Court File and Parties

Court File No.: SCA(P) 1368/18 Date: 2020 01 16 Ontario Superior Court of Justice Summary Conviction Appeal Court

Between: Her Majesty the Queen, Respondent And: Daniel Palmer, Appellant

Counsel: K. Holmes, Counsel for the Crown M. Salih, Counsel for the Appellant

Heard: December 9, 2019

Reasons for Decision

[On Appeal From the Judgment of Justice Jaffe dated January 8, 2018]

LEMAY J

[1] The police found the Appellant, Daniel Palmer, in the driver’s seat of a car that was parked in a laneway behind a mall in Malton. Seated next to the Appellant was J.P, who was sixteen years old at the time. J.P.s pants were undone and pulled down, and J.P was in the act of masturbating.

[2] J.P. and the Appellant had known each other for four years, as they both attended at the same church. The Appellant has been J.P.’s youth advisor for the past three years. After an investigation, the Appellant was charged with one count of sexual exploitation. This charge was prosecuted on the basis that, on July 25th, 2016, the Appellant invited, counselled or incited J.P to expose his genitals and/or masturbate in his presence. J. P. testified that the events leading to the charges happened, while the Appellant testified that the events described by J.P. did not happen.

[3] The trial judge convicted the Appellant of this charge, finding that she did not believe the evidence of the Appellant and that it did not raise a reasonable doubt. The trial judge further found that all of the elements of the charge of sexual exploitation had been made out.

[4] The Appellant appeals his conviction on the bases that the trial judge misapprehended the evidence and, as a result, erroneously and without considering the evidence she did accept, concluded that the specific mens rea for sexual assault had been made out. The Appellant also argues that he was not acting for sexual gratification if he did counsel J.P. to masturbate in his presence. The Crown opposes the appeal on the basis that the trial judge correctly considered all four essential elements of the offence, and did not misapprehend the evidence.

[5] For the reasons that follow, the appeal is dismissed.

Background Facts

a) The Undisputed Facts

[6] Much of the chronology in this case is undisputed. At the time of the charges in July of 2016, the Appellant was twenty-nine years old and who was employed in a retail company. He was also a youth leader and elder at his church.

[7] Approximately four years before the charges were laid, the Appellant met J.P. At the time that J.P and the Appellant met, J.P. was twelve years old. Approximately a year later, J.P sought the Appellant out to be his mentor. The two of them had significant contact over the next few years.

[8] J.P. discussed various issues with the Appellant. Originally, these issues included problems related to J.P.’s family. However, the conversations turned to masturbation and other sexual topics. Given their shared religious beliefs, the focus of these conversations was on abstaining from masturbation.

[9] Prior to the incident giving rise to the charges, there had been previous incidents where J.P. exposed himself to the Appellant. However, the circumstances giving rise to these incidents were the subject of conflicting testimony, so I will deal with them in the next section.

[10] The final incident took place on July 25th, 2016 when the Appellant picked J.P. up at his house, and the two of them went to Tim Horton’s for a counselling session. On the way to the Tim Horton’s, the subject of masturbation came up. The Appellant parked the car in a laneway behind the Tim Hortons.

[11] It was at that point that J.P. pulled down his pants and began to masturbate. He and the Appellant were discovered by two Peel Regional Police officers who were on a routine patrol. After investigation, the Appellant was arrested and charged.

[12] The accused gave a statement to the Police. J.P. gave two statements to the police. All of these statements, and the inconsistencies in them, were considered by the trial judge and are summarized in her reasons.

b) The Different Versions of Events

[13] The undisputed facts that I have set out above are a good departure point for considering the different stories that were provided by J.P. and the Appellant.

[14] J.P. testified that the Appellant initiated the discussions of masturbation, and counselled J.P. that masturbation was a sin. J.P. explained that he was exposing himself to the Appellant at the Appellant’s direction. J.P. understood from the Appellant that this exposure was a negative consequence for having engaged in the sin of masturbation, and was designed to stop J.P. from doing it in the future.

[15] According to J.P., these consequences started with sending photographs of his penis to the Appellant. Over time, the consequences became more severe. In subsequent photographs, J.P’s penis had to be semi-erect or erect. Then, J.P. was required to send the Appellant a video of J.P. masturbating.

[16] Then, the consequences for relapses were in-person. J.P. testified that there were four in-person meetings. At the first in-person meeting, J.P. testified that he was told by the Appellant to pull down his pants and reveal his penis. Then, the next time J.P. was required to reveal a semi-erect penis to the Appellant. On the third occasion, J.P. was required to reveal an erect penis. On the fourth occasion, when the police found them, J.P. was required to masturbate in front of the Appellant, who would look at J.P. when J.P. had finished.

[17] In his second statement, J.P. provided additional details about what had happened. There were some inconsistencies between the two statements, and these inconsistencies were explored both in cross-examination and in the trial judge’s reasons.

[18] The Appellant testified that he never counselled J.P. to expose himself as a form of punishment or to touch himself. The Appellant could only recall three occasions when J.P. exposed himself to the Appellant. On both previous occasions, the two were driving somewhere and discussing masturbation. On both occasions, the Appellant saw out of the corner of his eye J.P. masturbating. On both occasions, the Appellant testified that he was shocked and uncomfortable about what was happening and asked J.P. to stop.

[19] On the third occasion, the Appellant testified that J.P. said that he had been continuing to masturbate prior to their meeting even though J.P. knew it was a sin. The Appellant stopped the car behind the Tim Horton’s that the two of them were travelling to and proceeded to counsel J.P. to stop masturbating. J.P. started to masturbate, just like he had on the previous occasions, and it was in that moment that the police found the Appellant and J.P.

The Trial Judge’s Reasons

[20] After recounting the evidence, the trial judge correctly instructed herself on the four elements of the offence based on R. v. Audet, 106 C.C.C. (3d) 481 (S.C.C.). Those elements are:

a) The complainant was a young person within the meaning of section 153(2);

b) The accused engaged in one of the activities in s. 153(1);

c) At the time the acts in question were committed, the accused was in a position of trust and authority towards the young person, or the young person was in a relationship of dependency with the accused; and,

d) The acts were committed for a sexual purpose.

[21] The trial judge went on to note that there were no issues with respect to the first and third elements of the offence. She also observed that the battleground in this case related to the second part of the test. She then correctly instructed herself on credibility and the test in R. v. W.(D.), [1991] 1 SCR 742, and went on to make credibility findings.

[22] The trial judge set out her credibility findings at paragraphs 76 to 78 as follows:

[76] In his evidence, Mr. Palmer testified that on July 25th, 2016, his frustration in learning that J.P. was still struggling with his old habits, caused him to suddenly stop the car in the laneway behind the plaza. However, in his statement at page 17, Mr. Palmer told police that he had “pulled up” into the laneway in order to have a discussion with J.P.

[77] However, quite apart from the inconsistencies between his testimony and police statement, standing alone the common sense improbabilities in Mr. Palmer’s evidence would lead to its rejection. For instance, it makes no sense that an experienced youth mentor who had found himself on two prior occasions alone in a car with a youth who inappropriately exposed himself, would deliberately and innocently place himself in the same position with the same youth a third time. Mr. Palmer testified that in his years of experience as a youth mentor, such a thing had never happened to him before. He testified that the first time J.P. exposed himself in his car left him feeling “shocked and disgusted” “distraught and very uncomfortable” and “weirded out”. He agreed with the Crown that he was placed in a very compromising position. Yet, he placed himself in that same position, not once but twice more.

[78] I also find improbable Mr. Palmer’s evidence that he found himself in the back laneway of the Netherwood Plaza having decided to take a short cut from J.P’s house to the Tim Hortons. By his own admission. Mr. Palmer was unfamiliar with the neighbourhood and was using his GPS to direct him to the Tim Hortons. I find it more likely that the laneway was deliberately selected as a scheduled location to undertake J.P’s “consequence”, rather than as a preferred short cut route to the Tim Hortons.

[23] In her conclusion, the trial judge also stated the following about the mens rea of the offence (at paragraphs 81 to 83 of her reasons):

[81] I further find that there can be no other reasonable conclusion than that the counselling to touch was committed for a sexual purpose. The determination of whether an accused’s actions were undertaken for a sexual purpose must be made within the facts of each case, and must taken into consideration the part of the body touched, the nature of the touching and the circumstances in which the touching took place.

[82] In this case, the youth was counselled to touch himself and masturbate next to Mr. Palmer, in the confines of a car, the final time while stopped in the rear laneway of a plaza. I find that the sexual purpose element of the offence has been proven. Whether or not Mr. Palmer sought to derive, or actually derived, sexual gratification from J.P. touching himself is irrelevant: R v. G.B. (2009) C.C.C. (3d) 185 at para. 24.

[83] With respect to the mens rea element of the offence, I find that it has been proven. Mr. Palmer intended to “invite, counsels or incite” J.P. to touch himself, and did so intending it be for a sexual purpose.

[24] Based on the foregoing, the Trial Judge found that she convinced beyond a reasonable doubt that the Appellant was guilty of the charge of sexual exploitation.

Issues

[25] The Appellant has raised three issues, as follows:

a) Whether the trial judge misapprehended or misapplied the evidence.

b) Whether the trial judge erred in her approach to the mens rea requirement of the offence by not explicitly considering the potential exculpatory effect of J.P.’s evidence about the punitive nature of these masturbation sessions in reaching her conclusions.

c) Whether the trial judge improperly considered a defence concession in argument.

[26] On reviewing these issues and hearing oral argument, it became apparent to me that the first two issues are related, and I will address them together. The third issue flows from the first two.

Issues #1 and #2 - The Mens Rea Issue

[27] In this analysis, I will set out the relevant legal principles. I will then apply that law to the facts as found by the trial judge.

a) The Relevant Legal Principles

[28] First, as I have noted above, in order for the Appellant to be convicted of the charge, all four essential elements must be established beyond a reasonable doubt. The issue that is raised on appeal concerns the question of whether the acts were committed for “a sexual purpose”.

[29] A charge of sexual exploitation requires the Crown to establish specific intent. If the touching was not done (or, in this case, counselled) for a sexual purpose, then the mens rea is not made out. On this point, see for example R. v. Elvidge.

[30] An example of the application of this principle can be found in R. v. Gurchin. In that case, the accused admitted to sending some sexually explicit e-mails to his niece, counselling his niece to engage in masturbation with a vibrator. At trial, the accused testified that he suspected his niece of removing some condoms and a vibrator from his bedroom. The vibrator was found in the accused’s 10-year-old daughter’s bedroom. As a result, the accused testified that the purpose of the e-mails was to get his niece to admit that she had stolen the vibrator. The accused’s wife and daughter provided corroborating testimony.

[31] The trial judge in Gurchin found that this evidence, although close to the line, left her in a reasonable doubt as to the purposes of the counselling to touch, and she acquitted as the specific mens rea had not been made out.

[32] However, the sexual purpose for which the activity is done does not have to be for the accused’s sexual purposes. For example, R. v. G.B., 2009 BCCA 88 is a case where the Respondent, G.B. engaged in masturbating a young person with significant intellectual and developmental disabilities. In that case, the masturbation was for the young person’s sexual purposes and not for G.B.’s sexual purposes.

[33] However, the B.C. Court of Appeal still entered a conviction on the basis that it does not matter whose sexual purposes the activity is for. The Court concluded that, as long as the touching (or in this case the counselling to touch) is for a sexual purpose, then the mens rea of the offence will still be made out.

[34] With these principles in mind, I now turn to the reasons of the trial judge.

b) Application of the Law to the Reasons

[35] In argument, accused’s counsel advanced two key points as follows:

a) The consideration of the mens rea of the offence was separate from the WD analysis, and the trial judge essentially conflated them.

b) Once the trial judge accepted J.P.’s evidence that he had been counselled to commit these acts of masturbation, she was required to deal with the question of whether the evidence of J.P. raised a reasonable doubt that the Appellant had a sexual intent in having J.P. engage in masturbation.

[36] I start with the observation that the trial judge specifically set out her W.D. analysis in her reasons. She provided clear and cogent reasons for preferring the testimony of J.P., and for concluding that the evidence of the Accused was not believable, and did not raise a reasonable doubt.

[37] The only point that counsel for the Accused raises with respect to the W.D. analysis is whether the trial judge conflated this analysis with a separate determination of whether or not the acts were committed for a sexual purpose. I am of the view that the trial judge’s reasons, when read as a whole, make it clear that she was alive to the issue of sexual purpose and that her findings on this point were separate from her W.D. analysis.

[38] I reach that conclusion for two reasons:

a) In paragraph 57 of her reasons, the trial judge clearly averts to the fact that the first and third element of the offence are made out. She goes on to state, in paragraph 58 that the battleground in this case is the second essential element, but also observes that the Crown’s argument was that the touching was done for a sexual purpose. She then goes on to deal with the W.D. analysis separately from these observations.

b) In paragraphs 81 to 83 of her reasons, reproduced above, the trial judge considers all of the circumstances of the offence and decides that the only reasonable conclusion is that the counseling to touch was committed for a sexual purpose. In this discussion, the trial judge specifically takes account the part of the body touched (the penis), the nature of the touching (masturbation) and the circumstances in which the touching took place (the passenger seat of a car in a back laneway with just the Appellant and J.P. in the car) in reaching her conclusion.

[39] In my view, the trial judge’s analysis accounts for the circumstantial nature of the evidence against the accused by concluding that there was no other reasonable explanation for the incident.

[40] The potentially exculpatory portion of J.P.’s evidence is his statement that the Appellant counselled J.P. to masturbate for a purely religious and punitive purpose, rather than for the sexual gratification of either J.P. or the accused. I start by noting that the statements made by the Appellant to J.P. can be considered by the trial judge for the truth of their contents, because they are out-of-court utterances of the accused.

[41] However, the context in which these statements were received must be remembered. First, and most importantly, the Appellant denied making these statements. Second, the trial judge was cognizant of the circumstances in which the Appellant and J.P. were found. Both of these reasons are, in my view, sufficient grounds for the trial judge’s finding, beyond a reasonable doubt, that the Appellant had engaged in this counselling for a sexual purpose, being his own sexual gratification.

[42] As a final point, I note that there was at least one exchange between counsel and the trial judge that would have left the trial judge under the mistaken apprehension that this issue was not critical to the defence’s case. As a result, it is not surprising (or concerning) to me that the trial judge dealt with the matter more summarily than she might otherwise have done. I turn to that issue now.

Issue #3 - The Concessions of Counsel

[43] Counsel for the Appellant (who was not counsel at trial) argues that, even if counsel for an accused person concedes a point, the Court has an obligation to come to its own conclusions. In particular, where a concession may interfere with the proper analysis of the legal principles, or lead to a result that is contrary to those principles, then the Court must reject such concessions (see R. v. Wilson).

[44] The concession in question came during the closing submissions of counsel for the Appellant. Counsel for the Appellant points to one passage in the discussion between the trial judge and the Appellant’s then counsel. That passage reads as follows:

THE COURT: And so if- if in a situation a court is satisfied that there was counselling towards a youth to masturbate in a car, the sexual purpose would be found within those circumstances.

MS. SEYMOUR: That’s right.

[45] However, that passage is not complete. It is one excerpt of a larger discussion over the decision in G.B., supra. That larger discussion (leading up to the passage set out in the previous paragraph) is as follows:

THE COURT: He said it never happened.

MS. SEMOUR: It just wasn’t an issue…

THE COURT: Right.

MS. SEYMOUR: …sexual gratification period. It can’t be in issue anyways under the law anyhow. At the end of the day it -it’s whether the intent was for a sexual purpose. So I just wanted to point that out. And, again, in – our submission is that that was not the intent.

THE COURT: I think it’s -isn’t just the – the intentionality has to be in – in what is being counselled and what part of the body is being – is – is the – the subject of the counselling, not that there is an – like, I’m looking at paragraph 29 of the case, the Court of Appeal, sexual purpose in this case was amply defined by the nature and circumstances of the acts intentionally performed by the respondent”.

MS. SEYMOUR: Right.

THE COURT: So – so the sexual purpose really emanates by implication from the parts of the body and the surrounding circumstances.

MS. SEYMOUR: I would submit not necessarily the parts of the body and the surrounding circumstances because you – because there can be touching on a particular- well, specifically genitalia…

THE COURT: Yeah.

MS. SEYMOUR: …but the intension is not for a sexual purpose.

THE COURT: Right. And I think the court makes that point when – when you’re washing a child’s genitals for hygiene…

MS. SEYMOUR: Yes.

THE COURT: …there’s no sexual purpose inferred.

MS. SEYMOUR: Correct.

THE COURT: By analogy in this case if you’re counselling somebody to masturbate for medical purposes, that was the position if that was the analogy by the Crown…

MS. SEYMOUR: Mm-hmm.

THE COURT: …there’s no sexual purpose. So you look at the surrounding circumstances, and here the court was satisfied that there were ample surrounding circumstances that when combined with the part of the body that was the subject of the counselling gave rise to the – the inference or the finding that it was for a sexual purpose.

MS. SEYMOUR: Right. So hence going- hence the issue here being, you know, as I had stated at the start of my closing arguments yesterday, the issue is whether Mr. Palmer…

THE COURT: Counselled.

MS. SEYMOUR: …counselled him to touch himself for a sexual purpose.

THE COURT: Right.

MS. SEYMOUR: Right.

[46] In addition, it is clear from the transcript of closing argument that the trial judge was alive to the issue of the sexual purpose throughout both parties arguments. For example, in the course of the Crown’s arguments, the following exchange took place:

THE COURT: So he is a young person, that’s been conceded.

MS. GILL: Yes.

THE COURT: And at some point, and I don’t want to take you off track, I’d like to know how you define what is for a sexual purpose.

MS. GILL: Yes.

THE COURT: Like, for- you know, for instance, if – if somebody actually believed that this was going – this was a true consequence of this conduct and was counselling it for that reason, can you infer a sexual purpose? Like, how – how…

MS. GILL: I think that….

THE COURT: Is sexual purpose inferred?

MS. GILL: I think it’s…

THE COURT: Just….

MS. GILL: …certainly revealed on the facts, it’s a factual determination that Your Honour has to make. I don’t think the young person’s subjective belief as to the purpose of that touching, whether it’s for a sexual purpose or not is relevant. I think it should be very clear from the – from the evidence that is for a sexual purpose. Masturbation is for a sexual purpose, whether it’s for personal gratification, for the gratification of someone else, whether it’s for any other reason, touching one’s genitals and masturbating, from the Crown’s perspective, is for a sexual purpose. There can be no other purpose.

[47] When all of these passages are read together, it is clear that the trial judge was alive to the issue. It is also clear that the “concession” of defence counsel was more about the circumstances in which the Appellant and J.P. were found than an automatic concession that the sexual purposes could be inferred merely from the body part being touched.

[48] Even with this concession, however, the trial judge (at paragraphs 81 to 83 of her reasons) still analyzed the circumstances and concluded that the only reasonable conclusion was that the touching had been counselled for a sexual purpose.

[49] At most, the concession of the Appellant’s then counsel left the trial judge with the impression that she could deal with the issue of the sexual purpose of the touching summarily, rather than setting out detailed point by point reasons. However, it is clear that the trial judge turned her mind to this issue and that she properly considered all of the facts and the case law on the issue.

Conclusion

[50] For the foregoing reasons, I find that the trial judge did not misapprehend the mens rea requirement of the offence, and properly applied the relevant legal principles. As a result, the Appellant’s appeal is dismissed.

[51] In accordance with the bail conditions, the accused was to turn himself into police by 6:00 p.m. the night before this judgment was released. To that end, counsel were advised late Tuesday afternoon by e-mail that these reasons were going to be released today. The accused is now to begin serving his sentence.

LEMAY J Released: January 16, 2020