Court File and Parties

COURT FILE NO.: CR-17-17 DATE: 20190624 ONTARIO SUPERIOR COURT OF JUSTICE

BETWEEN: HER MAJESTY THE QUEEN – and – D.M. Defendant

Counsel: Lyndsay Jeanes, for the Crown Stephen Whitzman for D.M.

HEARD: June 24, 2019

RULING ON directed verdict application

RESTRICTION ON PUBLICATION: Pursuant to s. 486.4(1) of the Criminal Code, no information that could identify the victim or a witness in this case shall be published in any document or broadcast or transmitted in any way.

BOSWELL j.

[1] D.M. faces a three count indictment arising from allegations that he sexually abused a mentally disabled young man who thought they were friends. The three charges are: sexual exploitation of a person with a disability (Cr. C. s. 153.1(1)); sexual exploitation (Cr. C. s. 153(1)); and sexual assault (Cr. C., s. 271).

[2] At the conclusion of the Crown’s case, defence counsel applied to the court for directed verdicts of acquittal on counts one and two – the sexual exploitation charges. For the reasons that follow, the application is dismissed.

The Legal Framework

[3] The test to be applied on an application for a directed verdict is straightforward and well-settled. It was set out by Ritchie J. in the oft-cited decision in United States of America v. Shephard, [1977] 2 S.C.R.1067, at p. 1080. The presiding justice must determine:

…whether or not there is any evidence upon which a reasonable jury properly instructed could return a verdict of guilty. The “justice”, in accordance with this principle, is, in my opinion, required to commit an accused person for trial in any case in which there is admissible evidence which could, if it were believed, result in a conviction.

[4] The “Shephard test”, as refined over the years, was more recently summarized by Strathy, J., now C.J.O., in R. v. Acevedo, [2013] O.J. No. 1345, at para. 5:

…[I]s there any evidence upon which a reasonable jury, properly instructed, could return a verdict of guilty? See R. v. Monteleone, [1987] 2 S.C.R. 154 at para. 8; R. v. Arcuri, 2001 SCC 54, [2001] 2 S.C.R. 828 at para. 21. The motion must be dismissed if there is admissible evidence that could, if it were believed, result in a conviction. In a case like this one, where the evidence relied on by the Crown is entirely circumstantial, the court must engage in a limited weighing of the evidence to determine whether it is reasonably capable of supporting the inferences that the Crown asks the jury to draw: see Arcuri at para. 23, per McLachlin C.J.C. It is not, however, the responsibility of a judge on a motion such as this to choose between competing inferences. Where the evidence is capable of supporting more than one inference, only the inferences that favour the Crown are to be considered: R. v. Sazant, 2004 SCC 77, [2004] 3 S.C.R. 635 at para. 18, per Major J.

[5] Neither party contests this basic formulation of the applicable test.

The Essential Elements

[6] A properly instructed jury could only reasonably return a guilty verdict if satisfied that each and every essential element of the charged offences has been established to the reasonable doubt standard. Accordingly, the court must be satisfied that there is admissible evidence capable of establishing each essential element.

[7] The essential elements of the two counts of sexual exploitation are similar, but not identical.

[8] To establish D.M.’s guilt on the charge of sexual exploitation (Cr. C. s. 153(1)) the Crown must prove the following elements to the reasonable doubt standard:

(i) that W.C. was a “young person” at the time of the alleged offences. In other words that he was over the age of 16, but under the age of 18: (ii) that D.M. touched W.C.; (iii) that the touching was for a sexual purpose; and, (iv) that W.C was in a relationship of dependency with D.M. or that D.M. was either: (a) in a position of trust or authority towards W.C.; or, (b) in a relationship with W.C that was exploitative of W.C.

[9] In the circumstances of this case, in order to establish D.M.’s guilt on the charge of sexual exploitation of a person with a disability (Cr. C. s. 153.1(1)), the Crown must prove, again to the reasonable doubt standard:

(i) that W.C. was a “person with a mental disability” at the time of the alleged offence; (ii) that D.M. counselled or incited W.C. to touch him; (iii) that the touching was for a sexual purpose; (iv) that the touching was without W.C.’s consent; and, (v) that W.C. was in a relationship of dependency with D.M. or that D.M. was in a position of trust or authority towards W.C.

The Parties’ Positions

[10] There is no dispute that the Crown has led at least some evidence capable of establishing most of the essential elements of the two impugned offences. In particular, it is conceded by the defence that evidence sufficient to meet the Shephard test has been tendered on account of the following essential elements:

(i) W.C.’s age and mental disability at the relevant times; (ii) that D.M. incited or counselled W.C. to touch him for a sexual purpose; (iii) that there was touching for a sexual purpose; (iv) that the touching was without W.C.’s consent.

[11] What is in dispute is whether there is evidence, sufficient to meet the Shephard test, on the nature of the relationship between D.M. and W.C. The Crown is not asserting that D.M. stood in a position of authority with respect to W.C. The issue, therefore, is whether the Crown has adduced any evidence upon which a properly instructed jury, acting reasonably, could find that D.M. stood in a position of trust in relation to W.C., or that there was a relationship of dependency between D.M. and W.C., or, in the case of count two, whether W.C. was in a relationship with D.M. that was exploitative of W.C.

[12] The positions of the Crown and defence are obviously at odds. Defence counsel asserts that the evidentiary record lacks the type of evidence that is necessary to establish any one of the requisite relationships. The Crown contends the opposite. Their positions give rise to the following issues:

• What sort of evidence is required to support a relationship of trust?
• What sort of evidence is required to support a relationship of dependency?
• What sort of evidence is required to support an exploitative relationship?
• Has the Crown tendered evidence capable of supporting any or all of the foregoing relationships?

[13] A preliminary argument raised by defence counsel is that the manner in which count two has been drafted compels the Crown to prove, in order to establish the offence of sexual exploitation, both that D.M. was in a relationship of trust with respect to W.C. and that W.C. was in a relationship of dependency with D.M. or that D.M. was in a relationship with W.C. that was exploitative of W.C.

[14] The Crown submits that the law is clear that s. 153(1) disentitles persons engaged in certain types of relationships with a young person from engaging in sexual activity with that young person regardless of whether the young person consents to the activity. The disentitling relationships identified by the section are clearly disjunctive. Count two on the indictment must therefore, in the Crown’s submission, be read in the disjunctive.

Discussion

[15] I will begin by addressing defence counsel’s preliminary submission. It is clear that s. 153(1) of the Criminal Code identifies three specific relationships in which sexual activity is prohibited between a person and a young person. These relationships are disjunctive. Proof of any one will suffice. Proof of more than one is unnecessary.

[16] The wording of the indictment is somewhat cumbersome. But it cannot and does not have the effect of requiring the Crown to prove more than one of the disentitling relationships identified in s. 153(1) of the Code.

[17] The Criminal Code does not define what constitutes a relationship of trust, or a relationship of dependency, or an exploitative relationship. There is, however, case law on each of these types of relationship. I will address each in turn.

Relationships of Trust

[18] As a general observation, I note that it appears to be settled that the disentitling conditions (trust, dependency and exploitative relationships) identified in ss.153(1) and 153.1(1) of the Code must exist independently of the sexual relationship between the accused and the young person or between the accused and the disabled person: see R. v. Galbraith, [1994] O.J. No. 808, at para. 14; and R. v. Anderson, 2009 PECA 4, at para. 53.

[19] Justice Blair appears to have rendered one of the first decisions interpreting the phrase, “relationship of trust” in R. v. P.S., [1993] O.J. No. 704 (Gen. Div.). I can do no better than to repeat his interpretation, from para. 36 of that decision:

One needs to keep in mind that what is in question is not the specialized concept of the law of equity, called a "trust". What is in question is a broader social or societal relationship between two people, an adult and a young person. "Trust", according to the Concise Oxford Dictionary (8th ed.), is simply "a firm belief in the reliability or truth or strength of a person". Where the nature of the relationship between an adult and a young person is such that it creates an opportunity for all of the persuasive and influencing factors which adults hold over children and young persons to come into play, and the child or young person is particularly vulnerable to the sway of these factors, the adult is in a position where those concepts of reliability and truth and strength are put to the test. Taken together, all of these factors combine to create a "position of trust" towards the young person.

[20] Justice Blair’s interpretation appears to have been favourably viewed, if not expressly adopted, by the Supreme Court of Canada in R. v. Audet, [1996] 2 S.C.R. 171, at paras. 33-38. Writing for the majority, LaForest J. accepted that “trust”, as it is used in s. 153(1) of the Code, means “confidence in or reliance on some quality or attribute of a person, or the truth of a statement”. He added that the interpretation of the language of the section must “take into account the purpose and objective pursued by Parliament of protecting the interests of young persons who, due to the nature of their relationships with certain persons, are in a position of vulnerability and weakness in relation to those persons.” (Para. 36).

[21] Justice LaForest did not offer any particular litmus test against which a relationship might be measured to determine if it is one of trust. He held that it is up to the finder of fact, in each case, to determine the characterization of the relationship between the young person and the accused. The determination involves, of course, a contextual analysis. The age difference between the accused and the complainant, the evolution of the relationship and the status of the accused in relation to the complainant may well be relevant considerations. (Audet, para. 38).

[22] In R. v. Poncelet, 2008 BCSC 202, Justice Smith thoroughly canvassed the jurisprudence to date and determined that the definition of a relationship of trust remained vague and difficult to apply following Audet. She preferred to consider whether the factual context of the case established an “inherent power imbalance in the relationship that caused the young person to be in a position of vulnerability and weakness.” (Para. 55).

[23] More recently, in R. v. Aird, 2013 ONCA 447, Laskin J.A. summarized the state of the law as follows.

[24] First, and following Audet, the word “trust” must be interpreted in accordance with its primary meaning. Specifically, “confidence in or reliance on some quality or attribute of a person or thing, or the truth of a statement.” (Para. 29).

[25] Next, the determination of whether a relationship is one of trust is a fact-specific inquiry. The court must consider factors relevant to the obvious purpose of the legislation: to protect a young person who is vulnerable to an adult because of an imbalance in their relationship. (Para. 28). Factors that may be relevant include, but are by no means limited to the following:

(a) The age difference between the accused and the young person; (b) The evolution of their relationship; (c) The status of the accused in relation to the young person; (d) The degree of control, influence or persuasiveness exercised by the accused over the young person; and, (e) The expectations of the parties affected, including the accused, the young person and the young person's parents.

[26] Though Aird was a case dealing with s. 153(1), the analysis with respect to relationships of trust is equally applicable to s. 153.1. The phrase “disabled person” as used in s. 153.1 may readily be substituted for “young person” as used in s. 153.

Relationships of Dependency

[27] The Court of Appeal for Ontario addressed the meaning of “relationship of dependency” in R. v. Galbraith, as above. Finlayson, J.A., for a unanimous court, defined relationships of dependency as follows, at para. 18:

…In my view, what is contemplated by a relationship of dependency is a relationship in which there is a de facto reliance by a young person on a figure who has assumed a position of power, such as trust or authority, over the young person along non-traditional lines. Sexual relations are prohibited in relationships of trust, authority and dependency because the nature of the relationship makes the young person particularly vulnerable to the influence of the other person. Under these circumstances it has been determined that any sexual activity, even where it is consensual, involves taking advantage of a person in need of protection and merits society's condemnation. Because a relationship of dependency is a de facto one which can only be determined after due consideration of all the circumstances, I believe that the jurisprudence will have to develop on a case-by-case basis to retain the flexibility that the phrase "relationship of dependency" was intended to provide.

[28] In other words, the characterization of a relationship as one of dependency, or of trust, is a fact-specific exercise. Again, a wide range of factors may be taken into account to determine if, as a result of the complainant’s reliance on the accused, a power imbalance arose such that the complainant was in a vulnerable position relative to the accused.

Exploitative Relationships

[29] Similarly, the characterization of a relationship as “exploitative” is a matter of fact-finding: See R. v. Robertson, 2015 ONCA 437 at para. 1.

[30] The provisions of the Criminal Code differ somewhat in the assessment of a relationship of exploitation as compared to relationships of trust and/or dependence. Section 153(1.2) provides that the court may infer that an accused is in an exploitative relationship with a young person based on 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; (c) the evolution of the relationship; and (d) the degree of control or influence by the person over the young person.

[31] In Anderson, as above, the P.E.I. Court of Appeal held that an “exploitative relationship” will exist where there is a power imbalance between the accused and the complainant in circumstances other than where there is a relationship of trust, authority or dependency. There must be evidence to support a conclusion that the complainant was, as a result of the power imbalance, vulnerable to the actions of the accused, who took advantage of the complainant for his or her own benefit. (Para. 74).

[32] The reasoning in Anderson has been accepted by the Court of Appeal for Ontario in Robertson, as above.

[33] In summary, characterizing the relationship between D.M. and W.C. is a fact-specific exercise, meaning it is the domain of the jury. On a directed verdict application, it falls to the court to determine if there is any evidence upon which a properly instructed jury could determine that one of the relationships identified in sections 153(1) and 153.1(1) has been established.

[34] Evidence that may support a conclusion that one of the disentitling relationships has been established appears to require, at a minimum, that there was a power imbalance between the accused and the complainant. That feature appears common to each of the identified relationships. Beyond that, evidence of the dynamics of the relationship is obviously determinative. It is important, having regard to the jurisprudence, to carefully consider the entire factual matrix, including, but not limited to factors such as the following:

(a) The ages of W.C. and D.M., both biological and functional; (b) The background to and history of their relationship; (c) The status of W.C. relative to D.M.; (d) The degree of control, influence or persuasiveness D.M. had relative to W.C.; (e) The expectations of the parties affected, including D.M., W.C. and W.C.’s parents; and, (f) Any particular characteristics that made W.C. particularly vulnerable in his relationship with D.M.

[35] I will turn to an examination of the evidence tendered by the Crown.

The Evidentiary Record

[36] W.C. is 21 years old. He was 17 and/or 18 at the time of the alleged offences.

[37] W.C. is intellectually disabled. He tests in the bottom 1% of the general population in language skills, visual-spatial skills, mathematics, fine motor skills and daily living skills. He has difficulty with communication, with identifying the meaning of others’ facial features, and in recognizing situations of danger. For the most part, he functions in the range of a 5 to 10 year old.

[38] D.M. is about two years older than W.C., biologically, but obviously far more mature from a functional and intellectual perspective. He is an adult. W.C., despite his biological age, is a child.

[39] W.C. and D.M. live in the same rural community, perhaps a five minute drive from one another. That said, D.M.’s aunt and uncle live across the street from W.C.’s house. D.M. was a very frequent visitor at his aunt and uncle’s residence. He has interacted with W.C. on many occasions in the result.

[40] Prior to W.C.’s disclosure of the allegations in question, W.C.’s family was quite close to D.M.’s aunt and uncle.

[41] W.C.’s father, S.C., testified that there are few things that W.C. can do on his own. He can get himself ready for school. He can make his own lunch with some direction. And he can do some simple household chores like laundry and dishes. W.C. would certainly not be permitted to go to town on his own. He requires a good deal of supervision.

[42] S.C. also testified that W.C. and D.M. have known each other for 18 years, which would mean 14 years at the time the allegations in this case are said to have occurred.

[43] Insofar as S.C. had observed, W.C. and D.M. were friends. They used to hang out together, on average about 3 to 4 times per month. Usually they would be in the garage working on something mechanical. They also went fishing together on a number of occasions, four wheeling and hunting (D.M. would have the firearm). Occasionally they may have gone into town together to pick up some take away food.

[44] S.C. said he and his wife – W.C.’s mother – trusted D.M. They thought it was good for W.C. to have a friend to hang out with from time to time. They trusted D.M. to act like an adult, to keep W.C. safe and to guide him.

[45] Under cross-examination, S.C. agreed with counsel’s suggestion that D.M. and W.C. were friends, but nothing more than friends. W.C.’s relationship with D.M. was no different than relationships he had with several other young men.

[46] W.C. testified that he used to hang out with D.M. and he liked to do so. They hunted and fished and went four wheeling together and he liked to do those things.

[47] Defence counsel asserted that there is no evidence that D.M. and W.C. had a relationship at all, though obviously there is evidence that they know one another. I reject that assertion. There is ample evidence upon which the jury could conclude that they had a long-term friendship.

[48] There is no question that D.M. was not in a special, recognized position of trust or authority with respect to W.C., as a parent, teacher, coach or pastor may be. But neither s. 153(1) nor s. 153.1(1) requires such a special relationship.

[49] Defence counsel submitted that if a jury could reasonably conclude, on the record as it presently stands, that D.M. had any one of the identified relationships in issue with W.C., then pretty much anyone who had anything to do with W.C. would have such a relationship. Again, I reject that submission. The characterization of their relationship is a fact-specific exercise. No doubt persons with nothing more than a superficial relationship with W.C. would not be characterized as standing in a position of trust, nor would W.C. reasonably be characterized as being dependent upon them. But the evidentiary record discloses that there is much more to the relationship between D.M. and W.C. than superficial contact.

[50] D.M. was one of the people whom W.C.’s parents trusted to interact with W.C. without parental supervision. D.M. must have been well aware of W.C.’s intellectual disability. He would have known that W.C.’s parents were entrusting W.C.’s well-being to him when they spent time alone together, as they did, perhaps on many occasions.

[51] Given W.C.’s intellectual disability, there was clearly a power imbalance in the relationship between D.M. and W.C. W.C. was, without question, a vulnerable person in that relationship. I have no hesitation in finding that society, not just W.C.’s parents, would trust and expect that someone in D.M.’s position would take care to look out for W.C.’s well-being whenever his care was entrusted to D.M.

[52] The purpose of ss. 153(1) and 153.1(1) is to protect young people and/or disabled people from relationships of power imbalance where they are particularly vulnerable. Undoubtedly there was a power imbalance between D.M. and W.C. Undoubtedly W.C. was vulnerable. He was incapable of caring for himself, of making any but the simplest decisions for himself, highly suggestible and had great difficulty identifying situations of danger.

[53] D.M’s lawyer essentially argued that it is not the nature of the relationship that made W.C. vulnerable, but rather it was W.C.’s mental disability. I would agree that his disability made W.C. particularly vulnerable. But that vulnerability did not exist in a vacuum. It may be that W.C. was vulnerable in a wider range of relationships than an average 17 or 18 year old would be. But that is one of the prevailing factors in the context of this case – something the jury is entitled to consider when assessing the nature of D.M.’s relationship with W.C.

[54] D.M.’s counsel also argued that none of W.C.’s vulnerabilities in terms of his relationship with D.M. arose because W.C. was a “young person”. Any vulnerability, again, had to do with W.C.’s intellectual disability. As such, he submitted that the Crown has failed to establish the necessary relationship under s. 153(1) of the Code and, at the very least, a directed verdict of acquittal should be granted on count two.

[55] In my view, however, W.C.’s age and other characteristics cannot be separated. He was a young person with certain, specific characteristics. All were part of the same package. While there may be some overlap between the two sections and the evidence supporting the Crown’s case under each, that overlap – and any result that flows from it – is not an issue for the court to determine on this application.

[56] At issue is the nature of the specific relationship between D.M. and W.C. Was there a power imbalance in that relationship? Was W.C. vulnerable in that relationship? Did W.C. (and his parents) have confidence in and reliance upon D.M. to protect W.C. when they were together, and to watch out for his well-being? Did W.C. rely upon D.M. to protect him when they were together? These are just some of the questions the jury will have to grapple with as they consider the characterization of the relationship in issue. The Crown has adduced evidence that addresses all of these questions. Indeed, evidence has been adduced that addresses all of the factors specifically identified in the jurisprudence I reviewed above.

[57] In my view, there is ample evidence in the record, upon which the jury could, not must, conclude, that, as a factual matter, D.M. stood in a position of trust with respect to W.C., or that W.C. was dependent on D.M., or that the relationship was exploitative.

Conclusion

[58] In the result, the motion for directed verdicts on counts one and two is dismissed.

Boswell J. Released: June 24, 2019