CITATION: HMTQ v. C.J.C., 2016 ONSC 1768
COURT FILE NO.: CR 14-31
DATE: 2016 Mar 18
ONTARIO
SUPERIOR COURT OF JUSTICE
BETWEEN:
Her Majesty the Queen
– and –
C.J.C. and M.J.C.
L. Brock and B. Donohue, for the Crown
R. Fawcett, for C.J.C.
D. Gulka, for M.J.C.
HEARD: November 16, 17, 18, 19 20, 23, 24, 25, 27, December 1, 2, 3, 4, 2015 and January 11, 12, 13, March 4, 2016
The Honourable J. C. Kent
REASONS for judgment
INTRODUCTION
[1] This case involves 12 allegations of historical sexual misconduct. Three complainants allege that C.J.C. and/or M.J.C. made improper sexual contact with each of them between 1 November 1999 and 31 December 2007.
[2] All of the alleged sexual misconduct is behaviour that our contemporary society finds improper, even morally repugnant. This court is required, however, to determine whether the specific allegations in each count of the indictment, if they occurred, constituted a criminal offence within the time frame of that particular count.
[3] Several of the allegations contend that the accused were "in a position of trust or authority" or "in a relationship of dependency" to the named complainant at the time the allegation arose.
[4] Other allegations contend that the named complainant at the time the allegation arose was a "young person". It is apparent that in the case of each of these allegations, the named complainant was, at least for part if not all of the time frame of the particular count, a "young person" as defined by the Criminal Code provision at that time.
[5] On one of the allegations, count 10 of the indictment before the court, the crown concedes that the burden of proof has not been met and, therefore, that particular charge as against M.J.C., must be dismissed.
[6] The case was complex. The evidence required 17 days to reach completion. Counsel requested an opportunity to provide the court with written submissions. They have done that and the court has had the benefit of almost 400 pages of written submissions, together with brief oral submissions.
[7] It will, of course, not be possible to address in this judgment every submission made by counsel even though all submissions of counsel have been carefully considered. Rather, this court will set out in these reasons the basis for the decision on each of the allegations.
[8] The case involved significant issues of credibility and reliability, compounded by the fact that disclosure was only made several years after the alleged sexual misconduct took place.
COUNTS 6 – 12 OF THE INDICTMENT - ALLEGED OFFENCES CONTRARY TO SECTION 153 OF THE Criminal code of Canada
[9] At the relevant time, that provision of the criminal code read as follows:
Provisions in force 1987 – October 31, 2005
153(1) Every person who is in a position of trust or authority towards a young person or is a person with whom the young person is in a relationship of dependency and who
(a) For a sexual purpose, touches, directly or indirectly, with a part of the body or with an object, any part of the body of the young person, or
(b) For a sexual purpose, invites, counsels or incites a young person to touch, directly or indirectly, with a part of the body or with an object, the body of any person, including the body of the person who so invites, counsels or incites and the body of the young person,
is guilty of an indictable offence and liable to imprisonment for a term not exceeding five years or is guilty of an offence punishable on summary conviction.
(2) In this section, young person means a person fourteen year of age or more but under the age of eighteen years.
[10] The court is required on each of these counts to determine whether it can be satisfied beyond a reasonable doubt that the trust/authority/dependency ingredient has been established. In order to reach such a conclusion, the court must conduct a contextual analysis to determine if on the facts alleged in support of that count of the indictment, the court is satisfied.
[11] An example of how that is to be done is demonstrated in the case of R. v. DE, [2009] OJ No 1909. In his decision, C. Hill J, was satisfied beyond a reasonable doubt that the prosecution had established that the accused was in a position of trust toward the complainant "providing an opportunity for persuasive and influencing factors to affect his vulnerable young cousin." In reaching his conclusion, Hill J. relied on a number of circumstantial factors including the following:
(1) D.P. was in her early teens – only 14 years of age and not yet in grade 10. She was entering the "difficult teenage years" (S.(P).) (Gen.Div.), at para.40).
(2) The accused, at 32 years of age, was more than twice his cousin's age and 18 years her senior. Accepting that D.P. had a step-father, with D.P.'s father resident in another city, D.E. fulfilled the role of a significant male adult figure in her life.
(3) As D.P.'s cousin, the accused was trusted by her. She had confidence and faith in D.E. that she would not be harmed or exploited.
(4) D.P.'s mother too, as her custodial parent, entrusted her daughter's safety and well-being to the accused, a family member, in permitting her to spend more time with him including overnight stays at his home.
(5) Believing her daughter to be relatively immature, Ms. M.B. did not consent, and would not have consented, to her daughter and minor dependant becoming involved in a sexual relationship with the accused.
(6) On the whole of the evidence, including observations of D.P. in her November 2005 videotaped statement to the police, she was an immature teenager with no depth or life experience.
(7) The relationship between D.P. and the accused evolved from D. P. babysitting and playing with her cousins in July 2005 to staying over at the accused's home and sexual intercourse only days after her aunt and the accused separated.
(8) The accused was aware that D.P. was having troubles with her parents. At this time, of D.P. having some emotional distance from her parents, D.E. began spending more time with her, providing rides, as well as cigarettes and alcohol, acting as a confidante, posing as her father at the body piercing shop, and, in some measure, establishing his home as an alternative to her mother's home.
(9) D.P.'s account of the first sexual encounter with her cousin, originating in the accused physically touching the teenager by a massage, followed by sexual contact with her "never stopp[ing] it", demonstrates no real consideration of context, consequences or the future.
[12] Hill J. concluded that viewed objectively, in the circumstances of that case, the accused had a trust-based duty of care respecting the complainant. He found that adherence to his obligation required the accused not to engage in sexual relations with the complainant but that he instead had exploited the youth's vulnerability resulting in the existence of apparent consent only.
[13] More recently, the Ontario Court of Appeal in R. v. Geddes, 2015 ONCA 292, the court considered this issue and found that the existence of a position of authority did not mean that any sexual activity between the accused and the complainant would be non-consensual. Rather the crown was required to prove beyond a reasonable doubt that the accused secured the complainant's apparent consent to the sexual activity by the exercise of a "coercive authority over the complainant". See R. v. Geddes, p. 36.
[14] In the Geddes case, the accused had persisted in making sexual demands even when the complainant declined to engage in sexual activity. The accused persisted and made threats to end the relationship and discontinue the benefits flowing from the relationship to the complainant and, in that manner, manipulated the complainant into sexual activity that the complainant did not wish.
[15] In Geddes at paragraph 37, the court observed that there is no closed list of factors relevant to the assessment of the nature of the relationship and no one factor is necessarily determinative of the nature of the relationship.
[16] The required contextual analysis with regard to the 3 alleged positions of trust or authority or dependency is as follows:
(a) Re: E.M. to age 16
[17] The precise legal status of C.J.C. and M.J.C. regarding E.M. is unclear. What is clear, however, is that from age 12 to 16, E.M. lived with C.J.C. and M.J.C. in a quasi-foster parent or guardian type of relationship. They provided a home; they fed and clothed her and ate "family" meals together.
[18] C.J.C. maintains that he did not have a father-daughter relationship with E.M., but even if that were they case, it does not extricate him from being in a position of trust.
[19] Similarly, M.J.C., having observed E.M. in the unacceptable environment of her birth mother, wanted to provide a better home for a young girl that she had come to know. She and C.J.C. did that together and, at least until E.M. was 16, they were both in a position of trust or authority or relationship of dependency toward and with E.M..
[20] During those years, E.M. appears to have been content living with M.J.C. and C.J.C. and M.J.C.'s young daughter, Caitlyn.
(b) Re: S.H.
[21] The position of the C.J.C.'s regarding S.H. differs from their position regarding E.M..
[22] S.H. did not have any contact with the C.J.C.'s until December 2001. She was in Grade 10 at the time. She, very soon after that, started to spend a significant amount of time at the C.J.C. residence. She described her own parents as being strict and enumerated reasons for not wanting to spend as much time in her own home: having a curfew, having to clean dishes, not being allowed to leave her laundry on the floor.
[23] The aforementioned household rules are not unreasonable and cannot support a finding that the rules in her own home were so oppressive that she needed to seek support elsewhere.
[24] It was suggested that she was a regular baby sitter for Caitlyn in the C.J.C. home. It was more likely, however, that any babysitting of Caitlyn was performed only on an occasional basis such as watching Caitlyn when M.J.C. went out for a coffee or to a store.
[25] It must be remembered that at the relevant time, S.H. was a full-time student with part-time employment. Caitlyn, at the same time, was in daycare during the week and on weekends she went to her grandfather's home.
[26] S.H. did, in fact, spend considerable time in the C.J.C. home, because she preferred it to her own home. She did have a relationship with C.J.C. that included C.J.C. teaching her how to drive and deal with a car.
[27] S.H. also spoke with M.J.C. concerning her first experience with sex (which occurred before the date of any of the alleged misconduct on the part of C.J.C. or M.J.C.). She described M.J.C. has a "cool, older sister".
[28] On all of the evidence, this court cannot be satisfied beyond a reasonable doubt that either C.J.C. or M.J.C. was ever in a position of trust, authority or relationship of dependency towards S.H..
(c) Re: S.H.
[29] The issue to be determined here is whether C.J.C. was in a position of trust toward S.H..
[30] S.H. was 14 and a friend of E.M.'s when she first met C.J.C.. He was, at that time, 28 or 29 years old.
[31] The relationship between C.J.C. and S.H. included him providing cigarettes to her and allowing her to smoke in his home. C.J.C. admitted that their relationship developed into a sexual one, but maintained that the "affair" began when she was 15 and was completely consensual.
[32] As the relationship evolved further, C.J.C. gave S.H. a ring and she clearly believed that she was his girlfriend.
[33] C.J.C. ought to have known better than to enter into a sexual relationship with a teenaged friend of E.M.'s who was also an occasional babysitter in his home. The evidence, however, falls short of establishing beyond a reasonable doubt that the relationship carried with it a coercive component as the Criminal Code and the case law require.
[34] Counts 7, 8, 9, 11 and 12 of the Indictment all allege sexual misconduct contrary to Section 153 of the Criminal Code of Canada.
[35] Each of those counts, therefore, require that the accused be in a position of trust toward that named complainant. Having found that the evidence does not support such a finding with regard to S.H. and S.H., this court is required to dismiss the charges in counts 7, 8 9, 11 and 12.
(d) Re: E.M. At and After Age 16
[36] On [...] 2003, E.M. turned 16. At or about that time, she left the C.J.C.'s home.
[37] At first glance, it would seem that E.M.'s departure from the C.J.C. home terminated the position of trust for both C.J.C. and M.J.C.. There certainly was not the same degree of trust or authority or the same type of relationship of dependency.
[38] All of the allegations of misconduct on M.J.C.'s part as against E.M. occurred after E.M.'s departure from the C.J.C. home. On the apparent evidence, any sexual contact between M.J.C. and E.M. after E.M.'s departure from the C.J.C. home was consensual unless, as maintained by counsel for the crown, M.J.C. and C.J.C. still had a "hold" on E.M. and continued to be in a position of trust, authority or relationship of dependency toward E.M..
[39] Counsel for M.J.C. points out that once E.M. departed the C.J.C. home, there was very limited contact between E.M. and M.J.C.. Counsel also contends that E.M., after she turned 16, had begun to live independently or with other persons.
[40] The crown asks that the court consider the evidence of E.M. when she was asked if she was still receiving assistance from the C.J.C.'s after age 16. E.M. indicated that she was. Apparently, she had the use of a cell phone that was still in the C.J.C.'s name and she paid them whatever her bill was. She stated, in evidence:
"I didn't have a lot of money. I was a single mother. I was in high school. I didn't have any support from my partner, so they would let me come to the house and do my laundry. If I needed any money for anything for my daughter, for diapers, or formula or whatever, they would loan it to me."
[41] She also indicated that when her new partner was violent with her, she had called C.J.C. on one occasion and that C.J.C. came to her residence.
[42] It was also her evidence that on one occasion when she was visiting back at the C.J.C. home, it became late at night and she had "nowhere to go".
[43] Does the above evidence satisfy the court beyond a reasonable doubt that a continuing reliance on an occasional or sporadic but ongoing basis is sufficient to extend a position of trust or authority or relationship of dependency?
[44] This court is not persuaded beyond a reasonable doubt that the position of trust or authority and or relationship of dependency continued after E.M. turned 16. Providing occasional assistance cannot be the basis for extending the relationship.
[45] If follows from that finding that even if the apparent consensual sexual activity involving M.J.C. and E.M. occurred as alleged, M.J.C. cannot be found guilty on count 6 of the Indictment.
[46] Similarly, C.J.C. cannot be found guilty of any consensual sexual activity with E.M. after she turned 16 as he was no longer in a position of trust or authority or relationship of dependency toward E.M..
Count 5 of the Indictment
[47] Count 5 of the Indictment alleges that E.M. was sexually assaulted by M.J.C. after E.M. turned 16.
[48] Assuming that the sexual misconduct during the time frame of count 5 of the indictment occurred as alleged, the issue becomes whether that consent was vitiated by an abuse of a position of trust or authority or relationship of dependency that existed between E.M. and M.J.C. even after E.M. become 16 and left the C.J.C. home.
[49] The considerations as set out above apply here.
[50] In addition, the court is required to consider the provisions of Section 273.1(2)(c) and Section 265(3)(d).
[51] The combined effect of those provisions as well as the common law is that if consent to sexual activity is obtained by the exercise of authority or by abusing a position of trust or authority, it is not consent.
[52] For sexual contact that appears consensual to reach the level of a sexual assault, contrary to Section 271, a position of trust or authority would have to be abused.
[53] Having determined that a position of authority did not continue after E.M. turned 16, this court is not required to consider whether such a position was abused and any apparent consent vitiated.
[54] For the above reasons, M.J.C. is entitled to be found not guilty on count 5 of the Indictment.
EVIDENCE OF SEXUAL MISCONDUCT BY C.J.C.
[55] There is ample evidence of sexual misconduct on the part of C.J.C. before the court.
[56] E.M. described sexual activity ranging from C.J.C. taking his finger and poking at her vagina over her clothing and escalating through multiple sexual contacts including manual stimulation, oral sex, and sexual intercourse, all with C.J.C.. Defence counsel for C.J.C. and M.J.C. made in depth submissions as to why E.M.'s testimony lacked credibility and/or reliability.
[57] E.M. (nee L.) testified for the crown. She was born on [...], 1987 and was therefore 28 years old when she testified at trial. She is the mother of 3 children. She completed her high school diploma at G[...] in 2007. She graduated from N[...] College in 2009 and she is a registered early childhood educator.
[58] E.M. first complained to the police in December of 2012. She was asked why she came forward at that time and indicated that she had encountered a friend of C.J.C.' mother and learned from that individual that C.J.C. was, at that time, a correctional officer with some responsibility for adolescents. She testified that she decided that she needed to go to the police to try to stop what had happened to her from happening to someone else.
[59] C.J.C. consistently denies any sexual misconduct with E.M.. His evidence does not waver on the issue.
[60] M.J.C. was also consistent in her denial of knowledge of any sexual activity that occurred between C.J.C. and E.M.. She disclosed a sexual encounter with S.H. and in doing so provided evidence that would in all likelihood not have been discovered had she not disclosed it to the court. Her counsel submits that such disclosure provides an air of veracity to her complete testimony.
[61] Counsel for the crown and both accused acknowledge that this case is not to be decided simply on a contest of the credibility as between a complainant and the accused. The court is required to consider the evidence in the manner described in the decision of the Supreme Court of Canada in R. v. W(D), 1991, S.C.R. 742.
[62] If I believe the evidence of C.J.C. that he did not engage in the sexual activity with E.M. as alleged, I must find him not guilty.
[63] C.J.C., testifying on his own behalf, did not demonstrate that he was a strong or reliable witness. Over a lengthy examination in chief and cross examination, the court noted him to be, on many occasions, argumentative, answering questions with questions and appearing to be evasive in answering questions, the answers to which were obvious. His testimony provided the court with little comfort. It was not acceptable evidence and I do not believe or accept it.
[64] Even though I do not believe the evidence of C.J.C., if his evidence leaves me with a reasonable doubt that the sexual misconduct with E.M. did not occur, I must find him not guilty.
[65] I turn then to a consideration of reasonable doubt, a very important part of our criminal justice system.
[66] A reasonable doubt is not an imaginary, far-fetched, or frivolous doubt. It is not a doubt based on sympathy for or prejudice against anyone involved in this trial. It is a doubt based on reason and common sense. It is a doubt that logically arises from the evidence or the lack of evidence.
[67] It is not enough to believe that C.J.C. is probably or likely guilty. In those circumstances, I must find him not guilty. Proof of probable or likely is not guilt is not proof of guilt beyond a reasonable doubt.
[68] The cross-examination of C.J.C. was detailed, lengthy and probing. It revealed him to be an evasive and unnecessarily combative individual whose testimony did not leave the court with reasonable doubt.
[69] If, at this point, based on all of the evidence, or the lack of evidence, or the credibility of one or more of the witnesses or the reliability of any particular witness, I am not sure that C.J.C. committed the offences alleged, I should still find him not guilty of those offences.
[70] The crown's case as against C.J.C. depends to an extremely large extent upon the credibility and reliability of E.M.'s testimony.
[71] There is room to argue that E.M. may have a tendency to exaggerate. It is hard to accept that the alleged sexual misconduct occurred with the high degree of frequency that E.M. describes. But when one is subjected to continuous misconduct, it may well leave the impression that it occurred even more frequently than it actually did. I am not persuaded that any unconscious exaggeration of the frequency exacerbates the situation to the point that her testimony as to frequency lacks an air of reality.
[72] While it is arguable that E.M. may have subconsciously been jealous of C.J.C. because he "took her friend M.J.C. away from her since she knew M.J.C. before C.J.C.", I am not persuaded that that is in any way a motivation for her to fabricate allegations against C.J.C..
[73] It is to a degree disturbing that E.M. may have been overly assisted in her use of a chart/timeline prepared in the office of crown counsel. Nevertheless, the evidence on the voir dire indicated that the sole source of the information in the chart/timeline was E.M.. The chart/timeline was prepared by an articling student using only E.M.'s recorded interviews and her preliminary hearing testimony.
[74] When a witness' memory becomes enhanced and improved over a period of time, one sometimes considers that to be a negative factor in determining whether or not such a witness' evidence is to be accepted. E.M. did, however, provide an explanation. She felt that techniques taught to her by a sexual assault counsellor were assisting her in remembering the many episodes of sexual misconduct.
[75] There were, clearly, internal inconsistencies in E.M.'s testimony and, on a limited scope, inconsistencies with her testimony provided at the preliminary hearing. On some points, too, she was contradicted by other witnesses. It would be very surprising, in a case such as this, if those kinds of contradictions and inconsistencies did not occur. The issue is, do they demonstrate a lack of credibility?
[76] On balance, E.M. was a very strong witness and, to a limited extent, her testimony had peripheral corroboration which is usually the extent of any corroboration in cases such as this.
[77] On the evidence that the court has accepted, including primarily the evidence of E.M., this court is satisfied beyond a reasonable doubt that C.J.C. committed the offences as alleged in counts 1, 2 3 and 4 of the Indictment. Findings of guilt are made accordingly.
Kent, J.
Released: March 18, 2016