COURT FILE NO.: 93/11

DATE: 20121126

ONTARIO

SUPERIOR COURT OF JUSTICE

BETWEEN:

HER MAJESTY THE QUEEN

– and –

RICHARD BECKERS

E. Pecorella, for the Crown

M. Webster, for Mr. Beckers

HEARD: September 24, 25, 26, 27 and 28, 2012

REASONS FOR JUDGMENT

Publication of Any Information Contained Herein is Prohibited under s. 486.4 of the Criminal Code of Canada

HOURIGAN J.

Introduction

[1] The accused, Richard Beckers, is charged with sexual assault, sexual exploitation and assault.

[2] Mr. Beckers pleaded not guilty to all charges. He testified at trial.

[3] For the reasons that follow, I find Mr. Beckers guilty of all charges.

Testimony of S.S.

[4] At the time of trial the complainant, S.S., was 18 years old. He was born on […], 1993.

[5] S.S. first met Mr. Beckers in December of 2007. He cannot recall the exact date, but believes it was towards the middle of the month. He met Mr. Beckers when he was walking across Ontario Street in Burlington and saw Mr. Beckers smoking. S.S. asked if he could use his lighter and Mr. Beckers agreed. Mr. Beckers asked him if he smoked weed and he said yes. Mr. Beckers invited him to smoke weed at his condominium. S.S. testified that he spoke to Mr. Beckers for two to three minutes and then Mr. Beckers went off to sell Oxycontin to a friend. He came back and they walked to Mr. Beckers’ condominium at […] Street.

[6] S.S. decided to go to the condominium because he enjoyed getting high. At this point, he was smoking weed on a daily basis. He also smoked hash once in a while and drank from time to time.

[7] They went to Mr. Beckers’ condominium and smoked one joint and he stayed for about an hour watching TV. Before he left, Mr. Beckers gave him a joint and cigarettes and told him that if he ever needed pot to give him a call. Mr. Beckers gave him his cell phone number and S.S. put the number down in his phone. S.S. testified that the joint was offered to him without him asking for it, but that he had asked for cigarettes. He testified that Mr. Beckers kept his marihuana in a safe in the bedroom closet.

[8] A few weeks after their initial meeting S.S. called Mr. Beckers and asked him if he had any pot for sale. Mr. Beckers said he was driving a friend to the airport, and S.S. said “not to worry” and he would call later. S.S. testified that this took place in December.

[9] S.S. could not recall when he next called Mr. Beckers, but he does recall going to Mr. Beckers’ condominium on a couple of occasions to smoke weed and watch TV. He believes that he went to the condominium a couple of days after his phone call with Mr. Beckers. It was his idea to go to the condominium and it was his intention to get high.

[10] S.S. testified that he attended at the condominium between January and April 4, 2008 almost every day. Sometimes it was his idea to go to the condominium and sometimes it was Mr. Beckers’ idea. Sometimes he would attend at the condominium with friends, but he went alone on more occasions than he did with friends. He testified that he would smoke weed, play video games and watch TV. He was not allowed to smoke weed at his house.

[11] S.S. testified that he would sometimes masturbate at Mr. Beckers’ condominium. The first time he recalls masturbating, he was sitting at the computer in the back corner of the living room. He testified that Mr. Beckers was on the couch with his back toward him. Mr. Beckers had turned on the porn channel and S.S. was watching porn on the computer. He was masturbating at the computer and Mr. Beckers was masturbating on the couch. He testified that he did not know why he began to masturbate, but it was something he wanted to do. He did not think Mr. Beckers would see him because he had his back towards him. He testified he could not see Mr. Beckers’ genitalia but saw his arm moving and then saw him cleaning up with paper towels afterwards. He cannot remember who started masturbating first. He believes it was Mr. Beckers, but he cannot be a hundred per cent sure. He testified there was no discussion before, during or after the masturbation. He testified that he had probably been in Mr. Beckers’ condominium five to six times before this event and that there was nothing before this event that was sexual between them and no sexual discussion between them. He left right after he masturbated because he felt uncomfortable.

[12] S.S. testified that approximately two days later he was in Mr. Beckers’ condominium. He was on the couch and Mr. Beckers was taking a shower. S.S. turned on the porn channel and began to masturbate. He cleaned up with paper towels and put the towels in the trash can in the kitchen. He testified that this happened five or six times over the course of a couple of weeks. He then had a discussion with Mr. Beckers wherein Mr. Beckers told him that part of S.S. was inside of him. S.S. asked him what he meant, and Mr. Beckers said he would not tell him because he was afraid he would stop doing what he was doing. Subsequently Mr. Beckers told S.S. that he knew that he was masturbating and that he would retrieve the papers from the garbage and lick the semen off the paper towels. S.S.’s reaction was that this was “very gross”. He is not sure what he said to Mr. Beckers, but he said he might have called him “a fag”.

[13] S.S. offered to masturbate into a shot glass. He testified that he made that offer because that way Mr. Beckers would not be going behind his back and the semen would be available for him to drink. Mr. Beckers had told him that the semen made his skin smooth. S.S. testified that this occurred on a regular basis and he did it every time he was at the condominium during the period mid-January to April 4, 2008. S.S. testified that Mr. Beckers would be in the shower while he masturbated. He would give the semen to him in the shower, put it on the counter or put it in his coffee. He observed Mr. Beckers drink the semen, and when he would give it to him Mr. Beckers would thank him and tell him it tasted good. He thought this was strange, but he continued to do it because he could get pot and cigarettes from Mr. Beckers. S.S. testified that if he would ask for cigarettes and/or pot, Mr. Beckers would say “no”. He would then offer to masturbate into a cup and he would then get what he asked for from Mr. Beckers.

[14] On another occasion he was in Mr. Beckers’ room and he asked Mr. Beckers if he could get some pot and Mr. Beckers said no because he did not have any. S.S. offered to provide Mr. Becker with a hand job in exchange for marihuana and Mr. Beckers agreed. He cannot remember exactly when this took place, but believes it was sometime in January. They were on the bed watching TV together in Mr. Beckers’ bedroom. He testified that Mr. Beckers had told him that when he was a kid and would hitchhike, he would give and receive blowjobs for giving and receiving rides. He also noted that Mr. Beckers’ made sexually explicit comments regarding males when they were running errands. These males were between the ages of 14 and 21, and he also made comments about S.S.’s male friends. He testified that he recalled Mr. Beckers saying about one male on the street had “cock sucking lips”. He also said that S.S.’s friend, Adam Grant, had a hot ass on multiple occasions. He understood that Mr. Beckers is gay, but Mr. Beckers told him that he is bi-sexual. S.S. is heterosexual.

[15] When he offered to perform the hand job, Mr. Beckers said they could get pot afterwards. He testified that he had grabbed Mr. Beckers’ penis and stroked it. Mr. Beckers’ was wearing boxers and S.S. was fully clothed. He testified that Mr. Beckers seemed to enjoy it and was groaning and had his eyes closed. He stopped after five minutes because he felt uncomfortable. He testified that he did not bring Mr. Beckers to orgasm, but that Mr. Beckers brought himself to orgasm. He asked if he could get the pot, and Mr. Beckers said yes. Mr. Beckers gave him money and he bought the pot and they smoked it together.

[16] S.S. recounted a time when he and Mr. Beckers were going to Oakville for Mr. Beckers to see his doctor. While they were waiting for the GO train, Mr. Beckers told him that he could give him the best oral sex he had ever had and make him orgasm before the train got there. He told Mr. Beckers no. He said that Mr. Beckers was egging him on, telling him to “come on, come on” and telling him to let him “prove you wrong”. He believes he called Mr. Beckers “a fag”. He testified that he never allowed Mr. Beckers to provide oral sex on him and this was the only time there was reference made to oral sex. He testified that this event occurred about one-and-a-half months after the hand job.

[17] He never gave Mr. Beckers another hand job and did not recall any further discussion about the subject. After refreshing his memory by reviewing his police statement, S.S. testified that Mr. Beckers told him after he had given him a hand job that it was his turn to provide a hand job to S.S. S.S. said no and Mr. Beckers respected his decision.

[18] On another occasion after getting in a fight with his parents, S.S. stayed overnight at Mr. Beckers’ condominium. Mr. Beckers offered for him to stay in the bed with him. S.S. testified that he did not mind sleeping in the same bed but that he put pillows between them. In the morning when they woke up, Mr. Beckers put his leg over S.S. and started to “dry hump” him. Mr. Beckers had boxers on and rubbed his penis against S.S.’s upper thigh. S.S. was wearing boxers and a shirt. S.S. was on his side and Mr. Beckers had his left leg over and was rubbing his penis. S.S. was facing away from Mr. Beckers. S.S. believes he was laying on his right side. There was no discussion before this took place and neither of them said anything while it occurred. He testified he did not really want to do it, but he did it because he still wanted to get pot and cigarettes from Mr. Beckers. He testified there was no discussion of pot and cigarettes at this time, but he thought, because of the hand job incident, that he would be able to get pot and cigarettes.

[19] S.S. testified that the dry humping went on for 10 minutes. It came to an end when Mr. Beckers ejaculated. He could see the stain on Mr. Beckers’ boxer shorts. He does not recall any discussion about it afterwards.

[20] S.S. testified that he slept over at Mr. Beckers’ approximately three or four nights over time. Other than the one occasion when he slept in the bed, he slept on the couch. He believes this incident occurred on the second occasion when he slept over. S.S. could not recall if he tried to get out of the situation when he was dry humped by Mr. Beckers. After looking at his preliminary hearing transcript, his memory was refreshed and he testified that he tried to get up but there was a lot of pressure coming from Mr. Beckers’ leg on top of his and Mr. Beckers was using enough force to keep him down.

[21] On another occasion Mr. Beckers, S.S. and one of Mr. Beckers’ friends, who he believes was named Andrew, went to Toronto together. He believes this took place in March. They smoked a joint downtown and Mr. Beckers purchased fake identification for S.S. S.S. testified that the fake identification was purchased at a store and that it was his idea to make the purchase. At first Mr. Beckers said it was too much money, being between $40 and $50. However, S.S. kept asking and Mr. Beckers finally said he would buy it. They talked previous to this purchase and afterwards about using fake identification to go to bars. Mr. Beckers said he had to be smart about using it. He testified that he used the fake identification at the convenience store across the street from Mr. Beckers’ condominium to buy cigarettes. He never used the fake identification in Mr. Beckers’ presence or to go to a bar together.

[22] With respect to S.S.’s age, he initially told Mr. Beckers that he was 15 years old. He testified Mr. Beckers asked him his age during one of the first couple of times that they met. He lied because he did not want Mr. Beckers to think he was too young and not get him pot and cigarettes. He eventually told him that he was not 15 because he was concerned that he and Mr. Beckers had discussed him moving into Mr. Beckers’ condominium when he turned 16. Mr. Beckers said at 12:01 on […](S.S.’s birthday) he would pick up S.S.’s stuff from his house and that S.S.’s parents would not know what to do or what hit them when he moved out. When he told Mr. Beckers that he was only 14, Mr. Beckers replied that it looked like they would have to wait a little longer before he could move in with him.

[23] At this point, S.S. had a bad relationship with his parents. They were fighting and arguing. He had run away from home a few times. He cannot recall the exact date when he first ran away, but believes that it was in January after he met Mr. Beckers. He testified that he ran away two or three times and went to Mr. Beckers’ house. He cannot remember if he told Mr. Beckers that he had run away from home.

[24] S.S. testified that his fights with his parents were about where he was going, what he was doing and with whom. His parents were concerned about him hanging out with Mr. Beckers. They first raised the issue with him in January. He does not know how they found out he was spending time there. He did not tell them when he was going to visit with Mr. Beckers because he knew his parents would not approve.

[25] Mr. Beckers knew that S.S. was having trouble with his parents and Mr. Beckers was not fond of them. S.S. testified that Mr. Beckers would call his mother a “bitch”, a “cunt”, an “asshole” and a “fucker”. He would call his dad an “asshole”. He also said that S.S.’s dad’s nose was twisted out of joint because Mr. Beckers was more of a father figure to him than his dad. S.S. testified these comments would arise when he told Mr. Beckers that his parents did not want him spending time with him. S.S. testified that he did not like Mr. Beckers disparaging his parents.

[26] S.S. testified that approximately twice a week he would tell Mr. Beckers that his parents did not want him hanging around with him and Mr. Beckers got very angry. On one occasion in March, Mr. Beckers said they should stop hanging out together. However, S.S. asked him to continue to let him hang out, told them that they were friends, and Mr. Beckers eventually relented and said okay, that they could continue to hang out together.

[27] He believes that Mr. Beckers was 48 years old at the time. He told people that Mr. Beckers was his stepdad so that they would not think it was weird that he was hanging out with someone who was that much older.

[28] In January of 2008, Mr. Beckers acquired an LG cell phone for S.S. He previously had a Rogers phone that his parents had purchased for him, but he had gone over his minutes and his father took it back. It was agreed that Mr. Beckers would get him a phone and that S.S. would not go over the maximum number of minutes. Mr. Beckers got the phone free with a contract from Telus. Mr. Beckers paid for the phone from January to April and S.S. never paid him back. S.S. told his parents about the phone, but never gave him the number.

[29] Mr. Beckers also bought S.S. an iPod. S.S. was with him at the time of the purchase and said that the price was $69.99. It was S.S.’s idea to purchase the iPod.

[30] Mr. Beckers allowed S.S. to drive his car on occasion. The first time he drove the car he was 14, but Mr. Beckers did not know he was 14 at the time. Mr. Beckers did know that he did not have a licence and told him that he would pass his driving test with flying colours. It was S.S.’s idea to drive his car. They would drive in Burlington and at the Caledonia Reserve. Mr. Beckers was always in the car with him when he drove except one occasion when S.S. drove from Mr. Beckers’ condominium to the Maple Avenue skate park.

[31] When he first met Mr. Beckers he had no job. Eventually he got a job at J.C.’s Bagels at the Y.M.C.A. He worked there for two or three shifts, but they told him he could not continue there because he was not 16 years of age. He went to Service Canada with Mr. Beckers and they found a job for him at Burlington Bowl. Mr. Beckers would pick him up from his work at Burlington Bowl usually around 1:00 a.m. Mr. Beckers also tried to get him to return to school after he was kicked out of school in February.

[32] Mr. Beckers would not pick him up from his house. They would meet at the building across the street from his house so his parents would not see him. Mr. Beckers did this on four or five occasions. S.S. testified that this was a mix of both of their ideas about meeting across the street.

[33] When he brought friends over to Mr. Beckers’ condominium they would smoke weed and play video games. He did this seven or eight times. Mr. Beckers would smoke weed with them, but would also sometimes be on the computer or doing his own thing. S.S. had a girlfriend at the time whose name was Justine. On one occasion he and Justine had sex in Mr. Beckers’ room. Mr. Beckers was in the condominium but not in the room. He testified that he probably would not have been able to hang out with his girlfriend in his bedroom at home.

[34] Before he was kicked out of school, his visits to Mr. Beckers’ home averaged four to five hours a day after school. A couple of times he visited during school hours, but Mr. Beckers did not like him being there during school hours. When he was kicked out of school, he would wake up and then hang out for the duration of the day with Mr. Beckers or until he was caught by his parents. He estimates that he was at Mr. Beckers’ home 70 per cent of the time and 30 per cent of the time he was at his own home.

[35] He described Mr. Beckers’ condominium as a safe place to get high, smoke cigarettes and drink once in a while. He saw Mr. Beckers as a father figure because he wanted his dad to let him smoke weed and cigarettes and do what he wanted to do and that is what he was getting from Mr. Beckers.

[36] S.S. remembered an occasion when Officer George Whitehouse came to his home about an alleged internet harassing issue. The officer told him that Mr. Beckers was a “bad guy” and not to spend time with him. Mr. Beckers wrote a letter to the Halton Regional Police Force and claimed that he had been slandered by the officer. S.S. signed off on the letter indicating that the statements were true. He did this because Mr. Beckers was very angry.

[37] S.S. recalls three occasions when the police were involved. The first was when his parents filed a missing persons’ report. The police came to Mr. Beckers’ door and asked if he knew S.S. and where he was located. S.S. was actually in the kitchen of the condominium and heard the conversation with the police. Mr. Beckers told the police that he knew S.S. but did not know where he was. Once the police left, he told Mr. S. that the police were looking for him and he drove him home. Mr. S. cannot remember the exact date of this incident; he believes it was in January or February of 2008.

[38] The second occasion was when his parents filed another missing persons’ report. S.S. cannot recall the date of that incident. The police officers showed up at Mr. Beckers’ door and this time he told the police that S.S. was present. The police told him to get his things and brought him home.

[39] The third occasion was when he was at Mr. Beckers’ condominium and there was a knock on the door. He looked outside to determine if it was a police car and he saw a police car marked “Summons Unit”. He did not answer the door and told Mr. Beckers about it once he came out of the shower.

[40] He got the sense that Mr. Beckers would get jealous when he was with other people. On one occasion he spent the night at a friend’s house. The next day when he went to Mr. Beckers’ home, Mr. Beckers got very angry with him. He testified that Mr. Beckers punched him in the left arm. He does not recall what hand Mr. Beckers’ used to strike him, but stated that his hand was closed. With respect to the force of the punch, he testified that it was not much but it was still enough to hurt. Mr. Beckers then apologized and bought him cigarettes. He believes this incident took place in February.

[41] On April 4, 2008 his father invited him to go shopping in Buffalo. They went to a mall in Buffalo and his father said he was going to bring the car around and asked if he wanted to join him. He agreed to do so. When they got outside, two people met him and asked if he was S.S. They told him that they were transporters hired by his parents to take him from Buffalo to Georgia for wilderness training. S.S. was sent to wilderness training and eventually attended school in the United States.

[42] He never told anybody about the sexual activity. He did not want to be judged and did not want to remember it. The first person that he told about the activity was his therapist in the United States. She told him the law was that she had to let the police there and in Canada know about it. He believes that he reported this information in January of 2009. He spoke to a police officer in the United States on March 19, 2009.

[43] He did not really want to provide a statement to the police. He was nervous about what might happen. At the time of giving the statement, he did not want to see or talk to Mr. Beckers because of what happened.

[44] S.S. testified that Mr. Beckers referred to him as “sunshine”. He does not recall being called any other nicknames.

[45] In cross-examination, SS said he spent all the money he had on purchasing marihuana and cigarettes. His home life was bad before he met Mr. Beckers. He first smoked a cigarette at age 12 and started smoking consistently at age 13. His parents found out about him smoking cigarettes and they did not approve. They told him that they do not want him to smoke in the house or bring cigarettes into the home. At age 13 he started smoking marihuana and between the ages of 13 and 14 he smoked a lot of marihuana. His parents found out and did not approve. They tried to get him to control his behaviour by having him come home earlier and structuring his time. He had a curfew of 9:00 or 10:00 p.m.

[46] At the time, S.S. had an allowance of ten dollars a week, but he was smoking four to five packs of cigarettes a week and was smoking a quarter ounce of marihuana per week. He estimated the cost of the marihuana was between $45 and $55 per quarter ounce. He agreed that he needed approximately $100 per week to cover his cigarette and marihuana habit. He would get extra money by stealing from his mother and would pawn things that his parents had given him. Usually he would steal $20 to $40 from his mom every Friday. The most he ever stole from her was $80. When his mom challenged him about missing money, he denied stealing. Eventually his parents bought a safe. He agreed that he was not afraid to steal or lie to his parents, and he would lie to get out of trouble or to get what he wanted.

[47] S.S. testified that Mr. Beckers was not like a parent to him. He agreed that at times he was defiant of Mr. Beckers and he did not obey Mr. Beckers like a father. He did not respect Mr. Beckers as an authority figure and said Mr. Beckers had no authority over him of any kind. Mr. Beckers would say no to requests, but he would ask four or five times and Mr. Beckers would give in.

[48] S.S. would call Mr. Beckers names in front of his friends, including “fag” and “bitch”. When he did that, Mr. Beckers just took the insults. He agreed that part of his strategy in dealing with Mr. Beckers was to humiliate him.

[49] With respect to his age, S.S. testified that his birthday is […]^th and that there was no time between December of 2007 and April of 2008 when his birthday was coming up. However, he stated that even though his birthday was not coming up, Mr. Beckers was counting the days until he turned 16.

[50] With respect to the dry humping incident, he tried to get up and Mr. Beckers grabbed him with his arm and held him down by his ribs and pressed from his leg. He testified that Mr. Beckers was pretty strong. S.S. did not say no during the encounter. He struggled just the one time. The whole encounter lasted five to ten minutes. He testified that it would have been difficult for him to get out of the situation, but if he really tried to struggle on his part he could have gotten away.

[51] S.S. testified that very rarely would Mr. Beckers cajole him for sexual favours. S.S. stated that Mr. Beckers would take no for an answer regarding sexual acts.

[52] S.S. was found guilty of impaired and over 80 on September 13, 2012. He has never been the subject of any other criminal charge. He was found in possession of marihuana in the mall and received a warning from the police. He was investigated about an alleged Internet harassment of a young woman, but he said there was not enough evidence for the police to press charges. He denied that he was involved in Internet harassment.

[53] S.S. agreed that he and Mr. Beckers would engage in horseplay. Specifically, he would stand in a doorway to see if Mr. Beckers could move him. He testified that Mr. Beckers could move him pretty easily.

[54] He testified when the hand job occurred he did it to get pot. He “sort of knew” at this point that Mr. Beckers was a “pushover” and a “bitch”.

[55] S.S. admits that back then he was angry at times and he manipulated Mr. Beckers and humiliated him.

[56] It was suggested by counsel that the entire story was made up so that he could get back to Ontario from the United States, this was denied by S.S. He stated that he knew before he told anyone about the alleged sexual incidents when he was coming home. He also said it was not possible for him to come back any earlier.

Testimony of M.S.

[57] M.S. is 55 years old and is the father of S.S. He and his wife have one other child, a daughter aged 21. Mr. S. stated that prior to December 2007 his son was having academic problems, but the situation was not so problematic that he and his wife could not handle the matter.

[58] Starting in December of 2007 he noticed that S.S. started going out early and coming home late. Sometimes he would not attend school, and when he was asked where he was he would not reveal it to his parents. S.S. did not have a curfew, but it was made clear that he needed to get home at a decent time. The understanding was that he would be home by 10:00 p.m. on weekdays and 11:00 p.m. on weekends. M.S. received calls from the school that he was not there at least three times per week.

[59] S.S.’s cell phone was taken from him in December because he ran up a bill of approximately $1,300. S.S. was very upset. S.S. subsequently came home with a state-of-the-art cell phone and when he was asked where he got the phone, S.S. said that he got it himself. M.S. did not take the phone away from S.S., but he does recall saying if he did not get the number, he would take it away from him.

[60] M.S. states that S.S. and his sister were not getting along well at this time. They had conflict because they had difficulty sharing. These conflicts were verbal in nature only.

[61] On January 19, 2008 he did not come home for a period of two nights. He did not call his parents to let them know where he was. M.S. went to places where S.S.’s friends lived to find out where he was. S.S.’s friend Cheryl told him that he was hanging out with someone named Rick Beckers. This is the first time he had heard Mr. Beckers’ name. She gave him an address of […] Street in Burlington, unit […].

[62] M.S. rang the intercom at Mr. Beckers’ home. Mr. Beckers answered. M.S. identified himself as S.S.’s father and asked if he knew S.S.’s whereabouts. Mr. Beckers replied that he did not. M.S. returned home and he and his wife decided to contact the police. Constable Carter attended at their home. Officer Carter eventually reported back that he had gone to Mr. Beckers’ residence and Mr. Beckers did not know where S.S. was located. Within a couple of hours of Officer Carter’s return, S.S. arrived home. S.S. was very angry that they had called the police. His parents asked S.S. how he knew they had called the police and S.S. would not speak with them.

[63] On January 21, 2008, M.S. decided to follow his son in the morning. He saw a car, which he believed to be a Buick, with licence number ADAS 313, pull up at 6:15 a.m. He saw a man that he later knew to be Mr. Beckers get out of the vehicle and purchase a newspaper. S.S. got into the vehicle with him. They drove to Fortinos on New Street and pulled over into the parking lot. He saw Mr. Beckers and S.S. get out of the car and switch positions. For approximately 10 minutes S.S. drove in the parking lot and then they changed seats again. He believes that S.S. spotted him and S.S. and Mr. Beckers took off at a high rate of speed. He decided not to follow them because he did not want to endanger anyone. M.S. contacted the police, but they did not charge Mr. Beckers.

[64] M.S. and his wife decided they needed to speak to Mr. Beckers. They arranged to meet him at his home on January 23, 2008. M.S. described the conversation as civil and said that Mr. Beckers was hospitable. M.S. explained they were very concerned about S.S. spending time with him, especially overnights. Mr. Beckers acknowledged that S.S. had spent overnights with him. Mr. Beckers said S.S. was very helpful because he had a cat that was not well and needed injections and S.S. would do that. Mr. Beckers said that stopping S.S. from befriending him would make S.S. feel like he had done something wrong. M.S. said not to worry about that and that he would deal with S.S. He told Mr. Beckers that he wanted him to stop all communications with S.S. Mr. Beckers agreed with him by nodding his head, but did not say anything. They exchanged phone numbers. During the conversation, M. S. asked Mr. Beckers if he knew where S.S. got the cell phone, and Mr. Beckers said that he did not and that he had nothing to do with the cell phone. He told Mr. Beckers that his son was a minor and was only 14 years old. He cannot remember any reaction from Mr. Beckers to this information.

[65] M S.’s impression was that Mr. Beckers seemed to respond quite well about not communicating with S.S. When they returned home and told S.S. about the meeting, he was very upset.

[66] Mr. S. contacted the police on January 30, 2008. The night before, S.S. had said he was going to the movies with friends and did not return home that evening. The police advised them that there was no answer at Mr. Beckers’ home. S.S. returned home that evening.

[67] Despite the meeting, S.S. and Mr. Beckers continued to have contact. On January 31, 2008 he listened in on a call between S.S. and Mr. Beckers. He testified he could recognize Mr. Beckers’ voice. The night before the call a Halton Regional Police officer had been at their house and mentioned to S.S. that although he could not provide details, it was a good idea to stay away from Mr. Beckers. During the call, Mr. Beckers discussed with S.S. taking legal action against the officer, suing him and getting him fired. Arrangements were made to pick up S.S. by cab and drop him off at the back of the building where he would be met by Mr. Beckers who would pay for the cab. The conversation ended with Mr. Beckers saying, “Okay, sweetheart, I’ll see you soon”. Mr. S. found this term very concerning and was concerned there was some form of sexual abuse was on-going. He asked his son if there was any sexual activity between he and Mr. Beckers, and his son said no.

[68] On another occasion S.S. called and told his father that he had to go in early to work at the bowling alley. M.S. was having lunch at a restaurant on Lakeshore and he saw Mr. Beckers walk by. He followed Mr. Beckers and noted that he went to the Tim Hortons and returned with two cups in a tray. He followed him back to his home and saw S.S. removing snow from the terrace. He yelled at S.S., asking what he was doing, and S.S. ran. M.S. then went to the front door of the building. Mr. Beckers was getting his mail. M.S. pounded on the door and Mr. Beckers opened it. He told him he did not want any more communications with his son and Mr. Beckers kept saying, “Get out of my face”. At one point, he put his foot in the door to block it from closing and Mr. Beckers asked him if it was a threat. M.S. then removed his foot from the door.

[69] On another occasion in March 2008, S.S. told his father that he was going out and when asked where, he responded that he was meeting a friend. M.S. and a friend followed S.S. They saw S.S. and Mr. Beckers sitting in a car in the parking lot in the public library. This was mid afternoon on a weekday. M.S. decided that anger did not work, so he tried to approach the situation nicely. He went over to the car and said to Mr. Beckers that he had nothing against him and did not want anything to happen between them, but he was asking that he leave his son alone. Mr. Beckers agreed. S.S. got in his father’s car and left with him. After that incident, M.S. wrote a letter to Mr. Beckers which was hand delivered to him. Mr. S. testified that Mr. Beckers agreed to honour his request and agreed not to hang out with S.S. any more. Despite this, S.S. and Mr. Beckers continued to spend time together thereafter.

[70] M.S. did not have any proof that S.S. was using drugs during this time period; however he could smell the drugs on him. He would not condone the use of drugs in his home. He did not know if S.S. used alcohol and he would not let him use alcohol in the house. He knew that he was smoking cigarettes because he would smell tobacco on him and he would find cigarette packages in his backpack. He did not condone cigarette smoking and would take cigarette packs from S.S.’s backpack when he found them.

[71] At the time, S.S. was not receiving an allowance. He was getting money for lunches and bus fare. The allowance was cut off because his parents felt he was abusing it and buying cigarettes. Before that, he received an allowance of approximately $15 per week.

[72] M.S. testified that he and his contacted a school in the United States and spoke with a therapist there. They explained the situation and the therapist said she was convinced there was sexual abuse. S.S. started off in a wilderness camp called Second Nature and then attended Gateway School for residential treatment. He subsequently attended another school in the United States. He left Ontario in April of 2008 and returned home in July of 2011. He returned because he had completed his high school and the therapy seemed to work.

[73] In cross-examination, M.S. testified that prior to December of 2007 S.S. did have difficulty following rules such as using his father’s tools and putting them away properly. M.S. testified it was not until high school that he began misbehaving. He started stealing money from his mother when he started high school but before he met Mr. Beckers. M.S. did not know when his son first started smoking cigarettes or marihuana. He had no idea that he was smoking a quarter ounce of marihuana a week. S.S. was taking money from his mother and selling things that they had given him. Mr. S. recalls him taking $80 from his mother and finding a carton of cigarettes in his backpack. When he was confronted, S.S. admitted that he stole the money. He eventually bought a safe.

[74] With respect to pornography, he knows that no pornography was viewed on their television as they do not have cable. He does not know if pornography was viewed on a computer.

Testimony of Richard Beckers

[75] Mr. Beckers testified at trial. In examination in-chief he denied that he dry humped M.S. and that S.S. ever game him a hand job.

[76] He admitted lightly striking S.S. but he testified that it was a consensual part of horseplay. According to Mr. Beckers, he asked S.S. if he was ready and then punched him in the arm. I note that this version of events was not put to S.S. during cross-examination.

[77] In cross-examination Mr. Beckers testified that the day he met S.S. for the first time he happened to have a joint and offered to smoke it with him. He believed at the time that S.S. was 17 or 18 years old based upon his appearance. The two of them went to his condominium, smoked the joint and spent approximately forty minutes together. He denied giving S.S. his phone number on this occasion or telling S.S. if he needed weed in the future to contact him. Mr. Beckers testified that S.S. phoned him on his cell phone about two weeks later. He could not explain how S.S. had obtained his phone number and he never asked S.S. where he got his number.

[78] Throughout his testimony, Mr. Beckers minimized the nature and extent of his relationship with S.S. Other than their first encounter, he denied ever supplying him with marihuana. He testified that on one occasion S.S. stole an Oxycontin pill from him. Mr. Beckers also denied buying cigarettes for S.S. or purchasing fake identification for him.

[79] He testified that he never initiated contact with S.S. and that all times S.S. would first contact him and if he was not available or missed his call or text, only then would he contact S.S. According to Mr. Beckers other than S.S.’s first two visits he never invited S.S. over to his home. Despite the almost daily contact over the course of several months, on all occasions S.S. came over uninvited:

Q. Well actually two times you’ve now invited him: the first time you met him, and the second time he’s there.

A. And that’s it.

Q. Those are the only two times you ever invited him over.

A. That's right.

Q. Okay. So he’s showing up uninvited, but you let him in. Right?

A. Actually, the guard downstairs let him in.

Q. Okay. Well when he shows up at your front door, do you send him away?

A. I didn’t. He would knock on my door early in the morning.

Q. And you let him come in. Correct?

A. I did.

Q. And this was on a daily basis from a period of December of 2007 to April of 2008. Correct?

A. I would say a regular basis, not daily, there’s a day or two that he probably didn’t come over.

Q. Okay. But on a very regular basis, in that time period, he was coming over. Correct?

A. Yes.

Q. And you say that you never invited him, but he would just show up. Right?

A. That's correct.

Q. You never told him, ‘stop showing up at my house, this is inappropriate’. Correct?

A. I didn’t...

Q. And....

A. ...and I exercised poor judgment there, I should have.

Q. And you enjoyed it when he would come and visit you. Correct?

A. I liked his company.

Q. And at no point when he was in your home, did you ever tell him, ‘I think you should leave, you shouldn't be here’.

A. During that period I told S.S. no less than four times, ‘I don't think you should be here’.

Q. Okay. And what was his response?

A. Immediate response was tears, crying, literally begging to stay.

Q. Okay. So that happened four times?

A. Yes.

Q. And he’s coming over on a nearly daily basis or at least a very regular basis for a period of months. Correct?

A. Three months, yes.

Q. So you’d agreed with me that four times in three months is not very often that you’re telling him that he should leave.

A. Not over often, I would agree, yes.

[80] He admitted to arranging for S.S. to acquire a cell phone but said that it was on the condition that S.S. pay him back and he did so. He explained his actions in this regard as follows:

Q. But you agree with that despite the fact that you were of limited means at that time, and you were concerned about it...

A. Mm-hmmm.

Q. ...you go ahead and purchase this child a phone even though you know that he has a history of running up the phone way past what the bill should be. Correct?

A. Yes, I knew all that, and yes, I got him a phone.

Q. Okay. You’re willing to take that chance for him?

A. I did take the chance under the agreement he pay back every penny...

Q. And the question...

A. ...and he did.

Q. ...is why would you do that for somebody that you really don’t have any particular interest in?

A. To get him off my back. To get him to stop asking me if, for a phone.

Q. And you’d agree, as you’ve already agreed, that another way to get him off your back would simply be to say 'no' ‘leave me alone’.

A. That would be another way.

Q. This is a person that you met on the street only a few weeks ago...

A. Mm-hmmm.

Q. ...would you agree?

A. Yeah.

Q. So at that point you don’t know all that much about him. Right?

A. That's correct.

Q. But you’re agreeing to take this risk for him?

A. I did yes.

[81] He admitted that S.S. stayed overnight at his home on two occasions in January of 2008. According to Mr. Beckers, he asked S.S. if his parents were aware that he was staying over and S.S. told him that they were aware. Mr. Beckers took no steps to verify that information.

[82] Mr. Beckers provided the following evidence in regard to his practice of providing rides to S.S.:

Q. And you'd agree that you would also drive S.S. to school.

A. He asked me to drive him to school, so I did.

Q. Okay. And you would do that often, wouldn’t you?

A. I did it about five, six times I guess, six or seven.

Q. Okay. Sure it’s not more than that?

A. Could very well be.

Q. Well, how many times do you think it actually was?

A. Six to maybe eight times I think.

Q. Do you remember saying in your statutory declaration that you drove him to school at least 12 times.

A. It could be 12 times, yes. I know I drove him there a lot.

Q. And that required waking up really early in the morning. Correct?

A. He would phone me early in the morning, yes, and ask me to drive him to school.

Q. And even though you didn’t really care all that much about him, you’d wake up very early in the morning to drive this child to school. Correct?

A. Anybody asking for a drive, I’m willing to drive them.

Q. So anybody that calls you up, early morning hours, 6:00, 7 o’clock in the morning, you just wake up and drive them?

A. I would yes.

Q. That’s what you do?

A. I would yes.

Q. So you don’t think there was anything unusual about you waking up that early to take him to school?

A. Not really.

[83] Mr. Becker also testified about his practice of picking S.S. up across the street from his parents’ home:

Q. And sometimes you’d pick him up at his home. Correct? When you would drive him to school and these other places?

A. I’d pick him up at the parking lot across the street from his house, yes.

Q. Okay. Why did you choose that particular location?

A. He chose it.

Q. And did he tell you why?

A. He just said ‘I don’t want my dad to see you pulling up in his driveway’.

Q. Did you not think that there was anything inappropriate about trying to hide from his father the relationship that he was having with you?

A. I don’t think we were hiding. Um, S.S. just requested ‘meet me at the parking lot’, so that’s where I was. There are newspaper boxes there; I go get newspapers every day, so I grabbed a newspaper, waited in the parking lot.

Q. So you didn’t think that that was hiding, picking him up across the street from his house so that his father wouldn’t see?

A. I don’t consider that hiding, no.

Q. And did you think, did it cross your mind that perhaps his parents might not like it that a 48 year old man is picking up their teenage son and doing so discreetly across the street so that the parents don’t know about it? Did you think that that might....

A. I thought it was odd that he was asking to pick him up across the street, yes.

Q. You thought it was odd?

A. Yeah.

Q. But you did it?

A. I did.

Q. Why is that?

A. Because he just asked me to park across the street, so that’s where I parked, there’s parking available.

[84] Despite the fact that throughout much of his testimony the accused minimized his relationship with S.S., he resisted the peace bond application brought by S.S.’s parents. In so doing he swore and filed two statutory declarations.

Legal Principles

[85] Given that the accused testified, as required by R. v. W.(D.), 1991 CanLII 93 (SCC), [1991] 1 S.C.R. 742, I must apply the following principles:

(a) If I accept Mr. Beckers’ evidence, I must acquit him;

(b) Even if I do not accept Mr. Beckers’ evidence, I must acquit him if I am left in reasonable doubt by it; and

(c) Even if I am not left in doubt by the evidence of Mr. Beckers, I must acquit if I am not convinced beyond a reasonable doubt of Mr. Beckers’ guilt by the evidence I do accept.

[86] The accused is charged with sexual exploitation. At the time of the alleged offence the relevant provisions of the Criminal Code were as follows:

153. (1) Every person commits an offence who is in a position of trust or authority towards a young person, who is a person with whom the young person is in a relationship of dependency or who is in a relationship with a young person that is exploitative of the young person, and who

(a) for a sexual purpose, touches, directly or indirectly, with a part of the body or with an object, any part of the body of the young person; or

(b) for a sexual purpose, invites, counsels or incites a young person to touch, directly or indirectly, with a part of the body or with an object, the body of any person, including the body of the person who so invites, counsels or incites and the body of the young person.

(1.2) A judge may infer that a person is in a relationship with a young person that is exploitative of the young person from the nature and circumstances of the relationship, including

(a) the age of the young person;

(b) the age difference between the person and the young person;

(c) the evolution of the relationship; and

(d) the degree of control or influence by the person over the young person.

(2) In this section, "young person" means a person fourteen years of age or more but under the age of eighteen years.

[87] In the indictment specific reference is made to the accused inviting the complainant to touch his penis. Therefore, the Crown must prove beyond a reasonable doubt each of the following elements of the offence of sexual exploitation: (i) that S.S. was a young person at the time; (ii) that Mr. Beckers invited S.S. to touch his body; (iii) that the touching invited was for a sexual purpose; and (iv) that Mr. Beckers was in a position of trust or authority, or S.S. was in a position of dependency.

[88] In R v. Audet, 1996 CanLII 198 (SCC), [1996] 2 S.C.R. 171 , the court considered the intent of Parliament in enacting the sexual exploitation provisions of the Code:

23 Clearly, Parliament wanted to afford greater protection to young persons. It chose harsher means by criminalizing the activity itself, regardless of whether it is consensual (s. 150.1(1) of the Code), in so far as it involves a person who is in a position or relationship referred to in s. 153(1) with respect to the young person. As Woolridge J. eloquently stated in Hann (No. 2), supra, at p. 36:

The implication from the wording of s. 153 is that notwithstanding the consent, desire or wishes of the young person, it is the adult in the position of trust who has the responsibility to decline having any sexual contact whatsoever with that young person. [Emphasis added.]

It thus seems evident to me that the respondent's argument is incorrect and that the Crown does not have to establish that the accused actually abused his or her position towards or relationship with the young person in order to obtain the young person's consent to the alleged sexual activities.

36 I would add that the definition of the words used by Parliament, like the determination in each case of the nature of the relationship between the young person and the accused, must take into account the purpose and objective pursued by Parliament of protecting the interests of young persons who, due to the nature of their relationships with certain persons, are in a position of vulnerability and weakness in relation to those persons.

[89] The proper characterization of the nature of the relationship between an accused and a young person will be fact specific. In R v. D.E., [2009] O.J. No 1909(S. Ct.), Justice Hill determined that the accused was in a position of trust based on the following analysis:

[45] Did this transpire in the context of an exploitative relationship? On the totality of the evidence, including the factors raised by the defence described at para. 41 supra, I am satisfied beyond a reasonable doubt that the prosecution has established that Mr. D.E. was in a position of trust toward D.P. providing an opportunity for persuasive and influencing factors to affect his vulnerable young cousin. In reaching this conclusion, I rely on a number of circumstantial factors including the following findings:

(1) D.P. was in her early teens – only 14 years of age and not yet in grade 10. She was entering the “difficult teenage years” (S.P.) (Gen. Div.), at para. 40).

(2) The accused, at 32 years of age, was more than twice his cousin’s age and 18 years her senior. Accepting that D.P. had a step- father, with D.P.’s father resident in another city, D.E. fulfilled the role of a significant male adult figure in her life.

(3) As D.P.’s cousin, the accused was trusted by her. She had confidence and faith in D.E. that she would not be harmed or exploited.

(4) D.P.’s mother too, as her custodial parent, entrusted her daughter’s safety and well-being to the accused, a family member, in permitting her to spend more time with him including overnight stays at his home.

(5) Believing her daughter to be relatively immature, Ms. M.B. did not consent, and would not have consented, to her daughter and minor dependant becoming involved in a sexual relationship with the accused.

(6) On the whole of the evidence, including observations of D.P. in her November 2005 videotaped statement to the police, she was an immature teenager with no depth of life experience.

(7) The relationship between D.P. and the accused evolved from D.P. babysitting and playing with her cousins in July 2005 to staying over at the accused’s home and sexual intercourse only days after her aunt and the accused separated.

(8) The accused was aware that D.P. was having troubles with her parents. At this time, of D.P. having some emotional distance from her parents, D.E. began spending more time with her, providing rides, as well as cigarettes and alcohol, acting as a confidante, posing as her father at the body piercing shop, and, in some measure, establishing his home as an alternative to her mother’s home.

(9) D.P.’s account of the first sexual encounter with her cousin, originating in the accused physically touching the teenager by a massage, followed by sexual contact with her “never stopp[ing] it”, demonstrates no real consideration of context, consequences or the future.

[90] Similarly in R v. L.R.L., [2000] N.S. J. No 251 (N.S.C.A.) the trial judge relied on the following facts in determining that a relationship of trust existed:

20. N.R.J.B., born [in 1981], was thirteen or fourteen years old and L.R.L. was thirty when they first met in [name of place changed]. N.R.J.B. did not get along with his mother, he was having difficulties in school and his parents were unable to exercise much control over him. He spent a great deal of time with L.R.L. (the two disagree on how much time) and there were some overnight visits. L.R.L. bought him gifts, including a bicycle, took him to restaurants, flying, on a camping trip, let him drive without a license and let him drink beer. N.R.J.B. testified that L.R.L. treated him well and he looked up to L.R.L.. He acknowledged that he felt L.R.L. had no authority over him.

[91] The Nova Scotia Court of Appeal upheld this finding, concluding (at para. 80) “that the trial judge applied correct legal principles and his findings of fact with respect to the position of trust vis a vis N.R.J.B. are amply supported by evidence as outlined above.”

[92] The accused is also charged with sexual assault and assault. The relevant provisions of the Criminal Code at the time of the alleged offences were as follows:

265. (1) A person commits an assault when

(a) without the consent of another person, he applies force intentionally to that other person, directly or indirectly;

(b) he attempts or threatens, by an act or a gesture, to apply force to another person, if he has, or causes that other person to believe on reasonable grounds that he has, present ability to effect his purpose; or

(c) while openly wearing or carrying a weapon or an imitation thereof, he accosts or impedes another person or begs.

(2) This section applies to all forms of assault, including sexual assault, sexual assault with a weapon, threats to a third party or causing bodily harm and aggravated sexual assault.

[93] The Crown must prove beyond a reasonable doubt each of the following elements of the offence of sexual assault: (i) that Mr. Beckers intentionally applied force to S.S.; (ii) that S.S. did not consent to the force applied by Mr. Beckers; (iii) that Mr. Beckers knew that S.S. did not consent to the force that he applied; and (iv) that the force was applied in circumstances of a sexual nature.

[94] The age of consent for sexual activity was amended on May 1, 2008 to age 14. The activities in issue in the case at bar are alleged to have occurred between December 2007 and April 2008. Thus consent is available to the accused as a defence unless the accused induced the complainant to engage in the activity by abusing a position of trust, power or authority (see section 273.1 (2) c)).

[95] The Crown must prove beyond a reasonable doubt each of the following elements of the offence of assault: (i) that Mr. Beckers intentionally applied force to S.S.; (ii) that S.S. did not consent to the force applied by Mr. Beckers; and (iii) that Mr. Beckers knew that S.S. did not consent to the force that he applied.

Application of Legal Principles

(i) Credibility of the Witnesses

[96] Turning to the W.D. analysis, as noted by our court of Appeal in R. v. Hooing, 2007 ONCA 577, 74 W.C.B. (2d) 676 (Ont. C.A.) steps 1 and 2 of the analysis must be undertaken in the context of all of the conflicting evidence and not in isolation (at para.15):

He also properly told the jury that they were to weigh the evidence cumulatively and not in isolation. A jury does not consider an accused’s version of events in isolation as if the Crown had led no evidence. When the jury is applying the first two prongs of the three-pronged test in W.(D.), they are deciding whether they accept the accused’s version of events or whether it leaves them with a reasonable doubt. Clearly they can only do that by assessing the accused’s evidence and the other evidence that favours the accused in the context of all the evidence. See R. v. Hull, 2006 CanLII 26572 (ON CA), [2006] O.J. No. 3177 at para. 5 (C.A.). The evidence of any witness, including an accused, may be believable standing on its own, but when other evidence is given that is contradictory, or casts doubt on the accuracy or reliability of the witnesses’ evidence, that evidence may no longer be believable, or in the case of an accused, may no longer raise a reasonable doubt.

[97] I found the testimony of Mr. Beckers’ in regard to many key issues to internally inconsistent. For example, Mr. Beckers was subject to detailed cross-examination regarding his knowledge of S.S.’s age:

Q. Now I’d like to ask you some questions about your knowledge of S.S.'s age because yesterday you had mentioned that and referenced that a few times that initially when you met him you thought he was around 17 or 18. Correct?

A. I did, yeah.

Q. And I take it that it was a visual observation that you made of him when you saw him standing on the street. Correct?

A. Yes, that and there was three or four people at my house and one person, I was walking out to the balcony, and one person, I overheard a conversation and I think it was Andrew's cousin asked S.S. ‘how old you were’ and he said, without skipping a beat ‘17’.

Q. Okay. Sorry, I just got a little distracted there. Andrew’s cousin asks S.S. how...

A. Yes.

Q. ...okay, how old S.S. is and S.S. responds ‘I’m 17’.

A. Yes.

Q. And when was that?

A. Um, sometime in December of ’07.

Q. So he didn’t tell that to you, he said that to somebody else.

A. Correct. But I overheard it.

Q. Okay. And after that, did you ever specifically ask him?

A. No.

Q. You never asked him in the months that you knew him, you never asked him his age?

A. Well, he stated he was 17. He looked 17 or 18, he looked older than he was so I didn’t ask.

Q. Okay. So he states it to somebody else. Right?

A. Yes.

Q. Okay. Because if you had known that S.S. was 14 I’m sure you would have taken a different approach to allowing him to come to your house all the time. Is that correct?

A. Absolutely.

Q. And why is that?

A. It’s a little young to be hanging around the house, I think.

Q. What do you mean, what part of it makes it seem a little young to you?

A. Well I mean you know 40's, and he’s a teenager, so its not appropriate behaviour.

Q. And why is it appropriate for a 17 year old to do so?

A. I, I can't compare the two, I, I don’t know how to answer that.

Q. So you can’t answer, so its, why, you can’t answer why it’s okay for a 17 year old teenager, but not a 14 year old.

A. I don’t know how, I don't know how to answer that.

Q. And I'm going to suggest to you sir that the reason that you can’t answer that is because it would have made absolutely zero difference to you whether he was 14 or 17, because you knew he was 14 and you were allowing him to spend time at your residence.

A. I didn’t know his actual age until he told me.

THE COURT: Till he which?

A. He told me, and that was sometime in March I believe.

Q. So he told you his age in March?

A. He admitted lying to me.

Q. Okay. He admitted lying to you?

A. Yes.

Q. What did he say?

A. He says ‘I’ve got something to say’, and I said ‘what’s that’ and he says ‘I’m really, I’m not 15, I’m 14’ and I said ‘well why, why did you lie’ and he says ‘I didn’t think you would allow me into the house’ and I said ‘you’re right’.

Q. So he says to you ‘I’m not 15, I’m 14’.

A. Correct.

Q. That’s in March. Correct?

A. I believe it was March.

Q. And you say ‘why did you lie’?

A. Yes.

Q. He says ‘because I didn’t think you’d let me come here’.

A. That’s what he said, yes.

Q. And what part of March is this?

A. I cannot be specifically sure; I would say middle of March.

Q. Okay. So you started out that portion of your evidence by saying that he admitted to to lying to you, but when did he lie to you?

A. Well he lied about his age at 17, when he said he was 17 to Billy, and I overheard it because I was walking right by.

Q. But he wasn't saying to you, we’ve already established that...

A. Right.

Q. ...right?

A. He was telling Billy that.

Q. So he never lied to you?

A. About his age, I guess not, but he, that’s what, I’m stating what he said.

Q. Okay. And you said that his words were that he admitted to lying and he said ‘I’m not 15, I’m 14’. Correct?

A. Correct.

Q. Would you agree with me that that suggests that at some point he had told you that he was 15?

A. Um, I can't recall him telling me an age before that because he said in front of me he was 17, to Billy.

Q. Why would he say to you sir, in March of 2008, ‘I lied I’m not 15, I’m 14’ if he had never told you that he was 15 in the first place?

A. I don’t know what prompted him to tell me that, but I do remember the conversation.

Q. I’m going to suggest what prompted him to say that to you is that upon your initial meeting with him, within the first few times, he told you that he was 15 years old.

A. He did not.

Q. And it was only a month and a half after you met him that he finally admitted to you that he was instead 14.

A. I still think it was in March that he, we had that conversation.

Q. Okay. But after March, you continued to allow him to come to your home. Is that correct?

A. A few times, yes.

Q. Now, when his parents became so concerned about your involvement with him, they’re showing up at your house, calling you, asking for a meeting, did that maybe raise any red flags to you that perhaps this person was younger than you thought he was?

A. No, it did not.

Q. And in fact, I'm going to suggest to you that when his parents attended at your home to have that meeting they clearly told you ‘he’s 14’.

A. I don’t think they did mention his age.

[98] He later testified that he became aware of S.S.’s true age approximately March 10, 2008 when S.S. went to apply for a job at Burlington Bowl.

[99] It is evident on the issue of his knowledge of S.S.’s age that the accused’s evidence was internally inconsistent. His statement that he believed S.S. to be 17 based on what he had overheard and his statement that S.S. did not tell him directly his age is not consistent with his statement that S.S. previously told him he lied when he told him that he was 15.

[100] Another, albeit more minor, area of cross-examination which highlights inconsistencies in his evidence is in regard to whether he called S.S. by a nickname. When asked whether he ever called S.S. by a nickname, Mr. Beckers testified:

Q. And would you agree with me that you’ve called him ‘sweetheart’ in the past.

A. I have not called him sweetheart.

Q. You’ve never called him ‘sweetheart’?

A. No.

Q. And again, I’m going to refer to your declaration that you gave.

A. I’ve used that word, but I haven’t called him ‘sweetheart’.

Q. Have you used that word to him?

A. Can I explain that?

Q. Sure.

A. He called me again um, 6:30 in the morning, it was very early in the morning; again, he woke me up. He was asking me for to put something on my credit card and I forget what it was, and I was saying 'no I am not going to put anything on my credit card, I’m not going to use my credit card’ and he kept going, ‘why, why not, why not, why not’ and I said ‘look it S.S. my credit card is maxed out, there’s service charges and interest charges and you know if I don’t pay the bill down you know the charges are crazy’. So here I am, I’m not even awake yet and I’m trying to explain to S.S. service charges and and all the charges that I have on my credit card, and I did say ‘listen’ and I didn’t use it as a term of affection, I was saying 'listen sweetheart' and I didn’t even realize I said it at the time, ‘no I’m not going to put nothing on my credit card’. Sort of like Humphrey Bogart, it’s like.

Q. Humphrey Bogart?

A. Yeah, I didn’t use it as a term of affection.

Q. Okay.

A. I use it to deny him something.

Q. Okay. But you used the term. Correct?

A. I did and today I don’t even know why, but I wasn’t called him sweetheart.

Q. Well, you said ‘listen sweetheart’ and you were referring to him...

A. Yeah.

Q. ...would you agree with me?

A. Yes, and I said ‘no I’m not going to put anything on my credit card’...

[101] This testimony is almost incomprehensible. It is evident that Mr. Beckers recognized after denying that he had used a nickname that he was potentially contradicting his statutory declaration and thus he was forced to come up with an explanation of sorts on the fly.

[102] I also prefer the evidence of the complainant to the accused regarding whether the accused purchased marihuana for the complainant. It is not believable to me that the complainant as a student who was employed for only a part of the relationship had the financial ability to continue purchasing marihuana and cigarettes.

[103] On the issue of whether he was in position of trust in relation to S.S., Mr. Beckers’ testimony at trial was at odds with what he swore in the statutory declaration and what he had told the police. When cross-examined on the point he was unable to reconcile these contradictory positions:

Q. Okay. Now, we’ve heard a lot about at this trial about you being a father figure to S.S. and that his view was that you were a father figure. What was your view with respect to that?

A. Just friends.

Q. No father figure?

A. No.

Q. So you felt that you had no position of trust whatsoever?

A. No.

Q. Okay. Well with your poor memory, have you forgotten the times that you indicated that you were in fact a father figure to S.S.?

A. I don't recall that, but....

Q. Okay. Well let’s see if we can refresh your memory.

A. Okay.

Q. Page 31 of your video statement to police. Half way down the page. Are you there?

A. Thirty-one, yeah.

Q. Okay. Officer Zafiridis says to you, “Okay. You were just friends....” – or actually a little higher than that. “How would you describe your relationship between you and him?” Talking about S.S., and you say, “Again I should shut my mouth.” Officer Zafiridis, “Okay. Were you just friends?” You, “Yeah”. Officer Zafiridis, “Nothing further than that?” You, “Nothing further than that, he looked up to me.” Officer Zafiridis, “Okay.” You, “As a, like a, like a father figure.”

A. Yeah I was using example, I don't recall it but its again there, so I must have said it.

Q. Let me just continue.

A. Okay.

Q. Officer Zafiridis, “Why do you think he would do that? And you said, “Because he told me he said I’d rather live here than live with my dad and I said ‘why is that’ ‘well why is that’ and he says ‘well he’s boring, he’s a plain old idiot’, words of that nature.” Officer Zafiridis, on page 32, “Mm-hmmm. Did he talk to you, did he talk to much about his relationship with his father?” You said, “Yeah he did.” So, I’ll stop there. Actually I just go one further, Officer Zafiridis says “Yeah how would you explain his relationship with his father?” And you say, “He didn’t like it.” You’d agree with me that on page 31 of that transcript the Officer asks you what your relationship is with S.S. and you say ‘friends nothing further than that, he looked up to me as like a father figure’.

A. That’s what it says, but I don't recall saying it.

Q. Okay. Are you denying that you said that?

A. No.

Q. Okay. So you agree that its, if it’s in the transcript you said that?

A. I said it.

Q. Today, you’ve just finished saying we were just friends, no father figure whatsoever.

A. I don’t consider myself to be nor have I ever considered myself to be a father figure to S.S....

Q. Well, you’d agree with me...

A. ...in my mind.

Q. ...that as of April 25^th, 2009, which was closer to this incident...

A. Right.

Q. ...than now, you did think of yourself as a father figure.

A. That’s what it says.

Q. But you understood that S.S. thought of you as a father figure and looked up to you. Correct?

A. He looked up to me.

Q. And you knew that. Correct?

A. S.S. told me he looked up to me.

Q. Right, and he told you that he looked at you like a father figure.

A. He didn’t say ‘father figure’ he said I treat him better than his father.

Q. But your understanding of your position to S.S. is that he looks up to you and he treats you, or looks at your like a father figure.

A. He told me he looked up to me; he didn’t mention the father figure thing.

Q. Okay. So you came up with that concept on your own?

A. That’s what it says.

Q. And you agree that if that’s what it says, that’s what you felt at that time. Correct?

A. That’s what I must have said, yeah, during the police interview.

THE COURT: That’s not the question. Can you answer the question please?

A. I must have felt like that at the time.

Q. And I’m going to suggest to you that you certainly did feel like that at the time because that wasn’t the first time that you ever expressed this notion that you were a, a father figure or teacher or mentor to S.S.

A. Correct.

Q. I’m going to ask you to look at the statutory declaration that you had provided to the Crown's office. I’m going to take you to paragraph 16 of the lengthy declaration, the first one. Page 6, which is paragraph 16. Are you there?

A. Page 6?

Q. Page 6 which is paragraph 16, but it starts on page 5, so I’m going to direct you on page 6 to about mid way through the page. Do you see where it’s italicized and it says the deponent stated "I wish S.S. would do that kind of work for us at home."

A. Yes.

Q. Okay. So I’m going to ask you to follow along with me after that. “The deponent’s wife asked if I thought I was a mentor to S.S.” and you’re referencing the time that they came to visit you.

A. Right.

Q. “I answered in the affirmative. I consider myself as a mentor, big brother, and teacher to S.S.. S.S. has told me on several occasions that I am like a big brother to him. Friends of mine have stated to me that S.S. really admires me and S.S. has stated the same to the deponent on several occasions.”

A. That’s all true, yes.

Q. Everything that you swore in that declaration was true. Is that correct?

A. Yes.

Q. At the time of your relationship with S.S., you considered yourself to be a mentor, a big brother and a teacher. Would you agree?

A. I was getting him, I would because I was getting him jobs. You know S.S. asked a million questions, he, the cell phone issue, etcetera, etcetera.

Q. Right, and you were always there to lend him a helping hand. Correct?

A. I did help him out with the cell phone, and....

Q. Right, and you would agree with me that a brother, a teacher, a mentor; those are people that hold a position of trust with a young person. Would you agree with that?

A. I wouldn’t necessarily say that, no. He was more like a friend.

Q. A friend that you were mentoring. Correct?

A. He asked me a million questions about my background, about my education and....

Q. And that wasn’t the question, sir. Would you agree it was a friend that you were mentoring?

A. Yes.

Q. And actually I’m going to take you back to paragraph 33 of the declaration.

THE COURT: Thirty three?

Q. Thirty three, which is on page 16, I’m going to read that paragraph "That some time during the month of March 2008 I had asked S.S. why he liked visiting me at my residence. He did not directly respond. After he left I found on my coffee table a sheet paper in his own handwriting, the response to that question. On one side he wrote, ‘I like going to Rick's because he treats me more like a son then my dad does. He helped me get a job, he’s helping with my homework, he feeds me, me and him are good friends.’ ‘On the other side he wrote ‘I don’t like going home because I feel threatened by my dad, its always arguing in the house, I have no freedom, I’m always getting hit by my sister, my parents never understand’. And then you say “I possess this rendering as documentary evidence." Correct?

A. Yes.

Q. So you still have that note somewhere?

A. I gave it to Mr. Webster.

Q. Okay. And you'd agree that what you said in paragraph 33 was true. Right?

A. Yeah.

Q. He gave you that note. Correct?

A. Yes, he left it.

Q. The note said “Rick”, “I like going to Rick’s because he treats me more like a son then my dad does.”

A. That’s what he wrote.

Q. So you understood at least as of early March or the month of March in 2008 that he considered you like a father.

A. He, he says he – me and him are good friends, so I can consider him a friend, he was considering me as a friend.

Q. Well, that’s great, but I’m asking you about the earlier portion of that where you say that Rick treats me more like a son then my dad does. You knew that he looked at your like a father. Correct?

A. Well, I didn’t look at it that way, but that’s what he wrote and that’s what I read, and that’s what I wrote here and that’s what it says.

Q. So you understood that that was his position, that he was looking at you like a father figure.

A. That’s what he wrote, yes.

Q. And you understood that. Correct?

A. Yes.

[104] In addition to the foregoing, Mr. Beckers admitted to misleading the police when he told them that he could not remember if he and S.S. smoke marihuana together. I also note that Mr. Beckers conceded that he has a bad memory and that his memory may have been adversely impacted by his use of marihuana.

[105] In contrast to the testimony of the accused, I found S.S. to a very credible, reasonable and honest witness. S.S. gave his testimony in a straightforward manner. He answered questions directly and was not evasive.

[106] He provided detailed evidence regarding the events which occurred over four years ago when he was 14 years of age. I also found his evidence to be internally consistent and he was not shaken from his position on cross-examination.

[107] The defence argued that S.S. had a motive to fabricate his evidence. Counsel submitted that the complainant fabricated the alleged abuse as a way of securing an earlier return to Ontario. There is, of course, no burden on the defence to establish a motive to fabricate. However, in this case the evidence contradicts any such motive. The information regarding the alleged activities with Mr. Beckers was revealed to a counsellor at a point when the complaint knew when he was coming home and he did not come home for another two years. Moreover, S.S.’s evidence was bolstered by his father’s testimony in this regard, as his father testified that he is still not aware of all of the details regarding the alleged abuse.

[108] I found M.S. to be a very credible witness. He struck me as being a good father who was concerned about the well being of his child. His testimony was logical and consistent and I believed him when he described the steps he took to try to end the relationship between his son and Mr. Beckers, starting with discussions with him and escalating to the point where he obtained a peace bond.

[109] I accept that M.S. told Mr. Beckers the true age of his son. It is unfathomable that he would not raise this issue with Mr. Beckers in a conversation regarding his concerns about their relationship. I also accept that he told Mr. Beckers that he wanted him to cease contact with his son.

[110] In his submissions defence counsel noted the delay in the disclosure of the alleged sexual activities by the complainant. In considering this argument regard should be had to the comments of Justice Major in R. v. D.D., 2000 SCC 43, [2000] 2 S.C.R. 275, at para. 65:

A trial judge should recognize and so instruct a jury that there is no inviolable rule on how people who are the victims of trauma like a sexual assault will behave. Some will make an immediate complaint, some will delay in disclosing the abuse, while some will never disclose the abuse. Reasons for delay are many and at least include embarrassment, fear, guilt, or a lack of understanding and knowledge. In assessing the credibility of a complainant, the timing of the complaint is simply one circumstance to consider in the factual mosaic of a particular case. A delay in disclosure, standing alone, will never give rise to an adverse inference against the credibility of the complainant.

[111] In the case at bar the delay in reporting does not adversely impact on the complainant’s credibility. The information was disclosed by the complaint after he had an opportunity to obtain counseling and the revelations were made to his counselor. It is perfectly understandable that the complainant would require counseling before he was ready to reveal the information regarding the accused’s alleged activities.

[112] I conclude that I do not believe the evidence of Mr. Beckers. He was an incredible and mendacious witness. He was inconsistent and evasive in providing his testimony and regularly engaged in a tactic of avoiding the question asked and telling the court what he wanted the court to hear.

[113] The fact that I do not believe the evidence of the accused does end the analysis. The next issue is whether, despite the fact that I do not believe Mr. Beckers, I am left in reasonable doubt by his testimony. Justice Binnie discussed the second stage of the analysis in R. v. S.(J.H.), 2008 SCC 30, 231 C.C.C.(3d) 302:

As to the second question, some jurors may wonder how, if they believe none of the evidence of the accused, such rejected evidence may nevertheless of itself raise a reasonable doubt. Of course, some elements of the evidence of an accused may raise a reasonable doubt, even though the bulk of it is rejected. Equally, the jury may simply conclude that they do not know whether to believe the accused’s testimony or not. In either circumstance the accused is entitled to an acquittal.

[114] I conclude that the accused’ evidence does not leave me in reasonable doubt. This is not a case where despite not believing the accused I am unable to determine where the truth of the matter lies nor is it a situation where the rejected evidence of itself raises a reasonable doubt. For the reasons set forth below, I am satisfied beyond a reasonable doubt of Mr. Beckers’ guilt on all charges by the evidence that I do accept.

(ii) Sexual Exploitation

[115] The charge of sexual exploitation relates to the hand job that S.S. testified that he gave Mr. Beckers.

[116] There is no issue that S.S. was young person at the time of the alleged activities. That element of the offence has been established beyond a reasonable doubt.

[117] Section 153 (1) (b) of the Code refers to situations where the accused “invites, counsels or incites”. The term “counsel” is defined in section 22(3) of the Code to include s to “procure, solicit or incite”. In the indictment the Crown alleges that the accused invited the sexual touching.

[118] The defence argues that the suggestion to provide the hand job was made by the complaint and therefore the requisite invitation was not present. I reject this argument.

[119] In R. v. Root, 2008 ONCA 869, 241 C.C.C. (3d) 125, leave to appeal to S.C.C. refused, [2009] S.C.C.A. No. 282, involving conspiracy charges, Justice Watt, held at paras. 85 and 86 that counselling by procuring or inciting does not require that the inciter originate or initiate the transaction. A person may be convicted of incitement, thus counselling, notwithstanding that the plan originated with the party alleged to have been incited. The crime of counselling is complete when the solicitation or incitement occurs, even if the incitee rejects the solicitation or merely feigns his or her assent.

[120] In my view the reasoning in Root applies equally to an allegation of invitation. This is especially true when the context of the alleged activity is considered. In interpreting whether an invitation was made, I am entitled to draw inferences from surrounding conduct, including the history of the relationship. In R. v. Legare, 2008 ABCA 138:

Nonetheless, the mens rea required must involve knowing communication for a sexual purpose, and either present intent that the child receive the communication as an invitation, incitement or counselling to do that physical conduct, or a present state of mind that the accused knew the substantial and unjustified risk that the child would receive the communication as being an invitation, incitement or counselling to do the physical conduct. Parliament was presumably conscious of the fact that a process of inviting, counselling or inciting a child may take time and may take different communications of varying forms. From the evidence, a trier of fact may infer that the requisite mens rea is present even if that state of mind happens to be accompanied by a longer view as to when any physical conduct might occur or by imprecision as to what form it might take or as to who might be involved.

[121] The complainant testified that he understood that this was something that the accused wanted based on earlier sexual discussions they had wherein the accused told him about his previous sexual experiences and made sexualized comments about young males. Moreover, this contact occurred in the context of pattern whereby the complainant would perform a sexual act (i.e. masturbation) in exchange for drugs and cigarettes. The fact that this event was part of this pattern is confirmed by the fact that before the activity occurred the complainant requested marihuana and the accused said no. The offer to perform the act was made by the complainant in order to obtain the marihuana and was based on the previously established pattern. Upon its completion the accused provided the complainant with money for drugs and the two of them smoked marihuana together.

[122] I am satisfied beyond a reasonable doubt that even though the accused did not raise with the complainant the idea that he should provide him a hand job on that date, the accused through his previous conduct invited the complainant to touch his penis and that this invitation, to touch was for a sexual purpose.

[123] The final consideration is whether Mr. Beckers was in a position of trust or authority, or S.S. was in a position of dependency. The Crown submits that all three parts of this element have been established. However, the Crown relies particularly on trust.

[124] The notion of trust in this regard was considered by Justice Blair in R v. P.S. [1993] O.J. No.704 (G.D.):

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

37 I take a "position of trust" to be somewhat different than a "position of authority". The latter invokes notions of power and the ability to hold in one's hands the future or destiny of the person who is the object of the exercise of the authority: see, R. v. Kyle (1991), 1991 CanLII 11758 (ON CA), 68 C.C.C. (3d) 286 (Ont. C.A.). A position of trust may, but need not necessarily, incorporate those characteristics. It is founded on notions of safety and confidence and reliability that the special nature of the relationship will not be breached.

[125] I find on the evidence that the Crown has established beyond a reasonable doubt that the accused was in a position of trust with respect to the complainant. In support of my conclusion, I rely upon the following facts and findings:

(i) The accused was 48 years old and the complainant was 14;

(ii) The complainant was vulnerable as he was experiencing difficulties at home with his parents and sister;

(iii) The accused exploited those familial difficulties by denigrating S.S.’s parents and calling them derogatory names;

(iv) The accused provided the complainant with a place that he could stay where he could do things that he could not do at home (e.g. smoke marihuana, watch pornography and smoke cigarettes). I accept S.S.’s evidence that the accused supplied him with marihuana and cigarettes during the course of their relationship;

(v) The accused purchased an IPod for the complainant. He either facilitated the acquisition of a new phone for S.S. (according to the accused) or he acquired the phone and paid for its use (according to S.S.);

(vi) The accused encouraged and facilitated the on-going relationship by providing rides to the complainant, paying for cab fare and picking the accused up across from his parents’ home so they would not be aware that the accused was spending time with their son;

(vii) The accused permitted the complainant to drive his vehicle when he was underage and unlicensed;

(viii) The accused provided benefits to S.S. in exchange for S.S.’s agreement to continue to masturbate for him;

(ix) The accused in his statutory declaration stated that he considered himself to be a “mentor, big brother, and teacher to S.S.”. He went on to state “S.S. has told me on several occasions that I am like a big brother to him. Friends of mine have stated to me that S.S. really admires me and S.S. has stated the same to the deponent on several occasions”;

(x) The accused sexualized S.S. by making reference to his previous sexual experiences and making sexual comments regarding other young men;

(xi) The accused had been told repeatedly by M.S. to end his relationship with his son and the accused disregarded those requests and continued to see S.S.;

(xii) The accused in his statement to the police told them that S.S. looked up to him as “a father figure”; and

(xiii) The accused in his testimony at trial initially stated that he and S.S. were just friends but later admitted that he understood that S.S. looked at him as a father figure.

[126] The fact the complainant testified that he did not consider the accused to be an authority figure in no way derogates from my finding. It is true that the complainant did not view the accused as an authority figure. But this is precisely the type of relationship the accused was fostering with the child. He allowed him to smoke and drink and do a myriad of things that he could not do at home with his parents so that he would gain the complainant’s trust. In fact, the complainant testified that what he was looking for in a father was the freedom to smoke marihuana and cigarettes and do what he wanted to do.

[127] I have no hesitation in finding that the accused groomed the complainant by sowing discontent with his parents, providing him with gifts and freedom that he did not have at home, all in order to exploit the complainant for his own sexual gratification.

[128] The defence argued that this was not an exploitative relationship. Counsel submitted that even accepting the evidence of the complainant, at most this was a co-dependency relationship and, to the extent that he engaged in any sexual conduct, the complainant did so of his own volition to obtain drugs and cigarettes. I reject this submission. It ignores the fact that the development of a quid pro quo relationship whereby sexual activities would be exchanged for drugs or other benefits was precisely the type of relationship which the accused fostered from the beginning of his interaction with the complainant. It is hard to imagine an exploitive relationship where the victim could be said to receive no benefit whatsoever. I find that the fact that S.S. received some benefit does not detract from the exploitive nature of the relationship.

[129] The Crown has proven all of the elements of the offence beyond a reasonable doubt and I find the accused guilty of sexual exploitation.

(iii) Sexual Assault

[130] The Crown submits that the dry humping incident amounts to a sexual assault. The defence denies that the incident occurred and submits that S.S. provided inconsistent evidence regarding whether he said “no” to the accused during the incident.

[131] When asked at trial in examination in-chief whether there were discussions while the act occurred the complainant answered “not that I can remember”. In cross-examination, when asked whether he said no he answered “I don’t believe so”. He later agreed with defence counsel’s suggestion that he really did not know if he said no. Later still in his cross-examination he said that he did not say no.

[132] This evidence does contrast with what he said at the preliminary hearing. When questioned first about the issue in his examination in-chief at the preliminary hearing he testified that he did not say anything while the incident occurred. Later in his evidence he said that he “asked him to stop”.

[133] While I accept that there is some confusion in his testimony on the point, I am not satisfied that there is in fact an inconsistency in the accused’s evidence. At the preliminary inquiry and at trial he clarified his answers explaining that while he never actually told the accused to stop he felt that he made his opposition to the conduct known to the accused by trying to get up while Mr. Beckers was on top of him. I do not consider this to be a clear inconsistency.

[134] In any event, we do not require the victim of a sexual assault to have absolute recall about all the specifics of an alleged sexual assault, especially in a case like this where the events occurred over four years ago when the complainant was 14 years old (see R. v. W.(R.), 1992 CanLII 56 (SCC), [1992] 2S.C.R. 122, at page 134). To the extent that there is any inconsistency it is minor in nature. It does not detract from my conclusion that the complainant was a very credible witness.

[135] I am satisfied beyond a reasonable doubt that the accused applied force to S.S.

[136] I am also satisfied beyond a reasonable doubt that S.S. did not consent to the force applied by Mr. Beckers and that Mr. Beckers knew that S.S. did not consent to the force applied. The complainant tried to get himself out of the situation but was not successful. There was nothing in the circumstances of the situation that leads me to conclude that the complainant voluntarily agreed to take part in the activity.

[137] In any event, I am satisfied beyond a reasonable doubt that any consent that could have been obtained would be vitiated because it would have obtained by virtue of the accused abusing his position of trust as described above.

[138] Finally there can be no issue that this dry humping incident was a situation where force was applied in circumstances of a sexual nature.

[139] The Crown has established all of the elements of the offence beyond a reasonable doubt. Accordingly, I find the accused guilty of sexual assault.

(iv) Assault

[140] The Crown alleges that the accused committed an assault on the complainant when he struck him on the arm.

[141] The accused testified that he was called into the kitchen at his condominium and was challenged by the complainant. He said he put his hand on the accused’s shoulder and asked him if he was ready and then he tapped the complainant. Mr. Beckers characterized this conduct as consensual horseplay.

[142] This factual scenario was not presented to the complainant when he testified. The Crown submits that the failure to do so was a violation of the rule in Browne and Dunn (1893), 1893 CanLII 65 (FOREP), 6 R. 67 (H.L.). The rule is discretionary and in the criminal context is subject to the right of an accused to make full answer and defence. The rule can be utilized to draw an adverse inference regarding a witnesses testimony, including the evidence of the accused (see R. v. Giroux, 2006 CanLII 10736 (ON CA), [2006] O.J. No. 1375 (C.A.) and R. v. M.F., 2010 ONSC 4018, [2010] O.J. No.3578 (Sup. Ct.), affirmed 2012 ONCA 807).

[143] I find that the failure to put to the complainant this version of events was violation of the rule in Browne v. Dunn. I am entitled to draw an adverse inference and I do so. The inference that I draw is that the accused is not being truthful about the event and that this version was not put to the complainant because he would have denied it.

[144] In any event, even if this was not a violation of the rule in Browne v. Dunn, I do not believe the accused in this regard. His story was short on specifics and was not credible.

[145] In contrast, I found the testimony of the complainant to be entirely believable and consistent with the nature of the relationship between the accused and the complainant. It is clear to me that when the accused believed that his relationship with S.S. was being threatened, he sometimes reacted with anger. This was certainly his response to Officer Whitehouse warning S.S. to stay away from him and his response when the complainant’s parents told S.S. to end the relationship.

[146] S.S.’s testimony that the accused apologized after the incident and then bought him cigarettes is an apparent effort to placate him, is also consistent with the accused’s pattern of using drugs and cigarettes to control S.S.

[147] I am satisfied beyond a reasonable doubt that the accused intentionally struck the complainant with a closed fist, that the complaint did not consent to being struck and that the accused knew that he did not consent. Accordingly, I find the accused guilty of assault.

Disposition

[148] I find the accused guilty on all counts.

HOURIGAN J.

Released: November 26, 2012

COURT FILE NO.: 93/11

DATE: 20121126

ONTARIO

SUPERIOR COURT OF JUSTICE

HER MAJESTY THE QUEEN

– and –

RICHARD BECKERS

REASONS FOR JUDGMENT

HOURIGAN J.

Released: November 26, 2012