WARNING

The court hearing this matter directs that the following notice be attached to the file:

A non-publication and non-broadcast order in this proceeding has been issued under subsection 486.4(1) of the Criminal Code. This subsection and subsection 486.6(1) of the Criminal Code, which is concerned with the consequence of failure to comply with an order made under subsection 486.4(1), read as follows:

486.4 Order restricting publication — sexual offences. — (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judge or justice may make an order directing that any information that could identify the victim or a witness shall not be published in any document or broadcast or transmitted in any way, in proceedings in respect of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, 159, 160, 162, 163.1, 170, 171, 171.1, 172, 172.1, 172.2, 173, 210, 211, 212, 212, 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 at any time before the day on which this subparagraph comes into force, if the conduct alleged involves a violation of the complainant's sexual integrity and that conduct 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) MANDATORY ORDER ON APPLICATION — In proceedings in respect of the offences referred to in paragraph (1)(a) or (b), the presiding judge or justice shall

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

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

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

Court Information

Ontario Court of Justice

Date: April 17, 2018

Location: Gore Bay

Court Information: 17-013

Parties

Between:

Her Majesty the Queen

— AND —

F.M.

Judicial Officer and Counsel

Before: Justice V. Christie

Heard on: February 15, 2018 and April 10, 2018

Reasons for Judgment released on: April 17, 2018

Counsel:

• D. Beaton, counsel for the Crown
• M. Haraschuk, counsel for the defendant F.M.

Reasons for Judgment

CHRISTIE J.:

Charge

[1] On February 15, 2018, F.M. pleaded not guilty to the one charge set out on the Information. The charge reads as follows:

On or about the […], 2016, at the First Nation of M[…] being in a position of trust or authority towards C.B. a young person did for a sexual purpose, touch directly the body of C.B. a young person, with his hand to wit private parts in front, contrary to Criminal Code section 153(1)(a).

[2] The Crown elected to proceed summarily on this charge.

[3] The Crown called one witness, which will be summarized below.

Facts

[4] C.B. was 16 years old on […], 2016. At the time of his testimony, he was 18 years old. He has lived in M[…] his entire life and is a status member of the M[…] First Nation. He explained that he lived back and forth between his mother's house and his grandmother's house.

[5] In […] 2016, C.B. was living with F.M. and L.M., who are husband and wife. C.B. initially stated that they (meaning F.M. and L.M.) had bailed him out of C[…], a youth facility, and acted as his surety. He stated that he was pretty sure that they were both acting as his surety. However, it was later clarified that only L.M. was the surety for C.B. His bail required him to live with his surety. C.B. did not recall when he started living at the M.' residence, but believed it was in the summer and then thought it may have been December 20. He believed that he was in C[…] from August 7 to December 20 and that he was released in 2016.

[6] In cross-examination, it was suggested to C.B. that he was released on bail on April 29, 2016, however, C.B. responded that he remembered being released on December 20. C.B. was then shown a recognizance of bail dated April 29, 2016, wherein he pledged $1500.00, without deposit, and which noted L.M. as surety in the amount of $5000.00, no deposit. He understood that if he breached any of the conditions of the recognizance, he could owe money to the court, as would L.M.. C.B. agreed that one of the conditions of his bail was that he not buy, possess, or consume alcohol or other intoxicating substances. He further agreed that one of the conditions of his bail was that he reside with his surety and remain in his residence, except for certain specified reasons. The recognizance of bail was marked as Exhibit 2.

[7] He was asked what it was like living at the house and he stated, "It was not bad. Kind of normal". He stated that he "didn't talk much." C.B was attending school at the time.

[8] C.B. testified that he would talk to Mr. F.M. about his daily comings and goings and about school, but he agreed that he did not tell him any secrets or talk to him about important things that were happening in his life. F.M. was not related to C.B. in any way, and, in fact, C.B. did not know Mr. F.M. personally before he moved into the M.' residence. Mr. F.M. was never a teacher or coach of C.B. C.B. became aware after he moved into the residence that F.M. was a mental health worker for M[…] and that he worked on a daily basis. C.B. never worked with F.M. in any capacity. Prior to C.B. moving into the M.' residence, F.M. was just another person in the M[…] community and was no one special to him.

[9] C.B. testified that an incident happened on his birthday in […] 2016, 2 years prior to his testimony in Court. He stated "I haven't been trying to remember that. For sure nobody would try to remember something like that…." He stated that he was drinking potato vodka with F.M.. He remembered the bottle and what it looked like. The bottle was 40 ounces and it was provided by Mr. F.M.. He estimated that they started drinking about 6:00 or 7:00, as he finished school at 4:00 and Mr. F.M. finished work at approximately 5:00. He stated that they were drinking the vodka downstairs, in the "man cave" / recreation room of the residence. He could not really recall where he slept in the house but he remembered drawing a picture of it and that "there's only like sheets hanging up acting as a wall". When asked specifically whether he slept upstairs or downstairs, he stated that he slept downstairs. A diagram that C.B. had previously drawn of the downstairs area of the home was introduced as Exhibit 1. On the diagram, he indicated where each of them were seated on the couch.

[10] C.B. testified that they drank the entire 40 ounce bottle of vodka and that it was just the two of them drinking it. He could not recall how much of the bottle he drank but he admitted that he was feeling the effects of the alcohol. On a scale of 1 to 10, 1 being perfectly sober and 10 being passed out drunk, he described himself as a 3 or 4. He also admitted that he had drank that much before and said "yeah, I drink a lot". He did not recall the time that they finished the bottle, but testified that everyone else was sleeping upstairs at the time. In cross-examination, C.B. admitted that he got drunk that night.

[11] During cross-examination, it was suggested to C.B. that given the condition on his bail not to buy, possess, or consume alcohol or other intoxicating substances, it was made clear to him that one of the rules of the M.' home was that he was not allowed to drink. He agreed with this suggestion. He also agreed with the suggestion that L.M. enforced that rule. When asked about F.M. enforcing that rule, he said "Um, I guess so yeah". Then it was suggested to C.B. that F.M. did not allow him to drink alcohol to which he replied "Nah he allowed me to". C.B. testified that Mr. F.M. did allow him to drink and did not punish him for drinking. When asked again whether Mr. F.M. ever enforced any rules on him, he replied "no not him, no." In re-examination, C.B. was asked about the bail recognizance and whether Mr. F.M. had any role in enforcing those conditions, to which C.B. responded:

"Um, I don't recall. I'm pretty sure he did. Like I lived in his house, I have to listen to him, right?"

[12] After the alcohol was finished, C.B. was getting tired and he told Mr. F.M. that he was going to bed and he went to lay down. His bed was a box spring on the floor. Mr. F.M. then came and laid down with C.B. He said that he laid down for a bit and it was not long before Mr. F.M. came in, "not even like 5 minutes". C.B. testified that Mr. F.M. laid down beside him, which he had done before, and so he did not think there was anything wrong. C.B. was laying on his back on the bed. When asked whether Mr. F.M. said anything, he stated "he usually does, like he asks how I'm doing…..like he did this a couple of times before, he laid down with me just to talk". C.B. testified, "I always thought he was very touchy". When asked whether he had told Mr. F.M. that it was okay to lie down on the bed, he stated "No, I didn't say anything".

[13] C.B. then felt Mr. F.M.' hand and he "freaked out". C.B. stated that "Told him, just that was it. I told him I'm going out for a smoke and I remember I had two smokes". C.B. was asked to clarify his comment about feeling Mr. F.M.' hand. He stated "like I felt his hand on my leg a bit" and he demonstrated in court on his right upper thigh, toward the inside of his upper thigh. However, he then explained that it was not on his right leg, but rather on his left leg. He stated that Mr. F.M.' hand was not on that part of his body for long, "like maybe a couple of seconds". He was asked whether Mr. F.M.' hand moved at all to which he stated "yeah, it did and then it moved when I like – I moved my leg away right and ah – it's not really much, but like I – he grabbed me, I remember that. Moved away." When asked whether any other part of his body was touched other than his upper thigh, he stated "No, I told you I freaked out and I walked upstairs". At the time, C.B. was wearing clothes and thought it was "thick pants" because he was later running through some thick bushes. C.B. testified that Mr. F.M.' hand never went inside his pants.

[14] When asked how this made him feel, C.B. stated "I can't remember. I remember being shocked and pissed off or something like that and then I didn't believe it, I don't know just I don't know. I thought I was doing good there you know."

[15] In cross-examination, C.B. was asked whether Mr. F.M. was awake or asleep when he placed his hand on his thigh, to which he replied that Mr. F.M. was awake. C.B. was then referred back to his police statement wherein he stated:

"And yeah, we were drinking and then we were up all night and that's when I told him I was going to bed and I went to bed and then – I went to bed. I was laying in bed, I wasn't even sleeping yet, and then anyways he, I don't know, he came – he came and crawled in bed with me and like I didn't really care. I just thought he was passing out you know? And then anyways, we're sleeping and then I don't know, like he grabbed me and that was pretty – that was it pretty much."

C.B. admitted that he said this to the officer during his police interview.

[16] C.B. was asked whether he ever told Mr. F.M. that it was okay to touch him to which he said "no".

[17] After having two cigarettes, C.B. testified that he took both of the car keys, took $5.00 from a wallet and took off in the BMW. When asked why he did that he said "because I didn't want to be there anymore….I didn't feel safe anymore". C.B. candidly admitted that he was hoping there would be a lot more money in the wallet and that he would have taken whatever amount of money there was in the wallet. The BMW got stuck and he unsuccessfully tried to free the car. When that did not work, he came back to steal another car. He already had the keys. He got into the other vehicle but he did not know how to get it going because he did not know how to drive. L.M. and F.M. and their son came out and were yelling at C.B. C.B. said that he told them what had happened, that F.M. had touched him, but they did not believe him. They told him to wait inside for the police, but C.B. refused and ran away.

[18] C.B. agreed in cross-examination that he was essentially caught red-handed stealing that second vehicle, that he was drunk at the time, that he was on bail at the time, and that he was outside of his residence when he was not supposed to be. He agreed that he was breaching his recognizance of bail. When asked whether in his mind he was in some pretty hot water at this point, he responded "I guess so you know". When asked why he did not wait for the police, he stated "'cause man, I don't like cops. Nobody likes cops….besides I ain't going to wait in the fucking house anymore. I don't want to be there anymore so that's why I took the car. Think if you rob the house you're going to stay there and hide, nah." C.B. admitted that he did not want to go back to jail. It was suggested to C.B. that his running away had nothing to do with F.M. touching him, to which he replied:

"Yeah it had everything to do with F.M. touching me, that's why I ran."

[19] C.B. went to his father's house and his mother and father were there. C.B. stated that he told them what had happened. In cross-examination, C.B. stated that he stayed with his parents for about a week and then he went to Sudbury. He agreed that if nothing had happened at the M.' residence, his parents would have likely brought him back to the M.' residence, given that he was on bail to be living with his surety.

[20] At some point after […] 2016, C.B. returned to C[…] Youth Centre. Police came to see him a couple of times asking him to make a statement regarding F.M.. He did not make a statement initially, the reason being that "I had somebody going around telling me that I was going to get beat up if I were to make one". He stated that this occurred before he went to C[…] again. C.B. claimed that initially he was worried about getting beat up if he was seen cooperating with the police, but afterwards, he got bigger and he did not care. By the time he made a video statement to the police, he had been released from C[…].

[21] In cross-examination, it was suggested to C.B. that on […], 2016, the day that he said this happened, F.M. and L.M. were returning from an Alice Cooper concert at Casino Rama. C.B. did not agree with that. It was further suggested that when L.M. and F.M. returned, there were two empty bottles on the floor in the basement and F.M. confronted him about drinking and that he confirmed that he had been drinking that weekend when they were away. C.B. disagreed with this suggestion. Further, it was suggested to C.B. that the next morning, following […], 2016, F.M. and L.M. were going to Niagara Falls and Toronto for a conference. C.B. did agree with that and stated that they were supposed to take him with them. The trip was going to be about a week in duration.

[22] C.B. agreed that, at this time, he had a girlfriend who lived in Sudbury. When asked whether he wanted to stay with his girlfriend in Sudbury for that week rather than traveling with F.M. and L.M., he stated "I don't remember". When asked whether he asked permission to stay with his girlfriend in Sudbury for that week, he responded "No. I might have asked her, but they even took me to go see her one time, I just stopped in and said hi, that's it." When asked again about this specific time frame, C.B. stated, "Yeah I could have asked but I don't remember though". It was suggested to C.B. that he was disappointed for not being allowed to stay with his girlfriend for the week, to which he replied, "I don't remember".

[23] With respect to the particular night that C.B. claimed this happened and that he took the cars from the Migwans' residence, it was suggested to him that he really wanted to get to Sudbury. C.B. responded, "Yeah I just wanted to get out of there". He admitted that he had not seen his girlfriend in a while at that point, and that particular night, he was speaking with her on Skype. It was suggested to C.B. that he really wanted to get to Sudbury in order to be with his girlfriend to which he replied, "Yeah, I don't remember no". When it was suggested to him that the reason he stole the vehicles was because he wanted to travel to Sudbury to be with his girlfriend, his response was "no". C.B. was then referred to his police statement from January 7, 2017, in which he stated as follows:

"and then I don't know, I was just thinking about Sudbury and my friends and then I didn't want to be in this place no more, so I grabbed the keys and I took off"

C.B. admitted saying this to the police, but when it was suggested that this was the reason he stole the car, he stated "no, it's not". He agreed that he was under oath when he made the statement to the police. In re-examination, C.B. was asked whether he tried to get to Sudbury that night, to which he said that he did not even make it out of M[…]. He stated, "I don't remember what my intentions were, but I just wanted to leave. I didn't want to be in that house anymore that's why I took it".

[24] It was suggested to C.B. in cross-examination that thinking back to that night, things are a little blurry, to which he agreed. However, when it was suggested to him that based on the amount of alcohol he drank that night, he did not remember all of the details, he stated "I remember everything". C.B. then qualified this by saying "I remember most of it, yeah I do". C.B. agreed that this is not what he told police during his interview, and he agreed he stated:

"I don't remember everything from that night though. Like I – I remember a lot, but it's been awhile you know"

In re-examination, C.B. was referred to further parts of the transcript of his statement and clarified that when making this comment to the police, he was merely referring to the conversation with his girlfriend.

[25] After running away that evening, C.B. was not arrested until August 26, 2016. He was then detained at C[…] Youth Centre. At that time, he was in custody for the same charges referenced on the recognizance of bail marked as Exhibit 2. Those were the same charges for which L.M. had acted as a surety. He agreed he was not charged on that date with theft of the motor vehicles. C.B. agreed that he thought he was going to be "gated" for the theft charges, essentially meaning that if he resolved the charges that were outstanding at that time, he thought that he would not be let out of C[…], that they would hold him, and then charge him with the motor vehicle thefts.

[26] C.B. agreed in cross-examination that while at C[…], he spoke to his Uncle R. on the telephone and that his Uncle R. told him to make a statement against F.M. so that the police would not charge him with the thefts. It was then suggested to C.B. that based on what his Uncle R. had told him, he provided a statement to the police in order to avoid the criminal charges of theft. C.B. disagreed with this suggestion. He stated

"They kept trying to convince me to make a statement 'cause I was scared you know and someone said they were going to beat me up and as I – like I said, I got bigger and whole lot more people were telling me to make a statement too 'cause – I got a lot of respect now, and nobody likes rape hounds you know, so ask me – a guy ain't going to last there"

C.B. agreed that what he was thinking was that if he did not provide the statement against F.M., that the police were going to charge him with theft. C.B. agreed that Constable Mack visited him at C[…] on September 8, 2016 and that Constable Mack told him that he was interested in a statement against F.M. and that he was not interested in charging him with stealing the vehicles. C.B. agreed that, in his mind, he believed that if he provided a statement against F.M., he would avoid criminal charges.

[27] C.B. agreed that he resolved a number of charges on December 7, 2016, including assault, utter threats, mischief, fail to attend court, fail to comply with recognizance, and fail to appear. He was released on the same day as the resolution and received nine months of probation. C.B.'s criminal record was produced and marked as Exhibit 3 which showed this disposition and the date. In re-examination, C.B. stated that the police never offered to make charges go away if he made a statement. He attended the police station on January 7, 2017 to provide his statement.

[28] This is merely a summary of the evidence, however, the Court considered the entirety of the evidence.

Position of the Parties

[29] In summary, the Crown submitted that the case really comes down to the evidence of C.B., who is an unsophisticated, easily flustered witness. The Crown encouraged the Court to consider his evidence in this context.

[30] The Crown submitted that C.B. was living in the M.' home and that even though his formal surety was L.M., it was also F.M.' home and C.B. had to follow the rules. In the Crown's submission, that established trust and authority. Further, the Crown submitted that the fact of Mr. F.M. not enforcing rules can be seen as grooming behavior.

[31] The Court was reminded that, according to C.B., Mr. F.M. brought potato vodka alcohol which they shared. The amount of alcohol each of them had was still an open question, however the evidence established that both of them were feeling the effects of the alcohol. C.B. was feeling tired and went to his bedroom. A short time thereafter, Mr. F.M. was on the bed with him. Initially, Mr. F.M. did not disturb C.B. but within minutes Mr. F.M.' hand ends up on C.B.'s upper thigh, close to his crotch. The Crown submitted that there was no reason for that to happen, such as there was no evidence of thrashing in bed. The Crown submitted that this portion of the evidence, the core of the evidence, was never shaken.

[32] C.B. admitted that he did not want to stay at the residence and had to get away. He developed a plan in his own mind – the mind of a 16 year old boy. The Crown submitted that this might not be the plan others would choose, but that the Court must consider the personal circumstances of C.B. C.B. took the car without permission and when he came back for the second car, there was a confrontation with the family. The Crown submitted that C.B. did not shy away from these facts, but rather he "owned it", so to speak. C.B. did not feel safe and he had to get away. Again, the Crown submitted that this evidence is not contradicted.

[33] Finally, the Crown referred the Court to the case of R. v. Jacko, 2018 ONSC 584, in which Justice Kurke made reference to various appellate authorities on the issue of credibility and reliability and also stated the following:

In making these assessments, it is necessary to bear in mind that people react to events differently. Courts must avoid resorting to stereotypical thinking about how people should or should not react to traumatic events….

[34] In summary, Mr. Haraschuk, on behalf of Mr. F.M., made his submissions in four parts, as follows:

(1) The Crown has not proven that "private parts" were touched as required by the wording of the Information. The count lacks specifics and this would require speculation to determine what amounts to "private parts". The Crown has not established that the thigh was a "private part". This area was not explained by C.B. as "private parts". The defence submitted that, typically, the genitalia, buttocks or breasts are "private parts", and none of those areas were touched.

(2) The Crown has not proven that F.M. stood in a position of trust or authority on that day. There was insufficient evidence to establish the relationship between Mr. F.M. and C.B.

(3) The Crown has not satisfied their onus that C.B. was touched by F.M., as the story lacks credibility and reliability required for a conviction. In other words, the evidence of C.B. does not establish proof beyond a reasonable doubt due to his incredible and unreliable evidence. The defence submitted that there were material inconsistences in his evidence, that the evidence of intoxication damages reliability and credibility, that parts of the evidence lacked logic and common sense, and finally that there is evidence that C.B. had a motive to fabricate.

(4) Even if the Crown satisfies their onus that the private parts were touched, the Crown has not proven that:

a) the touching was for a sexual purpose; or

b) that F.M. had the requisite mens rea to touch for a sexual purpose.

Analysis

[35] In order for the Crown to prove the case against Mr. F.M. in relation to the charge of sexual exploitation, it must prove each of these essential elements beyond a reasonable doubt:

(1) That C.B. was a "young person" at the time;

(2) That Mr. F.M. touched C.B.;

(3) That the touching was for a sexual purpose; and

(4) That Mr. F.M. was in a position of trust or authority towards C.B.

See R. v. Audet, [1996] 2 S.C.R. 171, para 16; R. v. Aird, 2013 ONCA 447, [2013] O.J. No. 3027, para 25

"Young Person" at the time

[36] There is no question that C.B. was a "young person" at the time of these alleged events. A "young person" is someone who is sixteen years of age or more, but less than eighteen years of age. There would seem to be no disagreement on this essential element and this is easily proven through the evidence of C.B.

Touching

[37] As for the second element, the touching must involve intentional physical contact with any part of C.B.'s body, or indirect contact, for example, touching with an object. Force is not required but an accidental touching is not enough. It does not matter whether C.B. agreed to the touching.

[38] This case is a bit unique in the sense that the Information specifies "private parts in front" as the area being touched. The question then is whether the inner upper thigh, as described by C.B., would be considered to be "private parts in front". In my opinion, using reason and common sense, the area described and demonstrated by C.B. would be considered "private parts in front".

[39] Firstly, as previously stated, to satisfy this element of the offence, the touching can be with any part of the complainant's body. The intention of the section in that respect is clear. The fact that this Information specifies "private parts in front" provides further information to the person charged as to what he is alleged to have done. Surely, touching or grabbing someone on the inner upper thigh near their crotch area would be captured by "private parts in front". In my view, this does not require speculation to determine what are "private parts". This is not just the touching of a thigh but rather, the upper inner thigh near the crotch area. Surely "private parts" are not restricted to the genitalia, buttocks and breasts as suggested by the defence. The determination of what is a "private part" must be a factual determination to be made by the court in the circumstances of a particular case.

[40] Given that the whole point of this section of the Criminal Code is to capture any touching, it would seem unreasonable to then restrict the section in such a way simply because the Crown has chosen to proceed with an Information that specifies "private parts in front".

[41] Having said that however, the Crown should carefully review the Information prior to proceeding to trial to ensure that it conforms with the evidence as they believe it to be. The Information provides the person accused with notice of what is being alleged. It is necessary for the Information to accurately reflect the proper charge in relation to the allegations as known by the Crown. A badly worded or incorrectly worded Information can result in serious prejudice to the person accused.

[42] In this case, while the Information could have been worded in a better way, there is no prejudice to the accused and the allegation is captured.

[43] As to whether the Crown has proven that C.B. was actually touched by F.M., I must consider the entirety of the evidence which is the evidence of C.B. I must also consider his evidence, appreciating his age and personal circumstances.

[44] There are some material inconsistencies in the evidence of C.B., for example:

(1) Location of where he was touched – he demonstrated by pointing to the right leg and then said it was the left leg.

(2) Touched or grabbed – within a few moments, he made the following inconsistent comments:

….he grabbed me….

THEN

….like he just grabbed me right here, he didn't grab – he fucking touched me okay.

(3) When it occurred – first he said it occurred in the summer, then said December 2016 after his release from C[…]. C.B. was not released with L.M. as his surety in December; it was in fact April 29, 2016 as reflected in the recognizance of bail. Further, […], 2016 was […] Day, as the first Monday immediately preceding […] 25 is […] Day. C.B. said this occurred after school, however, C.B. would not have school on […] Day.

(4) C.B. was inconsistent on his assertion concerning his ability to recall. In court he stated that he remembered everything, then said he remembered most it. However, he previously told the police officer in his statement that he did not remember everything about that evening.

(5) C.B. testified at trial that Mr. F.M. was awake but admitted that he had previously told the police that they were sleeping.

[45] Having considered the entirety of C.B.'s evidence, it is the view of this Court that parts of his evidence lacked logic and common sense, for example:

(1) C.B.'s assertion that Mr. F.M. allowed him to drink and that they drank together does not seem reasonable. Mr. F.M.' wife was the surety for C.B. in the amount of $5000 and there was a condition for C.B. not to consume alcohol. If C.B. breached this term, Mr. F.M.' wife would possibly lose money.

(2) C.B.'s stated reason for stealing the car is illogical. C.B. testified that the reason he took the car without permission was because he did not want to be in the home any longer due to Mr. F.M. touching him. This does not explain the reason he would steal a car. The more logical explanation for taking the car was that he had not seen his girlfriend for some time and he wanted to get to Sudbury. He had spoken to his girlfriend on Skype that night. The defence suggested that the most logical thing to do would be to wait for the police. It is accepted by this Court that this was not the most logical thing to do in the mind of C.B. given his history and feelings toward the police. However, when this was suggested to him at the trial, his answer was that he did not want to wait for police because he did not like the cops, and would not wait in a house he had just robbed. He did not mention being touched by Mr. F.M.. He admitted that he was caught red handed stealing the vehicle and he did not want to go back to jail.

[46] Further, there is evidence that he had a motive to fabricate this allegation against Mr. F.M.. C.B. admitted that he gave a statement to police to avoid criminal charges being laid against him. A motive to make false allegations is an important consideration in assessing credibility: see R. v. Howe, para 56-57

[47] Finally, there is evidence of intoxication which damages the reliability of C.B. He testified that he drank some portion of a 40 oz bottle of potato vodka, and that he was still drunk when he stole the vehicle.

[48] The evidence of C.B. lacks credibility and reliability. C.B. is the only witness to support the allegation. There is no other evidence to suggest this occurred. A conviction, however, can rest on the evidence of one witness alone. After reviewing the entirety of the evidence of C.B., the Court is left with a reasonable doubt as to whether in fact this touching occurred. Therefore, on that basis, there must be an acquittal as the Crown has not proven all essential elements beyond a reasonable doubt.

[49] Having said that, however, a few comments will be made about whether Mr. F.M. was in a position of trust or authority.

Position of Trust or Authority

[50] Regarding whether Mr. F.M. was in a position of trust or authority, the Court must consider the concepts of trust or authority separately, as either can create the relationship. An individual is in a position of trust towards a young person when the relationship between them creates an obligation or responsibility on the adult. An individual is in a position of authority towards a young person if that person has or exercises the power or right to enforce obedience by the young person, or the power to influence the conduct and actions of the young person.

[51] In my view, on the facts of this case, Mr. F.M. would not stand in a position of trust or authority towards C.B. The Crown has not proven beyond a reasonable doubt that Mr. F.M. stood in a position of trust or authority on the day in question or on any day. There was evidence to suggest the contrary, such as:

(1) Mr. F.M. allowed C.B. to drink alcohol.

(2) Mr. F.M. did not punish C.B. for drinking.

(3) Mr. F.M. did not enforce any rules.

(4) L.M., the surety, was responsible for the actions of C.B., not Mr. F.M.. Mr. F.M. is not in a supervisory role over C.B. simply because he is the husband of L.M., the surety. When asked whether Mr. F.M. played any role in enforcing the bail, C.B. responded: "Um, I don't recall. I'm pretty sure he did. Like I lived in his house, I have to listen to him, right?" C.B. provided this response in a questioning manner.

(5) There was no prior relationship between C.B. and Mr. F.M.. C.B. did not know Mr. F.M. before he moved into the residence. C.B. never worked for Mr. F.M.. Mr. F.M. was never a teacher or coach to C.B. They were not related in any way.

(6) According to C.B. he would not share secrets or important details of his life with Mr. F.M..

[52] In R. v. Audet, [1996] 2 S.C.R. 171, the Supreme Court of Canada made the following comments:

38 It will be up to the trial judge to determine, on the basis of all the factual circumstances relevant to the characterization of the relationship between a young person and an accused, whether the accused was in a position of trust or authority towards the young person or whether the young person was in a relationship of dependency with the accused at the time of the alleged offence. One of the difficulties that will undoubtedly arise in some cases concerns the determination of the times when the "position" or "relationship" in question begins and ends. It would be inappropriate to try to set out an exhaustive list of the factors to be considered by the trier of fact. The age difference between the accused and the young person, the evolution of their relationship, and above all the status of the accused in relation to the young person will of course be relevant in many cases.

It is, therefore, important for the Court to consider the facts of each case carefully to decide whether such a relationship exists. See also R. v. Aird, 2013 ONCA 447, [2013] O.J. No. 3027 (C.A.) at paras 27-29, and R. v. D.E., [2009] O.J. No. 1909 (Sup Ct.) at para 43.

[53] In this case, on the basis of the evidence put forward, the Court is not convinced beyond a reasonable doubt that a position of trust or authority existed between C.B. and Mr. F.M..

[54] For all of the foregoing reasons, the Court finds F.M. not guilty of sexual exploitation.

Released: April 17, 2018

Signed: Justice V. Christie