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. 486.4(1), (2), (2.1), (2.2), (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judge or justice may make an order directing that any information that could identify the victim or a witness shall not be published in any document or broadcast or transmitted in any way, in proceedings in respect of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, 160, 162, 163.1, 170, 171, 171.1, 172, 172.1, 172.2, 173, 213, 271, 272, 273, 279.01, 279.011, 279.02, 279.03, 280, 281, 286.1, 286.2, 286.3, 346 or 347, or

(ii) any offence under this Act, as it read from time to time before the day on which this subparagraph comes into force, if the conduct alleged would be an offence referred to in subparagraph (i) if it occurred on or after that day; or

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

(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 victim of the right to make an application for the order; and

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

(2.1) Subject to subsection (2.2), in proceedings in respect of an offence other than an offence referred to in subsection (1), if the victim is under the age of 18 years, the presiding judge or justice may make an order directing that any information that could identify the victim shall not be published in any document or broadcast or transmitted in any way.

(2.2) In proceedings in respect of an offence other than an offence referred to in subsection (1), if the victim is under the age of 18 years, the presiding judge or justice shall

(a) as soon as feasible, inform the victim of their right to make an application for the order; and

(b) on application of the victim or the prosecutor, 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.

486.6(1) Every person who fails to comply with an order made under any of subsections 486.4(1) to (3) or subsection 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.

COURT OF APPEAL FOR ONTARIO

DATE: 20230926

DOCKET: C65897

Pepall, Copeland and Monahan JJ.A.

BETWEEN

His Majesty the King Respondent

and

R.S. Appellant

Counsel:

Paul J.I. Alexander, for the appellant Emily Marrocco, for the respondent

Heard: September 15, 2023

On appeal from the conviction entered on May 31, 2018 by Justice M. Gregory Ellies of the Superior Court of Justice, with reasons reported at 2018 ONSC 2922, and the sentence imposed on October 1, 2018.

Monahan J.A.:

A. OVERVIEW

[1] The appellant was charged on an eight-count indictment relating to historical sexual offences involving the complainant M.P. and her identical twin sister C.P. The offences were alleged to have occurred between 1993 and 2000, when the complainants were between 10 and 18 years of age. Following a judge alone trial, the appellant was convicted of one count of sexual exploitation in relation to M.P., on the basis that he had been in a position of trust and, at the same time, involved in a sexual relationship with her. The remaining charges were dismissed, including those relating to C.P. The appellant received a 12-month conditional sentence, was made subject to a lifetime order under the Sexual Offender Information Registration Act, S.C. 2004, c. 10 (“SOIRA”) and ordered to pay a victim fine surcharge of $200.

[2] The appellant appeals his conviction on the following two grounds: (i) the trial judge erred in allowing the Crown’s motion to amend the sexual exploitation count to add the phrase “or being a person in a position of trust”; and (ii) the trial judge ought not to have relied on evidence about M.P.’s relationship with the appellant’s wife, A.L.S., in finding that the appellant was in a position of trust in relation to M.P.

[3] With respect to the sentence, the appellant argues that the trial judge mistakenly imposed a lifetime order under the SOIRA, when the correct duration was 20 years, and that the victim fine surcharge should be set aside because the provision in force at the time of the offence was found to be unconstitutional.

[4] The Crown concedes that the sentence appeal should be allowed on both grounds advanced by the appellant but opposes the conviction appeal. The Crown argues that the trial judge properly exercised his discretion in granting the Crown’s motion to amend the sexual exploitation count in the indictment, since the amendment caused no prejudice to the appellant. The Crown further argues that the trial judge did not err in considering the evidence of the appellant’s wife about M.P.’s relationship with her and the appellant’s family as circumstantial evidence tending to support the existence of a trust relationship between the appellant and M.P.

[5] For the reasons that follow, I agree with the appellant and the Crown that the appellant’s sentence should be varied as set out above, but I would dismiss the conviction appeal.

B. Background

[6] The charges against the appellant in relation to M.P. included sexual interference (s. 151), invitation to sexual touching (s. 152), sexual exploitation (s. 153(1)(a)), and sexual assault (s. 271). The original version of the sexual exploitation count in the indictment alleged only that M.P. was in a “relationship of dependency” with the appellant.

[7] It was not disputed that the appellant and M.P. had a sexual relationship that lasted until 2013 and that they had a child together in 2007. It was also not disputed that M.P. met the appellant around 1995. When they met, M.P. was 12 or 13 years old and in grade 7, and the appellant was 25 years old.

[8] There were two central issues in the trial in relation to the counts involving M.P. The first issue was whether the sexual relationship commenced before M.P. turned 14, which was the legal age of consent at the time. The second matter in question was whether the relationship between M.P. and the appellant involved features of trust, dependency, or authority so as to potentially vitiate any apparent consent to sexual contact or amount to sexual exploitation.

[9] The trial judge found that the Crown had not proven beyond a reasonable doubt that the sexual relationship between the appellant and M.P. had commenced before her 14th birthday, i.e. March 26, 1996. He therefore acquitted the appellant of sexual interference and invitation to sexual touching, since both of those counts were dependent upon a finding that the sexual activity had taken place before M.P. turned 14.

[10] With respect to the remaining counts involving M.P., namely sexual exploitation and sexual assault, the trial judge found that M.P. had given her apparent consent to the sexual relationship with the appellant. The issue, however, was whether that apparent consent was vitiated or rendered irrelevant pursuant to the applicable provisions of the Criminal Code, R.S.C. 1985, c. C-46, in effect at the time the offences were alleged to have occurred.

[11] The offence of sexual exploitation under s. 153(1)(a) of the Criminal Code, as it stood prior to 1998, provided that it was an offence for an adult to have sexual contact with a person that is 14 or older, but under the age of 18 (a “young person”), where the young person was in a relationship of dependency with the adult, or where the adult was in a position of trust or authority towards the young person. In these circumstances, any apparent consent of the young person to sexual activity was irrelevant.

[12] In addition, s. 273.1(2)(c) of the Criminal Code, relating specifically to sexual assault, provides that no consent is obtained where an adult induces the complainant to consent to the sexual activity by abusing a position of trust, power or authority.

[13] In this case, the trial judge found that the appellant was in fact in a position of trust in relation to M.P. In making that finding, he relied on the fact that the complainant, who had a troubled family life, had become integrated into the appellant’s family. M.P. lived with the appellant and his wife at times, cared for his other children and worked in the appellant’s corner store. The trial judge concluded that the relationship that developed between the appellant and M.P. from the time M.P. was 13 was characterized by trust, since it resembled that of a father and his daughter, as opposed to one between a boyfriend and his girlfriend (as the appellant had argued).

[14] Despite his finding that the appellant was in a position of trust in relation to M.P., the trial judge found that the Crown had not proven beyond a reasonable doubt that the appellant had “abused” his position of trust in order to obtain M.P.’s consent to the sexual relationship. He therefore declined to invalidate M.P.’s consent under s. 273.1(2)(c) and acquitted the appellant of the charge of sexual assault.

[15] Turning to the allegation of sexual exploitation, as noted above, the original version of this count in the indictment had alleged only that M.P. was in a relationship of dependency with the appellant. The trial judge found that no such dependency relationship existed between the appellant and M.P. However, at the close of the Crown’s case, the trial judge granted the Crown’s motion to amend the sexual exploitation count by adding the allegation that the appellant had been in a position of trust towards M.P. In his analysis of the sexual exploitation count as amended, the trial judge noted that where an adult is in a position of trust in relation to a young person, it is not necessary for the Crown to prove that the young person’s consent to a sexual relationship was obtained by abusing the position of trust. Instead, the consent of the young person in this context is deemed irrelevant.

[16] Having found that the appellant had engaged in sexual activity with M.P. prior to her 18th birthday, and that he was in a position of trust at the time, the trial judge convicted the appellant of one count of sexual exploitation.

C. Issues

[17] The appellant appeals his conviction on the following two grounds:

(i) the trial judge erred in permitting the Crown to amend the sexual exploitation count by adding the words “or being a person in a position of trust”; and

(ii) the trial judge erred in relying on evidence of M.P.’s relationship with A.L.S. to find that the appellant was in a position of trust towards M.P.

D. APPEAL AGAINST CONVICTION

(1) The Trial Judge Did Not Err in Granting the Crown’s Motion to Amend the Indictment

(a) The Crown’s Motion to Amend

[18] As described above, the sexual exploitation count in the indictment originally alleged that the appellant, “being a person with whom M.P., a young person, was in a relationship of dependency, did, for a sexual purpose, touch directly the body of M.P., a young person, with a part of his body.”

[19] However, after M.P. had testified and while C.P. was being cross-examined, the Crown advised the court that it intended to seek an amendment to add the words “or being a person in a position of trust toward M.P.” to the sexual exploitation count.

[20] The Crown’s motion to amend was heard at the close of the Crown’s case. In seeking the amendment, the Crown argued that there would be no prejudice to the defence if the amendment were granted. The Crown maintained that it was clear throughout the case that issues relating to the nature of the relationship between M.P. and the appellant were key to the Crown’s case. The Crown further argued that whether there was a position of trust between the appellant and M.P. was a live issue from the commencement of the trial since a finding of an abuse of a position of trust could vitiate the appellant’s consent on the sexual assault count.

[21] Defence counsel opposed the amendment, arguing that it would prejudice the appellant and that the Crown should be bound by the particulars in the indictment. Counsel acknowledged that the issue of a trust relationship was engaged with regard to the sexual assault count, but only in the limited sense that consent to sexual activity could be vitiated if the position of trust was abused. The defence recognized that there is latitude in the law to amend indictments to conform to the evidence but submitted that the Crown should not be permitted to widen the net of liability in the manner proposed.

[22] In brief oral reasons, the trial judge allowed the amendment. He recognized that the law permitted amendments to include alternate modes of committing an offence. He further recognized that the ultimate test of whether to grant an amendment is whether the defence would be prejudiced by the proposed amendment. The trial judge found that the amendment did not prejudice the appellant. In his decision, the trial judge highlighted that the underlying conduct in question remained the same, and so the amendment merely placed a different legal label on the same conduct.

(b) Governing Principles

[23] Section 601(3)(b) of the Criminal Code permits a trial judge to amend a count in an indictment to conform to the evidence at trial. There are a number of factors enshrined in the Code at s. 601(4) regarding what must be taken into account when considering whether to make an amendment. The factors include the evidence taken at trial, the circumstances of the case, whether the accused has been “misled or prejudiced in his defence by any variance, error or omission”, and whether the amendment can be made without injustice being done.

[24] The power to amend an indictment at trial is a broad one, since wide powers of amendment promote the determination of criminal cases on their merits and avoid a multiplicity of proceedings: R. v. Irwin (1998), 1998 ONCA 2957, 38 O.R. (3d) 689 (C. A.), at pp. 693-694. As Doherty J.A. noted in Irwin, the “litmus test” against which to assess any potential amendment to an indictment is prejudice to the accused. Provided there is no irreparable harm to the accused and the fairness of the trial will not be adversely impacted, the trial judge may exercise their power in favour of making an amendment: R. v. Bidawi, 2018 ONCA 698, 142 O.R. (3d) 520, at para. 33.

[25] Section 601(6) of the Criminal Code provides that the question of whether to amend an indictment is a question of law. Nevertheless, where the decision to amend is based upon a finding as to whether the amendment will cause irreparable prejudice to the defence, such a finding “should not be interfered with lightly…keeping in mind the trial judge’s privileged position as regards the effect on the fairness of the trial of events taking place in the courtroom”: R. v. Côté, 1986 SCC 93, [1986] 1 S.C.R. 2, at p. 29.

(c) Position of the Parties

[26] The appellant argues that where the Crown chooses to give particulars which narrow the basis for liability, the Crown must prove the offence as initially particularized. He argues that in this case, the Crown specified that the offence of sexual exploitation was based on an alleged relationship of dependency between the appellant and M.P. Having particularized only one mode of commission of the offence of sexual exploitation, it was unfair to allow the Crown to prove the offence by another route after he had committed to a defence.

[27] The appellant relies in particular on the case of R. v. Saunders, 1990 SCC 1131, [1990] 1 S.C.R. 1020, where the accused was charged with conspiracy to import a narcotic. The Crown particularized the indictment to specify that the narcotic was heroin. One of the accused testified and admitted that he had conspired to import other drugs but not heroin. In his charge to the jury, the trial judge stated that the accused could be convicted as long as the jury was satisfied that he had conspired to import a narcotic of any kind, and not just heroin. The Supreme Court of Canada ruled that the court could not amend the indictment in this manner after the accused had committed to their defence since, in those circumstances, it was prejudicial “to permit an amendment fundamentally and retroactively changing the nature of what the Crown must prove”: Saunders at para. 7.

[28] The appellant argues that he suffered a similar prejudice in this case, since defence counsel might well have adopted a different strategy had the sexual exploitation count in the indictment been framed more broadly from the outset. For example, he suggests that had the Crown chosen to initially draft the sexual exploitation count in the indictment to include an allegation of a trust relationship, defence counsel might have chosen to launch a full attack on M.P.’s credibility, cross-examining her to discredit the suggestion that she and the appellant had any sexual relationship before she turned 18.

[29] In contrast, the Crown argues that the trial judge in this case correctly allowed the amendment on the basis that it did not cause any real or irreparable prejudice to the appellant. The Crown points out that whether there was a trust relationship between the appellant and M.P. was a central issue throughout the trial. In fact, during M.P.’s examination in chief, the Crown was asked by the trial judge about the relevance of certain evidence to the charges before the court. The Crown explained that the evidence was “relevant to the issue of a position of trust or authority”, at which point defence counsel responded that he understood that this was part of the Crown’s case.

[30] Nor, the Crown argues, is there any substance to the claim that the amendment prejudiced the defence strategy. The appellant was defending against an eight-count indictment which asserted a variety of different bases for conviction, including but not limited to the existence of a trust relationship between the appellant and M.P. There was formidable if not overwhelming evidence that the appellant and M.P. had a sexual relationship prior to her 18th birthday, including the fact that M.P. had obtained an abortion at around the time she turned 18.

[31] The defence strategy was to acknowledge the existence of a sexual relationship with M.P. but only after she turned 14 and, further, to argue that the relationship was one of boyfriend-girlfriend rather than father-daughter. That strategy secured the appellant’s acquittal on the vast majority of the charges. There is no air of reality to the appellant’s claim that his strategy would have been fundamentally different had the sexual exploitation count in the indictment been framed more broadly at the outset so as to allege the existence of a trust relationship.

(d) Discussion

[32] There is no suggestion that the trial judge erred in his understanding of the relevant legal test, namely, whether granting the Crown amendment would cause irreparable prejudice to the appellant. Rather, it is asserted that the trial judge erred in finding that no such prejudice would result from the proposed amendment in the particular circumstances of this case. As Côté makes plain, a trial judge’s determination as to whether a proposed Crown amendment would result in irreparable prejudice is not to be interfered with lightly, given the trial judge’s privileged position to assess the impact on trial fairness of any such amendment.

[33] In my view, the trial judge made no error in finding that the Crown’s amendment would not cause irreparable prejudice to the appellant. The central issue in this case was the nature of the relationship between the appellant and M.P. The Crown’s theory was that the appellant was a father-figure to M.P., and that their relationship was characterized by dependency, trust and authority. The defence theory, in contrast, was that the relationship was one of boyfriend-girlfriend and had none of the characteristics alleged by the Crown. The amendment to the sexual exploitation count was thus merely an elaboration of the basic Crown theory rather than a change in that theory. Nor was the defence required to alter its strategy in order to mount an effective defence against the sexual exploitation count as amended. The appellant simply put forward the same basic theory, namely, that M.P. was his girlfriend who was not in a position of trust or dependency at that time.

[34] It was well understood by the defence from the outset that the Crown was asserting the existence of a trust relationship between the appellant and M.P., since that was material to the sexual assault count in the indictment. There is thus no basis for the claim that the defence was taken by surprise when the Crown proposed the amendment.

[35] Moreover, the trial judge’s finding of a trust relationship was based primarily on certain objective and uncontested facts, including the age difference between the appellant and M.P., M.P.’s age and development at the time she was living with the appellant, and the evidence of A.L.S., who testified as to the nature of the family dynamics at the relevant time. Significantly, A.L.S. testified after the Crown had served notice of its intention to seek an amendment to count 3 in the indictment.

[36] Finally, although defence counsel opposed the Crown amendment, he did not identify any specific prejudice that would result if the amendment were made, nor did he seek to recall any Crown witness for further examination (see, for example, Bidawi, at para. 18). He simply opposed the Crown amendment on the basis that the Crown should be bound by the particulars in the original indictment.

[37] The circumstances here are clearly distinguishable from those in Saunders, where the accused had elected to testify, giving up his right to silence, and admitted to having imported drugs, after being advised by the court that the Crown was required to establish the existence of a conspiracy to import heroin. The accused in Saunders was therefore irreparably prejudiced by the trial judge’s subsequent instructions to the jury that he could be convicted if it were proven that he had conspired to import a narcotic of any kind.

[38] No such prejudice arises here since the appellant exercised his right not to testify and, instead, essentially argued that the Crown’s evidence did not establish any of the allegations beyond a reasonable doubt. The amendment approved by the court did not materially alter either the Crown or defence theory of the case and thus did not irreparably prejudice the position of the appellant.

[39] I see no error in the trial judge’s finding of no irreparable prejudice and would dismiss this ground of appeal.

(2) The Trial Judge Did Not Err in Relying on Evidence of A.L.S.’s Relationship with M.P. in Finding That the Appellant Was in a Trust Relationship with M.P.

[40] The appellant argues that the trial judge erred in relying upon evidence of the relationship between M.P. and the appellant’s wife, A.L.S., as a basis to infer that the appellant was in a trust relationship with M.P. The appellant argues that, while A.L.S.’ relationship with M.P. may have been analogous to that between a mother and her daughter, and thus one of trust, this did not necessarily mean that his relationship with M.P. was similar. The appellant maintains that his relationship with M.P. was quite different from A.L.S.’s, relying in particular on the complainant’s evidence that she pursued the appellant and regarded him as her boyfriend rather than as a father figure.

[41] I see no error in the trial judge’s treatment of A.L.S.’s evidence. A.L.S. was the other adult who lived in the home with the appellant and M.P. when M.P. resided there. A.L.S. was therefore well-positioned to give first-hand evidence as to the family dynamics and treatment of M.P. while she was living with the family. A.L.S.’s evidence was that at the relevant time, M.P. was being treated more like a teenage daughter in the household. Further, this portion of the trial judge’s reasons does not focus solely on M.P.’s relationship with A.L.S., but rather on, in the trial judge’s words, “the close relationship that had developed between [M.P.] and the [S.] family”. The trial judge was entitled to consider the evidence of A.L.S. as circumstantial evidence relevant to his assessment of the relationship between the appellant and M.P.

[42] Moreover, contrary to the defence submission, it was not necessary for the Crown to prove that the complainant herself viewed the relationship as one of trust: R. v. Aird, 2013 ONCA 447, 307 O.A.C. 183, at para. 24. As the trial judge correctly pointed out, it is sufficient if, having regard to the age differential between the young person and the accused, the evolution of their relationship, and the status of the accused in relation to the young person, the court is satisfied beyond a reasonable doubt that the accused was in a position of trust: R. v. Audet, 1996 SCC 198, [1996] 2 S.C.R. 171, at para. 38.

[43] In any event, the appellant has failed to identify any legal error in the trial judge’s analysis but, rather, simply asks this court to substitute its findings of fact for those of the trial judge. It is obvious that this is not an appropriate basis for intervention by this court, given the deference owed to a trial judge’s findings of fact: R. v. Morrissey 1995 ONCA 3498, [1995] 22 O.R. (3d) 514 (C.A.), at p. 538; R. v. Zaher, 2019 ONCA 59, at para. 23.

[44] I would therefore dismiss this ground of appeal.

E. Sentence appeal

[45] The Crown agrees with the appellant that the SOIRA order in this case should apply for a period of 20 years rather than for life, since the maximum term of imprisonment for the offence upon which the appellant was found guilty is 14 years. [1] The Crown further agrees that in light of the decision of the Supreme Court of Canada in R. v. Boudreault, 2018 SCC 58, [2018] 3 S.C.R. 599, which held that the mandatory imposition of a victim fine surcharge is contrary to the Charter, the victim fine surcharge imposed on the appellant should be set aside.

[46] Based on the above, I would grant leave to appeal the appellant’s sentence and vary the appellant’s sentence to the extent and in the manner requested.

F. Disposition

[47] While I would dismiss the appellant’s conviction appeal, I would grant leave to appeal the appellant’s sentence and vary his sentence, but only to the extent that: (i) the SOIRA order shall apply for a period of 20 years rather than for life; and (ii) the order that the appellant pay a victim fine surcharge of $200 is set aside.

Released: September 26, 2023 “S.E.P.”

“P. J. Monahan J.A.”

“I agree. S.E. Pepall J.A.”

“I agree. J. Copeland J.A.”

[1] See Criminal Code, ss. 490.013(2)(b) and 153(1.1)(a).