Court File and Parties

Court File Nos.: CR-21-50000561 and CR-21-50000701 Date: 2024-01-26 Ontario Superior Court of Justice

Between: His Majesty The King And: Ganon Nathan, Applicant

Counsel: Patrick Travers, for the Crown Michael P. Bury and Nick Whitfield, for the Defendant

Heard: January 4, 5, 2024

Ruling on Directed Verdict Application

Before: Presser J.

Ruling on Directed Verdict Application

[1] This is a decision on a defence application for directed verdicts.

[2] The Applicant, Ganon Nathan, is being tried before me sitting as judge alone. He faces two counts in an indictment: one count of sexual assault contrary to s. 271 of the Criminal Code, and one count of sexual exploitation contrary to s. 153(1) of the Criminal Code. The charges arise from allegations that the Applicant sexually abused a drug-addicted 16-year-old girl who was working in the sex trade and living in a youth shelter, in the context of a relationship where together they used drugs which were most often provided by him.

[3] At the close of the prosecution case, Mr. Nathan applied to the court for directed verdicts of acquittal in relation to both counts in the indictment. For the following reasons, the application is dismissed.

I. THE LAW APPLICABLE TO DIRECTED VERDICT APPLICATIONS

[4] The law governing directed verdict applications is well-established and is not controversial here. The test is whether there is any evidence, which if believed by a trier of fact, properly instructed, could reasonably result in a finding of guilt beyond a reasonable doubt: United States of America v. Shephard, [1977] 2 S.C.R 1067, at p. 1080. If there is, the directed verdict application must be dismissed.

[5] In assessing whether there is some admissible evidence on every essential element of the offences charged, the court must take the Crown’s case at its highest and not weigh the credibility or reliability of witnesses: R. v. Wilson, 2016 ONCA 235, at para. 23. The court may also engage in a limited weighing of the evidence to determine whether it is reasonably capable of supporting the inferences the Crown asks the trier of fact to draw: R. v. Arcuri, 2001 SCC 54, [2001] 2 S.C.R. 828, at para. 23. But the court may not “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. Acevedo, 2013 ONSC 1737, at para. 5, citing R. v. Sazant, 2004 SCC 77, [2004] 3 S.C.R. 635, at para. 18.

[6] The judge considering a directed verdict application must not consider whether they would conclude that the accused is guilty. The only question for determination at the directed verdict stage is whether there is evidence which, if believed, could reasonably support a finding of guilt: Wilson, at para. 23.

II. THE ESSENTIAL ELEMENTS OF THE OFFENCES CHARGED

[7] In considering this application, I must consider whether there is evidence on each essential element of each of the offences charged - sexual assault and sexual exploitation - that could reasonably result in conviction. The task was aptly described by Boswell J. in R. v. D.M., 2019 ONSC 3911, at para. 6 thus:

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.

[8] Accordingly, I begin by setting out the essential elements of the two offences charged.

(1) The Elements of Sexual Assault

[9] To establish the Applicant’s guilt on the charge of sexual assault (s. 271 of the Criminal Code), the Crown must prove the following elements beyond a reasonable doubt:

(i) the actus reus of sexual touching without the subjective consent of the complainant: R. v. Ewanchuk, [1999] 1 S.C.R. 330, at para. 23; and

(ii) the mens rea of the intention to touch, knowing of, or being reckless or wilfully blind to a lack of consent: Ewanchuk, at para. 23.

[10] Where the complainant consented or apparently consented to the sexual contact at issue, the trier must then consider whether the consent is vitiated under the terms of s. 265(3) or s. 273.1(2) of the Criminal Code: R. v. G.F., 2021 SCC 20, 459 D.L.R. (4th) 375, at paras. 33-36. The complainant’s possible agreement to sexual contact “does not equate to consent in law” especially where the evidence supports engagement of s. 273.1(2)(c): R. v. Snelgrove, 2018 NLCA 59, 366 C.C.C. (3d) 164, at para. 49 per Welsh J.A., aff’d 2019 SCC 16, [2019] 2 S.C.R. 98. Vitiation of consent is a question of whether the complainant’s subjective consent is effective as a matter of law: G. F., at para. 44. The parts of the provisions governing vitiation of consent that are relevant to this application read as follows:

s. 265(3) Consent – . . . no consent is obtained where the complainant submits or does not resist by reason of

(d) the exercise of authority

s. 273.1(2) No consent obtained – . . . no consent is obtained if

(c) the accused induces the complainant to engage in the activity by abusing a position of trust, power or authority

[11] Where the Crown seeks to prove that the actus reus of sexual assault (i.e. a non-consensual sexual touching) has been established because the complainant’s consent was vitiated, it must prove the factual underpinnings of the statutory preconditions to vitiated consent: R. v. A.H. (2000), 148 C.C.C. (3d) 86 (Ont. C.A.), at para. 12.

[12] If it is relying on s. 265(3)(d) of the Criminal Code, the Crown must prove that the complainant’s consent was vitiated because:

(i) the defendant was in a position of authority in relation to the complainant: R. v. Geddes, 2015 ONCA 292, 322 C.C.C. (3d) 414, at para. 36; and

(ii) the defendant secured the complainant’s apparent consent by exercising that coercive authority over the complainant: Geddes, at para. 36.

[13] If the Crown is relying on s. 273.1(2)(c) of the Code, it must prove that the complainant’s consent was vitiated because:

(i) the defendant was in a position of trust, power or authority with respect to the complainant: A.H., at para. 12; and

(ii) the defendant abused their position of trust, power or authority to induce consent: R. v. Lutoslawski, 2010 ONCA 207, at para. 12, aff’d 2010 SCC 49, [2010] 3 S.C.R. 60.

[14] Consent will not be vitiated simply because the defendant is in such a position in relation to the complainant: R. v. Snelgrove, (N.L.C.A.), at para. 88; R. v. D. (C.) (2000), 132 O.A.C. 331, at para. 80.

(2) The Elements of Sexual Exploitation

[15] To establish the Applicant’s guilt on the charge of sexual exploitation (s. 153(1) of the Criminal Code), the Crown must prove the following elements beyond a reasonable doubt:

(i) that at the time of the alleged offences, the complainant was a young person within the meaning of s. 153(2): R. v. Audet, [1996] 2 S.C.R. 171, at para. 16. At the time of the alleged offences at issue, s. 153(2) defined a young person as someone who was 16 or 17 years of age: D.M., at para. 8;

(ii) that the defendant engaged in one of the activities referred to in s. 153(1)(a) or (b), namely sexual touching of a young person (s.153(1)(a)), or inviting, counselling or inciting sexual touching of or by a young person (s. 153(1)(b)): Audet, at para. 16;

(iii) that at the time the acts in question were committed, the defendant was in a position of trust or authority toward the young person or the young person was in a position of dependency on the defendant: Audet, at para. 16; or the defendant was in a relationship with the young person that was exploitative of the young person: D.M., at para. 8; and

(iv) the mens rea requirement that the touching or inviting, counselling, or inciting of touching was for a sexual purpose: D.M., at para. 8.

[16] The Crown is not required to prove an absence of consent: ss. 150.1(1) and 153(1) of the Criminal Code; Audet, at para. 16. In other words, consent is no defence to the offence of sexual exploitation: R. v. C.K.K., 2020 ABCA 145, 386 C.C.C. (3d) 391, at para. 20.

III. THE POSITIONS OF THE PARTIES

[17] The Applicant acknowledges that the Crown has led some evidence capable of establishing a number of the essential elements of both offences at issue. These are:

(i) that there was sexual touching for a sexual purpose, by him of the complainant;

(ii) that the sexual touching was intentional; and

(iii) that at the time of the alleged offences, the complainant was 16 and 17 years old. As such, she was a young person within the meaning of s. 153(2) of the Code.

[18] The Applicant submits that there is no evidence capable of establishing the following essential elements of sexual assault:

(i) that the complainant did not consent to the sexual activity; and

(ii) that the complainant’s consent was vitiated because of the nature of the relationship between the Applicant and the complainant. In particular, the Applicant argues that there is no evidence capable of establishing that the defendant was in a position of trust, power, or authority in relation to her; or that he secured her apparent consent by exercising that coercive authority over her.

[19] The Applicant also submits that there is no evidence capable of establishing the following essential element of sexual exploitation:

(i) that he was in a position of trust or authority toward the complainant, or that the complainant was in a position of dependency on him, or that the complainant was in a relationship with him that was exploitative of her.

[20] Given the absence of evidence in relation to these essential elements, in the Applicant’s submission, no properly instructed trier of fact acting reasonably could convict of either offence charged. The Applicant accordingly asks the court to direct verdicts of acquittal on both charges.

[21] In its response to this directed verdict application, the Crown has particularized the prosecution’s theory of liability.

[22] With respect to the offence of sexual assault, the Crown is not asserting that the Applicant was in a position of authority or trust with the complainant. Rather, the Crown position is that that the complainant’s consent was vitiated because the Applicant was in a position of power, which he abused, within the meaning of s. 273.1(2)(c). On this application, Crown counsel submits that there is at least some evidence that the Applicant was in a position of power vis-à-vis the complainant, which he abused. Accordingly, in the Crown submission, there is at least some evidence upon which a properly instructed trier of fact could reasonably find that the complainant’s consent was vitiated, that the sexual activity was not consensual, and could reasonably convict. The Crown asks the court to dismiss the application for a directed verdict on the offence of sexual assault.

[23] With respect to the offence of sexual exploitation, the Crown is not asserting that the Applicant was in a position of trust or authority with the complainant, nor that the complainant was in a position of dependency on the Applicant. Rather, the Crown position is that the Applicant was in a relationship that was exploitative of the complainant, within the meaning of s. 153(1) of the Criminal Code. Crown counsel submits that there is at least some evidence of this exploitative relationship, on the basis of which a properly instructed trier of fact could reasonably find that the Applicant was in one of the relationships that statutorily disentitled him to have sexual contact with the complainant, and could reasonably convict. The Crown asks the court to dismiss the application for a directed verdict on the offence of sexual exploitation.

[24] The issues for my determination then are whether the Crown has adduced any evidence upon which a properly instructed trier of fact, acting reasonably, could find:

(i) with respect to the offence of sexual assault: that the Applicant was in a position of power in relation to the complainant, which he abused, such that her apparent consent was vitiated;

(ii) with respect to the offence of sexual exploitation: that the Applicant was in an exploitative relationship with the complainant.

IV. SEXUAL ASSAULT CHARGE:

IS THERE SOME EVIDENCE THAT CONSENT WAS VITIATED BECAUSE THE APPLICANT WAS IN A POSITION OF POWER IN RELATION TO THE COMPLAINANT, WHICH HE ABUSED?

[25] As noted, there is no dispute that the Crown has led at least some evidence capable of establishing that there was sexual touching and that it was intentional. The dispute surrounds whether there is evidence capable of establishing that that sexual contact was not consensual.

[26] The complainant testified that she believed she was consenting to sexual contact at the time it occurred. She qualified this by saying that, in retrospect, she did not believe she had actually truly consented for a number of reasons, as I will discuss further below. But on this application, the Crown does not take the position that the complainant did not consent at the time of the incidents at issue. Instead, the Crown argues that there is evidence capable of establishing that the complainant’s apparent consent was vitiated because the Applicant was in a position of power in relation to the complainant, which he abused. The defence argues that there is no such evidence.

(1) The Caselaw Interpreting Whether Consent is Vitiated by Abuse of a Position of Power

[27] There is no statutory definition of the phrase “position of power” within s. 273.1(2)(c), and little direct jurisprudential consideration of its meaning: A.H., at para. 16.

[28] Courts considering the relationships set out in s. 273.1(2)(c) more broadly have held that the purpose of the section is to protect “the vulnerable and the weak and . . . [to preserve] the right to freely choose to consent to sexual activity”: A.H., at para. 17.

[29] In interpreting the meaning of positions of trust, power or authority, the Court of Appeal held that s. 273.1(2)(c) is broader than s. 265(3)(d), in that it doesn’t just speak to the abuse of a position of authority. Rather, in Lutoslawski at paras. 12-13, the Court of Appeal held that s. 273.1(2)(c):

. . . addressed the kinds of relationships in which an apparent consent to sexual activity is rendered illusory by the dynamics of the relationship between the accused and the complainant, and by the misuse of the influence vested in the accused by virtue of that relationship. The term “exercise of authority” in s. 265(3)(d) suggests a coercive use of authority to overcome resistance to a consent. Inducing consent by abusing the relationships set out in s. 273.1(2)(c) does not imply the same kind of coercion. An individual who is in a position of trust over another may use the personal feelings and confidence engendered by that relationship to secure an apparent consent to sexual activity.

The distinction between s. 273.1(2)(c) and s. 265(3)(d) was also addressed in R. v. Makayak, 2004 NUCJ 5 at para. 70:

Section 273.1(2)(c) broadened the scope of criminal conduct to include breach of trust and power. However, the section also added the words “induces the complainant . . . by abusing a position of trust, power, or authority.” Does this mean there has to be some form of coercion? In my view these words remove the need for coercion that may be present for section 265(3)(d). It is clear . . . that it is the exploitation of the imbalance that is the key consideration. Section 273.1(2)(c) was passed a number of years after the courts had struggled with section 265(3)(d). Parliament had the opportunity to consider the case law that had developed up to that point. The use of the word “induces” introduces a more subtle form of pressure that can be inferred from the circumstances of the exercise of the power or authority.

[30] When contrasted with positions of authority and trust, “position of power” is probably a broader term describing relationships that are less formalized or structured: A.H., at para. 16.

[31] In A.H., at para. 17, the Court of Appeal held that a drug supplier could be in one of the relationships set out in s. 273.1(2)(c) with an addict. The Court recognized that the supplier/addict relationship is not one of power imbalance per se, and is not one of the prototypic relationships of authority or trust like the doctor/patient or teacher/student relationship, where vulnerability is inherent in the relationship itself. Accordingly, for a drug supplier to be in a position of power vis-à-vis a drug addict such that consent could be vitiated, the trier of fact “must be satisfied that because the [defendant] was a supplier of illicit drugs to the complainant, that this relationship created a relationship of dependency that could be exploited by the [defendant] to vitiate the complainant’s consent to engage in sexual activity”: A.H., at para. 17. There are objective and subjective components that would have to be established in order for there to be a finding that a drug supplier was in a position of power that they used to induce an addict to consent. The objective component is “that the relationship was that of supplier and drug user”: A.H., at para. 17. The subjective component is that the complainant drug user was dependent on the defendant “as her supplier such that she could not give independent consent to his sexual advances”: A.H., at para. 17.

(2) Evidence

[32] As noted, the complainant testified that she believed she was consenting to sexual contact at the time but that, in retrospect, she did not believe she had genuinely consented. She said she did not think she actually had a choice at the time. She explained at trial that she did not think she was in a position to truly consent because of the drugs she was using; because she felt pressured to engage in sexual activity with the Applicant; because she felt guilty after the Applicant asked her for sex so many times; because he was buying her drugs and she felt she had to reciprocate in some way; because she felt she had to say yes. The complainant said she consented to sex with the Applicant because she did not understand the contours of a healthy relationship at the time.

[33] The evidence established that the complainant was 16 and 17 years old at the time of the alleged offences. The Applicant knew her age. He celebrated her 17th birthday with her. The Applicant was 35 years old. The complainant knew the Applicant’s age.

[34] The complainant had moved out of her family home because it was unsafe for her. She lived in a youth shelter. She was the youngest resident of the shelter.

[35] At the time of these incidents, Ontario Works was paying for the complainant’s shelter directly. She also received $330 per month from Ontario Works and $25 per week from her mother. The complainant had had a job at South Street Burger part-time for two months at the end of 2016 and early 2017. She had had a part-time job at Eggsmart for a short time at the end of 2017. She was not working during the period covered by the indictment.

[36] The complainant testified that she became addicted to street drugs while living at the shelter. She tried cocaine first, and then crack. She developed a daily or almost daily drug habit, sometimes using multiple times a day. She also had an alcohol problem. She explained that in the early days of her drug use at the shelter, she used her Ontario Works money to buy drugs. Or she and other residents of the shelter would pool money to buy drugs. Or people would give her drugs. The complainant said she didn’t have much money at the time, not enough to buy much in the way of drugs. She was only able to buy some.

[37] The complainant testified that she was in school at the end of 2016 and possibly into the beginning of 2017. She made her own way to school independently using public transit. She did not have a car. She was not in school during the period covered by this indictment. The complainant testified that the nature of her life at that time made it impossible for her to go to school.

[38] The complainant testified that the Applicant told her that he was a doctor. She had a medical condition, and he knew what it was. They discussed it. The complainant believed he was a doctor and said this was a trust-building piece for her with the Applicant. The Applicant did not offer her medical treatment, advice, or prescriptions for pharmaceutical drugs to treat her medical conditions.

[39] The complainant said that the Applicant did not tell her anything about where he worked but to her knowledge, he had an income. She saw him spending and using money.

[40] The complainant and the Applicant met for the first time, briefly, outside the youth shelter. She again met the Applicant when she was brought into the sex trade by another resident of the youth shelter, a woman who was eight years older than the complainant and who had experience in the sex trade. This woman was the Applicant’s girlfriend. The complainant spent time with the Applicant in the hotel where she was engaging in sex work. He did not attend at the hotel to purchase sexual services. He attended there because his girlfriend was working there.

[41] The Applicant and the complainant did drugs together at the hotel. Later the same day, he sent her a text message, saying that if she wanted to leave the sex work situation she was in, he would come back to get her and take her somewhere else. The complainant was not getting to keep any of the money she earned working in the sex trade. The Applicant said she should be making $1000 a day doing that work. He offered to get her a hotel room and said he would not take any of the money. The complainant did not take the Applicant up on this offer.

[42] A short time later, the complainant was admitted into the Hospital for Sick Children for three to four weeks. When she was released from hospital and returned to the shelter, she messaged the Applicant. She wanted to buy drugs and none of her regular dealers were responding. She testified that she messaged the Applicant because she thought he would have a drug dealer. He replied to her and said he could help. He picked her up at the back of the shelter in his car. They went to buy drugs at a dealer the Applicant knew. The complainant and the Applicant then did drugs together in the Applicant’s car.

[43] After that, according to the complainant, she saw the Applicant multiple times a week. She said there were times when she didn’t respond to his messages and they didn’t see each other, usually when she was trying to abstain from using drugs. She said she would ignore the Applicant’s messages when she was trying to quit, or she would tell him why she didn’t want to see him. But the Applicant would get frustrated with her non-responsiveness and she would ultimately respond to him because she felt guilty. For much of the period covered by the indictment, the complainant and the Applicant were together two to several times a week.

[44] Meetings between the Applicant and the complainant were arranged when one of them messaged the other, either by text or by SnapChat. The Applicant would drive one or the other of two cars to pick her up at the shelter, and then drive to get drugs. The first few times they were together, according to the complainant, she and the Applicant just hung out in his car and did drugs. At that point, the complainant said she thought of the Applicant as a friend who helped her get drugs. She testified that she was getting together with the Applicant because he got her drugs.

[45] According to the complainant, a lot of the time the Applicant would buy her drugs. Sometimes she would buy the drugs for the two of them using her Ontario Works money. Sometimes the Applicant had drugs beforehand, but usually they would go together to buy drugs from a dealer. The complainant said she was not solely dependent on the Applicant for drugs, but that she very often was dependent on him to get drugs. She agreed that she had some other sources of drugs, but she maintained that she didn’t have much money and that she didn’t always have access to the other drug sources.

[46] The complainant did not live with the Applicant or depend on him for her day-to-day needs, other than for getting drugs when he could assist her to do that. The Applicant did give the complainant money for cigarettes and drugs, and bought her other things as well.

[47] The complainant said that over time, her relationship with the Applicant changed. The complainant enjoyed talking with the Applicant. She found him mature. She thought he cared about her. They had a legitimate friendship. While the complainant never considered the Applicant to be her boyfriend, she did develop some feelings for him, cared for him, and liked him being a part of her life.

[48] The Applicant started propositioning the complainant. He frequently asked her to have sex with him or do other sexual favours. For example, the Applicant would ask if he could put his hands on her breasts in the car, or other similar “smaller” sexual acts. Sometimes she agreed to let him engage in the sexual acts proposed, sometimes she said no. She let him touch her breasts or her “butt” on multiple occasions. Sometimes the Applicant would offer to pay her to have sex with him or perform other sexual acts like oral sex. She did not take money for sex with the Applicant.

[49] The first time the complainant and the Applicant had vaginal intercourse, she had just been through an incident that was very scary for her. She was very shaken up by it. It took place between the complainant and a male drug dealer. The Applicant was present with the complainant before this incident, and had been sitting in his car waiting while it took place. After the incident, the Applicant stayed with the complainant and she felt he comforted her. He took her back to a motel. She talked about the incident and cried. Then the Applicant and the complainant had sexual intercourse. The complainant said she thought she was consenting to sex at the time. In retrospect, the complainant said that she could not have consented because she was not in a headspace to do so, given the traumatic incident she had just been through.

[50] After this, the complainant said that she and the Applicant had more of a sexual relationship. She said this was because she felt that he had protected her during the scary incident and cared about her. At the time of trial, the complainant said she could not describe why she had felt that the Applicant protected her. She said the Applicant did not get out of his car or do anything to help her during the incident.

[51] The complainant explained that she did not really want to have sexual contact with the Applicant after the incident. But she said that, in some situations, she felt like she either owed it to him or she felt guilty because he was buying all the drugs and she wasn’t doing anything in return. The complainant explained that she consented to sexual activity because the Applicant made her feel guilty for the things he was doing for her – paying for drugs and driving her places - because she was not reciprocating. The complainant agreed that, at the time, she thought she was manipulating the Applicant to get drugs. With the benefit of hindsight, the complainant said she did not manipulate the Applicant. Rather, he manipulated and influenced her. She was young and he made her feel guilty for buying her drugs when she was not able to reciprocate. The complainant said that the Applicant put her in positions where she was harmed. She said that the Applicant took advantage of her and that he had power over her: he had a career and money, was older, and had a car and supportive connections in his life, like his family. She did not have these things.

[52] Toward the end of their relationship, the complainant texted to ask the Applicant if he would help her and a friend to get a hotel and work in the sex trade. She offered to give him a cut of their earnings. The Applicant declined.

(3) Analysis

[53] In my view there is at least some evidence from which a properly instructed trier of fact could reasonably conclude that the complainant’s apparent consent was vitiated within the meaning of s. 273.1(2)(c). There was at least some evidence from which a trier could find that the Applicant was in a position of power vis-à-vis the complainant, which he abused to induce consent.

[54] The complainant was very young at the time, 16 and 17 years old. The Applicant was a full adult at 35 years of age. He was 18 to 19 years older than she was.

[55] The complainant was vulnerable. She came from a home that was not a safe place for her. She lived in a youth shelter where she was the youngest resident. She was a drug addict. She worked in the sex trade in circumstances that were exploitative of her. She was not in school and was not employed. She did not have a car and relied on public transit. She depended on social assistance, which left her without much money at her disposal. She had a medical condition.

[56] By contrast, the Applicant lived at home with his family. The complainant believed he was a doctor and that he had disposable income. He had money to spend, and he spent it. He had regular access to and use of two cars. He appeared to the complainant to be mature. He took an interest in her and appeared to care about her.

[57] The Applicant bought drugs for the complainant, which they used together. The complainant was not solely dependent on the Applicant for drugs, but her evidence was that very often she was dependent on him for drugs. This was because she did not have access to a lot of money, which meant there were times she could not afford to buy drugs. At those times, she relied on the Applicant to supply her with the drugs she needed to feed her addiction.

[58] The complainant’s evidence was that she was influenced and manipulated into having sexual contact with the Applicant. She said he persisted in propositioning her, and that she felt she had to relent and have sex with him because he pressured her and made her feel guilty. The Applicant was paying for drugs for her and driving her around, and she could not respond in kind. The complainant said the Applicant made her feel that she had to do something for him to repay him for all he was doing for her. Agreeing to have sex with the Applicant was what the complainant could do to repay him.

[59] This evidence could lead to a conclusion that there was a power imbalance between the complainant and the Applicant, which he misused to induce the complainant to engage in sexual activity with him.

[60] This is some evidence of a relationship “in which an apparent consent to sexual activity is rendered illusory by the dynamics of the relationship between the accused and the complainant, and by the misuse of the influence vested in the accused by virtue of that relationship”: Lutoslawski (Ont. C.A.), at para. 12. It is some evidence from which a reasonable trier could infer that the Applicant induced the complainant to consent through a “more subtle form of pressure that can be inferred from the circumstances of the exercise of the power”: Makayak, at para. 70, cited in Lutoslawski, (Ont. C.A.), at para. 13.

[61] Applying the framework set out at para. 17 of A.H., there was at least some evidence that the relationship between the Applicant and the complainant was that of drug supplier and drug user. There was also at least some evidence that the complainant was dependent on the Applicant as her supplier such that she could not give independent consent to his sexual advances. The Applicant was not the complainant’s only source of drugs at all times, but the evidence allows for a conclusion that he was the complainant’s only source of drugs much of the time. In my view, this is some evidence from which properly instructed trier of fact could reasonably conclude that the complainant was, at least at some times, dependent on the Applicant as her drug supplier such that she could not give independent consent to his sexual advances. A trier could reasonably conclude that the Applicant took advantage of the complainant’s dependence on him to feed her drug habit to induce her to have sex with him.

[62] The defence argues that the Applicant was not in a position of power over the complainant and that he did not abuse a position of power to induce her to have sex with him. The defence position is that the Applicant was also vulnerable. That he was not a doctor but had been to medical school and then failed to qualify as a doctor. That he was unemployed and did not have much money at his disposal. That his car was old and dilapidated, and the other car he drove did not belong to him. That he was also a drug addict. That the complainant controlled when she and the Applicant were in contact, often refused sexual contact with him, and used him to get drugs. The defence argued that it was only as a result of hindsight bias that the complainant came to think that she had not actually consented to sexual contact with the Applicant, when in reality she had actually genuinely consented at the time.

[63] Some of this was put to the complainant in cross-examination. She maintained that she believed the Applicant was a doctor because he told her he was. She said he appeared to have money at his disposal because she saw him spending it. Indeed, that the Applicant may have been unemployed is not, or not yet, in evidence. The complainant said she did not see the Applicant’s Lexus as dilapidated and maintained that she thought it was “cool” that he had a car. The complainant agreed that the Applicant used drugs with her, but refused to speculate as to whether he was also an addict. She agreed that, at times, she tried to break off contact with the Applicant, but testified that she would always ultimately resume contact because he persisted in seeking contact and she felt guilty. The complainant agreed that she came to see her relationship with the Applicant differently with time and after she had gotten sober. But she maintained that even at the time, she often did not want to have sexual contact with the Applicant and agreed to do so because she felt pressured and guilty, as though she owed sex to the Applicant.

[64] Ultimately, the interpretation to be given to the evidence – the weighing of the complainant’s evidence as against the evidence as a whole, the assessment of her credibility and reliability, and the weighing of competing available inferences – is a matter for the end of the trial. Whether the complainant’s evidence that she did not consent is a product of hindsight bias or whether it reflects that she actually did not consent in the moment is a matter for determination by assessing and weighing all of the evidence. It is not a question for a directed verdict application. At this stage, I can do no more than to determine whether there is some evidence of a power imbalance between the Applicant and the complainant, which the Applicant abused to induce the complainant’s consent to sexual contact with him. On the evidence before me, there is some evidence of these essential elements.

(4) Conclusion Regarding Directed Verdict Application on Sexual Assault Charge

[65] There is at least some evidence of all the essential elements of the offence of sexual assault which, if believed by a properly instructed trier of fact, could reasonably result in conviction.

V. SEXUAL EXPLOITATION CHARGE:

IS THERE SOME EVIDENCE THAT THE APPLICANT WAS IN AN EXPLOITATIVE RELATIONSHIP WITH THE COMPLAINANT?

[66] As noted, there is no dispute that the Crown has led at least some evidence capable of establishing that there was touching for a sexual purpose, and that the complainant was a young person at the time. The dispute surrounds whether there is evidence capable of establishing that the Applicant was in one of the relationships that legislatively disentitle him from having sexual contact with the complainant who was a young person. In particular, the dispute surrounds whether there is evidence capable of establishing that the Applicant was in an exploitative relationship with the complainant at the time of the sexual touching. The Crown argues that there is. The defence argues that there is no such evidence.

(1) The Caselaw Interpreting Exploitative Relationships

[67] The authoritative case interpreting the meaning of “exploitative relationship” in s. 153(1) of the Code is R. v. Anderson, 2009 PECA 4, 2009 PECA 04. In interpreting this term, the PEI Court of Appeal in Anderson considered jurisprudential definitions of relationships of trust, authority, and dependence to be helpful. The court also considered the statutory factors from which a judge may infer that a person is in an exploitative relationship with a young person enumerated in s. 153(1.2) of the Code. That provision reads as follows:

s. 153(1.2) Inference of sexual exploitation – 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;

(c) the evolution of the relationship; and

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

[68] Ultimately, at para. 74, the court in Anderson concluded that an exploitative relationship exists within the meaning of s. 153(1) where:

there is a power imbalance between the accused and the younger person in circumstances other than where the accused is in a position of trust or authority or circumstances where the young person has developed a reliance on the accused who has assumed a position of power over the young person. The evidence must demonstrate or, it must be possible for the court to draw the inference from all the circumstances of the relationship and in particular those factors listed in s. 153(1.2) that the young person is, as the result of this power imbalance, vulnerable to the actions and conduct of the accused who is taking advantage of the young person for his or her own benefit.

[69] An exploitative relationship does not require a finding of an explicit or implicit agreement to exchange drugs, money, or any other necessity for sex. It is sufficient for a finding of an exploitative relationship that there be a power imbalance between the defendant and the complainant, that the complainant be vulnerable to abuse, and that the defendant took advantage of the complainant sexually for his own benefit: R. v. Hooper, 2023 BCSC 2212, at para. 72.

[70] Whether or not there was a power imbalance such that a defendant and a complainant were in an exploitative relationship is a question of fact to be determined from all the facts, and the nature and circumstances of the relationship, including the factors set out in s. 153(1.2): Anderson, at para. 75; R. v. Robertson, 2015 ONCA 437, at para. 1.

[71] The Court of Appeal for Ontario adopted Anderson’s interpretation of “exploitative relationship”: Robertson, at para. 1.

[72] An exploitative relationship within the meaning of s. 153(1) between a drug supplier and a drug addict was found to have been established on the facts in Robertson and also in Hooper. In Robertson, few facts are referred to by the Court of Appeal in its short endorsement. The court notes only that the defendant was 11 years older than the complainant, and he was her drug supplier and protector on the street. The court held that the trial judge’s findings regarding the exploitative nature of the relationship were fully justified: Robertson, at para. 2. In Hooper, there is a fuller discussion of the facts. The complainant was a drug addict who relied on the defendant for her supply of drugs. The defendant supplied drugs or money to buy drugs. He facilitated the complainant’s drug use by providing locations where she could consume drugs – which included his car – and consumed drugs with her. The complainant was a young vulnerable person, whereas the defendant was an adult with an income, a vehicle, and a home: Hooper, at para. 72. The court in Hooper concluded that there was a power imbalance between the defendant and the complainant, that the complainant was vulnerable to abuse, and that the defendant took advantage of the complaint sexually for his own benefit.

(2) Evidence and Analysis

[73] In my view, there is at least some evidence from which a properly instructed trier of fact could reasonably conclude that the Applicant was in a relationship with the complainant that was exploitative of her.

[74] In relation to my assessment of whether there is some evidence that the Applicant was in an exploitative relationship with the complainant, the evidence is the same as I have already summarized above. The analysis of whether there is evidence that the relationship was an exploitative one also overlaps with the analysis I have already undertaken of whether there is evidence that the Applicant was in a position of power vis-à-vis the complainant.

[75] As the PEI Court of Appeal recognized authoritatively in Anderson, an exploitative relationship within the meaning of s. 153(1) will exist where “there is a power imbalance between the accused and the younger person” and “the young person is, as a result of this power imbalance, vulnerable to the actions and conduct of the accused who is taking advantage of the young person for his or her own benefit”: Anderson at para. 74. In other words, a relationship that was exploitative of the complainant requires, at a minimum, that there was a power imbalance between the Applicant and the complainant: D. M., at para. 33. The gravamen of whether the Applicant was in a position of power in relation to the complainant (within s. 273.1(2)(c)) is the same as the gravamen of whether the Applicant was in an exploitative relationship with the complainant (within s. 153(1)): an imbalance of power, which is exploited by the Applicant for his own benefit.

[76] Accordingly, my finding that there is some evidence of the Applicant being in a position of power in relation to the complainant within the meaning of s. 273.1(2)(c) leads also to a finding that there is some evidence that the Applicant was in an exploitative relationship with her within the meaning of s. 153(1). Based on the same body of evidence, and for the same reasons, I find that there is some evidence upon which a properly instructed trier of fact might reasonably find that the Applicant was in an exploitative relationship with the complainant.

[77] Consideration of the statutory factors from which a judge may infer that a person is an exploitative relationship with a young person set out in s. 153(1.2) supports my conclusion:

• S. 153(1.2)(a) - the age of the young person: The complainant was 16 and 17 years old. That she was young contributed to her vulnerability, especially in the circumstances of her life where she did not have a supportive family and was living in a shelter. This is some evidence that could contribute to a finding that the relationship between the Applicant and the complainant was exploitative of the complainant;

• S. 153(1.2)(b) – the age difference between the person and the young person: There was a large age difference between the Applicant and the complainant, 18 to 19 years. A large age difference between an accused and a complainant on its own does not necessarily mean that a relationship between them is exploitative of the younger person: R. v. Martin, 2011 ONCJ 401. However, the greater the age differential, the more the complainant may be vulnerable to apparent exploitation by the accused: Anderson, at para. 78. In this case, the complainant testified that she found the Applicant mature; that he had power over her because, among other reasons, he was older, had a career as a doctor, and had money. This is some evidence that could contribute to a finding that the relationship between the Applicant and the complainant was exploitative of the complainant;

• S. 153(1.2)(c) – the evolution of the relationship: The relationship between the Applicant and the complainant started as one where she called on him to provide drugs, he provided them, and they consumed them together. It evolved into a friendship, one where they frequently consumed drugs together in the Applicant’s car. He was the one who usually provided the drugs. The complainant developed some feelings for the Applicant. She liked him and felt he cared about her. The Applicant began propositioning the complainant. He started by asking her for “small” sexual favours. Sometimes she complied, sometimes she did not. The complainant’s evidence is that the Applicant repeatedly and insistently asked her to engage in sexual activity with him. She testified that she felt pressured to have sex with him. At a moment of extreme vulnerability, the complainant agreed to have vaginal intercourse with the Applicant because she felt he had protected her. From then on, the relationship became more sexual. The complainant testified that she did not always want to have sexual contact with the Applicant, but that she did so because she felt pressured and guilty. She explained that the Applicant made her feel that she had to have sex with him to reciprocate for all the drugs her provided to her and all the things he did for her. On its face, the evidence of the evolution of this relationship is open to an interpretation that the complainant had growing feelings for the Applicant and growing dependence on him for drugs, protection, attention, and affection. It is open to an interpretation that the complainant was, as a result, vulnerable to the actions and conduct of the Applicant, who exploited her feelings to get her to engage in sexual activity. On its face, this is some evidence from which a trier of fact may infer that the Applicant was in a relationship with the complainant that was exploitative of her;

• S. 153(1.2)(d) – the degree of control or influence by the person over the young person: the complainant testified that when she tried to stop communicating with the Applicant, she ultimately always resumed contact with him because he was insistent, and she felt guilty. She avoided contact with him when she was trying to abstain from using drugs. Resuming contact with the Applicant meant that she would resume using drugs with him. On its face, this is some evidence that the Applicant used drugs, pressure, and guilt to influence the complainant to continue to have contact with him. When they were together doing drugs, according to the complainant, the Applicant repeatedly importuned her for sex, and she often felt obliged to comply. The defence argues that there is no evidence that the Applicant controlled or influenced the complainant because they did not live together and the Applicant did not provide her with her daily needs, aside from drugs. In my view, there is evidence that the complainant depended on the Applicant to provide her with drugs at least some of the time; that she depended on him to drive her around at times; and that she depended on him for attention, affection, and what she perceived to be protection at the time. There is evidence from which it can be inferred that because the Applicant had the power to provide, or withhold, these things from the complainant, he had control or influence over her. And that he used that power to induce her to have sexual contact with him. On its face, this is some evidence from which a trier of fact may infer that the Applicant was in a relationship with the complainant that was exploitative of her.

[78] There is some evidence arising from the nature and circumstances of the relationship between the Applicant and the complainant that is similar to the relationship that gave rise to a conviction for sexual exploitation in Hooper. Here, as in Hooper, the complainant was a drug addict who relied, in this case much of the time, on the Applicant for her supply of drugs. He supplied drugs. He facilitated the complainant’s drug use by providing a location where she could consume drugs, his car, and consumed drugs with her. The complainant was a young vulnerable person, whereas the defendant was an adult with an apparent income, a vehicle, and a home. This is some evidence from which a trier of fact could conclude that there was a power imbalance between the Applicant and the complainant, that the complainant was vulnerable to abuse, and that the Applicant took advantage of her vulnerability for his own sexual benefit.

(3) Conclusion Regarding Directed Verdict Application on Sexual Exploitation Charge

[79] There is at least some evidence of all of the essential elements of the offence of sexual exploitation which, if believed by a properly instructed trier of fact, could reasonably result in conviction.

VI. CONCLUSION

[80] In the result, the application for directed verdicts is dismissed.

Presser J. Released: January 26, 2024