ONTARIO
SUPERIOR COURT OF JUSTICE
COURT FILE NO.: CR-12-15
DATE: 2013/06/03
BETWEEN:
HER MAJESTY THE QUEEN
K. Ornawka, for the Crown
- and -
DELBERT WRIGHT
D. Scott, for the Defendant
HEARD: Nov. 26, 2012 and April, 16, 17, 2013
THE HON. MR. JUSTICE ARRELL
Introduction:
[1] Mr. Wright is charged that on October 15, 2010 he sexually touched T.H. when in a position of trust contrary to S.153 (a) of the Criminal Code of Canada. At the time T.H. was 16 years of age and Mr. Wright was 40 years old. The case was tried before me without a jury.
Facts:
[2] T.H. and Mr. Wright both agree they had consensual sexual intercourse on October 15, 2010 in T.H. bedroom. I find as a fact, based on the uncontradicted evidence before me, that this is the only time they ever had any sexual contact. I find that T.H. instigated the sexual contact. T.H.’ mother Janice interrupted the couple and Mr. Wright quickly left the home.
[3] I accept as a fact that T.H. later that day, after her father arrived home, was asked by her parents to leave the family residence. She did and met up with Mr. Wright. They spent that night, being a Friday, in a motel room in Hamilton.
[4] T.H. moved to another motel near her school the next day, assuming she might have to stay there for a time. The motels were paid for by Mr. Wright. After a couple of days she moved in with her aunt.
[5] T.H. was in grade 11, an only child and was adopted. T.H. started horseback riding at age 12. By the age of 16 she was an accomplished rider. She owned her own horse which her parents had given to her at Christmas of 2009.
[6] I find as a fact that T.H. by the age of 16 was completely ensconced in the horse culture. I also find that her parents were as well, Mrs. H. as a spectator and Mr. H. as a rider with his own horse.
[7] T.H. initially took lessons for two years while leasing a horse. She moved on from that when she got her own horse at about age 15. Her parents bought her horse Piggy through Mr. Wright.
[8] Mr. Wright was brought up in the horse industry, acquiring his first horse at age 6. His parents own a farm where they board horses and their son lived in a trailer on the farm at all relevant times.
[9] Mr. Wright is a very experienced and accomplished horse trainer and rider. He coached riding professionally for a number of years. He has always been involved in training horses, both his own and professionally for others.
[10] Mr. Wright appears to have first had contact with the H.s family around Christmas of 2008 when he sold Mr. and Mrs. H. a horse named “Piggy” as a Christmas present for T.H.. Mr. Wright’s evidence was that the price had been reduced from $5,000 to $3,500. I reject the evidence of Mr. and Mrs. H. on the price given their vague memory about it and their lack of producing the cancelled cheque.
[11] I find Mr. Wright received no commission or finder’s fee for selling this horse. I accept his evidence that he talked his partner into reducing the price to accommodate the sale so that expenses of maintaining the horse would cease. I also find that that there is no evidence to substantiate any claims that Mr. Wright would provide free lessons to T.H. to accommodate this sale.
[12] The H.s family left the farm they had been at upon the purchase of Piggy and started boarding her at the Wrights’ farm where she was already in residence.
[13] The evidence is overwhelming that upon T.H. having her own horse that her interest in everything in the horse world increased exponentially to the point that she was at the Wright farm several nights during the week and most of each weekend. In the summer she was there almost full time. On almost all occasions one or both of her parents were in attendance.
[14] I find as a fact that the atmosphere at the Wright farm with the other borders, the H.s family and the Wrights was one of friendship and camaraderie with everyone spending a great deal of time together.
[15] Mr. Wright, at all relevant times, appears to have been employed full time away from the farm.
[16] The relationship, I conclude, started as mere acquaintances with Mr. Wright seeing T.H., along with all the other borders at the farm, from time to time when he was there. This relationship progressed to friendship and eventually in the summer of 2010 to a committed relationship. This committed relationship culminated in the incident of October 15, 2010. The relationship between T.H. and Mr. Wright ended shortly after October 15, 2010 and both have moved on with their lives.
[17] The Crown concedes it has not produced sufficiently credible evidence for me to conclude Mr. Wright was a riding coach for T.H.. I completely agree. At best Mr. Wright gave pointers and answered questions that T.H., and in fact any of the borders including Mr. H., might have had from time to time because he was vastly more experienced than they were.
[18] In 2010 Mr. Wright agrees he may well have been around the farm 50 % of the time when T.H. was there. He would have ridden with her. He would have trailered her and others horses to various shows and arenas. On most occasions T.H. parents were present and thought nothing untoward about these arrangements. Indeed, there was a rumor started that the couple was having an affair in February 2010. Mr. Wright met with Mr. H. and possibly Mrs. H. and he categorically denied the rumor which I find at the time was indeed totally false.
[19] There can be no doubt that Mr. H. made it abundantly clear at that meeting that any romantic relationship between Mr. Wright and his daughter would not be tolerated. Mr. and Mrs. H. appear to have agreed that the rumor had no validity as the friendship between Mr. Wright and the H.s family continued as before.
Position of the Parties:
[20] The Crown theorizes that T.H. was a vulnerable young girl because of difficulties at home with her father, her turmoil over her adoption and her infatuation with horses. As a result of this vulnerability there was a power imbalance between her and Mr. Wright because he was so much more skilled with horses and as a result she idolized him and relied on him to help her improve her skills as a rider, and as such he was in a position of trust as her mentor.
[21] The defence argues there is at the very least clear reasonable doubt as to whether Mr. Wright was in a position of trust given all of the evidence. He was not her coach, there was no power imbalance and certainly no evidence T.H. was in any way seduced. The best that can be said on behalf of the Crown’s case, according to the defence, is that a friendship developed and that consensual sex occurred between those two friends on one occasion. Such evidence does not establish that Mr. Wright was in a position of trust as defined by the case law and the criminal code.
Analysis:
[22] Counsel agree the leading authority in this area of our jurisprudence is R. v. Audet 1996 198 (SCC), [1996] 2 SCR 171. In that case the court found a 22 year old teacher to be in a position of trust in relation to his 14 year old student. The court held that for the Crown to obtain a conviction it must prove beyond a reasonable doubt three elements of the offence:
a) the complainant was a young person;
b) the accused engaged in sexual activity with the complainant; and
c) that at the time of the sexual activity the accused was in a position of trust towards the young person.
[23] R. v. Audet, supra further stands for the proposition that the trial judge, in each case, will take into account all the factual circumstances relevant to the characterization of the relationship between the two individuals in order to determine whether the accused was in a position of trust towards the your person.
[24] The court further held that this is a specific intent offence and the Crown was obligated to prove beyond a reasonable doubt that the accused had the mens rea required for each element of the offence.
[25] There is no issue in the case at bar that the Crown has proven the first two elements of the offence. The only issue is whether the Crown has proven that the accused was in a position of trust.
[26] At para. 14 of R. v. Audet, supra the court stated “...Parliament passed 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.”
[27] As stated in R. v. Audet, supra at paras. 35-36 the position of trust as essential to criminal responsibility is premised upon the vulnerability of the complainant to sexual exploitation. A person who occupies a position of trust in relation to another will, because of the position, owe a duty of care to that person the scope of which will vary from case to case.
[28] Relevant factors to the assessment of the existence of a position of trust 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.
R. v. Audet, supra. para. 38
[29] It has also been held that there must be a measure of “ongoing control” over an aspect of the young person’s life for there to be a position of trust.
R. v. Dussiaume (1995), 1995 217 (ON CA), 98 CCC (3d) 217 (Ont. C.A.)
[30] It is wrong to assess the position of trust issue simply from the perspective of the complainants parents, although that perspective is a relevant consideration and an important factor to consider.
R. v. L. (D.B.) (1995), 1995 2632 (ON CA), 101 C.C.C. (3d) 406
R. v. C.D. [2000] O.J. No. 1667 (O.C.A.)
[31] A trust relationship has been defined as one 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, the child or young person is particularly vulnerable to the sway of these factors.
R. v. S. (P.), [1993] O.J. No. 904, aff’d [1994] O.J. No. 3775 (O.C.A.)
[32] I have reviewed the numerous cases submitted by the Crown. I note they all deal with complainants who were 14 or less in age; and were in teacher/student, biological or employer/employee relationship. No such facts are before me in the case at bar.
[33] The Crown concedes Mr. Wright was not a coach to T.H.. She was 16 and in grade 11 at the time of this alleged offence; there is absolutely no evidence of luring, grooming, threats, gifts, lies, falsehoods, bribes, alcohol, drugs, cigarettes, promises, or any type of pressure applied to T.H. by Mr. Wright. There is no evidence to indicate Mr. Wright exercised any type of ongoing control over T.H.. Indeed, that was not something even her parents suggested.
[34] The evidence before me from a number of witnesses, including the parents of T.H., is that she was always treated as an adult, that she was always in an adult environment and was quite worldly. She was sexually experienced. Mrs. H. confirmed her daughter, at the time of this incident, was the same person I saw in the witness stand except she was somewhat more angry with her parents then as compared to now. Otherwise, her mother agreed, she looked the same physically, which is that of a mature, attractive, young woman. Her mother agreed when she was 16 she was intelligent, sophisticated, independent, well spoken and full of self-confidence. She agrees she was also spoiled by her parents.
[35] I do not find T.H. to be a particularly vulnerable young person at the time of this incident, as suggested by the Crown. Certainly she and her father had some arguments, yet they were together riding almost daily. As Mrs. H. said, “I thought this was typical teenage girl issues”. I do not conclude because T.H. did not like school and skipped classes, obviously without any sanction by her parents, that that makes her a troubled youth. Likewise her interest in her biological mother at age 16 is not something this court finds unusual.
[36] T.H., although obviously intelligent, was not interested in school. Her focus in life up to this point appears to be the horse industry. This, in my view, is not evidence of particular vulnerability. She has a skill, according to all witnesses, at riding. It does not make her a vulnerable young person simply because she wishes to excel in her chosen interest, an avid interest which she had long before even meeting Mr. Wright. Likewise, I do not feel she can be considered a particularly vulnerable young person because she asked questions and sought out advice about riding from those more skilled than she, such as Mr. Wright, his father, his brother and his wife, Sherri Whitworth, her only coach M .A. R., and other riders. As Oneida Neweigging stated, “there is a strong camaraderie with riders. They ride together, they help each other out, they give each other pointers, they learn off each other.”
[37] I accept the evidence of T.H.. It was given in a straightforward and forthright fashion. Her memory surrounding these events was good. She was cross-examined at length and her evidence remained consistent before me, the preliminary hearing and her statement to the police. She has no reason to fabricate her evidence as her relationship with Mr. Wright is long over and she has no reason to purposely anger her parents as she is back living at home.
[38] I also accept the evidence of Mr. Wright. It was consistent with T.H.. It was given in a straightforward and forthright manner. He also was cross-examined at length and quite skilfully and his evidence remained consistent and was not shaken in any meaningful way. His memory appeared intact surrounding these events.
[39] I found the evidence of Mr. H. somewhat inconsistent. On occasion it was at odds with his wife. It was also at odds to the police surrounding his whereabouts when they went to the motel. It was very different from the evidence of Scott Wright. Throughout Mr. H.’s evidence he constantly reminded this court that as a result of his post-traumatic stress syndrome his memory was very poor. I agree that it was. His evidence was often vague and rambling and not to the point. It was clear he was advocating in a forceful way the position that Mr. Wright was in a position of trust regarding his daughter. I am mindful that the opinion of T.H. parents that they felt there was a trust relationship by Mr. Wright towards their daughter and that such a position is an important factor for me to consider. I conclude, however, where Mr. H. evidence differs from his daughter or Mr. Wright, I accept their recollections as being more accurate.
Conclusion;
[40] T.H. was a mature, intelligent, and independent young lady. She became attracted to Mr. Wright, who was clearly many years her senior. He was likewise attracted to her. There is no evidence he was coaching her. There is no evidence of any of the usual indicia of a trust relationship as discussed in the various cases supplied to me by counsel. The evidence of T.H., which I accept, is abundantly clear that she did not feel at any time that Mr. Wright had any type of power or control over her or in any way was there a power imbalance between the two. The only person, I conclude, who really advocated a trust relationship is Mr. H. because he was told by the investigating officer that without such a relationship there was nothing illegal in his daughter having sex with a much older man. Mr. H. has been unable to accept that fact.
[41] I have no hesitation in concluding, for all of the reasons given, that Mr. Wright was not in a position of trust when he and T.H. engaged in sexual intercourse and as such he is found to be not guilty of sexual touching contrary to s. 153(a) of the Criminal Code of Canada and the charge will be dismissed as against him.
ARRELL, J.
Released: June 3, 2013
COURT FILE NO.: CR-12-15
DATE: 2013/06/03
ONTARIO
SUPERIOR COURT OF JUSTICE
BETWEEN:
HER MAJESTY THE QUEEN
- and -
DELBERT WRIGHT
REASONS FOR JUDGMENT
ARRELL, J.
Released: June 3, 2013