COURT FILE NO.: CR-10-50000192
WARNING
An order has been made in this proceeding, pursuant to s. 486.4(1) of the Criminal Code, directing that the identity of the complainant and any information that could disclose such identity shall not be published in any document or broadcast in any way.
ONTARIO
SUPERIOR COURT OF JUSTICE
BETWEEN:
HER MAJESTY THE QUEEN
– and –
Aston Howell
Ms. S. Henderson, for the Crown
Mr. C. Bilgen, for the Defendant
HEARD: December 19 - 21, 2011
corrick j.
Introduction
1Aston Howell was charged with one count of sexual assault, contrary to s. 271(1)(a) of the Criminal Code, and one count of sexual exploitation, contrary to s. 153(1.1)(a) of the Criminal Code. Mr. Howell pleaded not guilty to both charges, and was tried by me without a jury.
2Briefly, the prosecution alleges that between August 1 and December 31, 2002, Mr. Howell committed various sexual assaults, including attempted sexual intercourse, against C.C., a sixteen-year-old girl, who was taken by her mother to see Mr. Howell as a spiritual healer. Mr. Howell denies assaulting Ms. C.C..
The Crown’s Evidence
C.C.
3C.C., now 25 years old, testified that, in 2002, she was a grade 11 student living with her mother and sisters. Sometime after she turned 16 on […], 2002, C.C.’s mother, who was a religious woman, took C.C. to Mr. Howell’s apartment to meet him. C.C.’s mother told her that Mr. Howell could help C.C. improve her grades at school, help her get up in the morning, help restore her parent’s marriage, and bring C.C.’s father back to the family. At this meeting, which C.C.’s mother attended, Mr. Howell told C.C. that she would have a certain number of ritual baths. Before the meeting ended, Mr. Howell and C.C.’s mother arranged the next visit. C.C. ultimately had three ritual baths in Mr. Howell’s apartment. C.C.’s mother paid Mr. Howell for his services.
4C.C.’s mother had taken her to other people for ritual baths prior to Mr. Howell. C.C. testified that her mother was diagnosed with schizophrenia in 2007.
5A few days or a week later, C.C. and her mother returned to Mr. Howell’s apartment. While C.C.’s mother sat in the living room, C.C. went into the bathroom, removed her clothing and stood in the dry bathtub. There was a basin in the bathtub that, C.C. testified, contained water, alcohol, coins, chicken parts and chicken blood. According to C.C., Mr. Howell washed her entire body with a washcloth, wet with the contents of the basin. Following the bath, Mr. Howell instructed C.C. not to dry herself, but to get dressed while she was wet. Mr. Howell left the bathroom while C.C. dressed. After she dressed, C.C. left the apartment with her mother.
6The second bath happened two or three weeks later. C.C. testified that she had started school by then. Her mother accompanied her to Mr. Howell’s apartment, but according to C.C., was asked to leave by Mr. Howell. Once C.C.’s mother left, Mr. Howell gave C.C. another ritual bath with the same mixture of water, chicken parts, chicken blood, alcohol and coins. C.C. stepped out of the bathtub when the bath was over, and while she was wet, Mr. Howell rubbed her entire body with a brownish coloured oily substance. He then circled her body, starting at her head, with lit candles. One of the candles burnt her pubic hair. Mr. Howell apologized for that. He told C.C. to get dressed. C.C.’s mother returned to the apartment and she and Mr. Howell arranged the next visit.
7The third bath took place a few weeks later. Again, C.C.’s mother took her to Mr. Howell’s apartment and left after Mr. Howell asked her to do so. Mr. Howell gave C.C. the same kind of ritual bath, rubbed her body with an oily substance and circled her with lit candles.
8C.C. testified that after the second or third bath, (she was unable to recall which), Mr. Howell scooped up what remained in the basin into a plastic bag. He and C.C. went out behind his apartment building to a wooded area where he instructed C.C. to throw the bag into a creek in the direction that the water was flowing while repeating certain words. They walked in a circle three times repeating these words. They then returned to Mr. Howell’s apartment.
9C.C. also testified that after the second or third bath, (she was unable to recall which), she and Mr. Howell were sitting in his living room. He was directing her attention to his front door and pointing something out to her. She told him she could not see it. He directed her to come closer to him, which she did. At that point, he took C.C.’s hand and forced her to sit in his lap. He put his tongue in her ear, and began fondling her breasts. This activity ceased when her mother returned to the apartment.
10On another occasion, C.C. testified that her mother took her to Mr. Howell’s apartment and Mr. Howell instructed her mother to return in exactly one hour. On that occasion, C.C. testified that Mr. Howell offered her alcohol and candy. He kissed her on the lips, put his tongue in her ear and fondled her breasts. She removed her pants and underwear on his instructions, and he performed oral sex on her. C.C. believed that these events occurred on an occasion other than one when she had a ritual bath.
11Between visits to Mr. Howell’s apartment, Mr. Howell called C.C.’s house to speak to her and her sisters on the telephone. He also came to C.C.’s house to meet her family. During one of his telephone conversations with C.C., Mr. Howell told her he needed to christen her.
12C.C.’s final visit to Mr. Howell’s apartment occurred in November 2002. C.C. testified that she called Mr. Howell after she was dismissed early from school. Mr. Howell picked her up at school, bought her food to eat, and drove her to his apartment. After she ate, C.C. was sitting on the couch. Mr. Howell began kissing her on the lips. He put his tongue in her ear. He told her to lift up her top, and he began sucking on her breasts. He told C.C. to remove her pants and underwear, which she did. He performed oral sex on her. She was sitting on the couch, and Mr. Howell was kneeling down in front of her. C.C. had her legs over his shoulders. Mr. Howell undid the zipper of his pants and instructed C.C. to insert his penis into her vagina. She asked him to use a condom. He reached above the couch to a box of condoms, and put one on. He then tried to insert his penis into her vagina. She told him it hurt her, and he stopped. He then rubbed his penis outside of her vagina until he ejaculated. C.C. got dressed. Mr. Howell offered her alcohol and candy and then drove her home. She did not see him again.
13C.C. testified that she did not want to have sexual intercourse with Mr. Howell, nor did she want to engage in sexual touching or oral sex with him. She never told him she did not want to engage in any of this behaviour with him. She did not tell her mother about any of Mr. Howell’s sexual advances, nor did she tell her mother that she did not want to see Mr. Howell. She testified that she continued to go to Mr. Howell for the ritual baths because her mother said it was good for her.
14When asked why she did not tell Mr. Howell that she did not want to engage in sexual activity with him, C.C. testified that she was afraid he would harm her if she did not do as he instructed. She believed that he had spiritual powers and that he could harm her whether she was in his presence or not. Mr. Howell had a crystal ball, and he told C.C. that he could see her through it and that he knew where she was and what she was doing. He instructed her to keep in touch with him. This was the reason C.C. called him the day she was dismissed from school early. C.C. testified that Mr. Howell told her that he was the only person who could protect her and keep her safe, and she came to believe that.
15Two to four weeks after C.C.’s last visit with Mr. Howell, C.C.’s mother introduced her to another spiritualist, Celine. C.C. told Celine that Mr. Howell attempted to have intercourse with her. C.C. then told her mother and her older sisters. Celine prescribed baths for C.C. to deliver her from Mr. Howell’s spirits, and lead C.C. through bible readings and prayers. Celine advised C.C.’s mother that C.C. should no longer live with her because of the presence of bad spirits. As a result, at the beginning of the school year in September, C.C.’s mother took her to a youth shelter where she lived while in grade 12. C.C. never lived with her mother again.
16On May 11, 2007, C.C. reported what had happened with Mr. Howell to the police. C.C. testified that she did so at the suggestion of one of her older sisters, N.. C.C. testified that she went to the police to have closure, obtain justice, and help to ensure that Mr. Howell did not assault other girls. She testified that she did not report these incidents to the police before 2007 because her life was very unstable between 2003 and 2007. Throughout that time, she lived in two different shelters, with one aunt in the United States, and with another aunt in Toronto.
17In 2009, C.C. met with a social worker who told her about the Criminal Injuries Compensation Board. She made a claim. C.C. testified that no decision has been made about her claim. The Board is awaiting the outcome of Mr. Howell’s criminal trial.
18C.C. was cross-examined about the video-taped statement she gave to police on May 11, 2007. In this statement, C.C. told police about the attempted intercourse some time shortly after the interview appeared to have concluded. C.C. told police three times that the last incident with Mr. Howell was when he performed oral sex on her. There is a break at the end of the interview, following which C.C. tells police, “there is one more thing I should add. He also tried to penetrate me with his penis.” C.C. did not tell the police about asking Mr. Howell to use a condom, or that Mr. Howell ejaculated into the condom. C.C. explained that she only gave the police a general outline of what happened with Mr. Howell. She felt uncomfortable and embarrassed telling them the details. The interview with the police had not concluded when she disclosed the attempted intercourse. The videotape was still running.
19After C.C. reported the incidents to the police, she viewed a photo line up. She selected a photograph of Mr. Howell as a photograph of the man who had assaulted her.
N.C.
20C.C.’s older sister, N.C., testified that her mother also took her to Mr. Howell’s apartment. Initially, N.C. told her mother she did not want to go, but then agreed when her mother said it would bring her father back to the family. N.C. saw Mr. Howell twice. She was 17 years old at the time. She went once with her mother around Thanksgiving. She remembers that because when she arrived at Mr. Howell’s apartment, his dining room table was set with a turkey on it. It appeared to N.C. that there was going to be a feast. Mr. Howell told her that his spirits were feasting. During the first visit, Mr. Howell explained that she would be taking a bath in chicken blood. On the second visit, he bathed her with chicken blood. Following the bath, she and Mr. Howell took a chicken head outside and buried it. While in Mr. Howell’s apartment, N.C. saw a crystal ball on his table. N.C. also testified that Mr. Howell used to call their house to speak to C.C..
P.C. Ozols
21P.C. John Ozols testified that he showed C.C. a photo line up on July 12, 2007 and that she selected the photograph of Mr. Howell as being the person who assaulted her. He also drove C.C. to E[…] Avenue, where she told police Mr. Howell lived, to see if she could point out Mr. Howell’s apartment building. C.C. pointed out E[…] Avenue. Mr. Howell admitted living in that building in apartment 807 for 22 years.
Robert Kent
22Robert Kent testified that he has been the superintendent of E[…] Avenue for the past seven years. He confirmed that Mr. Howell lived in apartment 807. Mr. Howell moved out of that apartment the first week of June 2007. He testified about the condition of the apartment and the balcony of the apartment after Mr. Howell moved out. He took photos of the balcony that showed what he described as a chicken coop, and chicken feces on the ground as well as corn and grain on the ground. The photos are marked as exhibits 5A and 5B. He testified that he had received complaints from tenants in the building about “clucking” noises but he had not been able to pinpoint the source of the noises. He testified that other apartments on the same side of the building did not have a problem with bird feces on the balcony. Mr. Howell testified that he had a problem with pigeons on his balcony.
23I find Mr. Kent’s evidence about the condition of Mr. Howell’s balcony in 2007 to be of little assistance to me given that the events in question are alleged to have occurred five years earlier.
Mr. Howell’s Evidence
24Mr. Howell testified in his own defence. His counsel characterized his evidence as rambling, not concise, not clear, and all over the place. I agree. Mr. Howell spoke in riddles. It is difficult to describe his evidence with precision. At various times, he denied ever meeting C.C.. In chief, he said it was foggy whether he had met her. Later he guessed that her mother brought her to his apartment for a “reading,” and that he may have met C.C. once or twice. He said, “I will go with her claim that her mother brought her to me.”
25He testified that C.C. never came to his apartment alone. However, during cross-examination, he recounted an incident when a young lady knocked on his door, gave him two condoms, told him to put on a condom and told him, “not to be afraid, I climb tall trees and shake them down to the ground.” He testified that the young lady was C.C., and that she meant she will have sex with him and he will love it. He testified that he, “stoned her with the two condoms,” and told her to get soup and drink it. He did not accept C.C.’s invitation to engage in sex with her. C.C. was not asked about this incident when she testified.
26In cross-examination, he variously testified that he did not remember seeing her in 2002 or 2003, and that he was helping her with laziness, and probably would have given her something in a bottle to go home and drink. He testified that he cannot identify her because every time he sees her, she looks different because her features keep changing. He therefore has problems recognizing her.
27Mr. Howell testified that he has the ability to read the present and the past by pencil scratchings. People would call him on the telephone, and he would take a pencil and move it back and forth over a piece of paper. From that scratching, he could “read” the person and give the person advice. He usually advised people to go to the health food store to buy specific herbs to drink. He charged $22.75 for this service. He testified that people did not come to his house for this service. In 2002, two or three people would call him each week for this service. He was unclear about how people paid him for this service. He testified that, sometimes, people come to his house to pay him.
28He admitted that he had a crystal ball but denied showing it to C.C. or her mother to see C.C.’s father. He testified that he could see things in it but that he only used it for himself. Both C.C. and N.C. testified that while they were in Mr. Howell’s apartment, he and their mother looked into the crystal ball and claimed to be able to see their father.
29Mr. Howell denied engaging in ritual activity, denied bathing C.C., denied that his spiritual activities involve the use of chicken or chicken blood, denied talking on the telephone with C.C., denied meeting any of C.C.’s sisters, denied telling C.C. he knew about her activities, denied picking C.C. up at school, and denied touching her, kissing her and attempting to have intercourse with her.
Analysis
30Credibility is central to this trial. I am aware that it is not simply a credibility contest between Mr. Howell and C.C., but that the Crown bears the burden to satisfy me beyond a reasonable doubt of Mr. Howell’s guilt. I must assess the whole of the evidence before determining whether I have a reasonable doubt about Mr. Howell’s guilt. It is not sufficient to determine whom I believe – Ms. C.C. or Mr. Howell.
31In assessing the evidence in this case, I am mindful of the Supreme Court of Canada’s decision of R. v. W. (D.).1 If I believe Mr. Howell’s evidence, I must acquit him. If I do not believe Mr. Howell’s evidence, but am left in reasonable doubt by it, I must acquit him. Even if I am not left in doubt by Mr. Howell’s evidence, I must be convinced beyond a reasonable doubt on the basis of all of the evidence I do accept that Mr. Howell is guilty. If I am unable to decide whom to believe, I must acquit Mr. Howell.
32I begin with Mr. Howell’s evidence. I did not find Mr. Howell to be a credible witness. He did not give his evidence in a forthright manner. He was not responsive to questions. He often made no sense.
33His evidence was internally inconsistent. At various times, he denied seeing Ms. C.C., while at other times he admitted seeing her. His story about C.C. coming to his door to engage in sex with him is patently ridiculous. He appeared to make up his evidence as he went along. His evidence that the people he “read” through his pencil scratchings never came to his apartment was not believable. He had no sensible explanation about how people paid him for this service other than by sending money with other people.
34His explanations for the presence of items in his apartment strained credulity. When shown a photograph of a gas container, which had been left in his apartment after he moved out, he explained that it was an empty one. He used it for his car. He took it with him when he went out. When re-examined, he testified that the container never had anything in it, but that when he goes far away, such as to Buffalo, he buys extra gas. Similarly, when presented with a photograph of his balcony that showed what appeared to be some kind of cage, (Exhibits #4B and 4C) he testified that it was a laundry buggy that is placed on a dolly to be rolled. I do not believe either of these explanations and I believe that Mr. Howell fabricated them to distance himself from them.
35I find that Mr. Howell is not a credible witness, and that his evidence is not reliable.
36I therefore turn to the other evidence. I turn first to the evidence of C.C.. I found her to be a credible and forthright witness.
37Mr. Bilgen submitted that Ms. C.C.’s allegations have expanded over time. For example, she did not tell the police that she asked Mr. Howell to put on a condom. She testified to that effect at the preliminary inquiry, and at the trial, she added the detail that Mr. Howell ejaculated into the condom. In addition, Mr. Bilgen points out that Ms. C.C. related many of the events to the police in her statement without mentioning that Mr. Howell attempted to have intercourse with her. She told the officers that the last incident was when Mr. Howell performed oral sex on her. After a slight break, Ms. C.C. tells the police that there is one more thing she should add, and recounts the incident of attempted intercourse.
38Mr. Bilgen also submits I must consider the absence of corroboration that the assaults occurred, and the possible motive Ms. C.C. has to make up this story to support a claim she has made to the Criminal Injuries Compensation Board.
39The events that the witnesses have recounted at this trial are very strange indeed, and not within the realm of most people’s experience. Despite this, I accept C.C.’s evidence about what happened for the following reasons:
a. Her explanation that she was embarrassed telling the police every detail of what happened is not unreasonable given the very strange set of events that occurred. Other than the issue of asking Mr. Howell to use a condom, Mr. Bilgen did not point to any other inconsistency between her testimony and the statement she gave the police in May 2007.
b. Ms. C.C. made a claim to the Criminal Injuries Compensation Board in 2009, two years after she gave her statement about Mr. Howell to the police. She first learned of the Criminal Injuries Compensation Board from a social worker in 2009. This claim did not motivate Ms. C.C. to fabricate allegations against Mr. Howell.
c. Many of the strange details about which C.C. testified were confirmed by other evidence. Her sister, N.C., testified that her mother took her to see Mr. Howell as a spiritual healer, and that Mr. Howell bathed her with chicken blood. N.C. gave evidence about the existence of the crystal ball in Mr. Howell’s apartment and about Mr. Howell calling her house to speak to C.C.. I found N.C. to be a credible and reliable witness. Mr. Howell confirmed the existence of the crystal ball. He also confirmed that he earned money giving people advice using a special “gift” or power he had.
d. The belief and confidence in spiritual healers that C.C. and her mother had is demonstrated by the fact that simply on the basis of advice from another spiritual healer that they should not live together, C.C.’s mother left her at a youth shelter where she resided for many months. In addition, both C.C. and N.C. testified that they had seen other spiritual healers before Mr. Howell, and had participated in ritual bathing.
e. C.C.’s testimony was internally consistent, consistent over time, starting from her statement to the police in May 2007, and is consistent with evidence given by other witnesses.
f. Her demeanour as a witness was good. I do not wish to overemphasize this factor; however, she gave her evidence in a polite and forthright manner. She was responsive to the questions. She was not argumentative. She indicated when she could not remember something or did not know something. She appeared to me to be honest.
g. Ms. C.C. testified, in detail, about how the assaults occurred. She was not vague, nor did she recount events in general terms.
40It is true that there is no corroborating evidence of the assaults themselves. However, corroboration is not required, and I have already recounted evidence that confirms certain details of Ms. C.C.’s evidence. To the extent that my assessment of Ms. C.C.’s credibility requires confirmatory evidence, such evidence does not have to directly implicate Mr. Howell or confirm Ms. C.C.’s evidence in every respect. It is sufficient if the confirmatory evidence is capable of restoring, if necessary, the trier of fact’s faith in her account.2
41After considering all of the evidence, I have concluded that I do not believe Mr. Howell’s evidence; nor am I left in a state of reasonable doubt by it. I accept the evidence of C.C. about what occurred between her and Mr. Howell between August 1 and December 31, 2002.
The Offences
42Mr. Howell is charged with one count of sexual assault and one count of sexual exploitation. The counts read as follows:
Aston Howell, stands charged that he, sometime between and including the 1st day of August, in the year 2002, and the 31st day of December, in the year 2002, in the City of Toronto, did commit a sexual assault on C.C., contrary to section 271(1)(a) of the Criminal Code.
Aston Howell, stands further charged that he, sometime between and including the 1st day of August, in the year 2002, and the 31st day of December, in the year 2002, in the City of Toronto, being in a position of trust or authority towards C.C., a young person, did for a sexual purpose, touch directly the body of C.C., a young person, with a part of his body, to wit: his penis, contrary to section 153(1.1)(a) of the Criminal Code.
Sexual Assault
43Sexual assault is established by proof beyond a reasonable doubt of a) touching, b) the sexual nature of the touching, and c) the absence of consent. The Crown submits that the ritual baths do not form the basis of the sexual assault charge. The basis of the sexual assault charge in the Crown’s submission is the more overt sexual activity that occurred – the oral sex, the fondling of Ms. C.C.’s breasts and the attempted sexual intercourse.
44The first two elements of sexual assault – the touching and the sexual nature of the touching – are determined objectively. In other words, is the sexual context of the assault visible to a reasonable observer?3 The third element – the absence of consent – is subjective and is determined by considering the complainant’s state of mind toward the touching when it occurred.4
45Having accepted Ms. C.C.’s evidence of the events, there is ample evidence of touching of a sexual nature. The fondling of her breasts, the oral sex and the attempted sexual intercourse constitute touching of a sexual nature.
46Ms. C.C. testified that she did not consent to Mr. Howell touching her. She testified that she did not tell him to stop touching her because she feared he would harm her with his spiritual powers if she did not follow his instructions.
47Mr. Bilgen submitted that if I found that Mr. Howell touched Ms. C.C. in a sexual manner, I should find that he had an honest, but mistaken, belief that she was consenting. He bases this on the fact that Ms. C.C. never told Mr. Howell not to touch her, never tried to leave, and never told him to stop. In my view, this defence is not available to Mr. Howell given that he denied that any touching occurred at all. There is no evidence upon which I can find that Mr. Howell had an honest, but mistaken belief, in Ms. C.C.’s consent. A belief that silence, passivity, or ambiguous conduct constitutes consent is not a defence.5 And, there is no evidence that Mr. Howell took any steps, let alone reasonable steps as required by s. 273.2(b) of the Criminal Code, to ascertain that Ms. C.C. was consenting.
48In addition, even if I had found that Ms. C.C. consented to Mr. Howell’s sexual touching, her consent would have been vitiated by the fact that the Crown has established beyond a reasonable doubt that Mr. Howell abused his position of trust to induce Ms. C.C. to engage in sexual activity with him.6
49I am satisfied beyond a reasonable doubt that Mr. Howell sexually assaulted C.C. and I find him guilty on count #1.
Sexual Exploitation
50The elements of this offence as charged against Mr. Howell are as follows:
a. that Ms. C.C. is a young person;
b. that Mr. Howell touched Ms. C.C.’s body with his penis for a sexual purpose; and
c. that Mr. Howell was in a position of trust or authority towards Ms. C.C..
51At the time of these events between August 1, 2002 and December 31, 2002, s. 153(2) of the Criminal Code defined a “young person” as a person fourteen years of age or more but under the age of eighteen years. Ms. C.C. testified that she was born on […], 1986. She was thus a “young person” within the meaning of the definition set out in s. 153(2) of the Criminal Code.
52Ms. C.C. testified that when Mr. Howell tried to insert his penis into her vagina, it hurt, and she asked him to stop. He stopped and then rubbed his penis outside of her vagina until he ejaculated. Mr. Bilgen concedes that if Mr. Howell’s penis touched Ms. C.C., it was touching for a sexual purpose; however he submits that there is no evidence that Ms. C.C.’s body was touched. I do not accept that submission. Ms. C.C. testified that she was being hurt by the insertion of Mr. Howell’s penis. In addition, she testified that Mr. Howell rubbed his penis outside her vagina. I am satisfied that the Crown has proven this element beyond a reasonable doubt.
53Finally, Mr. Bilgen submits that Mr. Howell was not in a position of trust or authority towards Ms. C.C.. I do not agree.
54Whether Mr. Howell was in a position of trust or authority towards Ms. C.C. when he touched her for a sexual purpose is a question of fact that must be determined having regard to the circumstances of the relationship between them, and taking into account Parliament’s purpose in enacting s. 153 of the Criminal Code, “to protect young persons, who are in a vulnerable position towards certain persons because of an imbalance inherent in the nature of the relationship between them.”7
55Relevant factors to consider when determining the existence of a position of trust or authority include, “The age difference between the accused and the young person, the evolution of their relationship, and above all the status of the accused in relation to the young person.”8
56I find that Mr. Howell was in a position of trust and authority towards Ms. C.C.. I base that finding on the following facts:
a. Ms. C.C.’s mother told her she was going to Mr. Howell because he could help her improve her grades in school, help her get up in the morning and help bring her father back to the family. Ms. C.C. believed that Mr. Howell could do this;
b. After the first meeting, Ms. C.C.’s mother left her in the care of Mr. Howell and met Ms. C.C. after the session;
c. Ms. C.C.’s mother was paying Mr. Howell for his services;
d. Mr. Howell told Ms. C.C. that he was the only one who could protect her and keep her safe, and she believed him;
e. Ms. C.C. believed that Mr. Howell knew her whereabouts and her activities, and she felt compelled to call him and tell him what she was doing and where she was;
f. Ms. C.C. believed that if she did not follow his instructions that he could harm her with his spiritual powers;
g. Mr. Howell is 35 years older than Ms. C.C.; and
h. Mr. Howell controlled the evolution of their relationship. He used his position as a spiritual healer to groom her to assault her, beginning with the ritual baths and progressing to kissing and fondling, then to oral sex and then to attempted intercourse.
57A “position of trust or authority” is not defined in the Criminal Code. Courts have defined it in various ways. For example, Blair J. described a “position of trust” as “founded on notions of safety and confidence and reliability that the special nature of the relationship will not be breached.”9 He also described a “position of authority” as “invoking notions of power and the ability to hold in one’s hand the future or destiny of the person who is the object of the exercise of the authority.”10
58For the reasons listed above, I am satisfied beyond a reasonable doubt that Mr. Howell was in a position of trust and authority towards Ms. C.C. when he sexually touched her and I therefore find him guilty on count #2.
Conclusion
59I find Mr. Howell guilty on both counts.
Corrick J.
Released: February 3, 2012
COURT FILE NO.: CR-10-50000192
DATE: 02032012
ONTARIO
SUPERIOR COURT OF JUSTICE
HER MAJESTY THE QUEEN
– and –
ASTON HOWELL
REASONS FOR JUDGMENT
Corrick J.
Released: February 3, 2012
Footnotes
- 1991 93 (SCC), [1991] 1 S.C.R. 742
- R. v. Kehler, 2004 SCC 11, [2004] 1 S.C.R. 328.
- R. v. Chase, 1987 23 (SCC), [1987] 2 S.C.R. 293.
- R. v. Ewanchuk, 1999 711 (SCC), [1999] 1 S.C.R. 330.
- Ewanchuk, at para. 51
- Section 273.1(2)(c) of the Criminal Code; R. v. F.L., 2009 ONCA 813.
- R. v. Audet, 1996 198 (SCC), [1996] 2 S.C.R. 171 at paras. 38 and 14
- Audet, at para. 38.
- R. v. P.S., [1993] O.J. No.704 (Gen. Div.) at para. 37.
- R. v. P.S. at para. 37.