R. v. Kissner, 2019 ONSC 2390

RESTRICTION ON PUBLICATION

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of the Criminal Code, information that may identify the person described in this judgment as the complainant may not be published, broadcasted or transmitted in any manner. This judgment complies with this restriction and therefore can be published.

CITATION: R. v. Kissner, 2019 ONSC 2390

COURT FILE NO.: CR-17-4136

DATE: 20190416

Decision delivered orally: April 16, 2019 (and made an Exhibit)

ONTARIO

SUPERIOR COURT OF JUSTICE

BETWEEN:

HER MAJESTY THE QUEEN

– and –

Robert Kissner

Accused

Jennifer Holmes, for the Crown

Kenneth S. Marley, for the Accused

HEARD: January 10, 11, 14, 15, 16, 17, 18, 21, 22, 23, 24, 25, 30, 31 and February 1, 2019

REASONS FOR JUDGMENT

hebner j.:

1Mr. Kissner is charged on a 17-count indictment involving eight complainants. The charges are all for sexual offences, specifically sexual assault (s. 271 of the Criminal Code, R.S.C. 1985, c. C-46), sexual exploitation (s. 153) and sexual interference (s. 151). The pertinent part of the Criminal Code sections read as follows:

Sexual Assault

271. Everyone who commits a sexual assault is guilty of

(a) an indictable offence and is liable to imprisonment for a term of not more than 10 years or, if the complainant is under the age of 16 years, to imprisonment for a term of not more than 14 years and to a minimum punishment of imprisonment for a term of one year;

265. (1) A person commits an assault when

(a) without the consent of another person, he applies force intentionally to that other person, directly or indirectly;

(2) This section applies to all forms of assault, including sexual assault, …

(3) For the purposes of this section, no consent is obtained where the complainant submits or does not resist by reason of

(d) the exercise of authority.

(4) Where an accused alleges that he believed that the complainant consented to the conduct that is the subject matter of the charge, a judge, if satisfied that there is sufficient evidence and that, if believed by the jury, the evidence would constitute a defence, shall instruct the jury, when reviewing all the evidence relating to the determination of the honesty of the accused’s belief, to consider the presence or absence of reasonable grounds for that belief.

Sexual Interference

151. Every person who, for a sexual purpose, touches, directly or indirectly, with a part of the body or with an object, any part of the body of a person under the age of 16 years

(a) is guilty of an indictable offence and is liable to imprisonment for a term of not more than 14 years and to a minimum punishment of imprisonment for a term of one year; …

Sexual Exploitation

153(1) Every person commits an offence who is in a position of trust or authority towards a young person, who is a person with whom the young person is in a relationship of dependency or who is in a relationship with the young person that is exploitative of the young person, 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;

(1.1) Every person who commits an offence under subsection (1)

(a) is guilty of an indictable offence and is liable to imprisonment for a term of not more than 14 years and to a minimum punishment of imprisonment for a term of one year;

(1.2) A judge may infer that a person is in a relationship with the young person that is exploitation of the young person from the nature and circumstances of the relationship, including

(a) the age of the young person;

(b) the age difference between the person and the young person;

(c) the evolution of the relationship; and

(d) the degree of control or influence by the person over the young person.

(2) In this section, “young person” means a person 16 years of age or more but under the age of eighteen years.

Background Facts

2I will refer to the accused as the accused, Mr. Kissner or Chief Kissner.

3Mr. Kissner was born on August 15, 1956. He is currently 62 years of age. He was raised in Kingsville, Ontario and attended high school in Kingsville, Ontario. He received a Bachelor of Arts in social studies and Bachelor of Education and returned to Kingsville as a teacher. From 1985 to 1995, Mr. Kissner worked full time as a teacher with a private school in Kingsville called the Emmanuel Christian Academy.

4In 1975, Mr. Kissner joined the Kingsville Fire Department as a volunteer firefighter. He continued to serve in a volunteer capacity, as an inspector and then a deputy fire chief, until January 1995 when he was hired, full time, as chief of the Kingsville Fire Department. He remained in that position until his arrest in December 2016 when he was placed on leave. He retired in March 2017.

5By all accounts, Chief Kissner had a long and distinguished career. He was a pillar of the community. He belonged to a local church where he played the organ and sang in the choir. He lived alone in Kingsville and, over the years, opened his home to individuals who needed a place to stay.

6Mr. Kissner was described by many of the witnesses as a “touchy feely” person. He is a physically demonstrative person. He is the type of person who touches someone to make a point, squeezes someone’s shoulders or hugs someone.

Kingsville Fire Department

7Evidence on the command structure and the operations of the Kingsville Fire Department was provided by Chief Kissner, Deputy Chief Jeff Dean, Station Chief Robert Brando, Capt. Jeff Boughazale and administrative assistant Teresa Policella.

8The Kingsville Fire Department has two stations – the north station and the south station. Each station had its own response district, with both stations responding to a significant event. Chief Kissner was chief of the entire department and the top of the command chain. He reported to the chief administrative officer of the Town of Kingsville, who reported to the municipal council. Each of the two stations had a deputy chief. Below each deputy chief were four captains who were in charge of their individual squads of volunteer firefighters.

9In addition to the regular firefighters, Kingsville Fire Department had a junior firefighting program. The junior firefighting program was set up by the Kingsville Fire Department for high school students who had an interest in firefighting. The intention was for such students to learn firefighting skills and train to eventually become firefighters.

10The Kingsville Fire Department employed a fire inspector. In 2002, the fire inspector position became a full-time paid position. An administrative assistant was employed full time at the fire department and employed dispatch operators received fire calls.

11The Kingsville Fire Department had students in three different capacities. It took in co-op students from the local high schools. The students would complete a work placement with the fire department as part of their high school curriculum. In addition, local high school students completed their required community service hours at the fire department. Lastly, the fire department hired summer students. Summer students received a paycheque. Co-op students, and students performing community service hours, did not receive a paycheque.

12Firefighters were subject to a rigorous process of hiring. Firefighters were first required to complete an aptitude test. Those who performed in the top 50 percent of the aptitude test were granted an interview with the chief, the deputy chief and the four captains. There was also a physical test. Those who passed these steps were given a final interview with Chief Kissner and the station chief at the station where the opening was available. Ultimately, a recommendation was made to the town administrator who decided on who to hire. Firefighters were paid per firefighting call, for the training sessions and received an on-call fee.

13As one moved higher up the command structure, more testing and evaluation took place. If a firefighter wished to apply for a promotion, he or she needed to complete a written theory test and a practical test. Their resumé and qualification were scored and an interview took place with a panel, including Chief Kissner and a chief of an outside fire department.

14Chief Kissner was described by some of the witnesses as an authoritarian, who yelled at and intimidated people. He frequently lost his temper. An example was given by Mr. Brando. He said that one night, at approximately 2:00 a.m. to 3:00 a.m., following a fire, Chief Kissner did not like the way firefighters had repacked the hose. He visibly showed his disgust and displeasure and made them re-pack it.

15Chief Kissner described a different management style. He described his management style as “participatory”. He said he had an “open-door policy”. He said no decisions were made in a vacuum. At the scene of the fire, however, Chief Kissner described a much more structured atmosphere. When there was a safety issue or firefighters were responding to a 911 call, he could lose his temper if something went wrong.

16Chief Kissner was the person who made decisions on students. All of the students, whether they were summer students, co-op students or students completing their community service hours, all reported to Chief Kissner. Their duties would include cleaning the trucks; cleaning around the fire hall; fixing or painting things; helping to maintain the fire equipment; assisting with non-essential paper work.

17For the most part, all of the firefighters were men. Although a woman firefighter was employed on occasion, the fire hall was, for the most part, inhabited by men and boys. Chief Kissner was physically demonstrative with his firefighters. All of the firefighters who gave evidence described being massaged by Chief Kissner. All of the firefighters described invitations to Chief Kissner’s home for hot tubs and/or a bath in the Jacuzzi tub. A number of firefighters said they simply declined the invitations. Some of the firefighters said they found it “weird” for one man to invite another for hot tub. Some of the firefighters said that Chief Kissner’s touching of other men made them feel uncomfortable.

18According to Ms. Policella, she often saw Chief Kissner rubbing the shoulders of other men at the station, including the students. She often saw the students leave the fire hall with Chief Kissner during times they were scheduled to work.

19Chief Kissner had his own office in the fire hall. In the office was a desk with a computer on it. Ms. Policella often saw Chief Kissner watching videos at the desk. Also in the office was a round meeting table with four chairs. Chief Kissner brought his dog to work every day. The dog had its own chair. Chief Kissner had his own fire department vehicle, a vehicle that was also available to Chief Kissner for personal use. It was equipped with flashing lights and a siren.

20There was a rescue boat kept within the fire hall. Firefighters would often stand around the boat and visit, much like people in an office congregating around the water cooler.

21There was a group of firefighters that were disrespectful towards Chief Kissner. It appears as though the ringleader was a captain of the south station named Mark Stannard. According to the evidence of some of the witnesses from the fire hall, Mr. Stannard and his squad were, at times, at odds with Chief Kissner. Two of the complainants, J.R. and J.M., were either members of Mr. Stannard’s squad or aligned themselves with that group. The rift between the Stannard group and Chief Kissner is best illustrated by the events of one particular year. Apparently, each year an award dinner takes place and certain firefighters are honoured. One year, sometime before the arrest of Mr. Kissner, a group of firefighters, namely those firefighters who had aligned themselves with Mr. Stannard, arranged for a separate dinner to take place on the same night. Counsel for the defence appropriately termed this dinner a “protest dinner”. Mr. Stannard left the fire station approximately two years prior to Mr. Kissner’s arrest. Mr. Boughazale was moved into Mr. Stannard’s former position. He said there was tension in the squad and he took steps to ease the tension.

The Evidence

22One of the complainants, B.B., was a student at the time that Mr. Kissner was a teacher at the Emmanuel Christian Academy. Three of the complainants, S.M., J.K. and J.M., were firefighters at the time of the alleged incidents. Four of the complainants, T.W., G.H., H.N., and J.R., were students at the time of the alleged incidents.

23I will outline the evidence called in respect of the charges against Mr. Kissner relating to each of the complainants in the same order as set out in the previous paragraph.

B.B.

24B.B. was born September 2, 1977. He was 40 years old at the time of the trial. He attended the Emmanuel Christian Academy for two to three years, grades 5, 6 and 7. In the school year September 1989 to June 1990, he was in grade 7. Mr. Kissner was his teacher. Mr. Kissner is charged with sexual assault (s. 271) and sexual interference (s. 151) in respect of B.B. during that time. These are Counts 9 and 10 on the indictment. B.B. was 13 years old at the time of the alleged incidents.

25The Emmanuel Christian Academy was a private school. B.B.’s mother was a single mother and had to pay tuition for B.B. to attend there.

26B.B. chose to come forward and call the police when he received word that Mr. Kissner was charged with inappropriate touching with boys. He felt he should speak up. He wanted police to know that Mr. Kissner had done some inappropriate things with him when he was a student, and Mr. Kissner was a teacher, at the Christian Academy.

27B.B. described Mr. Kissner as a funny, likable teacher. He was also physical with the male students. He would rub their backs and give them hugs. He never touched any of the female students. As the school year went on, Mr. Kissner started grabbing the boys’ buttocks. He called it a “goose” and said it was a game that was played around the fire hall. He told the boys “dirty jokes”. Another game that Mr. Kissner played was “bag tag”. Mr. Kissner would flick boys in the penis and testicles. Mr. Kissner made the motion to flick a boy to make him flinch. Sometimes he connected, would then say “oh sorry didn’t mean to do that” and give the boy a hug. That happened on perhaps three occasions to B.B.

28There was talk of sex in the classroom and feelings that come with masturbation. Mr. Kissner told the students that homosexuality is “an abomination”.

29B.B. did not like Mr. Kissner touching him. He did not like Mr. Kissner trying to rub his back and shoulders while doing his schoolwork. B.B. recalls telling Mr. Kissner “don’t fucking touch me”. Mr. Kissner’s response was to tell B.B. to “relax” and “calm down”. The rubbing of shoulders continued. B.B. recalls that at one point, Mr. Kissner put his hand on B.B.’s shoulder and tried to pull him in for a hug. B.B. elbowed him in the torso.

30One particular incident that B.B. remembered occurred in the library at the school. It was a small library with a sofa on the left-hand side of the door. B.B. went into the library and picked out a book. Mr. Kissner was sitting on the sofa. B.B. went to sit on the other end of the sofa and, while he was in the midst of a sitting motion, Mr. Kissner reached over and grabbed his buttocks. Mr. Kissner’s fingers were in the crevice of B.B.’s buttocks. B.B. was wearing jogging pants at the time.

31B.B. said it came to a point where he became frightened and told his mother about Mr. Kissner’s conduct. He told her that Mr. Kissner was gay and was touching him and other children. A board meeting took place at his home where B.B. explained what happened. B.B. remembers screaming, calling Mr. Kissner a “fag” and being sent out of the room for the rest of the meeting. Shortly after the board meeting, B.B. left the Christian Academy and attended at a public school for grade 8.

32In Mr. Kissner’s evidence, he admitted physical contact with the male students in the form of hugs and “hair tussles”. He said he had the children in his class all day, for every subject with the exception of French, for two years. He got to know them well. He would pat them on the back after helping them with a math problem. Mr. Kissner had less contact with the female students as it was “less acceptable”.

33Mr. Kissner said he did not “goose” the boys. He did not play a game with the boys described by B.B. as “bag tag”. He did not grab B.B.’s buttocks. He did not tell him that the goose game and the bag tag game were games played at the fire hall. He did not tell the students dirty jokes. Sex education was not taught in his classroom. He did not talk to the students about masturbation. He did not tell B.B. that homosexuality was an “abomination”. B.B. never told him not to touch him. The incident in the library did not happen.

34Mr. Kissner recalls the board meeting that took place. He did not attend. He received a letter from the school bus driver, Laura Craig, indicating she wanted to meet with Mr. Kissner to discuss a serious matter. Mr. Kissner went to the school principal. There was an investigation. In the end, Ms. Craig did not continue to work as the school bus driver and B.B. left the school. Mr. Kissner continued to teach there.

35Laura Craig was called to give evidence. She was the bus driver for the Emmanuel Christian Academy between 1986 and 1990. Her children also attended school there. She remembers B.B. – she was a bus monitor at the time. She knew Mr. Kissner as a teacher at the school. Ms. Craig said that B.B. had disclosed concerns to her about Mr. Kissner on two separate occasions, a couple of weeks apart. He presented as upset. She took the matter to the school board, there was a meeting and, after the meeting, Mr. Kissner continued to teach at the school. Ms. Craig removed her children from the school.

36B.B.’s mother had a slightly different recollection of events. She recalled B.B. telling her, on more than one occasion, that he had concerns with Mr. Kissner’s conduct. She and B.B. went to the principal. The principal said that he would “look into it”. There was no follow-up. She does not recall a meeting at her home. B.B. finished the school year at the Christian Academy and then, at his request, attended the public school.

J.M.

37J.M. was a volunteer firefighter at the Kingsville Fire Department at the south station between the years 2002 and 2008. He was an adult at the time. Mr. Kissner is charged with sexual assault on J.M. between January 1, 2002 and December 31, 2006 (s. 271). This is Count 11 on the indictment.

38The one charge involving J.M. is said to have occurred between January 1, 2002 and December 31, 2006. In addition to being a volunteer firefighter J.M. had a personal friendship with Mr. Kissner. He said he had been at Mr. Kissner’s home on at least six occasions, including a New Year’s Eve dinner with several other persons.

39J.M. described one incident that made him feel uncomfortable. He said that Mr. Kissner needed to move a washer/dryer to his basement. J.M. offered to help. Another individual that assisted was a man who was currently staying in Mr. Kissner’s basement quarters. After the washer/dryer was moved, the three men had lunch and the third man left the premises leaving Mr. Kissner and J.M. alone.

40Mr. Kissner insisted that J.M. have a bath in his Jacuzzi bathtub. J.M. declined but Mr. Kissner kept pressing. Mr. Kissner filled up the bath. J.M. said he felt pressured. He followed Mr. Kissner into the bedroom. Before the bath, Mr. Kissner started massaging J.M.’s shoulders while J.M. was standing up. He rubbed his shoulders, then his back, then his buttocks over his jeans. J.M. recalls his pants being undone and then on the ground. He said that Mr. Kissner unclasped his belt buckle and his pants from behind. J.M. said his buttocks were touched over his underwear for at least a few minutes. After that, J.M. went into the bathroom and had a bath with the door closed.

41J.M. said that he left the fire department in 2008 primarily because he was uncomfortable around Mr. Kissner. Mr. Kissner’s touching the other men and rubbing the other men’s shoulders made him very uncomfortable. When he decided to leave the fire department, he wrote a letter of resignation and handed it to Mr. Kissner. Mr. Kissner told him there was no reason to leave.

42J.M. was a member of the Stannard group. J.M. was the host of the protest party. Chief Kissner objected to the timing of the party – he said it was unacceptable that it was the same night of the firefighters’ banquet. J.M. gave Chief Kissner an excuse. He said that he had put a greenhouse in and had a party to thank everyone who assisted.

43Mr. Kissner, in his evidence, recalls the time when J.M. and another man helped move a washer and dryer. J.M. had offered to help with the plumbing and electrical work required. After the washer and dryer was moved, according to Mr. Kissner, he asked J.M. if he wanted a Jacuzzi and massage to repay him for his help. J.M. said that he did not want to put Mr. Kissner out, but eventually agreed. J.M. took his shirt and pants off and laid face down on the bed. Mr. Kissner massaged him for approximately 10 to 15 minutes. He did not touch J.M.’s buttocks.

S.M.

44S.M. was a volunteer firefighter at the Kingsville Fire Department since May 1, 2006. In 2013, he applied to be the full-time fire prevention officer. He was successful and began his full-time position in January 2014. Mr. Kissner is charged with sexually assaulting S.M. between January 1, 2014 and December 31, 2014 and again on September 10, 2015 (s. 271). These are Counts 12 and 13 on the indictment.

45When S.M. was offered the position of fire prevention officer, he left his secure employment at Chrysler Canada for the job. He signed the paperwork to leave his job at Chrysler Canada in January 2014. His boss at the Kingsville Fire Department was Chief Kissner.

46According to S.M., in early 2014, shortly after he was hired as the fire prevention officer, Mr. Kissner told S.M. that he wanted to check the fire hydrants at certain locations. S.M. drove Mr. Kissner’s fire department vehicle to those locations. Mr. Kissner was in the passenger seat. According to S.M., Mr. Kissner put his hand in S.M.’s lap and groped his genitals with his hand. Chief Kissner did not ask for permission first. S.M. tried to pull away or guard his lap area with his right arm, but Mr. Kissner kept at it. He said that Mr. Kissner groped him “fairly hard”. During the groping, Chief Kissner talked about innocuous things. S.M. described being in shock.

47After the first occasion, S.M. said the groping by Chief Kissner in the vehicle happened approximately three to four times. S.M. said he did not say anything as he had just left his job at Chrysler and had financial responsibilities. He was concerned about losing his new job as the fire prevention officer.

48In addition to the groping in the vehicle, S.M. described groping that took place at the fire hall. S.M. said that approximately three to four times, while in his office at his desk, Mr. Kissner asked him to access a map on his computer screen. Mr. Kissner then knelt next to S.M.’s chair on the right side and groped S.M.’s penis and testicles.

49S.M. described one occasion that took place on September 10, 2015. He was driving Mr. Kissner to the airport at Mr. Kissner’s request. Mr. Kissner was in the passenger seat. On the way to the airport, Mr. Kissner put his hand in S.M.’s lap and groped his penis and testicles. When they arrived at the airport, Chief Kissner took his bags out of the vehicle and said to S.M. “If I am ever in your space, let me know”. S.M. said he just walked away. He was angry as the incident had already occurred and it was “too late to ask permission”. On that occasion, S.M. shared the incident with J.K. He texted J.K. after he dropped Mr. Kissner off at the airport saying “Took Bob to airport and got my balls rubbed all the way up – good times.” J.K. responded “Been there. I completely understand. Fuckin brutal…”

50S.M. travelled with Chief Kissner on two occasions to firefighter conferences in Indianapolis. The first occasion was in 2010 and the second occasion was in 2014. Six people from the fire department went to the 2010 conference. Four people went to the 2014 conference. There was always two men per hotel room and Chief Kissner decided who would room with who. Chief Kissner decided that S.M. would be in a hotel room with him. The trip in 2014 took place after the first groping incident. S.M. was concerned about rooming with Mr. Kissner as a result of the incident. He was asked if anything happened in Indianapolis. He described two events. The first event took place after the two men returned to the room following a training session. S.M. took a shower and Mr. Kissner was in the room. S.M. said that Mr. Kissner stood immediately outside of the frosted glass shower. On the second occasion, S.M. was in bed. Chief Kissner asked him if he wanted a massage. S.M. declined the offer. Chief Kissner came to S.M.’s bed and massaged S.M. anyways. S.M. kept repeating that he was “good” but the massage continued anyway.

51S.M. said in no uncertain terms that he did not enjoy it when Chief Kissner touched him; that he was never asked for his consent; that he never said or did anything to indicate that he was giving his consent.

52In cross-examination, it was suggested that the sexual touching in the vehicle occurred much more frequently than S.M. described. It was suggested that it occurred regularly on Wednesdays and Fridays when the two men went for lunch, as much as 50 times. S.M. said that it may have occurred, but not with regularity. He said that it was impossible that it would have occurred on 50 occasions.

53Mr. Kissner’s evidence painted a different picture. He said that S.M. and he were friends. He described S.M. as a “phenomenal” officer – a model employee. Chief Kissner said there was consensual physical contact between the two men. For example, he said that if S.M. was at his desk, then Chief Kissner would come up behind him and massage his shoulders. There was no reaction, positive or negative.

54On the first occasion of sexual touching, Chief Kissner described the two men in the vehicle driving while surveying the water hydrants in the district. He said that S.M. was driving. Mr. Kissner said he put his hand on S.M.’s thigh and then moved his hand up the thigh until he touched S.M.’s groin. The touching took place for approximately ten minutes. There was no reaction from S.M. After the touching, Mr. Kissner made the statement reported by S.M., namely “If I am ever in your space, let me know.” He said he made that statement earlier during massages, but never received a response, positive or negative.

55Mr. Kissner said there were two other contexts of sexual touching between the two men. One context was at S.M.’s desk. S.M. would call Mr. Kissner into his office to look at something on his computer. While doing so, Mr. Kissner would put his hand on S.M.’s thigh and his hand went straight to his groin. This happened multiple times. The second context involved occasions when the two men went to lunch. According to Mr. Kissner, lunches on Wednesdays and Fridays took place at Colasanti’s. Many of the firefighters went there for lunch on Wednesdays and Fridays. S.M. would come to Mr. Kissner’s office and say “it’s Wednesday” or “it’s Friday” intimating the two should go for lunch. S.M. would drive and on the way to lunch Mr. Kissner would put his hand on S.M.’s thigh and then onto his groin. According to Mr. Kissner, this happened approximately 50 times. Mr. Kissner felt that he had an invitation to touch S.M. because S.M. invited him for lunch. He thought S.M. enjoyed it. He said that S.M. did not pull away or express displeasure.

56Mr. Kissner recalled the drive to the airport. He recalled groping S.M.’s penis and testicles on the way there. He said he had his hand on S.M.’s thigh and then moved upwards. He said there was no reaction from S.M. The groping occurred over about ten minutes.

57Under cross-examination, Chief Kissner agreed that S.M. never said or did anything to directly encourage him to touch his genitals. Mr. Kissner invited S.M. to his hot tub, but he always declined. S.M. frequently declined massages. Nonetheless, Mr. Kissner said that he thought that S.M. wanted him to reach over and touch his penis and testicles. He said that he understood S.M.’s asking him to his computer to see something, or saying “it’s Wednesday” or “it’s Friday” as invitations to touch his genitals.

58Mr. Kissner was asked about the very first occasion of sexual touching with S.M. He agreed that S.M. had not shown any sexual interest in Mr. Kissner. Yet out of the blue, Mr. Kissner reached across the console and touched S.M.’s groin. When asked why, he said he “didn’t know”. Ms. Holmes asked “why not ask permission?” And Mr. Kissner replied “I wish I had”. Mr. Kissner agreed that he never asked, not once, for permission to touch S.M.’s penis and testicles.

J.K.

59J.K. was a firefighter at the Kingsville Fire Department, south station, for 25 years at the time of trial. He worked with Chief Kissner for 22 to 23 years and the two men became friends. J.K. lived in Mr. Kissner’s home for approximately 11 months during a time of marital strife for J.K. Mr. Kissner is charged with sexually assaulting J.K. on two occasions, the first between May 1, 2016 and June 30, 2016, and the second between September 1, 2016 and September 30, 2016 (s. 271). These are Counts 14 and 15 on the indictment.

60During a period of time of marital strife, between October 2015 and September 2016, J.K. stayed at Mr. Kissner’s home. He stayed in the finished basement. His quarters included a sitting room, a bedroom and a bathroom. J.K. stayed at Mr. Kissner’s house so that he could be close to his family and his workplace. He said he was there for approximately 11 months. During that time, J.K.’s two sons stayed with him during access times. J.K.’s youngest son moved in for a brief period in April 2016 after he had a fight with his mother.

61J.K. was asked if there was anything unusual with the living quarters in the basement. He spoke about the mirror on the wall in the bathroom. He said it appeared as though the mirror had been hung in the wrong place. There were boreholes in the wall close to the mirror that had caulking in them. One morning, when J.K. was in the laundry room, he caught Mr. Kissner peeking through one of these holes. He thought it was weird, but did not say anything.

62According to J.K., Mr. Kissner tried to massage him dozens of times. He said it ended up with him trying to squirm away, pray for a fire call or hope the phone rings. It happened in the fire hall, when Chief Kissner would grab his shoulders and rub them. It happened at Chief Kissner’s home. J.K. said “if he made you drive (he was famous for that) you have to protect yourself”.

63J.K. described two specific events of inappropriate touching. He said the first time happened in May 2016. He was at the fire hall with his squad on a Monday night doing truck checks. He was inside one of the trucks in the backseat. He was wearing shorts, a T-shirt and work boots. He said that Mr. Kissner came onto the step beside his seat and started rubbing his leg. He kept sliding his hand up higher and higher and eventually grabbed J.K.’s penis under his shorts. J.K. said he squirmed away to the centre seat.

64The second incident described by J.K. happened in the fall of 2016. He was in the throes of a family law dispute with his ex-wife. He had to fax something to his lawyer. He used the fax machine at the fire station. Mr. Kissner offered to help and then knelt by his seat. J.K. was wearing shorts. Mr. Kissner’s hand started rubbing J.K.’s leg higher and higher and then Mr. Kissner grabbed J.K.’s penis under his shorts. J.K. jumped out of the way.

65J.K. did not say anything to Mr. Kissner at the time of either one of these two occasions. He said “it’s tough to say anything because he’s a supervisor”.

66In his evidence, J.K. described attending at Mr. Kissner’s home for lunches. He described massages where Mr. Kissner’s hands would wander to his genitals. He described Mr. Kissner persistently offering massages. J.K. said that he was never massaged on his buttocks. He never used the Jacuzzi bathtub. J.K described one instance when he and Mr. Kissner were staying together in a hotel room in New York. He said that Mr. Kissner masturbated on the toilet and then threw his underwear onto a chair across the room.

67Under cross-examination, Mr. Marley’s questions pointed to the friendship that Mr. Kissner had with J.K. At the time of Mr. Kissner’s arrest, J.K. was visibly upset; he told Mr. Kissner he could not believe the charges; he told Mr. Kissner that he would fully support him. The suggestion was that Mr. Kissner had a consensual sexual relationship with J.K. The suggestion was denied. J.K. denied any homosexual activity with Mr. Kissner.

68Under cross-examination, and during the evidence of Mr. Kissner, it was made clear that J.K. and Mr. Kissner had more than a co-worker relationship. According to J.K., they were friends. Mr. Kissner was a confidante. J.K. spoke to Mr. Kissner and sought advice from him around the time of his separation from his wife. When J.K.’s boys stayed overnight for access purposes, Mr. Kissner prepared meals and assisted them with their schoolwork. J.K. and his boys stayed at Mr. Kissner’s home rent free. It was an act of generosity during a period of time when J.K. was going through a tough time personally.

69After Mr. Kissner was arrested, J.K. showed support for Mr. Kissner. He told him he did not believe any of the allegations. On Christmas Eve of 2016, two weeks after Mr. Kissner’s arrest, J.K.’s girlfriend made Mr. Kissner Christmas dinner. J.K. delivered the food in his vehicle.

70When J.K. first met with Detective Beneteau, he did not tell him his memories of the inappropriate touching. He said the Children’s Aid Society was involved with he and his ex-wife and he did not want to make any allegations in case they impacted negatively against him in that investigation.

71J.K was antagonistic during cross-examination. He became argumentative with Mr. Marley. Mr. Marley suggested that there was a physical relationship between J.K. and Mr. Kissner. He suggested that massages were frequently offered and J.K. frequently accepted. J.K. became adamant that he did not say yes to a massage at any time. He would say no or move away. Mr. Marley suggested that Mr. Kissner regularly massaged J.K., leading to masturbation that culminated in ejaculation, and that J.K. enjoyed it. J.K. strongly disagreed and said that there was never any homosexual activity between he and Mr. Kissner.

72According to Mr. Kissner, he regularly gave J.K. massages at lunch time. At one point, J.K. became aroused and Mr. Kissner masturbated him to ejaculation. He said he and J.K. were physical at least half of the time they attended at Mr. Kissner’s for lunch. He said that J.K. automatically took his clothes off for a massage. Mr. Kissner would massage J.K. naked. J.K. would roll over with an erection and Mr. Kissner would ask “do you want anything done with that?” Mr. Kissner would then masturbate J.K. following which J.K. would get dressed and they would return to the station. Mr. Kissner described masturbating J.K. approximately 10 to 12 times. He said that J.K. indicated enjoyment with “moans and groans”.

73According to Chief Kissner, he and J.K. travelled to New York City in 2015. Mr. Kissner had taken seven groups of firefighters to New York City to tour the 9/11 site. J.K. was not available to attend at the time the group went, and so the two of them made a separate trip. They shared a room to keep costs down. While in the room, Mr. Kissner said that he massaged J.K. while J.K. was not clothed. This happened on two occasions one night. The next morning, J.K. apologized for not reciprocating.

74In the summer of 2016, there was another group that went to New York City and J.K. came along. The two men stayed in a room together again. At that time, there was no physical contact. Mr. Kissner said he offered a massage and J.K. declined.

75Mr. Kissner denied peaking at J.K. through a hole in the washroom wall. He denied ever being caught trying to peak. When Mr. Kissner was asked about the first incident of touching in the fire truck described by J.K., Mr. Kissner said he did not recall the event but it “could have happened”. He said “I would have thought nothing of it given what happened between us in the past.” When Mr. Kissner was asked about the second incident of touching described by J.K., he gave the same evidence. He said he did not remember the event but that it “could have happened”. He said J.K. regularly asked him to help with divorce papers and he always complied because J.K. was a close friend. According to Mr. Kissner, he touched J.K. dozens of times at the fire hall, in vehicles, on trips and at his home. He described an intimate relationship between the two men.

76Under cross-examination, Mr. Kissner repeated that he could not recall touching J.K.’s penis either in the fire truck or in his office. He said that if it happened, then he “presumed it was okay due to their prior contact”.

The Younger Complaints

T.W.

77T.W. was born May 26, 1985. His father was a firefighter with the Kingsville Fire Department serving as captain of the north station. T.W. wanted to be a firefighter as well. He is currently employed as a firefighter with the Canadian Armed Forces.

78When T.W. was in high school, grade 10, he completed a co-op placement at the Kingsville Fire Department as part of his curriculum. He was 15 to 16 years old at the time. He also stayed at Mr. Kissner’s home on occasion. Mr. Kissner is charged with sexual assault (s. 271) and sexual exploitation (s. 153(1)(a)) in respect of T.W. The sexual exploitation is alleged to have occurred between January 1, 2001 and December 31, 2003. The sexual assault is alleged to have occurred between December 1, 2001 and December 31, 2003. These are Counts 7 and 8 on the indictment.

79T.W. attended the Leamington high school at the time of the events. At the time, Mr. Kissner was in his 40s. While he was in high school, T.W. completed his required community service hours at the Kingsville fire hall. According to T.W., he completed far more hours of community service then was required. He also completed a co-op placement at the fire hall in his grade 10 year, when he was 15-16 years of age. His tasks were to clean the trucks, fill the air bottles, clean and pack the fire hose, load the vehicles for public education and help to fill out forms. On occasion, he attended on fire calls with Mr. Kissner in one of the fire department vehicles. While on calls, T.W. would perform minor tasks such as helping with the fire hose or acting as the chief’s scribe on the scene. T.W. reported to either Mr. Kissner or the captains at the fire hall at the time. He took his direction from Mr. Kissner. At the time, Mr. Kissner was the only full-time employee of the fire hall. All of the firefighters were volunteers.

80For his co-op placement, T.W. received two high school credits. The placement was part of his curriculum. There was an attendance sheet that needed to be completed.

81During the time in question, T.W. was having difficulty in his relationship with his parents. He spent a lot of time at the fire hall in order to be away from home. He told Mr. Kissner about the issues he had with his parents. There were occasions when he stayed overnight at Mr. Kissner’s home with his parents’ knowledge and permission, primarily after training sessions at the fire hall.

82T.W. attended at Mr. Kissner’s private residence often for lunch. He said that Mr. Kissner would make frozen dinners or they would pick up Subway. T.W. testified that between January 1, 2001 and December 3, 2003 Mr. Kissner touched him on approximately eight occasions that made him feel uncomfortable.

83On approximately eight occasions, with most of the occasions happening at lunch time and some of the occasions happening at night, Mr. Kissner drew a bath in his Jacuzzi tab. T.W. had a bath. He then lay on Mr. Kissner’s bed where Mr. Kissner massaged his shoulders, back and buttocks, told him to roll over, and massaged his chest. The massage eventually culminated in Mr. Kissner masturbating T.W.

84One specific occasion that T.W. remembered occurred when he was a co-op student. He was 15 or 16 years of age at the time. He went to Mr. Kissner’s home with Mr. Kissner at lunch time. He said they had lunch and watched Price Is Right on the television. Mr. Kissner offered a bath in the Jacuzzi tub. Mr. Kissner ran a bath for T.W. and T.W. disrobed and went into the bathtub. Mr. Kissner knocked on the door and came into the bathroom while T.W. was in the tub. He said they had a conversation. Mr. Kissner made reference to T.W.’s genitalia saying it was large. After the bath, Mr. Kissner offered a nap on his bed. He came onto the bed with T.W. and offered a back rub. Mr. Kissner gave T.W. a backrub and rubbed his buttocks. Mr. Kissner said “let’s do the legs” and told T.W. to take off his pants. Mr. Kissner rubbed T.W.’s legs and back, reaching under his underwear to rub his bare buttocks. Mr. Kissner then told T.W. it was time to flip over, so he did. Mr. Kissner rubbed his front, including his genitalia.

85This series of events, namely a bath, then a massage in the bed, then being told to roll over, then masturbation, occurred approximately eight times. T.W. described the masturbation as a full palm graze up his scrotum onto the top of his penis. Most of the occasions occurred at lunch time. Some of the occasions occurred in the evening.

86On one occasion, Mr. Kissner asked for reciprocation. Mr. Kissner was naked at the time. T.W. gave him a back massage and grazed his penis but did not masturbate him. Mr. Kissner masturbated himself.

87Most of the occasions that T.W. spent overnight in Mr. Kissner’s home, he slept in Mr. Kissner’s bed. He also remembers sleeping in the spare room. He said that on one occasion, he woke up and Mr. Kissner was rubbing his penis with his hand.

88On one occasion, while T.W. and Mr. Kissner were in the fire chief’s vehicle together responding to a fire call, T.W. said that he had just woken up before the call came in. He had an erection. In the vehicle, Mr. Kissner said “pitching a tent there” and tapped the top of his penis.

89On one occasion, Mr. Kissner gave T.W. a film container and told him to try to fill it with ejaculate. T.W. left the room, completed the task, and returned the full film container to Mr. Kissner. Under cross-examination, T.W. agreed that this occurred following a crude conversation about who could ejaculate more. T.W. said that such conversations were rampant throughout the fire department at the time.

90T.W. said that the physical contact between he and Mr. Kissner made him feel very uncomfortable. Mr. Kissner was his mentor. He talked to Mr. Kissner about significant topics, such as religion. T.W. said that he went to a Catholic high school and was in a Pentecostal youth group. He was “finding his way”. He had conversations with Mr. Kissner about his belief system. He attended choir practice with Mr. Kissner, generally on Tuesday evenings following which he would stay overnight. Mr. Kissner was the church organist.

91T.W. said that Mr. Kissner may have asked for permission on occasion. T.W. never said yes but also did not say no. When he was asked why, he said that Mr. Kissner was his mentor – Mr. Kissner called him “son” – T.W. saw Mr. Kissner as extended family.

92Near the end of the relationship with Mr. Kissner, T.W. said he tried to distance himself. He tried to turn away and began to refuse contact.

93T.W. continued to maintain contact with Chief Kissner until 2016. He still thought of him as a family member. After T.W. joined the fire service, he spoke to Mr. Kissner about training programs and legislation. They exchanged gifts. He continued to ask Mr. Kissner for advice on a personal level.

94After his co-op was completed, T.W. gave Mr. Kissner a painting that he had created himself with the caption on the back “To Bob: thanks for being such a great mentor and friend this past year and a half, I have learned a lot and hope to work with you on scene one day! Thanks again! Sincerely T.W. 2002 co-op”. Mr. Kissner attended T.W.’s ceremony on his swearing-in to the armed forces. T.W.’s mother took a photo of the two of them on the special day and wrote on the back of it “T and his mentor”. In June 2016, T.W. asked Mr. Kissner for a reference for employment. T.W. was seeking employment throughout the province, including at the Kingsville Fire Department.

95While he was still in high school, T.W. told two of his friends, M.G. and A.R. about the touching. Both of these gentlemen gave evidence. Both said that T.W. told them, while they were in high school, that he had been touched by Mr. Kissner in a manner that made him feel uncomfortable. They said that T.W.’s demeanor displayed extreme discomfort.

96According to T.W., in 2009 he attempted to take his own life. He confided in his then wife, F., and the two of them travelled to Kingsville so that T.W. could confront Mr. Kissner. They attended at the fire hall. T.W. told F. to stay in the car. He went into Mr. Kissner’s office. He told Mr. Kissner about the attempt on his life. He said he asked Mr. Kissner if he touched anybody else in a sexual manner and the answer was “no”. T.W. told Mr. Kissner that he would continue to protect him because he thought “he was the only one”. He told Mr. Kissner if he heard about any other victims he would come forward.

97When asked why he did not come forward earlier, T.W. said he did not come forward between 2001 and 2009 because he was in the military where there was a lot of bravado. T.W. did not want to be the “the guy who was touched”. Between 2001 and 2003, he did not come forward because he did not think he would be believed. He did not want his father to lose his job as a firefighter. After 2009, he did not come forward because Mr. Kissner told him he was the only one. He decided to come forward in 2016 after he heard about the charges laid against Mr. Kissner.

98Further information was obtained under cross-examination by Mr. Marley. T.W. agreed that the camaraderie between firefighters attracted him to the profession. He said “firefighting was my sport”.

99T.W. agreed that Mr. Kissner is a physically demonstrative person. He said he became used to touching of some kind by Mr. Kissner. Under cross-examination of T.W., It was suggested that much of the touching was innocuous and was not sexual. It was suggested that the touching that was sexual occurred on consent. T.W. agreed that he could have refused the baths. He agreed that he could have refused the massages. He said he thought it would have been rude to say “no”, but agrees that he was not compelled. He agreed that, at first, the massages were not sexual.

100Before the touching became sexual, T.W. went to Frankenmuth, Michigan with Mr. Kissner. He said that he and Mr. Kissner went in one vehicle and two other firefighters went in a second vehicle. Mr. Marley suggested to T.W. that, while Mr. Kissner was driving down the highway, T.W. took his penis out of his pants. T.W. agreed that the incident may have happened but he could not recall. He said that within the fire department, that type of behaviour was encouraged. The fire hall was populated by male firefighters and the language and behaviour was sometimes crass.

101Mr. Marley suggested to T.W. that, while in Mr. Kissner’s home, he exposed his penis on occasion. T.W. denied the allegation.

102It was suggested to T.W. that he asked Mr. Kissner to massage his buttocks. T.W. disagreed. It was suggested that T.W. rolled over specifically so that Mr. Kissner could massage his penis. T.W. disagreed. The suggestion was that the sexual relationship was consensual. T.W. disagreed. It was suggested to T.W. that the eight times that he was touched sexually occurred because he wanted it to. T.W. disagreed. It was suggested to T.W. that he enjoyed the sexual touching. T.W. disagreed. T.W. did agree that in retrospect it does not make sense that he continued to stay overnight or attend at Mr. Kissner’s home for lunch knowing that the abuse might occur. It was suggested to T.W. that when he stayed overnight and he slept in Mr. Kissner’s bed, Mr. Kissner left the bed after T.W. went to sleep. T.W. disagreed. He said he woke up in the night with Mr. Kissner still in bed with him.

103As for the confrontation that T.W. said occurred in 2009, Mr. Marley suggested to T.W. that it occurred in 2003. He suggested that T.W. was confused about his sexual orientation and uncomfortable with the touching and told Mr. Kissner he wanted it to stop, following which it stopped. Mr. Marley suggested that the conversation was about terminating their sexual contact. T.W. disagreed. He said that the confrontation had happened after T.W. had moved away from Kingsville for a number of years, he was married and had made an attempt on his own life. T.W. said that the conversation was accusatory. T.W. was confronting Mr. Kissner. T.W. did agree that there was no more touching after the conversation took place.

104Mr. Kissner testified and gave his side of the story of the encounters with T.W. He agreed with the timing of their relationship as described by T.W. He agreed that T.W. looked at him as a mentor. He agreed that T.W. came to his home frequently for lunch. He agreed that T.W. stayed overnight at his home.

105Mr. Kissner described the trip to Frankenmuth where he and T.W. were in the cab of the fire truck together. He said he looked over and saw T.W. had unzipped his pants and pulled his penis out. Mr. Kissner told him to put it away and smarten up. On other occasions, Mr. Kissner said he was in the bathroom and T.W. walked in with his penis hanging out. He said that T.W. took it as a joke. Mr. Kissner told T.W. to get out of the bathroom and put his penis away.

106Mr. Kissner said that on approximately eight or nine occasions he offered T.W. a massage and T.W. accepted. He said that on a few of those occasions, T.W. removed his clothing. He said T.W. would say “I want a full massage – you can touch my butt and genitals”. He said that there were times he touched T.W.’s buttocks and genitals. He said that T.W. asked him to touch his buttocks and his genitals and he did. He said that the touching bordered on masturbation but it was “very brief”. He said that T.W. never ejaculated. He said that T.W. seemed to enjoy the touching. He did not pull away, get up or say “stop”. On occasion T.W. said the touching felt good and he was relaxed. Mr. Kissner said that if T.W. turned over from his front to his back during the massage, it was of its own accord. Mr. Kissner did not roll him over.

107Mr. Kissner recalls T.W. having an erection while the two of them were in his car, but denied that he touched his erect penis. Mr. Kissner said that he did not have any sexual interest in T.W. He was not sexually aroused when he touched T.W.

108Mr. Kissner denied fondling T.W. while he was sleeping. He said that T.W. massaged him on two occasions. On one occasion Mr. Kissner was in his boxer shorts. On the second occasion, Mr. Kissner was naked. The two of them were naked in each other’s presence, “but not often”.

109As for the later confrontation, Mr. Kissner said that T.W. came into the fire station in 2003, as opposed to 2009. T.W. said that some of the behaviour that took place between the two men made him feel uncomfortable and he did not want to continue. Mr. Kissner said that his reply was “okay, we’ll just have our friendship”. His interpretation of the conversation was that T.W. was uncomfortable with the touching at the time of the meeting but not at the time the touching occurred. Subsequently the parties continued with a personal friendship but there was no further sexual contact between them.

110Mr. Kissner said that he recalled hearing about the suicide attempt of T.W. It happened sometime after the confrontation. He said he spoke with T.W. by phone. T.W. told him that he had no recollection of what happened, but that “this has nothing to do with you”.

111Mr. Kissner said that when there was sexual contact between he and T.W., there was no indication that T.W. was uncomfortable. He did not ever tell T.W. that he could lose his co-op placement if he did not participate in the sexual encounters. He did not ever tell T.W. that his father could be fired if he did not participate in the sexual encounters. He said he did everything he could to help T.W. advance his career because he thought they were friends.

112T.W.’s father gave evidence. He had been employed with Transit Windsor and, at the time of trial, was retired. He had been a volunteer firefighter in Kingsville since 1993. He became a captain in approximately 2009. Chief Kissner was his boss.

113At the time that T.W. completed his co-op placement, Mr. Kissner was well-respected in the town of Kingsville. Mr. W. Sr. saw his son showing interest in the business of firefighting and thought that there was no one better to guide him than Mr. Kissner. He said that T.W. was a rebellious teen at the time and he thought that spending time with Mr. Kissner was positive – that it was good for him. Mr. W. Sr. was not aware that his son had been touched sexually by Mr. Kissner until charges against Chief Kissner were reported in the local newspaper and he called his son to let him know. Mr. W. Sr. confirmed that Chief Kissner was a touchy/feely person. He observed him touching the students in particular with a hand on their back; a hand on their knee; sitting close beside them to look on the computer; squeezing their shoulders.

114In cross-examination, Mr. W. Sr. was asked about workplace policies on harassment. He said that it was “drilled into their heads that if you went over the chief’s head to talk to anyone your career would be in jeopardy”. He said there was “not much of a policy at the time”.

J.R.

115J.R. was born on June 9, 1990. His father was a firefighter with the Kingsville Fire Department at the south station for 29 years. When J.R. was a high school student he completed his community service hours at the Kingsville Fire Department. He also completed a co-op program for high school credits when he was in grade 11 or 12 at 16-17 years of age. He became part of the junior firefighting program. Mr. Kissner is charged with sexual exploitation (s. 153(1)(a)) and sexual assault (s. 271) on J.R. The alleged incidents are said to have occurred between January 1, 2004 and December 31, 2008, during the period of time that J.R. was 14 to 18 years of age. These are Counts 5 and 6 on the indictment.

116JR said when he was at the fire hall, he would report to Mr. Kissner. He was given odd jobs to do around the hall or would occupy his time cleaning. He kept a log of tasks performed and Mr. Kissner or the deputy chief would sign the log.

117J.R.’s father was a firefighter at the south station. Mr. Kissner was his boss. Mr. Kissner also volunteered at the same church as J.R.’s grandparents.

118According to J.R., while he was a 17-year-old co-op student, he attended at Mr. Kissner’s home approximately 15 to 16 times. He often had lunch there. On one occasion, after eating lunch, J.R. was watching television. Mr. Kissner got up and started to run a bath in his Jacuzzi tub, located in the en suite bathroom adjacent to the master bedroom. Mr. Kissner came out of the bedroom and asked J.R. to get into the Jacuzzi tub. J.R. got into the tub, stayed approximately five minutes, got out and put his clothing back on from the waist down. He opened the bathroom door shirtless. Mr. Kissner was standing at the door. Mr. Kissner asked J.R. to lay down on his bed. He laid face down. Mr. Kissner massaged his shoulders and his back. Mr. Kissner put his hand on top of J.R.’s buttocks over top of his pants and left it there for a few minutes. He could not recall if the hand was rubbing his buttocks or just resting there. The event terminated when a pager was activated for a fire call.

119After the incident, J.R. and Chief Kissner went back to the fire hall. J.R.’s father asked him why his hair was wet. J.R. did not answer his father. He said he was shocked and ashamed of himself for letting it happen. He said nothing about the incident.

120Between the years of 2004 and 2008, according to J.R., Mr. Kissner touched his buttocks dozens of times. He rubbed his shoulders and his back dozens of times. If J.R. was reading something at a table, Mr. Kissner would sit down beside him and rub his leg and thigh. Mr. Kissner never touched his genitals. According to J.R., he felt uncomfortable every time he was touched by Mr. Kissner. When J.R. was asked why he did not say anything, or why he allowed it to happen, he said “at 16 when your boss asks you to do something you do it”. He said he did not feel like there was anybody to go to and that he is “not so great at helping myself”. He said he did not think his lack of objection gave Mr. Kissner permission to touch.

121In 2009, J.R. went through the first step in the process to become a volunteer firefighter. He did not pass the aptitude test. Afterward, J.R. moved to northern Ontario and found work with the Sudbury Fire Department. He used Chief Kissner as a reference. He said he did so as his mother told him to. In 2016, after working at the Sudbury Fire Department for a few years, J.R. returned to Kingsville and was hired by the Kingsville Fire Department approximately six months after Mr. Kissner’s arrest.

122In cross-examination, it was suggested to J.R. that Mr. Kissner’s touching of the firefighters under his command, patting their shoulders, smacking their butt, is much like a coach on a baseball team. J.R. vehemently disagreed. He said that he is a baseball coach, has played baseball, and has never seen the type of touching that Mr. Kissner engages in.

123According to Mr. Kissner, he has known J.R. his entire life. J.R.’s father was a firefighter at the south hall, squad 4. His mother was a dispatcher. J.R. attended with the squad for truck check nights and participated in activities.

124Mr. Kissner described some discipline issues that he had with J.R. On June 25, 2008, there was a major fire at the Kingsville golf club. J.R. was a junior firefighter at the time. Mr. Kissner explained that a management system is used during a fire call. The aerial tower needs to be placed in the correct location. The firefighters set up the aerial truck and, after Mr. Kissner arrived at the site, he said he wanted it moved. J.R. resisted and Mr. Kissner said “do what you’re told and I don’t want to hear about it”. Mr. Kissner described J.R. as disrespectful. The truck was repositioned. The very next day, J.R. came into the station, handed his pager in and said that he had decided not to go to firefighting school.

125Mr. Kissner recalled the one occasion that J.R. went into his Jacuzzi tub and received a massage. He said this happened closer to 2008. After lunch, Mr. Kissner said he offered J.R. a massage in the Jacuzzi. J.R. went into the Jacuzzi tub, stayed for about 15 minutes and then came out shirtless. He lay down on the bed, facedown. Mr. Kissner massaged his neck, shoulders, back and legs over his pants. The massage lasted about six to seven minutes and the pager went off. Mr. Kissner said there was no touching of buttocks or genitals. Mr. Kissner denied putting his hand on J.R.’s buttocks.

126According to Mr. Kissner, there was only the one massage, and he never touched J.R.’s buttocks.

127J.R. sent Mr. Kissner an email on June 14, 2016. He indicated he had recently moved to Kingsville and “I’m currently dealing with some serious issues and have been diagnosed with severe PTSD”. He told Mr. Kissner that he had been seeing a psychiatrist and a social worker. He asked Mr. Kissner if he could sit down and speak with him. He said he was “looking for someone I can really trust who knows the job”. J.R. said that when he moved from Sudbury to Kingsville he did have a difficult time. His mother suggested that he speak to Mr. Kissner for advice as it was job-related. The two of them did meet for approximately half an hour. On June 27, 2016, J.R. sent Mr. Kissner another email. Mr. Kissner had provided some information, and J.R. thanked him for it.

128J.R.’s mother gave evidence. She used to be a dispatcher with the Kingsville Fire Department and firefighting was a big part of her family’s life. She recalled one occasion where J.R. said that Mr. Kissner had been touching his bum a lot and it was bothering him. She said she did not think anything of it – she thought it was similar to the type of touching that happens with sports teams. She told her son that. J.R. said “no mom – it’s something different – it’s weird”. He said “it happens when nobody’s around”. She just told him to try not to be alone with Mr. Kissner.

129J.R.’s mother told him that she was the one who insisted he use Mr. Kissner as a reference when he applied for the Sudbury Fire Department.

130J.R.’s mother remembered comments from Mr. Kissner that she said were unusual. The first was when J.R. was in grade 10. Chief Kissner said that if they ever had any problems with J.R., then J.R. could come and live with him. The second occurred when J.R. was 15 and he brought a girlfriend to the firefighter recognition banquet. Chief Kissner came up behind J.R. and rubbed his shoulders. He leaned down and said to J.R. “what happens at the fire hall stays at the fire hall”. At the time, J.R.’s mother thought it was because J.R. had done something wrong.

H.N.

131H.N. was born on March 17, 1999. When he was 13 years of age, in 2012, H.N. had a business doing outdoor odd jobs for residences and Mr. Kissner became a client. H.N. completed his community service hours at the Kingsville fire hall. He developed an interest in firefighting. In the summer of 2016, H.N. was a paid summer student employee and contemporaneously was a co-op student at the Kingsville Fire Department. Mr. Kissner is charged with sexual exploitation and sexual assault in respect of H.N. The alleged incidents are said to have occurred between June 1, 2015 and October 31, 2016. H.N. was 16 and 17 years old at the time. These are Counts 16 and 17 on the indictment.

132In the summer of 2016, H.N. was able to work for pay at the fire hall and obtain his co-op credits at the same time. He obtained the job first and then asked his co-op teacher, Ms. Simonton, if he could attach a co-op placement to it and she agreed. He reported directly to Mr. Kissner. Mr. Kissner was his supervisor and signed his co-op paperwork required for school. H.N.’s duties included cleaning trucks, painting doors and attending on fire calls with Mr. Kissner. Once he started working at the fire hall, he no longer was active in his business.

133When he attended on fire calls with Mr. Kissner, H.N. drove Mr. Kissner’s fire department vehicle, a Tahoe. On well over a dozen occasions, he drove the vehicle with the lights and sirens flashing. He said he drove the vehicle every day, whether on calls or not, with Mr. Kissner in the passenger seat. He had either his G1 driver’s licence or his G2 driver’s licence at the time. When he had his G2 driver’s licence, he drove the vehicle by himself. He said it made him feel “pretty special”. When he was at the fire hall and a call came in, Mr. Kissner would give him the option to drive. Mr. Kissner told H.N. that some of the other firefighters were questioning his practice of allowing H.N. to drive his vehicle to a fire call. The practice continued after the conversation.

134H.N. made certain allegations against Mr. Kissner of inappropriate touching. He said the first time was in the summer of 2015 when he was at Mr. Kissner’s residence doing outdoor work. Mr. Kissner offered him a soda and persistently offered a massage. H.N. said he repeatedly declined but ended up laying down on the couch to get Mr. Kissner to stop asking. He laid on his stomach. He had shorts and a T-shirt on with underwear. Mr. Kissner massaged his back, legs and shoulders. H.N. felt uncomfortable. Mr. Kissner directed him to roll over onto his back, and he did. Mr. Kissner massaged his arms and shoulders. Then his hands touched H.N.’s penis over top and underneath his shorts. Mr. Kissner grabbed H.N.’s penis for 8 to 10 seconds and then H.N. stood up. H.N. said that this happened again in the same fashion roughly a dozen times during the summer of 2015 and the summer of 2016.

135H.N. said that Mr. Kissner offered him a bath on several occasions. On one occasion, he was insistent. Mr. Kissner drew him a bath in his Jacuzzi tub and H.N. had the bath. He was alone in the bathroom at the time. After the bath, H.N. dried off, got dressed and opened the bathroom door. Mr. Kissner was in the bedroom doorway and told him to lay down on the bed. H.N. laid down on his stomach. The same events occurred, namely a massage that led to the touching of H.N.’s genitals. It ended in the same fashion, with H.N. standing up.

136On one occasion, the summer of 2015, when H.N. was driving Mr. Kissner’s fire department vehicle with Mr. Kissner in the passenger seat, there was inappropriate touching. Mr. Kissner said that he needed to do radio testing and the two drove almost to Belle River to see how far the radios could maintain their signals. H.N. said that while he was driving the vehicle Mr. Kissner touched his penis with his hands over top of his pants. H.N. took his right hand off of the steering wheel and put his arm on the console in between the seats to protect himself. He said that Mr. Kissner kept trying to touch him but H.N. kept protecting his groin area so Mr. Kissner eventually stopped trying.

137Some of the firefighters who gave evidence expressed concern about some of the activities that Chief Kissner allowed H.N. to do. In particular, H.N. was allowed to drive the chief’s vehicle with lights and sirens to an emergency call. He did not receive any training for this activity.

138In October 2016, Chief Kissner took H.N. and nine others to New York City. Seven of the others were volunteer firefighters and their spouses. They stayed in a hotel. A few months earlier, in July, Chief Kissner told H.N. that he was planning a trip to New York City and offered to take him along and have him share his room. They would be visiting the 9/11 site and the Memorial Museum. H.N. agreed to go. He said he felt it was a good opportunity to see New York City. His parents consented to the trip and arranged for him to miss school. H.N. took homework with him. He said on one occasion, Chief Kissner massaged his shoulders in the room while he was doing homework. Chief Kissner encouraged him to lay down so he could massage his back. H.N. stood his ground and said no, that he had too much homework to do. After the New York trip, there was no more touching.

139H.N. described a close relationship between he and Chief Kissner. He became aware in the middle of December 2016 that Chief Kissner had been arrested. He kept in touch with him by phone or text after the arrest. He saw Chief Kissner physically three to four times. He gave Chief Kissner his father’s old phone after Mr. Kissner’s phone had been taken by the police. The text messages were filed as an exhibit at the trial. They took place between December 17 and December 28. They illustrate some concern on the part of H.N. for Chief Kissner and an offer of friendship and support by H.N.

140H.N. attended at the Kingsville Police Department on two occasions to provide a statement, December 28, 2016 and March 20, 2017. On the first occasion, H.N. attended at the station in response to a call from Detective Beneteau. His father was present for the statement. On that occasion, H.N. told Detective Beneteau that there was no inappropriate touching. H.N. acknowledged that, in doing so, he did not tell Detective Beneteau the truth. He said that he was embarrassed about what happened and he did not want people to know. Instead, he told Detective Beneteau that Chief Kissner was a role model and a positive influence.

141On December 27, H.N. visited Mr. Kissner in his home. H.N. told Mr. Kissner that he had been beckoned to the police station the next day. Earlier in the day on December 28, H.N. was headed across the border with his father. H.N. and Chief Kissner were texting. It is clear from the texts that Chief Kissner knew about the upcoming police interview and was concerned about what H.N. would say. Between the time that H.N. returned home from his outing in the United States and the time he left for his interview (7:00 p.m.), Chief Kissner showed up at his house. H.N. and his father were just getting into his father’s truck to drive to the police station. Chief Kissner parked on the street, ran across the lawn and came to the passenger door to speak with H.N. He told H.N. to tell the truth about the recent contact the two of them had, and to only answer the questions asked and not elaborate.

142On March 20, 2017, H.N. reached out to Detective Beneteau. H.N. had turned 18 years of age three days earlier and felt that since he was an adult, he could speak to the police without his parents knowing. He described for Detective Beneteau the touching that he described in his testimony. H.N. said that he chose to come forward in March because he was ashamed that he had not spoken up in the earlier interview. He said telling Detective Beneteau about the incidences was “a hard thing to do”. He felt he needed to come forth to provide his support to the other victims.

143H.N.’s parents both gave evidence at trial. They were both present at the time that Chief Kissner approached the vehicle before H.N. left for the police station with his father. His mother heard Chief Kissner tell H.N. to “tell the truth”. After H.N. and his father returned home following the police interview, H.N. told his parents that he had been touched. In the next few months, he seemed distant. He had trouble at school. He changed his friend group. During those few months, H.N.’s parents encouraged him to tell Detective Beneteau the truth. When he went to see Detective Beneteau the second time, he did not tell his parents until after he had done so. He seemed relieved afterwards.

144In his evidence, Chief Kissner confirmed the friendship that H.N. and his family provided to him following his arrest. He was contacted in the form of telephone calls and text messages. There were visits. Chief Kissner saw H.N. on four separate occasions between his arrest and December 28. H.N.’s father provided a telephone for him.

145The December 28th conversation took place because Chief Kissner was concerned that H.N. be honest about the contact between the two of them after his arrest. According to Chief Kissner, he said to H.N. “thanks for going to support me and make sure you tell the truth”. The conversation lasted no more than two minutes.

146As for the allegations of inappropriate touching, Chief Kissner said that they just did not occur. During summers, when H.N. was at Chief Kissner’s home doing outdoor work, Chief Kissner offered a cold drink. He said that H.N. lay on his couch and he gave him a massage. He massaged his neck, shoulders, back and legs. According to Chief Kissner, he did not touch H.N.’s buttocks or genitals. There was no indication that H.N. was uncomfortable. Chief Kissner said he gave H.N. maybe a dozen massages in 2015 and 2016 but denies any inappropriate touching occurred.

147During the summer of 2016, when H.N. was an employed summer student at the fire hall, he was issued bunker gear to attend on calls. He was invited to assist with outdoor tasks. He was invited to drive the chief’s vehicle. Chief Kissner did not have any concerns about H.N. driving the vehicle. He said he was properly licensed.

G.H.

148G.H. was born January 4, 1999. G.H. was in grade 12 in 2016 to 2017. In the fall of 2016, G.H. was a co-op student at the Kingsville Fire Hall. He was 17 years of age at the time. Mr. Kissner is charged with two counts of sexual assault and two counts of sexual exploitation in respect of G.H. There are two incidents that are alleged to have occurred on December 6 and December 8, 2016. These are Counts 1, 2, 3 and 4 on the indictment. G.H. was the first complainant to report a complaint to police.

149In December 2016, G.H. was in grade 12 at the Kingsville District High School. He was 17 years old. He completed his co-op course in the September 2016 to January 2017 term at the Kingsville Fire Department.

150G.H.’s grandfather was the fire chief of Amherstburg, Ontario and G.H. was interested in pursuing a firefighting career himself. He applied for, and was successful in obtaining, a co-op placement at the Kingsville Fire Department. The co-op placement counted as two credits towards his high school diploma. G.H.’s co-op teacher was Ms. Simonton. He worked at the south station in Kingsville, under the supervision and direction of Mr. Kissner. G.H. lived in Harrow and was transported to the Kingsville high school by school bus. His co-op schedule required that he attend in the morning. When he arrived at the Kingsville high school, he texted Mr. Kissner who would pick him up and take him to the fire station. Mr. Kissner would return G.H. to the high school at the end of the morning.

151The co-op duties completed by G.H. involved tasks such as maintaining equipment and cleaning the trucks. He was required to complete paperwork described as log sheets setting out tasks that he completed. Mr. Kissner was required to sign the paperwork. The paperwork was provided weekly to Ms. Simonton.

152Initially, G.H. described his co-op placement as “fairly normal”. He took the bus to school. When he got there he texted Chief Kissner who picked him up and took him to the fire department. On the way they might stop at Home Hardware or another retail establishment. G.H. would be at the fire station in the morning, doing odd jobs, sorting equipment or completing non-important paperwork. Chief Kissner was the individual who would task G.H. with jobs and duties. He would also receive instructions from the deputy chief or the fire prevention officer. Chief Kissner taught him about the fire equipment and showed him YouTube videos to illustrate firefighting tactics.

153At the beginning of the co-op placement, in September, Mr. Kissner grabbed G.H.’s shoulder. He squeezed it and rubbed it. It made G.H. feel uncomfortable. He went to his co-op teacher Ms. Simonton. He asked her if the behaviour was normal. She replied that it was – that Mr. Kissner is a “touchy guy”.

154G.H. alleges that on the morning of December 6, 2016, while at the fire hall, Mr. Kissner brought G.H. to his office. Mr. Kissner played a YouTube video, dealing with firefighting, on his computer at his desk. Mr. Kissner was sitting in his office chair. He told G.H. to watch the video beside him. G.H. knelt down beside the office chair on one of his knees. While he and Mr. Kissner watched the video, Mr. Kissner massaged G.H.’s thigh moving his hand towards the groin area. He made contact, rubbing his hand down G.H.’s penis towards his testicles. He grabbed G.H.’s penis and testicles in one hand and then let go. At one point the secretary came into the room and Mr. Kissner removed his hand from G.H.’s leg. He put it back when the secretary left the room. G. H. said he did not tell Mr. Kissner to stop and did not say any words of protest as he did not want to lose his co-op placement or prejudice possible entry to the fire department. Instead, he switched knees and there was no further contact. He felt disgusted. He returned to school in the afternoon and that evening made notes of what happened – where Chief Kissner touched him – how and when he was touched. He did not tell anyone what happened.

155The next day, December 7, 2015, he attended his co-op placement as usual. He messaged Mr. Kissner to pick him up at the high school in the morning. Nothing untoward happened on that day.

156G.H. alleges that the following day, on December 8, 2016, at approximately 10:30 a.m., he was at the fire hall for his co-op placement. Mr. Kissner told G.H. to put his coat on – that they were going to Mr. Kissner’s residence for a hot tub. G.H. said that Mr. Kissner had been talking about his hot tub for a couple of months and had extended several invitations to use the tub. G.H. had turned down the invitations to that point. He said that on December 8, he did not have a chance to say no. Mr. Kissner and G.H. used one of the department vehicles and drove to Mr. Kissner’s home. When they arrived, Mr. Kissner backed into the garage and shut the garage door. He told G.H. that he did so as he did not want the neighbours to question why he was home.

157G.H. followed Mr. Kissner inside the residence. He followed Mr. Kissner to the bedroom. Mr. Kissner told him to take off his hat, shirt and pants and lay down on the bed so that Mr. Kissner could give him massage. G.H. said he was reluctant to take off his clothing, but did so at Mr. Kissner’s insistence. He left his socks and his underwear on. He lay down on the bed on his stomach. Mr. Kissner put his hands on G.H.’s back and started to rub. He massaged his shoulders and back and then put his hands under the waistband of his underwear and massaged his buttocks. He told G.H. to roll over and then physically put his hands on G.H.’s waist and thigh and pulled him over. He told G.H. that “if I tickle say so as the last person got tickled”. Mr. Kissner then massaged his chest moving downwards towards the groin area. G.H. alleges that Mr. Kissner next rubbed his hands about G.H.’s penis and testicles, then grabbing both at the same time. While he did so, Mr. Kissner chatted about fire calls and other innocuous subjects. G.H. kept asking Mr. Kissner if they could go to the hot tub. He said he was trying to get Mr. Kissner to understand that he was not enjoying the massage and he did not want it. Mr. Kissner kept saying “yes we’ll get there”. Mr. Kissner said “I’m just getting you warmed up”.

158After the massage, Mr. Kissner left to get G.H. a bathing suit and towel. G.H. said he put his clothes back on so hopefully Mr. Kissner would notice that he did not want to go to the hot tub. Mr. Kissner returned, said “you can’t go like that” and gave him a pair of blue swim trunks to use in the hot tub. G.H. went into the en suite bathroom to get changed. He had his cell phone. He could have used his phone to call the police but did not as he knew that Mr. Kissner could hear him and was afraid he would open the door. He changed into the swim trunks.

159The hot tub is located in a room that could be described as the sun room with patio furniture. The hot tub is not to be confused with the Jacuzzi tub, located in the en suite bathroom. Mr. Kissner and G.H. got into the hot tub. Mr. Kissner told G.H. to sit in the reclining seat. He told G.H. that he would be more comfortable there; that the jets were more powerful in that location; that he would be more relaxed. G.H. moved to the reclining seat. While there, Mr. Kissner took hold of G.H.’s feet and rubbed them. He moved to G.H.’s side and rubbed and squeezed his thigh. He ran his hand over G.H.’s penis, rubbing it firmly, over top of the swimming trucks. G.H. said he was frightened; speechless; very uncomfortable. He did not say anything to Mr. Kissner – just kept trying to adjust his position or move towards the back of the hot tub. During the entire encounter, Mr. Kissner continued to talk about innocuous subjects. Mr. Kissner moved his hands to the waistband of the swim trunks and tried to force his hand under the waistband but G.H. sat up. Mr. Kissner started rubbing G.H.’s thigh again and G.H. said he needed to check the time to see if it was time to return to the school. Mr. Kissner got out of the hot tub, checked the time, said it was 11:15 a.m. and got back in. After a few minutes, Mr. Kissner said “let’s get you back to the high school”. G.H. got changed in the en suite bathroom.

160After G.H. was dressed, Mr. Kissner showed him around the house. Mr. Kissner had a rather impressive fire memorabilia collection. Mr. Kissner led G.H. into the storage room. When they stood in the doorway and looked inside, G.H. said that Mr. Kissner grabbed his buttocks over his clothes. Mr. Kissner said anytime he needed another massage, to let him know and “I’ll give you the full rub down next time”. Mr. Kissner drove G.H. to the high school and dropped him off. On the way there, Mr. Kissner told G.H. not to put the hot tub and massage in the logbook. He said “don’t go putting that in the logs for Ms. Simonton to see”.

161When G.H. returned to school, he was scheduled to attend at St. Clair College in the afternoon. He was taken by school bus. After he was finished, he returned home to his parents. He said he felt emotional; speechless; afraid to tell his parents about what happened. He made notes to himself on his cell phone.

162Late on the night of December 8, G.H. messaged Ms. Jocelyn Blair, a teacher he felt he could trust. He asked if she could help him connect with someone to talk to. His message read “I haven’t known who to ask for a while but is there someone I can talk to at school for mental help? Sorry! And thank you. Or even in my regiment…?” (G.H. was an army cadet). He said he felt alone and had thoughts of suicide. He said he had been thinking of asking for help since the YouTube video incident on December 6. He said he intended to seek help from someone, but needed Ms. Blair’s assistance making a connection. Ms. Blair’s response was “guidance can set you up with our social worker and I’m sure that the military has resources available as well. I can speak to Mr. Clements, just tell him you would like to talk”. Mr. Clements was the school guidance counsellor.

163The next day, December 9, G.H. texted Mr. Kissner when he arrived at the school. Mr. Kissner picked him up and he attended his co-op placement at the fire hall. He said that Mr. Kissner was showing a woman who was starting work as a dispatcher around town and he went along with them. He was never alone with Mr. Kissner that morning. Mr. Kissner did not say anything about what happened the previous day.

164After G.H. returned to school, he went to Ms. Simonton’s office. He told her that while on his co-op placement Mr. Kissner had inappropriately touched him. The two of them went to Mr. Clements’ office. Mr. Clements contacted the vice principal, Mr. Reid, who contacted the O.P.P. G.H. gave the O.P.P. officer the notes he had taken on his phone. Ms. Simonton told him that his co-op was completed – that he would not be returning to the fire hall – that he just had to finish the final project.

165Mr. Marley conducted a lengthy and skillful cross-examination of G.H. Under cross-examination Mr. Marley suggested that Mr. Kissner is a touchy person – a person who pats people on the back, squeezes their shoulders or may touch their elbow when shaking hands. G.H. agreed and said he felt uncomfortable when Mr. Kissner touched him in a non-sexual manner. G.H. said that Mr. Kissner at times touched his leg, his shoulders and his arm. At times he said he was stiff from playing hockey and Mr. Kissner massaged his shoulders. He was always uncomfortable when he was touched by Mr. Kissner. He felt there was always something sexual about it. Mr. Marley suggested that G.H. harboured some resentment towards Mr. Kissner as a result. The suggestion was that the allegations of sexual touching were fabricated. Mr. Marley suggested that nothing inappropriate happened.

166Mr. Marley cross-examined G.H. on what happened the morning of December 6. G.H. agreed that it is not unusual to be invited into the chief’s office to watch YouTube videos. He described an L-shaped desk in one corner of the office and a table at the other end. Mr. Marley suggested that there were four chairs around the table. G.H. said there was only one chair. Mr. Marley suggested that G.H. could have stood up and gone to get that chair. He could have stood up and left the office. G.H. said he did nothing as he did not want anything to affect his co-op term. G.H. said that he knows now that whatever he did or said would not affect his co-op term but he did not know at the time.

167Mr. Marley cross-examined G.H. on his evidence as to the incident that occurred on December 8. When he got changed in the bathroom, he locked the bathroom door. He could have called to talk to someone and did not. He could have texted someone saying that he was in trouble, but he did not.

168In cross-examination, it was disclosed that on December 7, G.H. took part in the annual Christmas tree decoration. He was in the aerial device and helped decorate the tree. That afternoon, G.H. texted Chief Kissner and said “the aerial work today has definitely been the highlight of my co-op so far! I just wanted to thank you!” On December 8, at approximately 6:16 p.m., G.H. texted Chief Kissner and said “hey chief, my grandfather offered to help me with Goodfellows Friday and Saturday… Would I be able to bring my bunker gear with me? It will be kept Friday night at my grandfather’s… No accident calls yet?” The text communications and G.H.’s attendance at his co-op placement the following morning, December 9, are an indication that nothing untoward happened on December 6 or December 8.

169Mr. Marley suggested that nothing inappropriate happened with Chief Kissner. He suggested that otherwise, the casual text conversation that took place the evening of December 8 would not have happened. He suggested that otherwise G.H. would not have texted Mr. Kissner the morning of December 9 asking for a ride to the fire hall. Mr. Marley suggested that the allegations of sexual touching were completely fabricated because G.H. harboured resentment towards Chief Kissner. Mr. Marley suggested that resentment was the result of the physically demonstrative non-sexual behaviour that Chief Kissner engaged in. G.H. disagreed. Mr. Marley suggested that there was never any touching of G.H.’s penis, groin or scrotum either during the massage or in the hot tub. G.H. disagreed. Although Mr. Marley was dogged in his cross-examination, G.H.’s story did not change.

170Ms. Blair, Ms. Simonton and Mr. Clements all gave evidence. Their evidence was consistent with that of G.H.

171Ms. Simonton has been the co-op teacher at the Kingsville high school since 2001. She was the co-op teacher at other schools from 1992 forward. Co-op is an elective course. Students discuss their areas of interest with her and she tries to match them with a suitable placement. She placed students at the Kingsville Fire Department regularly. G.H. originally asked for an automotive placement and then asked to switch to the fire department. Ms. Simonton assisted in facilitating the switch. She called Chief Kissner to ask him to take G.H. on. She said Chief Kissner was an approachable friendly person. Everyone called him “Chief” out of respect for his position. Chief Kissner took some time to think about whether he would take a co-op student, and eventually decided to do so. G.H. started his co-op placement on September 26.

172Ms. Simonton said she was ultimately responsible for the co-op grade. The grade came partly from in-school learning and partly from discussion with the placement supervisor. In that way, a placement supervisor does have an influence on a student’s final grade. The placement is to be a learning environment. The logs are to be completed weekly and handed in. The logs record the activities and hours worked. There is a section for reflection on teamwork and independence which would be completed by the student and verified by the supervisor in the work placement. Mr. Kissner or Mr. Dean verified G.H.’s logs.

173Ms. Simonton recalled the discussion with G.H. at some time prior to December 9. G.H. told her that the chief touched him on his shoulders and he did not like it. Ms. Simonton described it as more of a conversation than an issue. She told G.H. that the chief is a touchy-feely person. She did not think anything of it.

174Mr. Clements said that he was contacted by Ms. Blair on the morning of Friday, December 9. He reached out to G.H., who came down and spoke with him. G.H. described what happened to Mr. Clements and Mr. Clements obtained direction from Vice Principal Reid. Mr. Clements said that G.H. was nervous – he had a hard time coming up with the right words – but was fairly well put together. After G.H. told Mr. Clements what happened, the police were contacted.

175Mr. Clements said that the school has a “hands off” policy. Any touching of students would be a violation of that policy. If either G.H. or Ms. Simonton had come to him earlier in the term and told him that Chief Kissner had been putting his hands on G.H.’s shoulders and rubbing them, it would have been a violation of that policy. He said that touching a student in that fashion is not appropriate. He said “if a student brings it forward it’s important enough to the student to pursue”.

176As with the other complainants, Mr. Kissner gave his side of the story when he gave his evidence. In respect of how G.H. came to be the co-op student at the fire hall, Mr. Kissner confirmed the evidence given by Ms. Simonton and G.H. He said taking on a co-op student is work, and he needed a student who could self-supervise. After speaking to G.H.’s grandfather, he decided to take G.H. on.

177Mr. Kissner said that he did indeed touch G.H.’s shoulders. He said it was “a gesture of inclusion”. G.H. did not show any resentment towards the touching. When Mr. Kissner was asked in chief if he grabbed G.H.’s thigh while the two of them were watching videos, he said “I don’t recall that”. He does recall the two of them watching a video about antique fire trucks. When he was asked again in chief if he touched G.H.’s leg, he said that he did but there was no sexual purpose and he did not move his hand to G.H.’s penis. He said that he left his hand on G.H.’s leg for approximately 30 seconds. He recalls G.H. switching legs but assumed he was uncomfortable with his posture. G.H. did not say anything to indicate that he was uncomfortable.

178On December 8, Mr. Kissner said it was “a down day” and he thought G.H. might enjoy the hot tub and massage. When he mentioned it at the station, G.H. said “sounds like a good idea”. It was a Thursday morning and G.H. had to be at St. Clair College in the afternoon. It was also the day of the school can drive and G.H. was to assist in counting cans. The two of them went to Mr. Kissner’s home. Mr. Kissner backed his van into the garage because one of his neighbours likes to visit. Mr. Kissner would park his van in the garage and close the garage door so that neighbour would not know that he was home. Mr. Kissner described the massage as a purely platonic, innocuous backrub. He said he offered the massage and it was accepted. G.H. stripped down to his underwear and laid face down on the bed. Mr. Kissner massaged his back and shoulders. He asked G.H. if he wanted to flip over and he did voluntarily. Mr. Kissner massaged his chest and legs. He went to get G.H. a bathing suit. When Mr. Kissner returned to the bedroom G.H. had his pants on. G.H. said he did not have a bathing suit and Mr. Kissner handed him the one that he had retrieved.

179According to Mr. Kissner, he did not say at the fire hall “Put your coat on we’re going to the hot tub”. He asked if G.H. would like to go and asked G.H. twice if there was time. According to Mr. Kissner, he did not push G.H. to take his clothes off. He asked him if he wanted a massage, and G.H. said “yes”. He said he did not put his hands on his buttocks. He said that G.H. asked him if he was certified – that G.H. said “you’re very good at this, are you trained?” Mr. Kissner said he did not roll G.H. over. He asked him if he wanted his scalp, shoulders and legs done and if so roll over and G.H. did. Mr. Kissner said he rubbed his chest and torso to the waistband. He did not put his hand over G.H.’s privates. He did not grope his genitals. Mr. Kissner said he did not say “just getting you warmed up”.

180In the hot tub, according to Mr. Kissner, G.H. lay down on the reclining area voluntarily. Mr. Kissner kneeled beside him and massaged his legs and feet. He said he did not grab his groin. He did not run his hand over G.H.’s penis. He massaged his leg to just above the knee. He also massaged his feet, arms and chest. They were in the hot tub for approximately 10 to 15 minutes. At one point, Mr. Kissner got out of the hot tub to check his watch. After that, they got out and got dressed. G.H. changed in the en suite bathroom with the door closed.

181Mr. Kissner said that he did give G.H. a tour of the house before he left. He showed him the basement. He did not grab G.H.’s buttocks while standing in the doorway. He said he did not touch G.H. at all while the two of them were downstairs looking at the apartment. He said there was no change in G.H.’s demeanour at any time. There was no indication of concern or resentment. Mr. Kissner did say, jokingly, not to mark down the hot tub on the log. He was pretty sure it would not be an appropriate entry. He was not concerned about what the two of them had done. In cross-examination, he said he saw nothing wrong with massaging G.H. when G.H. was in his underwear at the time it happened. Now, he would decide not to.

182At the time that Mr. Kissner knelt beside G.H. in the hot tub and massaged his legs and feet, G.H. was 16 years old. Mr. Kissner was 60 years old. He saw nothing wrong with it at the time.

Legal Principles

183For Mr. Kissner to be convicted of any of the charges against him, the Crown must prove all of the essential elements of that charge beyond a reasonable doubt. A reasonable doubt is not a farfetched or frivolous doubt. It is not a doubt based on sympathy or prejudice. 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.

184It is not enough for me to believe that Mr. Kissner is probably or likely guilty. In those circumstances, I must find him not guilty, because Crown counsel would have failed to satisfy me of his guilt beyond a reasonable doubt. Proof of probable or likely guilt is not proof of guilt beyond a reasonable doubt.

185The Crown, however, is not required to prove its case with absolute certainty. That would be an impossibly high standard. The concept of reasonable doubt can be described thus – if I am sure that the accused committed an offence, then the Crown has proven its case beyond a reasonable doubt and he should be convicted of that offence. If I am not sure, then he must be acquitted.

186What are the essential elements then of each of the offences? What exactly is it that the Crown has to prove?

187Dealing first with the offence of sexual assault, Crown counsel must prove each of these essential elements beyond a reasonable doubt:

i. that Mr. Kissner intentionally applied force to a complainant;

ii. that the complainant did not consent to the force that Mr. Kissner applied;

iii. that Mr. Kissner knew that the complainant did not consent; and

iv. that the force that Mr. Kissner applied took place in circumstances of a sexual nature.

188For the charge of sexual interference, Crown counsel must prove each of these essential elements beyond a reasonable doubt:

i. that the complainant was under sixteen years of age at the time;

ii. that Mr. Kissner touched the complainant; and

iii. that the touching was for a sexual purpose.

189For the charge of sexual exploitation, Crown counsel must prove each of these essential elements beyond a reasonable doubt:

i. that the complainant was a “young person” at the time;

ii. that Mr. Kissner touched the complainant;

iii. that the touching was for a sexual purpose; and

iv. that Mr. Kissner was in a position of trust or authority towards the complainant, or in a relationship with the complainant that was exploitative of him.

190I point out that lack of consent is not an essential element of the offence of sexual interference, nor is it an essential element of the offence of sexual exploitation. To put the concept plainly, for the charges of sexual interference and sexual exploitation, whether the complainant consented or not is irrelevant.

191One of the issues in this case is the behaviour of the complainants after the events took place. G.H. reported the events just a few days after they occurred. The other complainants waited significant periods of time – in some cases years. The other complainants did not come forward until charges were laid after G.H.’s reporting. Mr. Marley, on behalf of the accused, has suggested that there is a bandwagon mentality among the complainants – that the delay in reporting ought to impact negatively on their credibility – that if the events took place as described, without their consent, the complainants would have reported them without delay.

192In R. v. D.(D.), 2000 SCC 43, Major J, speaking for the majority, said at para 65:

A trial judge should recognize and so instruct a jury that there is no inviolable rule how people who are the victims of trauma like a sexual assault will behave. Some will make an immediate complaint, some will delay in disclosing the abuse, while some will never disclose the abuse. Reasons for delay are many and at least include embarrassment, fear, guilt, or a lack of understanding and knowledge. In assessing the credibility of a complainant, the timing of the complaint is simply one circumstance to consider in the factual mosaic of a particular case. A delay in disclosure, standing alone, will never give rise to an adverse inference against the credibility of the complainant.

193In R. v. Kiss, 2018 ONCA 184, the Court of Appeal repeated this principle and noted that it applies to all expectations of how a complainant will behave. At para. 101 the court said:

As the Supreme Court held in R. v. D.(D.), 2000 SCC 43, [2000] 2 S.C.R. 275 (S.C.C.), at para. 65, there is no rule as to how victims of sexual assault are apt to behave. I reject Mr. Kiss's claim that the trial judge erred in relying on D.(D.) for this purpose. The principle in D.(D.) is not confined to delays in reporting. It relates to any stereotypical assumption about how sexual assault victims are apt to behave, and it is stereotypical to assume that sexual assault victims tend to scream for help. Some will, others will not.

194There is no proper way for a victim of a sexual assault to act. The determination of a complainant’s credibility cannot be based solely on expectations as to how he or she will react: R. v. Thompson, 2019 BCCA 1.

195The same principle applies to the evidence of the accused, who is entitled to the benefit of reasonable doubt. I cannot find that a complainant did not consent solely based on an argument that a person would not consent to sexual contact in the circumstances: R. v. J.L., 2018 ONCA 756.

196Another issue in this case is whether the complainants consented to the touching. For some of the charges, the accused takes the position that the complainant consented. Consent is a complainant’s voluntary agreement to take part in the sexual touching. Mr. Kissner does not have to prove that a complainant consented to the sexual touching. It is up to Crown counsel to prove beyond a reasonable doubt that the complainant did not consent.

197Consent, for that matter the absence of consent, is a state of mind, the complainant’s state of mind towards the accused’s conduct at the time and in the circumstances in which the sexual touching took place. Only the complainant’s actual state of mind matters. Consent has nothing to do with the accused’s state of mind, or for that matter anybody else’s state of mind. (R. v. Ewanchuk, 1999 CanLII 711 (SCC), [1999] 1 S.C.R. 330)

198Yet another issue is whether Mr. Kissner had an honest but mistaken belief in consent. The Court of Appeal, in R v. Orwin, 2017 ONCA 841, said, at paras. 21-23:

The "defence" of mistake is simply a denial of mens rea. It does not impose any burden of proof upon an accused. Applied to the issue of consent in cases such as this, honest but mistaken belief is an argument that the Crown has failed to prove beyond a reasonable doubt that the accused knew that the complainant was not consenting to the sexual activity in question: R. v. Ewanchuk, 1999 CanLII 711 (SCC), [1999] 1 S.C.R. 330 (S.C.C.), at para. 44; R. v. L.S., 2017 ONCA 685 (Ont. C.A.), at paras. 37 and 39.

For an accused's conduct to be morally innocent, the evidence must show that he believed that the complainant communicated consent to engage in the sexual activity alleged to constitute the actus reus of the offence: here, anal intercourse. Speculation by an accused about what was going on in a complainant's mind affords no defence: Ewanchuk, at para. 46. Further, an accused's belief that silence, passivity, or ambiguous conduct constitutes consent is a mistake of law, and thus provides no defence: Ewanchuk, at para. 51.

A final point concerns the limitation on mistaken belief in consent imposed by s. 273.2 of the Criminal Code. A mistaken believe in consent cannot arise from an accused's own recklessness, wilful blindness, or a failure to take reasonable steps, in the circumstances known to the accused at the time of the sexual activity, to ascertain that the complainant was consenting.

199Mr. Kissner does not have to prove that he honestly believed that a complainant voluntarily agreed to participate in the sexual activity with which he is charged. It is Crown counsel’s task to prove beyond a reasonable doubt that Mr. Kissner had no such belief. If I have a reasonable doubt about whether Mr. Kissner honestly believed that a complainant consented to the sexual touching with which Mr. Kissner is charged, I must find him not guilty.

200A belief is a state of mind, Mr. Kissner’s state of mind. To determine whether Mr. Kissner honestly believed that a complainant voluntarily agreed to participate in the sexual activity with which Mr. Kissner is charged, I must consider all the circumstances surrounding that activity. I must take into account:

• what Mr. Kissner and that complainant did or did not do;

• what Mr. Kissner and that complainant said or did not say.

201I must look at their words and conduct before, at the time, and after the sexual touching occurred. I must take into account the nature of what happened or did not happen between them, any remarks or gestures that either one made or attempted at the time of the touching, and any other circumstance that indicates what Mr. Kissner honestly believed at the time of the sexual touching.

202Mr. Kissner must honestly believe that a complainant voluntarily agreed to participate in the sexual touching. There is no honest belief if Mr. Kissner saw the risk that a complainant would not voluntarily agree to participate in the sexual touching, but went ahead anyway in spite of that risk. Similarly, there can be no honest belief if Mr. Kissner was aware that he needed to find out whether that complainant would agree to participate in this activity, but did nothing about it because he did not want to know the truth. Nor can there be an honest belief unless Mr. Kissner took the steps a reasonable person would take in the circumstances as Mr. Kissner knew them, to find out whether that complainant agreed to participate in the activity.

203Mr. Kissner’s belief must be honest, but it does not have to be reasonable. The reasonableness, however, may be an important factor to consider in deciding whether he actually had the honest belief he claims.

204These are the legal principles that apply to the charges against Mr. Kissner. There are two additional principles that apply to the charges relating to the group of boys.

Similar Fact Ruling

205The Crown brought an application seeking an order admitting the evidence of each of seven of the complainants – count to count – as similar fact evidence on the trial. I delivered my ruling on the Crown’s application on January 25, 2019, following the completion of the Crown’s case. For oral reasons read into the record and marked an exhibit in the proceedings, I ordered that:

1. The application admitting the evidence of each of the group of boys, specifically G.H., J.R., T.W. and H.N. as similar fact evidence, count to count, for the other complainants in that group was granted.

2. The balance of the application was dismissed.

206That ruling means that the evidence called by the Crown to prove the charges involving each of the four complainants in the boys group, identified above, may be taken into account in my determination of the charges involving the other complainants in that group. However, for the charges involving each of the other four complainants, only the evidence directly relating to that complainant can be considered.

207The use of similar fact evidence was considered by the Supreme Court in R v. Arp, 1998 CanLII 769 (SCC), [1998] 3 S.C.R. 339. In that case, the accused was convicted of two murders, one in 1990 and one in 1993. The trial judge instructed the jury on the use of similar fact evidence. He told the jury that the evidence on one killing was admissible in proving the accused was guilty of the other killing, and vice versa. The accused’s appeal to the B.C. Court of Appeal was dismissed. The appeal to the Supreme Court of Canada was dismissed. Although Arp deals with the identity of the accused, the Supreme Court’s comments on the use of similar fact evidence is instructive.

208Cory J. speaking for the court said, at para. 72:

Similar fact evidence, on the other hand, as circumstantial evidence, must be characterized differently, since, by its nature, it does not carry the potential to be conclusive of guilt. It is just one item of evidence to be considered as part of the Crown's overall case. Its probative value lies in its ability to support, through the improbability of coincidence, other inculpatory evidence.

Position of Authority

209Several of the charges against Mr. Kissner are for sexual exploitation contrary to s. 153 of the Criminal Code. I have previously set out the elements of that offence. For Mr. Kissner to be found guilty of that offence, one of the elements is that Mr. Kissner must have been in a position of trust or authority towards the complainant, the complainant must have been in a relationship of dependency with Mr. Kissner or Mr. Kissner must have been in a relationship with the complainant that is exploitative of that complainant. One of these four things must be present: position of trust; position of authority; relationship of dependency; or an exploitative relationship. One of these four things must be proven by the Crown beyond a reasonable doubt.

210In R. v. Audet, 1996 CanLII 198 (SCC), [1996] 2 S.C.R. 171, La Forest J., speaking for the majority, described the task of the trial judge in determining the relationship between the accused and the complainant. At para. 38, he said:

It will be up to the trial judge to determine, on the basis of all of the factual circumstances relevant to the characterization of the relationship between a young person and an accused, whether the accused was in a position of trust or authority towards the young person or whether the young person was in a relationship of dependency with the accused at the time of the alleged offence. One of the difficulties that will undoubtedly arise in some cases concerns the determination of the times when the “position” or “relationship” in question begins and ends. It would be inappropriate to try to settle an exhaustive list of the factors to be considered by the trier of fact. The age difference between the accused and the young person, the evolution of their relationship, and above all the status of the accused in relation to the young person will of course be relevant in many cases.

211Pomerance J, in R. v. R.T., 2017 ONSC 2625, discussed the question of the determination of the times when the relationship begins and ends. At para. 37, she said:

How long do relationships of trust last? Authority and dependency may be situation specific. A person who has authority as a teacher may lose that authority when the student graduates from the class. A relationship of dependency may end when the adult is no longer providing for the young person. Trust is different. Trust speaks to a subjective bond between the adult and the young person. It attaches to the person, him or herself, rather than his/her position or role. Whereas authority and dependency are defined by external circumstances, trust has an internal component. It represents an emotional attachment; a faith that the adult would not act contrary to the child’s interests.

212Pomerance J. reviewed the relevant authorities on the issue and helpfully set out a summary of relevant factors to consider in determining whether the accused is in a position of trust:

• the age difference between the accused and the young person – the higher the age difference, the more likely it is that the relationship is a trust relationship.

• The status of the accused – the more formal the status (teacher, father figure, big brother, mentor, etc.), the more likely it is that the relationship is a trust relationship.

• The degree of control, influence or persuasiveness exercised by the accused over the young person.

• The expectations of the parties affected, including the accused, the young person and the young person’s parents.

• The vulnerability of the young person – i.e. his or her level of intelligence, sophistication, independence, and maturity and relationship with his or her parents.

• Any grooming, pressuring or incentivising behaviour on the part of the accused – i.e. denigrating the young person’s parents; engaging in sexual discussions and sexualizing the young person; and offering benefits, particularly things the young person cannot get or do at home (drugs, alcohol, etc.).

213It is not necessary for the Crown to prove that Mr. Kissner actually abused his position of trust or authority: Audet, at paras. 18-19. The Crown must only prove that the relationship exists.

Mr. Kissner’s Evidence and W.(D.)

214Mr. Kissner denied that any sexual touching took place with B.B., J.M., J.R., H.N. and G.H. He admitted to sexual touching with S.M., J.K. and T.W. but said all such touching was on consent.

215Chief Kissner said he had a sexual relationship with S.M. and J.K. He described a sexual relationship with each of these two men as consensual. He said he touched these two men in order to provide them with pleasure and help them relax. The touching was never reciprocated. It is difficult to understand how Chief Kissner could not find this as odd.

216Chief Kissner acknowledged that he never asked if he could touch S.M. before he touched. He never asked J.K. if he could touch him before he touched. In his mind, it was okay.

217He admitted having a sexual relationship with T.W. at the time T.W. was under the age of 18.

218At the time that Chief Kissner had his relationship with S.M., J.K. and T.W., in turn, he was in a position to grant or confer or deny a benefit or advancement. He was their boss. He did not see anything wrong with his relationship with these three individuals as he felt the relationship was outside of the workplace. Chief Kissner acknowledged that he had the ability to intimidate people who work for him.

219Mr. Kissner’s evidence in chief is replete with instances where he indicated he did not recall certain events. He then was able to recall and give particulars favourable to his defence. For example, when Mr. Kissner was asked whether he touched G.H. in the basement after the massage and hot tub, he said “not that I recall”. He was then asked “did you touch G.H.’s buttocks?” His answer was “no”. The same sequence took place when Mr. Kissner was asked about the touching during the YouTube video. He initially said he could not recall touching G.H.’s leg. He then could recall it and said that he did touch his leg but did not go near his genitals.

220A further example is Mr. Kissner’s evidence at the voir dire about the drive to the airport with S.M. Initially, he said he could not recall reaching over while S.M. was driving and touching his genitalia. He said “I don’t recall it, but it certainly was possible”. At trial, he said he could recall it and the groping took approximately eight or nine minutes. Ms. Holmes asked him “how did these two things live together?” His answer was “they don’t”.

221These discrepancies negatively affect Mr. Kissner’s credibility. At the same time, Mr. Kissner admitted facts that were not helpful to him. For example he did not deny sexual contact with T.W. while T.W. was under 18 years of age, knowing that this evidence was detrimental. This has a positive impact on Mr. Kissner’s credibility.

222Mr. Kissner’s response to several of the charges are that the events did not happen. In R. v. W.(D.), 1991 CanLII 93 (SCC), [1991] 1 SCR 742, Cory J. set out a three-step process of logic as a tool to be applied in cases where there are conflicting versions of events. In matters of sexual assaults, there are often no independent witnesses and the trial judge would have to choose between two different versions of events to decide the matter. However, as Cory J. explained, choosing one side or the other does not meet the standard of proof beyond a reasonable doubt. Hence, the three-step process. The three-step process does not preclude the possibility that a trier of fact may find, after a consideration of all of the evidence, that a complainant’s evidence is of such a quality that the prosecutorial burden is met.

223The principles set out in R. v. W.(D) can be described thusly:

a. If I believe Mr. Kissner’s evidence, then I must find him not guilty.

b. If I do not know whether to believe Mr. Kissner’s evidence, or the evidence of the complainant, then I must find him not guilty as the Crown would not have proven the charge beyond a reasonable doubt.

c. If I do not believe Mr. Kissner’s evidence, but it nonetheless leaves me with a reasonable doubt as to an essential element of an offence, then I must acquit him of that offence as the Crown would not have proven the offence beyond a reasonable doubt.

224In dealing with each of the charges against Mr. Kissner, I must keep these principles in the forefront of my reasoning.

Analysis

225I will deal with each of the charges against Mr. Kissner one complainant at a time. I will first deal with all of the charges involving complainants not in the similar fact group. When I consider each of the charges involving these complainants, I cannot consider the evidence given by any of the other complainants.

226I will then deal with the charges involving the complainants in the similar fact group. When I consider these charges, I can consider, as a piece of evidence, the similarities between the events involving each of these complainants as they have been described. In each case this is just one piece of evidence to consider.

B.B.

227The issue in the charges involving B.B. is one of credibility and reliability. B.B. described the touching that occurred. Mr. Kissner said the touching did not occur. I must follow the three-step guide set out by Cory J. in W.(D.).

228I will first deal with the credibility of B.B. B.B.’s demeanour was calm. He was unassertive in his speech and his manner. He was forthright when he gave his evidence and answered questions put to him openly.

229B.B.’s evidence was detailed. He described Mr. Kissner touching not just B.B., but the other male students as well. He described the goose game and the bag tag game and the effect it had on him. He described the incident that took place in the library with particularity. He said “the only time it happened was when I didn’t see it coming.”

230Throughout the course of the trial, Mr. Kissner made allegations of recent fabrication on the part of all of the complainants. Mr. Marley suggests that many of the complainants “jumped onto the bandwagon” after G.H. made the first reporting of sexual touching. In the case of B.B., evidence was called to rebut the suggestion of recent fabrication.

231Generally, the fact that a prior consistent statement was made by a complainant does not assist in assessing the claimant’s credibility. It is relevant simply to explain how the charges came before the court. However, as was noted in R. v. Khan, 2017 ONCA 114, sometimes a prior consistent statement can be a useful tool in assessing the credibility and reliability of the complainant’s evidence. Considering the context in which the initial complaint arose, the fact and timing of the initial complaint and the spontaneity, or otherwise, of the initial complaint can be helpful in assessing the truthfulness of the complainant’s in-court testimony: Khan para. 43.

232At the time of the events, B.B. complained about the touching to his bus monitor and his mother. He asked to change schools when he discovered that Mr. Kissner would be remaining at Emmanuel Christian Academy as a teacher. The allegation of recent fabrication on the part of B.B. is rebutted by this evidence.

233Mr. Kissner claims there was no touching of buttocks and genitals. He admits to more innocuous touching of shoulders and backs and hugs. He did not touch the girls. His explanation for his restraint with the girls was that it was not appropriate at the time. Mr. Kissner claims there was no “goose” game. There was no “bag tag” game. All of these allegations, according to Mr. Kissner, were fabricated by B.B.

234When he gave his evidence in chief, there was an incident of inconsistent answers of the type described above. Mr. Kissner was asked if there was ever a time when he touched B.B., either a hair tussle, pat on the back or a hug. Mr. Kissner’s answer was “I would assume I did and that with most of the students I would do that. Yeah.” He was then asked “was there ever a time when you were touching him that he said anything to you about not doing that?” The answer was “no”. The Crown suggested in cross-examination that the second answer was an embellishment; that if Mr. Kissner could not recall touching B.B., how could he then say that B.B. did not tell him to stop? Mr. Kissner’s answer was “because I would remember if he said “no”. This type of inconsistency was a recurring issue in Mr. Kissner’s testimony.

235I return then to the three-step process outlined in W.(D.). I do not believe Mr. Kissner’s evidence insofar as the allegations of B.B. are concerned. The inconsistent answer outlined above detracts from his credibility and left me with considerable doubt as to his motives in answering and his honesty. As with other points in his testimony, he claimed to have no recollection of an event but then went on to provide answers to questions about the same event that were helpful to his defence.

236Mr. Kissner’s demeanour when he gave his evidence respecting the charges involving B.B. did not negatively affect his credibility. He answered the questions put to him directly and without embellishment both in chief and in cross. Although I found B.B. to be a more credible witness than Mr. Kissner, for the reasons set out above, I cannot say that Mr. Kissner’s evidence was so incredible as to be unworthy of belief.

237It is the third step in the W.(D.) analysis that gives me some pause. The charges involving B.B. were not included in my similar fact ruling. There is no corroboration of B.B.’s evidence. Although corroboration is not necessary for a finding of guilt, the lack of corroboration means that I must determine whether the Crown has proven its case beyond a reasonable doubt based essentially on B.B.’s evidence alone in the face of Mr. Kissner’s conflicting evidence. I have no doubt that Mr. Kissner’s touching of B.B. included backrubs and hugs, but am I satisfied beyond a reasonable doubt that it went beyond that and that Mr. Kissner touched B.B. on the buttocks in the library of the school as B.B. described without B.B.’s consent? I cannot say that I am so satisfied.

238For these reasons, I find Mr. Kissner not guilty of Counts 9 and 10.

J.M.

239The issue in the charge involving J.M. is credibility and reliability. J.M. said Mr. Kissner touched his buttocks. Mr. Kissner said the touching of J.M.’s buttocks did not occur.

240In this case there was a significant delay in reporting the incident. I must not reject J.M.’s evidence for that reason alone but it is a factor in assessing his credibility.

241J.M.’s evidence is that Mr. Kissner gave him a massage while the two men were standing. J.M. said that, in the course of the massage, Mr. Kissner unbuckled J.M.’s belt buckle, unbuttoned his pants and unzipped his fly, all from behind and without his consent. As a matter of common sense, it seems to me that such an act would be physically difficult to complete, but not impossible.

242The evidence of Mr. Kissner was that he did not touch J.M.’s buttocks; that he did not reach around J.M. from behind to unbuckle his belt, unbutton his pants and unzip his fly. This is a straight he said/he said scenario and, once again, the three-step analysis set out in W.(D.) applies. Here I find myself pausing at the second step. I do not know whether to believe the complainant’s account or Mr. Kissner’s account of events. There are no compelling reasons for me to believe one account and not the other. Accordingly, the Crown has not proven its case against Mr. Kissner in respect of Count 11 and he must be acquitted.

243For these reasons, I find Mr. Kissner not guilty of Count 11.

S.M.

244Mr. Kissner has admitted to touching S.M.’s genitals both in his vehicle and at the fire hall. The issue is one of consent and, if no consent, whether Mr. Kissner had an honest but mistaken belief in consent.

245On the occasions of groping in S.M.’s office, Mr. Kissner felt he had permission to touch S.M. as S.M. called him in to look at a GPS mapping on his computer. On these occasions, S.M. was trying to engage Mr. Kissner for work purposes. Mr. Kissner took it as an invitation to grope S.M.’s penis and testicles. S.M. never told Mr. Kissner that the groping felt good. S.M. never reciprocated. The groping never happened anywhere but during work related activities.

246According to Mr. Kissner, he had an intimate sexual relationship with S.M. It is difficult to understand how Mr. Kissner could have come to that conclusion given that the sexual touching was never reciprocated; that S.M. repeatedly declined offers of the hot tub or use of the Jacuzzi tub; that all of the touching happened in the workplace environment. It seems to me that the relationship between Mr. Kissner and S.M. was one that could be described as toleration. S.M. tolerated the touching. I accept his evidence that he did not want it; that he did not enjoy it; that he did not consent to it. I also accept his evidence that he did not protest because he was concerned about losing the job of fire prevention officer – a job he had just started and had left secure employment for. I therefore find that S.M. did not consent to the touching.

247There is one remaining essential element that the Crown must prove beyond a reasonable doubt, and that is whether Mr. Kissner knew that S.M. did not consent. To put the question in other words, did Mr. Kissner have an honest but mistaken belief in consent?

248There are two instances of touching that stand out. The first instance is the very first incident of touching that took place in early 2014 when Chief Kissner and S.M. drove around the county to survey the fire hydrants. Chief Kissner admitted that he did not ask if he could put his hand in S.M.’s lap and touch his genitals; he admitted that there was no indication from S.M. that he was inviting the contact. He did it anyway, without asking. S.M. was driving the vehicle. He was a captive recipient of the touching. While driving, it would have been impossible for him to move away. He said nothing, but silence or a failure to protest is not the same as consent. On this occasion, in particular, Chief Kissner could not have had an honest belief that S.M. consented to the touching. As pointed out by the Court of Appeal in Orwin, “an accused’s belief that silence, passivity, or ambiguous conduct constitutes consent is a mistake of law, and thus provides no defence.”

249The second instance is the groping that took place when S.M. was driving Mr. Kissner to the airport. Mr. Kissner recalls this incident. He put his hand on S.M.’s thigh and moved upwards. There was no reaction from S.M. Mr. Kissner did not ask for S.M.’s consent before he touched him. There was no evidence of words or actions on the part of S.M. that could have indicated consent. Silence or a failure to protest is not consent. If Mr. Kissner took the silence as consent, then that is a mistake of law and cannot provide a basis for honest but mistaken belief in consent.

250The Criminal Code, s. 273.2(b), provides that the defence of honest but mistaken belief in consent is not available to the accused where “the accused did not take reasonable steps, in the circumstances known to the accused at the time, to ascertain that the complainant was consenting.” In both of the two incidents of touching outlined above, Mr. Kissner took no steps to ascertain whether S.M. was consenting to the touching and thus the defence is not available to him.

251All of the elements of the offence of sexual assault, on the two occasions alleged, have been proven by the Crown beyond a reasonable doubt. Accordingly, I find Mr. Kissner guilty of Counts 12 and 13.

J.K.

252I have considerable difficulty with J.K.’s evidence. He spent 11 months living in Mr. Kissner’s home. He accepted Mr. Kissner’s generosity, both personally and on behalf of his children. His behaviour following the initial charges laid against Mr. Kissner was consistent with someone who had affection for Mr. Kissner. Mr. Kissner is, based on all of the evidence called during the course of this trial, a person who touches others to communicate. Given all of that, I have a hard time believing J.K.’s evidence that he always refused massages. In addition, I must consider the manner in which J.K. gave his evidence. He came across as angry and argumentative, particularly during cross-examination. He was defensive when Mr. Marley suggested that there were multiple occasions of sexual touching by Mr. Kissner on consent.

253Insofar as the two occasions described by J.K., Mr. Kissner said he could not recall touching J.K. on those two occasions. He did say that it could easily have happened because of the relationship the two of them had. Mr. Kissner’s evidence leaves me with a reasonable doubt on the issue of consent. I am satisfied, based on J.K.’s evidence that the two incidents of touching occurred. However, I cannot say, based on Mr. Kissner’s evidence, that I am satisfied beyond a reasonable doubt that there was no consent to the touching. I hasten to add that this does not mean that I disbelieve J.K. or that I find he consented to being touched by Mr. Kissner. Rather, it means that the Crown has not discharged its burden to prove that J.K. did not consent beyond a reasonable doubt.

254For these reasons, I find Mr. Kissner not guilty on Counts 14 and 15.

Similar Fact Complainants

The remaining four complainants are all subject to my ruling on the similar fact application.

T.W.

255Mr. Kissner is facing two charges in respect of his actions with T.W. He is facing one charge of sexual assault and one charge of sexual exploitation. Mr. Kissner’s defence to the charge of sexual assault on T.W. is that the sexual contact between the two was consensual. Mr. Kissner’s defence to the charge of sexual exploitation is that, at the time the sexual contact occurred, it occurred in the context of a relationship of friendship and not in the context of a position of authority.

256I will deal with the charge of sexual exploitation first.

257At the time of the events involving Mr. Kissner and T.W., the wording of s. 153 of the Criminal Code was identical to the current wording in all respects save one. At the time, the definition of “young person” was “a person 14 years of age or more but under the age of 18 years”. At the time of the events that are the subject matter of the charges, T.W. was 15 to 17 years of age. He was a young person within the definition of s. 153 of the Criminal Code at the time.

258Turning then to the elements of the charge of sexual exploitation, the first element, that the complainant was a “young person” at the time, is met. Mr. Kissner has admitted to touching T.W.’s genitals and buttocks. He admitted to masturbating T.W. He did so, he said, to provide pleasure to T.W. The touching was clearly for a sexual purpose. The real question is whether Mr. Kissner was in a position of trust or authority towards T.W. or in a relationship with T.W. that was exploitative of him at the time of the touching.

259Mr. Marley, on behalf of the accused, submits that the relationship between Mr. Kissner and T.W. at the time of the touching was a friendship. He argues that there was never a threat on the part of Mr. Kissner, or any indication given by Mr. Kissner, that T.W.’s co-op placement was in jeopardy or that Mr. W. Sr.’s job was in jeopardy if T.W. did not participate in the touching.

260I note that, at the time of the events:

• Mr. Kissner was 45 to 47 years of age. T.W. was 15 to 17 years of age.

• Mr. Kissner was the chief of the fire department. T.W. was a student in high school.

• T.W. was completing a high school co-op placement at the fire hall. He would receive two high school credits on successful completion of the co-op placement. Mr. Kissner was his direct supervisor.

• T.W. spent time in Mr. Kissner’s home, including overnights, with his parents’ knowledge and consent. T.W. went on trips with Mr. Kissner, with his parents’ knowledge and consent.

• T.W. described Mr. Kissner as a “mentor”. He turned to Mr. Kissner for advice and direction, not just with respect to his intended firefighting career but on issues such as religion.

• T.W. was described as a rebellious teen. From the evidence of the various witnesses, I conclude that T.W. was immature for his age.

261In my view, Mr. Kissner was in a position of trust towards T.W.; Mr. Kissner was in a position of authority towards T.W.; T.W. was in a relationship of dependency with Mr. Kissner.

262Mr. Kissner was in a position of trust as he was caring for T.W. T.W.’s parents entrusted their son to Mr. Kissner when they allowed T.W. to spend time at his home and to travel with Mr. Kissner. A relationship developed between Mr. Kissner and T.W. akin to a close familial relationship where Mr. Kissner was the nurturing adult and T.W. was the dependent teen. T.W. looked up to Mr. Kissner personally and professionally.

263Mr. Kissner was in a position of authority towards T.W. as he was the individual supervising the co-op placement. He had the ability to negatively affect T.W.’s success, or otherwise, within that placement. He had the ability to negatively affect Mr. W. Sr.’s firefighting career. The fact that he did not do anything to negatively affect either T.W. or Mr. W. Sr., and the fact that he did not threaten to do anything, is, in my view, irrelevant to the question of whether the relationship exists.

264T.W. was in a relationship of dependency with Mr. Kissner. He was having troubles at home and relied on Mr. Kissner for emotional support. He depended on Mr. Kissner for a place to stay when he did not want to stay at home with his parents.

265Mr. Kissner submits that the sexual contact between he and T.W. took place when they were in the role of friends and not within any of the roles identified above. I do not accept this submission. Mr. Kissner was a mentor, a confidante, a provider, a superior and a friend all at the same time. He was a person who wore multiple hats when he was with T.W. He had all of those hats on during the times that he spent with T.W. He could not discard every hat but his friendship hat whenever he engaged in sexual touching with T.W.

266Mr. Kissner was the adult. It was his responsibility to set boundaries in his relationship with T.W. Instead, he took advantage of the relationship he had built with T.W. for his own selfish reasons.

267For the charge of sexual exploitation under s. 153(1)(a) of the Criminal Code, T.W.’s consent, or otherwise, is irrelevant. All of the essential elements of the offence have been proven by the Crown beyond a reasonable doubt. I, therefore, find Mr. Kissner guilty on Count 7.

268On the charge of sexual assault, lack of consent is an essential element. Mr. Kissner and T.W. had a complicated relationship – one that included intimacy of a sexual nature on at least eight occasions over a period of months. T.W.’s evidence was that he did not consent to any of the touching. Mr. Kissner said the touching was consensual. When I apply the W.(D.) analysis it is the second step that gives me pause. I frankly do not know who to believe. Accordingly, Mr. Kissner’s evidence leaves me with a reasonable doubt on the issue of consent and I must find him not guilty on Count 8.

269I point out that I came to my conclusions on Counts 7 and 8 without resort to the evidence called by the Crown respecting the charges involving H.N., J.R. and G.H.

J.R.

270The charges against Mr. Kissner involving J.R. are sexual exploitation and sexual assault. Mr. Kissner’s evidence is that he did not touch J.R.’s buttocks. His evidence is that the massage happened, but the touching of the buttocks did not happen. The issue then is one of credibility and an application of the principles in W.(D).

271Mr. Marley submits that I ought to have some difficulty with J.R.’s credibility. In 2016, in his email to Mr. Kissner, J.R. said that he had symptoms of posttraumatic stress disorder and he spoke of Mr. Kissner as someone he trusted. In cross-examination, when he was confronted with the email, he said he did not have posttraumatic stress disorder, that he was being untruthful in the email. I agree with Mr. Marley. J.R. was either untruthful at the time he wrote the email or he was untruthful at the time he gave his evidence. Either way, J.R.’s credibility is negatively affected.

272I have difficulties with Mr. Kissner’s evidence as well. Mr. Kissner said he took a nap while J.R. was in the Jacuzzi tub. In examination in chief, Mr. Kissner was asked whether he told J.R. he would be taking a nap. His answer was “I don’t recall, but I probably did”. He was then asked “in response to what you said to him, what did he say to you?” His answer was “to my recollection he said, “that’s fine. Okay, chief. Yeah, that’s fine.” Similar to the other occasions, Mr. Kissner said he could not recall an event and then, when asked again about the same event, gave evidence helpful to his defence.

273I find myself, once again, pausing at the second question in the W.(D.) analysis. I frankly do not know who to believe on the question of whether Mr. Kissner’s hand rested on J.R.’s buttocks.

274For these reasons, I find Mr. Kissner not guilty on Counts 5 and 6. Given my acquittal of Mr. Kissner on these counts, I do not consider J.R.’s evidence in my analysis of the charges involving the remaining two complainants in the similar fact group.

H.N.

275The charges against Mr. Kissner respecting H.N. are sexual exploitation and sexual assault.

276The first issue to be addressed is that of credibility. According to H.N., Mr. Kissner touched him inappropriately, in a sexual manner, on at least a dozen occasions. According to Mr. Kissner, no such touching occurred.

277The relationship between H.N. and Mr. Kissner was akin to the relationship that Mr. Kissner had with T.W. Mr. Kissner spent time with H.N. – he developed a close friendship – he kept him physically close. Just like T.W., H.N. received perks or favours. He received the considerable benefit of completing his co-op placement contemporaneous with a summer job, thereby attending school and getting paid for it. Just like T.W., he was taken on trips. He received the considerable benefit of being allowed to drive Mr. Kissner’s vehicle, on a regular basis, often to a fire call with the lights and sirens flashing. He said that made him feel “special”.

278H.N. was a very credible witness. It was clearly very difficult for him to come forward and give his evidence. He gave his evidence in a frank and open manner. He spoke of a dozen times that his genitals were touched during the course of a massage.

279In this case, I take into account the evidence of the Crown in respect of the charges respecting T.W. and G.H., two of the complainants in the similar fact group. In both of these cases, Mr. Kissner drew a bath in his Jacuzzi tub or, in the case of G.H., provided a hot tub. In both of these cases, he had each boy disrobe to his underwear, and lay on the bed (or couch), on his stomach. In both of these cases, Mr. Kissner massaged the boys’ shoulders, back and neck. He then told the boy to rollover, following which he massaged his chest and legs. In both of these cases, the evidence of each complainant was that Mr. Kissner touched the boy’s genitals.

280As I indicated in my similar fact ruling, I found there was no collusion among the complainants in the boys group. I said:

Another issue that must be considered is the possibility of a collusion. As for the group of four boys, all of their evidence is that they did not speak to each other about their experiences. They all talked about being ashamed and not wanting to talk about the events. The described events occurred at different points in time – they were not at the fire hall at the same time. There is no air of reality to an allegation of collusion on the part of the four boys.

281All three of these complainants had similar accounts. It is highly unlikely that all three accounts are fabricated given the similarities. The low probability of coincidence in the evidence of all three of the boys, unless the evidence is the truth, is a factor for me to consider when I consider the charges against Mr. Kissner relating to each of these three complainants.

282Mr. Marley points to H.N.’s two separate meetings with the police, and the disclosures that he made on the first occasion. He suggests that H.N. was truthful on the first occasion and got caught up in a rising tide of allegations against Mr. Kissner when he met with the police on the second occasion. He submits that H.N. was untruthful with Detective Beneteau during the second interview and that the touchings simply did not occur.

283H.N.’s evidence was that he did not disclose the touchings in the first interview with Detective Beneteau because his father was present and because he was embarrassed about what happened. He did not want people to know about the touching. He changed his mind and contacted Detective Beneteau three days after he turned 18 years of age. H.N. said that it was his belief that he was then an adult and his father did not need to be present. He also said that he had felt guilty about his silence in the first interview. He knew that someone else had come forward because charges had been laid and he felt the need to speak of his own experiences in support of the first complainant who did speak up.

284I accept H.N.’s evidence insofar as his meetings with the police are concerned. I accept his explanation for his failure to tell Detective Beneteau about the inappropriate touching during the first police interview. I accept his explanation for contacting Detective Beneteau three days after his 18th birthday. The explanation was entirely plausible and had the ring of truth to it.

285I found H.N. to be a forthright and reliable witness. He offered detailed and clear evidence of his interactions and relationship with Mr. Kissner, right down to the type of soda he was offered on the occasion of the first touching. His account of the events was not shaken in cross-examination. The impression he gave was of a witness who was torn between the positive aspects of his relationship with Chief Kissner and the embarrassment he felt by the touchings he described. On the basis of H.N.’s evidence alone, I would be satisfied beyond a reasonable doubt that the touchings took place. However, I must also examine Mr. Kissner’s evidence.

286I do not accept Mr. Kissner’s evidence that the touching did not occur for the following reasons:

• Mr. Kissner took H.N. to New York City with him and a group of others. He told H.N., and H.N.’s parents, that he was offering to take H.N., without charging him for accommodations, as he needed an even number of people for hotel rooms. He told H.N. that they would be rooming together. As it turned out, an odd number of people went on that trip. There was no need for Mr. Kissner to room with H.N.

• Mr. Kissner took a heightened interest in H.N. He had a nickname for him. He allowed him to drive a fire department vehicle regularly, and sometimes to a fire call with the lights and sirens flashing. Like T.W., Mr. Kissner took H.N. on a coveted trip to New York City. This evidence is inconsistent with Mr. Kissner’s evidence that H.N. was nothing more than a co-op student and friend.

287Turning to the W.(D.) analysis, I do not accept Mr. Kissner’s evidence that he did not touch H.N.’s genitals. The totality of Mr. Kissner’s evidence does not raise a reasonable doubt. I look at the relationship between Chief Kissner and H.N. as a whole and the credibility of H.N. as a witness. I also rely on the similar fact evidence of T.W. and G.H. As previously indicated, all three of H.N., T.W. and G.H. gave similar evidence of their interactions with the accused. The interactions included a bath or a hot tub; getting undressed; laying on the bed or couch on the stomach; receiving a back and shoulder massage; being turned over by the accused or told to roll over; receiving a massage of the chest, arms and legs; having their genitals touched. The improbability of coincidence is a strong indication that all three of these young men were telling the truth. Having considered all of the evidence, I am satisfied beyond a reasonable doubt that Mr. Kissner touched H.N.’s genitals in the manner described by H.N.

288On the charge of sexual exploitation, the remaining essential element is whether Mr. Kissner was in a position of trust or authority towards H.N. or whether H.N. was in a relationship of dependency. I find that Mr. Kissner was in a position of authority towards H.N. for the following reasons:

• at the time that H.N. was doing outside work for Mr. Kissner at his home, Mr. Kissner was a client and was paying H.N. for his services.

• Mr. Kissner was H.N.’s boss at the fire hall. He directed H.N.’s work and was H.N.’s immediate supervisor.

• Mr. Kissner was the person in charge of H.N.’s co-op placement. He had input into the report of H.N.’s work to his high school.

• H.N. was 16 to 17 years of age at the time of the events and Mr. Kissner was 59 to 60 years of age.

• Mr. Kissner gave H.N. incentives to stay at the fire hall, and to stay in the relationship, in the form of trips and perks, such as the use of his car.

289All of the elements of the offence of sexual exploitation have been proven by the Crown beyond a reasonable doubt. Accordingly, I find Mr. Kissner guilty on Count 16.

290Mr. Kissner is also charged with sexual assault on H.N. For a charge of sexual assault, the Crown must prove that H.N. did not consent to the touching. Here, I turn to the first instance of sexual touching. It occurred when H.N. was at Mr. Kissner’s home doing outdoor work. After he was invited inside, and given something to drink, he was told to lay down on the couch. Mr. Kissner massaged his back and shoulders. Mr. Kissner told him to rollover. Mr. Kissner massaged his chest and touched his penis. I accept H.N.’s evidence as to the sequence of events that occurred. He said he was not asked permission before Mr. Kissner touched his genitals. He said he did not consent. He said after a few seconds, he simply stood up. There was no indication that H.N. consented to be touched in the genitals before the touching actually occurred. I conclude that Mr. Kissner did not have H.N.’s consent. Accordingly, the elements of the offence of sexual assault have been made out and I find Mr. Kissner guilty on Count 17.

G.H.

291Mr. Kissner is charged with two counts of sexual exploitation and two counts of sexual assault with G.H. As with H.N., the first issue to address is that of credibility. According to Mr. Kissner, he did not touch G.H. in a sexual manner.

292I start with an assessment of G.H.’s credibility. G.H. was the first complainant to come forward with allegations of inappropriate touching. I found G.H. to be a credible witness who provided a reliable and detailed account of events. While I appreciate that demeanour can be misleading, I note that G.H. had the demeanour of an honest witness. He answered questions directly. He was subjected to a robust cross-examination and his account of events did not change. Mr. Marley suggested that G.H. had a motive to make false allegations. He suggested the motive was that G.H. did not like to be touched and was angry at Mr. Kissner for touching him. I do not accept that submission. G.H. came across as a measured, intelligent person with a calm demeanour. He did not come across as a vindictive, angry witness with a grudge to bear against Mr. Kissner.

293Mr. Marley suggested that I reject the evidence of G.H. because of a delay in reporting the events. In my view, the report of the events was timely. When G.H. first felt uncomfortable with touching, he spoke with Ms. Simonton. When the touching moved to G.H.’s genitals, the second time it happened, he reached out to a teacher at his school for direction. He did so two days after the first event and he attended for his co-op in the meantime. The principle set out by the Supreme Court in D.(D.) is applicable here. There is no rule as to how a complainant will behave following a sexual assault. I take nothing from a reporting delay of two days.

294I make the same observation with G.H.’s failure to call for help. He did not use his phone in the bathroom after the massage to call for help. This 17-year-old boy was put in an incredibly awkward position. He had just been touched by his boss – the supervisor of his co-op placement who was just outside the door. In my view, the fact that G.H. did not use his phone to call for help does not detract from his credibility.

295The similar evidence given by T.W. and H.N. is a factor to take into consideration. As I previously indicated, all three of these complainants gave similar stories as to how the sexual touching occurred during the course of a massage.

296I cannot accept Mr. Kissner’s account of the events that occurred with G.H for the following reasons:

• There were two instances during the course of his evidence on the events with G.H. that impact negatively on his credibility. He initially said he could not recall putting his hand on G.H.’s thigh while the two of them watched a YouTube video. When asked the question again, he could recall it but said that his hand did not stray to G.H.’s groin. Similarly, Mr. Kissner could not recall touching G.H. while in the basement. When asked again, he could recall but said he did not touch the buttocks. In both instances Mr. Kissner could not recall something but when asked again gave evidence helpful to his defence. I am left to question his motive for giving the evidence.

• Mr. Kissner said he saw nothing wrong with massaging G.H. while he was in his underwear. He said he saw nothing wrong with massaging G.H.’s legs and feet while in the hot tub. Mr. Kissner was a 60-year-old man and G.H. was a 17-year-old boy at the time. After the massage and hot tub, Mr. Kissner told G.H. not to include the activities in his log for his co-op placement. Mr. Kissner said he knew that the activities may not be seen as appropriate activities for a co-op student. The direction is more consistent with a desire to keep what happened a secret.

297I do not believe Mr. Kissner’s evidence that he did not touch G.H. in a sexual manner. I find that he did. Having found that the evidence of denial on the part of Mr. Kissner is not believable, does the totality of Mr. Kissner’s evidence raise a reasonable doubt? In my view, it does not. Finally, having considered all of the evidence, especially that of G.H. and Mr. Kissner, is there a reasonable doubt? G.H. was steadfast in his assertions, despite vigorous and extensive cross-examination. I am convinced beyond a reasonable doubt by that evidence that the sexual touching did, indeed, occur.

298The next step is to consider the remaining elements of the offence of sexual exploitation, namely whether Mr. Kissner was in a position of trust or authority towards G.H. At the time of the touching, Mr. Kissner was G.H.’s supervisor at the fire hall. He directed G.H.’s work at the station. He was G.H.’s supervisor for the co-op placement. He had some ability to affect G.H.’s co-op result, negatively or positively. G.H. had aspirations to become a firefighter. Mr. Kissner knew that. I find that he took advantage of that. I find that Mr. Kissner was in a position of authority at the time of the events.

299All of the essential elements of the offence of sexual exploitation have been proven by the Crown beyond a reasonable doubt and I, therefore, find Mr. Kissner guilty on Counts 1 and 3.

300Insofar as the two charges of sexual assault are concerned, there was no indication whatsoever that G.H. consented to the sexual touching. He said his consent was not asked for, nor did he give it. There was no evidence that GH did anything to indicate consent. I find beyond a reasonable doubt that he did not consent. Accordingly, all of the elements of the offence of sexual assault have been proven by the Crown beyond a reasonable doubt and I find Mr. Kissner guilty on Counts 2 and 4.

Disposition

301For all of the foregoing reasons, I find as follows:

1. On Count 1, I find Mr. Kissner guilty.

2. On Count 2, I find Mr. Kissner guilty.

3. On Count 3, I find Mr. Kissner guilty.

4. On Count 4, I find Mr. Kissner guilty.

5. On Count 5, I find Mr. Kissner not guilty.

6. On Count 6, I find Mr. Kissner not guilty.

7. On Count 7, I find Mr. Kissner guilty.

8. On Count 8, I find Mr. Kissner not guilty.

9. On Count 9, I find Mr. Kissner not guilty.

10. On Count 10, I find Mr. Kissner not guilty.

11. On Count 11, I find Mr. Kissner not guilty.

12. On Count 12, I find Mr. Kissner guilty.

13. On Count 13, I find Mr. Kissner guilty.

14. On Count 14, I find Mr. Kissner not guilty.

15. On Count 15, I find Mr. Kissner not guilty.

16. On Count 16, I find Mr. Kissner guilty.

17. On Count 17, I find Mr. Kissner guilty.

302I will hear from counsel on the issue of double jeopardy.