WARNING

The court hearing this matter directs that the following notice should be attached to the file:

A non-publication and non-broadcast order in this proceeding has been issued under subsection 486.4 of the Criminal Code:

(1) Subject to subsection (2), the presiding judge or justice may make an order directing that any information that could identify the complainant or a witness shall not be published in any document or broadcast or transmitted in any way, in proceedings in respect of

(a) any of the following offences:

(i) an offence under section 151, 152, 153, 153.1, 155, 159, 160, 162, 163.1, 170, 171, 172, 172.1, 173, 210, 211, 212, 213, 271, 272, 273, 279.01, 279.02, 279.03, 346 or 347,

(ii) an offence under section 144 (rape), 145 (attempt to commit rape), 149 (indecent assault on female), 156 (indecent assault on male) or 245 (common assault) or subsection 246(1) (assault with intent) of the Criminal Code, chapter C-34 of the Revised Statutes of Canada, 1970, as it read immediately before January 4, 1983, or

(iii) an offence under subsection 146(1) (sexual intercourse with a female under 14) or (2) (sexual intercourse with a female between 14 and 16) or section 151 (seduction of a female between 16 and 18), 153 (sexual intercourse with step-daughter), 155 (buggery or bestiality), 157 (gross indecency), 166 (parent or guardian procuring defilement) or 167 (householder permitting defilement) of the Criminal Code, chapter C-34 of the Revised Statutes of Canada, 1970, as it read immediately before January 1, 1988; or

(b) two or more offences being dealt with in the same proceeding, at least one of which is an offence referred to in any of subparagraphs (a)(i) to (iii).

486.6 (1) Every person who fails to comply with an order made under subsection 486.4(1), (2) or (3) or 486.5(1) or (2) is guilty of an offence punishable on summary conviction.

BARRIE COURT FILE NO.: CR-19-027-00

DATE: 20191206

ONTARIO

SUPERIOR COURT OF JUSTICE

BETWEEN:

HER MAJESTY THE QUEEN

– and –

S.M.

Defendant

M.A. Alexander, for the Crown

J. Raftery, for the Defendant

HEARD: October 15-17, 2019

DAWE J.

[1] The defendant S.M. was tried before me, sitting without a jury, on an indictment charging him with two counts of sexual assault. Both charges are based on historical allegations made by a man named G.C. that date back to the mid-1980s and early 1990s. The complainant G.C. is now in his mid-forties and the defendant S.M. is approximately six and a half years older.

[2] Count 1 on the indictment is particularized to span a time period starting on […], 1985 – which was the defendant S.M.’s eighteenth birthday – and ending on December 31, 1987. The time period particularized in Count 2 picks up where Count 1 ends, starting on January 1, 1988 and extending to November 19, 1993.

I. The Evidence

A. Undisputed background facts

[3] I heard testimony from three witnesses. The complainant G.C. and his mother S.T. both testified for the Crown, while S.M. testified in his own defense.

[4] The defendant S.M. was born on […], 1967, and turned 18 on […], 1985. The complainant G.C. is approximately six and a half years younger than S.M. He was born on […], 1973, and turned fourteen – the age of consent at the relevant time, as discussed further below – on […], 1987.

[5] G.C. has two older sisters, one younger sister and two younger brothers. During most of the relevant time period, he and his parents and siblings all lived together in Barrie. G.C. testified that the family first moved to Barrie when he was in grade 3 but his mother gave a more precise date, testifying that the family moved there in October 1982, shortly before G.C.’s ninth birthday. The family initially lived in a rented townhouse on what I will call B Street,[^1] where G.C. shared an upstairs bedroom with his younger brother.

[6] A few years later the family moved to a different house on what I will call C Street. G.C. placed the timing of this move as happening around the end of his grade 4 year or the start of his grade 5 year. However, his mother S.T. again provided a more precise date, testifying that the family moved to the C Street house in October 1984, shortly before G.C. turned eleven in […]. After the family moved to the house on C Street, G.C. and his brother both slept in the basement, initially in an open unfinished area and later in a bedroom that his father built for them.

B. G.C.’s evidence

[7] G.C.’s maternal grandparents owned, operated and lived in a campground in a town on Georgian Bay. G.C. and other members of his family, including his paternal grandparents, regularly spent summer vacations and holidays at this campground. G.C. testified that he sometimes went to the campground with his parents and stayed in a trailer with them, and that at other times he and other siblings went without their parents and stayed either with his maternal grandparents in their house on the campground property or with their paternal grandparents in their own trailer.

[8] G.C. recalled going to the camp “pretty much every summer” during his childhood, on “weekends for sure” and sometimes for a month or for the entire summer. At least one of his siblings usually went with him. G.C. testified that he and his “cousins and friends and all the kids” at the campground used to associate without dividing themselves up by age, so that youths from eight to twenty-five would all hang out together.

[9] G.C. testified in chief that he first met S.M. at the campground in the summer when he was either eleven or twelve – i.e., in 1985 or 1986. He later testified that he thought that S.M. was seventeen at the time. (S.M. turned seventeen in […] 1984 and eighteen in […] 1985). G.C. had seen S.M. around during the previous summer, but they did not really meet or speak to one another until the next year. S.M. stayed with his own parents and his siblings in their own trailer at the campground, but his parents did not always come up to camp with them.

[10] As discussed below, G.C. testified that S.M. began sexually assaulting him during the summer that they first met and started hanging out together, which on his evidence was either 1985 or 1986. However, in cross-examination G.C. agreed that he had at one point told the police that the sexual assaults started when he was around nine – that is, in around the summer of 1983 – and he agreed that he had “thought that at one time”.

1. Sexual incidents at the campground

[11] G.C. testified that during the summer when he first met S.M., there was one time when he and his sister and cousins were with S.M. in S.M.’s family’s trailer and S.M. put on a pornographic video. On a later date G.C. and S.M. ended up alone together in S.M.’s trailer and S.M. again put on a pornographic video, which G.C. specifically recalled as the film “Deep Throat”. S.M. then began rubbing G.C.’s leg and “[i]t just kind of escalated from there”. S.M. eventually pulled down G.C.’s pants and performed fellatio on him. S.M. then removed his own pants and tried to have G.C. fellate him but G.C. refused because he thought S.M.’s uncircumcised penis looked “nasty”. G.C. testified that S.M. tried to penetrate G.C. anally but was unable to do so. The incident ended with S.M. ejaculating by “dry humping” G.C. with his penis placed between G.C.’s genitals and leg. G.C. testified that during this incident he said “no” several times but that S.M., who was much larger and stronger, “pinned him down”.

[12] G.C. testified that after this first sexual assault he began regularly spending time alone with S.M. at the campground. They would go swimming together or fish or shoot pool. They also engaged in further sexual activity, which G.C. testified “became a daily thing, so long as I was with him”, and which on some days occurred as many as two or three times. S.M. would perform fellatio on G.C. and would have G.C. manually stimulate S.M.’s penis. These incidents initially took place in S.M.’s trailer, but later also occurred in S.M.’s father’s van, on S.M.’s family’s boat, and on the trail out to a point overlooking the bay. G.C. testified that these incidents continued for the rest of that summer and over the next two summers.

[13] Throughout this period S.M. would reward G.C. by buying him candy and gifts from the camp store, and would sometimes “try to make deals with me, if I do this I’ll give you this”. Initially S.M. would make threats, “kind of like ha ha ha, buddy buddy, if you told anyone I’d have to kill you, in a joking way but not joking way”. However, G.C. explained that after a while “I was more wanting it hidden as much as [S.M.] did”, testifying that his parents would threaten him and his siblings that they would be disowned if they grew up gay or lesbian, “so of course I’m not going to say anything”.

2. Sexual incidents at the C. family residences

[14] G.C. testified further that on one occasion his parents let S.M. visit their townhouse on B Street and sleep in G.C.’s room while G.C.’s brother slept somewhere else in the house. G.C. initially testified that this happened when he was in grade 3, but later changed his evidence and testified that he was “around 12” and “[h]ad to be at least [in] grade 6”. G.C.’s mother made up a bed for S.M. on the floor, but he spent most of the night with G.C. in G.C.’s bed. On G.C’s evidence, at some point during the night his mother walked into the bedroom while S.M. was performing fellatio on him. She “stopped in shock” and left the room without saying anything. G.C. was terrified about what would happen the next morning, thinking that his “life was over” because his “parents know now and something’s going to happen and it’s going to be bad”. However, the next day “started like a normal day” and his mother “didn’t say a word” to him about the incident. S.M. joined the family downstairs for breakfast and everything continued as before.

[15] G.C. testified that later, after the family had moved to the house on C Street, S.M. continued to visit occasionally. He estimated that S.M. stayed at the C Street house between ten and twenty times, sometimes overnight and sometimes for an entire weekend. During each of these visits S.M. would sleep with G.C. in the basement and would perform fellatio on him.

3. Sexual incidents in Toronto

[16] G.C. testified that after he turned fourteen, he “suddenly got more freedom to go to Toronto” without parental supervision, and would get permission to go to Etobicoke to stay with his paternal grandparents. Sometimes he would take the bus and at other times would get a ride with his father, who worked there. G.C. testified that he and his sister also sometimes stayed with his grandparents in Etobicoke even before he turned fourteen. G.C. testified that when he stayed at his grandparents’ house in Etobicoke, S.M. would come visit him there and that they would engage in sexual activity. However, he did not describe any specific incidents at his grandparents’ house or situate them in time.

[17] G.C. testified that at some point when he was either fourteen or fifteen S.M. invited him to S.M.’s parents’ house in east Toronto. During this visit S.M. performed anal sex on G.C. for the first time, in S.M.’s basement bedroom while S.M.’s parents were upstairs. G.C. testified that S.M. got him “turned on” by showing him nude magazine photos of women and naked pictures of a woman S.M. said was his girlfriend, and then persuaded G.C. to let S.M. penetrate him anally. G.C. testified that he had not wanted to do this but that S.M. had talked him into it. In his trial testimony G.C. recalled that S.M. had had lubricant and multiple condoms of “different types and colours”. When it was put to G.C. in cross-examination that he had not mentioned these latter details in any of his prior statements or testimony, G.C. explained: “I’ve been doing my best my whole life to not to have these memories, to the point where I pretty much had them blacked out for a time.”

[18] Over the next several years G.C. continued to meet S.M. in Toronto periodically to engage in further sexual activity with him, including further incidents of anal sex. G.C. testified that he did not want to have sex with S.M. and would say “no”, but that when he refused S.M. would respond by saying: “How much more money should I give you?” G.C. added that it was “almost like he bugged for it”. G.C. explained that he continued going to visit S.M. and have sex with him because:

In my mind then, I was done, just brainwashed. … See, I don’t know what’s normal at that age. I don’t know how to explain it. It was like, it was cool to have that older person as your friend, but at the same time what was happening to me wasn’t cool, but at the same time I got used to it. By the end, to be honest with you, I was so messed up I kind of got a reversed role on me, where I was like fuck it, I’m going to get what I can get out of it. I can’t stop it. And so it worked to his benefit anyway, cause he ended up getting what he wanted. … In the end it was just complete bribery, as if I was turned into like a prostitute, like what can I give you to get out of it.

At one point when G.C. was refusing to have sex, S.M. bought G.C. a motorcycle, then came to Barrie “and wanted me to have sex with him and he rented a hotel for like a week”. G.C. went to visit S.M. in the hotel room and had sex with him “a couple of times”. He testified that the motorcycle was repossessed the next winter because S.M. did not keep up with the loan payments.

[19] At trial, G.C. testified that he did not like to refer to his activity with S.M. as “sex”, preferring to use the term “rape”. When cross-examined on a 2015 police statement in which he had described himself as “feeling that I was in control” of his sexual relationship with S.M., G.C. explained:

I know that I was like conned into thinking that I was in control, when I know I wasn’t now, not then. … It was a mindscrew game so he could made me feel like I’m in control so I could get what I wanted therefore he could get what he wanted. Making me feel like I was in charge because really I wasn’t, I was like so screwed up.

He testified further: “I just know now with all my therapy I’ve done that I was groomed and brainwashed”.

[20] G.C. testified that the last time he recalled seeing S.M. and engaging in sexual activity with him was when he was sixteen or seventeen and went to visit S.M. at the Toronto apartment where S.M. was now living with his girlfriend. G.C. recalled that afterwards S.M. tried to call him but that he stopped taking or returning S.M.’s calls. He explained that his memory of this period of his life was poor, testifying that he was using marijuana heavily at the time and that there was a “fair part of my life where in my I brain I just blacked everything out and didn’t remember”.

4. Circumstances leading up to G.C.’s police complaints

[21] When G.C. was in his late teens, he moved to Toronto to live with an aunt and finish high school at an adult learning centre. When he was in his early twenties he tried cocaine for the first time and it became his drug of choice, although a few years later he began also drinking alcohol.

[22] G.C. later began a relationship with a woman and they had three children together. When he was in his mid-to-late thirties he began using cocaine and alcohol heavily, and also began suffering from depression and post-traumatic stress disorder that left him bedridden for a year. In 2010, when he was 36 years old, he went to the Toronto police and made a criminal complaint about S.M. but ultimately declined to proceed with charges. He later made the complaint to the Barrie police that resulted in the charges before the court being laid.

[23] G.C. testified that around ten years ago, around the time he first went into therapy, he questioned his mother about why she had not done anything after walking in on him and S.M. at the B Street townhouse. According to G.C.:

[S]he asked me for forgiveness. And she started crying, and said “I went downstairs and I told your father but he wouldn’t do anything”. And she apologized and, like, to accept forgiveness. But I was in a really dark place at that time, but, like I forgave her, and I said: “Well, one day if I decide to go to court you’ll have to testify”.

However, G.C. testified that when he approached his mother later, after going to the police, she now insisted that the incident she had witnessed had actually been at the C Street house and that G.C. had been sixteen. According to G.C., his mother now told him:

I came into the room and I saw him blowing you and I fucking told him to get his shit on and get out of the house.

G.C. explained that he believed his mother had “reneged” on her earlier apology to him about failing to act after witnessing the incident on B Street, and thought she had done this so she wouldn’t “look bad in front of [G.C.’s siblings]”. He explained:

She is just doing that to make me look like I’m older, as if it is my decision. She is trying to save face from my brothers and sisters. We don’t speak to each other anymore.

He added that he and his mother have not spoken for almost a year and expressed his opinion that: “She’s on his [i.e., S.M.’s] side now”.

C. G.C.’s mother S.T.’s evidence

[24] As noted previously, G.C.’s mother S.T. testified that the family moved to the B Street townhouse in October 1982 and then moved to the C Street house two years later, in October 1984. She drew sketches of the floorplans of both residences that were filed as trial exhibits.

[25] S.T. testified that when her three eldest children were young – a group that included G.C., who was the third child – they spent a lot of time with her in the summer at her parents’ campground. She explained that in some years they would go to the campground every summer weekend and sometimes stay for as long as two to four weeks at a time, but that they never spent the entire summer there. In other years they went less often and spent only one or two weeks there. S.T. agreed that the children sometimes spent time at the campground without her in the care of their grandparents.

[26] S.T. recalled meeting S.M. and his mother at the campground, but did not recall meeting S.M.’s father or any of S.M.’s siblings. She remembered S.M.’s mother as usually being at the campground when S.M. was there, but could only recall them being at the campground for around two or three years. S.T. recalled that during these years S.M. spent a lot of time with G.C., taking him fishing and watching TV with him in the M. family trailer. G.C. occasionally had sleepovers with S.M. at his trailer or on the M. family’s boat. S.T. thought that S.M. liked hanging out with G.C. despite their age difference because S.M. thought G.C. “was a fun kid”, but she also had the impression that S.M. was romantically interested in S.T.’s eldest daughter, who was around his age.

[27] S.T. testified that she also recalled S.M. coming to visit them at the C Street house in Barrie once or twice, at G.C.’s invitation and with her permission. The last time he came to visit was in the summer of 1985. S.T. was confident that this was the year because the family had only moved into the C Street house the previous fall, and because she gave birth to her youngest son in the summer of 1986 and would not have been having sleepovers at that time. S.T. recalled that during this visit G.C. and S.M. slept in separate beds that had been set up in the main unfinished area of the basement because the basement room that later became G.C.’s bedroom was still under construction.

[28] At some point during the night S.T. went down to the basement and saw her son G.C. getting out of the bed where S.M. was lying. She did not witness any overt sexual contact between them, but explained: “This is an adult, and the first thing I’m thinking is that he is sexually molesting my child”. S.T. left the basement without saying anything, and went upstairs to the kitchen to tell her husband what she had just seen. She testified: “I don’t know if I said call the police or throw him out, but he wouldn’t help”.

[29] S.T. testified that she then spent the rest of the night sitting up near the basement stairs and listening for noises from downstairs. She assumes she must eventually have fallen asleep, because when she went down to the basement early in the morning S.M. was gone. S.T. never spoke to her son about what she had seen that night.

[30] S.T. was adamant that this incident occurred at the C Street house, and had no recollection of S.M. ever coming to visit while the family was living in the B Street townhouse.

[31] S.T. testified that after this incident she never saw S.M. again. She did not spend a lot of time at her parents’ campground the next summer – 1986 – because she had a newborn baby, but recalled going up for a week that summer and being ill the entire time, which meant that G.C. had to take care of his new baby brother. However, S.T. testified that the next summer – 1987 – she spent a lot of time at the camp because her father was planning a family reunion and she went up to help him paint and clean and get things ready. She did not recall seeing S.M. at the campground during either of these summers or any later summer, and testified that she “very much doubt[ed]” that S.M. and his family ever returned to the campground after the incident at the C Street house, “given that it was owned by my parents”. She agreed that it probably would have stood out in her mind if she ever had seen S.M. again at the campground.

[32] S.T. testified that the family went to visit her husband’s parents in Etobicoke quite often over the years, but that G.C. didn’t often go by himself, apart from one time when she and her husband went on a trip and the children spent “a couple of weeks” with their paternal grandparents. This trip was some time after 1986, when their youngest son was born.

[33] S.T. testified that she only learned years later that in his teens G.C. had started going to Toronto to see S.M. At one point in around 1990 G.C. came home with a motorcycle and told S.T. he had got it from S.M. and that he was “using [S.M.] to get stuff that he wanted.” When she asked G.C. why he would go see S.M. “after what had happened”, he replied: “To get even”, which she understood to mean financially. S.T. told G.C. that she did not want him going to visit S.M., but he ignored her.

D. S.M.’s evidence

[34] S.M. is now 52 years old. He did not complete high school, and testified that his intelligence “isn’t that great”. At some point, starting when S.M. was around nine years old, his family started going in the summer to the campground owned by G.C.’s grandparents. His father always came with them because he was the only person in the family who could drive, although S.M. eventually got his own licence when he was around seventeen or eighteen. His father worked as a roofer and the family would drive up to the campground in the construction van his father used for work. After S.M. left high school he started working with his father and only came to the campground at times when he and his father were not working, usually on weekends but sometimes for a week or two, depending on how much work his father had.

[35] S.M. estimated that his family went to the campground for between ten and fifteen years, starting out in a tent and later getting a trailer. He would stay in the trailer with his parents and his two nieces, who were in his mother’s custody. Their trailer had bunk beds where his parents and his nieces slept, while S.M. slept on a table that folded into a bed. His older siblings sometimes also came to camp but would stay in tents or rent a trailer for themselves. S.M. testified that the family’s trailer only had a black and white TV and that there were never any pornographic videos around, explaining that his mother was “very Catholic” and “wouldn’t allow that”.

[36] S.M. met G.C. at the campground and they became friends. In cross-examination S.M. guessed that they met when S.M. was around seventeen or eighteen years old and G.C. was around eleven or twelve. S.M. testified that everyone at the campground “used to hang out”, and that he tried to spend as much time as possible with G.C.’s older sister, whom he had a romantic interest in. He also spent time with G.C., explaining that they would “hang out, go fishing, play games at the arcade.” S.M. testified that he was of below-average intelligence and didn’t complete school, explaining: “I think, like two or three years younger than what I am, so I used to do goofy things and I hung around with younger people, just because … it’s just what I did”.

[37] When cross-examined about why he would spend time with a boy as young as G.C., S.M. explained: “I’m not very bright. All we did was hung out and went fishing.” G.C. slept over at the family’s trailer two or three times, always on occasions when S.M.’s nieces were away with their father, S.M.’s brother. During these sleepovers S.M. slept in the bunk bed where his nieces would otherwise sleep and G.C. slept on a couch bed. They never had any sleepovers on the family’s boat. S.M. explained that his father had several different boats over the years, but that these were always uncovered aluminum fishing boats in which one could not sleep because “the mosquitos would eat you alive”. They also never had sleepovers in his father’s van.

[38] S.M. denied ever having any sexual contact with G.C., either at the campground or anywhere else, or having any sexual interest in him.

[39] S.M. testified that he went to G.C.’s family’s house on C Street a few times to help out with renovations, at the request of G.C.’s father. He never went to the townhouse on B Street. S.M. would come up from Toronto and sleep on a couch in the living room, not down in the basement. He denied that there was ever an incident when G.C.’s mother S.T. caught him in bed with G.C. or that he and S.T. ever had a falling-out.

[40] In later years G.C. would occasionally visit S.M. in Toronto, usually when G.C. was down visiting his grandparents. S.M. went to G.C.’s grandparents’ house only once, when G.C. was “fourteen or fifteen, maybe” to pick him up and take him to Canada’s Wonderland. At other times G.C. would come to S.M.’s house in east Toronto, and later came to the apartment S.M. was sharing with a male roommate. They continued to occasionally see one another until around 1994 or 1995, when G.C. was in his early twenties, but eventually they had a falling-out when G.C. sold S.M. a used car that broke down soon afterwards and then refused to refund S.M.’s money

[41] In cross-examination Crown counsel put it to S.M. that when he was contacted by the Barrie police in March 2017 to surrender on the charges before the court he had tried to take his own life. S.M. agreed, explaining that he had been driving to Barrie to turn himself in and had rolled his vehicle and tried to stab himself. He also agreed that he had sent an email or text asking his family to “please forgive [him]”. However, S.M. denied that his suicide attempt or request for forgiveness were motivated by remorse over having sexually abused G.C., testifying that he had made several previous attempts to kill himself because of his distress over the death of his parents a few years earlier.

II. Analysis

A. General principles

1. The standard of proof

[42] As in any criminal case that is tried without a jury, my task as the trier of fact is to determine whether the evidence that has been presented to me establishes the defendant’s guilt on any of the charges against him on the criminal standard of proof beyond a reasonable doubt. The Supreme Court of Canada has explained that a reasonable doubt is not an imaginary or frivolous doubt, or one based upon sympathy or prejudice, but is a doubt based on reason and common sense that is logically derived from the evidence or absence of evidence. It is not enough for me to conclude that S.M. is probably guilty of either or both of the charges against him. While I do not have to be absolutely certain of his guilt in order to find him guilty, the standard of reasonable doubt “falls much closer to absolute certainty than to proof on a balance of probabilities” (R. v. Starr, 2000 SCC 40 at para. 242). In short, in order to find S.M. guilty of either of the counts with which he stands charged I must be sure, based on all of the evidence before me, that he committed all of the essential elements of the offence charged in that count.

2. The essential facts the Crown must prove

[43] The essential elements of the offence of sexual assault during the relevant times in this case can be summarized as follows: the Crown must establish beyond a reasonable doubt: (i) that S.M. touched G.C. in an objectively sexual manner without G.C.’s consent, and (ii) that he intended to touch G.C., either knowing that G.C. was not consenting or being reckless or wilfully blind about G.C.’s lack of consent.[^2] (See R. v. Ewanchuk, 1999 711 (SCC), [1999] 1 S.C.R. 330 at paras. 25, 42).

[44] During the time period at issue persons under the age of fourteen were statutorily deemed to be incapable of providing legal consent to sexual activity in most circumstances.[^3] G.C. turned fourteen in mid-[…] 1987, a few weeks before the end of the time frame particularized in Count 1. Accordingly, for all but the last six weeks of the timeframe captured by Count 1 he was statutorily incapable of consenting to any of the sexual activity he alleges happened during this period. Since most of these allegations relate to things G.C. described happening at the campground during the summer, and since he did not describe seeing S.M. during the six weeks immediately after his fourteenth birthday, counsel agreed that for analytic convenience I can treat Count 1 as if it ends on G.C.’s fourteenth birthday rather than a few weeks later. The practical effect is that consent is not a live issue in relation to Count 1.

[45] However, G.C. was fourteen or older and legally capable of consenting to sexual activity throughout the entire time period captured by Count 2. Accordingly, consent is a live issue in relation to the second count.

[46] As Wilson J. noted in R. v. B.(G.), 1990 7308 (SCC), [1990] 2 S.C.R. 30 at p. 53, “the date of the offence is not generally an essential element of the offence of sexual assault. It is a crime no matter when it is committed.” However, special considerations apply here in relation to Count 1, since this charge is particularized to specify a time frame that begins on S.M.’s eighteenth birthday. Although it would still be a crime for S.M. to have sexually assaulted G.C. before S.M. turned eighteen, any criminal offences S.M. committed before his own eighteenth birthday can only be prosecuted in a youth court and cannot be tried jointly with the adult charges in the indictment on which S.M. is now being tried (see R. v. S.J.L., 2009 SCC 14). The practical effect is that the Crown cannot seek to have the Count 1 time frame amended to make it apply to events before S.M. turned eighteen.

[47] In these particular circumstances, to obtain a conviction on Count 1 the Crown must prove that the sexual activity G.C. alleges occurred within the time frame specified in the count and not earlier, when S.M. was still a youth.

[48] In the case at bar, there is no dispute that G.C.’s evidence described intentional and objectively sexual touching by S.M. Accordingly, the live issues in relation to the two charges can be summarized as follows:

(a) Count 1: the Crown must prove beyond a reasonable doubt: (i) that at least one of the sexual incidents G.C. describes occurring before his own fourteenth birthday actually happened; and (ii) that at least one of the incidents that is proven occurred when S.M. was at least eighteen years old (i.e., on or after […], 1985).

(b) Count 2: the Crown must prove beyond a reasonable doubt: (i) that at least one of the sexual incidents G.C. describes occurring after he turned fourteen actually happened, and (ii) that G.C. did not consent to this sexual activity; and (iii) that S.M. either knew that G.C. was not consenting to this sexual activity or was wilfully blind or reckless as to G.C.’s lack of consent.

3. Assessing witness testimony

[49] Special considerations also apply in cases like this one where the prosecution’s case rests primarily on the evidence of a witness who describes events he or she says occurred many years ago, when the witness was a child or a youth. It would be an error for me to automatically discount G.C.’s evidence for this reason alone. As McLachlin J., as she then was, explained in R. v. W.(R.), 1992 56 (SCC), [1992] 2 S.C.R. 122 at p. 134:

In general, where an adult is testifying as to events which occurred when she was a child, her credibility should be assessed according to criteria applicable to her as an adult witness. Yet with regard to her evidence pertaining to events which occurred in childhood, the presence of inconsistencies, particularly as to peripheral matters such as time and location, should be considered in the context of the age of the witness at the time of the events to which she is testifying.

I must also caution myself against relying on outdated or stereotypical assumptions about how a young sexual assault victim “ought” to behave.

[50] At the same time, in view of the criminal burden and standard of proof, it would also be an error for me to simply accept G.C.’s evidence uncritically. Rather, I must assess his evidence on “a ‘common sense’ basis, taking into account the strengths and weaknesses which characterize the evidence offered in the particular case” (R. v. W.(R.), supra at p. 134).

[51] S.M. has responded to the Crown’s case by taking the witness stand himself and denying the complainant’s allegations. While there is obviously an irreconcilable conflict between G.C.’s allegations and S.M.’s denials, I must bear in mind that it is not my task to choose between their versions and decide which I find more believable. Rather, it follows from the criminal standard and burden of proof that I must acquit S.M. in any of the following situations:

(i) If I believe his testimony that he never had any sexual contact with G.C.;

(ii) If I do not affirmatively believe his denials, but his testimony and the other evidence that supports his denials leaves me with a reasonable doubt; or

(iii) If I entirely reject his evidence as unbelievable, but am still not satisfied of his guilt as charged in either offence beyond a reasonable doubt, based on the evidence that I do accept.

See, e.g., R. v. W.(D.), 1991 93 (SCC), [1991] 1 S.C.R. 742.

[52] I must also bear in mind that S.M. does not bear any burden of explaining why G.C. would make up false allegations against him. Rather, as I have already discussed, it is the Crown’s burden to satisfy me beyond a reasonable doubt that at least some of G.C.’s allegations are true and establish the commission of the offences charged.

[53] Finally, I caution myself about placing undue reliance on any witness’s testimonial demeanour. As the Ontario Court of Appeal has observed, “while demeanour is a relevant factor in a credibility assessment, demeanour alone is a notoriously unreliable predictor of the accuracy of evidence given by a witness” (Law Society of Upper Canada v. Neinstein, 2010 ONCA 193 at para. 66).

B. Findings and conclusions

1. Testimonial credibility

[54] G.C. was in some respects an impressive witness. He gave his evidence in a measured way and refrained from taking up some suggestions that would have portrayed S.M. in an even worse light. For instance, he did not agree that S.M. had coerced him into having sex in later years by threatening to expose their activities, acknowledging that he had his own reasons to keep their sexual activity secret. I also found G.C.’s description of his conflicted feelings about his relationship with S.M. and his adult self’s reassessment of his own actions when he was a youth, to be credible.

[55] However, I also have concerns about the reliability of some aspects of G.C.’s account. His testimony that he had “blacked out” his memories of some events in his youth, but could now retrieve these memories by thinking hard about them, raises the concern that at least some of what G.C. now thinks are clear and accurate recollections may be confabulations.

[56] That said, I do not consider it likely that G.C.’s memories of engaging in sexual activity with S.M. over the course of many years could be delusions caused by his brief experimentation with psychedelic drugs as a young adult, as the defence suggested. I also do not find the suggestion that G.C. might have made up false allegations against S.M. because of lingering resentment over a decades-old used car sale that went wrong to be very plausible. While it is not the defence’s burden to prove anything, including why G.C. would make up or imagine false allegations against S.M., I would not reject G.C.’s evidence on the strength of these particular explanations.

[57] However, for reasons I will discuss in more detail later, I do not consider G.C. to be a very reliable witness when it comes to dates and the timing of events. He frankly acknowledged in cross-examination that he “had difficulty with dates”. This is unsurprising, since it is very common for adult witnesses to be unable to accurately situate in time events from their distant childhood. As McLachlin J., as she then was, noted in R. v. W.(R.), supra at p. 133, “[s]ince children may experience the world differently from adults, it is hardly surprising that details important to adults, like time and place, may be missing from their recollection.” I should emphasize that my concerns about G.C.’s testimonial reliability in relation to the timing of events do not, on their own, detract from the reliability of the rest of his account.

[58] G.C.’s mother S.T. was also a generally impressive witness. While she and her son have evidently discussed their memories of events involving S.M. with one another at some point, I am satisfied that she has not allowed her own recollections to be unduly influenced by G.C.’s sometimes conflicting account. In particular, S.T.’s insistence on the reliability of her own memory concerning the incident at the C Street house where she walked in on G.C. and S.T. together – which G.C. insists actually happened at the B Street house – appears to have caused a great deal of friction between her and her son. On questions of timing I tend to prefer S.T.’s evidence over G.C.’s evidence, since as an adult she was better able to situate events in time by associating them with other things that were going on in her life.

[59] However, as I will discuss further below, there are some serious and irreconcilable conflicts between G.C. and S.T.’s evidence on certain important points.

[60] I was less impressed by S.M. than I was by either of the Crown’s witnesses. His repeated reference to his low intelligence as an excuse for his spending time with a younger child struck me as rehearsed. His acknowledged suicide attempt while on his way to surrender to the police, and his text asking for forgiveness from his family, strongly suggests a guilty conscience on his part. While I would have to consider other possible explanations for his actions before drawing this conclusion – a task made more difficult by the sketchy details I have about the suicide attempt and text message he sent to his family – his own explanation that he was suicidal over the deaths of his parents some time earlier is difficult to credit as an explanation for why he would try to kill himself specifically while going to surrender to the police on charges relating to G.C.

[61] As noted above, the first stage of the W.(D.) analysis requires me to acquit S.M. if I believe his denials. I do not affirmatively believe his evidence, and would go so far as to say that I prefer the evidence of the Crown witnesses. This does not of course end the analysis, since I can only find S.M. guilty if his evidence does not leave me with a reasonable doubt, and if I am also satisfied of his guilt beyond a reasonable doubt by the evidence that I do accept.

[62] For reasons that will become clear, in this case I prefer to start with the second of these issues. If the evidence relied on by the Crown – including those aspects of S.M.’s testimony that the Crown urges me to accept as true – do not satisfy me of S.M.’s guilt on the criminal standard of proof, it will become unnecessary for me to decide whether S.M.’s denials leave me with a reasonable doubt.

[63] Since the factual issues I must address in relation to each of the two counts against S.M. are somewhat different, I will consider each count in turn, in chronological order.

2. Does the case for the Crown satisfy me of S.M.’s guilt?

a) Count 1 (July 1985 to December 1987)

[64] In summary, G.C. alleges that for a period of around three years he was regularly and frequently sexually assaulted by S.M. He describes these sexual assaults as occurring most often during the summer, in and around his grandparents’ campground, but also describes sexual assaults that happened at both of the two C. family residences in Barrie – first at the B Street townhouse, where the family initially lived, and later at the C Street house after the family moved there.

[65] G.C. testified that the sexual assaults by S.M. began at the campground during the first summer they started spending time together, which in his trial testimony he described as the summer when he was either eleven or twelve – that is, in the summers of either 1985 or 1986 – and continued for about three years. This would place at least some of these sexual assaults within the time frame spanned by Count 1, which runs from S.M.’s eighteenth birthday on [...], 1985 and extends to the end of 1987

[66] G.C. also described in detail an incident he says happened at the B Street townhouse, during which his mother walked in while S.M. was performing oral sex on him in his bedroom. G.C. was adamant that this particular incident occurred at the B Street townhouse and not at the C Street house, although he testified that there were also further sexual incidents at the C Street house once the family moved there. G.C. also testified that the incident at the B Street townhouse happened when he was about twelve years old.

[67] There is a clear internal conflict in G.C.’s own timeline. G.C.’s evidence was that the family moved away from the B Street townhouse and into the C Street house around the end of his grade four or the start of his grade five years, which would have made him only around nine years old. If G.C. did not even meet S.M. until he was eleven or twelve, S.M. could not possibly have sexually assaulted G.C. at the B Street townhouse.

[68] His mother S.T.’s evidence – which I consider more reliable than G.C.’s evidence on points of timing – was that the family’s move from B Street to C Street actually occurred in October 1984, shortly before G.C.’s eleventh birthday. Again, however, on this timeline S.M. could not have been at the B Street townhouse if he and G.C. did not actually meet until G.C. was eleven or twelve.

[69] Likewise, G.C.’s evidence at trial that the sexual assault in the B Street townhouse occurred when he was around twelve years old and in grade 6 is plainly incorrect on either his own or his mother’s timelines about when the family moved away from B Street.

[70] If the sexual assault in the B Street bedroom that G.C. described in considerable detail in his testimony could not have actually occurred as he described it, this is obviously a matter of real concern when assessing the reliability of his evidence in general.

[71] One way to reconcile this problem would be to conclude that G.C. is simply mistaken about how old he was when he first met S.M. at the campground and the sexual assaults began. G.C. agreed in cross-examination that he had at one point thought that he had actually been only around nine years old when S.M. began sexually assaulting him. If this were true it would explain how S.M. could have come to stay at the B Street townhouse, since S.T. testified that the family did not move away from B Street until G.C. was ten years old. In light of G.C.’s acknowledged “difficulty with dates” and the common experience that adults are frequently unreliable witnesses when it comes to identifying precisely when events in their childhood happened, concluding that G.C. is confused about his age at the relevant times would not necessarily cast doubt on his overall testimonial credibility and reliability. In contrast, a finding that his very detailed memory of being sexually assaulted in the B Street townhouse is a false memory would be much more problematic.

[72] However, shifting G.C.’s timeline back by several years also creates a serious problem for the Crown’s case. If G.C. actually first met S.M. at the campground during the summer when he was as young as nine years old – that is, in the summer of 1983 – S.M. would still have been a youth himself, both that summer and the following summer. Moreover, it is entirely possible that G.C. is wrong about how many summers the assaults continued for, particularly if he is also confused about his age at the time. G.C.’s testimony that the assaults continued over three summers did not emerge spontaneously, but was suggested to him by the Crown. If the sexual assaults actually started when G.C. was nine and only continued over two summers, S.M. would have been under eighteen for the entire time. As discussed above, he cannot be prosecuted or found guilty in this court of any offences he committed while still a youth.

[73] Crown counsel Ms. Alexander seeks to address this problem by weaving together different strands of G.C.’s and S.T.’s conflicting evidence. She urges me to conclude that G.C. is correct about how old he was when he first met S.M. at the campground, and to conclude further that the incident he places in the bedroom at the B Street townhouse is the same incident his mother S.T. describes as happening at the C Street house in the summer of 1985, but to conclude that G.C. is mistaken about the location where this happened. She argues that it would make sense for a young child like G.C. to focus on the incident having happened in the secure space of his bedroom, and that it is therefore not surprising that he would later confabulate a specific and detailed – and now seemingly unshakeable – memory of this bedroom being upstairs at the B Street townhouse rather than in the basement of the C Street house. Ms. Alexander also relies on S.M.’s own evidence that he thought G.C. was around eleven or twelve when they first met, as well as his testimony that he visited the family at the C Street house several times but never went to the B Street townhouse.

[74] In my view, there are a number of problems with taking this à la carte approach to the evidence in this case. First, G.C. and S.T.’s accounts do not conflict only on the issue of which house the family was living in at the time of the bedroom incident. Rather, G.C. also maintains that the next morning his mother said nothing about what had happened and that his contact with S.M. – and the ongoing sexual assaults – continued for several more years, including during future visits S.M. made to the C Street house. However, S.T. is adamant that after the bedroom incident S.M. left the house unobserved the next morning and that she never saw him again, either at the house or at her parents’ campground. It is not easy to dismiss this conflict in their evidence as an insignificant artefact of the frailties of G.C.’s youthful memories.

[75] Moreover, if S.T. is correct in her recollection that S.M. and his family never returned to her parents’ campground after the C Street incident in the summer of 1985, this would necessarily imply that the sexual assaults G.C. describes as occurring at the campground in earlier summers would all fall outside the timeframe of Count 1, before S.M. turned eighteen.

[76] The Crown seeks to deal with this latter problem in two alternative ways. First, Crown counsel argues that S.T. may be wrong about S.M. and his family never going to the campground after the bedroom incident. She suggests that S.T. may instead have merely not seen S.M. at the campground because, by coincidence, they happened never to go there again at the same time. This possibility strikes me as implausible. Alternatively, Crown counsel argues that even if S.M. did stop going to the campground entirely after the summer of 1985, I can still conclude that he sexually assaulted G.C. during that summer and after his eighteenth birthday, which was on […] of that year.

[77] It may be possible to cobble together evidence from different witnesses in the manner the Crown proposes in order to come up with a coherent narrative in which S.M. would be guilty of sexual offences that he committed as an adult within the Count 1 timeframe. However, it is not enough for the prosecution to show that there is some possible construction of the conflicting evidence in which S.M. appears guilty. Rather, the Crown must satisfy me that there is no reasonably possible alternative construction of the evidence in which he is not guilty.

[78] In the case at bar, there are in my view simply too many other possibilities that cannot be entirely ruled out on the criminal standard of proof. For instance, it is at least reasonably possible that G.C.’s detailed and specific recollection of his mother walking in on him and S.M. in his bedroom at B Street is accurate, and that it is his mother S.T. who has constructed a false memory that misplaces this incident as actually happening at the C Street house. However, if the incident really happened at B Street, G.C. must have been only nine or ten at the time, and S.M. would have been only sixteen or seventeen. It is also at least reasonably possible that G.C.’s own memory of what happened after this incident is wrong, and that his mother S.T. is correct when she says that S.M. left the house and that she never saw him at the campground ever again. If so, this would mean that all of the sexual assaults G.C. describes happening at the campground over a period of several years must also have occurred earlier, during years when S.M. was also a youth.

[79] It is true that this construction of the evidence would require G.C.’s memory of S.M. later visiting the C Street house to be dismissed as unreliable or untruthful. However, there are no available options in this case that do not require at least some parts of each of G.C. and S.T.’s evidence to be rejected. I also recognize that this scenario would require me to reject S.M.’s own evidence about G.C.’s age when they first met, and about visiting the C Street house. However, I am not persuaded that S.M. is a particularly reliable witness. Indeed, the Crown urges me not to believe most of his evidence, and I do not believe him. However, once I dismiss his testimony as substantially untrustworthy, I am not prepared to cherry-pick the parts that help the Crown’s case and treat those parts as necessarily reliable.

[80] It is also noteworthy just how many of G.C.’s purportedly detailed memories the Crown’s theory requires be dismissed as confabulations. As discussed above, G.C. testified that after his mother walked in on him and S.M. in his bedroom on B Street he spent the rest of the night terrified about what his parents would do the next day, but that when morning came everyone went down to breakfast as if nothing had happened. If S.T.’s evidence that S.M. actually snuck out of the house and never returned is accepted as accurate, G.C.’s ostensibly clear memory of him being there for breakfast must be false. Moreover, G.C. testified that many years later, when he was an adult and had young children of his own, his mother had asked him for forgiveness about the B Street incident but then “reneged” a few years later by saying that the incident had actually been at C Street “when [G.C.] was sixteen”. He explained that this had caused a serious rift between them and led to G.C. not speaking to his mother for two years, and has resulted in them no longer being on speaking terms now, because G.C. believes that his mother is now on S.M.’s “side”. However, S.T. denies ever telling G.C. that the incident happened when he was sixteen, and testified at trial that she places it in the C Street house in 1985, when G.C. was eleven. If S.T.’s evidence both about the incident and about what she said to her son about it are accurate, G.C.’s account of his bitter and apparently ongoing dispute with his mother becomes hard to fathom. If the conversation with his mother that caused the rift is a figment of G.C.’s imagination, this cannot be dismissed as a product of the frailties of youthful memory, since on his account it happened when he was in his mid-to-late thirties.

[81] I have also considered whether I can conclude beyond a reasonable doubt that S.M. sexually assaulted G.C. in Toronto before G.C.’s fourteenth birthday. While G.C. testified that he occasionally went to visit his grandparents in Etobicoke even before he turned fourteen and was given more leeway to travel to Toronto on his own, his mother testified that this rarely happened. Although G.C. described engaging in sexual activity with S.M. at the Etobicoke house he did not provide any details or specific times. On all the evidence, I am not satisfied that the Crown has proved that any of this sexual activity took place within the timeframe of Count 1, when G.C. was legally incapable of consenting to it.

[82] The Crown’s burden of proving guilt beyond a reasonable doubt is a very high one. Considering only the Crown’s evidence – including the parts of S.M.’s evidence on which the Crown relies – I am left with a reasonable doubt as to whether S.M. sexually assaulted G.C. during the time frame of Count 1. While I strongly suspect that at least some part of G.C.’s account of being sexually assaulted by S.M. when he was a young boy is true, I cannot dismiss beyond a reasonable doubt the possibility that these assaults took place when S.M. was still a youth, outside the timeframe of Count 1. There are simply too many contradictions and problems with the evidence for me to be sure that S.M. is guilty of committing an offence over which I have jurisdiction when G.C. was under fourteen.

[83] As mentioned earlier, the Crown urged me to treat S.M.’s suicide attempt while on his way to the police station and his plea for forgiveness to his family as circumstantial evidence of his guilt. However, even if this evidence could properly support the inference that S.M. sexually assaulted G.C., it would not reasonably support any conclusion about whether he committed this offence as an adult or as a youth. Accordingly, this evidence is incapable of addressing the source of my reasonable doubt in relation to Count 1.

b) Count 2 (January 1988 to November 1992)

[84] As noted above, G.C. turned fourteen in […] 1987, which is about six weeks before the time period particularized in Count 2 begins. He testified that once he turned fourteen his parents began giving him more freedom to travel to Toronto on his own, and that he would sometimes go to see his paternal grandparents in Etobicoke. G.C. testified further that S.M. sometimes came to visit him at his grandparents’ house and that they engaged in sexual activity during these visits, although he provided no details of any particular incidents.

[85] G.C. testified further that at some point when he was fourteen or fifteen he visited S.M. at S.M.’s parents house in east Toronto. On his account, this is when they engaged in anal sex for the first time. Over the next few years, until G.C. was sixteen or seventeen, he continued to occasionally travel to Toronto to meet S.M. and have sex with him. He testified that S.M. also once came to Barrie and rented a hotel room where they had sexual relations a few times.

[86] Once G.C. turned fourteen, under the law as it then stood he became capable of consenting to sexual activity with S.M. Accordingly, to obtain a conviction on Count 2, the Crown must prove beyond a reasonable doubt not only that at least some of the sexual activity G.C. described as happening during this timeframe actually occurred, but also: (i) that G.C. did not consent to this sexual activity; and (ii) that S.M. knew that G.C. was not consenting, or that he was wilfully blind or reckless about G.C.’s lack of consent.

[87] As Major J. explained in R. v. Ewanchuk, supra, at para. 26, “[t]he absence of consent … is subjective and determined by reference to the complainant’s subjective internal state of mind towards the touching, at the time it occurred.” G.C.’s evidence about his state of mind toward the touching at the time it occurred was not straightforward. On the one hand, he testified that he did not want to have anal sex with S.M. and would initially say “no” when S.M. asked him to participate. However, G.C. testified that when he refused, S.M. would then respond: “How much money can I give you?”. As I understood G.C.’s evidence, he was acknowledging that he would eventually do what S.M. wanted in order to obtain the reward that S.M. would hold out to him.

[88] G.C. testified that he now believes that he was “brainwashed” and manipulated into engaging in this sexual activity with S.M. I accept that G.C. now subjectively perceives what happened as not having been truly consensual. However, Ewanchuk requires me to focus on G.C.’s state of mind at the time rather than on his perceptions now, some thirty years later.

[89] Crown counsel argues that it would be wrong for me to rely on stereotypical assumptions about how a young sexual assault victim should behave. I agree, but I do not think this helps the Crown on the issue of consent. It would be an error for me to reason that by going out of his way to continue meeting with S.M. and having sex with him when he was a teenager capable of consenting, G.C. was acting in a way that is inconsistent with what should be expected of a boy who had been sexually abused when he was younger and was incapable of consenting. I recognize that this would be an error, and I do not think G.C.’s account of his actions when he was fourteen to seventeen casts doubt on his evidence of what happened when he was younger, although, as I have discussed previously, I do have doubts about the accuracy of his earlier account for different reasons. However, it would also be a legal error for me to treat G.C.’s past victimhood as robbing him of all agency even once he acquired the legal capacity to consent to sexual activity.

[90] The problem the Crown faces on Count 2 is that G.C.’s evidence relating to this charge seems to essentially describe what was ultimately consensual sexual activity. Even if G.C. found having sex with S.M. distasteful and initially said “no” to his advances, G.C. appears to have finally chosen to have sex anyway as a means of getting the rewards S.M. offered him in exchange. S.T. testified that G.C. told her at the time that “he was using [S.M.] to get stuff he wanted”, and this was essentially how G.C. also described his actions at trial.

[91] Although G.C. testified that he never wanted to have sex with S.M., the subjective mental state of consent under Ewanchuk is not synonymous with “subjective desire”. People can consent to do something they would rather not to do if they decide, on balance, that the reward they will get for doing the thing outweighs their subjective preference not to do it. Consent can of course be vitiated by force, fear or threats, and a person who “chooses” to do something they do not want to do in order to avoid a worse negative consequence if they do not do it, does not truly “consent” to doing it. However, as Major J. noted in Ewanchuk, supra at para. 39, even in this context:

The question is not whether the complainant would have preferred not to engage in the sexual activity, but whether she believed herself to have only two choices: to comply or to be harmed.

In the case at bar, G.C. did not suggest that S.M. coerced G.C. into coming to see him in Toronto and having sex with him by using force, threats, or fraud, or the “exercise of authority”.[^4]

[92] However, it is ultimately not necessary for me to decide whether the Crown has proved that G.C. did not consent to the sexual activity with S.M. captured by Count 2 (part of the actus reus of the offence) because I am not satisfied that the Crown has established the essential mental element on S.M.’s part (the mens rea). To establish S.M.’s guilt on Count 2, the Crown must also prove that S.M. knew that G.C. was not consenting to their sexual activity, or that he was wilfully blind or reckless about G.C.’s lack of consent. On G.C.’s own evidence, S.M. essentially bargained with G.C. for sex, raising his offers until G.C. agreed to let him do what he wanted. Even if G.C. retained some subjective mental reservation that caused his ostensible agreement to fall short of constituting full legal consent, I am not prepared to infer that S.M. would have known that G.C. was secretly not really consenting.

[93] I am also not satisfied that the evidence establishes that S.M. was either wilfully blind or reckless about G.C.’s lack of true consent. Wilful blindness and recklessness are both subjective mental states. As McIntyre J. explained in Sansregret v. The Queen, 1985 79 (SCC), [1985] 1 S.C.R. 570 at p. 584:

[W]ilful blindness arises where a person who has become aware of the need for some inquiry declines to make the inquiry because he does not wish to know the truth. He would prefer to remain ignorant.

Likewise, a reckless person is “one who sees the risk and who takes the chance”: Sansregret, supra at p. 582. On G.C.’s evidence, however, during the time period captured by Count 2, S.M. did not decline to inquire into whether G.C. was consenting to the sexual acts S.M. proposed, nor did he carry on without caring whether or not G.C. was consenting. Rather, G.C. testified that during this time period S.M. would respond to G.C.’s refusals by saying: “How much money can I give you”, and would not proceed further until they had agreed on a price.

[94] It follows that even if I were to entirely accept G.C.’s account of his sexual interactions with S.M. during the time frame of Count 2, I cannot find beyond a reasonable doubt that any of the sexual activity G.C. described happening during this time period constituted a sexual assault.

3. S.M.’s denials

[95] In view of my conclusion that the Crown’s case – including those portions of S.M.’s evidence on which the Crown seeks to rely – does not satisfy me of S.M.’s guilt on either Counts 1 or 2 beyond a reasonable doubt, it is unnecessary for me to consider further whether S.M.’s denials – which I do not affirmatively believe – might nevertheless raise a reasonable doubt in my mind.

III. Conclusions

[96] As discussed above, while I think it is very likely that S.M. did sexually assault G.C. when he was a young boy and legally incapable of consenting to sexual activity, I am left with a reasonable doubt as to whether these sexual assaults took place when S.M. was an adult. Any offences S.M. committed while a youth would fall outside the timeframe of Count 1 and outside the scope of my jurisdiction. It follows that I must find S.M. not guilty on Count 1.

[97] With respect to Count 2, while I am inclined to substantially accept G.C.’s evidence about his sexual relationship with S.M. when he was older and legally capable of consent, G.C. acknowledged that during this time he participated in this sexual activity with S.M. because S.M. paid him to do so. On G.C.’s evidence, I am not satisfied beyond a reasonable doubt that S.M. knew that G.C. was not consenting – if this was indeed the case – or that S.M. was wilfully blind or reckless as to G.C.’s lack of consent. It follows that I must also find S.M. not guilty on Count 2.

The Honourable J. Dawe

Released: December 6, 2019

ONTARIO

SUPERIOR COURT OF JUSTICE

HER MAJESTY THE QUEEN

– and –

S.M.

REASONS FOR JUDGMENT

Dawe J.

Released: December 6, 2019

[^1]: Since there is an order in place prohibiting publication of information that might reveal G.C.’s identity, I will not use the actual names of the Barrie streets on which the family lived.

[^2]: Section 273.2 of the Criminal Code now precludes a defendant from relying on an honest but mistaken belief in consent if he or she did not take reasonable steps in the circumstances known to him or her to ascertain whether the complainant was consenting. However, this provision only came into force in August 1992. Although Count 2 was particularized with an end date of November 1993, on G.C.’s evidence at trial his last sexual contact with S.M. occurred several years earlier, when G.C. was sixteen or seventeen (i.e., in 1989 or 1990). Accordingly, s. 273.2 has no practical application in this case.

[^3]: The Criminal Code was amended in 1988 to provide that persons who were 12 or 13 could consent to sexual activity with persons who were under the age of sixteen and less than two years older than the complainant. This provision has no application in the case at bar, since S.M. is more than two years older than G.C., who in any event had already turned fourteen by the time the “close in age” exception took effect.

[^4]: See Criminal Code, s. 265(3) as it existed during the relevant time period of 1988 to 1991. Although Count 2 is particularized to extend to G.C.’s twentieth birthday in 1993, he testified at trial that his last sexual contact with S.M. happened when he was around seventeen.