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or justice may make an order directing that any information that could identify the complainant or a witness shall not be published in any document or broadcast or transmitted in any way, in proceedings in respect of

(a) any of the following offences:

(i) an offence under section 151, 152, 153, 153.1, 155, 159, 160, 162, 163.1, 170, 171, 172, 172.1, 173, 210, 211, 212, 213, 271, 272, 273, 279.01, 279.02, 279.03, 346 or 347,

(ii) an offence under section 144 (rape), 145 (attempt to commit rape), 149 (indecent assault on female), 156 (indecent assault on male) or 245 (common assault) or subsection 246(1) (assault with intent) of the Criminal Code, chapter C-34 of the Revised Statutes of Canada, 1970, as it read immediately before January 4, 1983, or

(iii) an offence under subsection 146(1) (sexual intercourse with a female under 14) or (2) (sexual intercourse with a female between 14 and 16) or section 151 (seduction of a female between 16 and 18), 153 (sexual intercourse with step-daughter), 155 (buggery or bestiality), 157 (gross indecency), 166 (parent or guardian procuring defilement) or 167 (householder permitting defilement) of the Criminal Code, chapter C-34 of the Revised Statutes of Canada, 1970, as it read immediately before January 1, 1988; or

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

(2) 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.

WARNING

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

A non-publication and non-broadcast order in this proceeding has been issued under subsection 539(1) of the Criminal Code. This subsection and subsection 539(3) of the Criminal Code, which is concerned with the consequence of failure to comply with an order made under subsection (1), read as follows:

539. Order restricting publication of evidence taken at preliminary inquiry.

(1) Prior to the commencement of the taking of evidence at a preliminary inquiry, the justice holding the inquiry

(a) may, if application therefor is made by the prosecutor, and

(b) shall, if application therefor is made by any of the accused,

make an order directing that the evidence taken at the inquiry shall not be published in any document or broadcast or transmitted in any way before such time as, in respect of each of the accused,

(c) he or she is discharged, or

(d) if he or she is ordered to stand trial, the trial is ended.

(3) Failure to comply with order. — Every one who fails to comply with an order made pursuant to subsection (1) is guilty of an offence punishable on summary conviction.

Court Information

Ontario Court of Justice

Date: 2018-10-15

Court File No.: Central East Region: Oshawa Courthouse 2811-998-17-25156-00

Between:

Her Majesty the Queen

— AND —

T.H.

Before: Justice Peter C. West

Evidence Heard: September 25 and 26, 2018

Reasons for Judgment Released: October 15, 2018

Counsel:

• Mr. M. Malleson — counsel for the Crown
• Mr. J. Struthers — counsel for the accused T.H.

WEST J.:

[1] Preliminary Hearing and Charges

T.H. commenced a preliminary hearing on September 25, 2018 respecting charges of Sexual Assault, Sexual Interference and Invitation to Sexual Touching, respecting I.E. and Sexual Assault, Sexual Interference and Sexual Exploitation respecting C.P. At the conclusion of the evidence defence counsel conceded committal respecting the charges involving I.E., whose evidence was heard on September 25, 2018 and made oral submissions for a discharge involving the charges involving C.P., whose evidence was heard on September 26, 2018. After submissions I reserved until October 15, 2018.

Factual Background

[2] Crown's Evidence

The Crown played C.P.'s police video statement, dated April 30, 2017, as her evidence in-chief, pursuant to s. 715.1 of the Criminal Code. There was only brief questioning by the Crown of C.P. in-chief. She was cross-examined by defence counsel.

[3] Background and Initial Contact

C.P. was born on […], 1994. T.H. was born on […], 1991. C.P. used to live across the street from T.H. and they both attended a karate school where he was one of the seniors. C.P. and her brother switched schools, the karate school closed and she no longer played outside with T.H. In 2008 C.P. started high school and saw T.H. and recognized him but they never made contact. T.H. was graduating from high school in June 2009. C.P. told the police in June 2009, T.H. finally came up to her and asked if she was "fruit loop," which was her nickname when they hung out together, when they were younger. She was fourteen years old at that time.

[4] Development of Relationship

She and T.H. added each other on Facebook and began to chat every once in a while. In September 2009, T.H. did a victory lap at the high school to improve some of his marks. Initially he started dating another girl who was a year younger than C.P., which upset her because she thought T.H. liked her. T.H. told her he was only seeing this other girl for sexual purposes. He eventually broke off with this girl and started to see C.P. They started going out and they would kiss and make out like every other high school couple. He later started putting his hands in her pants and he told C.P. he only did it because he liked her and because he noticed she would get wet when he did. C.P. did not feel this was wrong because she knew he liked her, he was popular and people were starting to notice her. T.H. would call her on the phone and tell her things he wanted to do and ask if it was okay for him to do these things. He eventually began to masturbate while they were talking on the phone. C.P. had never engaged in phone sex before this.

[5] First Sexual Encounter

Their first real date was December 12, 2009, when he took her to Coffee Culture on Highway 2. He began putting his hands in her pants and C.P. told the police she pushed him away and said to him what are you doing. He said it was a joke and she allowed it to proceed. After they walked back to his house and they noticed his mom and brother were still home, so they snuck into the garage and waited for his mom and brother to leave. They started were kissing and then T.H. turned her around and started penetrating her anally. He did not ask and she did not say no because she knew he really liked her and that is what made him happy, so she allowed it to happen. He told her after he finished it was the best thing ever and it made him happy. All she knew at the time was she was doing the right thing. This happened when she was fifteen years old.

[6] Relationship Dynamics

C.P. described how T.H. would flirt with other girls and this made her very insecure in her relationship with him. T.H. told her if he had not been dating her he would have fucked the other girl. C.P. asked T.H. about his previous girlfriends and he would get defensive and angry with her, so she stopped asking.

[7] Threats and Continued Relationship

C.P. told the police it was hard leaving T.H. because he would always threaten to kill himself. They argued and fought, she would leave and he threatened to kill himself or take pills from his mother's medicine cabinet. She continued to date him. He told her how much his mother loved her and how they were going to open a Montessori School after he graduated from teacher's college. He often would have sex with her in public, where someone might find them but she had gotten used to it.

[8] Thailand Visit

She went to Thailand in 2011, to visit family. Her family asked about T.H. because their pictures were all over social media. They asked if she was going to marry him and she would say "fuck no." When they asked why she was with him she said because she was still trying to find a way to break up with him.

[9] Breakup

In the summer of 2012, C.P. refused to have sex with him, she did not even kiss or touch him. She was cold towards him. In the fall of 2012, she started university. She started giving his clothes back to him that he had at her house and gave the excuse she needed more room in her closet. She started taking the bus from school, so he did not have to drive her. They broke up after her birthday in 2012.

[10] C.P.'s Perspective on Consent

C.P. told the officer the first time they had sex, "like I didn't even know what was happening, I just like went with it." C.P. told the police she was used to seeing her mom just doing whatever her dad said, always obeying, never fighting, which was the way she grew up. She never questioned having sex, she guessed she got used to it. She wanted to make him happy because he loved her and they had their futures planned out, he was the love of her life. She just "followed what he said because he loved me and I loved him."

[11] Volunteering at the Dojo

She never attended his mother's dojo as a student. T.H. was teaching a toddlers class at the dojo. She would go with him to the classes and initially would work while she was there on her homework. Sometimes she would help out when he was teaching. She would attend tournaments he went to and took pictures. T.H.'s mom owned the business and she collected the money and organized the parties. His older brother taught the more senior classes.

[12] Volunteer Hours at the Dojo

C.P. began volunteering at T.H.'s mother's dojo starting in 2010, when she was 15 or 16 years old. In cross-examination she testified she was not volunteering at the dojo when she first started dating T.H. in the fall of 2010. She volunteered until she broke up with T.H. T.H.'s mother supervised her when she volunteered at the dojo. T.H. was looking after the kids. She assisted T.H. set up the equipment. He supervised the toddlers. She was his girlfriend when she volunteered at the dojo and this was why she was helping out. She never had to get a vulnerability check from the police when she volunteered there. His mother was the person who signed her volunteer hours for high school. She never took classes at the dojo or paid any fees for classes. She did not get paid for her volunteering. She was not an employee and was not paid for her volunteering. C.P. testified she had no relationship with the dojo other than when she attended with T.H. She often did homework at the dojo while T.H. taught the kids. T.H. was not her boss. He asked her to help him in setting up the equipment and sometimes she would ask him to help her with the things she was doing. They were spending a great deal of time together.

[13] Coming Forward

C.P. came forward to the police in 2017 because of an article she read in the newspaper about T.H. She spoke to a number of her friends before going to the police.

[14] Retrospective View of Relationship

She and T.H. had been kissing, hugging and fondling before December 2009. She liked it and T.H. liked it. The incident in the garage she allowed to happen, she did it to make him happy and did not realize anything was wrong.

[15] Relationship Context

She was his girlfriend and she spent a lot of time with his family, she got to know his mother and brother well. They were going to get married. If they had arguments or fights his mom or her mom would get involved. Their relationship was known to everyone at school, all her friends and it was all over social media. All throughout this period she was having sexual contact with T.H. and she did this to make him happy. This was something she was doing because she was his girlfriend. She was also doing this because of her own family relationships and she thought this was how she should act. At the time she thought she loved him.

[16] Retrospective Characterization

Everything that happened during the time she was T.H.'s girlfriend she thought was normal, yet looking back now she thinks T.H. was emotionally abusive towards her and she should have done things differently. C.P. now looks at T.H. as an "asshole" but at the time he was her boyfriend and she spent almost every day with him. She eventually broke up with him and then saw an article in the paper and she thought she had been in abusive relationship with him and she should come forward. Looking back C.P. agreed she did not act in a way she would want to act now.

[17] Re-examination

There was no re-examination by the Crown.

The Test for Committal

[18] Legal Standard

The law is well-settled at a preliminary inquiry, the justice is to determine whether or not there is any evidence upon which a reasonable jury, properly instructed, could return a verdict of guilty upon the charges against the accused. This legal standard applies on all preliminary inquiries, regardless of whether the case against the accused is based upon direct evidence, circumstantial evidence, or a combination of both kinds of evidence. Moreover, the preliminary inquiry justice must refrain from assessing the credibility of witnesses, weighing the testimony, considering the quality or reliability of the evidence, drawing factual inferences from the evidence, or making any determinations of fact. Those are all functions that are strictly reserved for the trier of fact -- in this case, the jury. See United States of America v. Shephard, [1977] 2 S.C.R. 1067, at pp. 1079-1080; R. v. Mezzo, [1986] 1 S.C.R. 802, at pp. 836-845; R. v. Monteleone, [1987] 2 S.C.R. 154, at p. 160-161; R. v. Morabito, [1949] S.C.R. 172, at p. 174; R. v. Charemski, [1998] 1 S.C.R. 679, at paras. 2-4.

[19] Circumstantial Evidence and Limited Weighing

In R. v. Arcuri, 2001 SCC 54, [2001] 2 S.C.R. 828, the Supreme Court of Canada confirmed that this same legal standard applies regardless of whether the evidence is direct or circumstantial, but noted that the task of the preliminary inquiry judge is somewhat more complicated in cases of circumstantial evidence as, in such cases, the judge must determine what potential inferences are reasonably open to the jury from the circumstantial evidence. More particularly, McLachlin C.J.C., delivering the judgment of the court, stated, at para. 23, that answering this question, about available inferences, "inevitably requires the judge to engage in a limited weighing of the evidence," in the sense of "assessing whether it is reasonably capable of supporting the inferences that the Crown asks the jury to draw." In short, the judge asks only "whether the evidence, if believed, could reasonably support an inference of guilt." Further, and importantly, at paras. 25-32, the Supreme Court reaffirmed the "continuing validity" of the "traditional common law rule" articulated in United States of America v. Shephard, McLachlin C.J.C. stated, at para. 30:

In performing the task of limited weighing, the preliminary inquiry judge does not draw inferences from facts. Nor does she assess credibility. Rather, the judge's task is to determine whether, if the Crown's evidence is believed, it would be reasonable for a properly instructed jury to infer guilt. Thus, this task of "limited weighing" never requires consideration of the inherent reliability of the evidence itself. It should be regarded, instead, as an assessment of the reasonableness of the inferences to be drawn from the circumstantial evidence.

[20] Limited Weighing and Competing Inferences

In addition, as the Supreme Court of Canada confirmed in R. v. Sazant, 2004 SCC 77, [2004] 3 S.C.R. 635, at paras. 18 and 25, this limited weighing process does not involve choosing amongst competing reasonable inferences, which is the sole jurisdiction of the trier of fact, but rather involves determining only the field of potential factual inferences that could reasonably be drawn in the circumstances. See also R. v. Dubois, [1986] 1 S.C.R. 366, at p. 380; R. v. Campbell (1999), 140 C.C.C. (3d) 164 (Ont.C.A.), at paras. 6-9; R. v. Montour, [2002] O.J. No. 141 (C.A.), at paras. 3-4; R. v. Bogiatzis, [2002] O.J. No. 736 (S.C.J.), at para. 25. Indeed, any doubt as to the inferences to be drawn from the evidence must be resolved, at the preliminary inquiry stage, in the Crown's favour: R. v. Sazant; R. v. Deschamplain, 2004 SCC 76, [2004] 3 S.C.R. 601; R. v. Magno, [2006] O.J. No. 2590 (Ont. C.A.) at para. 15; R. v. Foster, [2008] O.J. No. 827 (Ont. Sup. Ct. J.); and R. v. Coke, [1996] O.J. No. 808 (Sup. Ct. J.) cited in R. v. Ghazzi, [2006] O.J. No. 4052 (Ont. C.A.) at para. 2. Consequently, the weighing of the evidence for competing inferences, frailties or contradictions has no place in the Shephard test. Neither can a preliminary inquiry judge assess the dubious nature of the Crown's case or the reliability of the evidence or concerns about its weight.

[21] Strength of Inferences

Further, the inferences to be drawn from circumstantial evidence need not be "compelling" or even "easily drawn" in order to be reasonable. If an inference is a reasonable and logical one, the question of whether or not it should ultimately be drawn must be left for the trier of fact. If there are competing inferences, these are for the trier of fact to resolve and if a reasonable inference in favour of the Crown is available to be drawn, then, regardless of its strength, a judge conducting a preliminary inquiry is required to draw it. See R. v. G.W. (1996), 93 O.A.C. 1 (C.A.), at para. 62; R. v. Katwaru (2001), 153 C.C.C. (3d) 433 (Ont.C.A.), at paras. 37-41; R. v. Munoz (2006), 86 O.R. (3d) 134 (S.C.J.), at paras. 18-22.

[22] Taking the Crown's Case at Its Highest

Accordingly, at the preliminary inquiry, the justice must proceed on the basis that all available reasonable inferences might be drawn in favour of the Crown by the trier of fact. As Doherty J.A. recently stated, in delivering the judgment of the Court of Appeal for Ontario in R. v. Jackson, 2016 ONCA 736, at para. 7:

In conducting this limited weighing, the preliminary inquiry judge takes the case for the Crown at its highest, meaning she accepts the credibility of the evidence relied upon by the Crown and assumes the reasonable inferences from the primary facts that are most favourable to the Crown: R. v. Sazant, 2004 SCC 77, [2004] 3 S.C.R. 635, at para. 18; R. v. Foster (2008), 76 W.C.B. (2d) 769 (Ont.S.C.), at para. 31; and R. v. Howells, 2009 BCCA 460, 85 W.C.B. (2d) 370, at paras. 13-14.

If the preliminary inquiry judge decides that on a view of the evidence most favourable to the Crown, the circumstantial evidence could reasonably support the inferences necessary to establish guilt, she must commit the accused for trial. It is irrelevant that the evidence also supports inferences inconsistent with guilt.

[23] Definition of Reasonable Inference

In the case of R. v. Munoz (2006), 205 C.C.C. (3d) 70 (Ont. Sup. Ct.), Justice Ducharme sought to define what constitutes a "reasonable inference":

Any inferences relied upon by the judge to commit the accused must be both: (1) reasonably based on the evidence heard at the preliminary inquiry; and (2) reasonable. Such inferences cannot be based on speculation, no matter how seemingly reasonable. If the committal of an accused depends on an inference or inferences that cannot be reasonably drawn from the evidence – the accused must be discharged as there would be an absence of evidence on an essential element.

[24] Logical and Reasonable Inferences

At paragraph 25, Justice Ducharme went on to echo the comments made by Justice Doherty in R. v. Morrisey (1995), 97 C.C.C. (3d) 193 (Ont. C.A.), when discussing what types of inferences can be drawn:

A trier of fact may draw factual inferences from the evidence. The inferences must, however, be ones which can be reasonably and logically drawn from a fact or group of facts established by the evidence. An inference which does not flow logically and reasonably from established facts cannot be made and is condemned as conjecture and speculation.

[25] Inferences Must Be Reasonable

In a ruling on an application for certiorari, Justice D. McCombs of the Ontario Superior Court of Justice in R. v. C.T., [2005] O.J. No. 2772, described the function of the preliminary inquiry judge in dealing with inferences to be drawn from circumstantial evidence in the following manner:

Accordingly, the preliminary inquiry judge must go beyond merely considering whether the circumstantial evidence presented by the Crown supports possible inferences that could establish the elements of the offence; the judge must also consider whether these inferences are reasonable. The inferences must therefore go beyond speculation or conjecture: R. v. Coke, [1996] O.J. No. 808 (Ont. S.C.) and R. v. Brissett, [2004] O.J. No. 5525 (O.C.J.).

[26] Permissible Inferences

An inference is permissible so long as it is reasonable and logical. It need not be a strong inference or be capable of creating practical certainty or be easy to draw. As stated by the Court of Appeal in R. v. Katwaru, [2001] O.J. No. 209 (Ont. C.A.) at para. 40:

In order to infer a fact from established facts, all that is required is that the inference be reasonable and logical. The fact that an inference may flow less than easily does not mean that it cannot be drawn. To hold otherwise would lead to the untenable conclusion that a difficult inference could never be reasonable and logical.

[27] Totality of Evidence

In a circumstantial case, as Durno J. noted in R. v. Papadopoulos, [2004] O.J. No. 2766 (Ont. S.C.), at para. 184, "…circumstantial evidence cannot be examined piecemeal. The cumulative effect of the evidence must be examined." Dambrot J. in R. v. Bryce, [2015] O.J. No. 5971 (Ont. S.C.), at para. 41, in dealing with the preliminary inquiry judge's responsibility to consider the whole or totality of the evidence in determining reasonable inferences held:

In my view, when a preliminary inquiry judge makes the error of analyzing and rejecting pieces of circumstantial evidence in isolation, without ever considering their potential force when viewed together and as a whole, such an error is an example of failing to consider the whole of the evidence and is jurisdictional.

He relied upon three judgments of the Ontario Court of Appeal: R. v. Boone, 2012 ONCA 539, (Simmons J.A., in dissent although joined by Hoy J.A. on this issue) at para. 32 and 102; R. v. Charles, 2008 ONCA 237, at para. 3, and R. v. Muir, 2008 ONCA 608, at para. 1.

[28] Summary of Legal Principles

As I have indicated above, as a preliminary inquiry judge, I am to determine whether the inferences argued by the Crown are available to a reasonable jury, properly instructed, on the evidence called. I recognize reasonable inferences are those drawn from facts established by the evidence and must rise above mere speculation. I also recognize I am not to choose between competing inferences that are available and must take the Crown's evidence at its highest. Inferences to be drawn from circumstantial evidence need not be "compelling" or "easily drawn" in order to be reasonable. A preliminary inquiry judge is not to assess the credibility or reliability of the evidence or the weight to be given to a witness' evidence, the question of whether an inference should ultimately be drawn must be left to the jury. In determining if reasonable inferences are available on the evidence the preliminary inquiry judge must not consider the evidence in a piecemeal fashion but rather must consider the totality or the whole of the evidence.

Analysis

[29] Age Difference and Relationship Timeline

T.H. was three years and a month older than C.P. They attended high school together for a year and a half. They began dating when C.P. was in Grade 10 (fall of 2009) and T.H. went back to Grade 12 to improve his marks for post-secondary education for one semester. They continued dating for another two and a half years until C.P. broke off the relationship in October or November of 2012.

[30] Section 150.1(1) of the Criminal Code

Section 150.1(1) of the Criminal Code provides that when an accused is charged with sexual assault or sexual interference, if the complainant is under the age of consent at 16, it is no defence that the complainant consented to the sexual activity that forms the subject-matter of the charges, unless subsection (2.1) applies.

[31] Section 150.1(2.1) of the Criminal Code

Section 150.1(2.1) of the Criminal Code provides:

If an accused is charged with an offence an offence under section 151 or 152, subsection 173(2) or section 271 in respect of a complainant who is 14 years of age or more but under the age of 16 years, it is a defence that the complainant consented to the activity that forms the subject-matter of the charge if the accused

(a) is less than five years older than the complainant; and

(b) is not in a position of trust or authority towards the complainant, is not a person with whom the complainant is in a relationship of dependency and is not in a relationship with the complainant that is exploitive of the complainant

[32] Defence of Consent

This section provides that where a person who is less than five years older than the complainant, the consent of the complainant is a defence unless the person is in a position of trust or authority or is in a relationship of dependency with the complainant and is not in a relationship with the complainant that is exploitive of the complainant.

[33] Age Difference Analysis

T.H. was only three years and a month older than C.P. and consequently, if C.P. consented to the sexual activity with T.H., this would be a complete defence to the charge of sexual assault.

[34] Background and Initial Contact

C.P. told the police in her statement that she and T.H. grew up on the same street as children, played together, attended the same public school. They also attended as students of the same karate school, although T.H. and his brother were in the senior group. They drifted apart because C.P. moved and went to a different public school. When she entered high school in Grade 9, she saw T.H., when he was standing in the hall. He was in his final year, Grade 12. She liked him but he did not seem to notice her until the end of Grade 9 in June 2009, when T.H. finally came up to her and asked if she was "fruit loop," which was a nickname he had given her when they played together as children. They added each other on Facebook. Over the course of the summer they chatted on Facebook with each other. T.H. came back to the high school for a victory lap in Grade 12 when she was starting Grade 10. He initially started dating another girl but by October 2009, T.H. and C.P. were seeing each other regularly in a boyfriend/girlfriend relationship.

[35] Sexual Activity Prior to December 2009

For the two months prior to T.H.'s 18th birthday in […] 2009, according to C.P. in her police statement, they were kissing and making out like every other couple dating in high school. Their sexual activity during this time included T.H. putting his hand in her pants and fingering her. She allowed this to happen because she thought he loved her and she loved him. They were spending time together every day. She would go to his house and he came to hers. They were boyfriend and girlfriend. They started talking about getting married to each other. C.P. and T.H. also went to the Good Life gym twice a week to work out together.

[36] Crown's Argument on Consent

The Crown submitted there was evidence from which there was a reasonable inference available that C.P. had not consented to the sexual activity initiated by T.H. on December 12, 2009, when C.P. was 15 and T.H. was 18. He pointed to portions of the transcript of C.P.'s police video statement, dated April 30, 2017 where she indicated:

Page 7, lines 20-27 and page 8, lines 1-12

CP: Our first date was at the Coffee Culture at Glen Hill and, um, Highway 2, and he began, again, putting his hand in my pants and when I would push him away and be like what are you doing, we're in public, he would say it's a joke. So I allowed it to proceed. Afterwards we walked back to his house on G[…] and noticed that his mom and brother were still there, so we snuck into the garage and waited for his mom and his brother to leave, and then we were kissing, he just turned me around and started penetrating me anally. He did not ask, but I did not say no, because all I knew is that he liked me and that's what made him happy, so I allowed it to happen. Afterwards when he finished he said that was the best thing ever and that made him happy. So all I knew is I…I was doing the right thing.

Page 31 lines 14-27 and page 32, lines 1-3

DCA (police officer): …And then there was the incident in the garage. Was there, um, you know, prior to that were there times, um, as far as sexually, um, between the two of you, was there, um,…

CP: …we would meet up during classes he'd just stick his fingers down my pants and begin to finger me and I told him like hey, like what are you doing, he's like don't worry, like I'm doing this 'cuz I like you.

DCA: Okay.

CP: And like I know you like it too 'cuz you're startin' to get wet. And I just said okay. Like I didn't know sex was…or anything like that was consensual until three years ago.

[37] University Relationship

In her police video statement C.P. advised she had a relationship with a guy three years after she broke off with T.H., when she was attending university. When they started making out he stopped and asked her if what they were doing was okay with her. She later told some friends what had happened with this new guy and told them she now realized her opinion mattered, she did not have to behave or obey like her mother did when her father asked her to do something.

[38] Crown's Limited Allegation

The Crown argued the two passages set out above were some evidence from which a reasonable inference was available that C.P. was not consenting to the sexual activity she and T.H. were engaging in on December 12, 2009. The Crown limited the sexual assault allegation to the two occasions T.H. and C.P. engaged in sex on December 12, 2009.

[39] Defence Argument on Consent

The defence submitted C.P. testified she engaged in sexual activity with T.H. because she thought he loved her and she loved him and she wanted him to be happy. The defence points to C.P.'s assertion in the two passages of her police statement referred to by the Crown that she allowed it to proceed or she allowed it to happen. The defence submitted the only reasonable inference from these two passages was that C.P. consented to the sexual activity. Throughout the time they were engaging in sexual activity they were boyfriend and girlfriend. She viewed the sexual activity they engaged in as normal at the time they were doing it, yet looking back on it three years later she thought T.H. had been emotionally abusive towards her and she should have done things differently. The defence argued on the evidence C.P., at the time the sexual activity took place, consented to the sexual activity and it was only after looking back three years later she now viewed the conduct differently. The defence submitted the passages from her police video statement referred to by the Crown clearly show C.P., at the time the sexual activity occurred, consented to the sexual activity. The defence also referred to additional passages in her police video statement and her testimony in cross-examination that supported this submission.

Page 17, lines 15-18

CP: There was also like the first time we had sex, like I didn't even know what was happening, I just like went with it.

Page 18, lines 15-24

CP…Afterwards having sex with him I guess like I just got used to it, like I never…I never questioned him like oh, it's…it's that time of the day. 'Cuz I wanted to make him happy 'cuz he loves me., because we had our future planned out together, like he was the love of my life, that he was the only one that could tolerate me so I should stay with him and make him happy.

Page 25, lines 1-2

And I just followed what he said because he loved me and I loved him.

[40] Subjective State of Mind

In R. v. Ewanchuk, [1999] 1 S.C.R. 330, at para. 26, Major J., for the majority in the Supreme Court held:

The absence of consent, however, is subjective and determined by reference to the complainant's subjective internal state of mind towards the touching, at the time it occurred: see R. v. Jenson (1996), 106 C.C.C. (3d) 430 (Ont. C.A.), at pp. 437-438, aff'd , [1997] 1 S.C.R. 304, R. v. Park, [1995] 4 S.C.R. 333, and R. v. Chase, [1987] 2 S.C.R. 293. (Emphasis added)

The defence submitted it is C.P.'s subjective state of mind towards the sexual activity she engaged in with T.H., at the time it occurred, not when she thought back to her involvement three years after her relationship had ended with T.H.

[41] Court's Finding on Consent

It is my view the passages from C.P.'s police statement referred to by the Crown, as well as the passages referred to by the defence and C.P.'s testimony in-chief and in cross-examination lead to only one reasonable inference when examined in the totality of the evidence called at the preliminary inquiry, which is that C.P. consented to the sexual activity she engaged in with T.H. at the time it occurred during the three years of their boyfriend/girlfriend relationship. I find the Crown's argument amounts to speculation or conjecture. C.P. testified she engaged in sexual activity with T.H. at the time of these two incidents in December 2009 because he loved her and she loved him and she knew it made him happy, which she wanted to do.

[42] Discharge of Sexual Assault Charge

C.P. and T.H. were discussing marriage with each other and their families. C.P. testified she spent almost every day together with T.H. They worked out together at a gym twice a week. They spent time at each other's homes. C.P. told the police in her statement that during the summer of 2012 she stopped having sex with T.H. because she was trying to break up with him. She was not even kissing him or touching him. She broke off their relationship just after Thanksgiving 2012. Considering the totality of the evidence, it is my view a reasonable jury, properly instructed could not convict T.H. of sexual assault in respect of the sexual activity that took place on December 12, 2009. I find there was no evidence upon which a reasonable jury, properly instructed could convict. Consequently, the charge of sexual assault, count 4, is discharged.

[43] Sexual Interference Charge

Count 5 is a charge of sexual interference, pursuant to s. 151, and is related to an allegation that T.H. was in a position of trust or authority in respect of C.P. when she was under the age of 16. It was C.P.'s evidence that at some point she began volunteering at T.H.'s mother's dojo in order to obtain her volunteer community service hours for high school. The only issue remaining in this preliminary inquiry is whether there was some evidence that T.H. was in a position of trust or authority towards C.P. because of C.P. volunteering at T.H.'s mother's dojo to obtain her volunteer community service hours for high school.

[44] Section 150.1(2.1) Statutory Defence

Section 150.1(2.1) of the Criminal Code provides:

(2.1) If an accused is charged with an offence under section 151 or 152, subsection 173(2) or section 271 in respect of a complainant who is 14 years of age or more but under the age of 16 years, it is a defence that the complainant consented to the activity that forms the subject-matter of the charge if the accused

(a) is less than five years older than the complainant; and

(b) is not in a position of trust or authority towards the complainant, is not a person with whom the complainant is in a relationship of dependency and is not in a relationship with the complainant that is exploitative of the complainant.

[45] Sexual Exploitation Charge

Count 6 is a charge of sexual exploitation, pursuant to s. 153, and related to an allegation that T.H. was in a position of trust or authority in respect of C.P. when she was between the age of 16 but under the age of 18. Again, the only issue remaining in this preliminary inquiry is whether there was some evidence that T.H. was in a position of trust or authority towards C.P. because of C.P. volunteering at T.H.'s mother's dojo to obtain her volunteer community service hours for high school.

[46] Statutory Defence Application

As discussed previously, if C.P. consented to T.H. engaging in sexual activity with her he could not be found guilty of sexual assault by virtue of s. 150.1(1) because he was only three years and a month older than her. However, under s. 150.1(2.1), if there was some evidence upon which a reasonable jury, properly instructed could find T.H. was in a position of trust or authority in relation to C.P., consent would not be a defence and T.H. would have to be committed for trial.

[47] Position of Trust or Authority Test

In R. v. Aird, 2013 ONCA 447, [2013] O.J. No. 3027 (C.A.), para. 28, Laskin J.A. for the court found that:

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.).

[48] Section 153 Definition of Young Person

In s. 153 of the Criminal Code, the section refers to the person being in a position of trust or authority or a position of dependency towards the complainant who is a young person or who is in a relationship with a young person that is exploitive of the young person. A young person is defined in s. 153(2) as "a person 16 years of age or more but under the age of 18 years."

[49] Exploitative Relationship Factors

Section 153(1.2) of the Criminal Code indicates a judge may infer a person is in a relationship with a young person that is exploitive of the young person from the nature of the relationship including:

(a) the age of the young person;

(b) the age difference between the person and the young person;

(c) the evolution of the relationship; and

(d) the degree of control or influence by the person over the young person.

[50] Age When Volunteering

The evidence as to what age C.P. was when she first started volunteering at the dojo is unclear as in her evidence in-chief she testified it began in 2010 when she was 15 or 16. She testified she continued volunteering until she broke off the relationship in October 2012. Consequently, C.P. may have started volunteering at the dojo when she was 15 or 16 years of age. There was no evidence how old C.P. was when the sexual activity occurred when she was volunteering at the dojo. This is why I am examining both Counts 5 and 6 when considering whether T.H. was in a position of trust or authority towards C.P. when she was volunteering.

[51] Volunteering Arrangement

The evidence established that sometime after T.H. and C.P. started dating, T.H. was teaching toddlers, age five, at his mother's dojo and C.P. would accompany him. T.H. would pick her up from school and they would go to the dojo where he taught. She initially was doing homework while he ran the class. At some point C.P. asked T.H.'s mother if she could do volunteer hours at the dojo to be able to complete her high school community service hours.

[52] Supervision and Relationship

C.P. testified T.H.'s mother was the one who supervised her. She was the boss. T.H.'s mother was the business manager and she collected the fees from the students and organized the parties for the kids in T.H.'s class. T.H.'s mother signed C.P.'s volunteer hours for high school. She was not required to get a vulnerability check with the police. She helped out by setting up equipment and taking pictures at the parties the kids would have. T.H. helped her with things she was doing when she volunteered at the dojo. She would help with babysitting the kids and at the summer camps. She attended tournaments that T.H. went to. T.H. was not her boss. They were spending all sorts of time together. Throughout this entire period of time T.H. and C.P. were boyfriend and girlfriend.

[53] Sexual Activity at the Dojo

Sometimes when the toddlers were sleeping, T.H. and C.P. would engage in sexual activity with T.H. putting his hands in her pants and fingering her. She questioned him about the kids seeing them and he would say they were sleeping and not to worry as they would not hear anything. She told the police she just followed what he said because he loved her and she loved him.

[54] Court's Finding on Position of Trust or Authority

It is my view looking at the totality of the evidence T.H. was not in a position of trust or authority when C.P. was coming to the dojo to be with T.H. as he taught the toddlers and she did her homework or when she was volunteering at the dojo. When the Crown asked her who supervised her when she was volunteering at the dojo C.P. answered T.H.'s mother did. There was no evidence from which a reasonable inference could be drawn that T.H. was in a position of trust or a position of authority over C.P. Further, it is my view there was no evidence called from which an inference could be drawn that T.H.'s relationship with C.P. was exploitive. A reasonable jury, properly instructed could not convict T.H. of sexual interference or sexual exploitation, as there was no evidence he was in a position of trust or authority and further, there was no evidence his relationship with C.P. was exploitive as set out in ss. 150.1(2.1) or 151 or 153. Consequently, Counts 5 and 6, the charges of sexual interference and sexual exploitation involving C.P. are also discharged.

Released: October 15, 2018

Signed: "Justice Peter C. West"