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or justice may make an order directing that any information that could identify the complainant or a witness shall not be published in any document or broadcast or transmitted in any way, in proceedings in respect of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. Lutoslawski, 2010 ONCA 207

DATE: 20100318

DOCKET: C49601

COURT OF APPEAL FOR ONTARIO

Doherty, Blair and Watt JJ.A.

BETWEEN

Her Majesty the Queen

Appellant

and

Jaroslaw Lutoslawski

Respondent

Christine Tier, for the appellant

Nicholas Xynnis, for the respondent

Heard: March 8, 2010

On appeal from the acquittals entered by Justice Robert A. Clark of the Superior Court of Justice on September 11, 2008.

Doherty J.A.:

I

OVERVIEW

[1] The respondent was charged with five counts of sexual exploitation contrary to s. 153(1) of the Criminal Code (counts 1, 3, 5, 7 and 9) and five counts of sexual assault contrary to s. 271 (counts 2, 4, 6, 8 and 10). A judge, sitting without a jury, acquitted the respondent on all counts. The Crown appeals the acquittals on counts 3 to 10 only. For the reasons that follow, I would allow the appeal in part. I would enter convictions on three counts of sexual assault and order a new trial on the remaining count of sexual assault. I would dismiss the appeals and affirm the acquittals on the other counts.

[2] The respondent was born in 1964. He came to Canada from Poland in 1989. He eventually became a successful engineer working in the auto parts industry in Ontario. The respondent founded an organization in 1999 that took Polish-Canadian boys and girls on wilderness camping trips and overseas excursions. These trips, which were sometimes supervised by the respondent alone, were the primary setting for the alleged offences. At the relevant times, the respondent was in his mid-30s or early 40s. The complainants were all teenage girls between 15 and 18 years old.

[3] There were four complainants: J.P. (counts 3 and 4); N.C. (counts 5 and 6); M.D. (counts 7 and 8); and A.F. (counts 9 and 10). The allegations made by J.P. are quite different than the allegations made by the other complainants. The grounds of appeal advanced by the Crown in relation to the counts involving J.P. are also different from the grounds advanced on the other counts. I will address the allegations involving J.P. first.

II

THE ALLEGATIONS INVOLVING J.P. (COUNTS 3 AND 4)

(a) The Evidence and Arguments at Trial

[4] J.P. testified that she had a long-term sexual relationship with the respondent, whom she met during a camping trip run by another Polish scouting organization. J.P. testified that she first had sexual intercourse with the respondent when she was 15 years old, at a cottage in the Huntsville area. She had previously engaged in sexual activity short of intercourse with the respondent on a camping trip that he led. According to J.P., she had sexual intercourse with the respondent on camping trips after the first occasion in Huntsville. He would also pick her up near her home for regular sexual liaisons. J.P. thought she was in love with the respondent. The relationship ended when she was 19.

[5] In his testimony, the respondent acknowledged that he had a long-term sexual relationship with J.P. He insisted that it began after she turned 18 and was entirely consensual.

[6] It was the Crown’s position on the sexual assault charge that although J.P. had agreed to participate in the sexual activity with the respondent, her agreement did not constitute an effective consent because it was induced by the respondent’s abuse of his position of trust and authority over J.P. The defence acknowledged that the respondent was in a position of trust and authority over J.P., but maintained that the evidence did not support a finding that he had abused that position to obtain J.P.’s consent.

[7] The trial judge, in deciding whether J.P.’s consent to the sexual activity was effective, referred to s. 265(3) (d) of the Criminal Code. That section provides that no consent is given if the consent is obtained by reason of the exercise of authority. After referring to the section, the trial judge went on to hold:

[T]here is no evidence that the accused exercised his authority as a scout leader to coerce otherwise unwilling sexual activity on the part of J.P. … [T]here is no suggestion that any sexual activity between the accused and J.P. took place in the context of the scouting relationship per se. Accordingly, there is no evidence of one essential element of the offence, namely, a lack of consent on count four. [Emphasis added.]

[8] The verdict on the sexual exploitation charge turned on whether the Crown had proved beyond a reasonable doubt that J.P. was under eighteen when at least some of the sexual activity occurred. Section 153(1) is inapplicable if the complainant was eighteen or over at the time of the alleged offence: see s. 153(2) of the Criminal Code.

[9] The trial judge rejected the respondent’s testimony that J.P. was eighteen or over throughout their sexual relationship. The trial judge gave several reasons for rejecting this evidence. The trial judge then went on to set out several reasons for believing J.P.’s evidence that she was fifteen when the relationship began. He went so far as to indicate that he was inclined to believe J.P.’s testimony. Ultimately, however, the trial judge acquitted the respondent on the sexual exploitation charge:

While I certainly do not disbelieve J.P., her evidence standing alone does not leave me with the level of confidence required to convict this accused of a serious criminal offence.

While as with the other counts relating to the other complainants, I am satisfied on a balance of probabilities that the relationship started when J.P. said it did, I am not satisfied beyond a reasonable doubt.

(b) The Crown’s Arguments on Appeal

[10] On the sexual assault charge, Crown counsel submits that the trial judge erred in law by failing to consider s. 273.1(2) (c) of the Criminal Code before deciding whether the Crown had proved the absence of consent. The trial judge referred only to s. 265(3)(d), a provision that addresses the meaning of consent in the context of the definition of all assaults, including sexual assault. That section provides:

For the purposes of [the section defining assault], no consent is obtained where the complainant submits or does not resist by reason of

(d) the exercise of authority.

[11] The trial judge did not refer to s. 273.1(2)(c), which is applicable only to allegations of sexual assault. That section describes the circumstances in which no consent is obtained for the purposes of the sexual assault provisions and reads:

No consent is obtained for the purposes of s. 271 … where

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

[12] I agree with Crown counsel’s submissions that s. 273.1(2)(c) is broader than s. 265(3)(d). Section 273.1(2)(c) speaks not only to the abuse of a position of authority but also to the misuse of a position of power or trust. The section addresses 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.

[13] 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 from Matheson [Citation omitted.] 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.

See also M. Manning, A. W. Mewett and P. Sankoff, Criminal Law, 4th ed. (Markham: LexisNexis, 2009) at p. 880.

[14] The respondent admitted that he was in a position of trust and authority toward J.P. during much of their sexual relationship. The trial judge also found as a fact that the respondent exploited that relationship. Although the trial judge observed that there was no evidence that the sexual activity took place in the context of the scouting relationship, J.P. testified that she and the respondent engaged in sexual activity on many of the camping trips.

[15] The trial judge erred in law by failing to apply s. 273.1(2)(c) to the facts as he found them. Had he considered that section, he may have concluded that J.P.’s apparent consent to the sexual activity was, as a matter of law, no consent at all.

[16] I have considered whether this court should substitute a conviction on the charge of sexual assault. While the Crown’s case was formidable, I cannot say that a conviction would necessarily follow from the trial judge’s factual findings. The Crown does not argue the contrary. I think the appropriate order is to quash the acquittal and direct a new trial on the sexual assault charge involving J.P.

[17] On the sexual exploitation charge, the Crown argues that the trial judge erred in law by failing to consider the entirety of the relevant evidence when determining whether the Crown had proved beyond a reasonable doubt that J.P. was under eighteen years of age when some of the sexual activity occurred. As set out above, that issue was determinative of the verdict on the sexual exploitation charge.

[18] Crown counsel acknowledges that the trial judge thoroughly summarized all of the evidence. Virtually all of his findings favoured J.P. Crown counsel, however, focuses on the penultimate paragraph in the trial judge’s reasons:

While I certainly do not disbelieve J.P. her evidence standing alone does not leave me with the level of confidence required to convict this accused of a serious criminal offence. [Emphasis added.]

[19] Crown counsel submits that the trial judge was wrong to look at J.P.’s evidence “standing alone”. She submits that there was a strong body of evidence supporting J.P.’s contention that sexual activity occurred before she was eighteen.

[20] There was evidence supporting J.P.’s testimony on this issue. Indeed, the trial judge canvassed that evidence in the pages immediately preceding the passage quoted above. The trial judge’s reasons should be read as a whole. I interpret the impugned passage as an indication by the trial judge that although he strongly leaned toward a finding in favour of the Crown, he was ultimately not satisfied beyond a reasonable doubt by J.P.’s evidence.

[21] The acquittal on the sexual exploitation charge ultimately turned on the trial judge’s assessment of the probative value of J.P.’s evidence on the crucial issue of her age at the relevant time. The record does not support the claim that the trial judge failed to consider relevant evidence, but instead indicates that he was not satisfied that the Crown had met its burden of proof on the essential elements of the offence. I would dismiss the appeal from the acquittal on the charge of sexual exploitation involving J.P.

III

THE ALLEGATIONS INVOLVING THE OTHER THREE COMPLAINANTS (COUNTS 5 – 10)

(a) The Evidence at Trial

[22] The allegations made by the other three complainants involved similar accusations of improper touching by the respondent during overnight excursions taken under the auspices of his scouting organization. There was one count of sexual assault and one count of sexual exploitation in respect of each complainant.

[23] Each of the complainants gave evidence describing the different events underlying the allegations. In addition, the complainants gave evidence of similar events involving the respondent that occurred outside of Ontario. There was also a similar fact witness who was not a complainant. I need not go into the similar fact evidence in any detail. It is sufficient to observe that the trial judge specifically found no collusion among the complainants or the other witness and accepted that the evidence of each constituted similar fact evidence in respect of the others.

[24] On counts 5 and 6, N.C. testified that when she was about 15 years old she went on a camping trip with the respondent’s organization. There were a number of young boys and girls on the trip. At night, the group slept in individual sleeping bags in the bus that they used for transportation.

[25] The trial judge summarized N.C.’s evidence relating to the incident in this way:

[S]he said that, about a half an hour after bedding down, the accused draped his arm around her and began to caress her stomach over the top of her clothing from just below her breast to just above her crotch area. She said that this lasted about two minutes and ended when she moved away from him.

[26] N.C. also testified about an incident involving the stroking of her hand by the respondent while she was lying in her sleeping bag.

[27] The respondent denied touching N.C.’s stomach area. He also initially denied stroking N.C.’s hand. However, in cross-examination, the respondent professed to recall the latter incident and described the touching as inadvertent, without any sexual intention. The trial judge ultimately rejected the respondent’s explanations and gave reasons for disbelieving him. The trial judge accepted N.C.’s description of how the respondent groped her stomach, chest and crotch area.

[28] With respect to counts 7 and 8, M.D. testified that when she was around 16 years old, she participated in a camping trip with the respondent’s organization. The group was parked for the night in the bus. Some of the campers were asleep. M.D. was sitting on one side of the bus with her legs bent up towards her chest and her arms clasped around her legs. The trial judge gave this summary of her evidence:

The accused sat beside her, she said, and put a blanket over the two of them. Once having done so, the accused, without saying anything to Ms. D., slipped his hand between her leg and her chest and began to rub her inner left thigh. His hand then, in her words, “inched towards [her] vagina”. He did not actually touch her vaginal area, however. This incident lasted approximately five minutes.

[29] Crown counsel submits that the trial judge misapprehended M.D.’s evidence. I agree. M.D. testified that the respondent put his hand on her vagina and left it there. While I need not decide whether this misapprehension of the evidence amounts to an error in law, I do bear in mind the evidence actually given by M.D. - whom the trial judge specifically found to be credible - in deciding the appropriate remedy.

[30] The respondent denied the allegation. The trial judge was satisfied beyond a reasonable doubt that the incident occurred in the manner that he understood M.D. to have described.

[31] On counts 9 and 10, A.F. testified about three different incidents, one of which occurred in Ontario. That incident occurred on the bus while on a camping trip in the Algonquin Park area. A.F. was about 15 years old. She was sleeping on the bus at night when the respondent asked her if she was cold. The bus was quite warm because of the number of people inside. She told the respondent she was not cold, but said it in a faint voice. The respondent started caressing her stomach and moving his hand back and forth under her clothes. The touching continued for some time and A.F. eventually fell asleep. A.F. said she was too afraid to say anything.

[32] The respondent denied that he ever took a group to Algonquin Park. He also testified that he could not recall touching A.F.’s stomach or engaging in the kind of activity she described except when it was necessary to avoid the onset of hypothermia.

[33] The trial judge disbelieved the respondent and gave reasons for rejecting his evidence. Although the trial judge had some concerns about A.F.’s testimony, he was ultimately satisfied beyond a reasonable doubt based on the totality of the evidence that the incident occurred as she described it.

(b) The Trial Judge’s Reasons

[34] As is evident from the summary above, the trial judge basically believed the testimony of the complainants, N.C., M.D. and A.F., and disbelieved the respondent’s explanations. Despite these findings, he acquitted on counts 5 through 10. The explanation for this outcome is found in the extracts from his reasons set out below:

On the basis of the evidence of each complainant considered in conjunction with the evidence of the others by way of similar acts, I am satisfied beyond a reasonable doubt that the actus reus of the offences has been made out, namely, that the accused touched each young woman in the fashion she described.

I am satisfied on a balance of probabilities that the accused did so for a sexual purpose, namely for his own sexual gratification.

That said, while the touching in each case may well have been done with a sexual intent, the fact remains that it was not overtly sexual per se.

Therefore, respecting the required proof of mens rea, although I am satisfied on the balance of probabilities that the accused touched these young women for a sexual purpose, I am not satisfied beyond a reasonable doubt that he did so. Accordingly, he is entitled to the benefit of what is, in my mind at least, a slim, very slim, but residual doubt. [Emphasis added.]

(c) The Crown’s Argument on Appeal

[35] In oral argument, Crown counsel conceded that a reasonable doubt as to the purpose of the touching was a lawful basis for an acquittal on the sexual exploitation counts. Section 153(1)(a) specifically requires that the touching be “for a sexual purpose”. Crown counsel submits, however, that the trial judge erred in law by requiring the Crown to prove that the touching was for a sexual purpose to secure a conviction on the sexual assault charges.

[36] Sexual assault does not require proof of an improper or ulterior purpose. In R. v. Chase (1987), 1987 23 (SCC), 37 C.C.C. (3d) 97 at 103 (S.C.C.), the court held:

Sexual assault is an assault within any one of the definitions of that concept in s. 244(1) of the Criminal Code which is committed in circumstances of a sexual nature, such that the sexual integrity of the victim is violated. The test to be applied in determining whether the impugned conduct has the requisite sexual nature is an objective one: “Viewed in the light of all the circumstances, is the sexual or carnal context of the assault visible to a reasonable observer?” The part of the body touched, the nature of the contact, the situation in which it occurred, the words and gestures accompanying the act, and all other circumstances surrounding the conduct, including threats which may or may not be accompanied by force, will be relevant. The intent or purpose of the person committing the act, to the extent that this may appear from the evidence, may also be a factor in considering whether the conduct is sexual. If the motive of the accused is sexual gratification, to the extent that this may appear from the evidence it may be a factor in determining whether the conduct is sexual. It must be emphasized, however, that the existence of such a motive is simply one of many factors to be considered, the importance of which will vary depending on the circumstances. [Emphasis added, citations omitted.]

[37] The trial judge accepted the evidence of the complainants concerning the incidents giving rise to the allegations. He should have considered whether, on an objective view of the entirety of the circumstances revealed by that evidence, the respondent’s conduct was of a sexual nature. The respondent’s purpose in touching the complainants was not an element of the offence, but was instead evidence that could be considered along with the other circumstances. The trial judge’s finding of fact that the respondent was motivated by a sexual purpose could assist the Crown only in proving the allegation of sexual assault.

[38] The trial judge misdirected himself as to the essential elements of the offence of sexual assault. That misdirection was fundamental to the outcome. The acquittals on the sexual assault counts must be set aside.

[39] The question now becomes whether this court should order a new trial or enter convictions. The former is the usual course. I am satisfied, however, that it is appropriate to enter convictions in this case. On a proper application of Chase to the trial judge’s findings, the Crown proved beyond a reasonable doubt that the touching occurred in circumstances of a sexual nature such as to compromise the sexual integrity of the complainants. A new trial would serve no purpose on these counts: see R. v. Reddick (1991), 1991 106 (SCC), 64 C.C.C. (3d) 257 at 259 (S.C.C.).

IV

CONCLUSION

[40] I would allow the appeal on the charge of sexual assault against J.P. (count 4), quash the acquittal and direct a new trial. I would dismiss the appeal from the acquittal on the charge of sexual exploitation involving J.P. (count 3).

[41] I would allow the appeals on the sexual assault counts involving the other three complainants (counts 6, 8 and 10), quash the acquittals and substitute convictions. I would dismiss the appeals from the acquittals of sexual exploitation on counts 5, 7 and 9.

[42] I would remit the matter to the trial judge for sentencing on counts 6, 8 and 10. The new trial ordered on count 4 should, however, be before a different trial judge unless the parties agree otherwise.

RELEASED: “DD” “MAR 18 2010”

“Doherty J.A.”

“I agree R.A. Blair J.A.”

“I agree David Watt J.A.”