ONTARIO

SUPERIOR COURT OF JUSTICE

COURT FILE NO.: 13239/12

DATE: 2014-03-06

BETWEEN:

HER MAJESTY THE QUEEN

– and –

S.A.T.

Defendant

Ian Bulmer & Susan Magotiaux, for the Crown

Danielle Robitaille & Sam Walker, for the Defendant

HEARD: February 24, 25, 26, 28, and March 3/ 2014

Justice B. Glass

There Is An Order Banning Publication Of Any Information That Might Identify The Complainant In This Proceeding.

[1] S.A.T. is charged with the following counts:

(i) Sexual Assault [ s. 271]

(ii) Sexual exploitation when in position of trust or authority [ s. 153]

(iii) Breach of trust [s. 122]

(iv) Making child pornography depicting K.E. when she was 16 or 17 years of age [ s. 163.1(2)]

(v) Possession of child pornography i.e. nude photographs of K.E. depicting her when she was 16 or 17 years of age [ s 163.1(4)]

[2] In this decision, S.A.T. is the Defendant, K.E. is the complainant, K.L. is a former boyfriend of the complainant, M.W. is a girlfriend of the complainant, P.F. is a former boyfriend of the complainant, and T.T. is the former wife of the Defendant.

[3] The date of birth of the complainant was […], 1983.

[4] The charges were processed in January 2012.

[5] The fact situation for the criminal allegations was June 1, 2000 to March 31, 2001.

[6] The complainant lived at the residence of the Defendant from June 2000 until February 2001.

[7] The complainant first met the Defendant in May 2000 when she was stopped at a store for shoplifting of a knapsack. The Defendant was the police officer who attended.

[8] The complainant, K.E., was 16 years old at the time of the shoplifting incident. Her mother lived in another province. She resided at her brother’s residence in this Region but was not getting along with him. S.A.T. had a room in the basement of his house and told her that she could rent space there if she wished.

[9] In early June 2000, K.E. moved into the residence of the Defendant.

[10] The allegations are purported to have occurred during the following months until she left the residence in February 2001.

Issues

[11] Did a sexual assault occur by the Defendant upon the complainant?

[12] Was there sexual exploitation by a person in a position of trust?

[13] Was there a breach of trust?

[14] Did the Defendant make child pornography of a 16 or 17 year old complainant?

[15] Was the Defendant in possession of child pornography when the investigation arose about 10 years after the allegations were purported to have occurred?

Factual Background

[16] The complainant came to live at the residence of S.A.T. after the shoplifting investigation. Her evidence is that the Defendant engaged in sexual intercourse with her without her consent and while she was under the age of 18 years. This activity occurred in her bed at the residence of the Defendant. K.E. was a tenant at the time.

[17] At times, the complainant said that S.A.T. would lower his pants and underwear after which he invited K.E. to touch him. He had made inappropriate sexual comments about her buttocks looking good in her jeans. She caught him looking at her while she showered. He offered her free rent if she would let him take photographs of her or if she would touch him. The photographs were to be nude or semi-nude.

[18] The Defendant wanted K.E. to lie on a bed or a couch with his wife and at times with his wife and a prostitute. He encouraged three-way sexual encounters with K.E., his wife and himself. He wanted K.E. to touch his wife sexually.

[19] The complainant testified that S.A.T. took K.E. to a strip club.

[20] It is alleged that S.A.T. took photos of K.E. in various stages of undress, photos of her breast area, her vaginal area and her buttocks. She testified at the preliminary inquiry that S.A.T. used a polaroid camera for these photos but changed her testimony at trial to say that he used a different camera and that she had a polaroid camera.

[21] K.E. testified that she felt coerced to engage in this activity. The Defendant would threaten to have the shoplifting charge brought back if she refused.

[22] T.T., the wife of the Defendant, is alleged to have supplied K.E. and herself with marihuana to use at the house. The source of the marihuana was S.A.T. according to K.E.

[23] During the time K.E. was a tenant, she had a part-time job with a telemarketing service. Some of her money disappeared from her bedroom at the house. At another time, she found a bag of marihuana in her room. She had not brought the substance there. She concluded that S.A.T. had brought it there to intimidate her into staying and doing as he wanted because he had threatened to reinstate the shoplifting charge and had indicated that he could arrange for drug charges to be laid against her.

[24] K.E. told the court that S.A.T. had a sports car in which he took her for a ride within a month of her moving into the residence. He had a minor accident when they were driving in this vehicle. He supplied her with some alcohol and suggested that she enjoy herself with her friends. It was during the night following this accident that S.A.T. entered her bedroom and engaged in forced sexual intercourse with her. The next morning he asked K.E. whether the experience had been as enjoyable for her as it was for him. The complainant did not recall telling K.L., her boyfriend, about this sexual encounter; however, K.L. recalled that she told him that she awoke to find S.A.T. in her bed but no greater detail.

[25] K.E. did not know whether S.A.T. had worn a condom, but she recalled that he used a Kleenex at the time of the intercourse. She could not say what he did with the Kleenex.

[26] The complainant was at the residence from early June 2000 to February 2001. There had been a time when a female person other than the wife of the Defendant was there. That person left the residence. The wife of the Defendant had returned to the residence in the fall of 2000.

[27] Ms. Robitaille cross-examined K.E. about her using the hot tub at the residence with the wife of the Defendant after she was 18. K.E. recalled that she thought she and a school friend had gone to a YMCA or another facility with the wife but not the house. The friend, M.W., recalled K.E., K.L., and herself attending at the residence and using the hot tub. T.T., the ex-wife of S.A.T. did not recall the others using the hot tub at the home. The hot tub was installed after early November 2001.

[28] K.E. denied that there was ever any consensual sexual activity with the Defendant or his former wife. K.E. denied activity at the hot tub at the residence, but she was challenged in cross-examination with having provided a note to the SIU about being invited often to go into the hot tub with the Defendant, his former wife, her school friend.

[29] When Ms. Robitaille suggested that the hot tub was not installed at the residence until after K.E. had left the residence in February 2001, K.E. stated that she did not recall a hot tub there. Defence counsel had suggested that the complainant had returned to the residence after she was 18 and had engaged in consensual actions with the former wife. K.E. denied this took place.

[30] T.T. told the court that K.E. had told her she was 17 when they met in the fall of 2000. Both women’s birthdays were in […].

[31] T.T. testified that the hot tub was installed in November 2001. She confirmed that she and the complainant engaged in oral sexual activity after November 2001. This was consensual sexual activity. The complainant would have been over the age of 18 years at the time of this activity. The photographs of the two women that have been made exhibits were taken by S.A.T. This was part of consensual activity.

[32] T.T. testified that S.A.T. did not force her to engage in sexual activity with K.E. or to do so with photographs being taken. The activity was all consensual.

[33] T.T. smoked marihuana at the residence with K.E. T.T. used the marihuana for pain because she has a neck problem with the C3 and C4 vertebra after they were crunched together. S.A.T. did not supply the marihuana nor did he use the product. He does not smoke or drink alcoholic beverages.

[34] T.T. stated that K.E. did not appear to be uncomfortable with S.A.T. being present.

[35] Defence counsel pointed out that the sports car accident had occurred at the end of June 2000, and that was the date of the alleged sexual intercourse. Ms. Robitaille submits that it does not make sense that she remained at the residence for several more months until February 2001. She would have been at the residence less than a month when she was sexually assaulted and then did not leave. K.E. wondered whether the accident had occurred at another date and the Defendant had filled in the date of June 30th later on an unreported accident form. She suggested that he did not have insurance on the vehicle at the time and backdated the accident for insurance purposes. This was a suggestion posed by K.E. during her cross-examination.

[36] The complainant did not recall telling her boyfriend, K.L., about S.A.T. taking nude photographs of her. In cross-examination, K.E. said that she did not pose for nude photos being taken by K.L.

[37] In cross-examination K.E. was asked about a boyfriend taking nude photographs of her and she did not recall such occurring; however, that boyfriend, K.L., did testify that he took several nude photos of her in the residence. The idea for taking the photos was not his so that leaves one conclusion, i.e. K.E. suggested the photography. K.L. thought that the camera was K.E.’s and it was a polaroid camera. That leaves one to conclude that K.E. and K.L. are inaccurate about the camera or that there were two sets of nude photographs from a polaroid camera and another type of camera. Or one might conclude that K.L. took nude photos with another camera, or that he took photos with two cameras or that another person took photos. That might remain a mystery.

[38] K.E. did not recall telling the boyfriend about the forced sexual intercourse. The boyfriend recalled K.E. saying she found the Defendant in her bed but no additional information was conveyed to him. She remembered speaking to a girlfriend about it after moving from the residence.

[39] With respect to the nude photographs, K.E. did not recall telling her boyfriend, K.L., about the Defendant asking to take nude photos of her.

[40] If K.E. did return to the residence after she had left, she has misled the court because she was emphatic that she did not do so. It does not make sense that she would be sexually assaulted at the end of June 2000 and remain for several more months when she could have simply walked away. She was not a captive. Her brother referred to her as being a wild person. She had some experience with law breaking when living in another province. Although she was young, she appears to have been a self-confident person who looked older than her years as her boyfriend, K.L., testified. She would not have remained. She would have walked away.

[41] The photographs in various states of undress display a smiling facial expression when one might have expected that a forced pose several times over would not have shown her expression here. The photographs expose various body parts, but they are not a display as K.L. stated of provocative poses.

[42] There are photos showing oral sexual activity between K.E. and the former wife of the Defendant. This evidence does not display either woman appearing to be unhappy with what they were doing at the time. Consensual sexual conduct could be interpreted to be a correct description.

[43] P.F., a more recent boyfriend of K.E. spoke with the Defendant at a work site in 2013. S.A.T. told P.F. that he did not have sex with K.E. and did not take her to a strip club and flash his police badge.

Analysis

[44] Mr. Bulmer for the Crown submits that the complainant explained the core facts that apply to the charges and that discrepancies are not significant. The Defendant was in a power position in effect. He took advantage of a young person and could manage her by threats of resurrecting the old shoplifting charge as well as drug charges. The discrepancies in factual descriptions should be considered as being related by a young person and not be held against her so as to discard her allegations. In a nutshell, Mr. Bulmer for the Crown has pointed out that the floppy discs and photos were found in the residence of the Defendant years after the activity that K.E. has told the court. This is not an innocent possession of child pornography as in R. v. Chalk, (2007), 2007 ONCA 815, 88 O.R. 448 found at paragraphs 24 and 25.

[45] The Crown submissions about S.A.T. being in a position of trust and possessing and making child pornography depend on K.E. being under the age of 18 years. I find that the evidence of T.T. was convincing. Basically, she was a witness who simply answered questions directly as they were asked. She has no assets to lose in a civil action.

[46] Ms. Robitaille has provided lists of inconsistencies, lies and perjuries as well as implausibilities. I am listing several of them in paragraphs 46 -- 58. I accept them as being correct as well.

[47] The complainant did not tell the truth about who was the photographer of naked pictures of her in 2000 and 2001.

[48] K.E. changed what type of camera was used by the Defendant. It was a polaroid at the preliminary inquiry from a shelf in the house, and then it was her own polaroid.

[49] K.E. enhanced her descriptions of what S.A.T. did from forcing her to pose to engaging in sexual activity with T.T. to being forced to engage in sexual activity with a prostitute and T.T. to being compelled to touch T.T. in a sexual manner.

[50] K.E. told the SIU that she never had any police involvement before her shoplifting arrest, but in fact she did in New Brunswick when she was caught smoking hash. She talked her way around this inconsistency by saying that the RCMP in New Brunswick incident did not mean caught but rather that was some act less than being caught.

[51] K.E. stated that she did not return to the house of S.A.T. after leaving in February 2001, but that is contradicted with M.W.’s evidence about being at the hot tub at the residence as well as attending for a passport application for her boyfriend.

[52] K.E. said in her evidence that she was forced to touch T.T. as an unwilling party; however, she did not tell anyone before the trial that she engaged in oral sexual actions with T.T. and that there were sex toys. The photographs depicted in Exhibit 20 show two women engaged in oral sexual activity. K.E. has a smile on her face. The evidence from T.T. is that this sexual activity was consensual after K.E. was 18 years of age.

[53] With respect to internet dating, K.E. during the trial acknowledged that she did use the computer at the house, that she had an internet dating account, and that she had asked S.A.T. to organize this account and not just an e-mail account as she had stated earlier in her testimony.

[54] K.E.’s confirmed during cross-examination that during the summer of 2013 she sent a topless picture of herself to her boyfriend. Originally, she said she was not flirtatious with P.F., her boyfriend at the time, and that they were not dating then, but then, she accepted that she sent a topless photograph to P.F. and that such was flirtatious.

[55] K.E. at first said that she only shoplifted the one time when S.A.T. attended at the store, but she told of another shoplifting experience with K.L. She told the court that she did not steal the object, but rather her boyfriend, K.L., who was on bail had taken the item and then handed it to her as he ran off so that he would not be caught. K.L. testified he did no such act and that he had not conducted any shoplifting.

[56] K.E. alleged abuse but that is challenged by records indicating otherwise. Her diary/love book does not refer to abuse. Exhibits 4,7,8 and 9 are photographs showing K.E. to be happy and relaxed. These are not nude photos. K.L. testified that K.E. was happy and outgoing while she lived at the Tecumseh address.

[57] K.E. claimed that she contacted the Durham Regional Police Service when she had no other choice and when she felt threatened; however, she acknowledged an 11-year history of contacting the police for domestic situations and did not report these allegations to any officer. Two officers testified about such events and that there was no hesitation on K.E.’s part to speak with them. The claim that she was afraid of S.A.T. and therefore did not report these allegations seems to be rather unbelievable.

[58] I agree with Defence counsel that to engage in consensual sexual activity with her rapist’s wife while her rapist took pictures with her smiling during such activity seems too much to believe.

[59] Defence counsel emphasizes that there is some collusion between K.E. and M.W. as well as P.F. For example, K.E. denied going to the hot tub at 34 Tecumseh, but her friend M.W. told of them being there together and then in her statement to the SIU in October 2012, K.E. said that they were asked to go in the hot tub always.

[60] The agreed statement of facts in Exhibits 3A and 3B provide some explanations about the photos and the floppy discs. The time frames for how the photos got to the floppy discs cover various times. The complainant had her own computer internet account when she lived at the residence. K.E. provided one explanation that S.A.T. set up an e-mail account, but then she acknowledged that he set up for her an internet account for on-line dating. She had to be able to post her photo.

[61] With the complainant being complicit with nude photos being taken by her boyfriend and with access to the computer, I find that there exists a significant hole in the complaints alleged by the complainant.

[62] To be sexually assaulted in June and remain in the residence for several more months when she appears to be a strong-willed person who would and could leave, raises a doubt. To return later when there is a hot tub, and use the hot tub with her girlfriend and the wife of the Defendant and the Defendant seems implausible if there had been a prior sexual assault to the extent of forced sexual intercourse. To provide a variety of statements about the type of camera used adds to the confusion. Over the years, K.E. had many contacts with Durham Regional Police when calling about domestic legal circumstances and yet made no complaint about the allegations. If the allegations against S.A.T. occurred, one cannot imagine that she would not have made some complaint. The only explanation given is that she was afraid that S.A.T. would have the shoplifting charge reinstated. That is unbelievable.

[63] W.(D.) 1991 93 (SCC), [1991] 1 S.C.R. 742 and R. v. Belanger 2011 ONCA 51, [2011] O.J. No. 198 were referenced by Ms. Robitaille to the evidence called by the Defence as well as the Crown testimony from P.F. in which the Defendant denied having sexual activity with K.E. or taking her to a strip club. This evidence is taken into account when credibility is to be considered with all evidence. The Defendant does not have to testify in the trial. In this trial, the Crown called P.F. to testify and he provided this information.

[64] I have a reasonable doubt that the sexual intercourse incident ever occurred. Further, I have a reasonable doubt that the sexual exploitation took place. I am not persuaded beyond a reasonable doubt that the Defendant took any photographs while K.E. was under the age of 18 years. Further, I am not satisfied that he was knowingly in possession of photographs taken by another person. Without being responsible for those activities, there cannot be a breach of trust. There can be no production or possession of pornographic photographs of K.E. as a young person. I accept the evidence of T.T. that the photographs in Exhibit 20 that they had were destroyed after they were taken. Such a situation would leave open a conclusion that someone else had such photographs without the Defendant knowing the same. Such does not matter if they involve two consenting adult persons and not a young person.

Conclusion

[65] The sexual assault upon K.E. did not occur.

[66] The sexual exploitation alleged did not occur.

[67] There can be no breach of trust because of the conclusions reached.

[68] Since no illicit activity occurred with photographs when K.E. was under the age of 18 years, there is no production of child pornographic pictures nor possession of same.

[69] All counts are dismissed.

Justice B. Glass

Released: March 6, 2014