Court File and Parties
COURT FILE NO.: CR-15-3463 DATE: 2017-04-28 ONTARIO SUPERIOR COURT OF JUSTICE
BETWEEN: HER MAJESTY THE QUEEN – and – R.T.
COUNSEL: G. Spartinos, for the Crown P. Esco, for the Accused
HEARD: January 18 and 19, 2017
BEFORE: Pomerance J.
[1] The accused, R.T., had a sexual relationship with the complainant, Z.M. At the time, he was 54 years old and she was 16. He had been in a relationship with the complainant’s mother and had lived with the family for about four years. The sexual activity commenced after he moved out of the house, having split up with Z.M.’s mother.
[2] The complainant offered apparent consent to the sexual activity. She became infatuated with the accused and wished to be his romantic partner. She wanted to live with him and marry him. During this period, the complainant was experiencing some emotional difficulties. Her relationship with her mother was strained, and she had no relationship with her biological father.
[3] The question is whether the complainant’s consent is valid, or whether it is vitiated by the nature of the relationship that existed between the complainant and the accused.
[4] The accused is charged with sexual exploitation under s. 153(1)(a) of the Criminal Code. It is admitted that there was sexual activity with the complainant while she was over 16 and under 18 years of age. In order for the Crown to secure a conviction, it must prove that the accused was in a position of trust or authority towards the complainant, or that he was a person with whom the complainant was in a relationship of dependency.
THE FACTS
[5] The complainant, Z.M., lived with her mother and little sister in Leamington. The accused lived in the house as well for a time, when he was romantically involved with Z.M.’s mother. He lived in the house for about four years. According to Z.M.’s mother, the accused contributed to expenses, helped out with chores and attended family functions. He did not assume a parental role in connection with Z.M., though he did serve in that role for her younger sister. The accused and the complainant did not have very much of a relationship at all when he first moved into the house. They did not talk and did not interact. Things changed when the complainant went to live at a group home for girls.
[6] In May 2014, the complainant went to live in a facility known as the “I[…]”. The complainant and her mother could not get along, and her mother thought that it would be a good idea for the complainant to receive counselling. Z.M. lived at the I[…] from Monday to Friday, and she would travel back to her home in Leamington every weekend. The complainant was at the I[…] from May to late August 2014.
[7] Throughout this period, the accused drove the complainant to and from the I[…], as her mother did not have a vehicle. It was during these car trips, about 45 minutes each way, that the complainant and the accused became friendly.
[8] At first, the drives were awkward because the accused and complainant did not speak very much. Over time, they began discussing various issues, such as music, friends and school. As matters progressed, the discussions turned to the topic of sex. The complainant testified that the subject was brought up by “both of us”. It began with the accused and complainant speaking about what they “liked” and past relationships. The accused asked the complainant if she liked “rough sex” and told her that he thought she “would be into it.” The discussion would be accompanied by little hand touches on the leg, or the accused placing his hand on the complainant’s leg while driving. The accused sometimes provided the complainant with cigarettes and marijuana.
[9] The complainant did not tell her mother about these conversations; she did not think her mother would want to know about them.
[10] Some of the conversations concerned the complainant’s relationship with her mother, and the reason for her going to counselling at the I[…]. The accused encouraged the complainant to try to get along with her mother, telling her, “You’ll get out of there faster.”
[11] The complainant returned home in August 2014. At this time, the accused was still living in the family home. Their relationship had substantially improved by that time. The complainant began spending a lot of time with the accused, going with him to pick up milk and perform other errands. The accused would occasionally touch the complainant on the leg or give her “a peck on the lips” when saying goodbye.
[12] One day, while the complainant was doing laundry in the basement, the accused came into the room, leaned over the complainant, grabbed her waist, moved her hair to one side and started kissing her neck. Unbeknownst to the complainant and the accused, the complainant’s mother was standing at the top of the stairs and saw this happening. She yelled, “freaked out”, and called the police. As a result of this incident, the accused moved out of the family home. He went to live with a friend in Kingsville.
[13] The complainant did not see the accused for a couple of weeks, but she encountered him one day at the park, and they met there a few times. The accused gave the complainant his phone number and suggested that she call him. One day she did so, and they agreed to meet. The complainant told her mother that she was going to a friend’s house. She went to the street that the friend lived on, and the accused picked her up and took her to his place in Kingsville.
[14] They began watching a movie while lying on the accused’s bed. He began kissing the complainant and then engaged her in vaginal sexual intercourse. There was an attempt to have anal intercourse. Afterwards, the accused took the complainant home. During the drive, he told the complainant that she should try to get along with her mother so that he could see her again soon. At the time the complainant had been grounded.
[15] A few weeks later, the complainant again called the accused. He picked her up and took her back to his home in Kingsville. They smoked cigarettes and marijuana and again engaged in vaginal and anal intercourse.
[16] The accused told the complainant that she should not tell anybody about what was happening; he told her that it was in “our best interest”. The complainant agreed.
[17] One last sexual encounter occurred. On that occasion, the accused used a sex toy on the complainant.
[18] The complainant testified that the accused ejaculated on each occasion and that he wore a condom.
[19] While driving the complainant home on the third occasion, the accused told her that they just had to wait until she was 18 years old because at that age she could move out of her mother’s home and move in with him. He told the complainant that he would marry her if he had to. The complainant was excited about this. She wanted to be with the accused. She believed that he really wanted to be with her.
[20] The complainant and accused met at the park a few times after that. Eventually, the complainant’s mother found a note that the accused had written on a package of cigarettes that he left for the complainant. It was with this discovery that the matter came to the attention of the police.
ANALYSIS
1. Introduction
[21] The accused is charged with sexual exploitation contrary to s. 153(1) of the Criminal Code. In R. v. Audet, [1996] 2 S.C.R. 171, La Forest J. outlined the following essential elements of the offence:
- The complainant was a young person within the meaning of s. 153(2);
- The accused engaged in one of the acts referred to in s. 153(1);
- At the time of the acts in question, a. the accused was in a position of trust towards the young person; b. the accused was in a position of authority towards the young person; c. the young person was in a relationship of dependency with the accused; or d. the accused was in a relationship with the young person that was exploitative of the young person; and
- The mens rea required for each of these elements. Audet, at para. 16
[22] The Crown does not need to prove that the accused actually abused or exploited the position or relationship. It is the fact of the relationship that is relevant and which bars sexual activity.
[23] Here, it is acknowledged that the accused engaged in sexual activity with the complainant while she was a young person. The issue to be determined is whether the accused and complainant were in one of the designated relationships that would prohibit sexual contact. Was this a situation of trust, authority, dependency or exploitation?
[24] The accused was not in a position of authority towards the complainant. Although he lived with the complainant’s mother, he did not present as a father figure, did not discipline the complainant, and did not make decisions about her life. The critical elements of authority are notably absent. Similarly, there is no real evidence of dependency. The accused contributed to household expenses and helped around the house, but the complainant was not in any meaningful sense dependent upon him. Finally, there is no evidence to establish that the relationship was, by its very nature, inherently exploitative.
[25] That leaves the question of whether the accused was in a position of trust towards the complainant at the time of the sexual activity. That is the concept at the heart of this case. I will turn to that question now.
2. General Principles
a. Position of trust: the case law
[26] In Audet, La Forest J. interpreted the word “trust” in accordance with its ordinary meaning: “[c]onfidence in or reliance on some quality or attribute of a person or thing, or the truth of a statement.” Audet, at para. 35 An adult occupies a position of trust towards a young person where the nature of their relationship “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”. Audet, at para. 33 [emphasis omitted] citing R. v. S. (P.), 1993 CarswellOnt 6991 (Gen. Div.), at para. 36
[27] As with most issues, this determination is fact-specific and requires a judge to consider all of the facts relevant to the relationship in issue. These include, “[t]he age difference between the accused and the young person, the evolution of their relationship, and above all the status of the accused in relation to the young person”. Audet, at para. 38
[28] Some relationships will result in a presumption of trust. This may occur when there is an inherent “power dependency” and where the relationship exists because of the accused’s status. Audet, at para. 38 For example, teacher-student relationships are presumptive trust relationships. Audet, at paras. 43-45 Conversely, a relationship between a 17-year-old and the common-law spouse of her mother who shares the family home is not a presumptive trust relationship. R. v. R.H.J., at para. 25
[29] The courts have identified various factors relevant to the identification of trust relationships. In R. v. Aird, 2013 ONCA 447, 307 O.A.C. 183, the Ontario Court of Appeal referred to “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.” Aird, at para. 28 [footnotes omitted] In that case, Laskin J.A. affirmed the trial judge’s finding of a trust relationship between a tutor and his student, considering the young person’s naiveté and lack of sexual experience; her and her parents’ trust in and reliance on the accused for his help and guidance; and the tutor-student relationship, which enabled the accused to “use his status and the persuasive and influencing factors he held in their relationship to effectively groom her into a sexual relationship.” Aird, at paras. 36 and 30
[30] In R. v. D.E., [2009] O.J. No. 1909 (S.C), Hill J. found a trust relationship between a young person and her second cousin, based on the nine-year age difference; the confidence and faith that the young person and her mother had in the accused that he would not harm or exploit her; the fact that the mother would not have consented to her daughter becoming involved in a sexual relationship with the accused; the young person’s immaturity; the evolution of the relationship; the fact that the accused was aware that the young person was having difficulty with her parents; he filled the role of “significant male adult figure” in the young person’s life; he provided her rides, cigarettes, and alcohol; he acted as a confidant; and he established his home as an alternative to her mother’s.
[31] In R. v. Beckers, 2012 ONSC 6709, C. W. Hourigan J. relied on similar factors. The accused was 34 years older than the complainant; the complainant was vulnerable and experiencing difficulties at home; the accused exploited those difficulties by denigrating the complainant’s parents; the accused provided the complainant with a place to stay and a place where he could do things he couldn’t do at home (i.e. smoke marijuana and cigarettes); he provided the complainant with gifts and benefits, rides, and cab fare; he provided those benefits in exchange for sexual favours; he considered himself to be a mentor, big brother, father figure, and teacher to the complainant; he sexualized the complainant; and he continued his relationship with the complainant despite the requests of the parents that the relationship end. Beckers, at para. 125 This finding was upheld by the Court of Appeal. R. v. R.B., 2014 ONCA 489, at paras. 8 and 9
[32] In R. v. Frost, 2015 MBQB 96, 318 Man. R. (2d) 67, the court held that the accused was in a position of trust towards the complainant who had been hired as a family helper and caretaker; who did homework, ate meals and slept over at the accused’s house; and who was essentially a part of the family unit. In R. v. Howell, 2012 ONSC 846, a “spiritual healer” was held to be in a position of trust towards the complainant who, along with her family, believed he could help and protect her and who followed his instructions on the belief that to refuse would bring spiritual consequences. A “natural therapy” practitioner was found to be in a position of trust in R. v. B.(N.P.M.), 2007 BCPC 466.
[33] In other cases, circumstances have fallen short of establishing a trust relationship. For example, in R. v. Poncelet, 2008 BCSC 202 the court considered the “working student” relationship between a 15-year-old and a 40-year-old horse trainer that progressed into a sexual relationship. In that case, Smith J. highlighted the importance of considering the complainant’s vulnerability. Poncelet, at para. 43 The question is whether there is sufficient criteria to establish an inherent power imbalance in the relationship that caused the young person to be in a position of vulnerability and weakness. Poncelet, at para. 55 Something more than age difference must exist in order to establish a trust relationship. In that case, the court found that there was insufficient evidence of a trust relationship: the evolution of the emotional bond between the accused and the young person was intricately wound up with their mutual admiration and respect; the complainant was a mature and responsible individual; and there was no indicia of grooming or manipulation. Poncelet, at paras. 60, 7, and 61
[34] In R. v. Wright, 2013 ONSC 3258 the court considered a sexual relationship between a horse rider and trainer who sold a horse to a young person and provided boarding for that horse. The court found that there was no trust relationship: there was no evidence of grooming or of the accused providing benefits or alcohol or drugs to the young person; there was no evidence that the accused exercised any ongoing control over the young person; and the young person was mature, intelligent, independent, sophisticated, and sexually experienced. Wright, at paras. 33-35 The court did not consider the complainant particularly vulnerable. Wright, at para. 35
[35] In R. v. Underwood, 2015 MBQB 66, 316 Man. R. (2d) 299, the court found that the accused was not in a position of trust towards the complainant, whom he had hired to babysit his daughters – there was no inherent power imbalance in their relationship; the complainant was not vulnerable; and there were no indicia of grooming. In R. v. E. (T.I.), 2012 MBQB 239, 283 Man. R. (2d) 200 the court found that the accused was not in a position of trust towards the complainant, despite being considered an authority on First Nations practices in the First Nations community and despite being admired and considered a role model by the complainants, as the nature of the relationship was that of friendship and nothing more. Finally, in R. v. Caskenette, at paras. 27-28 the court found that evidence that the accused was the complainant’s boss at an arcade and was physically bigger than the complainant was insufficient to establish the existence of a trust relationship.
b. Summary of factors
[36] On the basis of the above, the following factors are relevant to the determination of whether the accused is in a position of trust:
- The age difference between the accused and the young person – the higher the age difference, the more likely it is that the relationship is a trust relationship.
- The status of the accused – the more formal the status (teacher, father figure, big brother, mentor, etc.), the more likely it is that the relationship is a trust relationship.
- The degree of control, influence or persuasiveness exercised by the accused over the young person.
- The expectations of the parties affected, including the accused, the young person and the young person’s parents.
- The vulnerability of the young person – i.e. his or her level of intelligence, sophistication, independence, and maturity and relationship with his or her parents.
- Any grooming, pressuring, or incentivising behaviour on the part of the accused – i.e. denigrating the young person’s parents; engaging in sexual discussions and sexualizing the young person; and offering benefits, particularly things the young person cannot get or do at home (drugs, alcohol, etc.)
c. The duration of trust
[37] How long do relationships of trust last? Authority and dependency may be situation specific. A person who has authority as a teacher may lose that authority when the student graduates from the class. A relationship of dependency may end when the adult is no longer providing for the young person. Trust is different. Trust speaks to a subjective bond between the adult and the young person. It attaches to the person, him or herself, rather than his/her position or role. Whereas authority and dependency are defined by external circumstances, trust has an internal component. It represents an emotional attachment; a faith that the adult would not act contrary to the child’s interests. As it was put by Blair J. in R. v. P.S., [1993] O.J. No. 704 (Gen. Div.),
I take a “position of trust” to be somewhat different than a “position of authority”. The latter invokes notions of power and the ability to hold in one’s hands the future or destiny of the person who is the object of the exercise of the authority: see, R. v. Kyle (1991), 68 C.C.C. (3d) 286 (Ont. C.A.). A position of trust may, but need not necessarily, incorporate those characteristics. It is founded on notions of safety and confidence and reliability that the special nature of the relationship will not be breached. P.S., at para. 37
[38] The nature of trust suggests that it may have a certain persistence. Because it attaches to the person, rather than the relationship, it may continue even after the terms of the relationship have changed. This is a determination to be made on a case-by-case basis.
3. Application to this case
[39] I am satisfied that the element of trust is present in this case. There is a significant age difference between the accused and the complainant, a span of close to 38 years. The complainant, at just 16 years of age, had yet to reach a stage of emotional maturity. The relationship began while the accused was living in the complainant’s home as her mother’s partner. The accused did not try to parent the complainant, but he was nonetheless an adult living in her environment for a significant period of time. A friendship of sorts began when the accused began driving the complainant to the I[…] and the two began discussing various issues. However, this was not a friendship of equals. The accused was the adult in the relationship and it fell to him to respect appropriate boundaries.
[40] He failed to do so. Discussions in the car turned to conversations about sexual activity, with provocative statements made by the accused toward the complainant. These conversations have all of the hallmarks of grooming behaviour by the accused. It is open to inference that he spoke of these topics in order to lessen the complainant’s inhibitions and to make her more receptive to his sexual overtures. The complainant testified that both she and the accused initiated conversations about sex. Be that as it may, the accused was a willing and active participant in those discussions. This set the tone for later events.
[41] The complainant was a vulnerable victim. This is a significant factor in this case. The complainant was having difficulties relating to her mother. She was struggling with issues for which she required counselling. She had no relationship with her father and apparently had few, if any, friends at school. She was undoubtedly very lonely. The accused offered respite from her loneliness, as an adult who took an interest in her and offered her validation. As someone living with the family, the accused had to know that the complainant was vulnerable. He had to appreciate that the complainant’s fragility would make her receptive to his overtures. The complainant was not only receptive, she developed intense feelings toward the accused. The accused could have used his influence to have a positive impact on the complainant’s self-esteem and wellbeing. Instead, he exploited the complainant’s vulnerabilities for his own sexual gratification.
[42] The trust that formed during the early car rides persisted. It did not evaporate when the accused moved out of the house. If anything, it became more intense. The clandestine relationship was a secret that the parties shared. The accused counselled the complainant on how to deal with her mother and their difficult relationship. He offered her marijuana and cigarettes, something she could not have at her mother’s home. He offered to take care of her, to have her live with him and went so far as to say that he would marry her. These events must be understood against the backdrop of earlier events and the relationship that they spawned. The consent of the complainant to sexual activity was not a free and voluntary exercise of sexual autonomy. The consent was influenced by and the product of the power dynamic that existed between the complainant and the accused.
[43] To use the words of La Forest J. in Audet, at para. 36, the relationship was “such that it create[d] 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 [was] particularly vulnerable to the sway of these factors”.
[44] I find that at the time of the sexual intercourse, the accused stood in a position of trust in relation to the complainant. It follows that her consent is not, in law, valid.
[45] Counsel for the Crown and defence have agreed that, if the court finds a relationship of trust, both the actus reus and mens rea of the s. 153(1)(a) offence is made out.
[46] In conclusion, for all of these reasons, I find that the Crown has proved the elements of the offence beyond a reasonable doubt. The accused, R.T., is guilty of the offence before the court.