Pursuant to s. 273.1(2) of the Criminal Code, no consent is obtained for s. 271 (Sexual Assault) where:

(d) the complainant expresses, by words or conduct, a lack of agreement to engage in the activity; or

(e) the complainant, having consented to engage in the sexual activity, expresses, by words or conduct, a lack of agreement to continue to engage in the activity.

(3) Nothing in subsection (2) shall be construed as limiting the circumstances in which no consent is obtained.

Issues:

13The two main issues in this trial were:

(1) whether or not the accused was in a position of trust or authority toward the complainant during the time period in question; if yes, then he is guilty of both counts as charged; and

(2) if he was not in a position of either trust or authority to the complainant during that period, did the complainant consent to the last sexual contact between them which consisted of oral sex performed on him in his car when he was driving her home from the C[...] gym in April of 2014.

14The case requires a WD analysis and a clear understanding of the law as it has evolved in this area over the last 20 years.

SECTION TWO

Testimony of M.M.

Background

15M.M. was just about to start Grade 12 when she testified in August of 2015.

16She was living in Oakville.

17She met the accused when she started at C[...] in Oakville.

18She originally thought she had been at that club for four or five years starting when she was 12, in 2010.

19That mistake later was cleared up. She started at C[...] in 2012 when she was 14 years of age. She had attended another cheering gym in Mississauga sometime before that.

20When she first started at C[...] J.J.O., who was called 'Jono', was her coach on the Junior 4 Team.

21M.M. estimated that there were approximately 10 coaches at this gym.

22M.M. testified that throughout her time at the C[...] gym she did have some private lessons with Jono for tumbling. Either she or her parents would arrange it. Her parents paid for the lessons. She did not have them regularly because they were expensive.

23In the summer of 2013, she and Jono started texting.

24It started when she had her own phone, but it switched to different iPods in the fall when her phone was taken away.

25Sometimes she would use her friend K.P.'s iPod. K.P. went to school with her and K.P. was also at C[...] on a team.

26At first, she and Jono would be texting about cheerleading. That began to change by late fall/early winter, before Christmas time.

27She was 15 and he was 25. There was a mutual flirtation going back and forth through the texts.

28The communications were about how she looked at practice that day and what would happen if they were ever alone together sexually. They both would talk about what they would do to each other sexually.

29She would use other peoples' iPods because she was grounded and her parents had disconnected her from the world. She was getting distracted and had to go to summer school.

30Around Christmas time, she started to communicate with Jono on Skype. They could see each other and talk through a webcam. They could also send messages. This was happening almost every day.

31They also used Snapchat to send pictures back and forth. They would take their clothes off and continue to talk to each other in a sexual manner.

32Jono was "pretty determined" to wait until she turned 16 to be alone with her.

33They were talking at least a few times a day about it.

34"And then my sixteenth birthday came around and the talking continued, and now that I was 16, I guess we both wanted to do something about it. To be honest though, I never thought it would happen. He was my coach." (Transcript August 28, 2015, p. 21)

35At the time she was on the Senior 5 Team. Jono was supposed to be the coach, but with his other job schedule he was not able to make the practices. Sometimes he would be there on Sundays because his other team practiced on that day at the same time.

36"…but any coach there is kind of like a coach to any team, really. I mean you have your coaches that are kind of put towards your team and kind of said this is your team for the year, but if any coach walks in, they can tell you to change something in the routine or try a different grip on a stunt or something like that…maybe give the other coaches an opinion on something." (p. 22)

37Jono had a say especially towards tumbling. "He was a coach at the gym that…everybody looked up to…for coaching tumbling. He was one of the main coaches there that did private lessons and he was good at it, so if he gave us something to do differently with tumbling, the other coaches would kind of take a step back and say, go for it." (p. 23)

38M.M. described C[...] as being a very open club – kind of like family.

First Physical Sexual Encounter (Third Week of January 2014):

39She believes it was a week after her sixteenth birthday that they both decided to act on their messaging. He picked her up from school at W[...]. She did not really think it was going to happen until she was walking up to his car because he was her coach.

40It was around lunchtime. He took her to the C[...] parking lot on Speers Road. He pulled between two parked trucks and stopped. He asked her if they should get in the back and she agreed. He pulled her on top of him and there was some touching and some clothes came off. Both of their pants came off. There was oral sex (fellatio). They put their clothes back on, and on the drive back to her school they had some ice cream.

41The flirtatious texts, Snapchat and Skype messages continued.

Other Physical Encounters in J.J.O.'s Car:

42M.M. testified that a few weeks later, the same thing happened, "the old C[...] parking lot, go in the back seat type thing." (p. 35)

43M.M. testified that there were a few times in the car and she cannot remember the exact order of how many times, but she believes that there were three or four.

At Her Parents' House – Early February 2014:

44She remembers that it was a Thursday in early February because she had an English exam at school that day.

45Her parents had an appointment and were both out of the house. The night before, she messaged J.J.O. and told him that she had the house to herself and that he could come over if he wanted to.

46The next morning she left the door to the house unlocked. She told him to come upstairs to her bedroom.

47He came upstairs and they were touching. She thought she was ready to lose her virginity. "…we had talked about it…he knew that if we ever did anything I would be losing my virginity to him…" (p. 38)

48M.M. testified that their clothes came off and they tried to have sexual intercourse. His penis would not go into her vagina. He drove her back to school for her English exam.

49In cross-examination she agreed that he wore a condom and that when she said that it hurt and asked him to stop, he stopped. She could not remember if she gave him oral sex right after that. She could not remember the specifics because "it happened a lot". (p. 111)

50The talking continued through TextPlus, Skype, Snapchat.

51There might have been another car incident at the same old C[...] parking lot after this incident.

At His Parents' House – Early March 2014:

52By pre-arrangement, he picked her up from school and he drove her to his parents' house in Grimsby.

53He gave her a tour of the house and took her to his bedroom.

54They lay down on the bed and he held her for about 45 minutes.

55"He wrapped his arms around me, made me feel safe. He always told me he was going to be there for me and if I ever needed him, he'd be there." (p. 41)

56After that, they had "consensual" sexual intercourse and she lost her virginity.

57They had a shower and he drove her back to school.

58In cross-examination, M.M. testified that there was no kissing or foreplay before the sexual intercourse. "All he did was hold me…because he cared. He said he did." (p. 114)

59M.M. agreed that he wore a condom.

60M.M. testified that they never put a title on the relationship. She did not think they could be in a boyfriend/girlfriend relationship because he was her coach.

61He kept reminding her that they could not tell anybody about it and she agreed. She also did not want to tell anybody about it. (p. 42)

Sexual Assault in His Car – Early April 2014:

62It happened right before the Nationals. M.M. had been asked to fill in for another girl at practice. It was a team that he was coaching. (Note: The evidence established that J.J.O. sent the text to M.M. asking her to come to this practice and to help him out.)

63She went to the practice and halfway through the other girl showed up. Instead of calling to have her mother pick her up, she decided to stay and practice her tumbling.

64She asked Jono if he would drive her home and he said yes.

65After everyone else left the gym, they were alone in the gym for about half an hour and he helped her with her tumbling. It seemed like a private lesson to her even though he was not paid any money for it. (p. 67)

66On the drive home she was being flirtatious. She put her hand on his knee while he was driving.

67They got off the road and he pulled into the north campus of W[...] Secondary School. They had not discussed doing this beforehand. He did not ask her if she wanted to stop there.

68All the prior times had been in a house or the old C[...] parking lot.

69M.M. cannot remember if the car was turned off or if the doors were locked.

70It was between 10:00 and 11:00 p.m. at night and she was already late to get home.

71"He said something along the lines of, 'You know you want it' and I said I do, but I can't right now. I'm already late going home." I didn't have a phone at this time. The iPod Touch doesn't work. I'm not connected to Wi-Fi. "I said you can pick me up any day during the week. You can pick me up tomorrow during my lunch. I can't do it right now. I'm already late and my mom's going to kill me." (p. 47)

72They talked for about 15 minutes and she repeated that she could not do this right now because she needed to get home.

73She also needed him to drive her home because it was a 20-minute walk to her house if she just got out of his car and left. (Note: Later in her evidence she said it was a 2-hour walk home. This issue was never clarified in the evidence)

74She was concerned that her mother would call the police because she was getting home so late.

75"…so I gave him what he was asking for and I kind of ignored him the rest of the way home….I had oral sex with him. I made sure that that was done because I knew I'd get home if he got what he wanted." (p. 48)

76M.M. testified that she did not want to perform oral sex on him.

77She either called him or texted him afterward and told him that what he did was wrong and that it couldn't happen again. (p. 48)

78After that, things died down. She did not think that there was another physical incident with him after Nationals. She would only see him at the C[...] gym.

79In cross-examination, M.M. testified that if Jono had actually cared for her, he would have driven her home that evening. (p. 118)

80She agreed that she had been flirtatious in the car. She maintained that she put her hand on his knee, but did not agree that she put her hand on his crotch. She repeated her testimony that she told him that he could pick her up from school the next day for sex, but she said no that night because she was late getting home. (pp. 124, 125) M.M. agreed that he did not physically force her to perform oral sex. She repeated that giving him oral sex was the only way she could get him to drive her home. (p. 127)

81"Every time you ask me if I gave him consent I said yes; except for that ride home…except for that ride home." (p. 137)

82M.M. agreed that things became so bad with her parents that she left the house in May of 2014. She went to live with a female friend.

Mid-June 2014 Hospitalization:

83M.M. was hospitalized for a kidney infection in mid-June of 2014 at the Oakville Trafalgar Hospital. (Transcript of August 31, 2015 p. 39)

84She wanted Jono to come and visit her there and she sent him some texts about that.

85"You could always come by tomorrow but you're obviously a very busy and important man, so I'm sure you have a bootie call waiting for you before coaching. That is more important than visiting the 16 year old girl you played who's in the hospital and sick…I'm just sick of being played by you and stood up. I'm in a lot of pain. Just wanted to see you."(p. 91)

86In his text replies J.J.O. denied 'playing' her or 'standing her up'. He did go to see her at the hospital for a short visit.

87M.M. testified that she still had feelings for J.J.O. at this time even though he had hurt her and had not been there for her like he said he was going to be.

88"…I was stood up a lot and in between every time anything (sexual) happened, there was a long period, and like I said, he made me feel comfortable. He made me feel safe. He made me feel like he was the only one there, so yes, it did hurt when he stood me up all those times and yes, I still had feelings for him at this point." (p. 92)

89"There was a lot going on. He always used to talk to me or ask me if I was okay at practice or try and calm me down if I was just having a really rough day or crying at practice, and I think that's why I started talking to him. I mean, everything was kind of blowing up everywhere else in my life and he made me feel like I was safe, like I was normal, like I wasn't going crazy, and as things went on, I did have feelings for him. I mean if something happened to him, I would have been pretty devastated. He told me that he cared about me. He told me if I ever needed him he'd be there. I mean, before I lost my virginity, when he just held me, he made me feel like nobody could ever hurt me, like no one could ever touch me. He made me feel safe." (p. 44 and repeated at p. 69)

90In cross-examination, defence counsel put to M.M. that these kinds of text messages with J.J.O. in June of 2014, were not consistent with someone who claims to have been sexually assaulted in April of 2014.

91M.M. maintained that she was not a willing participant to the oral sex she gave J.J.O. in the parking lot of the W[...] Secondary School. (p. 94)

Cross-Examination on Nature of the Relationship:

92In cross-examination, M.M. agreed that J.J.O. never supplied her with alcohol or drugs. He never bought her any gifts or helped her out financially. He did not mistreat her at the gym or benefit her there in any way. (pp. 96, 97)

93M.M. agreed that J.J.O. changed his screen name to 'Dylan Brant' at times when he was communicating with her.

94She did not agree that it was her idea to keep the relationship secret because her parents would kick her out of the house if they found out.

95M.M. also answered that suggestion by stating that if her parents found out about the relationship they would have probably called the police.

96M.M. testified that she did not call the police after the sexual assault in the car because "I was a scared 16 year old who thought that it was one thing that he did wrong and I trusted him…he made me feel comfortable…". (p. 105) M.M. testified that if she had to do it over again she probably would have called the police. (p. 107)

Disclosure to A.C.:

97M.M. told her friend A.C. about her relationship with J.J.O. around the end of February.

98M.M. testified that she was hospitalized for a kidney infection in June of 2014 at Oakville-Trafalgar Hospital.

99She had previously been hospitalized there for three-and-a-half weeks at the end of January in the psychiatric ward for bad anxiety and depression.

100When A.C. heard that she was back in the hospital, A.C. decided to tell M.M.'s parents about what had happened with J.J.O.

101"While I was in the hospital she (A.C.) came and she told the doctors, and my mom and my dad and my brothers…and my mom called the police." (p. 52)

102M.M. testified that she would probably have not called the police herself. The situation that bothered her was the car ride home and she had made it clear to him that it could never happen again and that what he did was wrong.

103In cross-examination, it was clarified that M.M.'s parents became aware of the relationship with J.J.O. on June 15th, 2014. M.M. provided a statement to the police on June 19th. That day, J.J.O. was arrested.

104In cross-examination, M.M. was asked questions about communications she had with her girlfriends shortly after J.J.O. was arrested. M.M. testified that the whole situation was traumatizing for her. She still thought that she loved him and she still wanted to protect him. (Transcript dated August 31, 2015, pp. 8,9)

105M.M. denied the defence suggestion that she fabricated the sexual assault in the car incident so that she could get some sympathy from her mother and make it look like she was the victim. (p. 11)

106At the end of M.M.'s testimony, it was clear that there had been thousands of communications on various devices between M.M. and J.J.O. during the time periods in question. Many of them were not available to be put in evidence before the Court because M.M. used other people's devices throughout. Many of the text messages before the Court were very difficult to read and were out of sequence.

SECTION THREE

Testimony of T.M.

Background:

107T.M. is M.M.'s mother.

108T.M. used to work as a lawyer. She has since retired due to her terminal cancer diagnosis.

109T.M. testified that M.M. began cheerleading when she was in grade six. She started with the Power Cheer Toronto club in Mississauga. M.M. attended that club starting when she was 12 years of age for 2 years.

110When M.M. was 14 years of age she joined the C[...] club in Oakville.

111M.M. attended that club for 2 years when she was in grades 9 and 10.

112Participation on a cheerleading team involved a number of practices during the week in the evenings and on weekends. There were also tournaments out of town in places like Kitchener, Niagara Falls or Oshawa. Competitions for the Worlds took place in the United States.

113T.M. was officially introduced to J.J.O. during a competition in Kitchener in the dressing room. It was during M.M.'s first year at C[...]. M.M. introduced her to 'Jono' as being one of her coaches and the gym's tumbling coach.

114T.M. would also see J.J.O. at the gym when she would attend with M.M. T.M. would say hi to him.

115T.M. recalled M.M. having at least one private tumbling lesson with J.J.O. during her first year at the gym. T.M. believed there was at least another private lesson at the end of August or beginning of September 2013.

116T.M. recalled that M.M. would arrange for the private lesson with Jono. T.M. would give M.M. cash to pay for the private lesson. T.M. could not recall if she ever received a receipt in exchange.

117T.M. testified that J.J.O. was the only coach at C[...] that M.M. had private lessons with. (p. 22)

Why M.M.'s Cell Phone and Internet Devices Were Taken Away:

118T.M. testified that in late 2013 she was diagnosed with Stage 4 breast cancer and she told M.M. not to tell anyone because she wanted to preserve her pride during the last stage of her life.

119T.M. specifically told M.M. not to tell anyone at C[...].

120Sometime in the early fall of 2013, T.M. checked M.M.'s cell phone and realized that M.M. had disclosed her health status to J.J.O. and F.V. at C[...]. For that reason, she took M.M.'s cell phone away for a 3-month period. After that, M.M. would sometimes use her cell phone.

Text Messages Between J.J.O. and M.M. and T.M. in 2013 and 2014:

121T.M. produced her cell phone with the text messages exchanged between M.M. and J.J.O. in Court during her testimony.

122The first messages on her cell phone are dated October 20th, 2013. It is an exchange whereby J.J.O. is asking M.M. to come out to the gym and help out the Senior 2 Team he is coaching.

123"Yes, I was hoping you could come help at Senior 2 on Thursday. I could really use you." (p. 26)

124There are back and forth texts that end with M.M. saying she will talk to her mom and she will get back to him in a couple of days.

125On October 23rd, 2013 M.M. texts back and apologizes for not being able to help out his team. She offers to bake him cupcakes so he will forgive her.

126On October 26th, 2013 M.M. texted J.J.O. and asked him if he was practicing at the gym that Sunday. T.M. explained that J.J.O. was coaching a Level 2 Team at the time that he wanted M.M. to join. (p. 31)

127On April 20th, 2014 the next set of texts begin with M.M. asking for a private tumbling lesson and J.J.O. offering to provide one.

M.M.: "Hey Jono, any chance you have any room for a private before you go to Worlds?"

J.J.O.: "I don't have anything before I go to Worlds, unfortunately. It will have to wait until I'm back."

M.M.: "Okay, please let me know if anything opens up, even if it's late at night. Happy Easter by the way."

J.J.O.: "Happy Easter." "I can do one at 9:15 tomorrow night but that's the only time I have available before Worlds." "Hey, sorry for the confusion, I can't do one tomorrow night unless you wanted to do like 10 p.m., but I assume that's too late. You can let me know."

On April 21st, 2014, M.M. responded: "Yeah, that's too late, but thank you for trying to figure out a time. When you get back from Worlds, if possible to fit one in before tryouts or is that too soon?"

J.J.O.: "I'll have to wait until I get back to see, but we can definitely try!"

M.M.: "Okay, sounds great. Thank you! Let me know when you're back and we can figure out a good time that's good for you!"

128On April 22, 2014, there was a text exchange between T.M. and J.J.O. concerning private lessons.

129J.J.O. told T.M. that he would be at the gym on a certain night doing tumbling lessons and if M.M. wanted to come in, she could tumble on her own. (p. 38)

130T.M. explained that when the club found out that she was sick, they allowed M.M. to go in and tumble whenever she wanted to as a way of blowing off steam without paying. On many occasions when M.M. did this, J.J.O. was in the gym. Even when he was in a private lesson with someone else, he would comment and critique M.M. at the same time. T.M. testified that she had personally observed this. (pp. 43, 44)

131T.M. interpreted the text message from J.J.O. to mean that if M.M. wanted to come to the gym and tumble on her own, he would be there to help her.

132On April 22, 2014, T.M. texted back:

"Okay, thanks for letting me know. I really appreciate it. I know she'd love to just go and tumble. I'm just note sure, we might be going to the doctor's to get her shoulder looked at. Good luck at Worlds."

J.J.O.: "Thanks so much. We'll see how she feels after we get back."

How T.M. Learned of the Relationship:

133T.M. testified that when M.M. was hospitalized for a kidney infection in mid-June of 2014, M.M.'s friend A.C. told her husband and then her husband told her.

134When M.M. was released from the hospital a few days later, T.M. confronted M.M. with the disclosure.

135M.M. was hysterical initially and denied it for the first half hour. M.M. then broke down and confirmed it.

136A.C. was sleeping over that night. M.M. was very sad and despondent. Due to a fear that M.M. would cut herself, T.M. called the police and that is how the matter became known to the authorities.

SECTION FOUR

Testimony of K.P.

137K.P. was 17 years of age and going into grade 12 at W[...] Secondary School when she testified.

138She became friends with M.M. when they were both in grade nine. They both were on the high school cheerleading team.

139In grade 10, M.M. convinced K.P. to join C[...].

140That year, J.J.O. was her coach and he was also her private tumbling coach. He was her "favourite" coach.

141K.P. testified that the gym as of last year developed a new web site and began an on-line sign-up system for private lessons. K.P. does not remember how her private lessons were arranged.

142K.P. testified that everyone in the gym is close. She did not think anything of it when she would see J.J.O. and M.M. talking a lot to each other at the gym.

143When M.M.'s cell phone was taken away, she would lend M.M. her cell phone to use.

144M.M. put an app on her cell phone that allowed her to access TextPlus.

145It was not until after J.J.O. was arrested in this matter that K.P. opened up the app and realized that there were communications of relevance on her phone. She turned her phone over to the police.

SECTION FIVE

Testimony of A.C.

146A.C. was 20 years of age and employed when she testified.

147She met M.M. when they were cheering together at the P[…] gym in Mississauga.

148A.C. testified that she was close to M.M. – kind of like an older sister.

149M.M. texted her and asked what it was like to lose your virginity. A.C. asked M.M. if she was considering anyone in particular.

150Eventually M.M. told her that it was a tumbling coach at her cheer club and that she had been involved with him for a little while. At first M.M. said that he was 21 years of age. Later she said he was 24.

151A.C. told M.M. that it did not sound like a good idea given the age difference.

152A.C. testified that M.M. disclosed to her in April of 2014 that J.J.O. had forced her to perform oral sex on him in the W[...] Secondary School parking lot. (p. 63) M.M. said that she was at the Cheer gym and he offered to drive her home and she accepted the offer. He pulled into the W[...] Secondary School parking lot and would not let her leave until she performed oral sex. (p. 66) Then he drove her home.

153A.C. testified that she advised M.M. to tell someone, but M.M. became hostile with her and said she was afraid.

154A.C. testified that she herself did not know what to do with the information. She told M.M. that she would not tell anyone for the time being.

155When A.C. learned that M.M. was in the hospital, she told M.M.'s parents what she knew.

156A.C. testified that she was at the home when M.M. got out of the hospital. M.M. was in a very shaky and unstable state. A.C. was concerned that she would harm herself. (p. 67)

157In cross-examination, A.C. testified that she understands "the bond that you can build with your tumbling coach because you are trusting them with your life when you are tumbling…" (p. 70)

SECTION SIX

Defence Witnesses

Testimony of C.M.

'C[...]' Cheerleading Gym Business:

158The defence called C.M. to explain the how this business operates.

159It is a business that provides cheerleading instruction for fees to children and teenagers.

160The business originally operated in Hamilton. That location closed down and a new gym was opened in Oakville.

161The business is co-owned by 4 individuals; F.V. and T.V. and C.H. and S.H..

162C.M. identified herself as being a co-director with her husband E.M..

163Together with the owners, C.M. and E.M. were also the main head coaches of the various cheerleading teams at the gym.

164The teams were based on age and skill levels. Participants of the gym would have to try out to make a team. The teams started at Level 1 for beginner athletes and progressed to Level 5 for advanced athletes.

165There was one head coach per team, and assistant coaches and helpers.

166None of the coaches have any sort of accreditation or special training. There is no governing body that certifies a person as a coach for the sport of cheerleading.

J.J.O.'s Status at C[...]:

167J.J.O. started out as an 'athlete' at the Hamilton location. An athlete is the term the gym uses to describe a participant on a cheerleading team. C.M. was his coach. C.M. believed that J.J.O. started with the gym when he was in high school.

168J.J.O. began to take more interest in the gym and he started to help out with other teams.

169C.M. stated that J.J.O. was never given a paycheque or cash for helping out at the gym as a 'spotter'. His fees to participate in the gym as an athlete on a team were waived. (p. 79, 90) According to C.M., when J.J.O. went out of town with teams for cheerleading competitions he paid his own expenses. (p. 94)

170When originally asked to describe J.J.O.'s role at C[...] for the two years leading up to his arrest, C.M. stated as follows: "He was an assistant of the assistant, so he came, he helped out, he helped spot; didn't really have a main role; like he wasn't committed to certain days of the week. He would just come in and help us out for that particular team that we were coaching… He was assisting with spotting making sure everyone was safe." (Transcript August 28, 2015, p. 80)

171C.M. explained that when the teams were learning new skills, other coaches and assistants would be involved to help with the safety of the athletes.

172In cross-examination, C.M. agreed that there is definitely a strong trust relationship between the athletes and the spotters.

173J.J.O. would attend the gym once a week to practice as an athlete with his team. He would come into the gym possibly twice a week to help out with the other teams.

174Later during cross-examination, C.M. stated that J.J.O. was "a good tumbling coach". She stated that was "just the vocabulary that we use around the facility". She agreed that anyone with a little bit of background training could essentially be a coach. (p. 91)

175Finally, in re-examination, C.M. agreed that for the 2013/2014 season, J.J.O. coached anywhere up to three teams. (p. 105)

176J.J.O. would be present for try-outs and could express an opinion as to who would make the team, but it was the four owners who made the final decisions.

177Private one-on-one lessons could be arranged through the owner C.H.. Those wishing a private lesson would register online and then 'administration' would check the athlete in prior to class and collect the money. 'Administration' referred to whoever was at the front desk. The lessons were generally for half an hour and cost $35.00. The payer would be given a receipt and the business would record the private lesson in its 'databank' or 'logbook'.

178Later in cross-examination, C.M. stated that anyone involved in the facility could give a private lesson – even somebody as simple as a helper. (p. 92) In that case, for that private lesson, the helper could be considered a coach. (p. 93) When J.J.O. trained people in private lessons he would be categorized as a tumbling coach. There were a lot of coaches. (p. 99)

179J.J.O. also acted as a chaperone when teams would go away for cheerleading competitions. He, along with other helpers and parents, would come along to make sure that the athletes were safe.

J.J.O.'s Dealings With M.M. at the Gym:

180M.M. started at the gym following the June of 2012 try-outs.

181She was placed on the Junior 4 "Frosted Flakes" team. C.H. was the head coach. E.M. was another coach. J.J.O. was a 'helper on the team'. (p. 84)

182The following year, 2013-2014, C.M. was M.M.'s head coach on the Senior 5 team, along with her husband E.M., and F.V..

183According to C.M., J.J.O. was then involved with the Senior 2 team. Later in cross-examination, C.M. stated that she was not sure of what other teams J.J.O. was helping out with for the 2013-2014 year, but maintained that it was not the team that M.M. was on.

184When asked if M.M. ever had a private lesson, E.M. replied as follows: "I didn't check but I know offhand that she never had private lessons…" (p. 83) She was sure of this because M.M. could not afford private lessons.

185C.M. was surprised to learn in cross-examination that J.J.O. had texted M.M. and asked her to fill in for team practices on a team he was involved in coaching. She said that it would not be consistent with his role to do that unless she or another 'coach' and had asked him to.

186C.M. stated that contrary to J.J.O.'s text message to M.M.'s mother in April of 2014, the gym would not be offering private lessons at 10:00 p.m. Most people are gone from the gym by 10 p.m. (p. 99) According to C.M., the lesson proposed by J.J.O. would not be allowed.

SECTION SEVEN

Testimony of J.J.O.

Background and Work at C[...]:

187He is 27 years of age and has lived in Grimsby for the past 10 years with his mother, father, brother and sister.

188He has been employed as a collections representative with Cogeco since September of 2010. He works at the Burlington location.

189He attended McMaster University and studied English for 4 years. He did not attain a degree.

190He has no criminal record.

191He started cheerleading when he was in high school in Grade 13 at the Blessed Trinity High School in Grimsby. He played football in high school.

192The high school cheerleading coach, who was also one of his teachers, Erin Brown, asked him and a few other males to help the high school team compete in the Provincial tournament. He had a special bond with this teacher, so he agreed.

193Erin Brown was also an assistant at the time with C[...] in Oakville. She asked him and some others to come there to help out as well.

194He joined the C[...] gym in 2007 as an athlete on a team. The first season his coaches were E.M. and C.M.

195The next season C[...] opened up in Hamilton and they asked him to help them start up the gym there. That is when he first started assisting.

196The agreement was that all his fees to participate in the gym and his travel expenses when he went away with the teams would be covered in exchange for his assistance at the gym. (Transcript October 29, 2015 p. 5)

197He never entered into an employment contract with C[...].

198He started instructing people in 2011 as the tumbling expert when the gym moved from Hamilton to Oakville.

199In 2010 he received a T4 slip for wages from the gym. He has never received one since. (p. 37)

200There is no licensing or certification required to work at C[...]. He did not have to undergo any background or screening checks. He did not have to sign any policy documents related to the workplace.

201The teams were divided up by age groups at the gym. Junior teams were for athletes aged 11 to 14; senior athletes were aged 14 to 18.

202It was mostly the owners and directors who decided which team an athlete would make. He was at the try-outs and witnessed them. (p. 8)

203In cross-examination, J.J.O. stated that he began to work as the tumbling assistant because of his strength because it is "mostly a safety thing. When they're doing stunts and pyramids and stuff, they're falling. I'm the one catching them…because you're flipping people (in the air)…" (p. 35)

204He would assist with teams two nights during the week and on Sundays.

Relationship With M.M.:

205He met her at the gym when she tried out for the 2012/2013 season. She made the Junior 4 team that he was an assistant to. "I was on that staff". (p. 42)

206He attended the try-outs and had input into the process.

207The head coach was C.H. and also E.M. and C.M.

208M.M.'s team and other teams from C[...] went to a competition in Cincinnati that year. He went there as part of the coaching team and as a chaperone to make sure that the girls were safe, which included room checks.

209In cross-examination, J.J.O. agreed that when he was an assistant coach to M.M.'s team during her first year, he was in a position of authority to her as a member of the staff.

210That same year he also assisted E.M. and C.M. with another senior team.

211In the spring of 2013 M.M. moved up to a senior age and made the senior 5 team. He was not an assistant to that team. The coaches were E.M. and C.M. as well as F.V..

212He had not spoken to M.M. for several months until she started to text him in late September/early October. At first it was about cheerleading stuff. Then they started to have conversations about their lives and school work and regular stuff.

213Through November and December they talked more frequently – basically everyday about personal things. He knew that her relationship with her parents was "rocky". She told him that her brother had abused her when she was much younger. He thought she was over that.

214The texts became sexually flirtatious in December. Things became more flirtatious into January (2014).

215He was aware that M.M. was turning 16 on January 14th, 2014. He was aware that the legal age of consent in Canada was 16. It was important to him that if anything physical happened between them that it would be after she turned 16.

216After M.M. turned 16, they agreed to meet in person and the sexual activity described by M.M. occurred. He picked her up from school in his car. He drove to a parking lot and she performed fellatio on him.

217The next occasion was when he attended M.M.'s parents' home at her invitation. She said her parents were not going to be home all morning and asked him to bring condoms in case they decided to try to have sex. She left the door to her house open and told him to meet her upstairs in her bedroom. The sexual activity she described did occur. They tried to have sexual intercourse, but she said it was hurting her and she asked him to stop and he did.

218The next occasion was at his parents' house in Grimsby. She asked him when his house would be empty instead of hers and they agreed on that date because his parents were at work. He picked M.M. up from her school and drove her to Grimsby where the agreed upon sexual intercourse occurred. He knew she was losing her virginity to him. Afterward they had a shower together, then he drove her back to school.

219After the sexual intercourse at his house, they continued to be flirtatious with each other. This continued throughout April.

Why it Was Kept Secret:

220He did not tell anybody about his relationship with M.M. They agreed to keep it private. She did not want her parents to know because they would be upset about the age difference.

221He was aware that she did not have her own phone and was using her friends' phones to communicate with him. He thought she was probably telling her friends about it and he had no problem with that.

222In cross-examination, he stated that he also did not tell his parents or any of his friends about the relationship. He disagreed with the suggestion that it was kept secret because he knew that the relationship was wrong.

223During the time of his relationship with M.M. he did not coach her at C[...]. He was not alone with her at the gym. There was no sexual contact with her at the gym.

224Prior to his relationship with M.M. he had not really dated. He had one prior girlfriend. M.M. made him feel good. She gave him lots of attention and boosted his ego that way. It was nice to have somebody to talk to all the time. He found her to be very mature and very social as well.

225He agreed that he changed his user name to 'Dylan Brant' when he Skyped M.M.. He did this in case her parents saw the Skype on her home laptop. This name change was done so her parents would not know that she was communicating with him.

226The relationship ended in May of 2014 or "thereabouts". (p. 15)

227She had moved out of her house and was living with a friend. She did not have regular access to a phone so they were not able to talk as much.

228J.J.O. described the relationship with M.M. as a 'regular relationship'. He considered her an equal and they talked every day and confided with each other. He did not feel that he had any influence or control over her. She made her own decisions. She would drink and smoke even though he told her not to do it. (p. 26)

229He never bought her any alcohol or drugs. He never bought her any gifts.

230He was not able to make anything better or worse for M.M. at C[...].

231In cross-examination, he said that he thought other people might find the age difference between them inappropriate, but he was confident he was not breaking any law. He did not think anybody would find out about their relationship. (pp. 60, 61)

232He did not think that M.M. was vulnerable. Her arguments with her parents seemed normal.

233He knew that she was cutting herself but she told him that many of the girls at her school were doing that. He thought it was concerning but not serious. (pp. 88, 89)

Sexual Assault Allegation: Early April 2014:

234According to J.J.O., it was C.M. who asked that M.M. and a couple of other athletes come to the gym because some of the team members were going to be absent. When M.M. got there, the team already had the people required so she was not needed. M.M. chose to stay and 'tumble off to the side by herself'.

235M.M. asked him if she could get a ride home with him that night. He told her to get a ride home from somebody else because he was going to be busy at the gym for another couple of hours.

236M.M. could not find another ride and she asked him again if he could drive her home.

237After he was finished up at the gym he drove M.M. home. During the drive they were being flirtatious. M.M. put her hand on his crotch and was massaging him. (p. 16)

238He got off the highway and parked in the W[...] Secondary School parking lot. M.M. had agreed to this.

239It was about 10:15 p.m. at night.

240They talked a little bit and began kissing and then "she proceeded to give me a blow job and then I drove her back to her house". (p. 17)

241J.J.O. denied that M.M. ever said no. He denied that M.M. said that she needed to get home because her mother would be upset if she came home late.

242M.M. never told him that what happened in the car was wrong and he was not to do that again. M.M. did not give him the cold shoulder afterward. The conversations proceeded normally. (p. 25)

243In May the relationship slowed down because M.M. was not living at home. She was staying with a friend because of her issues at home. J.J.O. denied that the relationship dwindled because of her lack of consent to the oral sex in the school parking lot.

The Hospital Visit: June 2014

244M.M. texted him when she was in the hospital in June of 2014 for the kidney infection. She was talking about normal stuff and she wanted him to come and visit her there.

Private Tumbling Lessons:

245J.J.O. gave both private and semi-private tumbling lessons to athletes at the gym.

246J.J.O. stated that he never gave M.M. a private tumbling lesson at the gym.

247In cross-examination, he acknowledged sending M.M. a text message on October 20, 2013, knowing that M.M. was using her mother's cell phone. In the text he asked her to hopefully come and fill in on the Senior 2 Team (that he was coaching) for the evening. J.J.O. testified that F.V. had asked him to ask for M.M.'s help.

248In the text J.J.O. states, "I could really use you". He agreed in cross-examination that if M.M. had attended that night he would have been coaching her.

249J.J.O. testified that Exhibit #5 represents his entire 'PRIVATE TUMBLING COACH SESSIONS' that he gave at C[...] as provided to him by C.M.. There is nothing for M.M. in those forms.

250Exhibit #6 was filed as M.M.'s profile at the gym listing her teams and any lessons taken. J.J.O. stated that there was no notation that M.M. had participated in private tumbling lessons. (Note: it is listed that M.M. was signed up in 2013 for specialty clinics – Jump and Tumbling – May 22)

251Exhibit #7 was filed as K.P.'s profile at the gym. It does indicate that she had Winter Private tumbling lessons with J.J.O. in May 2014. (Note: K.P. is not listed as one of his private tumbling students in Exhibit #5 – the purported full record of J.J.O.'s private lessons as provided to him by C.M. – this Exhibit is therefore not accurate and complete - p. 68,78,71)

252J.J.O. explained that the athlete would either sign up online or on occasion they would speak to the coach directly to arrange a time, then it would be entered and the parents would have to pay for the lesson at the front desk.

253In cross-examination J.J.O. agreed that he was bringing lots of money into the gym for his private tumbling lessons. Any coach could choose to do private lessons.

254J.J.O. testified that he has never met either of M.M.'s parents. He did not meet M.M.'s mother in a dressing room at one of the competitions in Kitchener. (p. 24)

255There was a text from M.M. using her mother's cell phone on April 20, 2014, trying to set up a private lesson with him. (p. 25) "Hey, Jono, any chance you have room for a private before you go to Worlds?" (p. 74) His text back to M.M. says, "I don't have anything before I go to Worlds unfortunately. It'll have to wait until I come back." M.M. texted back, "Okay, please let me know if there's anything that opens up even if it's late at night and Happy Easter". (Note: Easter was on April 21, in 2014)

256J.J.O. texted her back with, "I can do one at 9:15 tomorrow night, but that's the only time I have available before Worlds." Shortly thereafter, he texted her again and said, "Hey, sorry for the confusion. I can't do one tomorrow night unless you wanted to do like 10:00 p.m., but I assume that's too late. You can let me know."

257When asked to explain why he responded with a suggestion that the private lesson could occur at ten o'clock at night, J.J.O. stated as follows:

"Well, it was late at night on a school night. I knew she wouldn't be able to, but I was aware she was texting me from her mother's phone, so I certainly wanted to appear helpful, but it was right before we were leaving for Worlds and I knew that there wouldn't be an opportunity to do anything…I knew her mother would be viewing the messages, so it wouldn't be appropriate to …appear personal and I wanted to appear that I was just talking normally because I didn't want her mother to know." (p. 26 and repeated in cross-examination at p. 75)

258In cross-examination, J.J.O. also stated that he knew he would not have any contact with M.M. at the gym after the relationship started. (p. 73) He was just trying to "deflect" M.M.'s request. (p. 75) He also conceded that in this instance he was not following the on-line sign up procedure as set up by the gym.

259On April 22, 2014, he got a text from M.M.'s mother: "Hey Jono, it's M.M.'s mom T.M. Even though her shoulder has been bothering her, I know she wants to get back into the gym and stunt and tumble. I didn't know who else to contact to find out if Ethan will be there tomorrow night."

260J.J.O. stated in his trial evidence that Ethan was another assistant coach at the gym but he did not do private lessons. He did not like to spot tumbling.

261J.J.O. texted M.M.'s mother back and said that Ethan wasn't going to be at the gym tomorrow, but he would be there if M.M. wanted to come and tumble on her own. (p. 79)

262When asked about this exchange, J.J.O. testified that others were going to be at the gym too. He just mentioned that he was going to be there to indicate that the gym would be open. "It was just a figure of speech". (p. 80)

SECTION EIGHT

Position of the Parties:

Defence Position on Sexual Assault Count:

263The defence submits that M.M. is not a credible or trustworthy witness.

264The defence submits that M.M. presented herself as argumentative and combative in the witness stand.

265The defence submits that M.M. has admitted to being flirtatious with the accused on the drive home from the gym. There was no effort on her part to get out of the car or call out for help. M.M. did not report the matter to the police after it happened.

266M.M. continued to text the accused and asked him to give her private lessons.

267M.M. texted the accused in mid-June and asked him to come and visit her in the hospital.

268The defence submits that texts between M.M. and K.P. after the accused was arrested support her fabrication of this allegation.

269Further, the defence submits that M.M. told no one that she was sexually assaulted right after it happened.

270The defence submits that no victim of a sexual assault would be acting in this fashion.

271The defence submits that M.M. fabricated this allegation to make it appear that she was a victim when her mother confronted her about the relationship.

272Further, the defence submits that the accused's evidence is that this was a consensual act like the other acts and, accordingly, the Crown has failed to prove this count beyond a reasonable doubt.

(Note: The defence also submitted that there was some testimony from A.C. that on other occasions M.M. has lied about things. A.C. referred to an unspecified, unreported allegation M.M. at some time made to someone, not her, concerning her stepfather. This testimony was based on double-hearsay and was so remote that no weight can be placed on it at all.)

Defence Position on Sexual Exploitation Count:

273The defence submits that the inquiry is limited to whether or not J.J.O. was in a position of trust to M.M. during the time period in question. It is submitted that he was not.

274The defence submits that he was not coaching the team M.M. was on during this time period.

275The defence submits that J.J.O. was not the head coach of any team. He had no written job description, employment contract or formal training. He did not take money or make decisions as to who would be on what team.

276It is submitted that J.J.O.'s position with the gym was informal and casual.

277J.J.O.'s role at the gym was also as a spotter or helper to other coaches. He also provided private and semi-private tumbling lessons at the gym. The defence submits that there is no credible evidence that M.M. was ever given a private lesson by J.J.O. at the gym. It is submitted that all consensual sexual activity took place outside of the gym.

278The defence submits that there is no evidence of any power imbalance in the relationship between J.J.O. and M.M. at the gym. J.J.O. could not discipline her or influence her.

279It is submitted that when the sexual relationship developed between them, both parties were aware that he would not be coaching her team at the gym. The defence submits that J.J.O. did not occupy the traditional role of a coach or a teacher. As an assistant coach or a spotter, unlike a school teacher, he was not entrusted with a special role by society and he did not employ characteristics of nurturing as a major component of that position.

280The defence submits that there is no evidence the J.J.O. exploited or used his position at the gym to manipulate M.M.

281The defence submits that this was a friendship which, despite the age difference, both of them wanted while, at the same time, knowing it was not one that either of their parents would approve of.

282The defence submits that it is relevant that it was not M.M. that reported the relationship to the police.

283The defence submits that the jurisprudence that has evolved with respect to s. 153 of the Criminal Code has remained elusive with respect to a definition of position of trust. This is not the case with respect to a person who is in a position of authority or where the complainant is in a relationship of dependency with the accused or where the accused is in a relationship with the complainant that is exploitative of the complainant. The defence relies primarily on the case of R. v. Audet for this submission.

284The defence submits that with the passage of time, the stigma of older people having consensual sexual relationships with younger people has largely disappeared.

285The defence submits that some would call the relationship unnatural, immoral, inappropriate or morally reprehensible, but that does not make it illegal.

286The defence submits that M.M. was not a vulnerable young person. She was not persuaded or influenced by J.J.O. There was no evidence that she was required to give sexual favours in return for anything at all at the gym or personally. Nothing was ever purchased, promised or threatened.

287The defence submits that M.M. was an independent, social, mature, outgoing, direct, secure, strong and sexually-confident person.

288The defence submits that the text message exchanges between the parties show a balanced maturity-style between the two of them. Both of them still lived at home with their parents.

289The defence submits that there was an emotional bond between the two parties; they had mutual respect for one another and common interests, including the evolution of their cheerleading. The defence submits that they were friends and they were simply dating.

290The defence submits that the relationship was kept secret because of the age difference. J.J.O. did not instruct, suggest or make any attempt for M.M. to keep the relationship a secret.

291The defence submits that when J.J.O. ceased to be one of her coaches after June of 2013, a switch turned off and he was no longer in a position of trust or authority over her. In its place, a relationship driven and controlled by M.M. was switched on. J.J.O. was flattered by her attention and was compliant with her suggestions.

292Finally, it is submitted that J.J.O. waited until M.M. was sixteen years of age before there was physical intimacy to ensure that she could legally consent.

Position of the Crown:

293The Crown submitted in their lengthy submissions that they have proven both offences beyond a reasonable doubt.

294The Crown submits that J.J.O. was in a position of trust when the sexual acts occurred.

295The Crown submits that M.M. did not consent to the act of fellatio in the parked car at the high school parking lot in April of 2014.

296The Crown submits that on a WD analysis the evidence tendered by the Crown is credible, reliable and true.

297The Crown submits that both defence witnesses gave self-serving testimony, and where it differs from the Crown witnesses, it should be rejected.

(Note: I have abbreviated the Crown's position because I have accepted their submissions and added to them in my assessment of this case.)

SECTION NINE

Case Law:

298It is evident that Parliament enacted s. 153 of the Criminal Code to protect young persons aged 16 to 18, who are in a vulnerable position towards certain persons because of an imbalance in the nature of the relationship between them.

299The implication from the wording of s. 153 is that, notwithstanding the consent, desire or wishes of the young person, it is the adult in the position of trust who has the responsibility to decline having any sexual contact whatsoever with that young person. (R. v. Audet, 1996 CanLII 198 (SCC), [1996] 2 S.C.R. 171, para. 23)

300In Audet, the Supreme Court of Canada described a relationship based on 'authority' to mean where the accused could enforce obedience or had the power to influence the conduct and actions of others.

301'Trust' derives from the confidence in or reliance on some quality or attribute of a person or thing, or the truth of a statement. Confidence is the mental attitude of trusting in or relying on a person or thing; firm trust, reliance, faith.

302In Audet, the 22-year-old physical education teacher who had sexual (consensual) relations with his 14-year-old student during the summer vacation at a cottage, was found to be in a position of 'trust'. The Court noted that the accused teacher in that case would likely be the complainant's teacher at school in the future. The Supreme Court overturned a finding of not guilty on these facts and registered a finding of guilt.

303In Audet, the Supreme Court of Canada held that the Crown need not prove that the accused actually exploited a power imbalance or position of trust or authority over the complainant, it was simply enough that the relationship existed. (para 13)

304In R. v. Aird, 2013 ONCA 447 (CanLII), [2013] O.J. No. 3027, the Ontario Court of Appeal upheld a conviction under s. 153 in a case involving a breach of trust sexual relationship between a 17 year old and her privately-retained mathematics tutor aged 28.

305The complainant's parents had hired the math tutor and permitted the tutoring to take place at coffee shops. The Court held that the complainant's parents put more trust in Mr. Aird than a teacher would receive, as he was permitted to meet with the complainant alone, out of the school.

306The fact that Aird was unable to discipline the complainant was not determinative of his guilt with respect to breach of trust.

307In Aird at paragraph 28, the Ontario Court of Appeal stated as follows:

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.

308No 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: 'confidence in or reliance on some quality or attribute of a person or thing, or the truth of a statement.'"

309The Court noted that positions of trust and positions of authority are related concepts but they are different concepts. For example, authority over grades and the ability to discipline are reflected only in positions of authority, for example, a school teacher.

310A 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.

311In Aird, the Court noted that 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. They were entitled to trust that he would not take advantage of his position and use it to start a sexual relationship with her.

312In Aird, it was not the complainant, but a girlfriend, who initially contacted the police.

313In Aird, the accused testified at trial and he gave a different account of what happened in the relationship with the complainant. His account was rejected as defying common sense.

314I have also been provided with the case of R. v. Delbert Wright, [2013] ONSC 3258, which resulted in a finding of not guilty by the Superior Court of Justice trial judge where s. 153 (a) was charged. The facts are very different from the case before me.

315The facts in Wright involved a consensual sexual encounter between a 16-year-old horse rider and a 40-year-old man who boarded her horse and also rode horses. The trial judge found that the complainant was a mature, intelligent and independent young lady. The two of them became attracted to each other. There was no evidence that he was coaching her. There was no evidence of any of the usual indicia of a trust relationship as described in the leading cases. The complainant did not feel at any time that the accused had any power or control over her or that there was a power imbalance between the two.

316The defence referenced the case of R. v. M.K., [2000] O.J. No. 5328, an oral decision of the Ontario Superior Court of Justice. At the time of the occurrence in 1991, R.H. was 17 years old and a former student of the accused M.K. who was approximately 45 years old. It was determined that their relationship did not fall under the sexual exploitation provisions of the Criminal Code.

317I note that R. v. M.K. applies the law as it existed in 1991, which is 17 years before the 2008 amendments to s. 153 of the Criminal Code. The decision focuses on what constitutes a position of authority and does not deal with a position of trust. The case also applies a definition of consent that is no longer the law in Canada. Accordingly, this decision is not of assistance to me in this case.

318The defence referenced R. v. Osmond, [2015] S.J. No. 259, a decision from the Saskatchewan Court of Queen's Bench released on May 25, 2015. In this case a female teacher who had sex with her 16-year-old student was acquitted. This case is under appeal and is of no assistance to me.

319The defence referenced the case of R. v. Weston, [1997] A.J. No. 263, a decision from the Alberta Court of Queen's Bench released February 21, 1997.

320The accused was 30 years of age and the complainant was 15. The accused was found not to be in a position of trust or authority over the complainant as he could not exercise control over her. She had played in a couple of tournaments for the team he coached, but she was not a regular member of the team. He was not coaching her at the time.

321Again, I note that this decision is prior to the amendments made to s. 153 in 2008 and the law applied in this case is now out of date.

322The one interesting nugget from this case is Judge Sanderman's statement about what constitutes a position of trust at paragraph 25:

Now we certainly then have clear guidelines from the Supreme Court of Canada on what a position of authority is. Unfortunately, I cannot say the same for the position of trust. I defy anyone, I defy any legally trained person to come up with a workable definition of a position of trust from Audet. It's impossible to do so, at least I could not state what a position of trust is or what the Supreme Court of Canada seems to feel a position of trust is. They refer to a couple of dictionary definitions and they give little or no direction; but it appears to me as if they're almost attempting to introduce a fiduciary relationship into the criminal law.

323Lastly, the defence referenced the case of R. v. Poncelet, 2008 BCSC 202 (CanLII), [2008] B.C.J. No. 289, a decision from the British Columbia Supreme Court released February 22, 2008. The offence is alleged to have occurred between July 1, 2003 and May 31, 2004, when Mr. Poncelet was age 40. He was a horse trainer. Both he and his girlfriend gave riding lessons to the 15-year-old complainant. He was found not to be in a position of trust and there was no inherent imbalance or vulnerability in their relationship. Their relationship had no indicia of grooming or manipulation.

324I note that this case as well was decided prior to the 2008 amendments so it is of limited assistance to this case. However, I do agree with Judge Smith's statement at paragraph 57:

It is difficult to see any inherent power imbalance and vulnerability in their relationship as seen through the lens of the young person's perspective. However, the court must also examine the objective indicia of the relationship in determining if Mr. Poncelet was in a position of trust.

325Part of my function in this judgment is to answer Judge Sanderman's challenge and provide a working definition of position of trust in s. 153 of the Criminal Code in the year 2014 when this offence occurred. I will do so based not only on M.M.'s subjective perspectives at the time, but also on the objective indicia of what occurred between the parties.

SECTION TEN

Findings of Fact:

326In R. v. Howe, released January 11, 2005, the Ontario Court of Appeal made it clear that in trials where the evidence pits the word of the complainant and other Crown witnesses, against the denial of the accused and other defence witnesses, and the result turns on the trial judge's credibility assessments, it is clear that the trial judge must apply the same standards in assessing the evidence of the accused, the evidence of the complainant and the evidence of any other witness who has testified at the trial. I have been very careful to do that in this case.

327I accept as accurate, reliable and true the evidence of the Crown witnesses. Where their evidence differs from that of the defence witnesses, I accept their consistent and common sense versions of events.

328I agree with the Crown that C.M. presented as a biased witness who went out of her way to make it look like J.J.O.'s work functions at this gym business were casual only.

329I agree with the Crown that J.J.O. presented himself as a helpful guy who was just trying to please M.M. and her mother. He was not. He was in a position of trust in relation to M.M. Instead of using that position to protect her, he used it to exploit her.

330Despite all of her beauty and many strengths, at this stage of M.M.'s life, she also had understandable vulnerabilities.

M.M.'s Vulnerabilities:

she was having serious problems with her parents (mother and step-father);
one of her brothers had abused her in the past;
she had not been doing well at school and had to attend summer school in the summer of 2013;
she was grounded in the fall of 2013;
her parents took her cell phone and any other devices she could use to contact 'the outside world' away;
she was cutting herself;
her mother had been diagnosed with terminal stage 4 cancer in the summer of 2013;
her family was experiencing financial and emotional stress;
she was almost 10 years younger than the accused;
she was in Grade 10;
she was inexperienced sexually (a virgin);
she was hospitalized for depression and anxiety in January of 2014;
cheerleading at C[...] was the only place that she experienced enjoyment at the time.

331These are all vulnerabilities that J.J.O. was aware of, or chose to be wilfully blind to.

J.J.O.'s Circumstances When the Sexual Relationship Began:

in the fall/pre-Christmas time period when the sexual messages began, and during the period charged in the information before the court when the physical relationship occurred, J.J.O. was 25 years of age;
he was employed full-time with Cogeco;
he was working at the C[...] gym as both an assistant coach and as the tumbling coach;
he had previously attended 4 years of University (no degree attained);
he lived at home with his parents and siblings;
he had a car;
he had a cell phone and internet devices.

332It is clear that M.M. was in a vulnerable and weak position in comparison to J.J.O. The almost 10-year age gap is just one of many factors that establish this point.

333J.J.O. was an adult working man. M.M. was an emotionally fragile and struggling young high school girl. She had anxieties, depression and fears. Her beloved mother was dying.

334The only thing these two people had in common was the cheerleading at the C[...] gym. He met her there as one of her coaches when she started there at 14 years of age. It is admitted that at this time he was in a position of authority to her. He was one her supervisors not only at the gym, but for the tournaments out of town.

335After that, although he was not a direct part of her particular cheerleading team staff, he was the tumbling coach for the gym and he did provide assistance to all the other teams at times.

336He asked M.M. by text to come to the gym and help him out with the team he was coaching in October of 2013. He was inviting her to come out and be part of the team he was coaching.

337He also offered to provide M.M. with a private tumbling lesson in April of 2014. I reject his evidence that he did this to deflect M.M. and to appear helpful to her mother. That repeated testimony made no sense.

338M.M. considered him to be one of the main coaches at C[...]. He was 'coach Jono' to her. She did not know him in any other capacity.

339I am satisfied beyond a reasonable doubt that this was a relationship of trust. It was based on a coaching relationship, for which M.M.'s parents paid the gym, with one his primary duties being to ensure the physical safety of the participants. (I have underlined in this judgment many references in the evidence on the issue of safety.)

340There was no switch that turned on and off with respect to the primary relationship between these two people at the gym. This was not a friendship which turned into a dating relationship as submitted by the defence.

341There was no dating at all in this relationship. The extra relationship that developed was all about sex, with a primary emphasis, it seems, on the sexual gratification of the accused.

342The fact that M.M. was not given any gifts, bought any meals, or provided with any benefit at all is not the badge of honour that the defence tried to make it out to be. These facts are just further indicia of the exploitative nature of the relationship. It was all about the sex. It was about the vulnerable young person stroking the ego (and penis) of the adult man. It was for his gain, not hers.

343Section 153 of the Criminal Code places the onus squarely on the person in a position of trust to decline having any sexual contact whatsoever with a young person in the protected 16- to 18-year-old age group.

344It is not a defence that at the time the accused thought the young person was consenting to the sexual activity, or even if the young person was initiating it. In law, they are not capable of consenting.

345It is not a defence that the accused thought that a person could give their consent once they turned 16 years of age. Pursuant to s. 19 of the Criminal Code, ignorance of the law by a person who commits an offence is not an excuse for committing that offence.

346I find as a fact that J.J.O. had an agreement with M.M. to keep this relationship secret. I find as a fact that this was done because he knew that the relationship he was having with her was wrong; not just morally, but potentially legally. He took no steps to make sure that this was not an illegal relationship. Again, it was to his advantage not to know; just like it was to his advantage not to acknowledge any of her vulnerabilities.

347I reject the defence submission that a relevant factor in determining the nature of the relationship is whether or not the young person has contacted the police. There is no law to support such a submission.

348I further reject the defence submission that I should consider M.M.'s behaviour after the alleged sexual assault to assess the nature of the relationship and whether or not M.M. consented to the sexual activity.

349M.M.'s confused response to the so called non-consensual fellatio in the high school parking lot does not leave me in a state of reasonable doubt about the nature of this exploitive relationship. She continued to struggle emotionally. She was not being cared for and kept safe as J.J.O. had promised to do. She also was in no legal position to be giving him her consent.

350Further, the defence submission that M.M. did not tell anyone about the non-consensual fellatio in the car is simply not accurate. M.M. did disclose this incident to her friend A.C. It was A.C. that exposed this relationship. M.M. then disclosed it to her mother and eventually the police.

351I also reject the defence submission that M.M. presented herself as an argumentative and combative person while giving her evidence. M.M. endured an extensive, at times relentless, cross-examination over the span of two days. It was an emotionally exhausting ordeal and I find that she held up very well under these difficult circumstances.

SECTION ELEVEN

An Offence Under s. 152 Has Been Established (Although Not Charged):

352The 'Invitation to Sexual Touching' offence appears in section 152 of the Criminal Code which reads as follows:

Every person who, for a sexual purpose, invites, counsels or incites a person under the age of 16 years 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 person under the age of 16 years,

(a) is guilty of an indictable offence and is liable to imprisonment for a term of not more than 10 years and to a minimum punishment of imprisonment for a term of one year; or

(b) is guilty of an offence punishable on summary conviction and is liable to imprisonment for a term of not more than 18 months and to a minimum punishment of imprisonment for a term of 90 days.

353It was established beyond a reasonable doubt on the agreed testimony of both J.J.O. and M.M. that they began sexting each other and discussing what they would do to each other when they were going to be alone in the fall/pre-Christmas and early January months when she was only 15 years of age. The messaging included explicit Snapchats and Skyping where nude images were shared.

354This conduct is illegal as defined in s. 152 of the Criminal Code.

355At the end of submissions, the Crown could not explain to this Court why this crystal clear offence had not been charged.

SECTION TWELVE

Nature of the C[...] Cheerleading Gym Business:

356The defence testimony offered by C.M. and J.J.O. on this issue was concerning.

357None of the coaches at this gym have any certification or special training. There is no governing body that certifies a person to be a coach in the sport of cheerleading.

358In J.J.O.'s case, as the gym's tumbling coach who was providing semi-private and private tumbling lessons for extra participant fees, he had no employment contract with the gym. He was not paid any employment fees by the gym, although he was compensated for his travel expenses on the out-of-town tournaments.

359Despite being in a position where he was chaperoning young girls on these out-of-town tournaments, J.J.O. had never signed any policy documents with respect to the gym's expectations of him.

360He did not receive any form of training on any matter pertaining to the gym.

361There are no security screening checks of the people who call themselves coaches at this gym.

362It appeared from both the defence witnesses that anyone could call themselves a coach at this gym. Anyone could offer to provide private lessons at the gym.

363As noted in the body of this judgment, the record keeping with respect to lessons at this gym is not complete and accurate.

364It seems to me that the parents who are entrusting their children to such a business should be made aware of all of the above. The sport of cheerleading is not like the sport of hockey, skating or swimming, for example. In the sport of cheerleading, terminology from certified sports has been transplanted into the business with very little behind it.

SECTION THIRTEEN

Decision:

365It should no longer be said that the position of being in a position of trust pursuant to s. 153 of the Criminal Code is elusive. The circumstances in which it applies will vary depending on the facts of the case. In this case, it is someone who, being employed in a business to ensure the safety and instruction of a young person in the protected 16- to 18-year-old age group, uses their employment position to enter into a sexual relationship with the young person. Individuals who call themselves coaches or tutors cannot do this. This is not a difficult thing to understand and every employer and employee of a commercial business must ensure that they understand this.

366J.J.O. is guilty of both counts as he was in a position of trust to M.M. during the time periods in question.

367At the request of the Crown I will register a conditional stay of proceedings on the sexual assault offence based on the Kienapple principle.

Released: May 9, 2016

Signed: "Justice Lesley M. Baldwin"

1This section came into effect on May 1st, 2008. Prior to that a "young person" was defined as a person fourteen years of age or more but under the age of eighteen years.