WARNING

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

An order restricting publication in this proceeding under ss. 486.4(1), (2), (2.1), (2.2), (3) or (4) or 486.6(1) or (2) of the Criminal Code shall continue. These sections of the Criminal Code provide:

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judge or justice may make an order directing that any information that could identify the victim or a witness shall not be published in any document or broadcast or transmitted in any way, in proceedings in respect of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

(iii) REPEALED: S.C. 2014, c. 25, s. 22(2), effective December 6, 2014 (Act, s. 49).

(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) 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.

(2.1) Subject to subsection (2.2), in proceedings in respect of an offence other than an offence referred to in subsection (1), if the victim is under the age of 18 years, the presiding judge or justice may make an order directing that any information that could identify the victim shall not be published in any document or broadcast or transmitted in any way.

(2.2) In proceedings in respect of an offence other than an offence referred to in subsection (1), if the victim is under the age of 18 years, the presiding judge or justice shall

(a) as soon as feasible, inform the victim of their right to make an application for the order; and

(b) on application of the victim or the prosecutor, make the order.

(3) In proceedings in respect of an offence under section 163.1, a judge or justice shall make an order directing that any information that could identify a witness who is under the age of eighteen years, or any person who is the subject of a representation, written material or a recording that constitutes child pornography within the meaning of that section, shall not be published in any document or broadcast or transmitted in any way.

(4) An order made under this section does not apply in respect of the disclosure of information in the course of the administration of justice when it is not the purpose of the disclosure to make the information known in the community. 2005, c. 32, s. 15; 2005, c. 43, s. 8(3)(b); 2010, c. 3, s. 5; 2012, c. 1, s. 29; 2014, c. 25, ss. 22, 48; 2015, c. 13, s. 18.

486.6(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.

(2) For greater certainty, an order referred to in subsection (1) applies to prohibit, in relation to proceedings taken against any person who fails to comply with the order, the publication in any document or the broadcasting or transmission in any way of information that could identify a victim, witness or justice system participant whose identity is protected by the order. 2005, c. 32, s. 15.

ONTARIO COURT OF JUSTICE

CITATION: R. v. Prevost, 2023 ONCJ 312

DATE: July 7, 2023

Information No.: 3912-998-21-A247

BETWEEN:

HIS MAJESTY THE KING

— AND —

FRANK PREVOST

Before Justice Diane M. Lahaie

Heard on March 6, 7, 8, 9 and 10, 2023 and June 12, 2023

Reasons released on July 7, 2023

Mr. John Ramsay............................................................................... Counsel for the Crown

Mr. Mark Ertel.................................................................................. Counsel for the accused

LAHAIE, J.:

[1] Frank Prevost faces one count of sexual assault contrary to section 271 of the Criminal Code. It is alleged the accused sexually assaulted G.H. on multiple occasions between the 1st of January 2018 and the 31st of January 2021.

[2] It is helpful to set out section 273.1 of the Criminal Code at the outset of these Reasons. This provision supplements the definition of consent in section 265 which defines assault for all assault offences. The definition in this section applies only to assaults of a sexual nature.

[3] The provision reads as follows:

273.1(1) Subject to subsection (2) and subsection 265(3), “consent” means, for the purposes of sections 271, 272 and 273, the voluntary agreement of the complainant to engage in the sexual activity in question.

(2) For the purpose of subsection (1), no consent is obtained if

c) the accused induces the complainant to engage in the activity by abusing a position of trust, power or authority.

[4] Inducing consent by abusing the relationships set out in subsection (2)(c) does not imply the same degree of coercion contemplated by section 265(3)(d), which speaks to consent obtained where the complainant submits or does not resist.

[5] In the present case, the Court heard the evidence of the complainant. The accused did not testify.

[6] The accused enjoys the presumption of innocence, which is only defeated where the Crown proves the elements of this offence beyond a reasonable doubt.

[7] In assessing the evidence, the Court must examine both the credibility of the witness who testified at this trial and the reliability of his evidence. In a criminal trial, the Court may accept some, all or none of the evidence of any witness.

[8] As Chief Justice McLachlin explained in R. v. R.E.M., 2008 SCC 51, [2008] 3 S.C.R. 3 at paragraphs 48-49:

“Assessing credibility is not a science … [I]t may be difficult for a trial judge to articulate with precision the complex intermingling of impressions that emerge after watching and listening to witnesses and attempting to reconcile various versions of events … While it is useful for a judge to attempt to articulate the reasons for believing a witness and disbelieving another, in general or on a particular point, the fact remains that the exercise may not be purely intellectual and may involve factors that are difficult to verbalize … In short, assessing credibility is a difficult and delicate matter that does not always lend itself to precise and complete verbalization (See also R. v. S. (R.D.), 1997 CanLII 324 (SCC), [1997] 3 S.C.R. 484, at para. 128 and R. v. Lifchus, 1997 CanLII 319 (SCC), [1997] 3 S.C.R. 320 at paragraph 29).

[9] In making findings of fact, I must apply the standard of proof beyond a reasonable doubt. A fact will not be found against the accused unless I am satisfied beyond a reasonable doubt of its existence.

[10] Upon reviewing the totality of the evidence, I find the facts to be as follows:

The Facts

[11] At the relevant time, G.H. worked in the Parks and Recreation department for the Township of South Glengarry. In the summer, he worked at the parks and maintained various municipal buildings. In the winter, his duties centered primarily around the arena.

[12] G.H. experienced harassment at work. Desperate to find a solution for this problem, he repeatedly reported the details to his supervisor. The complainant felt that nothing was being done about his concerns. When his supervisor spoke to the parties who were harassing him, the problem seemed in his view to only get worse.

[13] One day while he was at the arena, he spoke with Ms. Jaworski, a councillor for the Township of South Glengarry, about the challenges he was experiencing at work. Ms. Jaworski recommended that he speak with the accused who was the mayor at the time.

[14] At some point within the charging period set out in the Information, there was communication between the accused and the complainant to attempt to set up a meeting about the complainant’s concerns at work. During this communication, the accused advised the complainant that he was aware of his issues and wanted to meet with G.H. to discuss the situation.

[15] The accused set up a meeting with G.H. at Smithfield Park on McDonald Street in Lancaster in the early evening. The complainant attended the park, and the accused waved him over to his vehicle, so the complainant went to sit in the front passenger seat. The accused asked G.H. what was going on, telling him he was aware of the complaint but wanted to hear it from him. When G.H. began speaking, the accused placed his hand on the complainant’s left thigh and said he was good looking. The accused then undid the zipper on the complainant’s pants and performed fellatio on him. The complainant froze. The encounter was brief but devastating to G.H.

[16] After the complainant ejaculated, the accused told the complainant that he really wanted to hear more about his issue as he thought he could help, but that he had to go. According to G.H., the accused gave him a card with his username, “Likessucking” for the website Squirt.Org, telling the complainant it would be easier to talk on this site, and then the accused drove away.

[17] G.H. was shocked by what had transpired. He drove down to the wharf in South Lancaster as he felt he could not just drive home to his wife after what he had just experienced. He ultimately drove home and did not tell his wife about the encounter.

[18] A short time later, the accused reached out to the complainant again to set up another meeting, expressing to G.H. that he really wanted to help him out. The meeting was to take place at Cooper Marsh on a Tuesday before a Council meeting and the accused led the complainant to believe he would be attending their meeting with another councillor for the Township. When he arrived at Cooper Marsh, the complainant realized the councillor was not there. The accused was waiting for the complainant in his vehicle. Mr. Prevost suggested they walk up a path. As they walked, Mr. Prevost spoke about firing Ewen McDonald, a man who occupied a managerial position with the Township.

[19] When they got to the observatory area, out of sight of the parking lot, the accused reached out and grabbed G.H.’s crotch area, unzipped his pants and performed fellatio on him until the complainant ejaculated. Again, the complainant froze and said nothing. Mr. Prevost told the complainant that he really wanted to help him out with this problem he was having at work, but he had to go.

[20] The complainant created an account on Squirt.Org where he communicated with the accused. Squirt.Org is a gay men’s social media dating App. which allows participants to see where other participants are located. The complainant felt that the accused was often in close proximity to his house and that he was stalking him. G.H. would close his blinds and stay inside when he knew Mr. Prevost was nearby.

[21] The complainant’s wife worked at a convenience store in Quebec. At one point, the accused sent the complainant a photograph of himself standing at the convenience store with a message asking if G.H. knew where he was. The message was sent to frighten and intimidate the complainant and it had the desired effect.

[22] One day, the complainant was working at Glen Walter Park when he received a message from the accused asking him where he was working and whether he could go to the accused’s house.

[23] When the complainant answered he had a township vehicle and a student working with him, the accused showed up at the park. G.H. was having significant mental health problems by this time. He was shocked to see the accused and was concerned because the student was working nearby. The accused guided the complainant to a wall in a work shed and performed fellatio on him again.

[24] At one point, the Chief Administrative Officer with the Township was fired, and the accused became the acting CAO. He was also the warden.

[25] After the third incident, the accused texted G.H. daily and he was often near his home, although as the mayor, the warden and the CAO, Mr. Prevost was at the Council Chamber every day working near the complainant’s residence. However, the accused would often drive by the complainant’s home, which was not a direct route to his own residence.

[26] On another occasion, the accused messaged the complainant to tell him about an arrangement he had with his brother which involved renovating a home which the accused would then sell. The complainant met the accused at that house, where Mr. Prevost told him he had good news for him. The accused advised G.H. that he was going to hire Tim Mills to be the new CAO and that Mr. Mills would “clean up” his issues. The complainant expressed that he was very relieved that his issues at work would finally be addressed. Mr. Prevost then performed fellatio on him.

[27] On another occasion, the accused attended the Martintown Community Centre while G.H. was working on maintenance. There, the accused pushed the complainant up against a wall and performed fellatio on him. G.H. was worried as this is a busy building for rentals and anyone could have walked in at any time. The complainant felt sick that time and asked the accused when something was going to be done about his situation. The accused told G.H. that something was in the works.

[28] Sometime between October and December 2019, the accused showed up at the arena in Williamstown twice, when the complainant was on modified shifts.

[29] On one occasion, the accused spoke with a student, M.C., who was working with the complainant and G.H. got a sick feeling regarding the accused’s intentions towards the student. He led the accused away from M.C. The accused said there would be money spent on repairs at the arena, and he asked for a tour of the facility to see how badly they were needed. As they walked, the accused asked the complainant if he thought he could get M.C. to join in on their sexual activities and the complainant told him there was no way that was going to happen. When they reached the Zamboni bay area, the accused undid the complainant’s pants and performed fellatio on him. The complainant felt powerless and wanted to cry. He thought about striking the accused, but he was afraid he would lose his job. Mr. Prevost spoke about the new CAO and how he had high expectations.

[30] The accused and the complainant were communicating daily by this time.

[31] Within a month or so of the previous incident, the accused attended the same arena. On this occasion, the complainant was cleaning a dressing room. The accused was speaking with another student, E.L. The complainant got the same sick feeling. He wanted to tell the accused that he had to stop coming to his workplace, but he was worried given the power the accused held over him. The accused asked the complainant if he was attending the Township Christmas party.

[32] The complainant went to the garage portion of the arena with the accused. As they walked under the bleachers, the accused undid the complainant’s fly and performed fellatio on him again.

[33] The complainant did not tell the accused to stop what he was doing. Throughout these encounters, G.H. was afraid that if he told the accused to stop, he would lose his job and his wife and he was afraid of what people in their small community would think of him if the story became public.

[34] In 2020, G.H. was suicidal. The new CAO hired an investigator to inquire into workplace harassment and the complainant hired a lawyer to file a Human Rights complaint, as there had been no discipline of the other employees, only consequences to him. He got up the courage to discuss what the accused was doing to him via text message with the accused. Text messages retrieved from the complainant’s phone and the accused’s phone were filed in evidence.

[35] In one of these exchanges, G.H. told the accused he would not be used by him anymore.

[36] I note that some of the messages retrieved from the two phones overlapped but there were additional messages on both phones, not captured on the other’s cellphone and therefore, messages missing on both phones. The complainant testified the accused had two phones. In addition, the conversations between them on Squirt.Org were not available at trial.

[37] Sometime after the text message on November 24, 2020, after the complainant told the accused he was not interested in having any further sexual contact him, G.H. went to the accused’s residence on Race Street. The accused had asked to see messages exchanged between the complainant and the new CAO about Health and Safety meetings or union meetings. The complainant went to the accused’s residence where the accused performed fellatio on him again.

[38] In 2021, the complainant spoke with police about the sexual assaults which led to the charge before the Court.

Issues, Analysis of the Evidence, Findings and Conclusions

[39] The complainant was cross-examined over the course of four days. He was very upset and at times angry, which in the circumstances, appeared reasonable. There were inconsistencies in his evidence, some of which I will review, but he was unshaken on the core evidence surrounding these allegations. Although I find that he was not truthful on the issue of his participation on Squirt.Org, I believed his evidence regarding the incidents of sexual assault involving Mr. Prevost.

[40] Although G.H. had a difficult time recalling dates, I find that each of the incidents described occurred within the charging period set out in this Information. I accept his evidence that he has trouble remembering dates. I find the sexual encounters took place after the email from Ms. Jaworski asking the complainant if he had spoken with Frank. On my review of the entirety of the record before me, I am satisfied the abuse at the hands of the accused began in 2019.

[41] There were several problems with the complainant’s evidence, some of which I will review. However, upon reviewing the totality of the evidence, I conclude that the complainant’s testimony regarding the incidents of sexual violence was reliable.

[42] Dealing firstly with the text message exchanges filed as Exhibits 1 and 2, I noted the difference between the exchanges extracted from the complainant’s phone and those extracted from the accused’s phone. The exchange in Exhibit 2 reflected text message communications between the accused and G.H. from December 9, 2020 to January 24, 2021. There was a marked difference between the messages in both exhibits, in that the complainant appears far more involved in the communications and open to meeting with the accused. At one point, the complainant indicated that he would go check as he had not been on there for a while. I find that this was a reference to communications on Squirt.Org. Having compared Exhibit 1 and Exhibit 2, I accept that the additional messages on the accused’s phone painted a different picture of the status of the relationship between the accused and the complainant than was left during the complainant’s earlier evidence.

[43] In cross-examination, the complainant’s evidence was both internally and externally inconsistent on the issue of his last encounter with the accused. At one point, he testified that it was in the winter/early Spring of 2019, two full years before he reported this abuse to police. The complainant reported these allegations to police in January 2021. He provided a statement to police on March 4, 2021. In the statement, G.H. said the last encounter was “a couple of months ago”. When confronted with this inconsistency, the complainant explained that he mixed up dates and that, due to his mental space at the time and the medication he was taking, his evidence regarding dates and years was probably inaccurate. He also explained that he included communications when he spoke to police about “encounters”.

[44] According to G.H.’s evidence in cross-examination, he was not able to access the arena after May 6, 2020. Since the last sexual encounter happened there, he believed it was in 2019. However, this is difficult to reconcile with his statement to police that the last encounter was a couple of months prior. When confronted with this discrepancy, the complainant acknowledged that it was an error on his part and that the last sexual encounter was not a couple of months before his statement but a couple of years before his statement.

[45] I am left with a doubt on the issue of the complainant’s willingness to engage in sexual activities with the accused in late 2020 and early 2021. Having reviewed the totality of the evidence, I find that the complainant minimized his evidence on this issue and that there were significant inconsistencies in his evidence, as highlighted by defence counsel. As the courts have reminded us on numerous occasions now, not all victims react the same way following sexual violence. I considered these important inconsistencies in my overall assessment of G.H.’s testimony.

[46] One thing that emerges from a review of the text messages is that the accused continued to press the complainant to engage in sexual encounters, holding out an interest in his work-related problems and his unique position to help G.H. with those problems as an incentive. I find that on occasion, the complainant was distant with the accused and that he would not attend their scheduled “meetings” where sex was clearly the purpose and that to encourage the complainant, the accused would reference the complainant’s work issues, feigning an interest in helping him out with those problems.

[47] Defence counsel argues that the complainant’s evidence was incapable of belief given the many inconsistencies in his evidence, the complainant’s run on and unresponsive answers to his questions and his clear motive to fabricate, which included getting the accused fired and revenge for the accused not firing others.

[48] With respect, defence counsel’s arguments are rejected. Dealing with the motive to fabricate, it is important to note that there is no onus on the defence to “prove” anything and the onus of proof never shifts to the defence.

[49] In R. v. J.H., 2020 ONCA 165, the Ontario Court of Appeal reviewed the issue of motive to fabricate, setting out the governing principles at paragraphs 143 to 149.

[50] At paragraphs 145-146, the Court of Appeal wrote:

[145] Motive may also be significant in connection with witnesses in criminal trials. The motive of a witness to testify more or less truthfully may be a relevant factor for a trier of fact to consider in assessing their credibility and the reliability of their testimony. Thus, questions may be directed to a witness to show that the witness has a motive to fabricate evidence: R. v. Batte (2000), 2000 CanLII 5751 (ON CA), 49 O.R. (3d) 321 (C.A.), at para. 120.

[146] The distinction between absence of proven motive and proven absence of motive has equal application to the motives of a witness to fabricate evidence. By parity of reasoning with the motive of an accused to commit an offence, the absence of a demonstrated motive to fabricate on the part of a witness does not necessarily mean that there is no such motive. Nor does the absence of a motive to fabricate conclusively establish that the witness is speaking truthfully. The presence or absence of a motive to fabricate is a factor, a single factor, for the trier of fact to consider in assessing credibility: Batte, at para. 121.

[51] Even where a complainant has no apparent motive to fabricate, this does not mean the complainant has no motive to fabricate (R. v. L.(L.), 2009 ONCA 413; R. v. Bartholomew, 2019 ONCA 377; R. v. M.(O.), 2014 ONCA 503; R. v. John, 2017 ONCA 622).

[52] I have considered these points raised by defence counsel and highlighted during cross-examination. Following my review of the whole of the evidence, I accept the complainant’s testimony that his motivation in coming forward was not based in revenge or any of the issues suggested by defence counsel but that he did so to gain closure and to prevent others from being victimized by the accused. I find that the complainant had a deep concern for the students who worked for the Township having observed the accused’s demeanour when he spoke to them and having heard the accused express interest in having one of the students join in on their activities.

[53] I note that in his statements to police, the complainant did not reference removing the card the accused gave him to get onto Squirt.Org from his wallet at any point and how he was not forthcoming about his communications with the accused or anyone else on this social media platform. I conclude from my review of the totality of the evidence that the complainant was embarrassed about his active participation on this site when he spoke to police and that he held back that information in an attempt to keep that side of his life private. I find that he minimized his evidence on this point and that his evidence was inconsistent. As stated at the outset of these Reasons, the Court may accept some, all or none of the evidence of any witness. I find that the complainant tried to keep his sexual orientation from becoming the focus of this trial and in doing so, his evidence was inconsistent. That being said, I find that he was being forthright and honest in describing the accused’s actions and his response to the advances or lack thereof on each of the occasions described.

[54] Defence counsel argues that the complainant’s animus towards the accused was obvious. I agree and find that this was entirely reasonable in the circumstances. The record before me does not raise a reasonable doubt regarding the complainant’s description of the relevant events.

[55] Mr. Ertel argues that the complainant took every opportunity to smear the character of the accused and deliberately failed to answer various questions. He argues the complainant did not concede the obvious and that he intentionally misled the Court. I have considered these and all of counsel’s arguments in my assessment of the evidence. The complainant’s evidence was not without blemishes. However, he was unshaken on the core issues. His evidence is supported by some of the text messages. I find that he did not intentionally delete messages on his phone to remove evidence of his relationship with the accused. The extractions by police did not reveal some of the deleted messages, however, I accept that the complainant would not have known that when he turned over his phone to police.

[56] Defence counsel suggested the complainant interacted with the accused on Squirt.Org prior to their first sexual encounter. At one point, the complainant stated that if that happened, he would not have known at that time that it was the accused. This of course calls into question the accused’s evidence regarding his use of that social media platform and his evidence that he did not go on that site before the accused presented him with his card and his username. Again, I find that the complainant provided inconsistent evidence on this issue. It is clear from his evidence regarding Squirt.Org and Grindr that the complainant was actively engaged in communicating on those sites. This issue was placed on the evidentiary scale and at the end of the day, I believed G.H.’s evidence regarding the sexual occurrences which are the subject of these allegations.

[57] Many of the theories of the defence, such as the accused’s motives for example are speculative. I want to be clear that I am in no way suggesting that the accused was required to provide evidence on these points, or to testify. The accused is entitled to remain silent, including throughout his trial. Further, the burden of proof never shifts and remains with the Crown. However, the testimonial silence of the accused may lead to an absence of evidence in support of a particular scenario or theory. In turn, the absence of evidence may lead to the conclusion that the theory is speculative.

[58] This was explained in R. v. Caron, 2014 BCCA 111 and adopted by Justice Lacelle of the Ontario Superior Court of Justice in R. v. Wentworth, 2023 ONSC 1165 beginning at paragraph 889. At paras. 24-25 in Caron, the B.C. Court of Appeal writes:

The silence of an accused person is not completely irrelevant to a trier of fact. In R. v. Noble, 1997 CanLII 388 (SCC), [1997] 1 S.C.R. 874 (S.C.C.) at para. 78, Sopinka J. explained, "a trier of fact may refer to the silence of the accused simply as evidence of the absence of an explanation which it must consider in reaching a verdict." However, an accused's silence at trial cannot be placed on the evidentiary scale and used as a "make-weight" to eliminate any remaining doubt and to find that the Crown has proven its case: para. 90. This principle was reiterated more recently in R. v. Prokofiew, 2012 SCC 49 (S.C.C.) at para. 4.

As held in R. v. Sanchez, 2012 BCCA 469 (B.C. C.A.) at para. 49, a failure to testify in itself is not suggestive of guilt but a court "may consider the silence of the accused as failing to provide an innocent explanation for the existence of otherwise convincing inculpatory evidence." As well, in R. v. Scott, 2012 BCCA 99 (B.C. C.A.) at para. 96, Madam Justice Neilson commented:

...a fact-finder may not use an accused person's silence to strengthen a case that has not been proven by other evidence. Nevertheless, it is permissible to rely on the failure of an accused to testify in concluding there is no innocent explanation that would refute the evidence establishing guilt: R. v. Noble [citation omitted]. In short, silence may be used to confirm guilt,

[59] I wish for it to be clear that at no point in my reasoning has the accused’s silence amounted to evidentiary support of the Crown’s case. The absence of evidence is necessarily part of my assessment as I must determine whether the Crown has met its burden on the evidence before me. Upon reviewing the totality of the evidence and the arguments of counsel, I am convinced that the Crown has done so in this case.

[60] I am convinced beyond a reasonable doubt that the accused did not have the complainant’s consent when he performed fellatio on him during any of the incidents described by G.H.

[61] Further, I am persuaded beyond a reasonable doubt that the complainant never invited nor wished to have the accused perform fellatio on him while he was at work and that any perceived acceptance of the inevitable in those situations amounted to vitiated “consent” by operation of section 273.1 (c) of the Criminal Code.

[62] Upon reviewing the evidence before me, I find that the accused, on all occasions described, abused his position of power and authority over the complainant, who worked in maintenance for the Township. The accused repeatedly abused a vulnerable individual knowing that G.H. was in no position to object.

[63] The Crown has met its heavy burden in this case. I find the accused guilty of this offence.

Released: July 7, 2023

The Honourable Madam Justice Diane M. Lahaie