WARNING

An order restricting publication in this proceeding under ss. 539(1), (2), (3) or (4) of the Criminal Code shall continue. These sections of the Criminal Code provide:

539 (1) Prior to the commencement of the taking of evidence at a preliminary inquiry, the justice holding the inquiry

(a) may, if application therefor is made by the prosecutor, and

(b) shall, if application therefor is made by any of the accused, make an order directing that the evidence taken at the inquiry shall not be published in any document or broadcast or transmitted in any way before such time as, in respect of each of the accused,

(c) he or she is discharged; or

(d) if he or she is ordered to stand trial, the trial is ended.

(2) Where an accused is not represented by counsel at a preliminary inquiry, the justice holding the inquiry shall, prior to the commencement of the taking of evidence at the inquiry, inform the accused of his right to make application under subsection (1).

(3) Everyone who fails to comply with an order made pursuant to subsection (1) is guilty of an offence punishable on summary conviction.

(4) [Repealed, 2005, c. 32, s. 18(2).]

R.S., 1985, c. C-46, s. 539; R.S., 1985, c. 27 (1st Supp.), s. 97; 2005, c. 32, s. 18.

COURT FILE NO.: CR-10000078-00

DATE: 20130109

ONTARIO SUPERIOR COURT OF JUSTICE

BETWEEN:

Her Majesty The Queen

Applicant

– and –

Richard mechel

Respondent

Cara Sweeny, for the Applicant

Shannon O’Connor, for the Respondent

HEARD: October 29, 2012

C.M. SPEYER J.

[1] The Crown seeks to impeach by way of certiorari the decision of the preliminary inquiry judge to discharge the respondent on a charge of sexual exploitation. The justice did commit the respondent to trial on three companion charges: sexual assault, invitation to sexual touching and sexual interference.

[2] The preliminary inquiry judge discharged the respondent on the sexual exploitation count based on a finding that there was insufficient evidence from an objective perspective that a relationship of trust existed between the respondent and the complainant. I disagree with this finding but that is not the issue. The issue is whether the justice’s error was committed within the scope of his jurisdiction. If so, he has a right to be wrong and certiorari does not apply. On the other hand, if his error can be characterized as a jurisdictional error, the discharge order should be set aside.

Synopsis of the Evidence at the Preliminary Inquiry

[3] The complainant was the sole witness to testify. He was born on February 1, 1983. The allegations giving rise to the charges are said to have occurred between October of 1993 and the year 1999.

[4] The evidence discloses that the respondent is ten or eleven years older than the complainant. They met between 1990 and 1992 at a water park in Stoney Creek where the respondent was employed as a lifeguard. At the time of the initial meeting, the complainant thought he was seven years of age but agreed in cross examination he could have been ten. In any event, a friendship developed.

[5] Eventually the respondent approached the complainant about acting as an informal “big brother” to both the complainant and his younger brother; that is, acting as a big brother or mentor without formally becoming a member of the Big Brothers organization. For his part, the complainant was open to the idea and looked forward to having someone older to talk to. The complainant and his brother started going to baseball games and movies with the respondent and otherwise doing “basic stuff that friends would do”. The respondent came to the complainant’s hockey games and went to dinner at the complainant’s parents’ house. They would spend time together approximately every second or third week.

[6] The respondent lived in Burlington with his parents at the start of the relationship. In 1994 or 1995, he moved to an apartment in Toronto. I observe there is no allegation of sexual misconduct at any time prior to the respondent’s move to Toronto.

[7] When the complainant was about 11 or 12, he began weekend overnight stays at the respondent’s Toronto apartment. Initially, the complainant was accompanied to the respondent’s residence by his younger brother. Sometimes the respondent would drive to Hamilton, where the complainant lived with his family, pick up the complainant and return to Toronto. When the complainant was older, he would take the GO Bus or GO Train to Union Station, where the respondent would meet him. While on these occasions the respondent usually drove the complainant back to Hamilton on Sunday, on a handful of occasions the complainant returned home to Hamilton by public transit.

[8] At first, he stayed overnight every two or three weeks (at least in the summer), and then about every six weeks later in the relationship, when he was about 15 or 16 years old. As noted, while initially the complainant’s brother also stayed overnight on various weekends at the respondent’s apartment, over time, the brother did not accompany the complainant on the weekend visits.

[9] With respect to the allegations of sexual misconduct, the complainant testified that the respondent began kissing, hugging, and massaging him during these overnight stays. Over the course of four or five months, the touching developed into the respondent masturbating the complainant and performing oral sex on him. The respondent would also get the complainant to masturbate him. About four or five times, the complainant performed oral sex on the respondent. The complainant said the touching began when he was about 12 and the oral sex when he was about 13 years old. The relationship tapered off when the complainant was between the ages of 15 to 17, as the complainant went to the respondent’s apartment less often and stopped returning his phone calls. The instances of sexual contact between the complainant and the respondent occurred from approximately 1995 to 2000. The last time the complainant saw the respondent was when he was about 20 years old.

[10] In the context of the sexual exploitation charge, the testimony of the complainant’s relationship with his father is important. He stated he did not have a close relationship with his parents at the time of the abuse. He described the respondent as “almost taking on, not only a bigger brother, but also like a fathership role” because he would rarely spend time with his father and spent so much time with the respondent.

The Preliminary Inquiry Judge’s Ruling

[11] The preliminary inquiry was completed within a day. The transcript comprises 85 pages. At the conclusion of the complainant’s evidence, defence counsel conceded that committal was warranted on three of the counts but questioned whether there was any evidence of the respondent being in a position of trust or authority. He suggested Crown counsel make her submissions first.

[12] Crown counsel’s submissions commence at the bottom of p. 80 of the transcript and consist almost entirely of a colloquy with the presiding justice as to whether there was any evidence from an objective point of view that a position of trust or authority existed. The colloquy ends on p. 84 with the preliminary inquiry judge stating, “Look, maybe I am wrong, but the Crown can appeal this”, and discharging the respondent on the sexual exploitation charge.

[13] Initially, the preliminary inquiry judge seemed confused about whether there ought to have been evidence that would “suggest some kind of official connection, Big Brothers, Boy Scouts, school, whatever, you know.” The Crown disputed this and argued that the law did not require an official connection between the respondent and the complainant. The judge eventually agreed with her saying, “No, no, I agree with you, but what evidence is there here? All you have basically in a position of trust and authority is the fact that he became like a father figure to me, right, and he sort of played the big brother role, but I am not suggesting big brother is involved here in any way.”

[14] The heart of the preliminary inquiry judge’s concern is captured at p. 82.

See, the thing is, because he was like a big brother or that he became sort of a father figure because I never saw my father very much, was with him so much, I don't really -- that is something that is in the young boy’s head, not external. I mean, there has to be some objective view that he was in a position of trust and authority, and if we have evidence that the parents would say, yeah, go with him, he’s all right, so put him in loco parentis, but I think it has to be something more than from the young complainant. I think it has to be someone on the outside looking in; this man is in a position of trust and authority taking advantage of the situation. I think defence counsel may well be right that there isn’t too much evidence of that, but of course everything else, it’s all there. So anything else you want to say?

Governing Principles of Law

(i) Certiorari

[15] I recognize the jurisdiction of the reviewing court to quash the decision of the preliminary inquiry judge is limited. The leading case is R. v. Russell, 2001 SCC 53, [2001] 2 S.C.R. 804, where at para. 19, McLachlin C.J. said:

The scope of review on certiorari is very limited. While at certain times in its history the writ of certiorari afforded more extensive review, today certiorari “runs largely to jurisdictional review of surveillance by a superior court of statutory tribunals, the term ‘jurisdiction’ being given its narrow or technical sense”: Skogman v. The Queen, 1984 22 (SCC), [1984] 2 S.C.R. 93, at p. 99. Thus, review on certiorari does not permit a reviewing court to overturn a decision of the statutory tribunal merely because that tribunal committed an error of law or reached a conclusion different from that which the reviewing court would have reached. Rather certiorari permits review “only where it is alleged that the tribunal has acted in excess of its assigned statutory jurisdiction or has acted in breach of the principles of natural justice which, by the authorities, is taken to be an excess of jurisdiction”. Skogman, supra, at p. 100 (citing Forsythe v. The Queen, 1980 15 (SCC), [1980] 2 S.C.R. 268).

[16] While the scope of review on certiorari may be limited, a failure of a preliminary inquiry judge to consider “the whole of the evidence” amounts to jurisdictional error: R. v. Deschamplain, 2004 SCC 76, [2004] 3 S.C.R. 601, at para. 18.

[17] When it is alleged, as here, that the preliminary inquiry judge failed to consider the whole of the evidence, “[w]hile an exhaustive examination of all the evidence is not expected”, there must be some indication that the mandatory requirement of s. 548(1)(b) of the Criminal Code has been complied with: Deschamplain, at para. 21. See also R. v. Sazant, 2004 SCC 77, [2004] 3 S.C.R. 635, at para. 22.

(ii) Sexual Exploitation

[18] A charge of sexual exploitation requires a factual finding by the trier of fact that a relationship of trust or authority existed at the time of the sexual contact. In R. v. Audet, 1996 198 (SCC), [1996] 2 S.C.R. 171, La Forest J. set forth three non-inclusive factors to be considered by the trier of fact when deciding whether a position of authority or trust existed: the age differential 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: see Audet, at para. 38. A finding of trust or authority should be supportable both objectively and subjectively: see R. v. Kiared, 2008 ABQB 767, [2008] A.J. No. 1459, at para. 62; R. v. Alsadi, 2012 BCCA 183, 285 C.C.C. (3d) 316, at para. 28.

Decision and Reasons

[19] Context, as usual, is important and that is especially true in determining whether the preliminary inquiry judge considered all the evidence. In the present case, as noted, what the preliminary inquiry judge considered or did not consider can only be discerned from his dialogue with Crown counsel during argument. No oral or written reasons were given: his decision was pronounced immediately following argument and without the necessity of taking a brief adjournment to consider the matter.

[20] I find for the following reasons that the preliminary inquiry judge failed to consider the whole of the evidence in coming to his conclusion that there was an absence of evidence as to the existence of a relationship of trust or authority between the complainant and the respondent.

[21] First, there was admissible evidence, at the very least implied, that the complainant would stay overnight in Toronto with the respondent with permission of the complainant’s parents. While direct evidence of permission was not given by the complainant, it can be inferred by other evidence, including the following:

• At the start of the relationship, the respondent came to the complainant’s hockey games and went to the complainant’s parents’ home for dinner after the games.

• He began staying overnight at the respondent’s apartment in Toronto when he was 12 years old, with his 8 year old brother.

• He stayed with the respondent frequently.

• The respondent picked up the complainant and dropped him off at his parents’ home in Hamilton.

• The respondent called the complainant’s home and sometimes left word with family members who would tell the complainant if he called.

• The complainant kept staying over on weekends after the abuse started because he was afraid of the questions his parents would ask about the respondent if he stopped going. He did not want his parents to ask him, “[H]ow come you have not gone to see Richard [the respondent] so much”.

[22] The inference that the complainant’s parents permitted their young sons to frequently stay overnight with the respondent is evidence capable of providing objective support to the finding that the respondent was in a position of trust in relation to the complainant.

[23] Second, the preliminary inquiry judge failed to consider relevant evidence about the respondent’s view of the relationship that provided further evidence that he was in a position of trust. The judge’s remarks at p .82, cited above, demonstrate this error. To repeat, the preliminary inquiry judge said:

See, the thing is, because he was like a big brother or that he became sort of a father figure because I never saw my father very much, was with him so much, I don’t really -- that is something that is in the young boy’s head, not external. I mean, there has to be some objective view that he was in a position of trust and authority, and if we have evidence that the parents would say, yeah, go with him, he’s all right, so put him in loco parentis, but I think it has to be something more than from the young complainant. [Emphasis added.]

[24] The preliminary inquiry judge failed to consider the complainant’s evidence that the respondent told the complainant that he was going to take on a big brother role and use the complainant and his brother as “little brothers”. This admission is something much more than “something that is in the young boy’s head, not external”. It is evidence that the respondent considered himself to occupy a big brother role vis-à-vis the complainant. It provides some objective support for the Crown’s argument that the respondent occupied a position of trust.

[25] Third, Audet mandates that a factor to be considered in determining whether a trust relationship existed is the evolution of the relationship. The evolution of a relationship spanning a number of years and how it changed and became closer over time requires an objective assessment of the developments of the relationship. The judge did not address this issue in the context of the ample evidence to this effect found in the complainant’s testimony.

[26] In summation, I find the preliminary inquiry judge did not consider the whole of the evidence before discharging the respondent on the charge of sexual exploitation. The matter is remitted to the preliminary inquiry judge with a direction that the respondent be committed to stand trial on the charge of sexual exploitation.

___________________________ C.M. Speyer J.

Released: January 9, 2013

COURT FILE NO.: CR-10000078-00

DATE: 20130109

ONTARIO

SUPERIOR COURT OF JUSTICE

BETWEEN:

HER MAJESTY THE QUEEN

Applicant

– and –

RICHARD MECHEL

Respondent

REASONS FOR JUDGMENT

C.M. Speyer J.

Released: January 9, 2013