R. v. G.F., 2016 ONSC 2511
ONTARIO
SUPERIOR COURT OF JUSTICE
BETWEEN:
HER MAJESTY THE QUEEN
– and –
G.F.
Sarah Repka, for the Crown
Nathan Gotlieb, for the accused
HEARD: March 14, 15, 16 and 17, 2016
RESTRICTION ON PUBLICATION
By court order made under subsection 486.4(1) of the Criminal Code, any information that could identify the persons described in these reasons as the complainant, or the complainant’s father, shall not be published in any document, or broadcast or transmitted in any way.
Bale J.
Overview
1The accused was charged under the Criminal Code with sexual interference (section 151(a)), sexual exploitation (section 153(1)(a)), and sexual assault (section 271(a)).
2At the commencement of trial, Crown counsel withdrew the charge of sexual interference on the ground that there was no reasonable prospect of conviction, and at the conclusion of trial, she advised that she was not asking that there be a finding of guilt on the charge of sexual exploitation, because there was some doubt on the evidence as to the complainant’s age at the time of the alleged incident, and therefore some doubt as to whether she was then a “young person” within the meaning of section 153(2) of the Code. The charge of sexual exploitation will therefore be stayed, and these reasons will be restricted to the charge of sexual assault.
3The essential elements of a charge of sexual assault are:
i. that the accused intentionally applied force to the complainant;
ii. that the complainant did not consent to the force that the accused applied;
iii. that the accused knew that the complainant did not consent to the force that he or she applied; and
iv. that the force that the accused applied took place in circumstances of a sexual nature.
4Section 273.1 of the Criminal Code provides that for the purposes of sections 271, 272 and 273, “consent” means the voluntary agreement of the complainant to engage in the sexual activity in question.
5In the present case, the complainant agreed to participate in the sexual activity. However, Crown counsel relies on section 273.1(2)(c) of the Code which provides, among other things, that no consent is obtained, for the purposes of sections 271, 272 and 273, where the accused induces the complainant to engage in the activity, by abusing a position of trust, power or authority. The Crown’s position is that the accused induced the complainant to engage in the sexual activity by abusing a position of trust, and that therefore no consent was obtained. The defence position is that no position of trust existed, that the complainant consented to the activity, and that therefore, the accused should be acquitted.
The evidence
6The following is a summary of the evidence called by the Crown, and given by the complainant and her father. No evidence was called by the defence.
7The complainant’s mother left the family home when the complainant was about 18 months old. She and her sister, who is two years older, were raised by their father. He did remarry when she was about 7, but that marriage ended in divorce, several years later. The accused was a grade-school friend of her father, and her father’s best friend. He was frequently involved in family outings, including camping trips, and other outdoor activities. From the age of 4 or 5, the complainant saw the accused as a “figure of authority”, “Dad’s friend”, someone “bigger than me”, “maybe like an uncle.” She and her sister would drive around in his car with him, and he would buy them “pops and stuff”. Sometimes they would just hang around with him and listen to music. The accused was “always in the picture”. He was “like family kind of thing.”
8When the complainant and her sister were young teens, her father asked the accused to be available to talk to his daughters, and told them that they could go to him for assistance. At some point, their father asked the accused to be their godfather, by which he meant that if anything happened to him, he wanted the accused to look after them.
9When the complainant was 13 or 14 years old, she began talking to the accused about problems that she was having with self-esteem. She had a “huge issue with her appearance”, and was made fun of at school. The accused made a “huge thing” about how much make-up she wore, and told her that she didn’t need it. He would complement her on her appearance, telling her that she had a good body - sometimes lifting her shirt, commenting on how nice her chest was, and touching himself on the outside of his pants. He didn’t touch her chest, but would sometimes put his hands on her waist, or rub her stomach, and once kissed her stomach. These actions made her feel uncomfortable, but at the same time, she found it somewhat thrilling, because she didn’t get much attention from boys at school.
10When the complainant was 14 or 15 years old, her sister became an alcoholic, and would drink with their father. The drinking would lead to what the complainant termed “ridiculous arguments”, and on numerous occasions, she was either kicked out of the house by her father, or left the house on her own accord. Although she had a boyfriend for a period of time, and a counsellor at school with whom she could talk about her problems, she liked to “vent” to the accused about her father’s and sister’s drinking. She would talk to him by telephone, or they would drive around in his car. She liked to talk to the accused, because he always listened, and responded, unlike her school counsellor who didn’t seem to hear her, and was just “a vessel to talk to”. The accused would agree with her that her father “was an idiot”. By this time, the accused was employed as a social worker “helping children with their problem lives.”
11The incident which gave rise to the charge against the accused took place at his apartment. The complainant was feeling depressed and alone. The accused picked her up at the end of her driveway – she remembers that it was nighttime and was cold. When they got to the accused’s apartment, they had a couple of drinks, smoked some hash oil joints, and as usual, talked about her father. She said she thinks they both knew that sexual intimacy was going to occur. They drank heavily (“pounded back the shots”), which she wasn’t accustomed to, and smoked joint after joint. She sat on his lap while he played online poker, and showed her a photograph of a girl online. She blacked out at times, and went in and out of consciousness.
12The sexual activity began with a lot of kissing, and touching of her. She doesn’t recall how it progressed after that – just suddenly her clothes weren’t on. They performed oral sex on each other, and he penetrated her, but only for a few seconds – she thinks he realized that he had made a mistake, and that it wasn’t right. She says that she felt uncomfortable for the rest of the night – she “just wanted to get out of there” – but fell asleep for a period of time, before going home.
13When she was 16, through an internet dating site, the complainant met her husband-to-be, who then lived in Toronto. He later experienced immigration problems, and had to return to Turkey. After he left, the complainant lived with some friends of his, and attempted to learn the Turkish language. She then travelled to Turkey, and shortly after arriving, was married. However, she had difficulties adjusting to Turkish culture, and difficulty with the language, and ended up travelling back and forth between Canada and Turkey several times. During one of her return trips to Canada, she was once again kicked out of the house by her father, and ended up spending a part of the night at the accused’s apartment. They discussed her marriage - the accused told her that she had been wrong to get married - and he attempted to engage her in sexual activity, but this time she declined.
14In late 2013, or early 2014, the complainant told her father about her sexual activity with the accused. She had been afraid that he would hate her for doing it, and tell her to “pack her bags”, but she told him anyway, because she could no longer live with the overwhelming guilt that she felt. To her surprise, he was sympathetic, and simply felt betrayed by his friend. After telling her father, the complainant went to the accused’s home and told him that her father now knew what had happened between them. The accused’s response was that he “had stuff on her dad”, and he appeared to have no remorse. The complainant had always respected the accused, but at that moment, she lost all respect for him – she couldn’t believe that he had no remorse, and that his first response was to intimate that he could make trouble for her father. They never spoke again which the complainant says “sucks”, because she had always appreciated his help, and felt that he genuinely cared about her.
Analysis
15The complainant’s evidence stands uncontradicted, except in relation to the dates, and times, of some of the events that she described.
16Crown counsel concedes that the complainant’s evidence with respect to dates was not entirely reliable. The complainant’s evidence was that the sexual activity took place somewhere around the beginning of December 2007, when she was 15 years old. She said that she met her future husband when she was 16½ years old, which would have been sometime in mid-2009. She said that she left for Turkey, to be married, just before her 17th birthday, in October 2009; and stayed there for a year and a half, before coming back to Canada, for the first time. The difficulty with this evidence is that occurrence reports produced by Port Hope Police Services put her in Port Hope on October 20 and December 30, 2009. On the earlier date, she had been rushed to hospital after taking an overdose of Ritalin. On the latter date, she and her father had gotten into an argument, her father had called the police, and she was taken to a hotel to spend the night.
17The complainant gave evidence that she was back and forth to Turkey several times before returning, for the last time, when she was 20 years old. This evidence is contradicted by an e-mail that she sent to Port Hope Police Services, in November 2014, advising that she had just returned home from Turkey – she would have been 22 years old at the time.
18During his cross-examination of the complainant, defence counsel pointed to an inconsistency in her evidence concerning the night of sexual activity. In her evidence-in-chief at trial, the complainant said that she left the accused’s house at about 7:00 a.m., but at the preliminary hearing, her evidence was that it was more like 1:00 p.m. After having the preliminary hearing evidence read to her, the complainant acknowledged that her trial evidence was inaccurate, and that her previous evidence made more sense – they had been up all night, and had then slept until early afternoon. Defence counsel concedes that the date upon which the sexual activity occurred is not an essential element of the offence, but argues that the discrepancies detract from the complainant’s credibility.
19In my view, however, in the tragic circumstances of this case, it is not surprising that the complainant would experience some difficulty in giving evidence with respect to dates, and that difficulty does not detract from the overall reliability, or credibility, of her evidence.
20Based upon the otherwise uncontradicted evidence of the complainant, I am satisfied beyond a reasonable doubt that the night of sexual activity occurred, and the contrary was not argued by the defence. Rather, the defence position is that the Crown has not proved, beyond a reasonable doubt, that the accused was in a position of trust, in relation to the complainant. Defence counsel points out that the accused was not the only person with whom the complainant would discuss her problems, that she only went to his residence twice, and that the two of them were only together when she chose to be with him. He characterizes their discussions as “chit-chat”, and submits that there is no evidence that she actually relied upon him for advice.
21The accused is 28 years older than the complainant. Their relationship evolved over time. He was a part of her life, as far back as she can remember. She had no mother to talk to. He was her father’s best friend, and was included in family activities. As she and her sister got older, they would drive around in the accused’s car, or just hang out and listen to music with him. He would buy them treats. In her early teenage years, the complainant began to confide in the accused, and shared the most intimate details of her private life – her lack of self-confidence, her insecurity about her body, the bullying at school, and after the death of her grandmother, the drunken arguments that her father and sister involved her in. She had a school counsellor, but didn’t feel that the counsellor actually heard her. She discussed these issues with the accused, because he listened and responded. Although they didn’t have a professional relationship, the fact that he had a job counselling young people couldn’t help but add to her confidence in him.
22The relevant relationship here, of course, is the relationship between the complainant and the accused. However, I have also referred to the relationship between the accused, and the complainant’s father, because the fact that the accused was her father’s best friend, and was trusted by him, helped engender the complainant’s trust in the accused.
23For all of these reasons, I have no doubt that the accused held a position of trust, in relation to the complainant. She trusted his good judgment and good intentions, and he had an obligation not to abuse that trust. Contrary to that obligation, he did abuse her trust, and by doing so, induced her to engage in the sexual activity in question. Section 273.1(2) (c) of the Criminal Code therefore applies, and the accused did not have the complainant’s consent to the sexual activity in question.
24In the end result, after considering all of the evidence given at trial, I am satisfied beyond a reasonable doubt with respect to each of the essential elements of the offence – the accused is guilty of sexual assault, contrary to section 271 of the Criminal Code.
“Bale J.”
Released: April 13, 2016
CITATION: R. v. G.F., 2016 ONSC 2511
COURT FILE NO.: 97/14 (Cobourg)
DATE: 20160413
ONTARIO
SUPERIOR COURT OF JUSTICE
BETWEEN:
HER MAJESTY THE QUEEN
– and –
G.F.
REASONS FOR JUDGMENT
Bale J.
Released: April 13, 2016