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judge or justice may make an order directing that any information that could identify the victim or a witness shall not be published in any document or broadcast or transmitted in any way, in proceedings in respect of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, 162.1, 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 any of subsections 486.4(1) to (3) or subsection 486.5(1) or (2) is guilty of an offence punishable on summary conviction.
ONTARIO COURT OF JUSTICE
DATE: 2024 10 29 COURT FILE No.: Halton Info # 998 23 12101191
BETWEEN:
HIS MAJESTY THE KING
— AND —
STEPHEN JONES
Before Justice Jennifer Campitelli Heard on September 16, 17, 26, 2024 Reasons for Judgment released on October 29, 2024
Counsel: Meghan Chant..................................................................................... counsel for the Crown James R.D. Clark............................................... counsel for the accused Stephen Jones
CAMPITELLI J.:
[1] Stephen Jones faces two counts on the information, which is before the court:
(1) On or about the 9th day of April in the year 2023 at the Town of Milton in the said region, did commit a sexual assault on A.D. contrary to section 271 of the Criminal Code of Canada; and further that
(2) On or about the 9th day of April in the year 2023 at the Town of Milton in the said region, being in a position of trust or authority towards A.D., a young person, did for a sexual purpose touch directly the body of A.D. a young person with a part of his body to wit; his mouth, contrary to section 153(1)(a) of the Criminal Code of Canada.
Factual Background
[2] The charges relate to an incident the complainant, A.D., alleges took place on April 9, 2023. At the time of the alleged incident, A.D. was 17 years old, and Mr. Jones was 60 years old. Mr. Jones had been in A.D.’s life for several years prior to the events of April 9, 2023. At the relevant time, he was coaching a competitive softball team A.D. was affiliated with, which was a role he also held at a previous point in their relationship. A.D. had a friendship with Mr. Jones’ daughter, frequently attended their family residence, and described Mr. Jones as a father figure to her.
[3] On April 8, 2023, A.D. attended a social event at Mr. Jones’ residence. Shortly after 1:30 a.m. on April 9, 2023 the complainant asked Mr. Jones to drive her home. The complainant alleges that while driving her home, Mr. Jones touched her breasts on top of her clothing, and then rubbed, squeezed and kissed them after lifting up her shirt and bralette. A.D. further alleges that Mr. Jones kissed her on her mouth. A.D. takes the position that none of this sexual contact was consensual. Simply put, when Mr. Jones engaged in the sexual behaviour she alleges, he did so without her consent.
[4] The defence challenges A.D.’s evidence arguing that she has a bias towards Mr. Jones, which has resulted in her fabricating these allegations. The defence takes the position that A.D. is not a credible witness, and her evidence is wholly unreliable.
The Evidence of A.D.
[5] A.D. provided her evidence in a straightforward and detailed manner. A.D. testified that she met Mr. Jones when she was twelve years old, and he coached her softball team. It was her evidence that Mr. Jones was not only a coach to her at points in her life, but he also became “like a Dad”. A.D. explained that she did not have a “great” relationship with her own father, and that Mr. Jones “was always there”. A.D. testified that Mr. Jones would drive her to practices, help her with school, do all the “fatherly things”. A.D. also recalled that she would ask Mr. Jones for advice and that she went to him for “a lot of support”. When she went to pick up her first car, A.D. remembered that she told them Mr. Jones was “my Dad”. While under cross-examination, A.D. testified that Mr. Jones’ opinion mattered a lot in her life. She remembered that if she did something wrong, Mr. Jones would “call me out”, and that he “acted like a Dad”. It was A.D.’s evidence that Mr. Jones would designate time for her to do her homework and would give her “life advice”. She candidly admitted that Mr. Jones would not discipline her; but, that he was “still like a parent”.
[6] A.D. remembered Mr. Jones driving her to softball practices, games, from friend’s houses, and to his own home so she could “hang out” with his daughter or study. It was A.D.’s evidence that these drives would happen “a lot”, and the pair would engage in conversation while in the car together. At first, it was A.D.’s evidence that she spoke to Mr. Jones about her family circumstances and confided in him. However, A.D. recalled that the conversations eventually became sexual in nature. A.D. testified that initially, Mr. Jones advised her that “boys take advantage of girls” and that she had to be cautious. “Farther down the road”, it was A.D.’s evidence that the conversations turned into “sex ed”, with Mr. Jones asking her what she had done with her boyfriend sexually, and even explaining what oral sex was and “how to do it”. A.D. remembered that Mr. Jones told her he had a dream of her “tying him up”, and that he would not be able to trust himself around her if the pair consumed alcohol.
[7] On April 8 2023, A.D. testified that she was spending time at Mr. Jones’ residence with his eldest daughter and two of her other teammates. She recalled that the group had bowled, Mr. Jones made them something to eat, and she also remembered drinking part of a “Twisted Tea”. Of note, there is no evidence before me that A.D. suffered any effects of impairment as a result of her consumption of alcohol that evening. A.D. testified that she did not “like sleepovers”, so she asked Mr. Jones to drive her home at approximately 1:00 a.m. on April 9, 2023.
[8] A.D. recalled that Mr. Jones said, “Can I grab a coffee”, and she said, “Sure”. Mr. Jones drove to a Tim Horton’s in Milton, and they went through the drive-thru. Following that, A.D. testified that while they were driving Mr. Jones asked her if her breasts were hurting as a result of medication she had recently taken. It was A.D.’s evidence that she responded that her breasts were not hurting, and she remembered trying to “push” that conversation away because she didn’t want to talk about it.
[9] With a view to what followed, there was some inconsistency with respect to this aspect of A.D.’s evidence. She testified that Mr. Jones “asked if he could feel my chest”, and that she did not give a response. This is largely consistent with what she told investigators, which was that “maybe” Mr. Jones asked if he could touch her breasts, but she “shut down”. However, later in her examination in chief, A.D. testified that Mr. Jones didn’t ask if he could touch her, he asked if “it was sore”. When pressed while under cross examination, A.D. acknowledged the discrepancy between her statement and aspects of her evidence at trial. At that point, A.D. disagreed with her statement and maintained that Mr. Jones did not ask her if he could touch her breasts. When approaching this area of A.D.’s evidence, I have reminded myself that sometimes an honest witness will be trying her best to tell the truth and will believe the truth of what she is relating, but nevertheless will be mistaken in her recollection: R. v. Nyznik, 2017 ONSC 4392, [2017] O.J. No. 4138 at para. 15. I believe this to be the case with respect to this aspect of A.D.’s evidence. I do not find that A.D. was intentionally providing dishonest evidence to the court. Significantly, on this record, A.D. was consistent in her recollection that regardless of whether Mr. Jones asked if he could touch her breasts, at no point did she provide him with an affirmative response.
[10] A.D. testified that Mr. Jones kept his left hand on the steering wheel, and reached over with his right hand and began touching her breasts. She described his facial expressions as “very weird”, recalling he was trying to act like he was concerned. It was A.D.’s evidence that Mr. Jones parked on a “dead end” road, with a bunch of buildings. She remembered wearing a green long sleeve shirt and a white bralette, and that Mr. Jones lifted up both her shirt and her bralette himself. At this point, A.D. testified that Mr. Jones was “squeezing and rubbing” her breasts and her nipples. She did not remember any conversation between the two of them; however, A.D. described Mr. Jones engaging in “kind of heavy breathing”. At this point in the interaction, A.D. testified that Mr. Jones reached over and put his whole upper body on hers. It was her evidence that Mr. Jones began to put his mouth on her breasts and on her nipples one at a time. A.D. recalled that she “shut down” and was in “shock mode”. She explained that when she becomes overwhelmed, she disassociates physically.
[11] A.D. remembered that Mr. Jones tried to kiss her with his tongue, that she tasted coffee, and that she didn’t like coffee. It was her evidence she told him that “afterwards”. A.D. testified that after Mr. Jones was done with kissing her chest, he kissed her lips, and then went back to her chest, which happened a couple of times. A.D. estimated that sequence repeated itself three times.
[12] It was A.D.’s evidence that the interaction ceased when Mr. Jones “shot back” in his seat. A.D. recalled Mr. Jones stopped touching her at this point and told her that he had an erection. She remembered Mr. Jones saying that it was uncomfortable “sitting with an erection”. A.D. testified that she pulled down her shirt; however, her bralette was “still up” when she arrived back home. At this point, Mr. Jones drove A.D. home. A.D. recalled that from “putting the car in drive” until the point where they reached her home, Mr. Jones kept talking about how he hoped what had transpired between them “didn’t ruin anything” or “change anything”.
[13] When the pair arrived at A.D.’s home, she testified that Mr. Jones said, “Good night. Love you. Kid.”, to which she replied, “Good night.” It was A.D.’s evidence that she immediately went to her room and had a “big breakdown”. Specifically, A.D. remembered fixing her bralette and wiping the saliva off of her breasts and nipples using her sleeve.
[14] A.D. was clear in her evidence that Mr. Jones initiated all of the sexual contact, which occurred between them. Moreover, she maintained, even when pressed while under cross examination, that none of the sexual contact was consensual.
The Text Messages and Voicemails: April 9, 2023 - April 13, 2023
[15] A collection of text messages and voicemail messages were tendered by the crown and marked as Exhibits #1 and #2 respectively. I do not intend to review them in their entirety; however, I want to make it very clear that I have examined them thoroughly. Other than a few messages sent by A.D. on April 12, 2023, the messages are all initiated by Mr. Jones. They are unprompted and continue in the face of silence on behalf of A.D. I have been very careful not to use these messages to make inferences with respect to Mr. Jones’ state of mind when he authored any of the messages produced for my consideration. That would be improper, as I do not have that evidence before me. Rather, I have assessed the messages on their face, and considered whether they are facially corroborative of the evidence provided by A.D. I find that they are.
[16] Mr. Jones repeatedly apologized saying, “I’m sorry”, “I fucked up”, which I find corroborates A.D.’s evidence before me. A.D. described a non-consensual sexual encounter between the pair, initiated by Mr. Jones. The incident she described happened in the early morning hours of April 9, 2023, the very same day Mr. Jones began sending the series of text messages produced. Additionally, on April 10, 2023 Mr. Jones states “I hope and pray my stupidity does not destroy one of the best relationships I have ever had”. I find that message is particularly corroborative of A.D.’s evidence with respect to Mr. Jones’ utterances as he was driving her home. She testified that Mr. Jones told her that he hoped what happened between them wouldn’t “ruin” or “change” anything.
[17] Finally, with a view to the breach of trust allegations and my assessment of whether a relationship of trust existed between Mr. Jones and A.D., I find Mr. Jones’ text on April 10, 2023 to be quite telling. He stated, “So so sorry. I’m thinking of leaving softball because your involvement greatly outweighs mine”. I have considered this message, keeping in mind Mr. Jones was one of the coaches of A.D.’s competitive softball team at the relevant time.
Letter Authored by Mr. Jones and Sent to A.D. April 12, 2023
[18] On April 12, 2023, Mr. Jones sent A.D. pictures of a letter he authored, which was marked as Exhibit #3. He asks to see A.D. so he can “apologize in person”. He also states, “I cannot express the regret I have not only for my actions, but the breaking of trust in our relationship”. Mr. Jones tells A.D., “I will miss your smell. I never told you this but for some reason you always smelled so nice”. He then expresses to A.D., “I will miss walking you down the aisle. I will miss this more than you will ever know”. Moreover, Mr. Jones states, “the trust you showed me I blew in 10 minutes”.
[19] Again, I find many of the words authored by Mr. Jones’ to be corroborative of A.D. evidence overall. Not only with respect to the duration and non-consensual nature of the sexual contact she claims took place between them, but his words are also consistent with A.D.’s characterization of the nature of their relationship. Mr. Jones speaks of the trust that existed between them; specifically, the trust A.D. showed him. He also makes reference to A.D.’s “smell”, revealing that he thought she “always smelled so nice”. A.D. testified that Mr. Jones did “fatherly things” for her, I found his reference to walking A.D. down the aisle to be corroborative of exactly that.
Text Messages: August 16, 2022 – April 9, 2023
[20] A collection of text messages exchanged between Mr. Jones and A.D. between August 22, 2022 and April 9, 2023 were produced by the defence and marked as Exhibit #4. The defence takes the position these text messages undermine A.D.’s credibility, and illustrate the balanced nature of the relationship, which existed between Mr. Jones and A.D. The defence highlights the way A.D. addresses Mr. Jones, “Baebae”, “Dude”, “Happy Birthday Bitch”, and the fact that she herself initiates many of the “drives” they engage in. In doing so, the defence strongly opposes any suggestion that imbalance existed in the relationship between Mr. Jones and A.D. I disagree. The text messages exchanged must be considered in context, and against the backdrop of the entire evidentiary record, which has been placed before me. I find the messages to be highly corroborative of A.D.’s evidence:
(1) There are numerous references to homework, including specific references to Mr. Jones helping A.D. with her homework;
(2) There are numerous references to the pair going for drives together;
(3) When A.D. tells Mr. Jones that she is “coming” in response to him advising her he was “here” to pick her up for a drive, Mr. Jones says, “Jays over again” and “didn’t know you were with Jay”. The sexual undertone is clear in both instances; and
(4) In reference to a competitive softball tryout on September 6, 2022, when A.D. says, “is it rly rly bad if I don’t go today?”, Mr. Jones replies, “hard to say how important tonight’s tryout is. I will be indicating that you are a dedicated ball player who is willing to do what it takes. Will let them know that you have conflicting tryouts which everyone will understand”. Mr. Jones clearly has involvement in A.D.’s softball journey.
Grounding Legal Principles:
[21] Mr. Jones is presumed innocent unless and until the crown has proven his guilt beyond a reasonable doubt. The presumption of innocence is a cornerstone of our criminal justice system, originally embedded in our common law tradition and now guaranteed as a fundamental legal right under our constitution: R. v. Nyznik 2017 ONSC 4392, [2017] O.J. No. 4138 at para. 4. The presumption of innocence and the standard or proof beyond a reasonable doubt, are important safeguards to ensure that no innocent person is convicted of an offence. Without these protections, there would be a serious risk of wrongful convictions, an outcome, which cannot be accepted in a free and democratic society: R. v. Nyznik at para. 5.
[22] The concept of proof beyond a reasonable doubt was articulated by the Supreme Court of Canada in R. v. Lifchus. A reasonable doubt is not an imaginary or frivolous doubt. It must not be based upon sympathy or prejudice. Rather, it is based on reason and common sense. It is logically derived from the evidence or absence of evidence. Even if I believe Mr. Jones is probably or likely guilty, that is not sufficient. In those circumstances, I must give the benefit of the doubt to Mr. Jones and find him not guilty, as the crown would have failed to prove his guilt beyond a reasonable doubt. It would not be safe to convict: R. v. Lifchus, [1997] 3 S.C.R. 320 at para. 39; R. v. Nyznik at para. 6.
[23] On the other hand, I have reminded myself that it is virtually impossible to prove anything with absolute certainty and the crown is not required to do so. Such a standard of proof is impossibly high. Essentially, before I can find Mr. Jones guilty, I must be sure that he has committed the offences charged: R. v. Lifchus at para. 39; R. v. Nyznik at para. 7.
[24] With respect to the offence of sexual assault, the actus reus consists of three essential elements, each which must be proven by the crown beyond a reasonable doubt. In this case, the crown must establish: (1) that Mr. Jones knowingly touched the complainant (2) that the touching was of a sexual nature; and (3) that the complainant did not consent to that sexual contact: R. v. Nyznik 2017 ONSC 4392, [2017] O.J. No. 4138 at para. 8 (SCJ).
[25] “Consent” is defined in s. 273.1(1) of the Criminal Code of Canada as “the voluntary agreement of the complainant to engage in the sexual activity in question: R. v. Barton 2019 SCC 33, [2019] 2 S.C.R. 579 at para. 88. “Consent” is the conscious agreement of the complainant to engage in every sexual act in a particular encounter: R. v. J.A. 2011 SCC 28, [2011] 2 S.C.R. 440 at para. 31; R. v. Barton at para. 88 and it must be freely given: R. v. Ewanchuk, [1999] 1 S.C.R. 330 at para. 36; R. v. Barton at para. 88.
[26] “Consent” is treated differently at each stage of the analysis. For the purposes of the actus reus “consent” means that the complainant, in her mind, wanted the sexual touching to take place: R. v. Ewanchuk at para. 48; R. v. Barton at para. 89. Therefore, at this stage, the focus is placed squarely on the complainant’s state of mind, and the accused’s perception of that state of mind is irrelevant. If the complainant testifies that she did not consent, and the trier of fact accepts this evidence, then there was no “consent”: R. v. Ewanchuck at para. 31; R. v. Barton at para. 89. The complainant need not express her lack of consent, or revocation of consent, for the actus reus to be established: R. v. J.A. at para. 37; R. v. Barton at para 89.
[27] “Consent” is stripped of its defining characteristics when it is applied to submission, non-resistance, non-objection or even the apparent agreement of a deceived unconscious or compelled will: R. v. Adepoju [2014] A.J. No. 246 at para. 11 quoting the Supreme Court of Canada in Ewanchuk.
[28] The presumption of innocence applies to a person accused of sexual assault in the same way that it applies in any other criminal offence. The crown must prove that this was an act of assault rather than consensual contact. I have reminded myself that there is no burden on the defence to prove that A.D. consented to any sexual contact, which may have occurred between the parties. Rather, the burden is on the crown to prove beyond a reasonable doubt that Mr. Jones had sexual contact with A.D. without her consent: R. v. Nyznik supra. at para. 10. That burden never shifts.
[29] I have reminded myself that the defence of mistake is simply a denial of the mens rea. It does not impose any burden of proof on the accused. Moreover, it is not necessary for the accused to testify in order to raise the issue. Support for the defence may arise from any of the evidence before the court, including, the Crown’s case-in-chief and the testimony of the complainant: R. v. Ewanchuk at para. 44.
[30] Finally, with a view to the 153(1)(a) count, I find the Ontario Court of Appeal’s decision in R. v. Aird, 2013 ONCA 447, [2013] O.J. No. 3027 provides helpful guidance. The court noted that parliament chose not to specify the relationships that would constitute relationships of trust under s. 153(1), likely for two reasons: because of the varied circumstances in which these relationships can arise; and because of the very fact specific nature of the inquiry, which must take place: R. v. Aird, at para. 27.
[31] The court identified several considerations relevant to an assessment of whether a relationship of trust exists:
(1) The age difference between the accused and the young person;
(2) The evolution of their relationship;
(3) The status of the accused in relation to the young person;
(4) The degree of control, influence or persuasiveness exercised by the accused over the young person; and
(5) The expectations of the parties affected, including the accused, the young person, and the young person’s parents: R. v. Aird, at para. 28.
Analysis
[32] I find A.D. was a credible witness, who provided very detailed, logical, and reliable evidence. Moreover, aspects of A.D.’s evidence were corroborated by text messages exchanged between the pair, and the letter authored by Mr. Jones, which I find enhanced her overall credibility.
[33] The level of detail in A.D.’s recollection of the events is noteworthy. A.D. was able to provide details surrounding her interaction with Mr. Jones and her evolving state of mind. She recalled relative body positions, and some of the words exchanged between them at the time. A.D. very explicitly remembered that she tasted coffee when Mr. Jones tried to kiss her with his tongue. Not only did A.D. recall wiping the saliva off her chest following her interaction with Mr. Jones, but she also remembered using her sleeve to do so. A.D.’s candid evidence about feeling “shutdown” and going into “shock mode” provided insight into her internal thought process, and how she processed and reacted to the sexual contact she described.
[34] There was some inconsistency with respect to A.D.’s evidence surrounding whether Mr. Jones asked if he could touch her chest, prior to any of the sexual contact alleged. However, I do not find this aspect of A.D.’s evidence adversely impacted her credibility, or the reliability of her evidence overall. Significantly, A.D. was consistent in her evidence that she did not provide Mr. Jones with consent at any point in time throughout their interaction. I believe that A.D. did not want the sexual contact with Mr. Jones to happen.
[35] Prior to carrying my analysis forward, I think it is helpful for me to review the findings of fact I have made based on the evidence, which I have accepted on this evidentiary record. I have made the following factual findings:
(1) Mr. Jones initiated sexual contact with A.D. on April 9, 2023 without her consent;
(2) I find Mr. Jones touched A.D.’s breasts and nipples under her clothing, which included rubbing and squeezing;
(3) I find Mr. Jones put his mouth on both of A.D.’s breasts and her nipples;
(4) I also find Mr. Jones kissed A.D. on the mouth, and attempted to use his tongue;
(5) I find that A.D. did not want the sexual contact between her and Mr. Jones to happen;
(6) Finally, at the relevant time, I accept that Mr. Jones was A.D.’s competitive softball coach. I also accept that A.D. trusted Mr. Jones, and that he was a father figure to her. I accept that A.D. went to Mr. Jones for a lot of support, and sought his advice.
Did Mr. Jones commit a sexual assault on A.D. contrary to Section 271 of the Criminal Code of Canada?
[36] I have found that Mr. Jones touched A.D.’s breasts and nipples under her clothing, which included rubbing and squeezing. I also found that Mr. Jones put his mouth on both of A.D.’s breasts and nipples, and that he kissed A.D. on the mouth while attempting to use his tongue. I have concluded all of this touching was intentionally initiated by Mr. Jones and the touching was of a sexual nature.
[37] Turning my mind towards the issue of consent, I have accepted A.D.’s evidence, that she did not want the sexual contact with Mr. Jones to happen. I believe that A.D. did not want Mr. Jones to engage in any sexual contact with her. I have reminded myself that A.D. need not express her lack of consent for the actus reus of the offence to be established. Consent is not silence, nor is it submission. I find Mr. Jones intentionally touched A.D. for a sexual purpose, and that contact occurred without her consent.
[38] On this record, counsel for Mr. Jones has asked me to consider whether the defence of honest and mistaken belief in communicated consent arises from the evidence, when considered in its totality. I find that there is no evidence before me, which would support such a defence. I want to make it clear that in assessing all of the evidence and coming to this conclusion, I have not imposed any burden on Mr. Jones. That would be improper.
[39] Therefore, I find that the crown has proven beyond a reasonable doubt that the sexual contact between Mr. Jones and A.D. on April 9, 2023, was an act of assault rather than consensual contact.
Was Mr. Jones in a relationship of trust relative to A.D. on April 9, 2023, such that the act of sexual assault also violated section 153(1)(a) of the Criminal Code of Canada?
[40] Carrying my analysis forward, I have considered the factors outlined in R. v. Aird, in my assessment of whether a relationship of trust existed between Mr. Jones and A.D., when he engaged in sexually assaultive behaviour towards her. I find that it did. I have come to this conclusion for the following reasons in particular:
(1) At the time of the sexual assault, Mr. Jones was 60 and A.D. was 17. Therefore, there was a forty-three year age gap between them approximately;
(2) Mr. Jones was A.D.’s competitive softball coach at the relevant time, which was a position he had held previously. In the text messages exchanged between the pair, Mr. Jones references speaking to another coach on A.D.’s behalf. In the letter he authored, Mr. Jones references removing himself from softball to prioritize A.D.’s involvement. Clearly, Mr. Jones’ position in competitive softball played a role in their relationship. It provided him with a status superior to hers in that space, which I find created an imbalance;
(3) I find that the relationship between Mr. Jones and A.D. evolved to a point where A.D. looked upon Mr. Jones as a father figure. His reference to walking her down the aisle in the letter he authored was very telling in this regard, and corroborative of A.D.’s evidence. Moreover, Mr. Jones helped A.D. with her homework and provided her with life advice and support. A.D.’s trust in Mr. Jones is evident when the entire evidentiary record is reviewed, and is even referenced by Mr. Jones himself in the letter he authored to her;
(4) The sexual undertone present in text messages exchanged between the pair is also clear. In particular, when Mr. Jones makes reference to A.D.’s partner, after she tells him she is “coming”;
(5) I find Mr. Jones exercised a significant degree of control over A.D., not only as her softball coach, but in his role as a father figure to her. I accept A.D.’s evidence that Mr. Jones’ opinion mattered a lot in her life. I accept that Mr. Jones exercised control over the time she spent on homework and was persuasive with respect to the guidance he offered to her.
[41] After carefully considering the factors outlined in R. v. Aird, against the backdrop of the entire evidentiary record, which was placed before me, I have concluded that Mr. Jones was in a position of trust relative to A.D. when he sexually assaulted her on April 9, 2023.
Conclusion:
[42] In the result, I find Mr. Jones guilty with respect to both counts charged on the information, which is before the court.
Released: October 29, 2024 Justice Jennifer Campitelli