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judge or justice may make an order directing that any information that could identify the victim or a witness shall not be published in any document or broadcast or transmitted in any way, in proceedings in respect of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

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

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

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

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

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.

ONTARIO COURT OF JUSTICE

CITATION: R. v. Telizyn, 2021 ONCJ 306

DATE: 2021 05 31

COURT FILE No.: Newmarket 19-10025

BETWEEN:

HER MAJESTY THE QUEEN

— AND —

EDWARD TOM TELIZYN

Before Justice E. Prutschi

Heard on March 8-9 and April 29, 2021

Reasons for Judgment released on May 31, 2021

Phyllis Castiglione............................................................................. counsel for the Crown

Hubert Gonzalez............................................ counsel for the defendant Edward Telizyn

PRUTSCHI J.:

[1] On May 23, 2019, Edward Telizyn was left briefly alone at home in the company of C.C.’s two children, E.P. and A.P., then aged 17 and 13 respectively.

[2] It is alleged that during that time Mr. Telizyn made a crude sexual overture to E.P. before going upstairs where he allegdly touched A.P.’s leg in a sexual manner.

[3] He faces a charge of sexual exploitation in regards to E.P., and charges of sexual assault and sexual interference in relation to A.P.

EVIDENCE OF E.P.

[4] E.P. is the older of C.C.’s two daughters. She was 17 at the time of the alleged offences and 19 at the time of her testimony. In May of 2019 she lived together with her mother and sister while maintaining a close and positive relationship with her father who resided elsewhere. Approximately two weeks prior to the incident, Mr. Telizyn, who had been dating C.C., moved in with them.

[5] E.P. described a very limited relationship with Mr. Telizyn. She had only met him once or twice prior to his moving in with them. E.P. was a mature young woman who was frequently put in charge of the care of her younger, developmentally delayed, sister. She rarely conversed with Mr. Telizyn, describing him as an acquintance who she avoided speaking with, and she summarized their relationship as one of “basic interaction” that she tolerated to please her mother.

[6] On May 23, 2019, E.P. was at the mall with Mr. Telizyn and her mother. E.P. believed that Mr. Telizyn had been drinking and, after an argument developed at the mall, he drove them to pick up A.P. before driving them all home in a manner she described as “aggressive” and “reckless”. This left her feeling unsafe and uncomfortable and gave her “a bad feeling”.

[7] Shortly after arriving home C.C. had to leave briefly to pick up something at a nearby drugstore. E.P. recalls Mr. Telizyn telling C.C., “don’t worry, I’ll watch the kids”. She then went outside when Mr. Telizyn approached her on the deck. His eyes were dilated and red and his hands were shaking. He appeared to her as if he had “very cold sweats” and “he just didn’t look mentally okay”. He proceeded to make “very perverted comments” and asked her “if I would like to put something in my mouth, without exactly saying those words”.

[8] E.P. was questioned at length by police and this statement was introduced at trial in accordance with section 715.1. She was further questioned by both Crown and defence counsel about the precise context in which Mr. Telizyn approached her as well as the precise languge he used. E.P. initially stated she, “thought nothing of it” but it was clear that whatever Mr. Telizyn had said disturbed her”.

[9] E.P.’s recollection of Mr. Telizyn’s precise words varied. She testfied that he made his comments at some distance from her as he was standing near the glass doors of the house while she was down a set of stairs at the bottom of the deck in the backyard. It was windy outside and she was on the phone with a friend when he began speaking to her. He may have gone inside once before returning outside to make his lewd comments, though E.P. was unclear on this point.

[10] At times she recalled him suggesting that “something will explode in your mouth” while also remembering that Mr. Telizyn gestured at his crotch area while asking, “do you want to put something in your mouth, and you can, you know, get rid of it for me and you don’t need to tell your mom.”

[11] Despite the minor variances in language and timing, E.P. was consistent and adamant about the sexualized nature of Mr. Telizyn’s comments.

[12] After these comments, E.P. saw Mr. Telizyn go upstairs to the home’s second floor where A.P. was located.Though E.P. was apparently still outside on the home’s lower deck, she testified that she heard Mr. Telizyn “saying things like, ‘come out of your room, you love Ed, you need to come see Ed or else I’ll come in, I’ll come and see you, don’t worry I’ll come in your room if you don’t let me in your room, let me just give you a hug, just let me give you a touch”.

[13] Given the distance from the backyard deck to the home’s second floor, it is unlikely E.P. would have been able to hear the details of any conversation between Mr. Telizyn and A.P. upstairs on the second floor. A.P. could not recall the specifics of any conversation with Mr. Telizyn that day.

[14] In any event, whether E.P. genuinely heard these comments or not, she called to A.P. to come downstairs, fearing what Mr. Telizyn might do. E.P. then took A.P. and the family dog and left the home to a neighbour’s house where she telephoned her parents for help.

EVIDENCE OF A.P.

[15] A.P. suffers from Mild Intellectual Disorder (MID). Her mother, C.C., explained that this disorder poses challenges for A.P. in articulating times, negatively impacts her memory, and requires that she receive more adult assistance than other children her age. She is only left alone for short periods of time and E.P. often assists with her care. A.P. was 13 at the time of the alleged incident and 15 at the time that she testified in court.

[16] A.P. provided a statement to police which was adduced at trial in accordance with section 715.1. She also testified in chief and was cross-examined. It was readily apparent that, though she tried to repond to her questioners clearly and consistently, A.P. struggled to accurately and fully recall the events of May 23, 2019.

[17] A.P. described being downstairs in the family’s living room when Mr. Telizyn “kind of touched my leg and it kind of made me nervous.” In response to police asking the leading question, “who has ever touched your private parts?”, A.P. answered, “Um, probably – I mean not probably. Um, no one besides Ed almost was going to.”

[18] Later in her interview she recalled that Mr. Telizyn “was going to touch my leg” when her sister called and so she ran downstairs from the second floor where her bedroom was. However, A.P.’s location shifted again further in the interview whe she described, “sitting downstairs on the couch watching TV and, um, Ed touched my leg.”

[19] During examination-in-chief, when asked where the touching occurred, A.P. initially stated, “downstairs in my living room” and reiterated that location several times, though at other points in her evidence she referenced touching in her bedroom.

[20] When asked directly for clarification as to which room the touching had happened in, she answered, “I can’t remember exactly which room it was.”

[21] A.P. said this touching occurred while her mother had gone to brush her teeth though at other times she recalled a touch in her bedroom which happened while her mother was out of the house picking up band-aids from the drugstore.

[22] When asked what part of her leg was touched she pointed between her shin and her calf and said she “just thought he was being, like nice ‘cause he just, like, went like this” as she indictaed a patting motion on her knee.

[23] During her examination-in-chief, A.P. was asked to again demonstrate where Mr. Telizyn had touched her, this time pointing just under her knee.

[24] A.P. also recounted how Mr. Telizyn had said something to E.P. about, “goes in your mouth” but that E.P. “didn’t really think anything of it”. A.P. was in her room when this conversation between E.P. and Mr. Telizyn happened.

[25] If A.P. was in fact upstairs in her room when Mr. Telizyn, on the main floor, made his comments to E.P. who was outside on the deck, the only way A.P. could reasonably have learned of this conversation is by being told of it.

[26] The language of the conversation described by A.P. is strikingly similar to the language E.P. herself used to desribe Mr. Telizyn’s comments and her own reaction to them. It is apparent to me that E.P and A.P. discussed the events of that day with each other in some detail.

[27] While I attribute no impropriety to the sisters having had such discussions shortly after the incident, I must remain cognizant of the risk that these discussions impacted A.P.’s limited, and at times inconsistent, recollection of the events both at her initial statement to police made some five days after the incident, and at the trial nearly two years later.

[28] It is clear that A.P. was struggling to recall what precisely had happened between her and Mr. Telizyn. A.P. shifted between recalling a touch on her knee, below her knee, or around her calf. She recalled the touch having happened in her bedroom at some points in her evidence, but at other points insisted it had been in the downstairs living room. She remembered the touch occuring while her mother was away at the drugstore but at other times she recalled it being while her mother was home brushing her teeth.

[29] Though it is possible A.P. is conflating two separate incidents, Mr. Telizyn’s charges relate solely to what is alleged to have occurred on May 23, 2019. While any single inconcistency might not be fatal, the numerous confusing shifts in A.P.’s recollection create serious concerns with the reliability of her evidence.

EVIDENCE OF C.C.

[30] C.C. described Mr. Telizyn’s relationship with E.P. as distant and consisting of very brief encounters. C.C. had been dating Mr. Telizyn for a few months and he had only moved in about two weeks before the incident.

[31] Due to her disability and personality, C.C. described A.P. as generally more trusting of people and noted that she had “a little bit of a better relationship with Edward”.

[32] May 23, 2019 started as a regular day at the mall with Mr. Telizyn and E.P. They shopped for a new cell phone for E.P. while C.C. observed Mr. Telizyn to be acting increasingly controlling and aggressive.

[33] C.C. recalled Mr. Telizyn making several trips to the washroom at the mall before they departed and observed his demeanour to change after those visits. She believed he may have consumed drugs or alcohol.

[34] When they left the mall to pick up A.P. from her father’s house, C.C. found Mr. Telizyn to be behaving in a confrontational and aggressive manner and she began to become concerned that “it was a safety issue”. He was driving at excessive speeds and in a way she thought was endangering herself and the children.

[35] When she arrived home with Mr. Telizyn and the girls, C.C. had to leave briefly to pick up some items at a nearby drugstore.

[36] C.C. was cross-examined extensively as to whether she placed Mr. Telizyn ‘in charge’ of the children when she left to go to the drugstore. Despite Mr. Telizyn’s increasingly disturbing behaviour at the mall and during the drive home, C.C’s evidence during her examination in-chief was that, “Ed said he, you know, he was fine, he would watch the kids.”

[37] C.C. expanded on this expressing that she hoped Mr. Telizyn “could be a parent, and if something went wrong he could deal with any situation if the kids needed anything.” Although Mr. Telizyn was at home with the girls on May 23, 2019, E.P. was frequently left home alone herself on other occasions and was routinely placed in charge of caring for A.P. when C.C. was not at the house.

[38] In cross-examination C.C. indicated that, even before the May 23 incident, she had decided that she would be breaking off her relationship with Mr. Telizyn and intended to ask him to leave the home the very next day. Their relationship had become toxic and C.C. had grown fearful for the safety of herself and her daughters.

[39] Against this backdrop, C.C. clarified in cross-examination that she did not explicitly ask Mr. Telizyn to watch the children while she left the home nor did he communicate any such intention to her: “I told Edward I was going to Shoppers Drug Mart and that he would be home with the kids. That’s all I said to him when I was going through he door, and then I would be back shortly.”

[40] In reviewing C.C.’s evidence carefully, it is clear to me that she never instructed Mr. Telizyn to care for the children or be in any position of authority over them. Rather, she merely trusted that he would not himself pose any threat of harm to the girls who were fine to be left alone in the company of E.P. as was routinely done in the family. C.C. may have made the assumption that, as an adult, Mr. Telizyn was ‘in charge’, but she did not communicate that to him or the girls, nor did Mr. Telizyn or the girls express such a view back to C.C.

[41] Shortly after departing to the drug store, C.C. received a “frantic” call from a friend of E.P.’s urging her to return home. When she arrived at the house, she found E.P. and A.P. on the front stoop of a neighbour. The girls appeared distressed and relayed to her the events of the alleged incident.

[42] Early the next morning C.C. received a barrage of text messages from Mr. Telizyn. Around 2:00am she directed him not to contact her further and not to return to the house, warning that police would be contacted. Though Mr. Telizyn texted “sure”, he sent several additional texts throughout the day culminating in this text at 4:57pm:

Huge misunderstanding.

I was drunk.

I thought it was you.

Please we mean much more than this.

I love you.

I mean no harm or sadness. [heart emoji]

[43] C.C. believed the text message was an apologetic explanation for what Mr. Telizyn had said and done to E.P. and A.P. though in cross-examination it was suggested to her that she had misunderstood the meaning of the text

[44] In re-examination C.C. described a call Mr. Telizyn had made to her work where he mistook another employee for her and communicated some inappropriate words to a colleague. She believed this call had taken place on “the next business day” after the incident.

[45] May 23, 2019 was a Thursday and the text message was sent Friday afternoon. Though C.C. described her normal work schedule as Monday to Friday with some Saturdays from either 10am to 7pm or 9am to 5pm, she later amended her evidence, suggesting that the office was closed on Fridays and that the embarrassing call to her colleague would have taken place on the Monday following the incident, well after the incriminating text message.

THE LAW

Sexual Exploitation of E.P.

[46] The offence of sexual exploitation in section 153 of the Criminal Code criminalizes sexual activity, including sexual invitations, with persons aged 16 or more but younger than 18, where the perpetrator of such activity is in either a position of trust or authority towards the young person, is a person with whom the young person is in a relationship of dependency, or who is in a relationship that is exploitative of the young person.

[47] Both parties agree that Mr. Telizyn’s relationship with E.P. was not one of dependency nor was it inherently exploitative. The focus of the inquiry here is on whether this relationship put Mr. Telizyn into a position of trust or authority over E.P. such that his alleged actions in relation to her should be criminalized.

[48] The seminal case on this point remains the Supreme Court of Canada’s commentary in R. v. Audet, 1996 CanLII 198 (SCC), [1996] 2 SCR 171 where LaForest J. noted that an adult occupies a position of trust towards a young person where the nature of their relationship “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 young person is particularly vulnerable to the sway of these factors.” (at para. 33)

[49] In conducting the section 153 analysis it is important to remain cognizant of the underlying purpose behind criminalizing such conduct. The law prohibiting sexual exploitation is designed to protect a young person who might be particularly vulnerable to the sexual machinations of an adult because of the power imbalance in their relationship

[50] In determining whether an accused is in a relationship of trust with a young person, I am to take a holistic approach considering the nature and circumstances of the relationship including:

• the age of the young person;
• the age difference between the young person and the accused;
• the evolution of the relationship;
• the status of the accused in relation to the young person such as where the accused occupies a position of inherent trust like a teacher, babysitter, counsellor, or spiritual advisor;
• the degree of control, influence or persuasiveness the accused has over the young person;
• The expectations of the parties affected including the accused, the young person, and the young person’s parents;
• The vulnerability of the young person taking into account their level of intelligence, sophistication, independence, maturity, and relationship with their parents; and
• Any grooming, pressuring, or incentivizing behaviour on the part of the accused such as denigration of the young person’s parents, engaging in sexualized discussions, or offering / withholding of benefits.

(see R. v. Aird, 2013 ONCA 447 and R. v. R.T., 2017 ONSC 2625, [2017] O.J. No. 2206 ONSC at para. 36).

[51] A person who is regarded by the parent of the child and / or by the child themselves, to be a responsible person relied upon to do the right thing vis-a-vis the child is generally considered to be someone who is legally in a position of trust (see R. v. EJB, [2017] A.J. No. 628 ACA at para. 13).

[52] However, a relationship between a 17-year-old and the common-law spouse of her mother residing in the family home is not presumptively a relationship of trust for the purposes of section 153 [see R. v. R.T. at para. 28 citing R. v. R.H.J., [1993] B.C.J. No. 2438 (B.C.C.A.)].

[53] In applying the above factors to the particulars of this case I note the following:

• E.P. was 17 years old at the time of the allegation while Mr. Telizyn was decades older than her. However, age differential alone is insufficient to create a trust relationship in the absence of other criteria that establish an inherent power imbalance in the relationship which would have placed E.P. in a position of vulnerability and weakness.
• Their relationship had never really evolved in any meaningful way. E.P. had only even met Mr. Telizyn one or two times before he moved into the home. His presence in the home had only begun two weeks earlier. The two shared no meaningful relationship of any kind.
• Mr. Telizyn held no status in relation to E.P. beyond being her mother’s new boyfriend. He did not present as a father figure nor did he ever discipline or reward E.P. or make any decisions impacting her life. E.P. tolerated his presence seemingly out of respect for her mother but disliked Mr. Telizyn and minimized her very limited interactions with him.
• Mr. Telizyn exerted no control or influence over E.P. She was treated by her mother as a mature young adult who frequently was given responsibility for the care of her special-needs sister. She maintained a strong positive relationship with her mother and her father who resided outside of the home.
• The only expectations of Mr. Telizyn by both E.P. and C.C. were that he would provide an adult presence in the event of an emergency while C.C. briefly left the home. Mr. Telizyn was never charged with the care or supervision of either of the children nor was he granted any parental authority by C.C. or perceived as having such parental authority by E.P.
• There was no history of grooming or sexualized conduct beyond the comments alleged on the single instance that forms the basis of the charge.

[54] In summary, though the allegations of Mr. Telizyn’s perverse sexually suggestive comments to E.P. are disturbing, they arise in the context of a relationship which does not meet any of the criteria mandated by section 153. There being no established position of trust, authority, dependency or exploitation, I find Mr. Telizyn not guilty of this offence.

Sexual Assault / Sexual Interference of A.P.

[55] The charges of sexual assault and sexual interference are dependent largely on the evidence of A.P.

[56] A.P. herself was unable to provide a cohesive and coherent account of any sexual encounter between herself and Mr. Telizyn. C.C. testified that A.P.’s intellectual disability affects her memory and has been becoming progressively more severe, with her ability to recall things worsening by the time of the trial, nearly two years after the alleged incident.

[57] Though I find nothing to undermine A.P.’s credibility in her attempts to give as fulsome and accurate an account of the events as possible, the reliability of her evidence is very problematic.

[58] A.P. was inconsistent on many key facts which would be necessary to establish a sexual assault or sexual interference. At various times she recalled being touched at her calf near her ankle, physically pointing out this location on her initial police statement, but at other times she recalled the touch being on her knee, below her knee, at the side of her knee or by her thigh.

[59] At times A.P. shifted between saying that Mr. Telizyn actually touched her while other times she suggested that he merely tried to touch her. She could recall no conversation nor provide any details surrounding the touch or attempted touch. Despite leading questions during her police interview, adduced through section 715.1 as part of her trial evidence, she did not describe anything inherently or suggestively sexual about her hazy encounter with Mr. Telizyn.

[60] Though the incident was alleged to have occurred only once on the specified date, A.P. frequently became confused as to whether she was upstairs in her room when it occurred or downstairs on the living room couch. Similarly, she alternated between saying that the incident took place while her mother was upstairs brushing her teeth or when her mother had left the house briefly to run to the drugstore.

[61] I am sympathetic to the challenges facing any young person in having to testify in criminal court many months after having gone through the ordeal of making a police statement. These challenges are only exacerbated for someone with A.P.’s special needs. Courts must be cautious in holding the evidence of such witnesses to an impossibly exacting standard of perfection. But these considerations do not alter the Crown’s burden to prove its case against the high standard of proof beyond a reasonable doubt through cogent and reliable evidence.

[62] I have considered whether A.P.’s evidence could be bolstered by either the evidence of her sister or the existence of Mr. Telizyn’s after-the-fact text message.

[63] Though E.P. testified that she heard Mr. Telizyn asking her sister for a “hug” or a “touch”, A.P. herself did not describe any such comments.

[64] Moreover, as I have noted previously, the layout of the home and the relative positions of Mr. Telizyn upstairs in A.P.’s room and E.P. situated downstairs or possibly even outside on a lower deck, leave me unable to accept that E.P. would have been able to have heard these words.

[65] The text message, though suggestive of some form of misconduct by Mr. Telizyn, is insufficient to overcome the Crown’s burden of proof beyond a reasonable doubt. In order to convict, circumstantial evidence of guilt must be the only reasonable inference available from the evidence. Where there is any other reasonable non-speculative inference inconsistent with guilt, I must acquit (R. v. Villaroman, 2016 SCC 33).

[66] C.C.’s evidence that Mr. Telizyn mistook a work colleague for her on a telephone call the day after the alleged incident creates a reasonable possibility that the “misunderstanding” he referenced was in fact this call.

[67] The text’s line, “I thought it was you”, could reasonably be an admission by Mr. Telizyn to mistaking one of the children for C.C. in a sexual advance. However, it could also reasonably be a reference to mistaking a work colleague for C.C. and relaying embarrassing sexualized comments to that colleague over the telephone the day after the alleged incident.

[68] C.C.’s initial evidence was that she would have been at work the day of the text message, though she became less certain of this as cross-examination continued, ultimately testifying that the mistaken call to a work colleague took place the following Monday. The evolution of C.C.’s evidence on this point developed as the importance of the connection between her work schedule and the troublesome call became clearer to her. This raises unresolved credibility and reliability concerns on this issue which leave me in reasonable doubt as to the meaning of the text message.

[69] Having carefully considered the evidence as a whole, I am left in reasonable doubt as to whether Mr. Telizyn ever touched A.P. and, even if such a touch occurred, whether it was a violation of A.P.’s sexual integrity or done for a sexual purpose. I thus find him not guilty of sexual assault and sexual interference.

Released: May 31, 2021

Signed: Justice E. Prutschi