WARNING

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(1), (2), or (3) of the Criminal Code shall continue. These sections of the Criminal Code provide:

486. (1) Any proceedings against an accused shall be held in open court, but the presiding judge or justice may order the exclusion of all or any members of the public from the court room for all or part of the proceedings if the judge or justice is of the opinion that such an order is in the interest of public morals, the maintenance of order or the proper administration of justice or is necessary to prevent injury to international relations or national defence or national security.

(2) For the purposes of subsection (1), the “proper administration of justice” includes ensuring that

(a) the interests of witnesses under the age of eighteen years are safeguarded in all proceedings; and

(b) justice system participants who are involved in the proceedings are protected.

(3) If an accused is charged with an offence under section 151, 152, 153, 153.1, 155 or 159, subsection 160(2) or (3) or section 163.1, 170, 171, 171.1, 172, 172.1, 172.2, 173, 212, 271, 272, 273, 279.01, 279.011, 279.02 or 279.03 and the prosecutor or the accused applies for an order under subsection (1), the judge or justice shall, if no such order is made, state, by reference to the circumstances of the case, the reason for not making an order. R.S., 1985, c. C-46, s. 486; R.S., 1985, c. 27 (1st Supp.), s. 203, c. 19 (3rd Supp.), s. 14, c. 23 (4th Supp.), s. 1; 1992, c. 1, s. 60(F), c. 21, s. 9;1993, c. 45, s. 7;1997, c. 16, s. 6;1999, c. 25, s. 2(Preamble); 2001, c. 32, s. 29, c. 41, ss. 16, 34, 133;2002, c. 13, s. 20;2005, c. 32, s. 15, c. 43, ss. 4, 8;2010, c. 3, s. 4;2012, c. 1, s. 28.

COURT OF APPEAL FOR ONTARIO

CITATION: R. v. Geddes, 2015 ONCA 292

DATE: 20150430

DOCKET: C57095

Doherty, Rouleau and Watt JJ.A.

BETWEEN

Her Majesty the Queen

Respondent

and

Allan Geddes

Appellant

Philip Campbell, for the appellant

Melissa Adams, for the respondent

Heard: January 8, 2015

On appeal from the conviction entered on January 2, 2013, by Justice Elizabeth Quinlan of the Superior Court of Justice.

Doherty J.A.:

I

OVERVIEW

[1] In the late 1980s, the appellant, who was in his forties, engaged in repeated sexual activity with G.C., a young teenaged boy he had befriended. The relationship was exploitative and, on any reasonable view, morally repugnant. Counsel for the appellant submits, however, that the conduct was not criminal.

[2] The appellant was convicted of sexual assault on the basis that G.C.’s apparent consent to the sexual activity was vitiated by the appellant’s “exercise of authority” over G.C. Counsel submits that on a proper understanding of the term “exercise of authority” in s. 265(3)(d) of the Criminal Code, the evidence could not reasonably support the trial judge’s finding that G.C.’s consent was vitiated. Counsel asks this court to quash the conviction and enter an acquittal. For the reasons that follow, I would dismiss the appeal.

II

THE EVIDENCE

[3] The evidence comes primarily from the testimony of G.C. and his mother. The appellant did not testify. The other evidence called by the Crown was largely peripheral.

[4] G.C. moved to Barrie with his parents in 1982, when he was nine-years old. He first met the appellant at a local arcade, where the appellant worked as a cashier. G.C. was about 12 or 13-years old at the time. Over the next year, G.C. and the appellant chatted about various things at the arcade. The appellant would sometimes let G.C. use the games at the arcade free of charge. Nothing improper happened during the first year of their relationship.

[5] G.C. and the appellant spoke about skiing. The appellant told G.C. that he was an instructor and could give him lessons. After about a year, they began making frequent trips to a nearby ski hill, on the weekends and during the week.

[6] Early in the relationship, the appellant visited G.C.’s parents to ask permission to take G.C. skiing. The parents agreed. After this initial meeting, the appellant would often pick G.C. up at his house to go skiing or on trips to Toronto. Sometimes, the appellant spoke with G.C.’s mother.

[7] G.C.’s mother recalled the first meeting with the appellant. He explained to her and her husband that he had met G.C. at the arcade where he worked and that he often took children on outings, including skiing and bowling. The appellant assured G.C.’s parents that he was “a good person.” G.C.’s mother testified:

[H]opefully I wasn’t a bad parent, but [the appellant] had made us feel comfortable enough that I’d say good-bye to my son and out the door he’d go. I could be busy with three other younger children.

[8] The appellant supplied G.C. with downhill skis, a snowboard, ski-related clothing, and paid for his lift tickets. G.C.’s family could not afford to buy these kinds of things for G.C. The appellant also paid for food, movie tickets and other entertainment when he took G.C. to Toronto.

[9] G.C. was uncertain about his exact age when the sexual activity began. The trial judge found that it began after G.C. turned 14. That finding, which is not challenged, is significant because at the time of the alleged offences (1985-1989) 14 was the age of consent.[^1] Had G.C. been under 14, consent would not have been a defence to the charge of sexual assault.[^2]

[10] G.C. testified that the sexual activity with the appellant occurred mainly in the appellant’s car after the skiing or trips to Toronto. According to G.C., there was also sexual activity at the appellant’s apartment, at the arcade after closing time and at the home of one of the appellant’s friends. G.C. estimated that there were between 100 and 500 incidences of sexual activity. The activity included fellatio, digital penetration, attempted anal sex and masturbation.

[11] G.C. indicated that the sexual activity continued for about three years until he was about 17 or 18-years of age. The activity stopped when G.C. “kind of moved on and was doing different things.”

[12] G.C. did not see the appellant very much for a few years after the sexual activity stopped, although they remained friendly. They began to see each other regularly again when G.C. was in his early twenties, and then again lost contact with each other for a time. A close relationship developed when G.C. was about 28. This relationship between G.C. and the appellant ended in a dispute over financial matters relating to a house that they had jointly purchased for the purposes of renovation and resale. G.C. and the appellant did not part on friendly terms. G.C. went to the police about three years later in 2010.

[13] There was no sexual activity between G.C. and the appellant at any time after G.C. was about 18 years of age. Nor did the appellant attempt to initiate any sexual activity.

[14] G.C., testifying as an adult many years after the alleged abuse, described a confused and conflicted attitude towards the appellant. G.C. was adamant that he never wanted to engage in the sexual activity and that he knew it was wrong. He testified that the appellant “conned” him into the sexual conduct:

I think any adult that has a kid – has sex with a kid is conned.

He – like – the way he did it, it was, it was, like, it was always talking about sex and then going on about sex that he had, and then, you know, he pretty much talked me into it. And then he’d you know, I’d show-off from the beginning, and then, you know, he’d like buy me shit, and make me feel better, and talk, like, you know, it’s not that bad. So many aspects of different ways of, you know, how it came about.

[15] G.C. testified that he would often tell the appellant that he did not want to perform the sexual activities requested by the appellant. The appellant would become angry and “throw in [G.C.’s] face the things that [the appellant had] done for [him]”, and threaten not to take G.C. skiing or buy him things in the future. Eventually, G.C. would give in and do as he was asked.

[16] G.C. tried to describe his feelings toward the appellant:

[A]ll that crap, sex shit and molesting crap it was wrong and it felt wrong, but at a certain point you become like numb to it and then if you, you know, you feel like it’s just you know, kind of like you had to do it or you wouldn’t, you know and it’s like – I was groomed into being – to do these acts to, to do what I wanted. To do what I wanted to do too, you know. And at the same time, as fucked up as it is, you actually idolize the guy… For making me feel, besides the sex part, it’s like he’s got your back, you know and he got – the strange way he made you feel good about yourself too.

You know, and then it gets all twisted inside and fucked up.

And you know you don’t see it for what it is when you’re a kid. So it’s just like – I couldn’t get it to – it would ever stop.

[17] G.C. acknowledged that he was never physically forced to do anything and that on occasion it was he and not the appellant who set the boundaries of the sexual activity. According to G.C., he was talked into the sexual activity by the appellant’s persistent requests. He engaged in the activity because he wanted the material benefits that came from his relationship with the appellant.

III

THE TRIAL JUDGE’S REASONS

[18] The trial judge made the following findings of fact:

• At the time of the sexual activity, the appellant was 30 years older than G.C.;

• The appellant obtained G.C.’s parents’ permission to take G.C. places and was responsible for G.C. on those trips. The appellant persuaded the parents to allow him to take G.C. on the trips by indicating he “worked with youth”;

• There was a clear power imbalance between G.C. and the appellant. The appellant offered G.C. many material things that G.C.’s parents were not in a position to give to him. These included trips to Toronto, ski equipment and clothing;

• G.C. idolized the appellant and believed that the appellant “had his back”; and

• The appellant exploited G.C. He would constantly talk about and request sex from G.C. When G.C. demurred, the appellant would become angry and talk about the things he had done for G.C. and threaten to stop doing those things. Eventually, G.C. would give into the appellant’s requests and let the sex happen to get it over with.

[19] The trial judge held that the nature of the relationship between the appellant and G.C. gave the appellant power to influence the conduct of G.C. In her view, this placed the appellant in a position of authority over G.C. The trial judge further found that the appellant used that position of authority to gain G.C.’s submission to the appellant’s repeated demands for sexual activity:

I find beyond a reasonable doubt that [G.C.], a young, vulnerable teen, submitted because of [the appellant’s] threats to take away the activities he could not otherwise do and the things he could not otherwise have. I find beyond a reasonable doubt that [G.C.] submitted to the sexual activity with [the appellant] because of the exercise of authority.

IV

ARGUMENTS

[20] Counsel for the appellant begins his cogent submissions by reference to the statutory framework applicable to these charges. The alleged assaults occurred between 1985 and 1989, before the enactment of several current Criminal Code provisions relevant to the issue of consent. At the time of the alleged offences, the relevant part of s. 244 (now s. 265) provided:

(1) Assault – A person commits an assault when

(a) without the consent of another person, he applies force intentionally to that person, directly or indirectly;

(3) Consent – For the purposes of this section, no consent is obtained where the complainant submits or does not resist by reason of

(d) the exercise of authority

[21] Counsel correctly submits that s. 273.1, enacted in 1992 (An Act to amend the Criminal Code (sexual assault), S.C. 1992, c. 38, s. 1), which speaks specifically to consent in the sexual assault context and provides further limits on the effectiveness of apparent consent, can have no application to these charges. Counsel makes the point that while s. 273.1(2)(c) negates the effectiveness of any consent induced “by abusing a position of trust, power or authority”, the narrower and applicable provision in s. 265(3)(d) negates only consent obtained by “the exercise of authority”: see R. v. Lutoslawski, 2010 ONCA 207, 258 C.C.C. (3d) 1, at paras. 12-13, aff’d 2010 SCC 49, [2010] 3 S.C.R. 60.

[22] Counsel moves from the statutory framework to the trial judge’s factual findings. He submits that the trial judge’s finding that the appellant assumed a “role of responsibility” for G.C. when he secured his parents’ permission to take G.C. skiing and on other trips is unsupported by the evidence. Counsel argues that the evidence of G.C.’s mother goes no further than to indicate that she permitted her son to go places with the appellant. There was no transfer of parental authority or responsibility.

[23] Counsel’s submissions next turn to the meaning of the phrase “exercise of authority” in s. 265(3)(d). He submits that apart from the unsustainable finding that the appellant took on some form of parental responsibility for G.C., the trial judge’s factual findings support neither a finding that the appellant had any of authority over G.C., nor that he exercised any authority to procure G.C.’s consent to the sexual activity. Counsel submits that apart from the trial judge’s finding of parental responsibility, her other findings come down to a determination that G.C., who could in law consent to sexual activity with the appellant, chose to give that consent because he wanted the material and emotional benefits he gained from his ongoing relationship with the appellant. Counsel submits that the transactional nature of the sexual activity between G.C. and the appellant cannot render that activity non-consensual.

[24] Crown counsel, in her effective submissions, agrees that s. 265(1)(d) is the only operative consent-related provision and that the current Criminal Code provisions directly applicable to consent in the context of sexual assaults do not apply, given the date of the alleged offences. Counsel accepts that on the Crown’s theory, this was a case of apparent consent to sexual activity vitiated by the appellant’s exercise of authority over G.C. The Crown was required to prove beyond a reasonable doubt that G.C.’s apparent consent was vitiated: see R. v. Hutchinson, 2014 SCC 19, [2014] 1 S.C.R. 346, at paras. 4, 17.

[25] Crown counsel next submits that the trial judge’s finding that the appellant assumed a parental-like responsibility for G.C. when he took him on the various trips is fully justified on the evidence. Counsel points to the evidence that the appellant attended at G.C.’s home specifically to ask his parents for permission to take G.C. on skiing trips. In doing so, the appellant assured G.C.’s parents that he was “a good person” and that he had experience taking children skiing and bowling. Crown counsel submits that the trial judge could reasonably infer, based on that evidence, that G.C.’s parents allowed him to go with the appellant on the understanding that the appellant would assume responsibility for the care and protection of G.C. while he was with the appellant. On the Crown’s argument, this finding flows naturally from the circumstances in which G.C.’s parents came to give the appellant permission to take their son on these trips. It was unnecessary for G.C.’s mother to express her specific expectations of the appellant when her son was in his care.

[26] Crown counsel contends that the trial judge’s finding that the appellant was in a position of authority over G.C. was not based exclusively on the appellant’s assumption of a parental responsibility role. Crown counsel argues that the trial judge properly took into account all of the factors that affected the nature of the relationship between the appellant and G.C.

[27] Crown counsel submits that on the trial judge’s factual findings there was an ample basis to conclude that the relationship was one in which the appellant had power and influence over G.C. and that he used that power and influence in a coercive manner to procure G.C.’s participation in the sexual activity. Counsel argues that consent to sexual activity obtained by the coercive use of one party’s power or influence over the other is vitiated by s. 265(3)(d): R. v. Matheson (1999), 1999 CanLII 3719 (ON CA), 44 O.R. (3d) 557 (C.A.).

V

ANALYSIS

(i) The trial judge’s factual findings

[28] Factual findings at trial are entitled to deference in this court. I see no reason to interfere with the trial judge’s finding that the appellant assumed parental responsibility when he took G.C. skiing and on other trips. The evidence of G.C.’s mother was understandably vague, given the passage of time since the relevant events. However, she made it clear that the appellant sought her permission to take her son skiing and on other trips on the basis that he was a good person with experience in taking children on various recreational outings. In those circumstances, a reasonable parent would assume that a person in the position of the appellant would take responsibility for and protect their 14-year old child while he was with him. I do not think the trial judge’s finding went beyond that reasonable inference.

[29] As the Crown argues, the trial judge did not find that the appellant was in a position of authority over G.C. based exclusively on any de facto parental responsibility the appellant had for G.C. Nor did the trial judge find that the appellant gained G.C.’s consent to the sexual activity by exercising any de facto parental authority. The appellant’s responsibility for G.C. when they were on various trips together and the relationship he established with G.C.’s mother were two factors, among many, that the trial judge properly looked to in determining the nature of the relationship between the appellant and G.C.

(ii) The meaning of “the exercise of authority” in s. 265(3)(d)

[30] I begin with the fundamental principles that underlie the criminalization of sexual assaults. First and foremost, the concept of consent is central to the distinction between criminal and non-criminal sexual conduct. As explained in Hutchinson, at para. 17:

The sexual assault offences invoke the criminal law to protect sexual autonomy. The Criminal Code and jurisprudence establish a high level of protection of the right to choose whether to engage in sexual activity and with whom. The absence of consent to sexual activity, as part of the actus reus of the offence, is judged subjectively from the complainant’s point of view.

[31] Similarly, in R. v. Ewanchuk, 1999 CanLII 711 (SCC), [1999] 1 S.C.R. 330, at para. 28:

The rationale underlying the criminalization of assault explains this. Society is committed to protecting the personal integrity, both physical and psychological, of every individual. Having control over who touches one’s body, and how, lies at the core of human dignity and autonomy. The inclusion of assault and sexual assault in the Code expresses society’s determination to protect the security of the person from any non-consensual contact or threats of force. The common law has recognized for centuries that the individual’s right to physical integrity is a fundamental principle… It follows that any intentional but unwanted touching is criminal.

[32] Because the complainant’s consent plays a crucial role in distinguishing criminal from non-criminal contact, that consent must be real and reflect the exercise of the complainant’s right to choose who does and does not touch him. Long before the Criminal Code, the common law rejected as ineffective, consent obtained “under a coerced and ill-informed will”: R. v. Jobidon, 1991 CanLII 77 (SCC), [1991] 2 S.C.R. 714, at p. 740; Norberg v. Wynrib, 1992 CanLII 65 (SCC), [1992] 2 S.C.R. 226, per La Forest J., at pp. 250-52. The circumstances set out in s. 265(3), including the “exercise of authority”, identify situations in which a complainant’s apparent consent is not effective because it is not a true reflection of the exercise of the complainant’s free will.

[33] Matheson stands as this court’s most thorough and authoritative examination of the phrase “exercise of authority” in s. 265(3)(d). The court rejected a narrow meaning of “authority” as requiring the power to command, in favour of a broader definition that captured relationships in which one party had “the power to influence the conduct and actions” of the other: Matheson, at pp. 587-88; see also R. v. Audet, 1996 CanLII 198 (SCC), [1996] 2 S.C.R. 171, per La Forest J., at para. 34.

[34] I do not read Matheson as holding that the power of one person to influence another to any extent establishes “authority” over the other. Many people who are in a relationship may be influenced to engage in sexual activity by their partner. Influence, as it relates to true consent, is a question of degree. At some point, influence becomes coercion and apparent consent nothing more than submission. Consent that is the product of coercive influence does not reflect a true exercise of one’s right to control one’s own body. To treat coerced consent as effective consent is to deny the very autonomy which underlies the requirement of consent.

[35] The exercise of influence to the point of coercion constitutes “the exercise of authority” for the purposes of s. 265(3)(d): Lutoslawski, at para. 12. In Matheson, Austin J.A. stated, at p. 588:

I am satisfied that the purpose of s. 265(3)(d) is to criminalize coerced sexual relationships rather than to proscribe sexual relationships within specific categories of relationships.

[36] An accused stands in a position of authority over a complainant if the accused can coerce the complainant into consent by virtue of their relationship. The existence of a position of authority does not mean that any sexual activity between the accused and the complainant is non-consensual. The Crown must also prove beyond a reasonable doubt that the accused secured the complainant’s apparent consent to the sexual activity which is the subject matter of the charge by the exercise of that coercive authority over the complainant: R. v. Samkov, 2008 ONCA 192, [2008] O.J. No. 1005, at para. 7; R. v. Farler, 2013 NSCA 13, 326 N.S.R. (2d) 255, at paras. 77-78.

[37] The determination of whether apparent consent is vitiated by a coercive exercise of authority will require an examination of the nature of the relationship between the accused and the complainant, as well as the specific circumstances surrounding the apparent consent to the sexual activity in issue. There is no closed list of factors relevant to the assessment of the nature of the relationship and no one factor is necessarily determinative of the nature of the relationship. Certain relationships, such as doctor-patient or teacher-student, will go a long way to establishing the kind of relationship in which a coercive exercise of authority may occur. Similarly, evidence that demonstrates a clear power imbalance between the parties to the relationship and the exploitation of that imbalance by one of the parties will be important in determining whether apparent consent was obtained through coercion. As La Forest J. said in Audet, at para. 20:

The relative positions of the parties have always been relevant to the validity of consent under Canadian criminal law. The common law has long recognized that exploitation by one person of another person`s vulnerability towards him or her can have an impact on the validity of consent.

(iii) Can the trial judge’s finding stand?

[38] The trial judge did not use the word “coercive” in describing the nature or extent of the appellant’s influence over the complainant. The trial judge’s findings as a whole, however, describe a thoroughly coercive relationship in which the appellant used coercion to secure G.C.’s consent to repeated sexual activity. The trial judge referred to the “clear power imbalance” between the appellant and G.C. That imbalance arose not only from the age difference – the complainant was a young teenager and the appellant was in his forties – but also from the appellant’s ability to provide G.C. with material things that he could not otherwise afford.

[39] On the trial judge’s findings, the appellant used the power imbalance to manipulate G.C. By treating G.C. as “a buddy” rather than a young person under his care, the appellant fashioned a strong emotional bond between himself and G.C. By giving G.C. many gifts, the appellant established himself as G.C.’s benefactor. The appellant spent about a year developing the buddy/benefactor relationship before he introduced the prospect of sexual activity into the relationship. He did so in a way that would suggest that sex between G.C. and the appellant was a normal and accepted part of their relationship. The appellant persisted in his sexual demands even when G.C. declined to engage in that activity. The appellant’s persistence, combined with threats to end the relationship and discontinue the benefits flowing from that relationship, manipulated G.C. into sexual activity which he did not want.

[40] The trial judge accepted G.C.’s evidence. G.C. testified that he repeatedly declined to engage in the sexual activity sought by the appellant. The appellant, however, would not accept G.C.’s refusal. Instead, he persisted, he cajoled, he threatened to end their relationship and he threatened to take things away from G.C. that he knew G.C. valued. On G.C.’s testimony, he would ultimately “give in” and “let it happen”. G.C.’s language speaks to the coerced nature of the consent ultimately secured from G.C. by the appellant.

[41] For these reasons, I would dismiss the appeal.

RELEASED: “DD” “APR 30 2015”

“Doherty J.A.”

“I agree Paul Rouleau J.A.”

“I agree David Watt J.A.”

[^1]: See: Criminal Code, R.S.C. 1970, c. C-34, s. 246.1(2) (came into force on January 4, 1983); and Criminal Code, R.S.C. 1985, c. C-46, s. 150.1(1) (came into force on January 1, 1988).

[^2]: Under the current provisions of the Criminal Code, R.S.C. 1985, c. C-46, G.C. could not have consented to the sexual activity with the appellant until he was 16: ss. 150.1(1), (2.1). Under the current provisions, the appellant could have also been charged with sexual exploitation (s. 153) in respect of his sexual activity with G.C. when G.C. was between 16 and 18. Consent is irrelevant on that charge: R. v. Audet, 1996 CanLII 198 (SCC), [1996] 2 S.C.R. 171.