COUR DE JUSTICE DE L'ONTARIO

Publication Ban Notice

This decision is subject to an order limiting the publication of any information that could identify a complainant or witness – section 486.4 of the Criminal Code.

Parties

Her Majesty the Queen

and

R.G.1

Counsel:

• Me C. Thibault, Crown Prosecutor
• Me N. St-Pierre, Counsel for R.G.1

Judge: Gilles Renaud

Introductory Comments

[1] R.G.1, born January 25, 1961, is charged with having had sexual contact with an adolescent, M. JCP, when the latter was less than 18 years old and more than 16 years old, in violation of section 153(1.1) of the Criminal Code, by reason of the fact that R.G.1 obtained the consent of M. JCP by exploiting a situation of trust that bound him to the complainant.

[2] The Crown examined M. JCP, his mother Madame S.P., and a peace officer, Constable Villeneuve, an expert witness regarding computers. R.G.1's counsel examined R.G.1's brother and sister-in-law and relied on comments made to Constable Chevalier during an interrogation.

[3] The court analyzed the testimony and exhibits through a thematic overview that follows, then reviewed the principal judgments that set out the elements of this offence, and finally the court will enumerate its conclusions in light of this review of the facts and the law.

The Charges

[4] On October 3, 2012, R.G.1 pleaded not guilty to the following two charges:

1. ... between September 1, 2007 and March 31, 2008, in the city of Ottawa, in the eastern region, while you were in a position of authority or trust towards an adolescent, touched for sexual purposes, directly, with a part of your body, namely the penis, the body of JCP, in contravention of section 153(1.1) of the Criminal Code;

2. ... between September 1, 2007 and March 31, 2008, in the city of Ottawa, in the eastern region, while you were in a position of authority or trust towards an adolescent, incited for sexual purposes, namely JCP, to touch with a part of his body, namely the penis, your body ... in contravention of section 153(1.1) of the Criminal Code.

The Crown's Election

[5] On February 21, 2012, the Crown elected to proceed by summary conviction, with the permission of the accused.

R.G.1's Plea

[6] R.G.1 pleaded not guilty to both charges.

A Thematic Overview of the Testimony

[7] At the outset, it will be useful to review the testimony and exhibits so that the court can understand the background that connects the parties and the evidence that might support the Crown's theory, as well as the evidence that tends to cast doubt on this theory, given the heavy burden that the Crown must assume.

R.G.1 Denied the Charges

[8] Although he did not testify, R.G.1 denied the charges during an interview with Detective Chevalier, an interview that was entered into the record by the Crown and whose content is admissible for the purposes of the defence. Furthermore, R.G.1's statement to Constable Chevalier is categorical: R.G.1 said at one point to Madame S.P., the mother of the complainant M. JCP, that he had not committed the acts he was accused of. See page 39/92. Furthermore, Madame S.P. testified that R.G.1 had, at one point, denied having sexual relations with her son, M. JCP. See page 127, line 12.

[9] R.G.1 denied any contact on the military base. See page 68/92 of the interview with Constable Chevalier. Furthermore, R.G.1 denies having committed sexual acts with M. JCP before the latter reached the age of 18. See page 79/92.

The Date of Birth of M. JCP

[10] M. JCP was born on [...] 1990, and therefore celebrated his 18th birthday on [...] 2008. He testified when he was 22 years old, in 2012. His date of birth was confirmed by his mother. See page 5.

His Employment

[11] M. JCP noted that he had a position at Wendy's since his birthday in 2012.

His School Record

[12] M. JCP explained that he obtained a certificate equivalent to a secondary school diploma.

His Primary Education

[13] M. JCP had difficulty recalling the details of his educational journey, apparently due to the years and frequent changes of location he experienced. Thus, he studied in Louisiana, then in Welland, at school C[...] to undertake his level three, then to study in Welland for levels four, five, and six at school R[...] then C[...], for levels seven, eight and nine.

[14] The complainant noted that he had failed a grade in Louisiana due to his English deficiencies and was therefore one of the oldest in his primary class.

Secondary Education

[15] As indicated above, M. JCP began his secondary education in Welland, then studied in Ottawa at School F[...], for the tenth grade. See page 13, line 20. First note of uncertainty, M. JCP said: "it seems to me..." Furthermore, M. JCP was uncertain about his age when he arrived in Ottawa. See page 13, line 28, saying "16-17", which would indeed be somewhat old for a student enrolled in tenth grade. See also page 74.

[16] Furthermore, on page 74 and elsewhere, M. JCP is unable to tell us precisely his school grade upon arrival in Ottawa, although he believed he was 17 years old. This uncertainty is evident throughout the cross-examination, and not only on this subject, far from it!

Residences and People He Lived With

[17] M. JCP testified on page 14, lines 8-9 that when he moved to Welland, he lived with his mother. Now, R.G.1 would have experienced certain problems and he joined M. JCP and his mother, around the fourth or fifth grade, he could not recall with certainty. See page 17, line 19 of his testimony and page 7 of his mother's testimony, which, by the way, is also fraught with uncertainty regarding dates on this subject, as on many others. She believes that R.G.1 lived under their roof for more than two years. R.G.1 lived with them in Welland for approximately three years, as we read on page 18, line 17. The witness is not certain, far from it, on this subject as it appears on page 19, lines 3-12. As evidence of uncertainty, note the use of the word "vague".

[18] M. JCP clarifies that his mother and R.G.1 never had a romantic relationship and they lived as roommates.

[19] In cross-examination, as it appears on pages 77 to 84, M. JCP is unable to specify when and where R.G.1 lived in Welland, either when they maintained good relations, or when he and his mother were at odds with R.G.1. M. JCP believes he visited R.G.1 at his apartment and elsewhere but everything is vague.

[20] For his part, R.G.1 advises Detective Chevalier that he lived with M. JCP and his mother but without being able to specify the dates. See page 5/92 and page 6/92. Furthermore, he did not know if M. JCP was 17 or 18 years old when he arrived in Ottawa. See page 14/92.

[21] In any case, M. JCP testified on page 14, line 16 that when he moved to Ottawa, he lived with his mother and with Madame K.B.. The Crown asked him on page 20, at the bottom, what date he left Welland for Ottawa while suggesting to him that it was in 2008. The witness responded, "... It seems to me when I moved to Ottawa, I was 17..." See page 21, line 4. Later, the complainant was very comfortable testifying that he and his mother moved in with his mother's best friend, Madame K.B., in Kanata. He then said he was about 17 years old. See page 21, line 16 and page 85, line 8 and thereafter.

[22] Madame S.P. believes she moved to Ottawa with her son "probably in 2007." See page 3, line 29. Madame S.P. notes on page 3, line 21, of her testimony that she "... is not good with years ... I'm not very good with dates...."

[23] It will be recalled that M. JCP was born on [...] 1990, and therefore celebrated his 17th birthday on [...] 2007. No testimony succeeded in shedding useful light on this date, which creates great uncertainty, except that Exhibit 5, the school file, comes to our aid.

[24] Now, M. JCP indicates further that following difficulties in adapting at K.B.'s place, he must leave. Without explaining how, he says he renewed his ties with R.G.1, who was living with his brother and sister-in-law, and he proposes to live there. See page 21, line 22.

[25] In cross-examination, M. JCP relates that he is uncertain about when he and his mother left Welland and what his age was at that time, important elements if he is telling the truth about his attempts to renew his father-son ties with R.G.1 and, also, in order to have the necessary time to become involved in the drug scene, as will be discussed further. Expressed differently, the later his departure to Ottawa, the more restricted is his leisure time to carry out the two "advances", if you will pardon the expression.

[26] In any case, M. JCP says repeatedly that he is unable to recall the dates or his age at that time.

[27] On page 52, line 13, M. JCP notes that he does not remember when his mother bought the house in Orleans. This uncertainty is surprising because it is a key element of the trial, because it is possible that he lived there with R.G.1 during the period described by the denunciations. Part of his uncertainty is related to the fact that he lived elsewhere with his girlfriend, it seems. Furthermore, M. JCP relates that it was R.G.1 who convinced Madame S.P. to allow her son to return home, despite his violence such as punching walls, which will be discussed extensively further. See page 52, line 31.

[28] Me St-Pierre suggests in cross-examination that M. JCP left the house of R.G.1's brother on March 15, 2008. See page 95, line 23. See also the witness's uncertainty starting on page 120.

[29] Furthermore, R.G.1 indicates to Constable Chevalier that the parties renewed their acquaintance before the arrival of Madame S.P. and her son in Ottawa without being able to specify how this renewal of their friendship was effected. See page 8/92 and page 11/92. As for the fact that M. JCP moved in with R.G.1 on the military base, it was to help Madame S.P. while she obtained a house. See page 12/92.

The Meeting with R.G.1

[30] When the Crown asked M. JCP about the circumstances of his meeting with R.G.1, his response was: "He was a – I don't know exactly, what was his role, I think he was an educator or something like that, but ... because I had concentration problems because I have attention deficit, so it happened that – it seems to me it was every day, I would go to his office and we would do projects..." See page 14, line 25 and thereafter. So, still elements of uncertainty at this level.

[31] Later, on page 15, line 8, M. JCP clarifies that it was the third grade, and that this support lasted one year because School C[...] did not offer levels higher than the third. See page 16, line 32.

The Deficiencies from Which M. JCP Suffered

[32] M. JCP highlighted very early in his testimony that he experienced learning difficulties in Welland: "... because I had concentration problems, because I have attention deficit..." See page 14, line 25 and thereafter. Although the court did not obtain expert evidence on this subject, it seems clear that caution must be exercised in evaluating M. JCP's testimony, particularly testimony that goes back several years. M. JCP clarified on page 16, lines 1-2, that he had been prescribed Ritalin and Strattera. Furthermore, he testified on page 16, line 24 that he functions perfectly today without the help of these medications.

[33] That being said, M. JCP showed uncertainty as to the date when he stopped using them, indicating on the one hand that he discontinued this use around age 17, if not at 16, while noting that this dates back perhaps three years, which would mean around age 19. See page 16, lines 16-28 and page 48, line 19.

[34] Furthermore, M. JCP testifies on page 41, line 19, that because of his attention deficit, he liked to consume "pot", for its "calming" effects.

The Position of Authority That R.G.1 Could Assume in Welland

[35] The court is of the opinion that very little importance attaches to this question, because of R.G.1's departure to Ottawa thereafter and the fact that a significant period of time separates the parties. Therefore, this review is offered as information bearing on the history of the parties. That being said, all agree that R.G.1 helped M. JCP as a teacher and director, and that he lived with him for some time, in Welland.

Academic Support

[36] M. JCP testified that it seems to him that he visited R.G.1 every day, as expressed on page 14, line 29, and, moreover, that "... I would go do my work with him sometimes." See page 15, line 4. There is an element of uncertainty, on the one hand, and especially, it is an initial testimony that does not suggest tight academic supervision or that R.G.1 was a tutor in the strict sense of the word. Of course, the witness will provide clarifications but it is always important to note how a witness approaches a subject that proves to be important.

[37] In cross-examination, M. JCP recalls with little certainty that R.G.1 himself had proposed to Madame P. that he would help M. JCP with his homework, while paying rent. See page 78, line 10 and thereafter. Great uncertainty hovers over this subject.

[38] Madame S.P. testifies starting on page 6 that R.G.1 was very involved with her son, even calling him in the evening to report on his progress.

Director at School R[...]

[39] M. JCP tells us on page 1, line 9, that R.G.1 was the director of School R[...] while he studied at the levels of the fourth, fifth and sixth grades. It should be noted that M. JCP continues by saying: "Yes, because there was a time when he had problems where he lived and he moved in with us." This clarification followed the question: "... were you still in contact with R.G.1 ..." during these three school years? Thus, M. JCP does not mention a student-teacher relationship as his first response nor a student-director relationship.

[40] Later, on page 80, line 8, he clarifies that R.G.1 was his director for levels 4, 5 and 6.

Support for a Woman Without a Spouse

[41] M. JCP stated on page 18 that R.G.1 knew that Madame P. was experiencing certain difficulties with the behavior that he, M. JCP, was displaying and he offered to help, while becoming a roommate.

A Paternal Role?

[42] M. JCP expressed himself as follows to the question of what his relationship was with R.G.1: "At first ... it was just a family friend, then as the years went by, it developed into a father and son relationship. Because I haven't seen my father since I think I was four years old, so I didn't really have a paternal role." See page 18, lines 10-16. The court gave itself the directive from this testimony to be careful not to confuse the subjective hopes of a lonely child on this subject and the objective evidence, if any, of gestures and facts on the part of R.G.1 that could lead to such a conclusion.

[43] In any case, M. JCP relates on page 19 that there was a falling out with R.G.1 and that at one point, in his eyes, R.G.1 was "... more than just a family friend..." Expressed differently, M. JCP suffered the consequences of this "fight", to use his expression, and he realized that his malaise was not what one knows when a friend leaves following a dispute. M. JCP was convinced that there had been no contact for a few years following this misunderstanding. See page 19, line 23. He is unable to specify the duration of this separation and this uncertainty is evident on page 19, lines 20-30 and is often seen during cross-examination.

[44] It must be clarified, however, that R.G.1 made a point of saying goodbye, if not farewell, to M. JCP before leaving for Ottawa and this meeting took place at M. JCP's school at the time. See the middle of page 20. In cross-examination, M. JCP clarifies that at this final meeting, he and R.G.1 had managed to get along, which is curious given the absence of contact for the next two years, at least. See page 86.

[45] Later during his testimony, M. JCP provided clarifications about the activities they shared with R.G.1 in Welland, namely going to restaurants and watching movies together. See page 26, lines 6-10.

[46] As for the fact that R.G.1 would have presented M. JCP to third parties as his son or his boy, M. JCP related on page 26, lines 17-23, that this occurred in Welland, although he had not mentioned this situation previously when describing his relationship with R.G.1. R.G.2, for his part, had never heard of such a situation at that time.

[47] In cross-examination, on page 80, line 25 and thereafter, M. JCP clarifies that he slept at R.G.1's place when the latter lived in Welland, but elsewhere than at M. JCP's. Furthermore, M. JCP is quite uncertain about the dates, events, movements, etc., especially because "... it's been quite a while." See page 84, line 23.

[48] Note that Madame S.P. said almost at the beginning of her testimony that: "... it's always me who raised her alone until R.G.1 came into our lives..." See page 5, line 15.

Was R.G.1 a "Specialized Educator"?

[49] The Crown suggested to the witness on page 15, line 12, that R.G.1 must have been a specialized educator. In response, M. JCP said: "It seems to me that yes." Once again, this response contains an element of uncertainty. Furthermore, M. JCP believes that R.G.1 helped other students who had the same problems, but his response contains the comment "... as far as I think..." See page 15, line 21.

[50] Furthermore, the Crown suggests on page 50, line 5, that R.G.1 was a specialist who provided him with help. So, M. JCP agrees that he received "one on one" support from R.G.1.

[51] Madame S.P. sheds useful light on this question by testifying that R.G.1 was a teacher for children who experienced difficulties and he held this role with her son starting in the third grade, in Welland. See page 5, line 25.

Did R.G.1 Teach M. JCP?

[52] M. JCP testified that he was not enrolled in a class taught by R.G.1.

A Precise Memory Regarding M. M.K.

[53] When it comes to evaluating the memory that M. JCP possesses, it will be opportune to note his detailed comments at the beginning of page 16 about this friend, comments that seem both coherent and credible.

The Situation of R.G.1 and the Complainant in Ottawa

The Renewal of Their Friendship

[54] M. JCP testified that following difficulties in adapting at K.B.'s place, he must leave. Without explaining how, he says he renewed his ties with R.G.1, who was living with his brother and sister-in-law, and he proposes to live there. See page 21, line 22. One thing led to another, and his mother agreed. It is evident that M. JCP visited R.G.1 alone.

[55] Furthermore, according to M. JCP, it was R.G.1 who proposed this move. Thus, "... R.G.1 had suggested it to me and my mother, and I said, 'yes, yes, yes', because as I told you, when we came back to Ottawa, our relationship that was more than a family friend in Welland became okay again." See pages 21-22, towards the bottom. M. JCP adds on page 22, line 3, that the parties had explained themselves, and it was evident that living in Rockliffe brought him significantly closer to his school.

[56] Furthermore, regarding the question of how the parties renewed their relationship in Ottawa, Me St-Pierre asked a question on page 85 and M. JCP said: "... having the opportunity, because I lived in Kanata, we started to see each other again and spend time and rebuild our relationship that I had, father and son, it's sure that I wanted to see my father at that point, at that time, more than once or twice a week." See page 85, line 24.

[57] For convenience, note at this stage that the court immediately recorded a note to the effect that it was surprising that M. JCP thus undertook, in cross-examination, to call R.G.1 his father because he had not done so previously.

[58] Once again, M. JCP's testimony is filled with mentions to the effect that he could not specify the periods of time in which all these steps were taken. See page 86 and thereafter.

[59] R.G.1, in discussing the file with Constable Chevalier, his brother and sister-in-law, also seem uncertain on this subject, although it seems that R.G.1 visited M. JCP and his mother S.P. at the cottage in Gaspésie.

A Paternal Role in Ottawa?

Presentations as Father?

[60] While M. JCP was explaining how he came to live with R.G.1 at his brother's place, he provided additional information about his relationship with R.G.1, information he had omitted to provide previously although he had had the opportunity: "... I had never had a father and it's always been my role of father and I would say my father. When I introduced him to my friends, I always said 'that's my father.'" See page 24, lines 14-15.

Restaurant Outings?

[61] M. JCP related on page 24, line 18 and thereafter: "We went to restaurants together, we took walks, when I had homework that I needed help with, he helped me with my homework, there were times when ... he threw me a football when I was trying to make the football team at school F[...]. He played ... later ... he played video games with me too. We watched sometimes ... we were in his bed and we watched movies together or TV shows together. He sometimes took me out in the evening for ice cream on weekends. Activities like that."

Taking Walks Together?

[62] See what M. JCP related on page 24, line 18 and thereafter.

Helping to Complete Homework?

[63] See what M. JCP related on page 24, line 18 and thereafter.

[64] Me St-Pierre argued vigorously that R.G.1 could not help M. JCP with his homework because he did none. However, N. JCP testified on page 121, line 30 and thereafter that he did homework, and with R.G.1's help.

Helping M. JCP Practice Football?

[65] See what M. JCP related on page 24, line 18 and thereafter.

[66] Regarding football, cross-examination established without ambiguity that there was no team and therefore that everything related to football was a blatant lie! See pages 107 and thereafter.

Playing Video Games?

[67] See what M. JCP related on page 24, line 18 and thereafter.

Watching Movies and TV Shows in R.G.1's Bed?

[68] See what M. JCP related on page 24, line 18 and thereafter.

Enjoying Ice Cream Cones?

[69] See what M. JCP related on page 24, line 18 and thereafter.

Did R.G.1 Control M. JCP's Money?

[70] Following the testimony that R.G.1 would have offered fifty dollars in exchange for sexual services, which is found on page 27, line 16, M. JCP testified that he was experiencing financial difficulties and that not only was R.G.1 aware of this situation, he sought to take advantage of it by monetizing sexual services. See page 28, line 5 and thereafter. What matters is the comment that he confided in R.G.1 because he was "like my father", whereas his mother was more strict on this account.

[71] Further, M. JCP testified that R.G.1 often offered him money to obtain M. JCP's cooperation but he did not often say when these gestures took place. See page 44, line 10 and thereafter. M. JCP added that R.G.1 had access to all his bank accounts and exercised obvious control over his finances, which would amount to a situation of authority.

[72] Once again, let us emphasize that the witness was vague about the dates when this situation occurred.

[73] R.G.1 discusses this question with Detective Chevalier starting on page 41/92 and shows that although he lent money to M. JCP, it was indeed a loan and not an exchange of services. R.G.1 seems to indicate on page 42/92 that he had control over bank accounts for M. JCP's benefit.

[74] R.G.1 denies that he ever offered or paid for sexual acts. See page 63/92.

Did R.G.1 Present M. JCP as His Son?

[75] As for the fact that R.G.1 would have presented M. JCP to third parties as his son or his boy, M. JCP related on page 26, lines 17-23, that this occurred in Welland, although he had not mentioned this situation previously when describing his relationship with R.G.1, as already discussed by the court.

[76] Later, on page 67, M. JCP returns to this subject and testifies that R.G.1 was perceived as his father within his family. However, still on page 67, line 13, the Crown held out a hand by suggesting to the witness that R.G.1 had always been involved with his family but the witness said: "Not all the time because ..." to continue by saying that his family did not really know that he held such a role.

[77] M. JCP adds that he received a two hundred dollar birthday gift from R.G.1 and his card contained the wishes "happy birthday son". He had already received another one saying "Happy birthday my son". Neither of these cards was entered into the record. In any case, R.G.1 would have said to M. JCP "I love you, my son" from time to time. See page 68, line 28 and page 107, lines 17 to 22. See also page 123, line 24.

[78] In fact, M. JCP testifies that he burned the cards and all the photos following the situation in the Dominican Republic. See page 108, line 2.

Madame S.P. said that R.G.1 said: "... [JCP] asks me to act as a father to him, well he must act as a son to me..." See page 102, line 5.

The School File

[79] Exhibit 5 seems to establish, without real challenge from Me St-Pierre, that R.G.1 was present when Madame S.P. enrolled her boy in secondary school in Ottawa. One must therefore ask the question: Was R.G.1 going to pick M. JCP up from school? R.G.1 "testified" to Constable Chevalier that he sometimes picked M. JCP up from school to help her out. See page 16/92. Furthermore, R.G.1 seems to accept, reluctantly it must be said, that he drove M. JCP to the psychologist and that he would have participated somewhat in the latter's work. See page 30/92 and thereafter. Finally, Madame S.P. testified on page 156, line 16 and thereafter that she would have signed the document on August 28, 2007.

Activities Involving M. JCP, His Mother, and R.G.1

[80] This subject is discussed on page 24 and thereafter and, although it is difficult to determine what time period is in question, M. JCP raises that when they lived together the three years before he turned 18, which brings us back to a brief period in Kanata, it amounted to tuning in to TV all three. In fact, there were rarely activities for three, except for sharing a meal.

The Control That M. JCP Exercised Over R.G.1

[81] Me St-Pierre succeeded in demonstrating that M. JCP was not worthy of belief when he denied on page 133 that he had not told R.G.1 that he was able to control him. By means of a recording, Me St-Pierre accomplished two things at once: M. JCP could answer embarrassing questions with a no that was not reliable while demonstrating a violent and manipulative side, and this term of manipulator is apt to push the court to reject testimony, if the interests of justice require it.

Discipline in the Home of Rejean and L.G.

[82] Madame S.P.'s testimony is to the effect that "... I imagine [that] it was R.G.1 who took care of it ... the most ...". See page 115, line 26. She says on page 116, line 14, "... that's what I think ..." Furthermore, Madame S.P. discussed this question at several points during her testimony, notably on page 128, and she stated categorically that R.G.1 actively participated in the development of discipline techniques, an important question if it is established that he and M. JCP had sexual contact at the same time and if he was then a minor. In sum, she relies on the discussion with R.G.1 which resulted in the message: "Don't worry, I'll take care of him", delivered when R.G.1 came to Kanata to pick up M. JCP so he could move in with R.G.1 at his brother's place. See page 130, line 29.

[83] Once again, the accused's brother and his wife are categorical that R.G.1 was not involved at all in this matter.

The Question of Medications

[84] Madame S.P. testified on page 110 that R.G.1 ensured that M. JCP took his medications. See page 110, line 25.

R.G.1 Would Have Paid the Drug Dealer

[85] Madame S.P. testified on page 111, line 13, that R.G.1 would have told her that he had "hidden" drugs in his room on the base it seems, relying on the context of the questions, and that he would also have said he had the intention of paying the dealer. It is clear that this is not the house in Orleans because we are talking about the second floor and we are talking about episodic meetings and not meetings involving two people living under the same roof.

The First Sexual Contact?

[86] M. JCP testified that the first sexual contact occurred when he was 16 or 17 years old. See page 27, starting at line 10. The witness described massages he offered to R.G.1 as the starting point towards sexual contact. Then, he described an evolution towards massages of a sexual nature, by means of the offer of fifty dollars, and then a series of sexual gestures.

[87] What stood out during the nomenclature of these gestures on page 27 was the comment that followed: "... but because it didn't excite me, I had erectile problems, and he would say 'you're getting soft', and sometimes he would get angry. So it made me feel bad. It made me feel like a feeling of rejection, so I always tried to do more, just for him, so he would be happy." See lines 18. When M. JCP uttered these words, I noted that he seemed genuinely moved by emotion.

[88] During cross-examination, and elsewhere, M. JCP spoke of sexual gestures involving anal penetration and often said that R.G.1 criticized him at this level because he "was getting soft". See page 103, line 24. The witness explained himself by saying that he did not like this kind of activity, not being homosexual, but that he wanted to please R.G.1. Having mentioned this page, the court hastens to add that it will not be able to take this specific testimony into account because it would be gestures committed in Quebec and undoubtedly after his majority. If this testimony is well-founded, a question to be settled at the conclusion of the judgment, it could help the Crown in the sense that it demonstrates a state of mind of M. JCP that is remarkable and which he remembers notwithstanding the delays and the abuse of drugs, alcohol, etc.

[89] In cross-examination, M. JCP clarified that "... R.G.1 did not sexually exploit you before 2007 ..." See page 84, line 24.

Other Sexual Contacts – On the Military Base

[90] M. JCP described a litany of gestures and it would be futile to seek to repeat them, because except for the bathtub incident, during driving lessons and during walks in the nearby park, the court could not conclude that these gestures would have been committed before turning 18 or before March 31, 2008.

The Bathtub Incident

[91] That being said, it will be useful to note that M. JCP described sexual activity that took place at the home of R.G.1's brother, one evening when the brother and his wife were absent for the night. Page 33 and thereafter describe sexual activity in the bathtub, following heavy alcohol consumption. M. JCP claims to have been 17 years old at that time.

Driving Lessons

[92] M. JCP said on page 34, line 15, that sexual contact involving R.G.1 and him arising from driving lessons occurred when he was more than 17 years old. Similarly, R.G.1 would have offered him money during these situations, but he had reached his majority. Furthermore, M. JCP indicates on page 52 that he would have driven once with his mother and R.G.1, but it is impossible to know if it was before his 18th birthday.

Sexual Contacts in the Park Near the House on Via Vista

[93] M. JCP testifies starting on page 56 that he and R.G.1 had sexual activity during walks in a park not far from their house, still on the military base. He believes there were two incidents, at most. There were gestures that involved one and the other at one point, not to mention alcohol.

[94] The court notes that M. JCP said to the investigator: "... but it's all fuzzy in my head about the woods..." See page 96, line 28 and page 102, line 18.

[95] M. and L.G. testified precisely and consistently that such gestures were not possible because M. JCP stopped going into the woods to smoke in secret when he was allowed this habit at home.

Sexual Contacts in the House of R.G.1's Brother

[96] M. JCP testifies starting on page 58, line 23, that occasionally, he and R.G.1 exchanged sexual caresses, and so on, in R.G.1's bedroom, while they seemed to be watching TV, notwithstanding that R.G.2 and his wife were in the house, also watching TV. The door was closed, according to the witness.

[97] The witness adds that R.G.1's brother and sister-in-law had gambling problems and were often absent from the house. See page 59, line 8. He does not say they were away overnight; rather that they were absent until the early morning hours.

Sexual Contacts in Orleans

[98] M. JCP discusses this question starting on page 54 but the court does not retain these elements of the record, because this period of time, following March 2008, is not part of the denunciations, leaving aside the fact that he was very likely of age at that time.

Sexual Contacts Before Living with R.G.1 on the Military Base

[99] M. JCP testifies on page 56, line 17, that before living at R.G.1's brother's place on Via Vista Street, he had not undertaken sexual contact with R.G.1.

The End of the Friendship – The Dominican Republic

[100] M. JCP testified on page 34, line 27, that the sexual gestures ended following a quarrel that occurred in the Dominican Republic. He was 20 years old at that time. It is unnecessary to review this incident because it is not relevant to our file, except if it helps to demonstrate that M. JCP is not reliable as a witness, both by his violent temperament, both by his tendency to lie, without forgetting the possibility that this incident prompted him to want to harm R.G.1. In any case, M. JCP's testimony being amply supported in this regard by his mother, and having very little relevance even for the subjects enumerated above, it profits us not to return to it except to note that according to M. JCP, it was the second time he had reported to his mother the existence of sexual relations with R.G.1.

[101] That being said, R.G.1 relates to Constable Chevalier that this incident demonstrates once again the violent nature of M. JCP, his abuse of alcohol and drugs and his capacity for lying.

Communicating the Real Situation to His Mother

[102] In the context of his testimony regarding the fight in the Dominican Republic, M. JCP said:

"... I had mentioned it once but [she had believed] me half, not really due to my situation. I wouldn't have believed myself either because at that point – at that time, when I told her at first, I had a lot of rage problems, I was always punching walls, I was always fighting with R.G.1, and I had a big problem with lying. I was – it's just I had – I had always had – when I started lying a lot it's because I had problems with acceptance, I was afraid that people wouldn't like me for who I am, so I told lies so people would think better of me, that they would find me cooler..."

[103] See page 38, line 15 and thereafter.

The Question of Lies

[104] As noted earlier, M. JCP declared to the court on page 29, line 32, that he participated in sports teams, and that he was often among teams where he was the youngest because of his talent, a comment that receives no support in the record. Furthermore, there was no football team at his school, so he lied to the court when he testified that he asked R.G.1 to help him practice this discipline.

[105] In the context of his testimony regarding the fight in the Dominican Republic, M. JCP said:

"... I had mentioned it once but [she had believed] me half, not really due to my situation. I wouldn't have believed myself either because at that point – at that time, when I told her at first, I had a lot of rage problems, I was always punching walls, I was always fighting with R.G.1, and I had a big problem with lying. I was – it's just I had – I had always had – when I started lying a lot it's because I had problems with acceptance, I was afraid that people wouldn't like me for who I am, so I told lies so people would think better of me, that they would find me cooler..."

[106] See page 38, line 15 and thereafter.

[107] The witness continues, he lied about his hockey successes, and in order to explain why he received a bad grade and the fact that he was going to retake a test, hide the fact that he had skipped a class. He added that this was a period when he was a teenager, so he described himself as an inveterate liar during the period that concerns us. In fact, the witness said that R.G.1 often described him to Madame P. in terms of "an angry guy and a pathological liar." See page 39, line 25. Furthermore, he mentions the jibes "radio liar" and "every time he opens his mouth it's to tell a lie."

[108] What matters for our purposes is that these accusations made by R.G.1 about rage but especially about lies were being made while M. JCP was living with him, on the military base. See page 40, line 5.

[109] R.G.1 told Constable Chevalier that M. JCP was responsible for several incidents of violence and was not worthy of belief. See page 15/92 and page 16/92, and thereafter.

The Question of Rage

[110] In the context of his testimony regarding the fight in the Dominican Republic, M. JCP said:

"... I had mentioned it once but [she had believed] me half, not really due to my situation. I wouldn't have believed myself either because at that point – at that time, when I told her at first, I had a lot of rage problems, I was always punching walls, I was always fighting with R.G.1, and I had a big problem with lying. I was – it's just I had – I had always had – when I started lying a lot it's because I had problems with acceptance, I was afraid that people wouldn't like me for who I am, so I told lies so people would think better of me, that they would find me cooler..."

[111] See page 38, line 15 and thereafter, and especially starting on page 121. It is a sad read, especially when one reads the question: "... did you pull a knife into a wall in Orleans?" and the complainant responds by saying: "It's a possibility...!" He says more or less that drug abuse could well have harmed his memory. See page 122, line 31.

[112] In fact, the witness said that R.G.1 often described him to Madame P. in terms of "an angry guy and a pathological liar." See page 39, line 25.

[113] What matters for our purposes is that these accusations made by R.G.1 about rage but especially about lies were being made while M. JCP was living with him, on the military base. See page 40, line 5.

[114] Further, M. JCP describes himself as a "time bomb" on page 49, line 14, describing his state of mind at the time he was 17 years old. He adds that this problem had been going on for several years.

[115] And yet, M. JCP tells us on page 49 that he has always had problems managing his aggression, his rage, and he has therefore been followed by psychiatrists and psychologists.

[116] In cross-examination, M. JCP relates starting on page 90 that he often had moments of anger, described as explosive behavior. See also page 106 and thereafter.

[117] All these elements of evidence caused the court to hesitate several times during its examination of the evidence before being able to judge whether the complainant was worthy of belief and reliable regarding the accusations made against R.G.1.

[118] R.G.1 told Constable Chevalier that M. JCP was responsible for several incidents of violence. See page 15/92 and page 21/92 and 22/92 and especially the following pages where Punta Cana is discussed.

[119] It is therefore easy to conclude, even before hearing the prosecutors argue, that M. JCP was violent, as police reports and the testimony of Madame S.P. (and R.G.1 to the police) make clear. See, as a final example, page 113, line 2.

R.G.1's Circle of Friends

[120] M. JCP described on page 40 that he sometimes went with R.G.1 to visit a friend, Monsieur André, and the latter's friend, Madame Micheline, and the latter advised him not to lie. Such discussions, if they took place, show that M. JCP maintained close relationships with R.G.1, and not only as roommates. See page 40, line 9.

Could R.G.1 Count on Leisure Hours to Sleep with M. JCP During His Brother's and Sister-in-Law's Absence?

[121] As discussed elsewhere, the court notes that the recording of October 29, 2007 by which M. JCP is seen, rightly so, as being petty and violent, also leads to the conclusion that R.G.1 could count on several hours alone with M. JCP in the house in Rockliffe. See page 134, line 10 and thereafter.

[122] Madame S.P. agreed with Me St-Pierre, on pages 107-108, that R.G.1 was very busy with his teaching, his research, and his weekend work to help M. Serge...

M. JCP's Money Problems

[123] Following the testimony that R.G.1 would have offered fifty dollars in exchange for sexual services, which is found on page 27, line 16, M. JCP testified that he was experiencing financial difficulties and that not only was R.G.1 aware of this situation, he sought to take advantage of it by monetizing sexual services. See page 28, line 5 and thereafter. What matters is the comment that he confided in R.G.1 because he was "like my father", whereas his mother was more strict on this account.

[124] Regarding his debts, M. JCP provided information that makes him look very bad in the eyes of the undersigned, especially when he discusses the fact that he was selling drugs. See page 28, line 15 and thereafter. The first impression the court had upon hearing this evidence was very negative, and nothing since has led us to retain this element of his testimony, especially the alleged assault that M. JCP suffered. The litany of drugs that M. JCP took seemed much more likely to explain his lack of money, and not the armed robbery invoked by the complainant.

[125] For his part, R.G.1 admits to Constable Chevalier that he made loans to M. JCP when he found himself in misery because of drugs. See pages 62 and 63/92.

[126] Madame S.P. indicates at several passages in her testimony that R.G.1 controlled M. JCP's money. See notably page 151.

M. JCP's Consumption of Drugs and Alcohol

[127] As described above, another negative element to be entered in the complainant's file: he consumed drugs from age 14 to 19, it seems. See page 29, line 25 and thereafter. Furthermore, M. JCP testifies on page 41, line 19, that because of his attention deficit, he liked to consume "pot", for its "calming" effects. He speaks of it often and he always said he consumed a lot.

[128] It should also be noted that R.G.1 relates a period when he abused alcohol, around age 18, on page 54, line 24. In fact, M. JCP indicates that R.G.1 knew he had a dependence on alcohol and drugs. See page 55, line 9.

[129] It would be futile to go through the cross-examination of Me St-Pierre in detail, especially starting on page 91, which describes M. JCP's abuse of drugs and alcohol. On the one hand, the description he provides of his deeds and actions makes it so that he can rightly be described as the worst of ruffians, especially with regard to his ability to immerse himself so quickly in Ottawa's criminalized world. On the other hand, if it is recognized that he may have sought to exaggerate his role in this regard, he comes across as a witness who is fickle in his oath. Either way, this testimony forced the court to hesitate at length during the evaluation of R.G.1's evidence. See pages 91 and thereafter.

[130] In cross-examination, Me St-Pierre raises the question of drugs that would have been hidden in R.G.1's bedroom, starting on page 101. This question is relevant only insofar as it supports the Crown's theory that R.G.1 was involved in M. JCP's money matters, in order to be able to monetize exchanges of sexual services. See especially page 102, line 24.

[131] Furthermore, M. JCP's sentence on page 102, line 2, is probative: "No, he knew (about the drugs). He knew from the beginning, R.G.1, I told him everything."

The Involvement of Alcohol and Sexual Contacts

[132] M. JCP testified on page 41, starting at line 9, that alcohol was often involved during sexual contacts. See also page 49, line 1.

R.G.1 Would Have Advised M. JCP Not to Discuss Their Situation

[133] This is the testimony that M. JCP relates on page 40, line 22.

The Disclosure of Sexual Contacts

[134] M. JCP said on page 40, line 28, that he had not communicated to others his relationship with R.G.1, except to his mother, once before the fight in the Dominican Republic. Nothing supports this testimony.

The Number of Sexual Contacts Before Age 18

[135] M. JCP estimates that there were between 10 to 15 incidents of sexual contact with R.G.1 before he turned 18. See page 42. Once again, it would be futile to go through all these references and mentions in detail because the witness constantly uses equivocal words that restrict the court in its finding of facts. The only complaints that seem to be relevant involve the bathtub at the military base, the park adjacent to it and the driving lessons. All other complaints relate very possibly to a time after March 31, 2008 or in Quebec. However, it is quite possible that the driving lessons continued after his majority, and that sexual activity did not begin until after this cutoff date.

Sharing the Same Bed in Gaspé

[136] Regarding Quebec, the Crown asked questions about sexual relations that M. JCP and R.G.1 would have had in Gaspé, solely for the purpose of illustrating their relationship, that is, to attempt to demonstrate that R.G.1 treated M. JCP as his son, at least at 18 years old. Thus, the two traveled to the home of M. JCP's grandparents in Gaspésie in the summer when M. JCP was 18 or 19 years old, although the complainant showed uncertainty on this subject. See page 3, line 2.

[137] M. JCP testified that he and R.G.1 shared a bed although several other beds were available in the same room. See also page 66 where the witness relates that his mother explained to his grandmother that this situation was explained by the fact that R.G.1 was like the father of M. JCP. See page 66, line 31 and page 56 and thereafter of cross-examination.

[138] This testimony is inadmissible to demonstrate sexual contact during the period of the accusations (and in Ontario) but useful to demonstrate, as much as possible, that the two parties got along well despite the lies, the rage, etc., and to support the testimony that R.G.1 presented M. JCP as being his son, his boy, and that he was perceived as such by others. See also page 107, line 20.

[139] Finally, R.G.1 told Detective Chevalier that he and M. JCP shared the same bed at the cottage. See pages 47 and 48/92. Later, he stated that no physical contact took place.

"Make Me Come"

[140] M. JCP testified that R.G.1 sometimes told him that he wanted the complainant to make him come, a rich expression that suggests that M. JCP indeed had sexual relations with R.G.1, but which tells us nothing about when he first heard this phrase.

The "Family" Meeting at the Military Base

[141] M. JCP described a meeting that took place at the house on the military base following a "fight" between him and R.G.1. R.G.1 would have locked his door and this led to this attempt to get along better. M. JCP discussed this question starting on page 47 and he testified that their sexual relations were at the base of this quarrel. The complainant did not indicate that R.G.1, the accused, directed the meeting.

[142] Furthermore, R.G.1's brother and sister-in-law were categorical on this subject: R.G.1 did not seek to exercise discipline at that time, or at any other time, towards M. JCP.

The Chatting

[143] M. JCP testified that he and R.G.1 chatted, starting on page 59, once with a camera. However, M. JCP does not remember the precise dates, and it is quite possible that it was elsewhere than on the base and therefore once of age (or after March 31, 2008, which is therefore not relevant, although he was 17 years old. To be precise, the witness could not tell us that the incident described on page 61 occurred during his minority. See page 62, line 14. This uncertainty makes the incident not relevant.

Birthday Celebrations at the Cottage in Gaspé

[144] M. JCP testified on page 63, line 1, that R.G.1 was at the cottage for his 19th birthday, then to note "... I'm pretty sure he was there for my 17 to 18..." Once again, the uncertainty about dates, and the fact that his birthday in July 2008 exceeds the scope of the accusations, make this question irrelevant. For convenience, let us add that this incident, if it occurred, was outside the province of Ontario.

[145] Similarly, the discussion starting on page 55 regarding M. JCP's 18th birthday is not relevant, because of the date of the denunciations.

The Candor of the Witness

[146] On page 67, line 13, the Crown held out a hand by suggesting to the witness that R.G.1 had always been involved with his family but the witness said: "Not all the time because ..." to continue by saying that his family did not really know that he held such a role.

[147] Furthermore, he acknowledged on page 69 having participated in sexual gestures with R.G.1, following his majority, which is relevant to his credibility but not relevant to demonstrating the merits of the accusations.

[148] The court noted throughout his testimony that M. JCP had the knack, so to speak, of avoiding certain difficult questions by making certain comments like "I stopped, but nothing prevents me from starting again" when it came to the question of discontinuing drug use. See page 126, line 25. Furthermore, for certain difficult questions, like "... did you squeeze him hard around the neck as if to choke him...", he offers an equivocal answer like it's possible 50%. See page 129, line 13. See also line 24, and page 6, line 5, and page 8. Several other examples are contained in the record of this matter, notably the letter discussed starting on page 18 and the recording played later, which describes death threats. Finally, the fact of placing on R.G.1 the burden of drug abuse, as described on page 131, line 15.

[149] Sometimes, he is categorical such as denying having hurt the cats, an accusation that neither L.G. nor her husband R.G.2 raised in their testimony.

[150] Sometimes, the witness showed great reluctance to answer, arguing that the questions were irrelevant. Among the examples to cite, see page 61 of cross-examination regarding the subject of a loan of two hundred dollars and earlier, during cross-examination regarding the recording that describes threats where the word 'control' is significant. See also the response on page 64, line 9.

[151] The witness thus chose not to answer in one case and with great reluctance in the second, which greatly harmed his credibility and reliability. Finally, let us note comments like "... I was sexually abused whether it was in a car or not, the facts are the facts." See page 79, line 12. Although the court makes its own the obvious feeling of the witness who is a victim of sexual assault in this regard, the obstacle at the level of the finding of facts is that the court is not in a position to assume that the witness was, in fact, assaulted in order to grant him a sort of passing grade regarding the reliability and credibility of testimony which, objectively, is perceived as being "shaken", if you will pardon the expression. Let us note in passing page 115, line 22.

[152] Thus, to close this theme, the court cannot accept the testimony found on page 92 to the effect that M. JCP was always under the influence of alcohol during sexual contacts in order to dispense him from testifying in a credible and reliable manner – given the burden that falls on the Crown, the testimony will ultimately be judged reliable or credible, or not, and the impact of alcohol could well result in the testimony being rejected.

M. JCP's Criminal Act

[153] M. JCP was found guilty of mischief and he obtained an absolute discharge with conditions. See page 70.

[154] Me St-Pierre also established that M. JCP stole objects from his mother and was guilty of thefts such as the possession of an Ipod. See page 113 and thereafter.

[155] Madame S.P. acknowledged on page 108 that her son stole money from her in Welland, as well as the fact that he was guilty of a series of acts, here and there, that made him unbearable. See, for example, page 108. Several other references would also be relevant and the court reviewed all of Me St-Pierre's questions on this subject. As expressed at trial, M. JCP indeed got up to all sorts of mischief... He was threatening, petty, lying and manipulative, to name just a few words starting with "m". See page 121 in particular for what the G.'s opinions are regarding lies.

Prior Statements

[156] Pages 71 to 74 describe three prior statements recorded by M. JCP. It should be noted that M. JCP sought to distance himself somewhat from his prior statements by emphasizing that he was very angry at R.G.1 at the time of making his statements and that their reliability is reduced, as a result. See page 89 especially, line 22 and thereafter.

[157] However, he had said earlier that his statements were truthful. See page 74, line 8. When M. JCP makes a complaint of a sexual nature, and that complaint is not contained in his prior statements, the court rejects them outright. See page 78 of cross-examination for example.

Motives to Harm R.G.1

[158] If we go back in time, so to speak, it is evident that M. JCP and his mother quarreled with R.G.1, together and separately, as the complainant said to Me St-Pierre on page 8, among other references.

[159] Therefore, the court had to ask itself the question whether this complaint is the result of a desire to take revenge on R.G.1. It must be remembered that R.G.1 complained of several criminal acts on the part of M. JCP, including the complaint that M. JCP attempted to strangle R.G.1. See page 123, line 10, among other passages on this subject and the report made by R.G.1 to Constable Chevalier on page 51/92. Similarly, this complaint could be motivated by a desire to prevent accusations against him following his misconduct in Punta Cana. In addition, the mere fact of being disappointed by R.G.1 because the latter did not want to, and had not, assumed the role of father could motivate a false complaint.

The Evidence Contained in Computers

[160] The court entirely rejects this evidence insofar as it was entered into the record to establish sexual contact before majority involving R.G.1 and M. JCP. M. JCP's testimony and that of the expert is too equivocal to support the theory of contact, which is not the equivalent of saying that risqué chatting was exchanged by the parties. Furthermore, the uncertainty about dates makes this subject far from helping the Crown. Thus, we read on page 53, line 20 "Let's start in 2007, were there conversations of a sexual nature?" "2007, there may have been..."

[161] That being said, R.G.1 himself admits to Constable Chevalier that he discussed sexual matters with M. JCP by means of a computer. See page 54/92.

The Possibility That R.G.1 Knew That M. JCP Had Been Assaulted Around Age 7!

[162] M. JCP briefly discusses this question on page 63, line 20 and thereafter, in the context that R.G.1 would have been guilty of a fault in taking advantage of him given this history. He therefore wanted to please R.G.1 given his emotional investment in this individual who held, in his eyes, the role of father.

Complaints Made to Madame S.P.

[163] On page 62 of cross-examination, Me St-Pierre discusses the complaints made by M. JCP to his mother regarding R.G.1's sexual conduct. We read that the two complaints came about following a violent dispute. Incidentally, this relationship between the complaints and the fights that are complained about makes it so that the complaints can be viewed in a positive way: M. JCP feared physical blows more while he seemed to resign himself to sexual contact, either by desire for emotional relationship with a man who would hold the role of father, or because of a need for money.

[164] It will be pointless to review the description made by the young man of the fight in Orleans, among others, because of the fact that he was of age and that this description is filled with elements of uncertainty, notably the references to "blackouts". In any case, Me St-Pierre rightly argued that R.G.1 would have little chance of winning a physical fight.

Madame S.P.'s Choice

[165] Madame S.P. said repeatedly "... if there is someone who stays with us, it's Remi, it's not you ..." See page 124, line 13.

An Overview of Jurisprudence Regarding Section 153 of the Criminal Code

[166] The appeal entitled R. v. Audet, [1996] 2 S.C.R. 171, is the only judgment brought to the attention of the court. The judgment of Justices La Forest, L'Heureux-Dubé, Gonthier, Cory and McLachlin was rendered by the Honourable Justice La Forest.

[167] This is the first judgment in which our Supreme Court was called upon to analyze the meaning and scope of section 153(1) of the Criminal Code, R.S.C. (1985), c. C-46, which prohibits any person in a position of authority or trust towards a young person, as well as any person with respect to whom a young person is in a situation of dependency, from engaging in any sexual activity described in paragraphs (a) and (b) – even consensual, as clarified by section 150.1(1) of the Code – towards the latter. See paragraph 1.

[168] The majority judgment teaches us the following, at paragraph 13:

13 I am of the opinion that the appeal should be allowed and a verdict of guilty should be entered. First, the position of Justice McIntyre, to which the majority of the Court of Appeal subscribes, implies that the Crown must prove, as a constituent element of the offence of sexual exploitation, that the accused actually exploited his position of trust or authority towards the young person, or the young person's situation of dependency towards him. However, an analysis of the means chosen by the legislator to satisfy the objective it pursued in adopting the offence of sexual exploitation and the legislative context in which section 153(1) is found reveals that this approach is erroneous as well as contrary to the jurisprudence developed on the subject to date. I conclude that the trial judge therefore committed an error of law. Furthermore, I am of the opinion that the circumstances of the case justify our Court exercising the power conferred on it by section 686(4) of the Criminal Code to quash the acquittal verdict pronounced by the trial judge and to substitute a verdict of guilty.

[169] Justice La Forest continues:

Section 153 of the Criminal Code: Objective, Rationale and Constituent Elements of the Offence of Sexual Exploitation

14 Section 153 of the Criminal Code came into force on January 1, 1988. The provision was adopted by the legislator in response to recommendations made by the Badgley Committee in a report made public a few years earlier. It reads as follows:

153. (1) Every person commits an offence who is in a position of trust or authority towards a young person or with respect to whom a young person is in a situation of dependency and who, as the case may be:

(a) for a sexual purpose, touches, directly or indirectly, with a part of the body or with an object, any part of the body of the young person;

(b) for a sexual purpose, invites, engages or incites a young person to touch, directly or indirectly, with a part of the body or with an object, the body of any person, including the body of the person who so invites, engages or incites and the body of the young person.

(2) For the purposes of this section, "young person" means a person who is fourteen years of age or more but under eighteen years of age.

Although, as recognized by Lord Chancellor Halsbury at the end of the last century in Eastman Photographic Materials Co. v. Comptroller-General of Patents, Designs, and Trade-Marks, [1898] A.C. 571 (H.L.), at page 575, a commission report like the Badgley Report can be used by courts to identify the objective pursued by the legislator in adopting a given legislative text, I consider it unnecessary in this case to refer to it. It is obvious that the legislator adopted section 153 of the Criminal Code for the purpose of protecting young persons in a situation of vulnerability towards certain persons because of an inherent imbalance in the nature of the relationship they have with them. This finding is self-evident and it would be neither useful nor necessary, for the purposes of this appeal, to examine in more detail the extent and scope of the social aspect of the problem.

[170] Furthermore, the teachings found in paragraph 16, under the pen of Justice La Forest, are no less important:

16 The offence first targets three distinct categories of persons, namely those in a position of authority or trust towards a young person and those with respect to whom a young person is in a situation of dependency. The Code prohibits any person in such a situation towards a young person from engaging in any of the sexual activities described in paragraphs (a) and (b) of section 153(1). Also, unlike in a case of accusation of sexual assault, a person accused under section 153(1) cannot invoke the consent of the young person as a defence (section 150.1(1) of the Criminal Code). To obtain a conviction under section 153(1), the Crown must establish beyond a reasonable doubt that the complainant is a young person within the meaning of section 153(2), that the accused engaged in one of the activities enumerated in section 153(1) and, finally, that the latter was, at the time of the commission of the acts in question, in a position of authority or trust towards the young person, or that the latter was then, towards the accused, in a situation of dependency, in addition to proving, of course, the mens rea necessary with respect to each of these elements.

[171] The majority judgment adds, at paragraph 19:

19 ...the provisions of section 150.1(1) of the Criminal Code, which provide that the consent of the young person does not constitute a defence in the context of accusations of sexual exploitation, since requiring proof of exploitation amounts to implicitly recognizing the quality of consent a relevance that it does not have in such a context. The interpretation proposed by the respondent means that the means chosen by the legislator to satisfy the legislative objective pursued was to criminalize the abuse or exploitation, by persons in one of the enumerated situations, of their situation for the purpose of engaging in one of the prohibited activities. However, this is not the case. One would empty the offence of sexual exploitation of all utility by adopting such an interpretation, by confusing the objective of the provision and the standard adopted by the legislator.

[172] Justice La Forest continues his analysis in these terms:

22 The Code thus expressly provides that, for the purposes of sections 271, 272 and 273, "the exercise of authority" (paragraph 265(3)(d)), "the abuse of trust" and "the abuse of power" (paragraph 273.1(2)(c)) would vitiate consent. While remaining aware of the slight disparity in the terminology used in section 153(1), paragraph 265(3)(d) and paragraph 273.1(2)(c), I nevertheless note that in most, if not all, cases where the evidence will reveal that the accused in one of the situations enumerated in section 153(1) towards the complainant actually abused his situation towards the latter to obtain the sexual favours alleged against him, he will have committed at least a sexual assault – a more serious offence – towards the young person, since consent is then non-existent, as prescribed by paragraph 265(3)(d) and paragraph 273.1(2)(c). The interpretation proposed by the respondent thus leads to a somewhat absurd situation. The offence provided for in section 153(1) would be devoid of all utility because practically all situations covered by section 153(1) of the Criminal Code would also be covered by sections 271, 272 or 273, depending on the circumstances. The offence of sexual exploitation would ultimately add nothing. Moreover, a person in a position of authority or trust towards a young person, or with respect to whom the latter is in a situation of dependency, would commit a less serious offence by abusing his privileged position to obtain sexual favours from a young person than by doing so towards an adult. It is obvious that such an interpretation is totally irreconcilable with the objective pursued by the legislator in enacting section 153 of the Code.

[173] For convenience, we also reproduce paragraph 23:

23 It is obvious that the legislator wanted to protect young persons further. It chose more drastic means, by criminalizing the activity itself, whether consensual or not (section 150.1(1) of the Code), insofar as a person in one of the situations enumerated in section 153(1) participates in it. As Justice Woolridge wrote eloquently in Hann (No.2), cited above, at page 36:

[Translation] The text of section 153 implicitly suggests that, notwithstanding the consent, desire or wishes of the young person, it is the adult in a position of trust who has the responsibility to refuse to have any sexual contact with that young person.

It therefore appears to me to be obvious that the respondent's position is erroneous and that the Crown need not establish that the accused actually abused his situation towards the young person to obtain his consent to the sexual activities alleged against him.

[174] Our highest court adds: "[26] I therefore refuse to conclude that the Crown is required to establish, for the purposes of section 153(1) of the Code, the exploitation by the accused of his position of trust or authority towards the young person, or the young person's situation of dependency towards him."

[175] Justice La Forest continued his analysis by seeking to define certain terms:

34 In the absence of legislative definitions, the exercise of interpretation must begin with a search for the ordinary meaning of the words used by the legislator. Le Grand Robert de la langue française (2nd ed. 1986) defines authority as being a "[r]ight to command, power (recognized or not) to impose obedience", which joins, at least in substance, the definition proposed by Justice Proulx. It specifies that authority is also understood as the "[s]uperiority of merit or seduction that imposes obedience without constraint, respect, trust". The Oxford English Dictionary (2nd ed. 1989) proposes similar definitions of the English expression "authority": [Translation] "[p]ower or right to impose obedience" and "[p]ower to influence the conduct and acts of others". I entirely agree with Justice Proulx that the scope of the expression should not be limited to cases where the relationship of authority stems from some function exercised by the accused, but that it should extend to any relationship in the course of which, in fact, the accused exercises such power. As these definitions demonstrate, the ordinary meaning of the word "authority" or "authority" does not permit such a restrictive interpretation. Furthermore, Justice Proulx's remarks are entirely appropriate when one considers the intention expressed by the legislator who, by refusing to specifically enumerate in section 153(1) the cases in which a person must refrain from having any sexual contact with a young person, wanted to focus the analysis on the nature of the relationship between the young person and the accused rather than on their status in relation to each other. I will return to this.

35 Trust, we are taught by Le Grand Robert, is the fact of believing, firm hope in something, faith in someone and the assurance that flows from it. In English, the word "trust" can have various meanings, especially in a legal context. Since the legislator used the word "confiance" in the French version, I doubt that the word "trust" in section 153(1) refers to the concept of equity. I therefore subscribe to the reservations expressed by Justice Blair. "Trust" should rather be interpreted according to its primary meaning: [Translation] "[c]onfidence in or reliance on some quality or attribute of a person or thing, or the truth of a statement". The word "confidence" is defined as: [Translation] "[m]oral attitude of one who relies on someone or something; firm hope, reliability, faith".

36 I will add that the definition of the scope of the expressions used by the legislator, as well as the determination in each case of the nature of the relationship between the young person and the accused, must be made in light of the purpose and objective pursued by the legislator to protect the interests of young persons who, because of the nature of the relationship they have with certain persons, find themselves in a situation of vulnerability and weakness towards them.

37 Even in light of these definitions, the concept of "position of trust", perhaps more so than the expression "position of authority", remains difficult to define in the abstract, in the absence of factual context. For this reason, it would be inappropriate for our Court to attempt to trace its limits in a factual vacuum, especially since, to date, this relatively recent provision of the Criminal Code has been the subject of very little case law commentary. The fact that the present appeal was brought as of right and that the question was not fully debated before our Court convinces me further.

[176] Finally, it should be noted:

39 In this regard, as I have mentioned, it is important to note that the legislator did not choose to prohibit sexual contact with a young person based on the status of the accused in relation to the young person. This element cannot therefore be determinative in itself. For example, a teacher is not de jure in a position of authority or trust towards his students...

40 However, one would show excessive formalism in refusing to recognize that certain persons, because of the role our society entrusts to them, will in fact and in the vast majority of cases, be covered by section 153(1) because of their status in relation to the young person and especially because of the relationship they maintain with the latter because of this particular status. In Norberg v. Wynrib, cited above, at page 255, I cited the work of Professor Coleman, who, in an article entitled "Sex in Power Dependency Relationships: Taking Unfair Advantage of the 'Fair' Sex" (1988), 53 Alb. L. Rev. 95, identified a number of types of relationships to which a "power and dependency" relationship was inherent, among which is the teacher-student relationship.

[177] R. v. Aird, 2013 ONCA 447, a judgment of the Honourable Justice Laskin, with the support of Justices LaForme and Hoy, is also very useful in order to properly understand the state of the law on this subject.

[178] Thus, the court deemed it wise to go through the teachings that the Court of Appeal provides us, starting at paragraph 23:

(1) Did the trial judge err in finding that the appellant was in a position of trust towards the complainant?

(a) Position of trust

[23] Section 153(1) of the Criminal Code, R.S.C. 1985, c. C-46, sets out the offence of sexual exploitation:

153. (1) Every person commits an offence who is in a position of trust or authority towards a young person, who is a person with whom the young person is in a relationship of dependency or who is in a relationship with a young person that is exploitative of the young person, and who

(a) for a sexual purpose, touches, directly or indirectly, with a part of the body or with an object, any part of the body of the young person; or

(b) for a sexual purpose, invites, counsels or incites a young person to touch, directly or indirectly, with a part of the body or with an object, the body of any person, including the body of the person who so invites, counsels or incites and the body of the young person.

Section 153(2) defines a "young person" as "a person 16 years of age or more but under the age of eighteen years."

[24] Section 153(1) thus bans any sexual contact between an adult and a young person within any of the four relationships enumerated in the section. That the young person consents, does not appear vulnerable, or does not subjectively view the relationship as one of trust, authority, or dependency or as exploitative is irrelevant.

[25] In this case, to prove that the appellant was guilty of sexual exploitation, the Crown was required to establish four elements:

The appellant engaged in a form of sexual conduct prohibited by s. 153(1).

The complainant was at least 16 and under the age of 18 when the conduct occurred.

The appellant had the mens rea for each element of the offence.

The appellant stood in a position of trust towards the complainant when the sexual acts took place.

See R. v. Audet, [1996] 2 S.C.R. 171, at para. 16.

[27] Parliament chose not to specify the relationships that would constitute relationships of trust under s. 153(1), likely for two reasons: because of the varied circumstances in which these relationships can arise; and because of the "very fact specific nature of such an inquiry": see R. v. P.S., [1993] O.J. No. 704 (Gen. Div.), at para. 31; aff'd R. v. Sharma, [1994] O.J. No. 3775 (C.A.).

[28] The considerations that bear on whether a relationship comes within s. 153 flow from the obvious purpose of this section: to protect a young person who is vulnerable to an adult because of the imbalance in their relationship. With this purpose in mind, the courts have identified several considerations relevant to an assessment of whether a relationship of trust exists. They include:

The age difference between the accused and the young person;

The evolution of their relationship;

The status of the accused in relation to the young person;

The degree of control, influence or persuasiveness exercised by the accused over the young person; and

The expectations of the parties affected, including the accused, the young person and the young person's parents.

See R. v. Audet; R. v. C.D., [2000] O.J. No. 1667 (C.A.). See also R. v. D.E., [2009] O.J. No. 1909 (S.C.).

[29] No one consideration is determinative. But each one may play a role. At bottom, "trust", wrote La Forest J. for the majority in Audet, at para. 35, must be "interpreted in accordance with its primary meaning: '[c]onfidence in or reliance on some quality or attribute of a person or thing, or the truth of a statement.'"

[179] We also wish to note the reference bearing the number 1: "Several of these considerations are captured in s. 153(1.2) of the Code, which allows the trial judge to infer that a relationship is exploitative."

An Overview of Jurisprudence Regarding the Assessment of Testimony

[180] I am indebted to my learned colleague Justice Côté for his teachings found in the decision R. v. Desjardins, 2012 QCCQ 2458, especially in the following paragraphs:

73 Since the accused denies any sexual contact with the complainant, the question of the credibility of the testimony becomes the main issue in dispute.

74 The rule of reasonable doubt applies to the question of credibility. When it comes to the fundamental issue, the Supreme Court proposed in the decision R. v. W.(D.), [1991] 1 S.C.R. 742, a model of analysis for courts. The Supreme Court proposes a three-step approach:

1. If the Court believes the testimony of the accused, it must pronounce an acquittal;

2. If it does not believe the accused, but entertains a reasonable doubt about his guilt, after examining the testimony of the accused in the context of all the evidence, it must pronounce an acquittal;

3. Finally, even if the Court has no doubt following the testimony of the accused, it must ask itself whether, based on the evidence it accepts, it is convinced beyond a reasonable doubt of the guilt of the accused.

[75] Furthermore, it is also well established that the approach set out in R. v. W.(D.) is not a sacred formula. The assessment of credibility does not always lend itself to the application of the three distinct steps proposed in that decision; it all depends on the context. What matters is respecting the substance of the directives formulated in R. v. W.(D.). The message conveyed by the approach, namely that the Crown is never relieved of proving all elements of the offence beyond a reasonable doubt, is of paramount importance. Its application should not, however, allow form to prevail over substance and, in R. v. W.(D.), Justice Cory reiterated that the directives he sets out do not have to be recited "word for word like an incantation". The essential point is that the lack of credibility of the accused does not equate to proof of his guilt beyond a reasonable doubt.

[181] For convenience, let us note that in the decision R. v. Marin-Ariza, 2012 ONCA 385, the Honourable Justice Goudge said at paragraph 18: "Moreover, the guidance that was given was erroneous in one respect. It told the jury that they could believe or disbelieve a witness. Rather, it should have been made clear to the jury that they could believe all, some or none of any witness' evidence."

[182] It is also appropriate to note the comments found at paragraph 19:

[19] Related to this was the trial judge's failure to instruct the jury that the principle of reasonable doubt applies to the issue of credibility. As Cory J. said, in R. v. W.(D.), [1991] 1 S.C.R. 742, in a case where credibility is important, as it was here, that instruction is essential. He said this at p. 757:

In a case where credibility is important, the trial judge must instruct the jury that the rule of reasonable doubt applies to that issue. The trial judge should instruct the jury that they need not firmly believe or disbelieve any witness or set of witnesses.

[183] Furthermore, it is not necessary to cite judgments to support the following: The analysis of the credibility of testimony, including that of the accused, is not done in a vacuum. The credibility of the accused's testimony must be assessed in light of all the evidence, including the testimony of the person who made the complaint.

Conclusions of the Court

[184] For the following reasons, the court finds R.G.1 guilty of having violated section 153(1.1) of the Criminal Code once during the period described by the two accusations and the court finds him guilty on both counts. (The question of whether two convictions are possible will be debated following the filing of this judgment.)

[185] For convenience and precision, the court finds that R.G.1 touched the body of M. JCP, who was then less than 18 years old, with his penis for sexual purposes and that he also obtained that M. JCP touch his body, that is, the body of R.G.1, with his penis, for sexual purposes, at least once, during the bathtub incident that occurred when the two parties were living together on the Rockliffe military base, in Ottawa. Because of the testimony of R.G.1's brother and sister-in-law, R.G.1's statement during his interview with Constable Chevalier, the notorious imprecision of M. JCP's mother regarding dates, the difficulties M. JCP had in recalling dates, and the burden of proof that falls on the Crown, the court cannot retain the Crown's theory that other sexual contacts are established beyond a reasonable doubt before M. JCP turned 18.

[186] When the court evaluated Madame S.P.'s testimony, it took into account the fact that Madame was shocked by the "revelations" in Punta Cana, that she was vomiting, to use her term on page 101, line 8, and that she was "hyper angry", as stated on page 121, line 13, and that it is necessary for the court to view her evidence critically in light of this state of mind. Furthermore, although Me St-Pierre suggested an incident at the courthouse showing bias, which Madame denied, the evidence in support of this allegation is altogether not very convincing.

[187] However, the court accepts her testimony to the effect that R.G.1 was a teacher and then a director towards her son in Welland, and that R.G.1 also lived with her and her son in Welland for an unspecified period and that following a "falling out", the parties drew closer. The court insists that only these facts are relevant and that no other fact relating to Welland has been retained as being relevant, and that nothing in R.G.1's "testimony" contradicted this sworn testimony. For the rest, given the memory gaps and the absence of relevant material evidence, notably photographs of the wedding establishing that the parties wore "top hats" as an example, the testimony of this witness is useful only to establish certain secondary facts, namely that her son lived with R.G.1 and that he complained of abuse while he was a minor, a complaint that she rejected as being without foundation and, furthermore, that R.G.1 was happy to welcome M. JCP to his home and to help him find his way, so to speak.

[188] It must also be noted that the court accepts that R.G.1 gave several pieces of advice to Madame S.P. on how to help her son, with the latter's knowledge, and that he participated indirectly in counselling and therapy sessions, as related to Constable Chevalier.

[189] Similarly, given all of M. JCP's lies, and there were several, to say the least, his bitterness towards R.G.1, his criminal acts, and the lack of support for several elements of his testimony, not to mention all the other "negative" elements of his file, as described exhaustively in this judgment, the court hesitated at length before accepting that M. JCP told the truth when he reported sexual contact in the bathroom of the house where he lived with R.G.1 and the other witnesses on the military base. And, moreover, that this testimony is not only credible, it is reliable and worthy of belief.

[190] The court accepts the testimony of R.G.1's brother and sister-in-law, and that of R.G.1, through his statement, to the effect that R.G.1 was not responsible for discipline in their common home, and that R.G.1 helped M. JCP with his homework and his football only rarely. Furthermore, that R.G.1 never acted in a "shameful" manner including the fact of providing alcohol. That being said, their testimony establishes beyond a reasonable doubt that R.G.1 was the victim of a violent act by M. JCP, during their absence from the house, and that notwithstanding this criminal act, M. JCP continued to live under their roof, with R.G.1's support and, on the other hand, that R.G.1 and M. JCP had the ability to engage in sexual activity in the bathroom because they were often absent from the home in the evening, without, however, staying away overnight.

[191] The court deems it necessary to insist on this question: the parties had the opportunity to be alone in the evening because of the absence of R.G.1's brother and sister-in-law and it is quite remarkable that R.G.1 did not insist that M. JCP be thrown out of the house following his violent acts. It seems evident that the reason he continued to live there is that R.G.1 was involved romantically with his former student. Their tumultuous relationship, all things considered, judged on the whole record, is that of two people involved romantically since their reunion in Ottawa. R.G.1 made several unequivocal gestures that demonstrate his obvious and strong feelings towards M. JCP: he signed the enrollment file, he invited M. JCP to live with him despite very unpleasant conduct, to speak in a limited way, and furthermore, to allow M. JCP to continue to live there following his drug and alcohol escapades, not to mention the fact of having threatened R.G.1 as evidenced by the recording.

[192] The court, following its analysis, concluded that R.G.1's gestures and reactions demonstrate unambiguously that he was living in a romantic situation with M. JCP because no other reason could explain why he accepted to live such a hell: we often see people involved in a romantic relationship accept to live this way; we do not at all envision that a person not involved in this way would accept such repeated and outrageous acts. However, this romantic relationship was maintained in the shadow of a situation of authority that prohibited any sexual contact, in accordance with the wishes of the Legislator.

[193] Moreover, it is important to insist not only on the physical relationship, but on elements that relate to the emotional aspect. As an example, let us note M. JCP's sentence on page 102, line 2: "No, he knew (about the drugs). He knew from the beginning, R.G.1, I told him everything." The court accepts this testimony because it is coherent, fits within a series of supporting details, namely the fact that R.G.1 relates to Constable Chevalier a great knowledge of the difficulties M. JCP was experiencing with drugs, and that they shared a room during stays at the cottage, not to mention the chatting. It is not a matter of weighing whether the parties slept together, which is not relevant, but of knowing whether they were "close", in the sense of a very intimate and deeply rooted friendship.

[194] The court also accepts that M. JCP told the truth when he complained of sexual contact with R.G.1, although the evidence establishes only one gesture before his majority, namely in the bathroom, because of his memory difficulties, because he was consistent on this subject and his comment to the effect that R.G.1 complained that he "was getting soft" strikes us as frank and not the fruit of his imagination. It is quite possible that several sexual gestures were "committed" before his majority, with his "consent", without effect because of the abuse of the situation of authority, but his memory difficulties make it so that we can only retain one episode before reaching 18 years old, namely during the sexual activity in the bathroom which involved gestures where the two penises were caressed. I reject R.G.1's denials to Constable Chevalier because they were equivocal, the result of several hesitations, not under oath, and in a context where R.G.1 repeated several of his comments to nuance them. These denials are not worthy of belief, especially in light of his decision to become sexually involved with such a "problem child" later, after the latter reached 18 years old.

[195] R.G.2 and his wife testified with strong details that such gestures could not have taken place under their roof and they seemed quite credible, but the court must note on the one hand that the recording regarding the subject of "I control you" establishes beyond a reasonable doubt that acts of violence were committed by M. JCP against R.G.2 without their knowledge and under their roof. And, that R.G.1 was perceived by his sister-in-law to barricade himself in his room, so to speak, following another violent act by M. JCP, on the other hand, which easily demonstrates that R.G.1 and M. JCP were able to spend several hours together away from witnesses on the military base.

[196] We repeat: R.G.2 and his wife consistently denied that such gestures could have occurred under their roof, but the fact the court finds is that they were often absent, by their own admission, and that R.G.1 had the leisure to spend several hours with M. JCP away from the eyes of others. For example, regarding the question of alcohol consumption without their knowledge, R.G.2's positive testimony is to the effect that it is impossible to know if R.G.1 and M. JCP spent time together and if R.G.1 allowed M. JCP to consume alcohol.

[197] To reiterate what is found in paragraph 25 of the Aird decision, R.G.1 had reciprocal sexual contact with M. J.C.P. that evening, knowing that M. J.C.P. was at least 16 years old but not 18 years old, and he freely chose to become sexually involved with M. J.C.P. notwithstanding that he knew full well that the other person could not freely consent because of his situation of emotional, financial, and housing dependency. He knew how to take advantage of the state of "dependency" of this young person, a former student, co-resident so to speak, struggling with drug problems and who obtained loans from R.G.1, in order to pursue and realize his desire to participate in a sexual relationship that was part of a romantic relationship.

[198] This finding is supported among other things by the history of the parties, the difference in their ages, the evolution of this relationship starting from Kanata and including school enrollment, R.G.1's involvement in helping M. JCP with his drug debts and his financial oversight, the fact that R.G.1 continued to allow M. JCP to live with him despite his "4,000 tricks", the fact of teaching him to drive, and so on. It is not evident, given the memory gaps of the Crown witnesses and the lack of documents, that R.G.1 held a father role but he was certainly a godfather or uncle in the eyes of M. JCP, and in the eyes of the community if it could have seen their daily contacts.

[199] It will be useful to insist on the fact that the court retained this element of the evidence as being credible and reliable, and that it is established beyond a reasonable doubt in the end, notwithstanding the difficulties of witness M. JCP with regard to drugs, anger, truth, and so on, following his analysis of the whole record. Thus, to close this theme, the court cannot accept the testimony found on page 92 to the effect that M. JCP was always under the influence of alcohol during sexual contacts in order to dispense him from testifying in a credible and reliable manner – given the burden that falls on the Crown, the testimony will ultimately be judged reliable or credible, or not, and the impact of alcohol could well result in the testimony being rejected. Thus, the only element of the Crown's theory that is established beyond a reasonable doubt is the bathtub incident, because the others are rejected for several reasons, notably drug abuse and the history of lies. However, the more detailed description of these sexual acts, the involvement of the comment that he "was getting soft" and his hesitation to accept to participate in such "romantic" and not only sexual gestures, with respect to his sexual identity, make it so that this testimony is judged credible and reliable, judged on the whole record.

[200] In any case, when the court takes into consideration all the circumstances, in light of the notions of authority and trust as discussed in the jurisprudence, I conclude that R.G.1 was in a position of authority or trust towards M. J.C.P. during the sexual activity in the bathroom when he was 17 years old. Despite all the misconduct of the young person and his lies, he is worthy of belief when he testifies that he touched R.G.1's penis and that he allowed R.G.1 to touch his during the period when the two lived under the same roof in Rockliffe, one evening, in the bathroom.

Gilles Renaud Judge, Ontario Court of Justice

Friday, August 9, 2013