W A R N I N G

The President of the panel hearing this appeal directs that the following should be attached to the file:

An order restricting publication in this proceeding under ss. 486.4(1), (2), (3) or (4) or 486.6(1) or (2)

of the Criminal Code shall continue. These sections of the Criminal Code provide:

486.4 (1) Subject to subsection (2), the presiding judge or justice may make an order directing that any information that could identify the complainant or a witness shall not be published in any document or broadcast or transmitted in any way, in proceedings in respect of

(a) any of the following offences:

(i) an offence under section 151, 152, 153, 153.1, 155, 159, 160, 162, 163.1, 170, 171, 172, 172.1, 173, 210, 211, 212, 213, 271, 272, 273, 279.01, 279.02, 279.03, 346 or 347,

(ii) an offence under section 144 (rape), 145 (attempt to commit rape), 149 (indecent assault on female), 156 (indecent assault on male) or 245 (common assault) or subsection 246(1) (assault with intent) of the Criminal Code, chapter C-34 of the Revised Statutes of Canada, 1970, as it read immediately before January 4, 1983, or

(iii) an offence under subsection 146(1) (sexual intercourse with a female under 14) or (2) (sexual intercourse with a female between 14 and 16) or section 151 (seduction of a female between 16 and 18), 153 (sexual intercourse with step-daughter), 155 (buggery or bestiality), 157 (gross indecency), 166 (parent or guardian procuring defilement) or 167 (householder permitting defilement) of the Criminal Code, chapter C-34 of the Revised Statutes of Canada, 1970, as it read immediately before January 1, 1988; or

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

(2) In proceedings in respect of the offences referred to in paragraph (1)(a) or (b), the presiding judge or justice shall

(a) at the first reasonable opportunity, inform any witness under the age of eighteen years and the complainant of the right to make an application for the order; and

(b) on application made by the complainant, the prosecutor or any such witness, make the order.

(3) In proceedings in respect of an offence under section 163.1, a judge or justice shall make an order directing that any information that could identify a witness who is under the age of eighteen years, or any person who is the subject of a representation, written material or a recording that constitutes child pornography within the meaning of that section, shall not be published in any document or broadcast or transmitted in any way.

(4) An order made under this section does not apply in respect of the disclosure of information in the course of the administration of justice when it is not the purpose of the disclosure to make the information known in the community. 2005, c. 32, s. 15; 2005, c. 43, s. 8(3)(b).

486.6 (1) Every person who fails to comply with an order made under subsection 486.4(1), (2) or (3) or 486.5(1) or (2) is guilty of an offence punishable on summary conviction.

(2) For greater certainty, an order referred to in subsection (1) applies to prohibit, in relation to proceedings taken against any person who fails to comply with the order, the publication in any document or the broadcasting or transmission in any way of information that could identify a victim, witness or justice system participant whose identity is protected by the order. 2005, c. 32, s. 15.

CITATION: R. v. Budd, 2007 ONCA 722

DATE: 20071022

DOCKET: C45508

COURT OF APPEAL FOR ONTARIO

DOHERTY, BLAIR JJ.A. and THEN J. (Ad hoc)

BETWEEN:

HER MAJESTY THE QUEEN

Respondent

and

PETER BUDD

Appellant

Mark J. Sandler for the appellant

John McInnes for the respondent

Heard and endorsed orally: October 17, 2007

On appeal from the judgment of Justice T.D. Little of the Superior Court of Justice dated May 16, 2006.

ENDORSEMENT

[1] Mr. Budd was tried on an indictment alleging three counts of sexual assault and three counts of sexual exploitation in relation to three sisters M.D., A.D. and K.D. He was acquitted of the sexual assault charges on the basis that the sisters had consented to the sexual relations, but he was convicted of sexual exploitation on the two counts relating to A.B. and K.B. on the basis that a relationship of trust existed between him and the two young persons. The sisters were all between the ages of fourteen and eighteen during the approximate four-year period of time when the offences occurred.

[2] The appellant was a successful and wealthy Bay Street Lawyer. He was in his early forties when the offences occurred. He met the D. family because they lived near his farm which he visited on weekends. M.D. was sixteen, A.D. thirteen and K.D. twelve when they first met. The appellant became very close to the family which consisted, during most of the period, of the mother D.D. and the three girls.

[3] The relationship was so close that on more than one occasion the mother entrusted the safety and wellbeing of her daughters to the appellant’s care. He accepted that responsibility and used those opportunities to develop and engage in long-term simultaneous sexual relationships with all three of them, albeit on a consensual basis on their part. These occasions included a one-week trip alone with A.D. (with her parents’ consent) to England and a trip (again with the parents’ consent) with K.D. and A.D. and his own sons to Disney World in Florida.

[4] On one occasion, K.D. was permitted to come to Toronto on a shopping trip on the basis that she would be met by and stay with the appellant. The trial judge found that K.D., her mother and the accused all knew that K.D.’s wellbeing and safety were vested in the appellant during this visit and that the trip only took place, to the knowledge of all of them, “because of the privileged position in which [the appellant] found himself and the reliance of the mother upon his integrity.”

[5] On behalf of Mr. Budd, Mr. Sandler made two submissions. First, he argued that the trial judge misdirected himself as to the meaning of a “position of trust” and its application to the circumstances of this case, failing to recognize the central aspect of vulnerability in the establishment of such a relationship and relying upon an inappropriate definition of “trust” taken from the Wikipedia website. Secondly, he contended that the trial judge erred because, having concluded that the evidence of the mother and the daughters was tainted by collusion and improper pressure from the family and the police, he nonetheless placed reliance on that evidence in convicting on the sexual exploitation counts. We would not give effect to either submission.

[6] The trial judge referred to various authorities respecting the notion of “position of trust” as that phrase is used in s. 153(1)(a) of the Criminal Code, including R. v. Audet (1996), 1996 198 (SCC), 106 C.C.C. (3d) 481 (S.C.C.) and the cases referred to therein. We are satisfied that he correctly applied the principles laid down in those authorities, including the various definitions referred to therein which did not come from the Wikipedia website, and that he was entitled on the evidence to find, as he did, that a position of trust existed as between the appellant and A.D. and K.D. There was ample evidence to support this finding. It is obvious on the facts looked at overall that M.D. and K.D. were vulnerable in the circumstances. They were young and impressionable and easily swayed by this debonair, dynamic individual.

[7] It is also clear that the appellant was in a position vis-à-vis M.D. and K.D. that created the opportunity for all the persuasive and influencing factors that such an adult could hold over such young persons to come into play. He was in a position of trust and consent was irrelevant. He was obligated in the circumstances of this case to say “No”.

[8] The appellant did not testify. However, many of the events testified to by the complainants and their mother were not challenged on cross-examination. We cannot agree that the trial judge’s finding that the evidence was tainted required that he reject all of the evidence outright. His finding of fact on the sexual exploitation charges, as alluded to above, rely almost exclusively on evidence that was not disputed. The reasons adequately express that.

[9] The appellant also seeks leave to appeal sentence, and appeals the nine-month custodial sentence imposed by the trial judge. We see no error in principle on the part of the trial judge in imposing such a sentence and would not interfere.

[10] The appeal as to conviction is therefore dismissed, leave to appeal sentence is granted, but the appeal as to sentence is dismissed as well.

“D.H. Doherty J.A.”

“R.A. Blair J.A.”

“E. Then J. (Ad hoc)