ONTARIO

SUPERIOR COURT OF JUSTICE

COURT FILE NO.: CR-11-2411AP
DATE: 20120413

BETWEEN:

HER MAJESTY THE QUEEN – and – D.T. Appellant

Shelley McGuire, for the Crown
Frank Miller, for the Appellant

HEARD: March 29, 2012

SUMMARY CONVICTION APPEAL

thomas j.:

[ 1 ] The appellant, D.T., appeals both his conviction and sentence from Justice Lloyd Dean of the Ontario Court of Justice, sitting in Windsor.

[ 2 ] On April 19, 2011, he was convicted of a sexual assault upon K.M. between August 2, 2009 and August 11, 2009. He was sentenced on October 7, 2011 to 18 months imprisonment with three years’ probation and corollary orders under the Sex Offender Information Registration Act and s. 487.051 of the Criminal Code .

THE EVIDENCE AT TRIAL

[ 3 ] At the time of the trial, K.M. was 33 years of age and suffered from cerebral palsy. She resides with her mother and is confined to a wheelchair. K.M. has been hearing, vision and speech impaired since birth. The services of American Sign Language Interpreters were required for her trial.

[ 4 ] She has much difficulty communicating, and during her evidence the trial judge observed that she spoke very few words which were easy to understand. K.M. responded to the questions put to her by using a combination of hand gestures, head nods and facial expressions, together with audible sounds. She is able to write.

[ 5 ] The appellant is 51 years of age and her uncle by marriage. He is married to her mother’s sister.

[ 6 ] The evidence disclosed that they had a close relationship. Despite the date of the alleged offence, the evidence was consistent that the contact of a sexual nature commenced when the complainant was about 24. On that occasion, D.T. accidentally touched her breast while they were arm wrestling. From that point on, the appellant engaged regularly in sexual touching including, on his own evidence, the touching of her breasts and vagina. He testified that from time to time she would take his penis in her mouth. It was his position that at all times she had communicated her consent to him.

[ 7 ] The complainant’s evidence is very clearly that not only did she not consent, but that she adamantly made it clear she wanted no part of this activity. At trial she expressed that she told D.T.:

“No”
“No-Stop it”
“Don’t touch”
“Stop it – Go home”
“Go Away – I don’t want this anymore”

[ 8 ] She suggested that on one occasion the appellant placed his penis in her vagina. On the occasion in question the evidence confirms that K.M. was home alone and the appellant came over. She let him in the house and then after a period of time, while they were both in the living room, he touched her breasts and vagina. At that point, it seems, according to both the complainant and the appellant, she “wet herself”. D.T. helped her dry herself off in her bedroom and out of sexual curiosity he continued to stimulate her by touching her vagina while she was sitting on the toilet. The appellant testified that throughout the incident he had K.M.’s consent. Her evidence was quite contrary.

[ 9 ] When cross-examined about her consent to some of the activity, her evidence became much more equivocal. She said she could not remember if D.T. had asked before he touched her breast and agreed that he had asked if he could touch her below her waist and only touched her after she had said yes.

[ 10 ] The appellant gave evidence. He admitted to the level of intimacy suggested and agreed he attended at times when he knew his sister-in-law would not be home. It was his position that despite her physical limitations, K.M. was an adult and that on each occasion she clearly expressed her consent to him.

[ 11 ] The only trial evidence touching on the complainant’s physical disability and intellectual capacity came from her mother. She testified that, in her view, her daughter’s intellectual age was between 16 and 17 years and perhaps as much as 19 years in some areas. K.M. was able to do a great deal with her left hand but not much with her right. She is wheelchair bound. Her mother can understand her daughter through a combination of special sign language and writings. K.M. is quite capable of voicing her displeasure and letting her mother know what she wants. K.M. is employed twice a week at a workshop run by the organization, Associated Persons with Physical Disabilities. She is able to help her mother with small chores around their home.

THE TRIAL JUDGMENT

[ 12 ] The trial judge fairly and meticulously reviewed the limited trial evidence. He ultimately concluded that he had a reasonable doubt as to whether K.M. supplied her consent for the sexual activity in question:

Some of the complainant’s answers regarding whether she consented to the sexual activity on the date of the alleged offence and any sexual activity that occurred prior to that date are ambiguous. As a result I cannot conclude that the complainant did not consent to the sexual activity, including on the offence date. In other words, there is reasonable doubt about the lack of consent.

His conclusion is reasonably supported by the evidence.

[ 13 ] He went on to consider an alternative argument by the Crown, that being that even if consent was found, or a reasonable doubt present, it was vitiated by the operation of s. 265(3) and/or s. 273.1(2) of the Criminal Code . Those sections state the following:

265. (3) For the purposes of this section, no consent is obtained where the complainant submits or does not resist by reason of

(a) the application of force to the complainant or to a person other than the complainant;

(b) threats or fear of the application of force to the complainant or to a person other than the complainant;

(c) fraud; or

(d) the exercise of authority

273.1 (2) No consent is obtained, for the purposes of sections 271, 272 and 273, where

(a) the agreement is expressed by the words or conduct of a person other than the complainant;

(b) the complainant is incapable of consenting to the activity;

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

(d) the complainant expresses, by words or conduct, a lack of agreement to engage in the activity; or

(e) the complainant, having consented to engage in sexual activity, expresses, by words or conduct, a lack of agreement to continue to engage in the activity.

(3) Nothing in subsection (2) shall be construed as limiting the circumstances in which no consent is obtained.

[ 14 ] The trial judge applied both s. 265(3) and s. 273.1(c) and concluded that K.M.’s consent could not be effective. His reasoning is set out below:

[47] After careful consideration of all the evidence I find that the complainant’s consent was vitiated by the exercise of authority, within the meaning of subparagraph 265(3)(d) and the abuse by the accused of a position of trust and authority within the meaning of 273.1(c), and the case law, for the following reasons:

• the complainant’s chronological age was 32 but according to her mom her intellectual age was as low as 16; on the evidence before the court at the time the sexual activities began, the complainant was 20 or 21 years old and the accused was only 14 years old;

• the accused’s physical, intellectual and social skills were vastly superior to that of the complainant’s; it is obvious to anyone that the complainant is a special needs person; it is hard to imagine anyone more in need of protection, other than perhaps children of tender years;

• the complainant was the accused’s niece and he was her favourite uncle since she was old enough to express herself; the accused was an important adult figure in the complainant’s eyes for many years; he was aware that the complainant has loved him as an uncle since childhood;

• the accused benefitted from this situation which gave him easy access to the complainant; he was a trusted family member by the complainant’s mother (her caregiver);

• the accused, who was married, visited the residence of the complainant alone at the accused’s instigation, at times that were convenient to him, and when he knew no one but the complainant would be home; he admitted this was on purpose so that they could be alone;

• the method used by the accused to initiate the sexual activity; he would touch her and then ask if it was okay, he would show her his penis and wait for her to move towards it or say no; (although he does not see these actions as him initiating the sexual touching I strongly disagree); the accused agrees that the complainant never asked him to do any of the sexual things they engaged in;

• the complainant was vulnerable (confined to a wheel chair because of the debilitating effects of cerebral palsy; vision, hearing and speech impaired since birth); the accused dominated and preyed on the complainant in that situation in order to use her solely for the purposes of appeasing his sexual appetite, with no other intention, on his own admission (the August 8, 2010 bathroom incident);

• the accused described their sexual relationship as “their secret”; language that is eerily similar to that used put sexual predators and heard so often in trial courts.

[ 15 ] In his ultimate conclusion, the trial judge found a lack of effective consent based not only on D.T.’s abuse of his position of trust and authority, but, as well, suggested the consent to be legally ineffective as a breach of public policy. His comments are set out below:

[48] As a result I conclude that the totality of the evidence shows beyond a reasonable doubt that the accused exploited an overwhelming inequality to his own advantage, abused a position of trust and authority to influence and manipulate the complainant, thereby vitiating any consent the complainant may have given. It is abundantly clear that there was such a disparity in the relative situations of the parties that the weaker party (the complainant) was unable to choose freely. As well, for reasons of public policy (fairness and the doctrine of unconscionability) it is my view that on the facts and circumstances of this case any consent of the complainant requires it to be regarded as legally ineffective.

THE CONVICTION APPEAL - ISSUES

[ 16 ] The appellant raises the following issues in this appeal as it relates to the finding of guilt:

Issue one

Did the trial judge err in finding that the complainant’s consent was vitiated by the operation of section 273.1(2) (c) and/or section 265(3)(d) and/or ‘public policy’ in the absence of evidence that the complainant consented because of the abuse of a position of trust or authority or that the appellant abused that position?

Issue two

Did the trial judge err in reliance upon the common law doctrines of unconscionability and fairness to vitiate consent in the context of a criminal prosecution?

Issue three

Does the failure of the evidence to support the vitiation of consent render the verdict unreasonable?

Issue four

Are the reasons sufficient considering there is no application of the principles in R. v. W.D. and no rejection of the appellant’s evidence?

Issue One

[ 17 ] Before dealing with the trial evidence related to the effect of any relationship between the appellant and complainant upon consent, it is necessary to briefly review R. v. Ewanchuk , [1999] 1 S.C.R. 330 (para. 23 , 24, 25 and 26) ( Ewanchuk ) on the essential elements of the offence:

A conviction for sexual assault requires proof beyond reasonable doubt of two basic elements, that the accused committed the actus reus and that he had the necessary mens rea. The actus reus of assault is unwanted sexual touching. The mens rea is the intention to touch, knowing of, or being reckless of or wilfully blind to, a lack of consent, either by words or actions, from the person being touched.

The actus reus of sexual assault is established by the proof of three elements: (i) touching, (ii) the sexual nature of the contact, and (iii) the absence of consent. The first two of these elements are objective.

The absence of consent, however, is subjective and determined by reference to the complainant’s subjective internal state of mind towards the touching, at the time it occurred: see R. v. Jensen (1996), 106 C.C.C. (3d) 430 (Ont. C.A.), at pp. 437-38, aff’d [1997] 1 S.C.R. 304, R. v. Park, [1995] 2 S.C.R. 836, at p. 850, per L’Heureux-Dubé J., and D. Stuart, Canadian Criminal Law (3rd ed. 1995), at p. 513.

[ 18 ] Ewanchuk makes it clear that the analysis must be compartmentalized along the lines mentioned above. The blurring of the lines invites judicial error.

[ 19 ] Section 265(3) enumerates a series of considerations, including the use of authority that will deem an absence of consent in assault cases.

[ 20 ] The mens rea of sexual assault requires an intention to touch and knowing of, or being reckless of or wilfully blind to, a lack of consent on the part of the person touched. Consent, while still integral to mens rea , is considered from the perspective of the accused.

[ 21 ] The defence of an honest but mistaken belief in consent is merely an absence of the mens rea component. Section 273.1(2) impacts the mens rea element. The belief cannot be honest if it relies upon an inducement based on an abuse of trust, power or authority.

[ 22 ] It is appropriate to deal with the operation of s. 265(3) only if the trier has at least a reasonable doubt as to the complainant’s consent. The analysis only needs to involve a consideration of s. 273.1(2) if the trial judge has decided there was true consent or has a reasonable doubt as to true consent after all considerations mentioned above:

Section 265(3) identifies an additional set of circumstances in which the accused’s conduct will be culpable. The trial judge only has to consult s. 265(3) in those cases where the complainant has actually chosen to participate in sexual activity, or her ambiguous conduct or submission has given rise to doubt as to the absence of consent. If, as in this case, the complainant’s testimony establishes the absence of consent beyond a reasonable doubt, the actus reus analysis is complete, and the trial judge should have turned his attention to the accused’s perception of the encounter and the question of whether the accused possessed the requisite mens rea.

( Ewanchuk , para. 40 ).

[ 23 ] It is dangerous to then conclude as the trial judge does here that:

[T]he complainant’s consent was vitiated by the exercise of authority, within the meaning of subparagraph 265(3)(d) and the abuse by the accused of a position of trust and authority within the meaning of s. 273.1(c)....

[ 24 ] In cases involving an adult complainant it is important to remember the distinction between the limited requirements of s. 153 and those of s. 265(3) and s. 273.1(2) . Where the complainant is 16 or 17 years, and in a relationship of trust or authority, the accused is guilty of sexual exploitation upon the proof of the prohibited contact without any concern as to consent. That is not the situation we are considering in this appeal. While there is evidence from K.M.’s mother that she may have been intellectually 16 or 17 or perhaps 19, it is not definitive. There is no expert evidence upon which to rely and the trial judge makes no finding of fact regarding capacity. At the time of the impugned activity K.M. was 32 years of age.

[ 25 ] The operation of s. 265(3) and s. 273.1(2)(c) requires proof of both an objective and subjective component (distinct as well from the operation of s. 153). It is necessary for the Crown then, if it is to rely upon the sections, to prove beyond a reasonable doubt the existence of the position (authority and/or trust) and then that the complainant’s freewill was effectively overborne by the impact and abuse of that position.

[ 26 ] Ewanchuk considered the impact of s. 265(3) in the context of a 17-year-old woman alleging a sexual assault by a prospective employer. It was her position that any compliance was done out of fear. The court held that the application of s. 265(3) required an entirely subjective test. Even if irrational, if the complainant felt fear, it followed that legally there was no consent (para. 38).

[ 27 ] In R. v. A.H. (2000), 148 C.C.C. (3d) 86, (“ A.H. ”), the Court of Appeal considered the application of s. 273.1(2) (c) to the relationship of a drug dealing accused and a drug dependant complainant. The court at para. 17 provided direction on what the jury should have been told:

It should have been made clear to the jury that this involved both an objective and a subjective standard: the objective relating to establishing that the relationship was that of supplier and drug user and the subjective relating to her dependency upon him as her supplier such that she could not give independent consent to his sexual advances. In both cases, the burden of proof was on the Crown.

[ 28 ] In the circumstances of this case, the trial judge reviewed the evidence in detail as it relates to the familial connection between K.M. and D.T., the fact that he was her favourite uncle, and that he would visit her and bring her things, and that he would do so when her mother was not home. Clearly, the trial judge was deeply concerned about the vulnerability of K.M. due to the effects of the cerebral palsy. There is, in my view, simply no evidence that he exercised authority over her or that he was in that position.

[ 29 ] I come to that conclusion recognizing that “authority” bears a broad meaning and is not to be confined to persons with a “right to command, power to enforce obedience but rather includes those persons with the power to influence the conduct and actions of others” ( R. v. Matheson (1999), 44 O.R. (3d) 557 (C.A.) para. 108 ).

[ 30 ] Having found a failure of the objective element, it serves no purpose to explore the evidence for the subjective impact of “authority”.

[ 31 ] The creation of a position of “trust” contemplated by s. 273.1(2)(c) and its effect on the accused’s guilty mind is a more nebulous commodity. The concept of a “position of trust” is perhaps even more difficult to define than one of “authority” ( R. v. Audet , [1996] 2 S.C.R. 171 para. 37 , (“ Audet ”)). The definition adopted by Blair J. in R. v. P.S. , [1993] O.J. No. 704 (C.A.) , is instructive, albeit the discussion involved a relationship between an adult and 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 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. [Emphasis added.]

[ 32 ] It is not easy to readily conceive of a trust relationship between two adults as contemplated by this section when the dominant perpetrator is not in a professional or employment capacity.

[ 33 ] The trial judge at paragraph 47 of his reasons (which have been reproduced above) reviewed the evidence on the development of the relationship and the parties’ respective circumstances. I see no reason to interfere with his finding that, objectively, D.T. and K.M. had formed a trust relationship.

[ 34 ] Unfortunately, however, the trial judge did not go forward to consider whether the evidence disclosed how that trust impacted upon the reaction of K.M. to the sexual conduct of D.T., particularly considering his reasonable doubt regarding consent. That step was essential if the trust relationship was to vitiate consent. The creation of the relationship itself, unlike with a young complainant, was not enough.

[ 35 ] It is easy to see how this happened. Like in A.H. , the Crown here prosecuted this matter on the basis of a complete lack of consent. That was clearly the position of K.M.. Once a reasonable doubt on that issue was created, the record did not disclose any effect of D.T.’s position upon the response of the complainant to his advances.

[ 36 ] The comment of the Court of Appeal in A.H. , regarding the theory of the Crown, could certainly be adapted to this case on appeal:

If it was not prepared to stand or fall on the complainant’s version of what took place in the car that evening, then it should have attempted to build its case from the outset on drug dependency and vitiated consent.

[ 37 ] Having found a lack of “authority” and an absence of evidence regarding the subjective impact of “trust”, the trial judge’s position that consent was vitiated by the application of s. 265(3) and 271.1(2)(c), cannot stand.

Issue Two

[ 38 ] In his reasons, after dealing with the statutory concerns, the trial judge also found the consent to be “legally ineffective” for reasons of public policy (fairness and the doctrine of unconscionability). In doing so, he relied upon Norberg v. Wynrib , [1992] 2 S.C.R. 226 (“ Norberg ”), a civil case about sexual assault under the tort of battery, and its adoption in H.H. by Justice Morand of the Court of Quebec.

[ 39 ] The common law has historically recognized that consent will be affected by a power imbalance between the parties whereby one is able to prey on the vulnerabilities of the other ( Audet para. 20 , R. v. Jobidon , [1991] 2 S.C.R. 714 at p. 714 and Norberg at p. 250 and 252).

[ 40 ] In the circumstances of our case where two adults are interacting, the public policy concerns, regarding consent to assault and sexual assault, have been addressed by Parliament in the form of s. 265(3) and s. 273.1(2) ( Audet para. 21 ). Unconscionability and fairness, terms finding a more comfortable fit in contract law, cannot vitiate consent in this case once resort to their statutory reflection has proven unsuccessful.

[ 41 ] Certainty in criminal law and a sound expectation of criminal liability comes from resorting to the four corners of the statute enacted by parliament ( Frey v. Fedoruk , [1950] S.C.J. No. 21 at p. 12). While the conduct of D.T. would by most be seen as unconscionable, that does not necessarily make it criminal, nor the complainant, on this evidence, any less a potentially willing participant.

Issue Three

[ 42 ] This issue raises the question of the effect of the errors I have found above. Section 686(1)(a)(i) has application here. I have carefully reviewed the facts before the trial judge. I find that in the absence of a relationship of authority and with a complete lack of evidence regarding the subjective impact of K.M.’s trust in D.T., it is an error in law to conclude consent was vitiated. The conviction cannot be reasonably supported by the evidence. As a result, I must overturn the verdict ( R. v. Burke , [1996] S.C.J. No. 27, para. 4 ).

[ 43 ] After concluding the verdict is unreasonable, it would be inappropriate in law and unfair to the appellant and complainant to return the matter for a new trial. I believe an acquittal flows inexorably from the findings of fact made by the trial judge on the issue of consent.

Issue Four

As a result of my findings on the previous three issues, it is unnecessary for me to determine the effect of the argument made as to the reasons provided.

CONCLUSION

[ 44 ] For the reasons set out above, the verdict is set aside and an acquittal entered. Any consideration of the sentence appeal is unnecessary.

Original signed by “Bruce Thomas”

Bruce Thomas
Justice

Released: April 13, 2012

COURT FILE NO.: CR-11-2411AP
DATE: 20120413

ONTARIO SUPERIOR COURT OF JUSTICE HER MAJESTY THE QUEEN – and – D.T. Appellant REASONS on appeal Thomas J.

Released: April 13, 2012