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judge or justice may make an order directing that any information that could identify the victim or a witness shall not be published in any document or broadcast or transmitted in any way, in proceedings in respect of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, 171.1, 172, 172.1, 172.2, 173, 210, 211, 212, 212, 213, 271, 272, 273, 279.01, 279.011, 279.02, 279.03, 280, 281, 286.1, 286.2, 286.3, 346 or 347, or

(ii) any offence under this Act, as it read at any time before the day on which this subparagraph comes into force, if the conduct alleged involves a violation of the complainant's sexual integrity and that conduct would be an offence referred to in subparagraph (i) if it occurred on or after that day; or

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

(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

Date: May 7, 2018

Court File No.: Kitchener Info #17-3215

Between:

Her Majesty the Queen

— and —

A.M.

Before: Justice Scott Latimer

Heard on: April 3 & 4, 2018

Reasons for Judgment released on: May 7, 2018

Counsel:

• Aaron McMaster, counsel for the Crown
• Hal Mattson, counsel for A.M.

LATIMER J.:

I. INTRODUCTION

[1] A.M. is charged with five Criminal Code offences:

1. three counts of sexual exploitation (pursuant to section 153(1)(b))
2. one count of invitation to sexual touching, and
3. one count of unlawful confinement.

[2] The Crown elected to proceed summarily. At the close of the Crown's case, I directed a verdict on the s. 279(2) confinement count and the defence chose to call no evidence on the remaining sexually-based allegations. What follows are my reasons for judgment.

[3] The Crown theory is that the defendant, a full-time employee with the K[…] (commonly referred to as "The A[…]"), abused his status with regard to part-time staff by becoming friendly with them and, eventually, taking advantage of isolated contact to invite these teenage boys to touch themselves and show him their penises. He would provide a reason why it was important for him to see their penis – either he needed to visually inspect it for an appropriate condom size, or he could assist by recommending sexual positions best suited to their penis' shape and size. The Crown argues that, through this conduct, A.M. counselled the complainants to touch themselves directly for a sexual purpose. Further, as it is a necessary element of the sexual exploitation charge, the relationship between the defendant and the young persons constituted a position of trust or authority.

[4] Mr. Mattson, on behalf of the defence, contends that the Crown has not proven the required elements of both the exploitation and invitation to sexual touching offences. The conduct in question does not amount to counselling as the law had defined that term. Nor has it been proven that A.M. counselled any of the young men to touch themselves directly for a sexual purpose. It is submitted that it would be speculative to conclude that the particular words uttered meant that direct touching would be involved. Finally, with regard to the additional exploitation element of "position of trust or authority", Mr. Mattson seizes upon the Crown's acknowledgment that they are not aware of any prior Canadian precedent involving this sort of relationship – a workplace where the accused does not have any managerial oversight over the complainants – as demonstrative of Crown overreaching. It is submitted on behalf of the defence that the Crown has not met its burden of proof. For the reasons that follow, A.M. will be found guilty of invitation to sexual touching, but not guilty of sexual exploitation.

II. THE FACTS

A. The workplace context

[5] The City of Kitchener owns and operates The A[…] for the benefit of the community at large. A number of activities and events occur at the complex, including Ontario Hockey League games involving the Kitchener Rangers. A.M. began working for the city in 2001 as a part-time employee and, after other assignments, came to be a full-time employee working at the A[…]. As of February 2017, his job title was facility attendant, meaning he was in charge of day-to-day operations at the arena.

[6] Jeff Coulter, Supervisor of Operations for the Municipality, testified regarding the employee hierarchy specific to The A[…]. His position sits at the top of the chain. He gives directions to the "lead hand", who works alongside other full-time employees like the defendant. The lead hand was described as having greater responsibility and oversight than other full-time employees. Below the full-time staff, there were part-time employees, such as the four complainants. As facility attendant, A.M. was responsible for flooding the various ice rinks, converting the arena for different events[1], cutting grass in the summer, and directing the part-time staff on an "as needed" basis.

[7] During ice season, the defendant would direct part-time staff regarding a number of their assigned tasks, including which areas in the arena to clean and what rooms needed to be set up because of a pending booking or event. This included the suites located in the upper level of the The A[…], and the dressing rooms connected to the two other sheets of ice that formed part of the complex. These rinks, called the "Twin Pad", were rented out on a regular basis and required constant cleaning, both of the ice surface itself and the dressing and referee rooms. A.M. was responsible for cleaning the ice surface with the Zamboni.

[8] The defendant's role as facility attendant did not mean he had managerial oversight over the part-time employees. He could not hire or fire them. However, he was in many ways their supervisor, and could impact their employment through comments made to the lead hand or the other actual managers in the workplace hierarchy.

B. The specific allegations

i. H.B. (count one on the information)

[9] H.B. started working at The A[…] on a part-time basis when he was fifteen years old. He met A.M. through this employment. He knew that he was a full-time employee who was responsible for, along with other things, driving the Zamboni. On January 31, 2017, H.B. was working an evening shift that began at 4:00 p.m. B.L., another complainant, was also working that evening. After punching in, H.B. was told by the defendant to walk around the arena corridor to see if there was any mess that needed cleaning up. There was also a discussion about what food the employees would have at dinner. They settled on Chinese food.

[10] At a certain point, H.B., the defendant, B.L. and another employee were all present when a call came in that there was a particular mess to be cleaned up. A.M. sent B.L. and the other employee to go clean up the mess, and took H.B. up to the upper corridor level to "check it out". This area of the arena was not open to the public. When they arrived, A.M. began a discussion involving H.B.'s penis. He asked him to get an erection and pull down his pants. He asked to see H.B.'s penis, stating that he could get him free condoms, but needed to know the size of his penis first.

[11] During this conversation, A.M. also told H.B. about a purported event known as "The A[…] Olympics", where part-time staff were required to go out on the catwalk and ejaculate on the seats below. There would also be a competition to see who could ejaculate the farthest. Returning to the discussion regarding H.B.'s penis, the defendant told him that if he could not get an erection out in the corridor, he could go into the bathroom and "get one", and then come back out and display it. H.B. understood the defendant to be "insisting" that he play with himself, or masturbate, in aid of getting an erection. A.M. told H.B. "not to be shy, and that kids show him their penises all the time". H.B. did not believe him and declined to expose his penis. He testified that the only reason he remained with A.M. after this request is because he was the "full-timer on duty that time and I was still the new guy and I was just looking for guidance" on what to do on the shift. At a certain point, the defendant told H.B. that there was other work to do, and sent him off to do his "normal duties".

[12] H.B. had another similar interaction with A.M. later during the same shift. There had been a basketball game that evening, and afterwards the staff were doing normal cleanup when the defendant asked H.B. to come into a storage room for a small break. There was no one else around. This particular area, part of the "Blueline room", is at ice level. It is used for, among other things, storing the basketball hardwood when it is not being used. While sitting together on a stack of flooring, H.B. testified that the defendant again brought up his penis, asking how big it was and telling him not to be "shy". H.B. testified that this made him feel extremely uncomfortable, and made him not want to be alone with A.M. He just wanted to go back to work. This interaction ended the same way as the previous one did, with the defendant advising there was more work to do and that they should get back to their duties.

[13] Later, B.L. approached H.B. and initiated a discussion regarding A.M.'s conduct. H.B. later reported these incidents to management as soon as his boss was available for a meeting.

[14] H.B. testified that the defendant seemed in a cheerful mood during their conversations, and never threatened him in any way. During one of the interactions, A.M. may have said "I'm just joking", but H.B. did not think that it was a joke. He thought, after he declined, that A.M. was trying to "play it off as a joke".

ii. B.L. (count two on the information)

[15] B.L. was hired as a part-time worker at The A[…] in August 2015. He was sixteen years of age. He described the various tasks he was responsible for at work: during games he would carry a radio and clean up certain areas when directed, while on other days he would just do "regular rink work" such as moving nets so that the Zamboni could clean the ice. His understanding of the hierarchy was that the lead hand would delegate tasks to full-time employees, who would then instruct part-timers like himself. Full-time staff would tell him what to do and monitor him during the shift to ensure that he stayed on task. If a lead hand was not working on a given shift, a full-time employee would be in charge.

[16] B.L. met the defendant in the first two months he was working at The A[…]. He testified that he liked working with the defendant, as he was "super nice, very approachable… [and] made work fun". B.L. estimated that they worked together maybe once every two weeks.

[17] As time passed, B.L. noticed a change in the dynamic between him and the defendant. While A.M. continued to act friendly and nice towards him, he also began "being very sexual" with him. He described the defendant asking personal questions like whether he was engaging in sexual activity. This started, B.L. believes, a couple of months after he first met A.M. at work. It became a persistent, regular occurrence whenever B.L. and A.M. worked together.

[18] B.L. testified that the defendant would also ask him "other stuff" as well. The defendant would tell him that he could provide sexual tips to B.L. if he knew what his penis looked like. He would tell B.L. to go into the bathroom and get his penis erect so that he could show it to him. B.L. estimated that these sexualized conversations began in the fall of 2015. They occurred a number of times – perhaps six over ten discrete shifts – always when B.L. and the defendant were alone. B.L. testified that, while sometimes A.M. would make these comments seemingly as a joke, other times he did not seem to be joking. In multiple occasions B.L. felt frightened by the defendant's behaviour.

[19] B.L. testified regarding a particular incident he recalled occurring in November 2015, during a basketball game at The A[…]. Both he and A.M. were in the upper level of the arena, "in the suites", cleaning. B.L. described the layout of the suite section; he could not exactly recall why he and the defendant were up there, but he believed it must have been for cleaning purposes. He described a conversation changing topics from sports to sex, and the defendant becoming "adamant" that B.L. go into a bathroom to watch pornography and then show him his erect penis. He described A.M. telling him that he was too shy, and that he was not going to tell anyone about seeing B.L.'s penis. He offered the wireless password, available to suite-level guests, to assist B.L. in finding pornography on his phone. B.L. described going into a suite bathroom, locking the door, and just waiting a period of time. He then told A.M. that he was not going to show him his penis, and was told that it was fine. Their work shift continued in a normal fashion thereafter. B.L. testified that, "I said leave me alone, stop with that, and he completely backed off, and was back to being normal nice guy that I knew".

[20] In cross-examination, B.L. provided a different narrative regarding the events that allegedly occurred in the suite level. When it was suggested that they were not in an actual suite, because the defendant would not have had a key for those rooms, B.L. said that they were not in an actual suite, just the hallway area on that level. He further clarified that he did not go into a bathroom in an actual suite – because there were not any – but into the washrooms in the suite level corridor. He testified that "we call the whole area the suites", which was why his earlier testimony may have been confused. He also agreed that he never mentioned pornography in his prior statement to the police, and that it was possible to get an erection while watching pornography without touching yourself. He confirmed that the defendant never expressly said the words "go touch yourself".

[21] B.L. described subsequently speaking to other coworkers about the incident in the suites. He was nervous and wanted to know if it only happened to him. The conversation, as I understood it, included H.B., C.R. and B.L.

[22] B.L. was cross-examined about his relationship with the defendant, who it was suggested had a joking manner with regard to sexual matters. He would often sprinkle conversation with the words "boner" or "kills"[2], in a somewhat immature, adolescent manner. Text messages were filed documenting the defendant's usage of this word. B.L. testified that he had no contact with A.M. outside of work, but that they did text occasionally. B.L. believed that the defendant was, at times, "trying to be one of the guys".

iii. C.R. (count three on the information)[3]

[23] C.R. started working at The A[…] in February 2015, when he was in Grade 10 and sixteen years old. C.R. believed that he worked for a time before the defendant came to be there. They originally had a good working relationship; A.M. was nice, easy to work with, and "would help you do your job". He was different in that way from the other full-time staff – he would help mop or clean while the other full-time staff would not. He was also the full-time Zamboni driver.

[24] C.R. understood that full-time employees would receive direction from the bosses, and then pass those orders on to part-time staff. They would also monitor the part-time staff to make sure they were doing their tasks properly.

[25] C.R. and A.M. had a friendship both at and away from work – they would play hockey together, and on one occasion A.M. came over to his house. C.R. testified that the defendant began to initiate sexually-based conversation approximately one month after they started working together. These conversations would be frequent, and largely involve requests to see C.R.'s genitals in exchange for the defendant providing sexual tips. C.R. testified that no one else would be around when the requests were made – "he isolates you". At first C.R. believed that it was a joke, but the frequency and repetition of the requests caused him to change his perspective, as did the fact that no one was ever around when the requests were made. After about a month the requests stopped, following C.R.'s direction to the defendant to no longer ask him such things.

[26] One particular incident stood out to C.R. – he was in Grade 11 and it was hockey season at The A[…]. He was working an evening shift and the defendant told him that the two of them should clean the referee room near the Twin Pad. No other staff were in the immediate area. C.R. entered the room and the defendant followed, locking the door behind him. C.R. felt scared because he was not sure what was going to happen. The defendant sat down on the bench beside him, and requested he "get a boner". C.R. said that he couldn't, that he was not comfortable nor capable of getting an erection near a man, to which the defendant responded that he needed to get out of his comfort zone, and that he should watch pornography if he needed to. They were seated approximately two to three feet away from each other on the bench at the time. C.R. recalls the defendant making repeated requests for him to get an erection, until finally C.R. told him "this is weird, stop", and got up, unlocked the door and left the room. The defendant did not try and stop him, and did not alter or change his tone of voice during the conversation, at times laughing while he asked C.R. to expose his erect penis.

[27] Another incident occurred later that same shift, this time on the stairwell heading up to the suite level. The defendant again asked to see his "boner", stating that if he saw it he could help him with girls and provide sexual tips. C.R. refused and the topic ended.

[28] Before he went to the police, C.R. spoke with other employees about these incidents. He recalled speaking with H.B., B.L., and A.R, among others. He provided specific details to these other young people regarding the incidents he later told the police.

iv. A.R. (count five on the information)

[29] A.R. worked at The A[…] from October 2015 to February 2017. He was seventeen when he started. He immediately struck up a positive working friendship with the defendant. He described him as a great guy who was very helpful during work shifts. They became friends and made plans to hang out outside of work, but that only materialized once, when they went to the gym together.

[30] When he started work at The A[…] in October 2015, A.R. was advised by other staff that the defendant often asked weird questions and would make other employees feel uncomfortable. He testified that he experienced such incidents himself, starting approximately two to four months after he started work. Up until that point A.R. felt he had "a friendship established" with the defendant, and looked forward to working on the same shift as him and "talking about everyday life".

[31] A.R. was asked to provide details about specific incidents he recalled occurring with the defendant. He said he was 80-90% sure that it occurred downstairs, in the Twin Pad, during a conversation they were having about A.R.'s relationship with his girlfriend. The defendant advised A.R. that he could provide him sexual tips, but only if he saw the shape of his penis. The defendant advised that different shaped penises were better for different types of sexual acts.

[32] A.R. was shocked, as he had never been asked such a thing before, certainly not by a co-worker. He thought it was "a little bit funny at first… that [the defendant] had a little weird side to him". A.R. did not agree to expose himself, despite A.M. further stating that he could "help [him] out" if he showed his penis. Rebuffed, the defendant did not seem the least bit angry, and both men continued working their shift.

[33] A.R. believed similar requests occurred "a few other times" over the next three to four months. They were often similarly phrased – "let's go get a boner, let's go show". Only A.R. and the defendant would be around when these requests were made. The defendant continually stated that he could provide sexual tips if he saw the physical shape and curvature of A.R.'s penis. A.R. testified that the defendant was never aggressive during these exchanges, and always made it seem "like he just wanted to help". After having his memory refreshed by the Crown, A.R. advised that he recalled some of these incidents occurring in the change room area between the Twin Pad.

[34] A.R. also testified regarding the employee hierarchy at The A[…]. The lead hand or managers would be in charge, but in their absence the full-time staff would give orders. If no full-time staff were present, he and the other part-time staff understood their jobs well enough to do them without direction. There was more oversight during bigger events, like a Rangers game. Correspondingly, he would receive very little supervision when he was performing more mundane duties, like working in the Twin Pad area.

[35] A.R. testified that these comments did not make him particularly uncomfortable, as he did not view the defendant "just [as] a full-timer, it wasn't like we were just working together, he was also a friend. I would say I saw him more as a friend than a co-worker". In cross-examination, he added that he considered A.M. to be a co-worker, not a boss, but still someone who was "in a position of authority".

III. RELEVANT LEGAL PRINCIPLES

A. The presumption of innocence and the burden of proof

[36] The defendant is presumed innocent. The Crown bears the burden of displacing that presumption with proof beyond a reasonable doubt that he committed a criminal offence. The defendant can only be found guilty if I am satisfied to this exacting standard with regard to all of the essential elements of either sexual exploitation or invitation to sexual touching. In this trial, A.M. has chosen not to testify, as is his right. As Justice Bora Laskin, as he then was, said in R. v. Appleby, [1972] S.C.R. 303, 3 C.C.C (2d) 354, at page 365:

…the presumption of innocence gives an accused the initial benefit of a right of silence and the ultimate benefit (after the Crown's evidence is in and as well any evidence tendered on behalf of the accused) of any reasonable doubt.

[37] Proof beyond a reasonable doubt is inextricably linked with the presumption of innocence that applies in all criminal trials. A reasonable doubt is one based on reason and common sense, and logically derived from the evidence or the absence of evidence: R. v. Lifchus, [1997] 3 S.C.R. 320, 118 C.C.C. (3d) 1, at para. 36; R. v. Sanichar, 2012 ONCA 117, 280 C.C.C. (3d) 500, at para. 46.

[38] The defendant is charged with one count of inviting sexual touching and three counts of sexual exploitation. These offences share many common elements – both involve counselling a young person, for a sexual purpose, to touch either their own body or that of another person. The sexual exploitation offence, as charged, additionally requires the Crown to prove that A.M. was in a position of trust or authority towards the complainants at the time of the alleged conduct.

B. Invitation to sexual touching

[39] Count one on the information requires the Crown to prove that the defendant, for a sexual purpose, counselled H.B., a person under the age of sixteen years, to touch himself. The touching need not actually take place, as the offence crystalizes at the point of communication: see R. v. Legare, 2008 ABCA 138, 236 C.C.C. (3d) 380, at paras. 33, 36.

[40] In Legare, the Alberta Court of Appeal provided a fulsome explanation of the s. 152 offence. The communication requirement is not restricted to mere words - it also includes acts or gestures that are communicative in nature: see Legare at para. 34; R. v. J.P., 2013 ONCA 505 (Lauwers J.A. in chambers), at para. 10. This is consistent with the s. 22 Code definition of counselling, which encompasses words or actions that advise, recommend, solicit, or "active[ly] encourage" another person: see Rex v. Brousseau, 56 S.C.R. 22; R. v. Dionne, 38 C.C.C. (3d) 171 (N.B.C.A.), at 180; see also Mewett and Manning on Criminal Law, Buttersworth, 1995 (3rd ed.), at pp. 303-304.

[41] In paragraphs 41 through 47 of Legare, the Alberta Court discussed the mental element required for the invitation offence to be made out:

For s.152, the Crown must show that the accused knowingly communicated for a sexual purpose with a child under the age of fourteen, and that the accused either intended that the child would receive that communication as being an invitation, incitement or counselling to do the physical conduct s. 152 would avoid, or that the accused knew that there was a substantial and unjustified risk that the child would receive that communication as being an invitation, incitement or counselling to do that physical conduct. The actus reus and mens rea must co-exist, so in that sense the mens rea must be present when the communication occurs.

Nonetheless, the mens rea required must involve knowing communication for a sexual purpose, and either present intent that the child receive the communication as an invitation, incitement or counselling to do that physical conduct, or a present state of mind that the accused knew the substantial and unjustified risk that the child would receive the communication as being an invitation, incitement or counselling to do the physical conduct…

Predators can construct their words to convey the communication as a form of fantasy entertainment, which it may well be for themselves. As to s. 152, the communication by the accused must involve mens rea beyond merely intending 'dirty talk' to a child as suggested by the trial judge. But it may contravene s. 152 if the trier of fact is prepared to infer from the "dirty talk" that the present mens rea of the accused is within s. 152. For example, a trier of fact might find present intent to manoevre the child psychologically towards sexual touching by normalizing, casualizing and making enticing the behaviour by means of the 'dirty talk'.

[42] The communication must also be for a sexual purpose. The Supreme Court of Canada defines a sexual assault to have occurred when "[v]iewed in the light of all the circumstances… the sexual or carnal context of the assault [is] visible to a reasonable observer": see R. v. Chase, [1987] 2 S.C.R. 293, at 302. In R. v. Pellerin, 2011 ONCJ 179, 93 W.C.B. (2d) 894, at para. 22, Justice Nadel applied Chase to the "for a sexual purpose" context, explaining that "one can look to the part of the body that was to be touched, the nature of the contact requested, the situation in which the invitation occurred, including the words used, together with any accompanying gestures and all other circumstances surrounding the conduct". I adopt his reasoning in this respect, and would additionally add that it is not necessary for the Crown to prove that the accused's own sexual gratification was the aim of the conduct: see R. v. B.(G.), 2009 BCCA 88, 244 C.C.C. (3d) 185, at para. 25.

C. Sexual exploitation – position of trust or authority

[43] Counts two, three and five of the information, as particularized, allege that the defendant counselled B.L., C.R. and A.R., for a sexual purpose, to touch their own bodies, and did so while he was in a position of trust or authority with respect to these young men. The distinction between these complainants and H.B. is that they are older – H.B. was fifteen at the time of the allegations, while they were all either sixteen or seventeen years of age.

[44] The sexual exploitation offence criminalizes certain instances of sexual contact, or the counselling of such contact, involving young persons who are sixteen or seventeen years old: see s. 153(2) of the Code. Specifically, this contact is criminal when the adult involved stands in a position of trust or authority towards the young person. [4] The Crown does not have to prove that the adult actually abused or exploited such a relationship, only that one existed at the time of the sexual contact. Justice Fairburn, at the time sitting on the Superior Court of Justice, explained in R. v. M.R., 2015 ONSC 7825, at para. 115, that "[t]he whole purpose of the sexual exploitation offence is to protect young people. The offence ensures that those adults, who stand in a position of authority or trust, do not capitalize on or exploit the vulnerable and weak who are often entrusted to them".

[45] "Trust" and "authority" have been given related but distinct definitions in Canadian jurisprudence. An oft-cited explanation of trust arises from a decision of Justice Blair in R. v. P.S., [1993] O.J. No. 704 (Gen. Div), aff'd [1994] O.J. 3775 (C.A.), at the time sitting on the Ontario Court (General Division). In that judgment, at paragraph 36, Blair J. states:

One needs to keep in mind that what is in question is not the specialized concept of the law of equity, called "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 those factors combined to create a "position of trust" towards the young person.

[46] The above interpretation was subsequently adopted by the Supreme Court of Canada, as were other instances of judicial language regarding what amounts to a position of authority: see R. v. Audet, [1996] 2 S.C.R. 171, at 193. Whether a particular relationship rises to the level of "trust or authority" is always a fact-specific inquiry. Justice LaForest, writing for the majority of the Court, stated the following at page 195:

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. It would be inappropriate to try to set up an exhaustive list of the factors to be considered by the trier of fact. The 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 will, of course, be relevant in many cases. [emphasis added]

[47] Finally, a helpful statement of what amounts to a "position of authority" is found in Final 153-B of the Ontario Specimen Jury Instructions (Criminal):

An individual is in a position of authority towards a young person if that person has or exercises the power or right to enforce obedience by the young person, or the power to influence the conduct and actions of the young person. For there to be a position of authority, there may but does not have to be a formal legal relationship between the young person and adult.

IV. ANALYSIS

A. Invitation to sexual touching – count one (involving H.B.)

[48] I found H.B. to be a sincere, reliable witness whose evidence I have no trouble accepting. While I am aware that he was involved in conversations with some of the other young men prior to providing his statement to the police, I believe I can safely discount any concern about collusion. In this regard I note that defence counsel did not suggest any such tainting to H.B. during cross-examination. Further, the incidents involving H.B. include a distinct stated motivation for A.M. seeing his penis – to size him up for free condoms.

[49] On January 31, 2017, H.B. was working at The A[…] when the defendant led him to the building's upper corridor. He asked to see his penis after H.B. got it erect. He told him to go in the bathroom to do so, while at the same time explaining that other young men had, in the past, ejaculated on the A[…]'s seats by masturbating up on the catwalk. I have no trouble inferring that this entire course of conduct was designed to have H.B. touch his own penis in aid of getting it erect. It properly amounts to counselling. Was it for a sexual purpose? In a word, yes. The defendant encouraged H.B. to touch his own penis – a sexual organ – in order to become aroused. The defendant will be found guilty of invitation to sexual touching.

B. Sexual exploitation – counts two, three and five

[50] At the outset, I am aware that I must consider each relationship between A.M. and the remaining complainants separately. However, it is plain that these relationships contain many of the same features and characteristics. Each complainant was a part-time employee between sixteen and seventeen years old. I infer each was also in school at the time. The defendant was not their boss, he was a full-time employee who had, at minimum, supervisory oversight over them. He could not fire anyone, but he did have the ability to assign tasks and otherwise influence management's view of the part-time employees.

[51] The particular facts of A.M.'s relationship with each complainant are worthy of mention. B.L. described his as friendly, a "super nice, very approachable guy", and someone he enjoyed working "with". A.M. seemed to interact with him on a teenager's level, despite his advanced age. He talked with B.L. about "boners" and "kills" he might have had with girls that he knew. C.R. similarly described the defendant as nice and easy to work with, someone who "would help you do your job". The other full-time employees would not help part-timers mop the lobby or do other menial tasks.

[52] A.R.'s testimony was more explicit regarding the friendship that he had formed with the defendant. He did not view him ""just [as] a full-timer, it wasn't like we were just working together, he was also a friend. I would say I saw him more as a friend than a co-worker". While he acknowledged A.M. was higher up the workplace hierarchy, he predominantly viewed him as a friend.

[53] Whether the defendant was in a position of trust or authority towards any of these three young men is essentially a question of fact. That their relationship does not fit neatly into any particular category (e.g. teacher/student, coach/athlete, manager/employee) is not determinative of the issue before me. It is, however, relevant, and focuses my attention on the fact that the power imbalance between the complainants and A.M. was limited at best. He was not their manager. He could not hire or fire them. His influence was limited to directing them, at times, regarding what areas of the arena to clean. Often, he participated in cleaning alongside. I have not been provided with a precedent that is factually similar.[5] In all the circumstances, having considered the age difference between the defendant and the complainants, the specific nature of their relationships, and the limited influence he held in their particular employment context, I am not satisfied beyond a reasonable doubt that he stood in a position of trust or authority as the criminal law defines those terms. In the absence of this essential element, the defendant is entitled to an acquittal on the sexual exploitation counts on the information.

[54] For the sake of completeness, however, I can advise that I was otherwise satisfied that the remaining elements were made out with respect to C.R. and A.R. They were reliable witnesses whose evidence was largely left undisturbed. I am satisfied that they both describe the defendant counselling them to touch their own penises for a sexual purpose. But for my doubt with regard to whether he stood in a position of trust or authority towards them, I would have found him guilty of these offences as well.

[55] A different result would have followed in relation to B.L. Through cross-examination, inconsistencies and concerns were raised with regard to the particular circumstances of what occurred, or did not occur, in the suite level of the arena. In the circumstances I was not satisfied to the criminal standard that the other elements of the exploitation offence had been made out with respect to count two.

V. DISPOSITION

[56] A.M. is found guilty of count one, invitation to sexual touching. He is found not guilty of the remaining counts on the information.

Released: May 7, 2018

Signed: Justice Scott Latimer

Footnotes

[1] For example, the Kitchener Titans, members of the National Basketball League of Canada, also play at The A[…]. It is therefore often necessary to convert the arena flooring from ice to hardwood, or the other way around, between basketball and hockey games. This process would be completed in the late evening or early morning after a particular event had completed.

[2] "Kills" was described as common teen slang to indicate sexual activity with someone of the opposite sex. "Boner" is likely self-explanatory.

[3] C.R. was also the complainant on count four, the unlawful confinement count that did not survive the directed verdict motion.

[4] Or in a relationship of dependency or one that is exploitative: see section 153(1) of the Code. These definitions are not applicable to the present case, given the Crown's particularization on the information.

[5] In my own research, the closest parallel I could find was R. v. Caskenette, 80 C.C.C. (3d) 439 (B.C.C.A.), where a senior arcade employee was found guilty at trial of sexual contact with younger employees. His convictions were overturned on appeal and acquittals were entered.