Court Information

Ontario Court of Justice

Date: September 21, 2020

Court File No.: Brampton 19-28766

Parties

Between:

Her Majesty the Queen

— and —

Marciano Ramos

Before: Justice M.M. Rahman

Heard: August 17 and 18, 2020

Reasons for judgment released: September 21, 2020

Counsel

Carrie Vandenbroek — counsel for the Crown

Martin Kerbel — counsel for Marciano Ramos

Notice

A non-publication and non-broadcast order in this proceeding has been issued under subsection 486.4(1) of the Criminal Code. Any information that could identify the victim or a witness in this matter shall not be published in any document or broadcast or transmitted in any way. Failure to comply with this order is an offence under section 486.6 of the Criminal Code.

Judgment

RAHMAN J.:

1. Introduction

[1] The defendant, Marciano Ramos, is charged with sexual exploitation. The Crown alleges that Mr. Ramos invited the complainant, A.R., to touch him for a sexual purpose by suggesting that Mr. Ramos and A.R. masturbate one another. The Crown alleges that this invitation to touching happened while A.R. was volunteering at the nursing home where Mr. Ramos worked as a maintenance man. The Crown says that Mr. Ramos was in a position of authority over A.R. because A.R. was working under his direction.

[2] Mr. Ramos denies suggesting to A.R. that they masturbate one another. Mr. Ramos says it was A.R. who brought up masturbation when Mr. Ramos asked A.R. what he did after watching pornography. Mr. Ramos admits giving A.R. a bottle of personal lubricant, but says he did so only when A.R. asked him for it. Mr. Ramos says that he used the lubricant for work.

[3] In addition to denying any invitation to have A.R. touch him sexually, the defence argues that there is no evidence that Mr. Ramos was in a position of trust or authority over A.R.

[4] The two main issues in this case are whether Mr. Ramos invited A.R. to touch him for a sexual purpose and whether Mr. Ramos was a person in authority. I will first review the evidence and then explain my conclusions.

2. Summary of the Evidence

2.1. Crown's Evidence

[5] A.R. was 18 years old at the time of trial, but was 17 in August 2019 when the offence allegedly happened. Most of his evidence in-chief was admitted through his video recorded statement under s. 715.1 of the Criminal Code.

[6] A.R. testified that he was volunteering at the nursing home where his mother worked to get the 40 volunteer hours he needed for school. The day of the alleged offence, August 21, 2019, was A.R.'s first day volunteering there. During the first half of the day, before lunch, A.R. said he "did a bunch of volunteer work." After lunch, A.R. said that he was assigned to work with Mr. Ramos. A.R. testified that he had met Mr. Ramos briefly twice before when he had been to the nursing home.

[7] Mr. Ramos gave A.R. a task to do, stamping towels. A.R. did this task on his own for about an hour. After he finished the task, Mr. Ramos told A.R. that they were going to paint something. Mr. Ramos took A.R. to his office to get some paint. At this point, A.R. said that Mr. Ramos began talking about masturbation. Mr. Ramos asked A.R. how frequently he would masturbate and if A.R. used lubricant. Mr. Ramos also offered A.R. a bottle of personal lubricant. A.R. said he thought that Mr. Ramos was just joking around, even though he thought Mr. Ramos was carrying the joke too far. A.R. took the bottle of lubricant to play along with what he thought was Mr. Ramos' joking.

[8] Mr. Ramos and A.R. then left the office and went upstairs to the third floor. Mr. Ramos showed A.R. around the boiler room. A.R. testified that Mr. Ramos began talking about a friend of his and how much money that friend was making. Then Mr. Ramos quickly returned to the topic of masturbation. Mr. Ramos made comments about workers having masturbation breaks. Mr. Ramos told A.R. that he and his friend masturbated each other and suggested that he and A.R. could masturbate each other as well. A.R. testified that Mr. Ramos also recommended that A.R. masturbate using a banana peel. A.R. became very uncomfortable during this conversation and was keeping his responses to a "bare minimum." A.R. said that this conversation carried on for about 10 minutes. They then left the area and went downstairs to the basement in an elevator. While in the elevator, A.R. testified that Mr. Ramos offered him condoms. A.R. said that he did not accept the condoms because he was "really weirded out by that." Once they reached the basement, Mr. Ramos again offered A.R. the condoms. A.R. once again declined the offer. Mr. Ramos then escorted A.R. to A.R.'s mother's office, wished him a good night, and then left.

[9] A.R. testified that Mr. Ramos insisted many times that he should not tell anyone about their conversations and that it would be their secret. A.R. simply nodded, because he did not want Mr. Ramos to think he would be telling anyone.

[10] A.R. testified that he was unsure whether he would have been scheduled to work with Mr. Ramos again after his first day. He explained that, "they just kind of told me as I went along with my day." A.R. was not asked whom he was referring to when he said "they," but it would seem, from the context, that he was referring to someone in the nursing home's administration.

[11] A.R. told his mother what had happened during their drive home. He also produced the bottle of lubricant that Mr. Ramos had given to him. A.R.'s mother testified that she contacted the head of volunteers at the nursing home as well as the home's executive director. After that, A.R.'s parents decided to go to the police.

2.2. Defence Evidence

[12] Mr. Ramos testified in his own defence. He denied suggesting to A.R. that they engage in any sexual activity. He acknowledged that the topic of masturbation and the use of lubricant came up, but he says that it was A.R. who brought it up.

[13] Mr. Ramos testified that he believed that A.R. was working with him that day because he had asked the nursing home if someone could help with painting. Mr. Ramos said that A.R. did not start working with him in the morning, because he needed to get direction to do so by a woman named Holly who was the "head of volunteers." Mr. Ramos said that he picked up A.R. from the head of volunteers at about 1:00 pm. He took A.R. to the housekeeping room where he had A.R. work on stamping towels. After A.R. was finished stamping towels, Mr. Ramos asked A.R. to help him move a television to a meeting room. After completing this task, the two of them went to the maintenance room.

[14] Mr. Ramos said that he noticed A.R. was always on his phone so he asked him what he was watching. A.R. told Mr. Ramos he was watching "porn." Mr. Ramos said he was surprised and shocked when he heard this. Mr. Ramos then asked A.R. what he did after watching pornography. A.R. responded that he masturbated. Mr. Ramos said he simply responded by asking, "Really?" A.R. responded "yes."

[15] Mr. Ramos said he then took the bottle of lubricant out from his table. Mr. Ramos said A.R. asked what the lubricant was for. Mr. Ramos told him he used it to lubricate cables so that they would run smoothly. A.R. then asked Mr. Ramos if the lubricant could be used to masturbate. Mr. Ramos told him it could. Mr. Ramos said that A.R. then asked him if he could try the lubricant. Mr. Ramos said he gave A.R. the bottle of lubricant but told him he needed it back the following day.

[16] In cross-examination, Mr. Ramos explained that, in his previous job, somebody told him that personal lubricant was better to use than commercial lubricant because the latter would damage the ceiling tiles, while the former would not because it dried up quite easily.

3. Analysis

[17] I will now explain my findings on the two main issues in this case. I will deal first with whether Mr. Ramos in fact invited A.R. to touch him for a sexual purpose, and then explain whether Mr. Ramos was in a position of trust or authority.

3.1. The Invitation to Sexual Touching

[18] I have no difficulty finding, beyond a reasonable doubt, that Mr. Ramos suggested to A.R. that they masturbate one another. Mr. Ramos' version of events is not believable. His evidence that he kept personal lubricant in his office for his work as a maintenance man is utterly ridiculous. The bottle of lubricant is clearly personal lubricant. The bottle's label refers to it as "gentle intimate fluid" which is meant to "help enhance intimacy." I do not believe Mr. Ramos used this product to lubricate cables, or for any other purpose related to his work at the nursing home. I also find it incredible that A.R. would have readily admitted to an adult whom he did not know very well that he had been watching pornography on his phone and that he masturbated after watching it. Mr. Ramos had to come up with an explanation why A.R. had a bottle of lubricant with him that he produced to his mother very shortly after leaving the nursing home. This was the story he told. It was not believable. I reject his testimony about the incident without any hesitation.

[19] As far as A.R.'s testimony, I have no problem accepting his evidence about the events. He was a believable witness and he recalled the events in a straightforward manner. There were no inconsistencies in his testimony. When A.R. disclosed this embarrassing incident to his mother very shortly after they left the nursing home, he produced a bottle of lubricant from his pocket, unprompted by his mother. There is no issue that Mr. Ramos gave him that bottle of lubricant. The fact that Mr. Ramos gave this product to A.R. strongly confirms A.R.'s testimony that Mr. Ramos had the sexual discussion with him that A.R. testified about.

[20] Moreover, A.R.'s evidence was clear that Mr. Ramos suggested that they masturbate each other. I have no hesitation finding that, with that statement, Mr. Ramos was suggesting that they touch each other sexually. That is the plain meaning of that phrase, and A.R.'s testimony was not ambiguous on this point.

3.2. Position of Trust or Authority

[21] While I am satisfied beyond a reasonable doubt that Mr. Ramos did invite sexual touching, I cannot find, beyond a reasonable doubt, that Mr. Ramos was in a position of trust or authority over A.R.

[22] The terms of trust and authority "have been given related but distinct definitions in Canadian jurisprudence." In R. v. Audet, the Supreme Court of Canada adopted the following passage from R. v. P.S. describing when an adult will be in a position of trust with a young person:

One needs to keep in mind that what is in question is not the specialized concept of the law of equity, called a "trust". What is in question is a broader social or societal relationship between two people, an adult and a young person. "Trust", according to the Concise Oxford Dictionary (8th ed.), is simply "a firm belief in the reliability or truth or strength of a person". Where the nature of the relationship between an adult and a young person is such that it creates an opportunity for all of the persuasive and influencing factors which adults hold over children and young persons to come into play, and the child or young person is particularly vulnerable to the sway of these factors, the adult is in a position where those concepts of reliability and truth and strength are put to the test. Taken together, all of these factors combine to create a "position of trust" towards the young person.

[23] An adult will stand in a position of authority where the adult can demand certain conduct of the young person and has the "power or right to enforce obedience and the power to influence the conduct and actions of [the young person]." There may, but does not have to be, a formal legal relationship between the young person and the adult. In determining whether an adult stands in a position of trust or authority with a young person, a court must look at the nature of the relationship between the adult and the young person.

[24] Crown counsel focussed her submissions on Mr. Ramos being in a position of authority towards A.R., although she did refer to the concept of trust as well. She argued that because A.R. had been assigned to work under Mr. Ramos' supervision, and because Mr. Ramos had assigned tasks to A.R. and A.R. followed those instructions, Mr. Ramos had authority over A.R.

[25] There is very little evidence about exactly what Mr. Ramos' role was in relation to A.R. I cannot accept the Crown's submission that, because Mr. Ramos assigned some tasks to A.R., on his first afternoon of volunteering, that he was necessarily in a position of authority. Evidence that Mr. Ramos was responsible for giving A.R. work to do is some evidence capable of supporting an inference that Mr. Ramos had authority over A.R. However, that evidence, on its own, cannot carry the Crown's case to the criminal standard of proof.

[26] A.R. was only asked one question about what Mr. Ramos' role was in relation to him. During his video statement, A.R. gave the following answer when asked a leading question about whether Mr. Ramos was "responsible for" him:

Officer: So I know you were volunteering, so he's not like your boss paying you, but for that day, he was kind of responsible for you? For that afternoon?

[A.R.]: Yeah, after lunch he was like in charge of what I did yeah.

[27] While this statement would support an inference that Mr. Ramos may have had some authority over A.R., in my view it is not enough for me to be sure that he did. I cannot be sure, based on this single statement by a young person (in response to a leading question), that Mr. Ramos was in a position of authority. It is clear from the evidence that Mr. Ramos would decide what tasks A.R. did that afternoon. But what is not clear is whether that brief relationship of giving A.R. tasks during one afternoon created a relationship of authority that allowed Mr. Ramos to enforce obedience or influence over A.R.'s conduct and actions.

[28] There is no evidence that Mr. Ramos would be evaluating A.R.'s work, that he was responsible for signing off on his volunteer hours, or that he had any such role in relation to A.R. Indeed, the evidence I have from Mr. Ramos is that it was the head of volunteers who was responsible for determining where, when, and with whom A.R. worked. I note A.R.'s mother's evidence confirms that there was a head of volunteers named Holly. That was the person to whom A.R.'s mother initially complained. A.R.'s evidence about the way his work was assigned – "they just kind of told me as I went along with my day" – supports this. A.R. only spent the afternoon working with Mr. Ramos, and it was unclear whether he would ever have to work with him again.

[29] As Mr. Kerbel observed in his submissions, if a new employee is sent to shadow or assist another employee, that does not mean the latter exercises authority over the former. In this case, Mr. Ramos was employed at the nursing home and A.R. was a new volunteer. It stands to reason that the person who already worked there would be responsible for giving work to the person who just started volunteering there. That, on its own does not create a position of authority.

[30] I should be clear that in finding that Mr. Ramos was not a person in authority, I do not accept Mr. Kerbel's argument that, because A.R. was a volunteer and not a paid employee, Mr. Ramos could not be said to have authority over him. A student volunteering in a workplace will often be in someone's charge and it is likely someone would be supervising them and possibly evaluating them or signing off on their hours. A.R.'s status as a volunteer, in this case, has no bearing on my decision.

[31] Although Crown counsel focussed her submissions on the question of whether Mr. Ramos was in a position of authority, I will deal briefly with whether there may also have been a relationship of trust. As is probably apparent from my comments above, I also would not find that Mr. Ramos was in a position of trust. The afternoon of the incident was the only occasion A.R. had spent any time with Mr. Ramos. He had only met him briefly on two other occasions. This brief relationship cannot be described as one where Mr. Ramos could exercise the kind of persuasion or influence over A.R. that would be required to create a relationship of trust.

4. Conclusion

[32] Section 153 of the Criminal Code criminalizes conduct that would otherwise be legal, but for the fact that the young person is "in a position of vulnerability or weakness" in relation to the adult. There is insufficient evidence to prove that A.R. was in a position of vulnerability or weakness. It is understandable why A.R.'s parents decided to report what happened to the police. Mr. Ramos' conduct was troubling and disturbing, even on his own version of events. But it was not criminal. Therefore, I find him not guilty of sexual exploitation.

Released: September 21, 2020

Justice M.M. Rahman

Footnotes

[1] This trial was conducted as a hybrid remote and in-person trial on consent of all parties. Mr. Kerbel and his client appeared remotely by video. Crown counsel, the witnesses, and the Tagalog interpreter were all present in the courtroom.

[2] I delivered reasons orally on September 18, 2020, omitting certain portions including headings, footnotes, and quotations. I explained that the parties would receive full written reasons, subject to editing. This written version takes precedence over the oral reasons in the event of any discrepancy between the two.

[3] R. v. A.M., 2018 ONCJ 299, at para. 45.

[4] R. v. P.S., [1993] O.J. No. 704.

[5] R. v. M.R., 2015 ONSC 7825, at para. 110.

[6] R. v. Audet, [1996] 2 S.C.R. 171, at para. 34.

[7] A.M, supra, at para. 47.

[8] Audet, supra, at para. 36.