SUPERIOR COURT OF JUSTICE
HER MAJESTY THE QUEEN
v.
J.M.
J U D G M E N T
BEFORE THE HONOURABLE JUSTICE G. MULLIGAN
on May 24, 2013,
at PETERBOROUGH, Ontario.
INFORMATION CANNOT BE PUBLISHED,
BROADCAST OR TRANSMITTED PURSUANT TO SECTION 486.4 OF THE CRIMINAL CODE OF CANADA BY THE ORDER OF JUSTICE OF THE PEACE
J. MARIASINE, ONTARIO COURT OF JUSTICE, DATED NOVEMBER 17, 2011 AND SECTION 539(1) OF THE CRIMINAL CODE OF CANADA BY
JUSTICE R.W. BENINGER, ONTARIO COURT OF JUSTICE
DATED JULY 19, 2012
APPEARANCES:
K. Eberhard
Counsel for the Crown
D. McFadden
Counsel for J.M.
FRIDAY, MAY 24, 2013
R E A S O N S F O R J U D G M E N T
MULLIGAN, J. (Orally):
J.M. is charged on a six-count indictment. The first four counts relate to sexual exploitation, sexual assault, and two counts of uttering a threat. B.F. is the complainant. Count 5 relates to an allegation of sexual assault against M.P.. Count 6 relates to an allegation of mischief. The complainant with respect to that allegation is K.F.2.
With respect to each count the Crown is required to prove each of the essential elements of each offence beyond a reasonable doubt and this onus never shifts. The defence chose to call evidence and there are admissions as to some elements of each offence. However the defence submits that not all essential elements of each offence have been proved by the Crown beyond a reasonable doubt and therefore the accused should be found not guilty of each offence. I will deal with the specific elements of each offence and the evidence or lack of evidence related thereto when I review each count.
Evidence for the Crown consisted of the evidence of the complainants B.F., M.P., and K.F.2, and the evidence of K.F.1. The accused J.M. gave evidence on his own behalf in his own defence.
The following review of the Crown and defence evidence will provide context and background for the discussion about each count.
The K.F.1 - J.M. Household
One of the counts against J.M., Count 1, alleges that he was in a position of trust and/or authority towards B.F.. To understand that relationship more fully the evidence of K.F.1 and J.M. provide background information to the further evidence of K.F.1’ daughter K.F.2, her niece B.F. and her daughter’s friend M.P..
K.F.1 and her late husband had a daughter K.F.2 who was […], 1988. At the time of the trial K.F.2 was 25 years of age. After her husband passed away she re-partnered with J.M. and they started living together in 1998. At that time, K.F.2 was about 10 years of age. Their relationship lasted for nine and a half years. K.F.1 owned a house in Peterborough and J.M. resided with her and with K.F.1’s daughter K.F.2. As stated, K.F.2 was about 10 years of age when J.M. first moved into that residence.
In February of 2002 K.F.1 sold her previous residence and purchased a new residence on L[…] Road on the outskirts of Peterborough. She purchased this home with money from her other home but it was J.M.’s undisputed evidence that he contributed $60,000 to this purchase. K.F.2 also resided with them and at the time of the move she was 14 years of age. J.M. had a daughter from a previous relationship and she would visit every other weekend residing in one of the bedrooms upstairs.
K.F.1 has a niece, B.F., who she was very fond of. B.F. was born […], 1987 and therefore she was about one year older than her cousin K.F.2. She was a frequent visitor to the K.F.1-J.M. home and would eventually reside at the L[…] Road home with them on a permanent basis. The evidence was that she and her cousin, K.F.2, were like sisters. B.F. had a troubled home life. Her parents were separated, her mother was an alcoholic and she and her mother were living with her grandmother, K.F.1’ mother. Prior to moving in permanently she would be a frequent daytime and overnight visitor. The evidence suggests that she moved in permanently in 2003 and by that time she was 16 and was attending high school. When she moved in she assumed a bedroom on the second floor previously used by J.M.’s daughter on her weekend visits. Prior to that when B.F. stayed over she would stay in the basement bedroom with her cousin K.F.2.
J.M. described himself as a boyfriend to K.F.1 who was treated like a boarder in the residence and lived there rent free as a dependant of K.F.1 in that she paid all the bills relating to the household.
However I have no hesitation in finding that he and K.F.1 had a common-law relationship. He admitted that that was his goal when the relationship began and he resided in the same houses and cottage as K.F.1. There is some dispute about who paid the bills for the house but J.M. acknowledges contributing $60,000 to the purchase of the L[…] Road house and acknowledges that he and K.F.1 bought a cottage together which the family used on some weekends. He acknowledged that he paid all of the bills for the cottage. He denied that he contributed cash to K.F.1 to pay for the household bills but he acknowledged that he bought groceries, made trips to Costco and paid for meals out. His evidence was that he had no responsibilities inside the house but he did the yard work including grass cutting, snow clearing and trimming the hedge as well as maintaining the hot tub and helping to maintain the pool. He had a shop on the property at L[…] Road where he kept his snow plowing equipment. In addition he constructed or paid for an interlocking brick driveway at the L[…] Road home. He was quite proud and protective of this driveway. In fact, when he was talking about the interlocking brick driveway that he constructed, he described the house as “my house”. When B.F. and K.F.2 turned 16 and obtained their licences they both obtained vehicles. One of the rules of the house, which J.M. tried to enforce, was to require the two girls to park their cars behind the house and not in the driveway. He was concerned about oil leaks or other contaminants on the driveway. He had difficulty enforcing this rule either by speaking to the girls directly or to K.F.1.
When J.M. first moved in with K.F.1 he had a good relationship with her daughter K.F.2 who was 10 years old. However this relationship would deteriorate and would become toxic by the time K.F.2 was a teenager. K.F.2 expressed resentment toward J.M. at trial on the basis that he was trying to be a father to her and she did not accept that he was a suitable person for that role. J.M. attempted to enforce some rules for K.F.2 such as cleaning her room, requiring her assistance to cut the lawn or moving her car off the driveway. He had little or no success in these efforts and eventually gave up trying.
In February of 2007 the common-law relationship between J.M. and K.F.1 broke down permanently. There was an incident involving her daughter K.F.2 and J.M. when K.F.2 attempted to drive him home from a party he had attended. I will discuss this incident in more detail because it relates to the mischief allegation in Count 6. Because of the car incident K.F.2 moved out of the house for a week. She only returned on the basis that she would have no contact with J.M.. She would live in the basement area and he would remain upstairs. This incident caused her mother K.F.1 to terminate the relationship with J.M. and purchase a new home. She moved in to a new house with her daughter. B.F. may have still resided with her or she may have already moved in to take up residence with her boyfriend, now her husband. After the break up they entered into a separation agreement and J.M. would acquire the L[…] Road residence by purchasing K.F.1’ interest. In a subsequent transaction and as part of that agreement he also acquired her half interest in the cottage that they owned jointly. J.M. continues to reside at the L[…] Road house.
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Conclusion
In conclusion I record the following verdicts:
Count 1 - guilty
Count 2 - not guilty
Count 3 - not guilty
Count 4 - not guilty
Count 5 - not guilty
Count 6 - guilty