COURT FILE NO.: SCJ 13/16
DATE: 2018/05/31
ONTARIO
SUPERIOR COURT OF JUSTICE
B E T W E E N:
HER MAJESTY THE QUEEN
Marney Mazurski, for the Crown
- and -
R.C.S.
Graham Clark, for the Defendant
Defendant
HEARD: February 5, 6, 7, 8, 12, 13,14, 15, March 26, 2018
PUBLICATION RESTRICTION NOTICE
By court order made under subsection 486.4(1) of the Criminal Code, information that may identify the person described in this judgment as the complainant may not be published, broadcast or transmitted in any manner. This judgment complies with this restriction so that it can be published.
ellies j.
REASONS FOR DECISION
INTRODUCTION
[1] R.C.S. is charged with eight sexual offences under the Criminal Code allegedly involving two victims, M. P. (“M.”) and C. P. (“C.”), (the “complainants”). M. and C. are identical twin sisters, born on March 26, 1982.
[2] The offences are alleged to have occurred in the years 1993 to 2000, when the complainants were between 10 and 18 years of age. In those years, they frequented a confectionary store owned and operated by Mr. S. and his wife. The store was located not far from where the complainants lived for a time and in the same general vicinity as the schools they attended.
[3] The majority of the charges relate to M., with whom Mr. S. eventually had a relationship and a child.
[4] The central issue regarding the allegations involving M. is whether the sexual contact began before she turned age 14, the age of consent at the time, and, if not, whether her consent was valid.
[5] The central issue with respect to the allegations involving C. is whether the sexual contact took place at all. If so, the same issues arise as those that arise with respect to the allegations involving M., although there is an additional issue as to whether C. consented at all.
OVERVIEW
[6] M. and C. had a difficult childhood. They were poor. Their father drank and had a bad temper. He physically abused them. Their mother drank and abused drugs. After their father was forced to leave the home when the girls were about 11 or 12 years of age, their mother’s problem with substance abuse got worse. Theirs was not a happy home.
[7] At about the same time that their father left, perhaps a little before, the girls found another, happier place to be – Morrison’s Corner Store – located not far from their house in North Bay.
[8] Morrison’s had been purchased not long before by Mr. S. and his wife A.L.S., who were in their early- to mid-20s at the time. The S.’s had two young children when M. and C. first began to frequent the store. The complainants enjoyed spending time with the children. They also enjoyed spending time with Mr. and Mrs. S. – particularly Mr. S. They both had a crush on him, which led to some rivalry between them.
[9] If it could be said that there was any “winner” to the contest for Mr. S.’s affection, it would have to be M. She and Mr. S. eventually began a romantic relationship and years later, in 2007, they had a child together. That child is the focus of one of the attacks that the defence makes on the complainants’ credibility. The defence contends that their evidence about their sexual contact with Mr. S. has been influenced by a custody battle between Mr. S. and M. that began in 2013 and ended with M. getting custody when these charges were laid in 2015.
THE EVIDENCE
[10] M. and C. are now 35 years old. M. testified that they were in about grade seven when they first met Mr. S. at Morrison’s, which was located about one block from their home. At the time, Mr. S. and Ms. S. had two children, one of whom was an infant and the other of whom was a toddler.
[11] Both M. and C. had difficulties in school. M. testified that she had a “mild intellectual delay”. Once they got to high school in September 1996, the complainants were placed in a modified program entitled “School to Work”. The program was taught by Michelle Graham, along with another teacher. Ms. Graham was one of the architects of the program.
[12] Ms. Graham testified that in order to gain entry to the program, both complainants had been tested and identified by either a psychologist or a psychometrist as suffering from a mild intellectual disability. Ms. Graham is not an expert in cognition and the Crown did not seek to have her qualified as such. Her evidence that the complainants suffered from a mild intellectual disability is hearsay and is not admissible for proof of the truth of the diagnosis. However, during the trial, I did permit Ms. Graham to testify about her observations of the complainants intellectual abilities, not as it related to the allegation in count 4 that M. was a person with a mental disability, but only as it related to the reliability of both complainants as witnesses.
[13] Ms. Graham maintained contact with M. after M. finished the program in 2000. As I will mention below, she assisted M. on several occasions in the years that followed.
[14] Because of their home situation and their attraction to the S. family, the complainants began to go to the store frequently. C. testified that they were there five to six times a week. They babysat the S. children both at the store and at the S. home. Both complainants testified that they ate meals regularly at the S. home. They slept over at the S. home occasionally, but not as babysitters.
[15] The complainants eventually began to work at the store. According to C., their duties included opening the store, serving customers (including using the till), and closing the store. They were not paid for their work. Instead, as M. put it, they “got stuff” in return, such as meals and items from the store.
[16] The evidence of M. and C. about their involvement in the operation of the store is confirmed by the evidence of two North Bay Police Service Officers who had dealings with the complainants in connection with incidents involving the store. Inspector Kirk Kelusky testified that he attended the store as a constable in January 1995 to investigate a report of stolen chocolate bars. He said that the only people working in the store at the time that he attended were M. and C., who were 12 years old at the time.
[17] Retired Police Officer Walter Neely testified that he attended the store in April 1996 regarding another reported theft, this time of money. At the time of Mr. Neely’s attendance, Mr. S. was present, but so were both M. and C.
[18] While M. and C. are identical twins and faced the same difficult home life, their lives did not follow identical paths after they began to spend time at Morrison’s. M. ended up living at the S. home on two occasions. She testified that the first time she stayed there was when she was in grade seven or grade eight. She said she was in at least grade nine the second time. C. remained at the Paquette home.
[19] M. graduated from grade eight, whereas C. apparently did not. M. was living at the S. home at the time of her grade eight graduation. She testified that Mr. S. bought her a corsage and that it was the S.s, and not her own parents, who attended the graduation ceremony.
[20] Although C. did not graduate from grade eight, she was nonetheless placed in the School to Work program with M. However, she never completed the program. Instead, she left school and stopped going to Morrison’s after she was about 15 years old. That is when she met Ed, a boy that became her partner for more than 20 years.
[21] M., on the other hand, completed the School to Work program and continued to stay close to the S. family – too close, some might say. According to M., she and Mr. S. began a romantic relationship on December 6, 1996. In 2000, M. became pregnant with Mr. S.’s child. She turned to Ms. Graham for help. Ms. Graham took her to Sudbury, where M. had an abortion.
[22] In 2003, Mr. and Ms. S. separated. According to Mrs. S. and some of the documentary evidence, Mr. S. took up residence with M. for a period of time. In 2007, M. gave birth to their child. In 2013, the relationship between Mr. S. and M. ended and a court battle for custody of that child began. In May 2015, a final order was made granting custody of the child to Mr. S. and ordering M. to pay child support.
[23] These charges arose as a result of an investigation undertaken by North Bay Police Services Officer Helene Boissoneault. Officer Boissoneault had been assigned the task of reviewing two different files dealing with allegations of child abuse involving M. as a suspect, in which Mr. S. was the complainant. I assume that the allegations related to their child. The files spoke of an 18 year relationship between Mr. S. and M., which would have made M. 12 years old at the time that the relationship began.
[24] While Officer Boissoneault concluded that the files had been properly closed, she remained concerned about the accuracy of the information contained in them with respect to the age at which M. had begun a relationship with Mr. S. As a result, Officer Boissoneault contacted a Children’s Aid Society worker who had been involved with M. previously, Heather McCombie, and the two of them went to visit M. while she was working at McDonald’s on July 31, 2015. Formal interviews of both M. and C. were subsequently conducted, following which the charges were laid. Mr. S. was arrested in August 2015. M. testified that she got custody of her child afterwards and has had custody of him ever since.
THE ALLEGATIONS
[25] M. testified that she and Mr. S. began a sexual relationship when she was 13 years of age. Their sexual activity began with her rubbing Mr. S.’s penis outside of his pants and progressed to oral sex and sexual intercourse. It occurred frequently, perhaps weekly, often taking place in the backroom of the store, where they would watch the video cameras to see whether customers came in.
[26] M. testified that she and Mr. S. began a romantic relationship on December 6, 1996. On that night, the accused took her in his Ford Bronco to a graveyard in the Airport Hill area of the city. She said that they “did everything” that night. By this, she explained she meant fellatio, mutual oral stimulation (referred to by M. as “69”), and sexual intercourse.
[27] M. produced several school agendas that had been stored at Ms. Graham’s home. Two of the agendas are particularly significant. In the agenda for M.’s grade nine year, 1997-1998, she wrote on December 6, 1996, “A Very Special Day” and the number “1”. She testified that she wrote this to commemorate the first anniversary of her romantic relationship with Mr. S.
[28] The Agenda for the previous year, 1996-1997, appears to have been given out by the Heath Unit as part of the Ontario Drug Awareness program. I will refer to it as the “Health Unit book”. In the back of the Health Unit book, M. listed a series of dates. At the top of one page, above an entry for March 5, 1997, she wrote “Dec. 6, 96 1st time ever”. The remaining dates listed at the back of the Health Unit book span a period from March 5, 1997, to January 21, 1999.
[29] M. testified that these were the dates on which she and Mr. S. had sexual contact. Beside each date appears one or more symbols, which she explained mean fellatio, sexual intercourse, or 69. In addition to the symbols, some entries have words beside them describing the quality of the encounter or the place at which it occurred.
[30] M. testified that all of the writing in the Health Unit book is hers, with the exception of a number of entries made in March, April and May, 1998. These entries, she testified, were made by Mr. S., including the symbols describing the sexual act beside each date. This evidence is uncontradicted.
[31] In contrast to the ongoing sexual contact that took place between M. and Mr. S., C. testified about only two incidents of sexual contact between her and Mr. S. She said that the first occurred late one night when the store was closed. She testified that they were lying down on the floor by the popcorn machine at the back of the store. Mr. S. tried to put his penis inside of her, but she told him that she could not do it, meaning both physically and mentally. She testified that as a result, “she gave him head”, meaning fellatio.
[32] C. testified that the second time they had sexual contact happened not long after the first. On that occasion, they were in Mr. S.’s Ford Bronco going to the S. residence. On the way, they went to a dead end street, where she again performed fellatio on Mr. S., after which he wiped himself up with paper towels.
[33] Mr. S. did not testify.
THE CHARGES
[34] Mr. S. is charged with the following offences relating to M., alleged to have occurred during the timeframe set out beside each:
OFFENCE DATE
(1) sexual interference (s. 151) January 1, 1993 – March 26, 1996
(2) invitation to sexual touching (s. 152) January 1, 1993 – March 26, 1996
(3) sexual exploitation (s. 153(1)(a)) March 26, 1994 – March 26, 2000
(4) sexual touching of a mentally disabled
dependant (s. 153.1(1)(a)) March 26, 1998 – March 26, 2000
(5) sexual assault (s. 271) January 1, 1993 – March 26, 2000
[35] Mr. S. is charged with the following offences relating to C.:
(6) sexual interference January 1,1994 – December 31, 1994
(7) invitation to sexual touching January 1,1994 – December 31, 1994
(8) sexual assault January 1,1994 – December 31, 1994
[36] The Crown has all but conceded that it has not proven beyond a reasonable doubt that M. was a person with a mental disability and that, therefore, there should be an acquittal on count 4.
[37] With respect to the remaining counts, Crown counsel submits that the testimony of M. and C. establishes beyond a reasonable doubt that there was sexual contact between each of them and Mr. S. when they were under the age of 14. In the alternative, she submits that the evidence establishes that they did not consent to having sexual contact. Finally, she submits that any apparent consent was invalid by virtue of their relationship to Mr. S. as a person in a position of trust or authority or, in the case of M., a person with respect to whom she was in a relationship of dependency.
[38] Counsel for Mr. S. argues that the evidence of C. that there was sexual contact between her and Mr. S. is not credible, given the circumstances in which she first made a complaint and the existence of several previous inconsistent statements about whether there was any sexual contact between her and Mr. S.
[39] With respect to M., counsel for Mr. S. submits that the evidence is incapable of satisfying the Crown’s burden of proof beyond a reasonable doubt that the sexual contact between M. and Mr. S. began before M. was 14. With respect to sexual contact occurring after that date, counsel submits that the Crown has not proven beyond a reasonable doubt that M.’s consent to sexual contact was invalid as a result of her dependency on Mr. S. or Mr. S. being in a position of trust or authority.
THE ISSUES
[40] The following issues arise in this case:
(1) Has the Crown proven beyond a reasonable doubt that Mr. S. invited M. to have sexual contact with him while she was under the age of 14? If so, a finding of guilty must be entered on count 2.
(2) Has the Crown proven beyond a reasonable doubt that Mr. S. invited C. to have sexual contact with him while she was under the age of 14? If so, a finding of guilty must be entered on count 7.
(3) Has the Crown proven beyond a reasonable doubt that there was sexual contact between M. and Mr. S. when M. was under the age of 14? If so, a finding of guilty must be entered on counts 1 and 5.
(4) Has the Crown proven beyond a reasonable doubt that there was sexual contact between C. and Mr. S. when C. was under the age of 14? If so, a finding of guilty must be entered on counts 6 and 8.
(5) If the Crown has not proven beyond a reasonable doubt that the sexual contact took place before a complaint turned 14 years of age, has the Crown proven beyond a reasonable doubt that the sexual contact took place in the absence of that complainant’s consent?
(6) If the Crown has not proven that the sexual contact took place before a complainant was 14 years of age or in the absence of that complainant’s consent, has the Crown proven beyond a reasonable doubt either:
(a) that Mr. S. was in a position of power or authority over the complainant;
(b) that the complainant was in a position of dependency with respect to Mr. S.; or
(c) that Mr. S. was in a position of trust with respect to the complainant?
If the Crown has proven either (5) or (6), findings of guilty must be entered on counts 3, 5 and 8.
[41] Although the indictment sets out the charges relating to M. before those relating to C., I propose to deal with them in the opposite order. For the purpose of my analysis, I will group together the charges that are alleged to have occurred when the complainants were under the age of 14, as the evidence relating to whether and when the offences are alleged to have occurred is the same with respect to those charges for each complainant.
ANALYSIS
Has the Crown proven that Mr. S. had sexual contact with C. or invited C. to have sexual contact with him before she turned 14?
[42] Sections 151 and 152 of the Criminal Code, as it stood at the time, prohibited sexual contact between or an invitation to sexual contact by an adult with a person under the age of 14.
[43] The defence submits that C.’s evidence about sexual contact with Mr. S. is the result of collusion on the part of M. and C. and is motivated by C.’s desire to help her sister get custody of her child. I am concerned that, at the very least, C.’s evidence as has been affected by M.’s struggle for custody of her child.
[44] C. denied that she ever spoke to M. about the “gross stuff” that happened with Mr. S. or about anything that happened at the store. However, C.’s evidence is contradicted by that of M., who testified that C. had told her previously that nothing had happened between C. and Mr. S. C. admitted saying this to M. Obviously, this means that they did discuss these things. Perhaps more importantly, what C. told M., namely that nothing happened, significantly contradicts her testimony about the incidents themselves.
[45] C.’s evidence about what happened with Mr. S. is also contradicted by what she told her partner, what she wrote in connection with an assessment that was undertaken as part of the family law proceedings in which M. was involved, and what she told Officer Boissoneault.
[46] C. admitted that she told Ed that the accused had tried to have sex with her, but that nothing had happened. She also admitted that the essence of what she said to Ed was that she had not had any sexual relations with Mr. S. This is a clear contradiction of testimony before me.
[47] C. also admitted that she wrote a letter in connection with an assessment that was undertaken in the context of the family proceedings involving M. and her child. Based on the reference during cross-examination to “section 30”, I assume that this was an assessment prepared under the authority of s. 30 of Children’s Law Reform Act, R.S.O. 1990, c. C.12. C. admitted that she stated in the letter that Mr. S. had asked her for sex but that she said she was not interested. Again, this is a clear contradiction of her testimony in this trial.
[48] Finally, C. admitted making two statements to Officer Boissoneault that also directly contradicted her evidence given during this trial. First, she admitted that, during her formal interview with Officer Boissoneault on August 5, 2015, she told Officer Boissoneault about only one incident that happened in the store. During the interview, C. was asked the following questions and gave the following answers:
Did that happen any other time?
No.
Did he try another time?
No.
Are you certain there’s no other times?
I’m certain.
[49] In addition, C. admitted telling Officer Boissoneault after the August 2015 interview that it was “so long ago and really nothing happened”.
[50] The first time C. ever mentioned the Bronco incident was just before the preliminary inquiry was held with respect to this matter. While I understand that these contradictory statements might be explained by the fact that C. has wanted to forget about what happened to her, they make it difficult for me to rely on her evidence.
[51] These statements also lend support to the defence position that C.’s evidence has been influenced by M.’s struggles over custody of her child. During the trial, I made a ruling regarding the possible use of the evidence of M. and C. as similar fact evidence in support of each other’s testimony. As I expressed in giving my oral ruling, I am concerned about the possibility that the evidence of C. has been “contaminated” by her involvement in M.’s family law proceedings. In addition to the evidence I have already referred to regarding the discussions between M. and C., Ms. Graham testified that C. may have been involved in discussions between Ms. Graham and M. during the preparation of a timeline of historical events, to which I shall refer in a moment.
[52] As a result of these contradictions and my concern about whether C.’s evidence has been influenced by M.’s family struggles, I cannot be satisfied beyond a reasonable doubt that there was sexual contact with or an invitation to sexual contact by Mr. S. Therefore, findings of not guilty will be entered on counts 6, 7 and 8 relating to C.
Has the Crown proven that Mr. S. had sexual contact with M. or invited M. to have sexual contact with him before she turned 14?
[53] There is no issue in this case that Mr. S. and M. had sexual contact at some point. The question is when.
[54] Based on M.’s evidence and the entries contained in both the Health Unit book and M.’s agenda for 1997-1998, I am satisfied beyond a reasonable doubt that the sexual contact referred to in the Health Unit book took place on the dates indicated therein. However, M. would have been at least 14 on all of those dates.
[55] Nonetheless, notwithstanding the entries she made in the Health Unit book, M. testified that she and Mr. S. had sexual contact before December 6, 1996, the earliest date in Health Unit book. M. testified that she and Mr. S. were kissing, touching, having oral sex, and having sexual intercourse before photographs were taken in which she and C. are shown celebrating their 14th birthday in March 1996 and before the youngest S. child was born in February 1996. I am unable to accept this evidence in light of the fact that it conflicts so strongly with other sworn evidence given by M.
[56] In connection with the custody proceedings relating to her child, M. swore an affidavit in which she deposed that December 6, 1996, was the first time she had “sexual relations” with Mr. S. In cross-examination, M. admitted that the words “sexual relations” include kissing, oral sex and sexual touching, as well as sexual intercourse. In other words, M. admitted that sexual relations include all of the things she now says happened before December 6, 1996, but said in her affidavit happened for the first time on that date.
[57] I am unable to conclude that M. was simply mistaken in the affidavit she swore either about the date upon which she first had sexual relations with Mr. S. or the meaning of the words “sexual relations”. M. was assisted in preparing her affidavit by Ms. Graham. Ms. Graham testified that she sat down with M., and possibly C., to piece together a historical timeline of events. Together, they produced a chart, which says the same thing as M. said in her affidavit. Ms. Graham also typed the affidavit for M., based on what M. told her. Whatever M.’s intellectual deficits may be, I find it unlikely in light of Ms. Graham’s intimate familiarity with those deficits that Ms. Graham would have used language in the affidavit which did not reflect the true scope of what M. was telling her. For these reasons, I am unable to rely on M.’s evidence that there was sexual contact with Mr. S. before December 6, 1996.
[58] There is some evidence apart from the evidence of M. about when sexual contact took place between M. and Mr. S. M.’s cousin, P. C., testified about an incident in which she stopped by Morrison’s, as she used to do on her way to or from school. On that occasion, she saw M. and Mr. S. coming up from the storage room downstairs in the store, looking dishevelled. She testified that Mr. S. was fixing his pants.
[59] I accept Ms. C.’s evidence. However, it still does not allow me to be sure that any sexual contact was occurring before March 26, 1996.
[60] Ms. C. testified that she stopped going to Morrison’s after grade nine. Because she is one year older than her cousin M., this would mean that M. was in grade eight at the time. Assuming that M. began grade eight at the usual age as submitted by the Crown (and the evidence on this is not clear) she would have started in September 1995 at age 13 and finished in June 1996 at age 14. There is no evidence as to when Ms. C. made her observations within that timeframe.
[61] As a result of these shortcomings in the evidence, I am not satisfied beyond a reasonable doubt that Mr. S. had sexual contact with M. before she turned 14.
[62] The evidence concerning whether Mr. S. invited M. to touch him sexually before that age is no better. With respect to most of the sexual contact that took place between M. and Mr. S., M. testified that the sexual things she did with Mr. S. “would kinda just happen”. She said that she was not sure if she was ever even asked to do anything.
[63] M. did testify about one incident that might have amounted to an invitation to sexual touching. She testified that, on one occasion, a friend of Mr. S.’s put her ponytail elastic inside the front of Mr. S.’s pants. M. had to retrieve the elastic by reaching in between Mr. S.’s underwear and his pants. Mr. S.’s failure to retrieve the elastic himself and the fact that he allowed M. to do so might be interpreted as an invitation to sexual touching. However, once again, there is no evidence as to when this took place.
[64] Accordingly, there must be a finding of not guilty on count 2.
Has the Crown proven that M. did not consent to the sexual contact that took place after she turned 14?
[65] Subject to what I have to say about the relevance or the validity of that consent, until 1998, a person over the age of 14 could consent to sexual contact.
[66] M. testified that she wanted to do the sexual things that she did with Mr. S. She said that she did them “because (she) liked them”.
[67] In light of this evidence, there is no doubt that there was apparent consent. The question remains as to whether that consent was relevant or valid.
Has the Crown proven that M.’s consent was irrelevant or not valid?
[68] There are three related, but distinct, ways in which M.’s consent to sexual contact after the age of 14 may be rendered irrelevant or invalid.
[69] First, under s. 153(1)(a) of the Criminal Code as it stood prior to 1998, it was an offence for an adult to have sexual contact with a person over the age of 14 and under the age of 18 (“a young person”) where the young person was in a relationship of dependency with the adult or where the adult was in a position of trust or authority towards the young person, even where there was apparent consent. Under s. 153(1)(a), therefore, the consent of the young person is irrelevant: R. v. Aird, 2013 ONCA 447, at para. 24.
[70] Second, under s. 265(3)(d) of the Criminal Code relating to assault, including sexual assault, no consent is obtained where the complainant submits by reason of the exercise of authority.
[71] Finally, under s. 273.1(2)(c) of the Criminal Code relating specifically to sexual assault, no consent is obtained where an adult induces the complainant to consent to the sexual activity by abusing a position of trust, power or authority.
[72] Where the preconditions in ss. 265(3)(d) and 273.1(2)(c) are met, the consent of the complainant is rendered invalid.
[73] The Crown contends that any consent given by M. to sexual contact after she turned 14 was irrelevant or invalid under these sections because Mr. S. was in a position of trust or authority and/or because M. was dependent upon Mr. S.. Unfortunately, none of these relationships are defined in the Criminal Code.
Power or Authority
[74] I will begin by considering whether M.’s consent was rendered invalid under s. 265(3)(d) of the Criminal Code by virtue of the exercise of power or authority on the part of Mr. S..
[75] Recently, in R. v. Geddes, 2015 ONCA 292, the Court of Appeal considered the meaning of the word “authority” within the context of s. 265(3)(d). Writing for the court, Doherty J.A. explained (para. 36):
An accused stands in a position of authority over a complainant if the accused can coerce the complainant into consent by virtue of their relationship. The existence of a position of authority does not mean that any sexual activity between the accused and the complainant is non-consensual. The Crown must also prove beyond a reasonable doubt that the accused secured the complainant's apparent consent to the sexual activity which is the subject matter of the charge by the exercise of that coercive authority over the complainant: R. v. Samkov, 2008 ONCA 192, [2008] O.J. No. 1005, at para. 7; R. v. Farler, 2013 NSCA 13, 326 N.S.R. (2d) 255, at paras. 77-78.
[76] In R. v. Lutoslawski, 2010 ONCA 207, the Court of Appeal held that s. 265(3)(d) connotes a coercive use of authority to overcome resistance to consent.
[77] In this case, I do not need to decide if Mr. S. was actually in a position of authority over M. for two reasons. First, the Crown has particularized in count 3 that Mr. S. committed the offence of sexual exploitation under s. 153(1)(a) by virtue of being in a position of trust, not by virtue of being in a position of authority. Second, there is no evidence in this case that M.’s consent was obtained by the coercive use of authority by Mr. S., even if he had that authority. As I have already mentioned, M. testified that the sexual things she did with Mr. S. “would kinda just happen”. She said that she was not sure if she was ever asked to do anything. She also said she engaged in the sex acts she did because she wanted to and because she enjoyed them.
[78] In light of this evidence, the Crown has failed to prove that M.’s consent was invalid under s. 265(3)(d).
Dependency
[79] I turn now to the question of whether M. was in a relationship of dependency with Mr. S., which is the other way in which the Crown alleges Mr. S. committed the offence of sexual exploitation under s. 153(1)(a).
[80] In R. v. G. (C.) (1994), 1994 CanLII 215 (ON CA), 18 O.R. (3d) 247 (Ont. C.A.), Finlayson J.A. described a relationship of dependency within the meaning of s. 153(1)(a) as follows (para. 18):
In my view, what is contemplated by a relationship of dependency is a relationship in which there is a de facto reliance by a young person on a figure who has assumed a position of power, such as trust or authority, over the young person along non-traditional lines. Sexual relations are prohibited in relationships of trust, authority and dependency because the nature of the relationship makes the young person particularly vulnerable to the influence of the other person.
[81] I am not satisfied that M. was in a relationship of dependency with Mr. S. while she was a young person. While Mr. and Mrs. S. did provide M. with various things from time-to-time, such as the agendas I referred to earlier, a corsage for her grade eight graduation, underwear (from Mrs. S.), the occasional meal, and a place to stay on two occasions, there is no evidence that M. came to rely upon these acts of kindness.
[82] Neither M. nor C. were paid for their work in the store or for babysitting. While M. said that they were given things from the store and provided with meals occasionally, C. testified that she just stole things. Whether the things taken from the store were given or stolen, there is no evidence that M. came to rely on what they got. As M. said in her evidence, the sex acts that took place between her and Mr. S. were not done in exchange for anything.
[83] For these reasons, the Crown has failed to prove that M. was in a position of dependency on Mr. S.
Position of Trust
[84] Lastly, I turn to the question of whether Mr. S. was in a position of trust with respect to M. As I mentioned, this is one of the ways in which the Crown alleges that Mr. S. committed the offence of sexual exploitation under s. 153(1)(a). It is also one of the ways that consent may be invalidated under s. 273.l(2)(c) with respect to the offence of sexual assault.
[85] The leading Supreme Court of Canada decision on the meaning of the words “position of trust” is R. v. Audet, 1996 CanLII 198 (SCC), [1996] 2 S.C.R. 171. In Audet, La Forest J, who wrote on behalf of the majority, referred to the frequently cited decision of Blair J. (as he then was) in R. v. P. S., [1993] O.J. No. 704 (Ont. Ct. (Gen. Div.), in which he wrote (para. 36):
“Trust”, according to the Concise Oxford Dictionary (8thed.), is simply “a firm belief in the reliability or truth or strength of a person”. 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 have over children and young persons to come into play, and the child or young person is particularly vulnerable to the sway of these factors, the adult is in a position where these concepts of reliability and truth and strength are put to the test. Taken together, all of these factors combined to create a “position of trust” towards the young person.
[86] I find that, by the time Mr. S. and M. began having sexual relations in December 1996, Mr. S. was indeed in a position of trust with respect to M.
[87] By December 1996, the complainants had been hanging around Morrison’s store for nearly two years according to the evidence of Officer Kelusky and for more than that, according to the evidence of the complainants. I find as a fact that by then, Mr. S. knew of the difficult home life faced by M. and C. While M. testified only that she told Mr. S. “eventually” about the difficulties she faced at home, without specifying exactly when, Mrs. S. testified that the complainants shared this information freely. It is clear from the circumstantial evidence that both Mr. and Mrs. S. were aware of the problems in the Paquette household well before M. turned 14. As Mrs. S. said, that is why they did things like put up a sign on the side of the store to mark their 13th birthday. According to Mrs. S., these things were done to make the complainants “feel special” because of their difficult home life.
[88] I find as a fact that, to Mr. S.’s knowledge, the complainants were vulnerable as a result of the contrast between the Paquette home and that of the S.’s.
[89] A note written by Mrs. S. to M. illustrates the close relationship that had developed between M. and the S. family by the time it was written, perhaps in 1998 according to Mrs. S.. In the note, Mrs. S. chastises M. for not helping more around the house, among other things. The contents of that note are not much different than what one would expect to find in any note written by a frustrated mother to her self-centered teenage daughter. That kind of a relationship does not develop overnight and it was unlikely to involve only Mrs. S. and not Mr. S., who was the other adult in the house. Extrapolating backwards, I conclude that the relationship between Mr. S. and M. between December 1996 and the time that the note was written was much more like a father-daughter relationship than a boyfriend-girlfriend relationship, as M. said she came to see it.
[90] Nonetheless, I do not conclude that M.’s consent was invalidated under s. 273(2)(c) by virtue of Mr. S.’s position. In Lutoslawski, the case to which I referred earlier, the Court of Appeal held that while it is not necessary to prove coercion under 273.1(2)(c), as it is under s. 265(3)(d), the Crown must still prove that an accused used the person’s feelings and the confidence engendered by the position of trust to secure an apparent consent to sexual activity (para. 12).
[91] I am not satisfied that Mr. S. used his position of trust in order to obtain M.’s consent in light of her evidence that she does not remember if she was ever asked by him to engage in a sex act, that things just kind of happened, and that she wanted to do what she did with Mr. S. because she enjoyed them. There is no evidence that Mr. S. did anything to abuse his position in order to take advantage of M.’s vulnerability.
[92] For this reason, I find that the Crown has not established that M.’s consent was invalidated under s. 273(2)(c). A finding of not guilty will be entered with respect to the charge of sexual assault in count 5.
[93] However, the result is not the same with respect to the charge of sexual exploitation under s. 153(1)(a). There is a difference between what the Crown must prove under that section and what the Crown must prove under s. 273.1(2)(c).
[94] Because the consent of the young person is irrelevant, it is not necessary to prove that it was obtained by abusing the position of trust under s. 153(1)(a): Audet, para. 26. Nor is it necessary to prove that the complainant viewed the relationship as one of trust: Aird, at para. 24. It is sufficient if, having regard to the age difference between the young person and the accused, the evolution of their relationship, and the status of the accused in relation to the young person, the court is satisfied beyond a reasonable doubt that the accused was placed in a position of trust: Audet, para. 38.
[95] Based on the evidence to which I have referred regarding the nature of the relationship between M. and Mr. S., the evolution of that relationship, and the age difference between them, I find that Mr. S. was in a position of trust with respect to M. when they began to have sexual relations on December 6, 1996. Accordingly, I find Mr. S. guilty on count 3.
CONCLUSION
[96] For the foregoing reasons, I am not satisfied beyond a reasonable doubt that Mr. S. had sexual contact with either C. or M. or invited them to have sexual contact with him before they were 14 years of age. Nor am I satisfied beyond a reasonable doubt that Mr. S. had sexual contact with C. after she was 14. Accordingly, findings of not guilty will be entered on counts 1, 2, 6, 7 and 8 on the indictment.
[97] With respect to the sexual contact that took place when M. was a young person over the age of 14 and under the age of 18, I am not satisfied beyond a reasonable doubt that she did not consent or that her consent was invalid because she was suffering from a mental disability, was in a relationship of dependency with Mr. S. or that her consent was the result of an abuse of authority by Mr. S.. Therefore, there will be findings of not guilty entered on counts 4 and 5 on the indictment.
[98] However, I am satisfied beyond a reasonable doubt that Mr. S. was in a position of trust while M. was a young person. While I am not satisfied beyond a reasonable doubt that Mr. S. abused that position in a way that would invalidate M.’s consent with respect to the charge of sexual assault, her consent is irrelevant with respect to the charge of sexual exploitation under s. 153(1)(a). For that reason, a finding of guilty will be entered on count 3 on the indictment.
Ellies J.
Released: May 31, 2018
COURT FILE NO.: SCJ 13/16
DATE: 2018/05/31
ONTARIO
SUPERIOR COURT OF JUSTICE
HER MAJESTY THE QUEEN
Plaintiff
– and –
R.C.S.
Defendant
REASONS FOR decision
Ellies J.
Released: May 31, 2018