ONTARIO SUPERIOR COURT OF JUSTICE

COURT FILE NO.: 17-1637 DATE: January 31, 2020

B E T W E E N:

HER MAJESTY THE QUEEN Teresa James for Her Majesty the Queen

- and -

P.L. Elena Davies for the accused Accused

HEARD: November 25, 26, 27 & 28, 2019

REASONS FOR DECISION

James J.

Introduction

[1] The accused in this case, P.L., is charged on a two count indictment alleging sexual exploitation and sexual assault arising out of a single incident with a single complainant.

[2] He is about 70 years old.

[3] The complainant, G.F., had just turned 16 at the time of the incident in question. She is now 18 years old. P.L. is her great uncle through marriage.

[4] The incident in question took place during the night of December 22 and 23, 2017 at P.L.’s home.

[5] P.L. did not testify at this trial.

[6] For the reasons that follow, I have determined that P.L. is guilty of sexual assault and not guilty of sexual exploitation.

Evidence of G.F.

[7] The complainant testified that she has known the accused her entire life. Not only did he live with the complainant’s family for a brief time when the complainant was very young, she would also see him at family events.

[8] P.L. has two adult children. His son lives with him. His daughter Ca.L. lives nearby and has two children, S.W. and L.W. They are a little younger than the complainant and at the time in question, they all attended the same secondary school.

[9] It was not uncommon for the complainant to visit the home of the accused with her cousins, maybe a few times a year. On one or two previous occasions, the complainant stayed overnight with other family members at P.L.’s home.

[10] The complainant said that she was close to her cousins S.W. and L.W. They were like siblings. Their mother Ca.L., is the complainant’s godmother.

[11] The complainant’s mother is C.F. C.F. and Ca.L. are first cousins.

[12] The complainant described the layout of P.L.’s home as consisting of an open kitchen and eating area, a bathroom and two bedrooms on the main floor. P.L. occupied one of the bedrooms. His son occupied the other bedroom. There was a set of stairs that led to the basement. In the basement there were a couple of sofas, a TV, and a sleeping area, perhaps a bedroom. Visitors usually slept in the basement.

[13] On December 22nd, 2017 Ca.L. picked up the complainant at McDonalds after work. Ca.L. had driven into town to get some groceries and alcohol so it was convenient to pick up the complainant when she finished her shift. Among the items purchased at the liquor store was some vodka for the complainant. Apparently she had parental permission to consume alcohol.

[14] When they arrived at P.L.’s house, some family and friends were there for a visit. Everyone was gathered around the dining room table. P.L’s son, Cu.L. was also at home but he remained in his room the entire evening, having come home from work earlier that day feeling ill.

[15] At various points during the evening the complainant played some video games on her phone and texted with her boyfriend. The complainant’s beverage of choice was vodka and orange juice. It is not clear how many drinks she had that evening. The complainant said that she may have had as many as 10 or 12 drinks. Ca.L. thought that she had one drink but acknowledged that she may have had more than one.

[16] At some point the visitors who were there when Ca.L. arrived back from town with the children said goodnight and left.

[17] The complainant testified that after the visitors had left and her cousins S.W. and L.W. had gone to the basement to watch TV, she remained at the dining room table with P.L. and Ca.L. They discussed family and personal issues that led to some alcohol-fueled emotionality and crying. The complainant referred to what they were discussing as “sappy stuff”. At one point, the complainant displayed scars from self-inflicted cuts on the front of her thighs.

[18] The complainant recalls P.L. drinking vodka and beer. She’s not sure whether he had any rum drinks. She’s not sure how many drinks he had.

[19] The plan was for the complainant, Ca.L. and her two cousins to sleep in the basement. When Ca.L. decided to call it a night and go to bed in the basement, the complainant began to follow her but P.L. stopped her, took her by the arm or touched her arm and said something like, “Come with me. You can crash in my room.” The complainant said that by this time, she was quite intoxicated. She said she was not sure what time it was. She was not concerned by the suggestion that she should sleep in P.L.’s bedroom. She remembers bringing a ginger ale to the bedroom and making a social media post on her phone.

[20] During the night, she awoke to discover she was undressed. She is unsure how and when her clothes were removed. She was lying on her back in P.L.’s bed and he was kissing her up and down on her body including performing oral sex on her. She said she couldn’t remember where his hands were. She recalled P.L. kissing her breast and leaving a mark. She said she felt too intoxicated to move or do anything. She rolled away from him but he pushed her onto her stomach and continued to perform oral sex on her. She said he moved her legs to get access to her vagina. He put his finger in her vagina. He sucked on her inner thigh which left a mark. She said he tried to insert his penis into her vagina while she was lying on her stomach, but she’s not sure whether he succeeded or not. She did not touch P.L. and he did not ask her to. There was no mouth to mouth kissing. She can’t recall how any marks may have gotten on her neck.

[21] She testified that she did not initiate the sexual contact. She only went into P.L.’s room to sleep. He did not ask her if she wanted to have sex. At no time did she consent to any sexual activity with P.L. When the sexual contact was happening, she did not say anything to P.L.

[22] She thinks she fell asleep again and when she awoke in the morning she was still lying on her stomach. P.L. was awake and performing oral sex on her.

[23] She said by this time the alcohol had worn off and she was more awake. She heard someone in the kitchen. She told P.L. that she needed to go to the bathroom and as she left the room, she tried to grab her clothes, but he wouldn’t let her get dressed. He kept saying “no, no, no, don’t get dressed”. He offered her a towel which she took and left the room. In cross-examination she said that P.L. held up his arm to block her from collecting her clothes.

[24] When she went into the kitchen, Ca.L. was already there. The complainant told her what had happened in the bedroom. She said that she can’t recall exactly what she said to Ca.L. but referred to what had happened in P.L.’s bedroom. She said she felt confused, betrayed, hurt and fearful. She said that Ca.L. seemed flustered at the complainant’s disclosure and appeared not to want to accept what the complainant said had happened. Ca.L. said something like, “You’re kidding”. Ca.L. told her to go back and get her clothes.

[25] When the complainant re-entered the bedroom, P.L. tried to persuade her to come back to bed. He said, “You taste amazing” and she responded by swearing at him. He laid back on the bed and she got dressed and left the room. She went into the basement and told her cousins what had happened without sharing too many details. She said that Poppy (P.L.’s nickname) had touched her and tried to have sex with her. She sat on the sofa with her cousin L.W. She said she felt nauseous and vomited. There was a movie playing on the T.V.

[26] A little later P.L. came down the stairs into the basement with a ginger ale. L.W. had gone upstairs and they were alone in the basement. He said, “About last night, we were both really drunk. Let’s keep it our little secret.”

[27] P.L. went back upstairs and then returned again with some crackers. He didn’t stay in the basement and they didn’t talk.

[28] Ca.L. told her they were leaving, and they drove to her Ca.L.’s house. The complainant continued to feel nauseous. Ca.L. called the complainant’s mother who came to the house. Ca.L. and C.F. talked in the kitchen. She didn’t hear all their conversation. She said that Ca.L. thought that the situation should be handled by the family. Her mother said that the police should be involved.

[29] The complainant said that she wanted to have a shower, but her mother told her not to.

[30] The complainant borrowed some underwear from her cousin’s dresser, put her unused clothing in a bag and went to the local hospital where she was seen by a sexual assault nurse. She spoke briefly with the police at the hospital. The police obtained possession of the underwear that she had worn to the hospital.

[31] The evening of the following day, on December 23rd, the complainant was in her room and a call from an unknown number came in on her cellphone. She recognized P.L.’s voice. He asked whether he was speaking to C.F. or to G.F. She said his words were jumbled. She went into the living room and gave the phone to her mother. C.F. put it on the speaker and the complainant sat down. The complainant said that in addition to P.L., she could hear Ca.L. in the background. The complainant’s mother C.F. identified herself. The complainant said she heard P.L. say to her mother words to the effect that, “I hear G.F. is trying to say I raped her…she came onto me…it wasn’t me, it was her.” C.F. responded by saying that that was a crazy suggestion.

[32] Initially the complainant couldn’t remember whether she used her cellphone in the bedroom. After being reminded of her testimony at the preliminary hearing, she said that she remembered using her phone briefly on the Snapchat app when she went to bed in P.L.’s bedroom. She said that at night she posts a blank picture with no message which she referred to as her goodnight streak.

[33] In cross-examination the complainant said that she could not remember whether P.L. was kissing her body or performing oral sex on her when she woke up. She said he did both but she can’t remember what took place first. She agreed that the alcohol she consumed would have affected her memory. She said she was awake but not fully awake. She said she experienced shock from the situation in which she found herself. She wasn’t awake enough to leave the room, but she tried to roll away. She said she didn’t have enough energy to move.

[34] She said she didn’t know how and when P.L. removed his clothes, but she said he was naked in the morning except for maybe a pair of socks.

S.W.

[35] S.W is the complainant’s cousin. She is 16 years old and is in grade 11. She lives with her mother, Ca.L., and her brother, L.W.

[36] Her mother Ca.L. and the complainant’s mother C.F. are first cousins. P.L. is her grandfather but he is separated from her grandmother.

[37] At the material time, she considered that she was best friends with the complainant.

[38] S.W. often visited her grandfather’s house. She saw him on holidays, and she accompanied her mother to his house to do cleaning for him, perhaps once a month. She and her brother would watch TV and play outside with P.L.’s dog.

[39] On December 22nd, 2017, the plan was to visit P.L., have supper there and stay for the night. Ca.L. was going to do some housecleaning for her father. The complainant asked if she could join them. Ca.L. needed to go into town and agreed to pick up the complainant after work at McDonalds. They stopped at the liquor store and then went back to P.L.’s. After dinner they hung out in the kitchen. P.L. consumed alcohol through the evening. When they got back from town P.L. was already intoxicated, slurring his words, speaking loudly, and slouching at the table. It was not uncommon for him to over-imbibe.

[40] She said her mother bought some vodka for the complainant.

[41] When they returned to the house after picking up the complainant, Ca.L. began drinking and by the time S.W. went to bed, her mother was speaking loudly and slurring her words.

[42] She agreed that the complainant was drinking screwdrivers and had several drinks. She observed that the complainant was acting hyper, speaking loudly, and joking. She had some difficulty walking.

[43] Eventually S.W. and her brother got bored and went downstairs. She didn’t see any of the adults until the next morning.

[44] In the morning the complainant came downstairs crying. She stood in the center of the room for a moment and then sat on the couch with L.W. and continued to cry while they watched TV. S.W. asked the complainant what was wrong, and they exchanged a few words.

[45] Sometime later Ca.L. came downstairs and told them to pack up their things and get ready to leave. The complainant had her clothes in a grocery bag. P.L. was in the kitchen making coffee.

[46] They drove to their home. The complainant was with them. She can’t recall seeing the complainant vomiting.

[47] Ca.L. asked the complainant if she wanted to call her mother. A short time later C.F. came to the house and the two mothers talked in the kitchen. S.W. and the complainant joined them in the kitchen after a few minutes.

[48] S.W. recalls lending some clothing to the complainant but does not specifically remember anything about lending her some underwear.

[49] She remembers the complainant being upset and crying during the morning and when her mother came to the house, she started crying again. S.W. thought that she appeared nervous-looking and was shaking.

[50] They went to the hospital together after picking up the complainant’s maternal grandmother.

[51] S.W. said that she did not subsequently discuss the incident with the complainant. She said she recalls being present when P.L. was released from custody and she recalls him saying he didn’t remember anything about what had happened.

[52] In cross-examination, she said that when the complainant was crying, she disclosed to her cousins that she thought Poppy had touched her.

Evidence of L.W.

[53] L.W. is 15 years old and in grade 10. P.L. is his grandfather. The complainant is a cousin on his mother’s side. He said that he saw the complainant every couple of months in 2017 and that she was friends with his sister S.W. He recalls P.L. and his mother drinking in the evening as they sat at the dining room table. He didn’t see the complainant drinking alcohol.

[54] He went to sleep in the basement after watching a movie. In the morning, he recalls seeing the complainant but can’t remember any details. He doesn’t remember seeing her crying. He didn’t think that she was vomiting.

[55] When Crown counsel sought to refresh his memory by referring to a statement that he had given to the police, L.W. said that he did not recall providing a statement.

[56] In cross-examination, he said that he remembered seeing P.L. dosing off at the kitchen table that evening.

Evidence of Ca.L.

[57] Ca.L. is the mother of S.W. and L.W. P.L. is her father. He is about 70 years old. She has an older brother and a sister.

[58] She said that her relationship with the complainant was an on and off sort of relationship. They were close sometimes and other times not so close. She acknowledged being the complainant’s god mother.

[59] She said that her daughter S.W.’s relationship with the complainant was an on and off sort of relationship as well.

[60] On December 22nd, 2017, she went to Mr. P.L.’s house with her two children to do some cleaning. They planned to stay overnight. P.L. was not home when they arrived.

[61] Ca.L. went into town to pick up some groceries and alcohol and at that time she picked up the complainant after work at around 6:00 or 7:00 p.m.

[62] There were some visitors at the house when she got back from town. P.L. started drinking rum. She didn’t know how many drinks he had but agreed that he was feeling good. She also said that he was tired from working long hours. He fell asleep at the table at least once near the end of the evening. She recalls sitting at the table with the complainant while P.L. was asleep in his chair.

[63] Ca.L. agreed that by the end of the evening she was intoxicated.

[64] She said that she thought that the complainant had one drink of vodka and orange juice. She said that the complainant’s mother permits her to drink alcohol but can’t be sure if she had more than one drink.

[65] Ca.L. and the complainant got up from the dining room table to go to bed at the same time. She thought the complainant was right behind her on the way downstairs. She was focused on going to bed due to having had quite a bit to drink. She didn’t realize that the complainant didn’t follow her downstairs. In the morning she went up to the kitchen to do some cleanup. She recalls seeing the complainant arrive in the kitchen wearing a white towel. Ca.L. asked where she had been. The complainant said that she had come from Poppy’s room. Ca.L. said that the complainant looked like she was waiting for a reaction from Ca.L. She said that the complainant was not crying and did not appear to be nauseous. The complainant gathered her things and went downstairs. She recalls P.L. coming into the kitchen to get a coffee. He looked normal. She seemed unable to assess whether he was suffering from a hangover although she acknowledged that she was feeling a little rough with a hangover.

[66] Her brother Cu.L., got up and sat at the dining room table with L.W.

[67] Shortly before they left, Ca.L. went downstairs to gather the kids’ belongings. She heard the complainant being sick to her stomach and thinks that P.L. brought a drink and some crackers for the complainant.

[68] When asked if she ever saw the complainant crying at P.L.’s house, she said yes, a little, when she first asked the complainant what had happened.

[69] She drove back to her home with the children and a short time later the complainant’s mother arrived. She told C.F. that the complainant had told her something had happened the night before. After C.F. and the complainant left Ca.L.’s home to go to the hospital, Ca.L. called her father and they had a discussion.

[70] Later Ca.L. attended at the police detachment and gave a statement.

[71] Sometime after providing a statement to the police, she spoke with P.L. It was after P.L. had been released following his arrest. She acknowledged they had a discussion about their thoughts and feelings. She can’t recall where that discussion took place.

[72] In cross-examination, Ca.L. indicated that her recollection was that when she got up to go downstairs to go to bed, her father was asleep at the dining room table.

Testimony of Jennifer Mae Valiquette

[73] Ms. Valiquette is a registered nurse who works as a clinical nursing manager at the Royal Victoria Hospital in Renfrew, Ontario. She has been a nurse since 1996 and is trained as a sexual assault nurse examiner. She received her training as a sexual assault nurse in 2007 and since then has undergone additional training.

[74] Ms. Valiquette said that the complainant attended the emergency department on December 23rd, 2017. The complainant disclosed to her that she was a victim of a sexual assault. The complainant agreed to participate in a forensic examination. Ms. Valiquette made physical observations with respect to the condition of the complainant’s body. She found that there was a bruise on the left breast measuring two centimeters by one centimeter with petechia present.

[75] There was also a bruise on the right side of her neck, red in color measuring two centimeters by one centimeter. There were no other marks on the front or back of her body or on her head.

[76] Ms. Valiquette performed a genital assessment on the complainant and found bruising with petechia on both the left and right side crease next to her labia majora which was red in colour as was the labia minora.

[77] Ms. Valiquette took swabs of the breast area at the site of the bruising and did the same process for the complainant’s neck and inner thigh.

[78] She collected a vagina swab from the outside of the vagina and also took an internal vagina swab at a site about two or three centimeters inside the vagina.

[79] Ms. Valiquette took the underwear the complainant wore to the hospital which was sent away for testing.

[80] She testified that the complainant appeared upset and had difficulty speaking about the details as to what had happened. The complainant reported feeling nauseous at times and although Ms. Valiquette obtained a basin for her to use, it wasn’t needed.

[81] Ms. Valiquette noted the presence of a reddish brown discharge from the vaginal area that she said was consistent with menstruation.

Evidence of Nicole Vachon

[82] Nicole Vachon is a scientist with the Centre for Forensic Sciences, Biology Section. Her principal duties are the examination and interpretation of items in the blood, semen or saliva including the interpretation of DNA test results. She tested various samples collected from the complainant for the presence of DNA and prepared a report. Her colleague, James Morrow, prepared a second report that examined DNA collected from P.L. to determine if his DNA could be excluded from the DNA found by Ms. Vachon. The reports were admitted into evidence on consent and Ms. Vachon testified by video link.

[83] Ms. Vachon’s evidence was that in addition to the complainant’s DNA, male DNA was present on the swabs from the complainant’s left upper thigh, left breast, external genitalia and vagina. The swab from the complainant’s right upper thigh and the sample from the crotch of her underwear disclosed a mixture of DNA from three sources: the complainant, and two others, at least one of whom was a male.

[84] Dr. Morrow’s report indicated that in relation to the vaginal swab, the results were estimated to be 220 times more likely if they originate from the complainant and P.L. than if they originate from the complainant and one unknown person unrelated to P.L. The test results from the complainant’s left breast and left upper thigh were estimated to be greater than one trillion times more likely if they originate from the complainant and P.L. than if they originate from the complainant and one unknown person unrelated to P.L. The test results from the complainant’s right upper thigh were estimated to be greater than one trillion times more likely if they originate from the complainant, P.L. and one unknown person than if they originate from the complainant and two unknown persons unrelated to P.L. The test results from the crotch area of the underwear were estimated to be 42 million times more likely if they originate from the complainant and P.L. and one unknown person than if they originate from the complainant and two unknown persons unrelated to P.L.

[85] Ms. Vachon said it was not possible to determine if P.L.’s DNA could have transferred to the complainant’s body from the bed sheets although it is to be noted that, according to Ms. Valiquette, the swab from the complainant’s vagina was taken by manually opening the vagina and pushing the swab inward starting from a position about 1 to 1.5 inches inside the vagina, taking care not to touch other tissue upon removal.

The Law

[86] Crown counsel has the burden of proving P.L.’s guilt beyond a reasonable doubt. This burden never changes. If I was to conclude that P.L. was likely guilty, he would be entitled to be found not guilty because crown counsel would have failed to prove his guilt beyond a reasonable doubt. Likely or probable guilt does not meet the required standard.

[87] P.L. also has the benefit of presumption of innocence and this presumption remains with him throughout the trial unless and until crown counsel proves his guilt beyond a reasonable doubt.

[88] In addition, P.L. has chosen not to give evidence. He has the right to remain silent in the face of the crown accusations against him. He does not have to prove or explain anything. No adverse inference can be drawn from the fact that he has chosen not to give evidence.

[89] The position of the defence on count 1, sexual exploitation, is that even if P.L. touched the complainant in a sexual manner, which is not admitted, the requirement that he must be in a position of trust or authority in relation to the complainant has not been proven beyond a reasonable doubt.

[90] P.L. did not exert authority over the complainant nor was she in a position of dependency. The usual indicia of trust and authority are absent. He did not provide babysitting or other care-giving. He didn’t teach the complainant or provide financial assistance to her and he did not exercise control or discipline over her conduct or activities.

[91] I agree with the defendant’s submissions respecting count 1. Despite a familial connection, P.L. was not in a position of trust or authority in relation to the complainant. Ca.L. was the adult who was responsible for the complainant during the overnight stay at P.L.’s house.

[92] Another factor is that the complainant was 16 years old and the situation must be assessed in a different manner than if a young child was involved rather than a teenager.

[93] In the circumstances here, the fact that the complainant slept over at P.L.’s house with other family members present, does not create a relationship of dependency. Even if I was to find that the complainant was potentially vulnerable to P.L., this does not amount to dependency within the meaning of this section of the Criminal Code.

[94] Since Crown counsel has failed to prove the presence of this essential element beyond a reasonable doubt, P.L. is entitled to be found not guilty in relation to count 1.

[95] With respect to count 2, sexual assault, P.L. says that the complainant’s evidence is not credible or reliable including the following:

1. The complainant’s reluctance to acknowledge that her consumption of alcohol affected her recollection of events;
2. Whether P.L. is alleged to have been kissing the complainant or performing oral sex on her when she woke up;
3. Confusion and inconsistencies respecting the complainant’s use of her phone while in P.L.’s bedroom. This includes whether she used the phone while in bed, possibly while naked, and the question of what happened to the phone;
4. Related to this, P.L. contends whatever the complainant says about her level of intoxication, she was able to make her usual end of day media post;
5. The consumption of alcohol significantly effected the reliability of the complainant’s recollection; and
6. Differences between the complainant’s in court testimony and a prior statement including whether P.L. blocked the complainant from getting her clothes the following morning and whether the underwear she borrowed from her cousin was new or not.

[96] I would note that the complainant was the only witness to testify about what happened in P.L.’s bedroom on the night in question. She testified in a straight-forward manner. She was articulate and used appropriate adult terminology. She was not evasive or argumentative during cross-examination. She seemed to take care with her answers in order to be accurate. She acknowledged when she was unsure about a particular point.

[97] Some of the alleged inconsistencies are inconsequential. For example, whether P.L. held up his arm as a barrier that prevented the complainant from taking her clothes with her in the morning. The complainant’s testimony was that he prevented her from taking her clothes and told her to use a towel instead. She readily agreed that in her police statement she did not mention the arm block but the substance of the testimony in both instances was the same. Also, it seems clear from the evidence as a whole that the complainant changed into underwear belonging to her cousin that she got from a drawer in her cousin’s bedroom and then wore that underwear to the hospital whether it was new or not. When asked about what P.L. was doing when she woke up, in court the complainant initially said that he was performing oral sex. In her police statement the complainant said that he was kissing her body. When this discrepancy was pointed out during cross-examination, she said he did both but she couldn’t remember the sequence in which these actions took place.

[98] On the issue of alcohol consumption, the complainant seemed reluctant to concede that the consumption of alcohol had affected the reliability of her recollection of events. The complainant said in cross-examination that while the consumption of alcohol may have possibly affected her memory, she said she didn’t think it affected her to the point of extreme memory failure.

[99] I found the evidence about the complainant’s use of her cellphone while in the bedroom confusing and possibly inconsistent. She said she made a social media post with her phone when she went to bed. She called it her Snapchat streak. The program gives a prompt when it hasn’t been used and the complainant said she was in the habit of sending out a blank screen when she went to bed. In cross-examination she said she is not sure whether the phone fell out of her hand or was placed on the bedside table. At one point she may have been holding her phone when she didn’t have any clothes on. The fact that she made a social media post late that evening suggests to me that her level of intoxication was not extreme but the evidence regarding her phone does not lead me to discount or reject her core allegations against P.L.

[100] The DNA evidence provides persuasive support for the complainant’s evidence that P.L.’s mouth came in contact with several parts of her body including her breast, inner thigh and vagina. The bruising described by the sexual assault nurse is consistent with what the complainant described as hickeys left on her skin.

[101] The uncontradicted evidence of the complainant, which I accept, coupled with the presence of P.L.’s DNA and bruising on intimate parts of the complainant’s body in my view establishes that P.L. engaged in sexual activity with the complainant.

[102] This leaves the issue of consent. The complainant testified that she did not consent to sexual contact or activity. This evidence was not contradicted by any other witness. In addition, following factors support an inference that it is unlikely that the complainant intended to engage in sexual activity with P.L. and that she did not consent to his sexual advances:

a. They are related and spent time together in the past in connection with family activities b. The complainant was 16 and P.L. was about 70 c. She had a boyfriend at the time d. The complainant was intoxicated e. Other family members were present in the house that night and the complainant reported to them in the morning that P.L. had behaved inappropriately f. The complainant attended at the hospital promptly and met with a sexual assault nurse

[103] Having considered all the evidence, I make the following findings:

a. The complainant accompanied P.L. to his bedroom to sleep there and not to engage in sexual activity; b. The complainant consumed several drinks over the course of the evening that resulted in her becoming intoxicated and vulnerable; c. The complainant went to sleep in P.L.’s bedroom and awoke to being sexually assaulted by P.L.; d. P.L. removed the complainant’s clothing and kissed and touched various parts of the complainant’s body in a sexual manner and in so doing violated her sexual integrity; e. P.L. left traces of his DNA on the complainant’s body as a result of his actions; and f. The complainant did not consent to, encourage or reciprocate P.L.’s advances.

[104] I have a reasonable doubt as to whether P.L. was in a position of trust or authority or was in an exploitative relationship with the complainant or whether the complainant in a state of dependency when the activity complained of took place.

[105] As a result of these findings, I have determined that P.L. is not guilty on count one, being the offence of sexual exploitation, but guilty on count 2, sexual assault.

Mr. Justice Martin James

DATE RELEASED: January 31, 2020