ONTARIO

SUPERIOR COURT OF JUSTICE

BETWEEN:

HER MAJESTY THE QUEEN

– and –

P.S.

Defendant

H. Azimi, for the Crown

D. Wilcox, for the Defendant

HEARD: November 23, 24, 25, 26, 27, December 4, 21, 2020, January 15, 2021

REASONS FOR DECISION

CHRISTIE J. (Orally)

OVERVIEW

[1] P.S. stands charged as follows:

Count 1: That between the 1st day of July in the year 1988 and the 31st day of December in the year 1988, both dates inclusive, at the Town of New Tecumseth in the Central East Region, being a person in a position of trust or authority towards [G.D.], a young person, or being a person with whom [G.D.], a young person, was in a relationship of dependency, he did for a sexual purpose touch directly the body of [G.D.], a young person, with part of his body to wit: his mouth, contrary to the Criminal Code of Canada.

Count 2: That between the 1st day of July in the year 1988 and the 31st day of December in the year 1991, both dates inclusive, at the Town of New Tecumseth in the Central East Region and elsewhere in the Province of Ontario, he did sexually assault [G.D.], contrary to the Criminal Code of Canada.

[2] There is no question that, during the relevant time frame, there was sexual activity between

P.S. and G.D. There was, most certainly, touching for a sexual purpose. In July 1988, G.D. would have been 15 years old. P.S. would have been 38 years old. At the relevant time, the age of consent was 14 years old.

[3] The real considerations for this court are:

With respect to count 1:

1. Has the Crown proven beyond a reasonable doubt that P.S. was in a position of trust or authority towards G.D. at the relevant time? ; or

2. Has the Crown proven beyond a reasonable doubt that P.S. was a person with whom G.D. was in a relationship of dependency?

With respect to count 2:

3. Has the Crown proven beyond a reasonable doubt that G.D. did not consent to the sexual activity in question; or

4. Has the Crown proven beyond a reasonable doubt that the consent was vitiated, specifically that G.D. submitted or did not resist by reason of the exercise of authority, or that P.S. induced G.D. to engage in the activity by abusing a position of trust, power or authority?

[4] This matter proceeded as a judge alone trial.

[5] The witnesses who testified at this trial were Det. Cst. Dale Smith, G.D. (the complainant), T.D. (the complainant’s brother), P.D. (the complainant’s mother), P.S. (the accused) and B.C. (a friend of G.D. and P.S.). Given that P.D. had little memory of the events when she testified, on agreement of both parties, her audio taped police interview from February 1, 2018, along with the transcript of that interview, was entered as Exhibit 3B and 3C at the trial. Her preliminary hearing evidence from July 10, 2019 was entered as Exhibit 3A. It was agreed that these pieces of evidence could be considered for the truth of their content.

[6] Much of the factual narrative and chronology is not in dispute, at least not in significant dispute, which will be obvious from the summary below.

FACTS

Background of P.S.

[7] At the time of his testimony, P.S. was nearly 71 years old, having been born in Toronto in January 1950. From the time he was a child, P.S. had difficulties with his speech, causing him to stutter. As for other health concerns, P.S. explained that he was diagnosed with Parkinson’s disease in 2010 and takes several pills a day. He keeps a toothpick in his mouth to stop his mouth from tremoring.

[8] He developed an interest in pets very early on. He quit school in grade 10 and worked in the pet store / aquarium business. Eventually in 1968, he began managing a store in Richmond Hill. By the age of 20, he was living independently from his parents and opened his first pet store at Town and Country Square at Yonge and Steeles.

[9] P.S. realized that he was gay around the age of 13 or 14 years old and had his first sexual experience with another man at the age of 15. Due to the fact that he was ashamed, he kept it a secret that he was gay throughout most of his teen years. His parents became aware that he was gay when he was 18 years old. As for his first sexual relationship with someone younger than himself, this occurred when he was 19 years old and his sexual partner, D.M., was 15 years old. D.M. lived with P.S. at his home at Yonge and Finch and worked at the store at Yonge and Steeles.

[10] In the early 70s, P.S. and D.M. frequented a club / disco called Club Manatee to meet others. They had an open relationship; in that they could have other sexual experiences. On one occasion, D.M. brought home a 14 year old male, named R.S. Initially, P.S. testified that he believed that R.S. was too young and that he told D.M. he did not like the situation. P.S. told D.M. to take him back home. In cross-examination, P.S. stated that he did not kick him out because of his age, but rather he said he was probably upset that he brought someone like that home, “basically a street person”. When reminded that he had said earlier that the male was too young, he stated, “we weren’t into picking up 14 or 15, or 13 year old kids….most of the friends that [D] had over were more mature… probably 17 or 18…closer to his age.” R.S. did spend the night and D.M. took him home the next day. Later in his testimony, P.S. said that R.S. was probably 15 years old at the time.

[11] That relationship between P.S. and D.M. lasted until about 1975 when P.S. was 25 and D.M. was around 20. P.S. then became involved with a female which lasted for approximately 2 years. Although P.S. did not know it at the time, this relationship resulted in a daughter being born. This daughter contacted P.S. in 2006 and P.S. has continued to have a relationship with his daughter and two grandchildren.

[12] After the relationship with the female ended in 1977, D.M. moved back in with P.S. By this time, D.M. would have been in his early 20s. P.S. was continuing to run the pet store at Yonge and Steeles and, in fact, expanded it to a larger square foot space in the mall. That same year, 1977, P.S. bought a farm in Bolton and also went into the dog kennel business. His relationship with D.M. continued to strengthen, but eventually ended.

[13] About a year or a year and a half after that incident where D.M. had brought R.S. home from Club Manatee, R.S. came into P.S.’s pet store. He was well dressed and asked if he could come see him to talk to him about something. P.S. took him home with him. It turned out that R.S. had been living on the street. In discussions, P.S. discovered that he and R.S. had gone to the same school in Forest Hill. P.S. also learned that R.S.’s father was a minister in Forest Hill. P.S. told R.S. that he did not want any problems, therefore, if R.S. was to stay with him, he needed to contact his father and tell him where he was located. R.S. did advise his father of the arrangement and then stayed with P.S. Initially, P.S. stated that R.S. was 15 years old at that time. However, later, in cross-examination, he said that R.S was 16 years old. P.S. was in his late 20s when this relationship started.

[14] R.S. continued to live with P.S. They had an open relationship, however, P.S. was very much in love with R.S. R.S. would live with P.S. for about six months at a time and leave for a period of time. The relationship between R.S. and P.S. continued like this for 15 to 20 years.

[15] P.S. eventually moved to a condo on Cawthra Road in Mississauga. He continued to live at this condo from the early 80s until he moved to Tottenham in 1988. R.S. was continuing to live with P.S. on Cawthra Road, but “he was out more than he was in.” After moving to the condo on Cawthra, P.S. kept his farm in Bolton for two years, which he rented, and then later sold.

[16] Eventually, P.S. sold the pet store at Yonge and Steeles and opened another store in Mississauga. His brother opened Aquarium Services and he opened Pet Mart in the same plaza at the southwest corner of Dundas and Dixie.

Background of G.D.

[17] G.D. was born in April 1973, making him 47 years old at the time of his testimony.

[18] As a young boy, he resided with his family in a low-income public housing complex on Queen Frederica Drive in Mississauga. He lived there with his mother, P.D., one older brother, S.D., one younger brother, T.D., and one younger sister. When G.D. was in elementary school, his mother worked, but then stopped working. The family source of income at times was government benefits. His father was in and out of the picture, did not reside with them at Queen Frederica, and did not help the family financially. Sometimes, he would not see his father for a full year.

[19] When living at Queen Frederica Drive, G.D. attended Dixie Public School, which went up to grade 6, then for grade 7 and 8, he attended Tomken Junior High. As a young boy, G.D. had jobs, initially babysitting for neighbours, and then a paper route delivering the Toronto Star, a job he did for 2.5 to 3 years. T.D., who was a year and a day younger than G.D., testified that he was between 10 and 11 years old when he was helping G.D. with the paper delivery, which would make G.D. 11 or 12 years old. When he outgrew the paper delivery job, when he was in grade 7, he started working at a Greek restaurant, Pisces, at the end of Queen Frederica Drive, as a dishwasher, and believed he made $5.00 per hour. G.D. described himself as good with managing money. G.D. used the money that he made toward wrestling and buying toys.

[20] For many years, G.D. was intensely interested in wrestling, even to the extent of wanting to become a wrestler himself. G.D. and his neighbourhood friends created their own wrestling organization called the Queen Frederica Wrestling Federation. He and his friends would plan matches and created championship belts.

[21] G.D. collected wrestling magazines and programs, which he ultimately stored in a safe place at his brother’s residence. These magazines and programs were provided to the police in a milk carton by T.D. on July 10, 2019, in the midst of the preliminary hearing. Det. Cst. Dale Smith was advised by T.D. that these magazines and programs belonged to his brother, G.D. The magazines and programs were photographed and a CD containing these photographs was marked as Exhibit 1 in these proceedings. The dates of these magazines and programs spanned from October / November 1985 to July 1990. G.D. bought these magazines and programs himself. The programs were bought at the wrestling matches, whereas the other magazines were simply bought at news stands. He stated that he kept these magazines and gave them to his brother as it was the “only way to prove I was there at the time, that was the only way.” He said he wanted to show the timeline.

[22] G.D. attended wrestling matches at Maple Leaf Gardens in Toronto. He believed that he paid around $22.00 to attend. Initially, he went to the wrestling matches once per month but then the matches became less and less frequent, however, he continued to attend when they were held. Initially, G.D. attended the matches on his own, although on some occasions, others would join, such as his friend, B.C., or his brothers. At the wrestling matches, G.D. would often run around trying to get autographs of wrestlers, rather than watching the match. As for transportation to the wrestling matches, G.D. would take public transit. T.D. testified that G.D. would have been around 11 or 12 years old when he started attending wrestling matches.

[23] P.S. operated a pet store, Pet Mart, in the same area where G.D. and his family resided, approximately a 5-minute walk from their residence. As children, G.D. and his friends would play in different stores in the neighbourhood, and would eventually get kicked out for doing so.

[24] At some point, P.S. moved his pet store into the strip mall plaza right behind the housing complex where G.D. and his family lived. At that point, G.D. saw P.S. more often at the pet store. G.D.’s mother would also go over to the pet store and talk to P.S.’s mother. P.S. stated that G.D.’s mother would come in every Sunday when his mother was at the store and they would talk. He did not meet G.D.’s father for a couple of years after that as he was not in the picture.

P.S. and G.D. meet at wrestling match

[25] On one occasion when attending a wrestling match at Maple Leaf Gardens, G.D. recognized P.S., who was also attending the match. G.D. testified that he was approximately 14 years old at that time, however, he stated that he was still doing paper delivery at the time. Later in cross-examination, he stated that he could have been younger. T.D. stated that the relationship between P.S. and G.D. started when he was between 10 and 11 years old and G.D. was 12 years old.

[26] P.S. stated that he met G.D. at the wrestling match around 1986, about two years before he moved to Tottenham. P.S. was a wrestling fan as a kid from 12 years old and up. He did not have any regular seats to attend wrestling at the beginning and would go on his own as he had no one to go with at that point. G.D. approached him at the wrestling match, and P.S. stated, “I remember taking him home”. According to P.S., G.D. returned to his store the next day and they continued to talk about the various wrestling characters. In cross-examination, P.S. agreed that G.D. was probably 12 or 13 at the time.

G.D. and P.S. attend wrestling matches together

[27] After G.D. and P.S. met at the wrestling match, P.S. then offered for G.D. to meet him at his pet store and he would drive him to the wrestling matches rather than him taking public transit. P.S. agreed that he offered to drive G.D. to wrestling matches. After P.S. started driving G.D. to the matches in Toronto, he drove them almost every time thereafter. G.D. would meet P.S. at his pet store, or on occasion, P.S. would pick up G.D. in front of his house. According to T.D., P.S. was welcome in their home and did come in the house.

[28] According to G.D.’s mother, P.S. offered to take G.D. to wrestling and get him home safe. She stated that she trusted him.

[29] At one point, G.D. called wrestling promoter, Jack Tunney, who had an office across from Maple Leaf Gardens. G.D. set up a meeting, which P.S. attended, and they were able to secure tickets for two reserved seats in the second row for upcoming matches. According to G.D., P.S. secured the season tickets and G.D. paid him back for his seat from his paper delivery money.

[30] P.S. also recalled attending at the office to set up the two reserved seats. He had to pick up these tickets within an hour before the match began, otherwise the seats would be given to someone else. P.S. stated that G.D. paid for his own ticket.

Gold’s Gym

[31] Less than a year, approximately 8 months after G.D. had started attending the wrestling matches with P.S., G.D. tried to get a membership at Gold’s Gym, which was near where they lived. According to G.D., however, he was too young to attend without guardian consent. G.D. stated that P.S. then came to the gym, talked to some people and arranged for G.D. to be able to attend the gym. P.S. attended the gym with him for a bit, and would “spot” him when he lifted weights, but then he did not go as often, as G.D. was attending every other day. G.D. paid P.S. back for the membership. Wrestlers would also go to this gym to train and that was where G.D. met more wrestlers and found out where they stayed when they were in town. G.D. trained at Gold’s Gym for about a year and a half. According to G.D., he thought this was helping with his desired career path to become a wrestler and that P.S. made him believe he would help him.

[32] According to P.S., he did help G.D. attend the gym even though he was not old enough. He stated that he originally joined the gym to lose weight. G.D. knew that he was joining and wanted to go with him. P.S. was allowed an associate member if he accompanied that person. P.S. went a few times but then lost interest. He then made arrangements for G.D. to attend the gym on his own. This was about a year before he moved from Mississauga. P.S. stated that they did attend the gym together for about 4 weeks. P.S. agreed that G.D. said he was working out because he wanted to become a wrestler. P.S. stated that G.D. continued at the gym after he stopped. P.S. agreed that this appeared to be a “big deal” for G.D., and that he was excited about it. P.S. did not drive G.D. to the gym as it was at Dundas and Dixie, walking distance from his house.

Going to wrestlers’ hotel

[33] G.D. found out where the wrestlers stayed, which was at a Howard Johnson near the airport. When G.D. learned this information, P.S. would drive them to the hotel both before and after the matches to meet wrestlers. One time, P.S. bought beer to hand out to the wrestlers so that they could get closer to them. They also offered rides to the wrestlers, for example they drove Ken Patera to the airport. T.D. recalled that he also went to meet the wrestlers once or twice. G.D. stated that it “felt cool” to meet the wrestlers. He still wanted to become a wrestler or a wrestling referee and P.S. was aware of this interest. According to G.D., P.S. encouraged his interest and said that he could be G.D.’s manager. P.S. even suggested that G.D. wrestle under the name “Baby Face [D]”.

[34] P.S. agreed that they would go meet wrestlers, and recalled bringing beer to hand to wrestlers in the parking lot in order to get close enough for an autograph. P.S agreed that this was a “big deal” for G.D. and agreed that this was a pretty constant activity.

Weekend trip to wrestling

[35] In addition to attending wrestling matches in Toronto, P.S. also took G.D. on a weekend trip to watch wrestling. They attended Copps Coliseum in Hamilton on the Friday, London Gardens on the Saturday and then Maple Leaf Gardens for Sunday. G.D.’s mother gave permission for G.D. to go. P.S. also talked about this weekend trip and stated that G.D.’s mother knew about it.

Impressions about the relationship

[36] G.D. stated that his family’s relationship with P.S. was good. He stated, “He showed he was trustworthy by driving me to wrestling, buying dinner at restaurants. It was more the bond that my mom had with his mom”. When asked to describe the relationship he had with P.S., G.D. stated, “It was good because I thought he was like being like a big brother. My mom at that time was looking to get us into Big Brother’s Association. At that time, I was like, ‘you know what… I don’t need a big brother. I have this man as my big brother now.’” G.D. also described how his brother, T.D., met a man at the carnival, B.G., and he was like a big brother to T.D. T.D. confirmed that he spent more time with B.G. than with either of his parents. When asked in cross-examination why he wanted to spend time with P.S., he stated that he was doing what a big brother would do, taking him to wrestling matches, and just being good to a child or young teen. According to G.D., P.S.’s interest in him seemed reasonable. T.D. stated that the Big Brother program was discussed when he was between 11-13 years old, which would make G.D. 12-14 years old.

[37] P.S. agreed that, at this time, he considered G.D. a friend. When it was suggested that to G.D., he was more of a big brother, he stated, “he may have considered me a big brother but I didn’t look at it in that direction.” When asked what G.D. did to show him that he considered him to be a big brother, he stated, “I don’t know that he did show me that I am a big brother. I just know I was very friendly with him. We had a common interest in wrestling. He was a nice guy.”

G.D.’s friend, B.C.

[38] G.D. had a friend, B.C., who moved into the same complex at Queen Frederica Drive a little after G.D. and his family moved there. G.D. and B.C. were around the same age and he estimated that they were 12 or 13 when they first became friends. According to B.C., he was 13 years old when he lived at Queen Frederica and that he lived there approximately two years. He lived with his mother and sister. He met G.D. shortly after he moved to Queen Frederica. B.C. stated that at the age of 13 or 14, he and G.D. both wanted to become wrestlers

[39] At some point, G.D. introduced P.S. to his friend B.C., and, at times, B.C. would also go to wrestling matches with them. P.S. believed that he was introduced to B.C. about 2-3 weeks after he met G.D. P.S. stated that sometimes B.C. would get his own “cheap seat” at wrestling and then join them in the good seats.

[40] B.C. stated that he met P.S. through G.D. According to B.C., he asked P.S. for a job and he started working at the pet store cleaning pet cages and later did floor sales. His work with P.S. was flexible, as in he could work when he wanted to. B.C. stated that he would go to wrestling matches with G.D., and then later with P.S. B.C. stated that he was 14 years old when he first started associating with P.S. B.C. knew that P.S. was gay as he told B.C. and the employees also told him. B.C. stated that his mother got to know P.S. because he introduced them when he started working for him. His mother knew that P.S. was gay because B.C. told his mother. He stated that P.S. was a guest in his home a few times, when he came for dinner. P.S. never made him feel uncomfortable or do anything he did not want to do. He said that when he was 14 years old, he and P.S. were just friends. According to B.C., P.S. knew that he and G.D. both wanted to become wrestlers and that at some point, P.S. said that he was considering building a wrestling ring for them.

[41] P.S. testified that he was aware of G.D.’s interest in becoming a wrestler. He stated, “I don’t know how serious he was about it. But I went along with it.” P.S. described the three of them, G.D., B.C. and himself, as “wrestling groupies” and that it was the “main thing that held us together”.

P.S. buying things for G.D.

[42] In the course of attending wrestling matches together, P.S. would also take G.D., and on occasion B.C., to restaurants and buy food. When asked how this made him feel that P.S. was paying for food, he stated, “It felt like a parent would be… someone who would look over you… safe”. P.S. agreed that he did take them to restaurants on occasion and would buy them snacks at wrestling.

[43] Other than buying food, P.S. did not buy G.D. things. There were no birthday presents or Christmas presents.

Time spent at the condo

[44] In addition to attending wrestling matches, G.D. also spent time at P.S.’s condo on Cawthra Road in Mississauga.

[45] According to G.D., at the beginning, it was just G.D. and P.S. G.D. even spent the night at P.S.’s condo on occasion. At the condo, G.D. would go swimming in the pool with P.S., and in the pool, P.S. would wrestle with him, specifically using a “sleeper hold” on him which wrestler, Ted Dibiase, had termed the “million-dollar dream”. G.D. described this as a type of choke hold, but explained that it was just playing at the time. G.D. stated that this made him feel that P.S. was interested in wrestling, as he was, and this showed G.D. that P.S. was someone he could “start opening up to”. They would also sit in the sauna. G.D. was attending Tomken Junior High at the time and was in grade 7. (He explained that he repeated grade 7.) They wore their swimming trunks in the pool and sauna. In cross-examination, he agreed that it was his choice to go to the condo and he was not pressured to do so. He agreed that he liked to go there.

[46] According to G.D., the odd time when he was sleeping there, he and P.S. would sleep naked together in P.S.’s bed, which was P.S.’s idea. When asked whether he agreed to P.S.’s suggestion, he stated, “I would have to say yes, because I did sleep in his bed naked.” When asked whose idea it was to be naked, he stated that it was P.S.’s idea and that P.S. said that he always slept naked and that “you just sleep naked when you sleep.” He stated that there were quite a few sleepovers. G.D. stated that he continued to go to the condo to enjoy the pool and sleep over night a day here and there, right up until they moved. G.D. stated, “He didn’t really touch me, so I felt safe. I thought maybe this was ok.” As for his mother, she knew that G.D. was staying there. According to G.D., he did not suspect that P.S. was gay at that time. He stated that, as time went on, B.C. came there as well. G.D. stated that when this happened, he was no longer in P.S.’s bed, but rather B.C. would be there instead. G.D. then slept in his own bed in another bedroom. In cross-examination, he agreed that he could have slept anywhere he wanted in the condo.

[47] P.S. testified that B.C. and G.D. would come to his condo to use the indoor swimming pool. He stated that G.D. only slept there once or twice and that he never slept in P.S.’s bed. G.D. and B.C. shared a bed in the second bedroom. He stated that there was only one occasion where the two boys were horsing around and making too much noise and that, in order to get them to stop, he told B.C. to come into his bed. He said that B.C. had shorts on. P.S. said that he wanted to get to sleep and was not interested in sex. As for G.D., P.S. stated, “I never remember sleeping with [G], ever”. When it was put to P.S. that G.D. suggested that he slept in his bed naked on Cawthra, P.S. stated, “Yes, I heard that and I was almost repulsed by it”. In cross-examination, P.S. agreed that G.D. would not have known he had a pool unless he told him about it. He agreed that he told G.D. that he had a condo with a swimming pool because he wanted to spend time with G.D. at his condo. According to P.S., G.D. could have gone home if he wanted to, as he was only three blocks from home. According to P.S., he was not “especially asking him to stay over”. P.S. agreed that he slept naked, as he always does.

[48] B.C. stated that P.S. would invite him and G.D. to come for a swim in the pool. They both said yes. B.C. thought that this happened a couple of times. He said that they ended up staying the night one night. B.C. stated that they stayed in the spare room. He said that he and G.D. were being loud and making noise and so P.S. split them up and he then slept in P.S.’s bed. When he got up in the morning, P.S. was gone. This was the only time he recalled staying the night at the condo with G.D., however, B.C. recalled sleeping at the condo on other occasions. He stated that one time he remembered was just himself and P.S. B.C. asked P.S. if he could come over. P.S. had a function to attend to, but he rented B.C. movies and he watched movies until P.S. returned. He slept in the spare room on this occasion.

Nudist resort

[49] G.D. also attended a nudist resort with P.S., where P.S. had a trailer.

[50] According to G.D., he did not know about the nudist resort until they arrived. G.D. stated that P.S. explained to him that “that’s how we were brought into this world – brought in naked – so this is normal”. At this time, G.D. was in junior high, not yet at the age of driving a car. P.S. had a golf cart that G.D. would drive around on. P.S. and G.D. would stay in the trailer together. G.D. attended at this nudist resort two or three times. They would stay for the weekend – 2 nights. G.D. stated that he would keep his clothes on at the nudist resort, however, P.S. would be naked most of the time. There were other kids at the nudist resort that he would hang out with. The kids were clothed. G.D. did not think there was anything wrong with this at the time. G.D.’s parents did not know he was spending weekends at this nudist resort. When asked why his parents did not know, he stated, “maybe I was ashamed”. He stated that they did not sleep together there. In cross-examination, he agreed that he did not have to go there if he did not want to, but he stated that he liked driving the golf cart.

[51] P.S. also testified about this nudist resort in Freelton. P.S. stated that he does not like clothes, even in the winter time, and likes the “freedom of being nude”. He stated that he bought a trailer and a lot at that resort. He admitted that he did eventually take G.D. there. When asked why he took him there, he stated that he told G.D. about the trailer and G.D. was interested in going. P.S. claimed that G.D. knew that it was a nudist resort because P.S. had already told him about it. P.S. and G.D. slept on their own beds in the trailer. When asked if G.D. ever slept in his bed at the trailer, P.S. stated, “no….I wasn’t interested in sleeping with him at all”. He agreed that he had a golf cart at the resort. P.S. explained that clothing was optional, some people dressed and some were nude, although he said most teenagers were dressed and that G.D. was dressed. P.S. estimated that G.D. stayed there two or three times.

Moving to Tottenham / Ottawa

[52] P.S. sold his condo on Cawthra Road in Mississauga and bought a home in Tottenham. He testified that he made the deal in 1987, and before the deal closed, he “showed the kids the house” – meaning G.D. and B.C. B.C. recalled going to see the house just before P.S. moved in.

[53] In November 1987, G.D. and his family moved to Ottawa. G.D. was in his second year of grade 7 when they moved. At this time, his father was trying to come back into their lives and was setting things up for the family in Ottawa. G.D. completed his second year of grade 7 and all of grade 8 in Ottawa at W.E. Gowling. They were all living together as a family including his father. Things seemed good. According to G.D., he was not attending wrestling in Ottawa, however he did want to continue with his wrestling plans. He asked at school about getting into wrestling and they suggested to join a wrestling team. Ken Patera had said to him years before that if he started wrestling, people would find him. However, there was no wrestling team in junior high, so he had to wait until high school.

[54] P.S. took possession of the Tottenham house in May 1988.

[55] After G.D. moved to Ottawa, he continued to keep in touch with P.S. by telephone. They would both call each other. According to G.D., they continued to discuss the possibility of P.S. building a wrestling ring in his back yard. Also, around the same time, P.S. was expanding his pet store chain to Ottawa. He was in the process of opening a store on St. Laurent Blvd. in Ottawa. The store was about 15 or more kms from where G.D. and his family lived.

Plans for G.D. and B.C. to move to Tottenham

[56] After finishing grade 8, G.D. was not very happy in Ottawa. According to G.D., he was missing wrestling with B.C. and going after his dream of being a wrestler.

[57] As for seeing P.S. in Ottawa, G.D. stated that his mother invited him for dinner once when they lived on Shillington and Admiral. There was a conversation at this dinner about G.D. moving in with P.S. According to G.D., P.S. offered for G.D. to come live with him and be “the guardian”. Living with P.S. would allow G.D. to go to high school in the area, which turned out to be in Alliston. G.D. stated that he talked more to his mother about moving in with P.S. and that his mother talked to his father. As for the reason for living with P.S., he said that he had hopes of being a wrestler, he thought P.S. would build a wrestling ring, as he said he would, and be his manager. Further, he hoped that B.C. would get into wrestling as well and they could possibly have a tag team. At that time, G.D. was “very serious about being a wrestler”.

[58] In cross-examination, G.D. agreed that he did not like Ottawa and that he might have told P.S. that. It was suggested to him that he asked P.S. if he could come stay with him, and P.S. said yes. He responded, “yeah, I did go”. As for B.C. going to live with P.S., G.D. testified that B.C. made his own decision. He said that B.C. had gotten into some trouble and P.S. was helping him out. As for how he and B.C. ended up at P.S.’s residence together, he said, “We thought it would be cool to become wrestlers and be cool to go to school together.” According to G.D., P.S. said that it was ok, that he would be the guardian, and he would help them. Ultimately, when it was again suggested to him that it was his idea to go to P.S.’s residence to live, he said, “I wanted to leave Ottawa, yep.” G.D. eventually agreed that he told P.S. he was not happy and asked to go to his place, following which there was a dinner and P.S. and G.D.’s mother had a conversation. Before moving in with P.S., G.D. admitted that he knew that B.C. was coming to live there as well and they would go to school together.

[59] According to P.D., G.D.’s mother, G.D. was staying with P.S. in Tottenham for the summer, where he was working, and that he wanted to stay to go to school with his friend. She said, “I trusted [P] 100%... if you’re going to look after him, fine.” P.D. did not recall P.S. ever being in their house in Ottawa and, therefore, did not recall any conversation with P.S. about G.D.’s desire to move to Tottenham.

[60] When P.S. was asked how the boys came to live with him, he stated, “It was coming closer to the middle of August. At that point they approached me, ‘is there any way that we can stay here and go to school’. I went to checking into it and discovered that as long as you are living in my area, I don’t have to be the guardian, just have to state where they’re living and my taxes paid for the education. They were basically on their own at that point. They have to have a contact….I was listed as a contact and so was his mother…[B]’s mother and same thing with [G].” P.S. stated that he called the school and told them the situation, that he had two young guys who lived in different areas that wanted to go into grade 9 at the school, and that he was a tax payer in the area and asked the situation. When asked what was in it for him, P.S. explained that he felt he was “doing something good for them”. When asked why G.D. and B.C. would be better off at his place he said, “I don’t know so much that [G] would have been better off, but he was quite insistent on being there.” He said that G.D. told him that he did not like it in Ottawa. When asked why B.C. wanted to be at his place, he stated, “I guess because they were close friends and wanted to stay together. I warned them that you have to go to school with the school bus yourself. Don’t fool around. Don’t miss classes and write your own notes….the worst can happen…you’re gonna get kicked out and go back home….” P.S. stated that he was told he did not need to be their guardian. When asked why this mattered, he stated, “Because I did not want to be legally responsible for them… especially [B].” He said that B.C. had been in trouble a couple of times and he had helped him out, which was approximately a year before they moved to Tottenham. He did not remember G.D. getting in trouble.

[61] According to B.C., around this time, he was getting into trouble a lot at school and was getting bullied. He asked his mother if he could move up to the area where P.S. was living and go to school in that area. His mother talked to P.S. and then agreed that he could move there. B.C. believed that G.D. wanted to move there because he was moving there. According to B.C., the reason he moved to P.S.’s house was because of the trouble he was having at school in the city; the wrestling ring had nothing to do it with it for him.

When the move to Tottenham happened

[62] According to G.D., at the end of June or beginning of July 1988, when he was 15 years old, he moved in with P.S. in Tottenham. This move allowed G.D. to attend school at Banting Memorial in Alliston. He was going into grade 9 that September. B.C. moved in with P.S. shortly after G.D. arrived and attended the same school and grade.

[63] According to B.C., they stayed there throughout the summer on and off, and would go home as well. It was not until they were going to school that they actually moved up there. He moved there in September 1988 to go to school.

Work at Tottenham

[64] During the time that G.D. and B.C. lived with P.S., they both worked for him.

[65] According to G.D., in the summer before starting grade 9, P.S. had them do chores. They also cleaned the top of the chicken coop. About 3-4 weeks after they moved there, G.D. and B.C. started bagging gravel for Aquarium Services, P.S.’s brother’s business, earning 40 cents per bag. G.D. explained that sometimes they would slack off all week and then work all night to get the gravel bagged. The money they made depended on how much gravel they bagged. This was seasonal work, so they only did it for the summer. G.D. agreed that he did not have to do this work if he did not want to.

[66] P.S. stated that in July, they had the ability to make money by packaging gravel. They did not have to do it. It was piece work and he had plenty of help to do it without them, however, he wanted to give them an opportunity to make some money. He stated that B.C. was lazier than G.D. and he would drag G.D. down. They would fool around a lot. P.S. also got G.D. involved in packaging shavings as well, on his own, at 15 cents per bag. He described G.D. as more energetic then B.C. P.S. stated that other than this piece work, they had no other source of money. G.D. and B.C. did not pay rent to stay with P.S. He agreed to feed them. Both of their mother’s supplied them with clothes and books for school.

[67] B.C. stated that he did not have to work but that there was piece work there to do if he wanted to make money.

[68] According to G.D., P.S. would also give them a bit of financial advice, such as encouraging them to buy GICs.

Routine / rules of the house

[69] B.C. and G.D. shared a bedroom across from P.S.’s bedroom. According to B.C., their room was closer to the living room, whereas P.S.’s room was at the far back of the house. The distance between the rooms was about 10-15 feet. There was another room on the same level of the house where R.S. and his friend, O, would stay. According to B.C., he never slept in P.S.’s room at that time. He did not recall G.D. sleeping in the room at any time.

[70] As for his own life at this time, P.S. stated that he would get up in the morning, be at his store by 10:00 a.m. and would not get home until 11:00 p.m., after having a bite to eat at a restaurant. This would be 5-6 days per week, with every other weekend off. He was in the process of opening a pet shop in Ottawa and franchising. He was also in the midst of selling his Mississauga store. P.S. explained that he would buy groceries, but that most of the time they had to make their own food. They did not pay for groceries. Sometimes they would call P.S. to pick up some item on his way home. They would eat together on weekends. Either P.S. would cook or sometimes a friend, O, would come visit and cook for them. He said that because of their schedules, sometimes he would not see them for 3 or 4 days. B.C. also stated that P.S. would work everyday and would be there on the weekends. In cross-examination, G.D. stated that P.S. would routinely get home well after dinner. He stated that they had time to clean the house.

[71] P.S. agreed that he had rules about cleaning the house, for example, they had to put the dishes in the dishwasher because he did not like to come home to a dirty house. He said, “they were responsible that way.” They did not really do anything else, such as take out the garbage.

[72] G.D. stated that when he and B.C. moved in with P.S., another male and his daughter lived in the basement suite. B.C. provided similar testimony.

[73] According to P.S., in the summer of 1988, his ex-boyfriend, R.S., was living in the second bedroom of the house. There were three bedrooms upstairs – one for P.S., one where R.S. stayed, and one where G.D. and B.C. stayed. R.S. would be gone during the week but was usually there with his friend, O, on the weekends. He said “the kids loved him”. B.C. also testified that R.S., P.S.’s ex boyfriend, would stay from time to time with his friend, O.

[74] Other than working when they wanted to, B.C. testified that he watched TV, used the swimming pool, and drank. He and G.D. would go to Canada’s Wonderland from time to time. P.S. would take them and pick them up.

[75] B.C. stated that he did not feel dependent on P.S. when living at his house. If he needed money, he could do piece work. As for coming and going from the house, he would have to walk or ask for a ride. He said there was always food in the house, but they had to make it themselves.

Alcohol and Drugs

[76] Prior to moving in with P.S., G.D. claimed that he had not experimented with alcohol or drugs. However, he had seen P.S. using marijuana and hash.

[77] There was drug use and alcohol use at the home and G.D. and B.C. were involved in that drug and alcohol use.

[78] G.D. stated that P.S. introduced them to marijuana and hash. The drug use was heavier on the weekends when P.S.’s friends, R and O, would visit, which was when cocaine would also be used. According to G.D., B.C. was more into the cocaine then he was, to the point that P.S. locked his bedroom door with the cocaine inside. B.C. would get a ladder, G.D. would spot the ladder, and B.C. would climb into P.S.’s bedroom to get the cocaine.

[79] P.S. stated that there was no cocaine in his room, however there may have been marijuana. He stated that he had questioned B.C. about this since he heard this from G.D., as there was an occasion where his room was broken into and his piggy bank was missing. He stated that he locked the door because of R.S., as he was at times desperate for money for drugs. B.C. testified that a couple of times he broke into P.S.’s room to try to find weed, which P.S. did not know about at the time.

[80] G.D. also stated that B.C., who was drinking prior to coming there, got addicted to alcohol, and P.S. would come home with hard alcohol for him. G.D. stated that he drank beer. G.D. stated that he did not really know how to roll the marijuana or hash and that B.C. would roll it more than he would. B.C. and G.D. would smoke marijuana and hash even when P.S. was not home. He described them sitting on tarps and later sea can containers when smoking. G.D. described that P.S. would hand them marijuana and hash in the living room. P.S. would lie on a towel in front of the TV. He would roll his and then throw the weed to B.C. and B.C. would roll it for himself and G.D. At the kitchen table, they would all share weed and cocaine. He described the cocaine being used through a cigarette. As for cocaine, G.D. stated that the first time he tried it was when P.S. got him to rub it on his teeth and it made his mouth numb, which led to more cocaine use. As for why he tried cocaine, he could not really recall. G.D. said that he did not like cocaine that much, not as much as B.C., so he stopped and B.C. kept using it. G.D. estimated that he used cocaine a dozen times at P.S.’s house.

[81] G.D. was asked whether he had the option of purchasing weed, to which he replied, “Yes, after time he gave us that option to buy from him.” However, he then stated that during that summer, P.S. gave them the option to buy from him. As for actually purchasing drugs, he stated that drugs were in the house and they could share. However, in the summer, they would buy grams from P.S., instead of smoking his and that they would then have their own.

[82] As for alcohol, P.S. said that it was possible that R and O would be drinking “but not the kids”. He stated, “I didn’t want anything to do with alcohol with these kids”. He said that he himself was not a drinker, and preferred marijuana as a “better high”. He stated that he did not use drugs at that time other than marijuana and hash. He admitted that R and O did use cocaine. He stated that, most of the time, R and O would do their drugs in private in the bedroom, but that after a couple of weeks, he allowed them to do it at the table “but as long as they didn’t give it to any one of the kids.” P.S. recalled one or two incidents like that. He admitted that this was irresponsible for him to let them see the cocaine, but “they knew there was no way they were going to touch that in my presence”, as R and O respected the rule. P.S. stated that he never put cocaine into a rolled cigarette as G.D. described. He said that he experimented with cocaine 3-4 years later when G.D. was out of the picture. He agreed that G.D. probably saw R and O using cocaine at the house, by putting the cocaine on a cigarette ash in a pipe.

[83] P.S. testified that he never witnessed B.C. or G.D. doing cocaine. He stated that he told R that he “did not want the boys doing any of that stuff.” When asked why he did not want the boys to witness R and O using cocaine, he stated, “Because I didn’t want them to use it. I wasn’t using it. I didn’t like that it was being used, but I wasn’t going to hide the fact that they were doing it.” P.S. stated that he made sure that “the kids had no interest in it”. When asked how he did that, he stated, “I told them…whatever they are doing, I don’t want you to have any part of it….” P.S. stated that he told R and O not to pass it around, as he was scared of it, as cocaine is a hard drug.

[84] P.S. admitted that he was smoking marijuana and hashish at the table and, occasionally, B.C. and G.D. would join in smoking as well. P.S. felt that this was ok. P.S. stated that he would roll the joint and then shared it with G.D. and B.C. G.D. and B.C. did not pay for the marijuana or hash. He stated that it was not that often that they did marijuana or hash. According to P.S., they only shared marijuana and hash when R and O were over and they were playing the game, Risk. Otherwise, there was no access to the marijuana or hash as it was locked in his bedroom. He had no memory of smoking marijuana or hash with G.D. alone. P.S. believed that B.C. had used marijuana prior to living in his house, but he had never seen either G.D. or B.C. use marijuana before living at his house.

[85] B.C. stated that R and O smoked cocaine in a cigarette and passed it to each other. B.C. never saw G.D. use cocaine.

[86] P.S. disagreed that G.D. drank beer at his house. He said there was no alcohol in the house for them to drink. P.S. also stated this it was a lie that he was providing hard liquor to B.C.

[87] According to B.C., he would bother P.S. to get him alcohol, and even though he was reluctant, he would get it for him. Other than beer, P.S. would also buy him vodka. B.C. stated that he drank alcohol, including vodka, before living with P.S. He started drinking around the age of 12. As for drinking, he said he did not do it too often, usually just on the weekends. B.C. did not remember G.D. drinking alcohol.

[88] B.C. stated that he smoked marijuana and that he had been doing that before he met P.S. As for seeing G.D. smoke marijuana, he said very rarely. However, B.C. did agree that sometimes just the two of them would smoke. When asked whether he ever saw P.S. offer marijuana to G.D, he said it was “possible”. As for the three of them smoking together, he said “sure, it happened, but not that often”. B.C. stated that P.S. did use cannabis, mainly at night after work. B.C. stated that R and O did cocaine, but not P.S. at that time. It was later, after G.D. was out of the picture, that he and P.S. experimented with cocaine.

[89] When B.C. was asked whether he thought that P.S. wanted to take advantage of him by using marijuana or alcohol, he stated, “no, if anything, we were taking advantage of him…but it was mostly me though…it was mostly me asking can you get me alcohol, can you get me weed.”

School

[90] When school started in September, B.C. and G.D. would take the bus, which picked them up at the end of the laneway. The odd time that they missed the bus, P.S. would drive them to school. In cross-examination, G.D. stated that P.S. would get upset when they missed the bus and he had to drive them. As for their school work, G.D. stated that P.S. did take an interest in whether they did their school work, however he did not help with school work unless they asked.

[91] P.S. stated that there were two incidents when they missed the bus and he was “pissed off”. He stated that on one occasion he was speeding to drive them to school and got stopped by the police. P.S. stated that it was made clear to them that in order to make it at school, they would have to make it on their own. He did not have time to help with homework or get them up in the morning. He never talked to G.D.’s teacher. He was only in the school once, when he took them up to register, a couple of day before school started. He waited in the hallway and looked around the school to see what it looked like as they were registering. He was not in the same room. He did not remember signing anything. The point of contact for both of them was their mother. P.S. stated that they probably gave his name for an emergency contact, but P.S. did not provide that and was never contacted. The school had P.S.’s home address.

[92] As for how things were going during this time, P.S. stated that he thought things were going reasonably well, however, when they were going to school they started to “fart around a lot”. He said that he told them to write their own notes, as they were allowed to write their own notes, when they were late. However, they knew that if they did that more than once or twice, they would have to call their parents or somebody. The school had their mothers’ numbers if there were any real problems. He said that they were not acting responsibly when it came to school.

Other activities while at Tottenham

[93] G.D. stated that they did go to see a concert, Stone Temple Pilots and the Rolling Stones. It was not clear when this occurred. However, as for wrestling, G.D. stated that it all came to an end when he moved there. They did not attend any wrestling matches. P.S. did get a big screen TV and would pay to watch the matches on TV. The discussions about his wrestling career and P.S. becoming his manager all came to an end. Although later, he stated that the wrestling ring was still supposed to be built in the back for him and B.C. to use. He said that wrestling was still very important, however he slowly stopped caring.

[94] P.S. stated that they did still go to wrestling matches in the summer of 1988. B.C. also stated that they went to wrestling matches that summer / fall.

[95] P.S. agreed that he was willing to put up a wrestling ring at Tottenham, if G.D. did some research about the proper size. P.S. believed this conversation was before they talked about moving there, as they were going to come to Tottenham in the summer and practice. P.S. said as soon as they got the measurements, he would build the ring. P.S. also agreed that if G.D. wanted to become a wrestler, he would have backed him up, but he did not think he was that serious. He also agreed that he would have been his “make-believe manager”. P.S. stated that “Babyface [D]” was a gimmick that they all came up with. He said, “I didn’t discourage him. I went along with it” and that if G.D. got more serious about it, he [P.S.] would have become more serious.

Teaching G.D. to drive

[96] According to G.D., during the summer, P.S. was trying to teach G.D. and B.C. to drive, on his standard transmission Volvo. However, it did not last long, as G.D. crashed the passenger front corner of P.S.’s car into a tree at the beginning of the driveway. P.S. did not have him pay back anything for the vehicle. P.S. was also trying to teach B.C. to drive.

[97] P.S. also recalled this incident, and said that G.D. was upset when this occurred. P.S. attempted to console him and told him it was not his fault. P.S. paid for the car repairs.

[98] This was the only time that B.C. remembered G.D. being unhappy that summer or fall.

Sexual Activity

[99] It was during this summer / fall of 1988 that some sexual activity occurred between P.S. and G.D., specifically, P.S. performed oral sex on G.D. on a few occasions. G.D. stated that he also saw P.S. perform oral sex on B.C. twice, once in the living room and once in the bedroom. According to G.D., B.C. saw P.S. perform oral sex on him three times.

[100] P.S. admitted that he performed oral sex on G.D. three or four times, but described it occurring quite differently and suggested that G.D. consented to the activity.

[101] The sexual activity will be discussed in more detail below.

Contact with family

[102] As for contact with his family during this time, G.D. stated that it was not often but “I guess I could have called anytime”. He stated that on one occasion, his mother, father and sister came to visit in Tottenham.

Nature of relationship while living at Tottenham

[103] G.D. stated that he looked at P.S. as in a “parent role”.

[104] P.S. agreed that G.D. trusted him when living in his house. It was also suggested that G.D. trusted him prior to living there, to which he said, “Yes, I’m sure he trusted me, or he wouldn’t have wanted to stay there.”

[105] In cross-examination, it was suggested to P.S. that G.D. saw him as a guardian, to which he stated, “Well… he certainly saw me as a friend. I don’t know how much he saw me as a guardian. I made it very clear to them that I would not be signing as a guardianship in school.”

[106] P.S. was asked whether G.D. would come to him for advice to which he stated, “He probably would, but I don’t remember him asking for advice.”

[107] P.S. stated that G.D. was not the same person in court that he knew back then. He said, “Something turned him into a monster…. Maybe I am part to blame I don’t know. I don’t know his life from when he left me.” As an explanation to this comment, he stated that when someone has deep psychological problems, everyone in their past plays a part.

Things came to an end in Tottenham

[108] G.D. lived with P.S. until the middle or end of October, at which point, he called his father to come and get him. He then moved back to Ottawa.

[109] G.D. explained that at one point in September, B.C. had moved back to Guelph and it was just him and P.S. at the house. According to G.D., B.C. returned back to the Tottenham residence in October, having been gone for about 2-3 weeks, however, never returned to school. G.D. decided, “I’m out”. G.D. stated that he told B.C., as they sat on P.S.’s couch, that they would make this all stop if “we stand together” and B.C. decided “not to stand up”. According to G.D., B.C. said no. G.D. then decided to call his father and leave the residence. By the time he left Tottenham, he said he had stopped caring about wrestling. Later on, G.D. stated that this conversation with B.C. occurred after the second incident of sexual activity.

[110] B.C. said that he never had any conversation with G.D. about sex with P.S. until years later when G.D. brought it up. B.C. also stated that he had no conversation with P.S. about sexual activity. B.C. stated that this conversation on the couch did not happen.

[111] When asked how long G.D. and B.C. lived at his place, P.S. stated that B.C. got into a fight at school and was expelled at the end of September. About two weeks later, G.D. decided to move back to Ottawa and he left in mid October. P.S. said that he had a friendly conversation with G.D., during which he said that he missed his parents, and B.C. was not there, so he had no reason to stay. G.D. called his father. His father pulled up in the driveway, they shook hands, and said goodbye. It was very cordial. P.S. stated that G.D. was not doing well in school and without B.C. there, he did not want to stay anymore.

[112] According to P.S., B.C. never came back to the house, not even on weekends after he was expelled. He went to Mississauga and completed his school year there. He did not see B.C. for about two months after he left, other than to stop into the store to say hello. Eventually he started visiting again. Later, in cross-examination, he stated that there was a two to three-week period between B.C. being expelled and G.D. leaving, so it was possible that B.C. came to visit, however, he did not remember him visiting.

[113] B.C. testified that about three weeks in to actually living in P.S.’s house, a kid attacked him at school and he got expelled. He then moved back to Mississauga. He thought this was still in September.

G.D. moved back to Ottawa

[114] According to G.D., his father picked him up around the end of October. He did not say anything to his father about what had happened, as he believed that his father would have killed P.S. G.D. stated that he did not think it was fair to the family to have his father in trouble, as they never had their father, and he did not want the family to lose him again by going to jail. When his father asked why he wanted to come home, he was silent and would not tell his father the reason. His father brought him home. Back in Ottawa, G.D. continued with grade 9. According to G.D., P.S. continued to contact him by telephone.

[115] According to T.D., G.D. had changed when he returned to Ottawa. G.D. started smoking joints with their older brother. He had very little interest in wrestling. He was no longer interested in exercise. He also had no interest in maintaining his clothing or his physical appearance. However, in cross-examination, T.D. agreed that there was nothing that caused him to be concerned that G.D. had been abused. T.D. had no reason to avoid P.S.

[116] P.D., G.D.’s mother, stated that she did not have any concerns for G.D. at that time and he did not seem any different than he had before he went to Tottenham.

[117] According to G.D., when P.S. came to Ottawa, B.C. would come with him. G.D. offered for B.C. to stay with him and his family, and he did stay with them a couple of times. After these trips, contact between G.D. and B.C. ended.

[118] P.S. stated that after G.D. returned to Ottawa, he saw G.D a few times with T.D. P.S. stated that he was in Ottawa every two weeks at that time, as he was opening a pet store in the city, which opened in 1989. He said he had no contact with G.D. on his own. He remembered that T.D. got into a business venture in 1989 and P.S. would help T.D. from time to time. P.S. recalled going to Lonestar restaurant with T.D. and G.D.

[119] G.D. explained that after he moved from the house in Tottenham, he had dark thoughts and there were a couple of time that P.S. was “going to get hurt very bad” and that he “had things in motion to make that happen”. TD. did not know that G.D. was trying to find an opportunity to kill or hurt P.S. – no one knew. P.S. stated that he was never aware that G.D. had these feelings. He said that G.D. did not express any fear of him. He said the two of them never had a fight or argument.

Chimo Hotel

[120] On one occasion, after leaving Tottenham, P.S. and G.D. spent the night together in a hotel in Ottawa, where sexual activity occurred. According to G.D. this was 5 or 6 months after he left Tottenham.

[121] G.D. explained that he met P.S. intending to carry out his plan to hurt him. In cross-examination, he stated that he took a folding knife with him to the hotel.

[122] P.S. did not deny that the two of them met at the Chimo Hotel, but did not seem to have a great memory of the event. He could not recall sexual activity with G.D. that night but said “I believe I did”.

[123] This incident will be described in further detail below.

Further contact between G.D. and P.S. / returns to Tottenham

[124] According to G.D., he went back to P.S.’s residence at least once on a camping trip with friends, and one other time with his father who was painting the Tottenham house.

[125] In relation to the camping trip, G.D. explained that he, his brother, T.D, and two friends were going to a Blue Jays game in Toronto. This was when G.D. was going into grade 10. P.S. allowed them to camp in his backyard. G.D. stated that he was going to get his brother and friends involved in harming P.S., however, something told him it was not fair to involve them. G.D. had passing contact with P.S. and believed that he did go into his house to shower. There was no sexual contact. As for B.C., G.D. stated that he might have been still at the residence however he did not attend the baseball game. T.D. also testified about attending on this camping trip and believed it was after he turned 16 years old.

[126] P.S. recalled that G.D. and his friends camped at his house. He had no idea that G.D. was planning to kill him at that time. He said that G.D. did not sleep inside, as he was sleeping with his buddies in the tent. At one point, they were all in the kitchen and may have smoked joints in there. He believed that this was the year after the Chimo Hotel, maybe 1992. P.S. believed that there were two camping trips to his house and that this was the last time that he saw G.D. P.S. believed that B.C. was there on one of those occasions.

[127] P.S. recalled that G.D.’s father painted his house, but believed it was in the summer prior to them moving in. He stated that G.D’s father was there about 6 times in three months, painting the living room and hallway, and stayed over a couple of nights. He thought this was in July.

[128] According to G.D., on another occasion, he bought tickets for a Rolling Stones concert and invited P.S. to attend. He stated that he waited 5 days in line to get the tickets. He contacted P.S. and said he had third row tickets and asked if he would like one, to which P.S. said yes. G.D., another friend and his wife, and P.S. all went to the show at the SkyDome. They rented a hotel that overlooked the concert. B.C. wanted to come but G.D. did not have another ticket, so he offered for B.C. to come stay in the hotel and watch the concert from there. G.D. stated that this was another time to potentially stab P.S. but P.S. did not go to the bathroom that day. It was not clear when this event is supposed to have occurred. P.S. was not asked about this event.

[129] In cross-examination, G.D. recalled a further time that he returned to P.S.’s house, during which he did not enter the home and P.S. had left some marijuana for him in the barbecue.

[130] Also, in cross-examination, G.D. recalled a red Thunderbird that P.S. owned.

[131] P.S. stated that he did have a 1994 T-bird that he bought brand new in 1994 and that B.C. knew about this vehicle. He found it hard to believe that G.D. knew of this T-bird as he “definitely did not have contact” with G.D. in 1994.

[132] When asked what he remembered about the red Thunderbird, G.D. stated that he went to Canada’s Wonderland with B.C. Later on, when asked about this incident again, he stated, “I was keeping eyes on him… waiting for a moment”, suggesting that this was another opportunity to hurt P.S. In re-examination, G.D. stated that he remembered he and B.C. getting dropped off in the parking lot of Canada’s Wonderland by P.S. He did not know when the trip was, whether it was when he was residing in Tottenham or after, but he knew it was in a summer month and that he was not yet 20 years old.

Move to Toronto

[133] T.D., G.D.’s younger brother, moved out of the family home in 1990 on his 16th birthday. He went to Toronto with his friends. He stated that G.D. visited during that year and there was a trip to P.S.’s residence with friends, which appeared to be the camping trip referred to above. T.D. stayed in Toronto less than a year and then returned to Ottawa, but did not return home. About a year after that, he returned again to Toronto. This time G.D. lived with him. They were around 19 or 20 years old.

[134] T.D. recalled that when he and his brother were living in Toronto, they were struggling and doing multiple jobs to make ends meet. T.D. spoke to P.S. at that time to ask for advice about how to get money from a company that did not pay them.

[135] It was unclear when G.D. was living in Toronto and when he moved back to Ottawa.

Wrestling magazines / programs

[136] T.D. recalled that G.D. gave him his wrestling magazine collection in 2002 or 2003. They stayed together in a milk crate until being turned over to the police in 2019.

First Breakdown

[137] G.D. described having a breakdown when living in Ottawa when he was about 32 years old, which would be 2005. Just before the breakdown, he had been living common-law with a girlfriend in downtown Ottawa. He had been in this relationship for 7-8 years. Just before the breakdown, he had left his girlfriend and was living with his cousin.

[138] According to G.D., around this same time, his brother T.D. told him that he and his wife brought their son into one of P.S.’s pet stores. P.S. was reported to have made a comment about T.D.’s young son, in that he resembled the [D] family. When T.D. told G.D. about this, G.D. said he gave his brother “shit” and told him never to bring the kids around P.S. According to G.D., this was one of the triggers for his first break down.

[139] At some point later, the timing of which was unclear, G.D., who was still living with his cousin in Ottawa, began to believe that people were coming to harm him or his family. He thought P.S. was sending people after them to silence him. He could not explain why he felt this way. At this point, he had not disclosed anything to anyone. He stated that he was in fear, as he thought P.S. was rich and powerful and that he was affiliated with people who had been released from jail. G.D. stated that he woke up feeling the walls were closing in. He felt that P.S. potentially got word of what he wanted to do to him and, instead of G.D. getting to him, P.S. would get to him or his family first. G.D. reached out to his cousin, but not to his other family members. G.D. was taken to the Ottawa Civic Hospital by his aunt and cousin. His brother T.D. and his wife showed up. He was at the hospital for the day and then returned home. He then went to counselling for a time. He stated that he opened up to a professional psychiatrist at the Ottawa Civic Hospital about the abuse and his belief that P.S. was sending people to hurt him. In cross-examination, he explained that he also opened up to his cousin about his true feelings and what had happened. His cousin kept this quiet from the rest of the family.

[140] According to G.D., the first time that he talked to the police about these events was just after this first breakdown. After leaving the hospital, the following morning, he believed that two Ottawa detectives came to his cousin’s house and sat with him at the kitchen table. It was a female and a male. He believed they were with the police as they had a clipboard with a sticker of the Ottawa police department. He told these two people about the sexual activity with P.S., however, nothing came of this meeting. This made G.D. think that things were “fake” and “life was a dream” as P.S. had told him. At that time, he wanted to either kill P.S. or kill himself.

[141] During the trial, D/Sgt Susan Stone accessed the Ottawa police occurrences related to the name of the complainant. The officer was able to locate 17 occurrences spanning from 1991 to 2006. She personally went into each occurrence but did not locate anything that had similar facts as reported by G.D. to the court. (See Exhibit 2A and 2B)

Move to Alberta

[142] Approximately 6 months after this incident in Ottawa, G.D. stated that he moved to Alberta. He estimated that he was 33 or 34 at the time, which would have been around 2006 or 2007. G.D. stated that he was trying to erase things to do with P.S., so he left the province to separate himself from the situation. He wanted to protect himself, so he would not end up in jail for murder.

[143] When G.D. arrived in Lethbridge, he was planning to transfer to Future Shop as this was the company that he worked for in Ontario, however, this fell through. He then got a job with another electronics company. He stayed with his ex girlfriend’s brother and wife in Lethbridge. G.D. agreed that this was a fresh start.

Second Breakdown

[144] G.D. estimated that his second breakdown occurred when he was between 33 and 36 years old, however, he did not know the exact year. He estimated that this was about 15 - 17 years prior to his testimony at the trial. He testified that he was “triggered” again when he thought he saw B.C. in the community he was living in. Again, G.D. started thinking that P.S. was sending people to hurt him and again went into “protect mode”. G.D. considered secretly leaving Alberta, coming to Ontario to harm P.S., and then returning to Alberta with out anyone knowing.

[145] G.D. was still living with his ex-girlfriend’s brother in Lethbridge when this second breakdown occurred. He was in the Lethbridge hospital for 2-2.5 weeks. At the hospital, G.D. stated that he told the head nurse and a psychiatrist about sexual abuse from P.S. and about wanting to hurt himself and P.S.

[146] At that point, on the hospital phone, G.D. testified that he opened up to his brother T.D. about everything for the first time. G.D. stated that he also wrote a 20-page note about speaking out, but he did not keep the note. He stated that it was at this time that his whole family started knowing. G.D.’s brother, T.D., encouraged him to go to police. G.D. stated that T.D. was aware that G.D. wanted to hurt P.S. and himself.

[147] T.D. was also asked about these events. He stated that this was the year that the Ottawa Senators went to the Stanley Cup Finals, which was 2007. He said leading up to the event, he had been receiving weird phone calls from G.D. from Christmas to about May or June. G.D. was always inquiring about T.D.’s kids and worried about the family, but would not say where his fear was coming from. T.D. stated that he had bought a parakeet from P.S. that December, at which time, P.S. had stated that his young son looked like G.D. T.D. said it was a good conversation. When he spoke to G.D. in Alberta and shared his conversation with P.S., he heard G.D.’s tone change. G.D. seemed to have no interest in P.S. whatsoever. After that, G.D. would call, acting paranoid, asking about the kids. His anxiety seemed to be building. T.D. agreed that he was asking G.D. constantly what was wrong. T.D. thought he was going through issues with a girlfriend at the time or that he smoked something he should not have.

[148] T.D. testified that he sold his hockey tickets and flew to Thunder Bay to meet G.D. who was driving back to make sure that the family was ok. T.D. knew that G.D. should not be driving. T.D. thought that G.D. was on drugs. T.D. told G.D. to stay in Thunder Bay and paid for the hotel until he arrived. When T.D. arrived, they drove back to Ontario together. On the way home, G.D. started talking about what had happened with P.S. T.D. did not seem to know anything about G.D.’s hospitalization. T.D. brought G.D. to a cousin’s house, as he was not sure whether it was safe to bring him to his house due to his erratic behaviour. T.D. encouraged G.D. to go to the police.

[149] G.D. came to Ontario for a short time. However, he stated that he felt that he could not stay in Ontario, turned around and went right back to Alberta. He estimated that he was back in Ontario for 6 months or less. His brother, T.D. continued to encourage him to contact the police.

New relationship in Alberta

[150] Eventually, G.D. started a new relationship in Alberta. In that relationship he had a stepdaughter. After meeting they moved to Edmonton. They were together for 14 years and married for over 12 years.

Relationship between P.S. and B.C.

[151] As for the relationship between P.S. and B.C., after B.C. left Tottenham in 1988, he went back to school in Mississauga. A short time later, he quit school, moved to Guelph and got a job at a meat packing facility. P.S. would go down to Guelph and bring him up to Tottenham on most weekends. About a year after B.C. had left Tottenham, P.S. and B.C. did commence a sexual relationship. P.S. stated that B.C. was close to 16 or was 16 years old at the time. B.C. stated that one night, when he was 16 or 17 years old, he “came on to him [PS]” and it just continued from there. B.C. lived with P.S. on and off throughout the years.

[152] In 2012, B.C. moved in with P.S. on a more permanent basis. At that time, they considered themselves “lovers” and that was known in Tottenham. They continued to have an open relationship up until about 6 or 7 years prior to this trial.

Phone call between G.D. and B.C. / Report to police

[153] According to G.D., at some point when G.D was married and living in Alberta, he received a phone call from B.C. at his residence in Fort Saskatchewan. G.D. stated that this was 30 years ago, but clearly this is wrong. He stated that this set off a trigger in him.

[154] He stated that he thought he was stronger when he returned to Alberta until B.C. called his house phone. He thought he recognized the number. According to G.D., B.C. said “you’re a family man now” and told G.D. that he was his “saviour”. G.D. asked if he was still at P.S.’s house, and when he realized that he was, he told B.C. to walk away from him. After that G.D. blocked the number. When the number called 3-5 times after that, he never answered it. It would say “warning, warning” when this number called. He then removed the house phone. He believed that B.C. got his number from Facebook because he had B.C.’s sister as a friend on Facebook.

[155] B.C. recalled that years later, he found G.D. on Facebook and found a phone number for him. He said that they talked a couple of times. He said the first couple of times they spoke, he was sober, and then one night he was drunk. B.C. said that one night G.D. called him and started saying that they should go after P.S. and have him charged. G.D. asked him to go along with him. B.C. said “what are you talking about”, “you’re crazy”, and hung up. At that point, B.C. and P.S. were in a relationship and he was living with P.S.

[156] G.D. stated that he went to the police very shortly after this call.

[157] G.D. provided a statement to Fort Saskatchewan RCMP on October 20, 2017 and gave a further statement to the OPP by telephone on December 30, 2017.

[158] G.D. and his wife were still living together at the time, but separated in 2018 and divorced in March 2020.

Arrest of P.S.

[159] Det. Cst. Smith ultimately reached out to P.S. At the request of the police, P.S. turned himself in and was arrested in April 2018.

Discussions between P.S. and B.C.

[160] According to P.S. and B.C., despite the relationship, B.C. did not know that P.S. and G.D. had engaged in sexual activity. B.C. became aware after P.S. was charged. P.S. stated that it was kept a secret as he promised G.D. that he would.

[161] B.C. lived with P.S. up until about 2 years prior to the trial, at which point he moved in with his fiancé.

[162] P.S. purchased a condo in Tottenham that he intended to rent and then move in to if he became more disabled. However, B.C. and his current girlfriend asked if they could rent it. P.S. gave them a deal on the rent and they presently rent that condo from him. B.C. still comes to his house once per week and stays over.

[163] P.S. stated that he did not talk to B.C. about what had happened at the trial, but did discuss the preliminary hearing with him. P.S. stated that B.C. was upset about the suggestion G.D. made that the three of them were engaged in sex. P.S. was very clear that he told B.C. what happened at the preliminary hearing, however, he never showed him the transcripts. P.S. admitted that he discussed the telephone call between B.C. and G.D. He stated that he had not talked to B.C. about the ladder incident, during which B.C. supposedly broke into his bedroom on Tottenham. P.S. stated that he had not put any pressure on B.C. in terms of his testimony in court. B.C. stated that he had not discussed the preliminary hearing evidence with P.S.

[164] B.C. stated that his relationship with P.S. currently is that he is a really good friend and that P.S. was able to make many things in his life possible. When asked if he still loved P.S., he said, “yes.”

SEXUAL ACTIVITY

[165] Both G.D. and P.S. testified that sexual contact occurred between the two of them and that the sexual contact was in the form of P.S. performing oral sex on G.D. However, the circumstances of these events were described differently by each of the men.

[166] G.D. described sexual activity occurring at Tottenham, when he lived there, as well as one further incident at the Chimo Hotel in Ottawa. [It should be noted that G.D. also testified that P.S. offered to dry him off on one occasion when he was coming out of the hot tub at Tottenham, although it would appear that there was no touching on this occasion.] G.D. described the sexual incidents as follows:

1. At Tottenham, in the summer of 1988, when G.D. was 15 years old, G.D. and P.S. had been sleeping in P.S.’s bed. G.D. woke up to P.S. giving him oral sex. It was just coming on morning. They were both naked, because P.S. got him to sleep naked a lot. G.D. believed it was normal to be in his bed naked. G.D. stated that he was in shock. Nothing was being said between them. G.D. did not say stop. G.D. stated that he had smoked hash and weed the night before. They had played a game at the table and then went to bed. G.D. stated that there had been no conversation about performing oral sex. G.D. stated that he did not give permission to P.S. to do this. B.C. was not present. G.D. confirmed that he knew what was happening as they had experimented as children when living at Queen Frederica. The oral sex continued until he ejaculated. G.D. then left the room and P.S. stayed in the room. G.D. did not suspect that P.S. was gay.

2. Also, while living at Tottenham, B.C., G.D. and P.S. were in the living room watching television. They smoked drugs and then P.S. started rubbing G.D.’s leg. P.S. then gave G.D. oral sex. After P.S. finished, he went to the bedroom and left B.C. and G.D. in the living room. G.D. stated that he did not consent to this oral sex, “he just did it”. When asked if he tried to stop it, he stated, “Unfortunately, I didn’t really stop him”. He said “We just laid back. We just laid there. We were just numb.” G.D. described that he felt helpless.

B.C. testified that he never witnessed sexual activity between the two of them and was unaware anything was occurring.

3. Also, while living at Tottenham, G.D. had ingested cocaine in the living room, by smoking cocaine through a cigarette. He stated that he was manipulated by using cocaine. P.S. then convinced B.C. and G.D. to come into his bedroom with him. P.S. gave G.D. oral sex and then gave B.C. oral sex. P.S. then asked G.D. to “tell me what you want me to do to [B].”. G.D. did not feel comfortable so he left the bedroom. He stated that it upset him because he did not understand why P.S. was putting it on him, making him feel like he was the one telling him what to do. Later when asked whether it was sexual content that P.S. was asking about, he said it was, and stated, “at one of them, he wanted me, he got me to say, do you want me to penetrate [B] in the anal area.” P.S. and B.C. stayed in the bedroom for more than an hour. Afterward, B.C. and G.D. smoked some hash. As for consent to the oral sex, G.D. stated, “It wasn’t really consenting, we just went in”. However, when asked whether he knew what was going to happen, he stated, “In hindsight, I guess we did”. He stated that he did not say no as “I knew it was the only way to get more drugs….”.

B.C. testified that this never happened.

4. G.D. described the fourth incident occurring at Tottenham when B.C. came back from Guelph. G.D. remembered watching the movie The Departed for the second or third time. G.D., B.C. and P.S. did cocaine that night, however he said that he was not really high, because the feeling was very short and would go quickly. P.S. came up to him, started rubbing his legs, and then gave G.D. oral sex. After the oral sex, P.S. grabbed his towel and pillow and went to the bedroom.

B.C. testified that he never witnessed sexual activity between the two of them and was unaware anything was occurring.

5. On one occasion, five or six months after leaving Tottenham, P.S. and G.D. spent the night together in a hotel in Ottawa. G.D. stated that this was while he was still in grade 9. P.S. called and asked if he wanted to meet up. G.D. did not ask why, as he stated, “I had different reasons to say yes”. He stated that he wanted to hurt P.S., wanted to stab P.S., because “he’s evil”. P.S. did not tell him what the plan was, and he did not know the plan. In any event, G.D. agreed to meet him. They went to the hotel. At the hotel, G.D. said he could not do what he wanted to do because there was an employee of the pet store in the hotel room, and this employee was there with another man who was not his partner. G.D. knew this employee. When asked why he stayed, he said that he and P.S. did more drugs that day, in that they smoked weed. He agreed that he did not have to stay and did not have to do drugs. G.D. stated that the room had two beds. The employee and this unknown man were in one bed and he was in the other with P.S. G.D. stated that he did not pay attention to what the two men were doing, even though there was just an end table separating the two beds. He did not see them having sex but eventually he stated that he guessed they were having sex. G.D. stated that P.S. performed oral sex on him in the hotel room. He stated that he was falling asleep and when he woke up, the oral sex was being performed on him. He had not spoken to P.S. about sex acts of any kind prior to going to sleep as that was “not in his mind set”. When asked whether he consented, he stated, “I was sleeping”. On that occasion, G.D. believe that he just stopped the act from continuing. No one ejaculated. G.D.’s father picked him up and he went home.

[167] When asked about his memory, G.D. stated that it probably happened more, but he was having trouble remembering as he had tried to block it out in order to forgive.

[168] G.D. admitted that he did get an erection when P.S. was touching him and that it made him feel embarrassed. He stated that he ejaculated each time and P.S. would swallow the ejaculate. G.D. did not know whether P.S. ejaculated during the act, as he did not see it.

[169] P.S. described the sexual interactions with G.D. differently. He stated that, in total, when G.D. was living at Tottenham, there were “probably about 3 times” that sexual activity occurred. P.S. described those events, in addition to the events at the Chimo Hotel, as follows:

1. While G.D. was living at Tottenham, P.S. stated that they had come out of the pool or hot tub. P.S. denied drying him off, although he did recall once that they were in the hot tub and G.D. had forgotten his towel and asked for one. P.S. joked and said “do you want me to wipe you off as well”, and they both laughed about it. He did not recall doing any drugs after the pool, although he said it was possible that he smoked marijuana and it was possible that he offered G.D. marijuana, although he said he did not remember doing that. They were lying on the carpet in the living room in front of the television. He stated that he had a habit of laying on the floor on a towel. He said that “the kids” used the couches. They were both lying on the floor facing each other. G.D. then asked about “gay subjects” and asked “what is it like to do this and that”. G.D. told P.S. that he had been with a girl. While they were talking for 15-25 minutes, G.D. had his hands down his pants, rubbing his penis. G.D. said “You think you want to do it with me?” P.S. stated that he was “caught up in the moment.” He said that G.D. “was willing at the time… he wanted me to do it, so I went ahead and did it with him.” When asked what he did specifically, he said that he “gave him a blow job.” P.S. stated that it took about 5 minutes. He stated that G.D. was “very horny and so was I”. He stated, “I have a habit of knowing when to climax at the same time” and so he ejaculated on the towel. P.S. stated that this was the “only sex I am into with guys” and that he gets joy out of “servicing” another. P.S. stated, “I said before I start having sex with him on that day… I said to him… ‘ok if it bothers you at all just push me away and stop me’. I says… because I still wasn’t sure that he wanted it.” When this comment was put back to P.S. in cross-examination, he stated that G.D. “wanted it after that conversation”. He said that it took him by surprise, because up to that point, he had not had a conversation that intense about gay life with G.D. P.S. stated that G.D. did not push him away during the oral sex, but rather he was smiling and said, “thank you”. G.D. then said, “Are you gonna make sure you don’t tell [B] about this?”. P.S. stated that he responded, “I don’t want to tell [B] about it and I don’t want you to either.”

It was suggested to P.S. that, at some point, he lost control, to which he responded that he did not lose control and that he is always in control of his sexual ability, but he said, “I got horny” with someone leading him on and with the questions he was asking. He agreed that even though he was not interested in G.D. sexually at that time, a few questions changed his mind and he decided to give him oral sex. P.S. stated, “By the time we got around to doing it, he had already pretty much convinced me that he wanted it”.

2. Within four days of the first time, there was another sexual encounter. P.S. did not remember too much about this instance. He recalled that it again occurred on the living room floor. R.S. came home unexpectedly, gave a little smile as he walked by them, and went into his bedroom. At that time, P.S. was giving G.D. oral sex, however it was in a different position from the first time. On this occasion, G.D. was on his knees thrusting his penis into P.S.’s mouth. He stated that G.D. did not seem bothered by R.S. walking in on them.

In cross-examination, P.S. stated that this could have been a week or two after the first incident.

As for whether G.D. used any drugs prior to this incident, he stated that he may have but he did not remember. He stated that he did not remember doing marijuana with G.D. very often.

He stated that he remembered they were alone in the house and that he was not expecting anyone. He thought that he locked the front door, so that no one would come in accidentally. When asked whether he knew the second act was going to happen and that was why he locked the door, he stated, “possibly”.

He stated that it was not his idea to engage in sex with G.D.

He did not recall exactly how the event started and ended, but he did remember what they were doing and that it ended about 10 minutes after R.S. came in. He did not recall if the pool or hot tub was involved.

As for whether he was interested in G.D. sexually at that time, he stated that at that point, sex was not a big deal. He stated, “He had already accepted it for what it was and wanted to do it again.” He was not really sexually interested. He said that if someone is interested, it did not take much to arouse him.

3. P.S. described another incident where G.D. came into his bedroom. B.C. was sleeping in bed across the hall. P.S. woke up when he heard his bedroom door open. G.D. was standing there with an erection, but with his shorts on. P.S. stated that he was not in the mood and told G.D. that B.C. was just across the hall, and that he was “not doing this right now”. He stated, “That was the last time I remember….well not even doing it….but after that, I just wasn’t sure whether it was a good thing to do anymore.” He stated, “It wasn’t turning me on anymore”. P.S. did not have any sexual activity with G.D. on this occasion and sent him back to his room.

4. As for the meeting at the Chimo Hotel in Ottawa, P.S. did not have a clear memory of the events, but believed that he did have sex with G.D. on that occasion. He stated that he did not pick up G.D., as he was driving a 5-ton truck. He thought that G.D. met him after work at the hotel. He believed that he told him that his manager may be there with another person. P.S. was pretty sure it was G.D.’s idea to meet because he said he would not have suggested it given his manager was there with another man. As for drugs, he said that he may have had hash or marijuana, but he did not have cocaine as he still was not doing cocaine at that point in his life.

P.S. stated that he vaguely remembered Ottawa and that he only remembered it at all when the officer brought it up upon his arrest. He could not remember the sexual activity, but did not deny that they probably had sex that day.

[170] P.S. stated that he had no reason to believe that B.C. suspected anything between them because B.C. was not there when these events occurred.

[171] P.S. stated that he thought sexual activity happened three times, or possibly four, but not more than three or four times. He stated that the three or four times that it happened, they would watch a movie after, and he would then go to bed. P.S. stated that all three times were in the living room in front of the television on the carpet. They never had sex in his bedroom. In cross-examination, P.S. stated that he did not remember a third incident of sex, but he believed it was probably three incidents.

[172] According to P.S., G.D. did not spend time in his bed in Tottenham. G.D. did not sleep with him at all. He stated, “I didn’t want him in my bedroom. I wasn’t interested in sleeping with him – ever”. He said that G.D. never slept in his bed with or without clothes.

[173] P.S. adamantly denied initiating sexual activity while G.D. was asleep.

[174] According to P.S. he was not interested in G.D. sexually until the first time they had sexual activity.

[175] P.S. stated that he was probably worried about G.D.’s parents finding out about the sexual activity, as he did not think they would understand.

[176] P.S. believed that G.D. was “bi-curious” or possibly gay.

[177] B.C. was not aware of anything sexual going on that summer between P.S. and G.D. He did not see P.S. engaged in any sexual activity that summer. He had no inkling that G.D. was engaged in sex with P.S.

POSITION OF THE PARTIES

[178] It was the defence position that the Crown has failed to prove either of the charges beyond a reasonable doubt. With respect to sexual assault, the Crown would have to prove the absence of consent beyond a reasonable doubt, or that the consent was invalidated by one of the circumstances in section 265(3) or 273.1(2) and they have failed in that regard. With respect to sexual exploitation, the Crown would need to prove a position of trust or authority or that G.D. was in a relationship of dependency at the relevant time, and none of these things have been proven beyond a reasonable doubt.

[179] According to the defence, P.S. appeared to be accurately trying to describe the events, and his evidence made it clear that G.D. initiated everything. The evidence of P.S. was at times incriminating giving it the ring of truth. G.D. and B.C. were at the residence in Tottenham of their own free will to take advantage of the benefits of that household. There was no position of trust and they were not dependent on P.S. If they chose to go home, they could go at any time. P.S. was never interested in having G.D. in his bed, in fact, he had no real sexual interest in G.D. The sexual activity was simply a few occurrences in the living room which were initiated by G.D. G.D. was sexually curious and that informed the acts that occurred. With respect to whether P.S. was in a position of trust or whether the relationship was one of dependency, the defence conceded, however, that P.S.’s understanding of the relationship was not determinative.

[180] On the other hand, the defence submitted that G.D. was not a credible or reliable witness. According to the defence, G.D. may have convinced himself of a history that works for him, which helped him overcome the shame of these events, however, he was not being truthful or accurate. It is understandable that he would want to tell himself that he only had subsequent contact with P.S. to stab or kill him, however, this was not capable of belief. It was submitted that it would simply be unsafe for the court to rely on the evidence of G.D.

[181] The position of the Crown was that this was a relationship of trust and that, when G.D. resided with P.S., this became a relationship of dependency. With respect to the charge of sexual exploitation, there was no question that G.D. was a young person at the time, in that he was at least 14 and not yet 18 years old. Further, there was no question that there was contact for a sexual purpose, as this was admitted by P.S. The question was simply whether there was a position of trust or relationship of dependency at the time. The Crown submitted that, for sexual exploitation, they do not need to show any nexus between the relationship and the contact. The Crown suggested that even on the evidence of P.S., a relationship of trust and dependency was made out.

[182] With respect to sexual assault, the position of the Crown was that there was no consent, or, alternatively, that the consent was vitiated in accordance with s. 273.1(2)(c). [During a subsequent teleconference at the request of the Court, the Crown conceded that s. 273.1 had no application in this case, as it was not in force at the relevant time.] The Crown submitted that the evidence of G.D. was corroborated, in large part, by the evidence of other witnesses, including the evidence of P.S. himself. Further, the Crown cautioned the court against relying on the evidence of P.S., given that he had a fairly clear recollection of most of the events, but yet when it came to the sexual activity, he curiously had difficulty remembering the details.

[183] The Crown submitted that the essential elements of both charges have been proven beyond a reasonable doubt.

ANALYSIS

Avoiding stereotypes when assessing evidence

[184] This case requires this court to make assessments of credibility and reliability. When making assessments of credibility and reliability the court must constantly keep in mind that people react differently. In R. v. A.R.J.D., 2018 SCC 6, the Supreme Court of Canada dismissed an appeal, substantially for the reasons of the majority of the Alberta Court of Appeal. In those reasons, the Court of Appeal had a lot to say about avoiding stereotypical thinking. In R. v. A.R.J.D., 2017 ABCA 237, the Court stated in part as follows:

[44] Stereotypicality is never a legitimate anchor on which to tie crucial credibility assessments in the context of sexual assaults. And, counter-stereotypicality must never translate to less credibility.

[45] Moreover, although it is trite that reasonable doubt leading to an acquittal can rest on an “absence of evidence”, the absence of evidence found here—no evidence of avoidance or change in behaviour—appears to be based solely on the trial judge’s impermissible reliance on his own unmet expectation, rather than on a clearly articulated and full assessment of the complainant’s police statement or trial testimony. In the result, the trial judge misdirected himself by basing his credibility assessment of the complainant not on a proper evidentiary foundation, but on inappropriate judicial stereotyping….

[57] “Assumptions about complainants and their behaviours in particular circumstances have plagued the law of sexual assault for generations . . . There was a time when it was often assumed that a complainant . . . would report the assault immediately, and would thereafter not associate with the perpetrator. In recent years many of the stereotypes . . . have been set aside”: R v Caesar, 2015 NWTCA 4 at para 6; see also R v Hajar, 2016 ABCA 222, R v Barton, 2017 ABCA 216. To the extent that such stereotypes or myths are relied upon in assessing a complainant’s credibility, an error of law will result, mandating a new trial: R v Wagar, 2015 ABCA 327.

[58] In other words, absence of avoidant behaviour or a change in behaviour as a generalization is logically irrelevant and as such, cannot form the basis of a credibility assessment leading to reasonable doubt—because we know that all sexual assault victims behave differently. This is all the more so when dealing with child victims who often fail to make early disclosure and may attempt to normalize behaviour for any number of reasons…

[60] “As has frequently been noted, speculative myths, stereotypes, and generalized assumptions about sexual assault victims . . . have too often in the past hindered the search for truth and imposed harsh and irrelevant burdens on complainants in prosecutions of sexual offences. See Seaboyer, [infra], at p. 634”: R v Mills, [1999] 3 SCR 668 at para 119, 1999 CanLII 637 (SCC). The essence of this dicta is that judges must be hyper-vigilant against the incursion of stereotypical analyses or assumptions into their judicial reasoning, not any less so in cases of sexual assault that rest on the credibility of a child complainant. And to paraphrase one learned author, it would surely add judicial insult to criminal injury to tell a child complainant that their post-victimization behaviour is the sole reason for the abuser’s acquittal.

[70] The search for avoidant behaviour or a change of behaviour in a sexual assault complainant, particularly a child, is in its essence nothing more than a search for confirmatory evidence, without which a complainant becomes less worthy of belief. The problem with such a search is that there is no reliable support for the presumption that a sexual assault victim will invariably, more often than not, or even to a statistically meaningful degree, display any predictable behaviours following the abuse. Indeed, the converse may well be true: that a vast proportion of child sexual abuse victims are asymptomatic in the post-victimization period both before and after disclosure.

[185] This court has kept these cautions clearly in mind when conducting the assessment of the evidence in this case.

Assessment of the Evidence of P.S.

[186] Given that P.S. has testified, this court has considered and followed the principles established in R. v. W.(D.), 1991 CanLII 93 (SCC), [1991] 1 SCR 742, which are as follows:

1. First, if this court believes the evidence of the accused, there must be an acquittal;

2. Second, if this court not believe the testimony of the accused but is left in reasonable doubt by it, there must be an acquittal; and

3. Third, even if this court is not left in doubt by the evidence of the accused, the court must ask itself whether, on the basis of the evidence which it does accept, the court is convinced beyond a reasonable doubt by that evidence of the guilt of the accused.

This court must not, and does not, decide this case by choosing between competing versions of events. As recently stated in R. v. MacKenzie, 2020 ONCA 646 at para 22:

[22] A jury cannot determine guilt simply by deciding which of two competing versions of the relevant events it believes. An accused must be acquitted if the jury has a reasonable doubt on any of the essential elements of the offence, even if the jury does not believe the accused’s version of events: R. v. W.(D.) (1991), 1991 CanLII 93 (SCC), 63 C.C.C. (3d) 397; R. v.O.M., 2014 ONCA 503, at para. 42.

[187] It must be noted, however, that in certain circumstances, such as in this case, the W.D. instruction has some limitations and must be modified.

[188] With respect to the offence of sexual exploitation, it is not simply the view or opinion of P.S. that he was not in one of the relevant roles that is determinative of the question of whether a relationship of trust, authority or dependency existed. While the view of P.S. is a factor to consider in all of the circumstances, it is only one factor. Determining whether a relationship of trust, authority or dependency existed requires the court to look at all of the facts and circumstances.

[189] Further, in relation to the offence of sexual assault, it is not P.S.’s view that this was consensual that is determinative. As to the actus reus of the offence, consent lives in the subjective mind of the complainant. The Court must determine whether the Crown has proven beyond a reasonable doubt that there was no consent. If this is demonstrated, the court then shifts its focus to the mens rea of the offence, being whether there was an intention to touch and knowing of, or being reckless of or willfully blind to, a lack of consent on the part of the person touched. The court may then consider whether the accused had an honest but mistaken belief in communicated consent. In order to successfully advance this position, the accused must have taken steps, that are both subjectively and objectively reasonable, to ensure that the complainant was consenting. See: R. v. Barton, 2019 SCC 33, [2019] S.C.J. No. 33, para. 93-104

Sexual Exploitation

[190] Section 153 of the Criminal Code came into force on January 1, 1988. At the relevant time, it read as follows:

153(1) Every person who is in a position of trust or authority towards a young person or is a person with whom the young person is in a relationship of dependency and who

(a) for a sexual purpose, touches, directly or indirectly, with a part of the body or with an object, any part of the body of the young person, or

(b) for a sexual purpose, invites, counsels or incites a young person to touch, directly or indirectly, with a part of the body or with an object, the body of any person, including the body of the person who so invites, counsels or incites and the body of the young person,

is guilty of an indictable offence and liable to imprisonment for a term not exceeding five years or is guilty of an offence punishable on summary conviction.

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

The section, as it read at that time, did not include an “exploitative” relationship as it does today.

[191] To prove that P.S. is guilty of sexual exploitation, the Crown is required to prove the following essential elements beyond a reasonable doubt:

1. That G.D. was a “young person” at the time of the event – a “young person” was someone who was 14 years of age or more, but less than 18 years old;

2. That P.S. touched G.D.;

3. That the touching was for a sexual purpose; and

4. That P.S. was in a position of trust or authority towards G.D. when the sexual acts took place, or P.S. was a person with whom G.D. was in a relationship of dependency.

[192] The first three elements are easily made out in this case. There is no question that G.D. was at least 14 and under the age of 18 when the sexual activity occurred. Further, there is no question that P.S. touched G.D. and that the touching was for a sexual purpose. While the circumstances were described differently, both the complainant and the accused testified that P.S. performed oral sex on G.D.

[193] The nature of the relationship at the relevant time is the remaining and crucial question for this court to determine. To narrow the issues even further, the Crown does not allege a position of authority existed in this case. While the Indictment does allege a position of authority as part of the sexual exploitation count, this was not the submission made by the Crown. The focus of the Crown’s argument was that this was a position of trust which led to a relationship of dependency when G.D. moved to the residence in Tottenham.

[194] To determine whether any particular relationship is captured by s. 153 of the Criminal Code, the court must consider all of the circumstances. It requires an objective assessment of the factual situation that existed at the time of the events and leading up to the events. It is the essence of the relationship between the complainant and the accused which must be objectively examined. The subjective view of the parties to the relationship, or third parties, is relevant, but not determinative.

[195] In R. v. S.(P.), [1993] O.J. No. 704 (Gen. Div.), Justice Blair discussed the difference between a position of trust and a position of authority and provided some guidance on understanding these concepts. The court stated:

[36] One needs to keep in mind that what is in question is not the specialized concept of the law of equity, called a "trust". What is in question is a broader social or societal relationship between two people, an adult and a young person. "Trust", according to the Concise Oxford Dictionary (8th ed.), is simply "a firm belief in the reliability or truth or strength of a person". Where the nature of the relationship between an adult and a young person is such that it creates an opportunity for all of the persuasive and influencing factors which adults hold over children and young persons to come into play, and the child or young person is particularly vulnerable to the sway of these factors, the adult is in a position where those concepts of reliability and truth and strength are put to the test. Taken together, all of these factors combine to create a "position of trust" towards the young person.

[37] I take a "position of trust" to be somewhat different than a "position of authority". The latter invokes notions of power and the ability to hold in one's hands the future or destiny of the person who is the object of the exercise of the authority: see, R. v. Kyle (1991), 1991 CanLII 11758 (ON CA), 68 C.C.C. (3d) 286 (Ont. C.A.). A position of trust may, but need not necessarily, incorporate those characteristics. It is founded on notions of safety and confidence and reliability that the special nature of the relationship will not be breached.

These passages have been referred to by other courts many times since, and were approved of by the Supreme Court of Canada in R. v. Audet 1996 CanLII 198 (SCC), [1996] 2 S.C.R. 171.

[196] In R. v. Galbraith, 1994 CanLII 215 (ON CA), [1994] O.J. No. 808 (C.A.), the accused was charged with sexual exploitation of a young person contrary to s. 153(1)(a). The only live issue at trial was whether the complainant was in a relationship of dependency with the accused. The accused was convicted at trial, the trial judge having found that a relationship of dependency existed because the accused provided the complainant with the necessaries of life. However, the appeal by the accused was allowed and a verdict of acquittal was substituted. The court stated:

[18] In my view, "relationship of dependency", the third prohibited relationship in s. 153 of the Code, must be looked at with reference to the other two prohibited relationships, namely, positions of trust or authority. My first thought was that "dependency" was the inverse of the other two relationships and described the position of the person subject to feelings of trust or the object of the authority. On reflection, however, it seems to me that Parliament, by using the word "dependency", must have added a category which is ejusdem generis to the first two. That is to say, something that was an extension of the first two categories which have become somewhat circumscribed by traditional legal definition. In my view, what is contemplated by a relationship of dependency is a relationship in which there is a de facto reliance by a young person on a figure who has assumed a position of power, such as trust or authority, over the young person along non-traditional lines. Sexual relations are prohibited in relationships of trust, authority and dependency because the nature of the relationship makes the young person particularly vulnerable to the influence of the other person. Under these circumstances it has been determined that any sexual activity, even where it is consensual, involves taking advantage of a person in need of protection and merits society's condemnation. Because a relationship of dependency is a de facto one which can only be determined after due consideration of all the circumstances, I believe that the jurisprudence will have to develop on a case-by-case basis to retain the flexibility that the phrase "relationship of dependency" was intended to provide.

[197] In coming to its conclusion, the court in Galbraith, at paras. 15-16, considered a number of factors including:

• whether the relationship was exploitative;

• whether there was an obvious power imbalance;

• any suggestion of violence or coercion on the part of the appellant or any indication that he exercised control or domination over the complainant;

• any educational disparity;

• any evidence of drug or alcohol addiction, and whether the appellant took advantage of such an addiction;

• whether the appellant forced the complainant to work;

• whether the complainant was taken away from home, school, parents or friends; and

• whether the complainant had a choice to live with the appellant.

The Court made it clear that the relationship of trust, authority or dependency, must exist independently of the sexual relationship. See: Galbraith, para. 14; R. v. D.M., 2019 ONSC 3911 at para. 18.

[198] In R. v. Audet, 1996 CanLII 198 (SCC), [1996] 2 S.C.R. 171, the accused was a 22-year-old physical education teacher who was charged with sexual exploitation of a 14-year-old female student. The sexual contact was alleged to have occurred at the start of summer vacation. The trial judge acquitted Mr. Audet on the basis that he was not in a position of trust or authority towards the complainant at the time of the incident. This was upheld on appeal. However, at the Supreme Court of Canada, the verdict of acquittal was set aside and a verdict of guilty was substituted. This was the first time the Supreme Court of Canada had the opportunity to analyze the meaning and scope of s. 153(1) of the Criminal Code. The court stated as follows:

[13] In my view, the appeal must be allowed and a verdict of guilty entered. First of all, McIntyre J.'s position, with which the majority of the Court of Appeal agreed, implies that the Crown must prove, as a constituent element of the offence of sexual exploitation, that the accused actually exploited his or her position of trust or authority towards the young person or the young person's relationship of dependency with the accused. An analysis of the means chosen by Parliament to meet the objective it was pursuing by creating the offence of sexual exploitation and of the legislative context of s. 153(1) shows that this approach is incorrect and contrary to previous judgments on this matter. I therefore find that the trial judge erred in law...

[18] In my view, the accused is in fact arguing that there is another constituent element to the offence of sexual exploitation, namely that the accused, in performing the alleged acts, abused his or her special position vis-à-vis the young person, a position deriving from the fact that the accused was in a position or relationship referred to in s. 153(1).

[19] In my view, the respondent's argument is incorrect. This interpretation cannot be reconciled with s. 150.1(1) of the Criminal Code, which provides that the young person's consent is not a defence to a charge of sexual exploitation, because requiring such proof of exploitation would amount to implicitly recognizing that the quality of consent is somehow relevant in such a context. The interpretation proposed by the respondent suggests that the means chosen by Parliament to meet its legislative objective was to criminalize the abuse or exploitation by persons in a position or relationship mentioned in s. 153(1) of their position for the purpose of engaging in one of the prohibited activities. This is not the case. Adopting such an interpretation would make the offence of sexual exploitation totally irrelevant by confusing the objective of the provision and the standard adopted by Parliament.

[22] The Code thereby specifically provides that, for the purposes of ss. 271, 272 and 273, the exercise of authority (s. 265(3)(d)) and the abuse of a position of trust, power or authority (s. 273.1(2)(c)) will vitiate consent. While conscious of the minor differences in terminology in s. 153(1), s. 265(3)(d) and s. 273.1(2)(c), I note that in most if not all cases in which the evidence shows that an accused in a position or relationship referred to in s. 153(1) with respect to the complainant actually abused his or her position in relation to the complainant to obtain the alleged sexual favours, the accused will at least have committed a sexual assault -- a more serious offence -- against the young person, since ss. 265(3)(d) and 273.1(2)(c) provide that there is no consent in such a situation. The interpretation proposed by the respondent therefore leads to a rather absurd situation. The offence provided for in s. 153(1) would be rendered totally irrelevant, since almost all the situations covered by s. 153(1) of the Criminal Code would in any event be covered by s. 271, 272 or 273, as the case may be. The offence of sexual exploitation would ultimately add nothing. Moreover, a person in a position of trust or authority towards a young person, or with whom the young person is in a relationship of dependency, would commit a less serious offence by abusing his or her privileged position to obtain sexual favours from a young person than by doing the same thing in relation to an adult. It is patently obvious that such an interpretation is totally at odds with Parliament's objective in passing s. 153 of the Code.

[23] Clearly, Parliament wanted to afford greater protection to young persons. It chose harsher means by criminalizing the activity itself, regardless of whether it is consensual (s. 150.1(1) of the Code), in so far as it involves a person who is in a position or relationship referred to in s. 153(1) with respect to the young person. As Woolridge J. eloquently stated in Hann (No. 2), supra, at p. 36:

The implication from the wording of s. 153 is that notwithstanding the consent, desire or wishes of the young person, it is the adult in the position of trust who has the responsibility to decline having any sexual contact whatsoever with that young person. [Emphasis added.]

It thus seems evident to me that the respondent's argument is incorrect and that the Crown does not have to establish that the accused actually abused his or her position towards or relationship with the young person in order to obtain the young person's consent to the alleged sexual activities.

[26] Accordingly, I decline to find that the Crown is required to prove, for the purposes of s. 153(1) of the Code, that the accused abused his or her position of trust or authority towards or relationship of dependence with the young person.

It is clear in Audet, for the reasons stated, that the Crown is not required to establish a nexus between the relationship and the activity, only that the relationship existed at the relevant time.

[199] As for determining the true nature of the relationship, the court in Audet provided the following guidance:

[35] The French word "confiance", according to Le Grand Robert, is a belief in or firm expectation of something, or faith in someone, and the confidence that results therefrom. In English, the word "trust" can have various meanings, especially in a legal context. However, considering that Parliament used the word "confiance" in the French version, I doubt that the word "trust" as used in s. 153(1) refers to the concept as defined in equity. I therefore agree with the reservations expressed by Blair J. "Trust" must instead be interpreted in accordance with its primary meaning: "[c]onfidence in or reliance on some quality or attribute of a person or thing, or the truth of a statement". The word "confidence" is defined as follows: "[t]he mental attitude of trusting in or relying on a person or thing; firm trust, reliance, faith".

[36] I would add that the definition of the words used by Parliament, like the determination in each case of the nature of the relationship between a young person and the accused, must take into account the purpose and objective pursued by Parliament of protecting the interests of young persons who, due to the nature of their relationships with certain persons, are in a position of vulnerability and weakness in relation to those persons.

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

[200] In R. v. Aird, 2013 ONCA 447, the appellant appealed his conviction on two counts of sexual exploitation. The appellant, who was 28 years old, was hired as a tutor for the complainant, who was 17 years old. The trial judge found that the sexual relationship started while the tutoring was occurring but continued even after the tutoring ended. The Court stated:

[24] Section 153(1) thus bans any sexual contact between an adult and a young person within any of the four relationships enumerated in the section. That the young person consents, does not appear vulnerable, or does not subjectively view the relationship as one of trust, authority, or dependency or as exploitative is irrelevant.

[27] Parliament chose not to specify the relationships that could constitute relationships of trust under s. 153(1), likely for two reasons: because of the varied circumstances in which these relationships can arise; and because of the “very fact specific nature of such an inquiry”: see R. v. P.S., [1993] O.J. No. 704 (Gen. Div.), at para. 31; aff‟d R. v. Sharma, [1994] O.J. No. 3775 (C.A.).

[28] The considerations that bear on whether a relationship comes within s. 153 flow from the obvious purpose of this section: to protect a young person who is vulnerable to an adult because of the imbalance in their relationship. With this purpose in mind, the courts have identified several considerations relevant to an assessment of whether a relationship of trust exists. They include:

• The age difference between the accused and the young person;

• The evolution of their relationship;

• The status of the accused in relation to the young person;

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

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

See R. v. Audet; R. v. C.D., [2000] O.J. No. 1667 (C.A.). See also R. v. D.E., [2009] O.J. No. 1909 (S.C.).

[29] No one consideration is determinative. But each one may play a role…

Clearly, this is a factual determination, which takes all of the circumstances into account, and which is determined on a case by case basis.

[201] In R. v. Tombs, 2017 ONSC 2625, it was alleged that the accused, who was 54 years old at the relevant time, had a sexual relationship with the complainant, who was 16 years old at the time. The sexual activity commenced after a relationship had broken down between the accused and the complainant’s mother. In considering the concept of “position of trust”, the court relied heavily on the guidance from Audet, and stated as follows:

[36] On the basis of the above, the following factors are relevant to the determination of whether the accused is in a position of trust:

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

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

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

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

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

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

[37] …A relationship of dependency may end when the adult is no longer providing for the young person. Trust is different. Trust speaks to a subjective bond between the adult and the young person. It attaches to the person, him or herself, rather than his/her position or role. Whereas authority and dependency are defined by external circumstances, trust has an internal component. It represents an emotional attachment; a faith that the adult would not act contrary to the child’s interests…

[38] The nature of trust suggests that it may have a certain persistence. Because it attaches to the person, rather than the relationship, it may continue even after the terms of the relationship have changed. This is a determination to be made on a case-by-case basis.

See also, D.M. at para. 34, which provides some factors to consider, including biological and functional age, background of the relationship, relative status of the parties, degree of control, influence or persuasion, expectations of affected parties, and circumstances of vulnerability.

[202] It is clear from the legislation and case law that:

1. Consent is not a defence to this charge;

2. The Crown need only prove one of the relationships, whether it be trust, authority, or dependency;

3. The Crown is not required to show any nexus between the relationship and the sexual contact, other than the relationship was in existence at the relevant time; and

4. The determination of whether such a relationship exists requires a fact specific, case by case analysis, that must be conducted by looking at all of the circumstances of the case.

[203] Having considered the totality of the circumstances in this case, it is the view of this court that P.S. was in a position of trust toward G.D. at the relevant time. There are several factors that have contributed to this conclusion, including the following findings of fact, none of which on their own are determinative:

1. There is a 23-year age difference between G.D. and P.S. This is by no means determinative, but rather one factor to consider in the analysis. The cases remind us not to jump to conclusions based on the age difference alone. See: R. v. D.B.L., 1995 CanLII 2632 (ON CA), [1995] O.J. No. 2775 (C.A.)

2. Around the time G.D. and P.S. first met, G.D. was a primary school student with a paper route and P.S. was a business owner of a pet store. Their relative status in life was strikingly different.

3. G.D. did not have an adult male role model in his life, as his father was not regularly present.

4. Around the time G.D. was 13 or 14 years old, G.D. and P.S. recognized each other at a wrestling match – an interest which they both shared.

5. P.S., the only one of the two of them with a driver’s licence, offered to drive G.D. to the wrestling matches after that point. They then attended most of the matches together, with P.S. driving them to the locations.

6. According to G.D.’s mother, P.S. offered to take G.D. to wrestling and get him home safely. She trusted him.

7. P.S. would buy food or snacks for G.D. on his way to or at the wrestling matches.

8. G.D. wanted to attend Gold’s Gym in order to get in shape for his desired wrestling career, however, he was not old enough to obtain a membership on his own. G.D. also seemed aware that some of the wrestlers attended that gym when they were in town. P.S., who already had a membership, arranged for G.D. to attend with him and also for G.D. to continue to attend even after P.S. stopped attending.

9. By attending Gold’s Gym, G.D. was able to find out where the wrestlers stayed when they were in town.

10. PS., the only one of the two of them with a driver’s licence, was able to drive the two of them to the hotel where the wrestlers stayed in order to meet the wresters.

11. In order to get closer to the wrestlers, P.S. purchased beer to hand out to the wrestlers. G.D. was not old enough to purchase alcohol at the time.

12. P.S. was aware that G.D. wanted to be a wrestler, although he did not know how serious he was. P.S. engaged in conversation with G.D. about his wrestling career, the two of them coming up with a “stage name” and the idea that P.S. would be his “make believe manager”. P.S. agreed that he did not discourage G.D. and in fact would have supported him if he was serious.

13. G.D. and P.S. took a weekend trip to wrestling matches in Hamilton, London and Toronto.

14. G.D.’s mother was looking into getting a big brother for G.D., through the Big Brothers Association, but because of G.D.’s relationship with P.S., this did not happen as G.D. felt that P.S. filled that role.

15. As P.S. was moving to Tottenham, there was some discussion between P.S., G.D. and B.C. about P.S. building a wrestling ring for them to practice in.

16. After G.D. moved to Ottawa, where he was unhappy, there was a discussion between P.S. and G.D’s family about G.D. moving in with P.S. in Tottenham and going to school in the area. G.D. had his mother’s permission to live in Tottenham with P.S. P.D., G.D.’s mother, said that she trusted P.S. “100%” and said, “if you’re going to look after him, fine”.

17. P.S. called the school to inquire about what could be done for G.D., and also B.C., to go to school in his area.

18. P.S. drove G.D. and B.C. to the school to register, and waited in the hallway, looking around the school, while they registered.

19. The home address that the school had was P.S.’s residence in Tottenham, as this allowed them to attend that school.

20. When they missed school on a couple of occasions, P.S. drove them to school, albeit reluctantly.

21. P.S. cautioned B.C. and G.D. that they had to go to school with the school bus themselves, that they should not “fool around”, “don’t miss classes and write your own notes” as this could result in them getting kicked out of school and going back home.

22. P.S. was concerned about G.D. and B.C. using cocaine at his residence and tried to stop it from happening.

23. P.S. was concerned about G.D. and B.C. drinking at his residence, although this court accepts that P.S. gave in to B.C.’s requests to purchase alcohol for him.

24. P.S. shared his marijuana and hash with G.D. from time to time.

25. G.D. stated that he looked at P.S. as in a “parent role”.

26. G.D. and B.C. did not pay rent to live in the Tottenham residence.

27. P.S. bought the groceries and brought them home.

28. G.D. worked for P.S., bagging gravel and shavings. Even though not required to, P.S. provided this opportunity for G.D. to earn some money.

29. P.S. made the house rules. G.D. and B.C. had to clean up after themselves, such as put the dishes in the dishwasher before he came home.

30. P.S. would cook on the weekends, and on occasion, another friend would come in and cook meals for them.

31. P.S. attempted to help G.D. and B.C. learn to drive a manual transmission car.

32. P.S. would drive G.D. and B.C. to Canada’s Wonderland and pick them up at the end of the day.

33. P.S. would give G.D. and B.C. a bit of financial advice, such as encouraging them to buy GICs.

34. P.S. admitted that G.D. would have come to him for advice, however, he did not remember him asking for advice.

35. P.S. stated that he was aware that G.D. was not doing well in school, suggesting that he had knowledge of such things.

36. P.S. referred to B.C. and G.D. as “kids” a number of times in his testimony.

[204] This court accepts that B.C. and G.D. were not required, forced, or pressured to live with P.S. in Tottenham. It was their choice and they could leave anytime they wanted to, and in fact did leave when they so desired. G.D. and B.C. appeared to take full advantage of the benefits of living in the home of P.S., such as access to a pool and hot tub, access to food and shelter, access to marijuana and hash, work as they desired it, and the ability to attend school together. However, this does not change the nature of the relationship that had been established over years and certainly existed at that time.

[205] This court has no doubt that P.S. was in a position of trust toward G.D. at the time the sexual activity occurred in 1988 in the Tottenham home. G.D. looked to P.S. as the male role model in his life. He came to rely on P.S. to take him to wrestling and to meet the wrestlers. He came to rely on P.S. to support his desire to become a wrestler. He came to rely on P.S. to support his wish to attend school in a different location, by providing him with housing and food. It would appear that G.D. even sought out information from P.S. when it came to his sexual curiosities.

[206] It is the view of this court that P.S. was clearly the adult in this relationship and that he had influence over G.D. He assisted G.D. in all aspects of his life for a period of time. He was the dominant adult male role model in his life for a number of years, as G.D.’s biological father was absent at the beginning. This commenced as a friendship, where they had a common interest in wrestling. G.D. was very interested in wrestling, an interest that the rest of his family did not seem to share, at least not to that extent. P.S. shared this same passion and was able to make things possible for G.D. that he would not have been able to do on his own, such as meeting and engaging with wrestlers. P.S. appeared to listen to G.D.’s interest in becoming a wrestler and did lend support to his interest. P.S. had a lot to offer G.D. The trust that developed in those early days persisted and became more intense when G.D. moved to Tottenham. It is the view of this court that the trust relationship turned into a relationship of dependency when G.D. moved into the home of P.S., at which time there was a de facto reliance by G.D. on P.S. for all aspects of his life.

[207] In my view, when G.D. made the suggestion of sexual activity, it was up to P.S. to deny that request. This court accepts that G.D. was sexually curious and sexually aroused, but given the nature of this relationship, it was up to P.S. to tell him no.

[208] P.S. is guilty of count 1 – sexual exploitation.

Sexual Assault

[209] With respect to the offence of sexual assault, the Crown must prove, beyond a reasonable doubt, that:

1. P.S. intentionally applied force to G.D.;

2. G.D. did not consent to the force that P.S. intentionally applied;

3. That P.S. knew that G.D. did not consent to the force that P.S. intentionally applied; and

4. The force that P.S. intentionally applied took place in circumstances of a sexual nature.

[210] In Barton, the court recently provided a concise summary of what is required to be proven in a sexual assault case:

[87] A conviction for sexual assault, like any other true crime, requires that the Crown prove beyond a reasonable doubt that the accused committed the actus reus and had the necessary mens rea. A person commits the actus reus of sexual assault "if he touches another person in a sexual way without her consent" (R. v. J.A., 2011 SCC 28, [2011] 2 S.C.R. 440, at para. 23). The mens rea consists of the "intention to touch and knowing of, or being reckless of or wilfully blind to, a lack of consent on the part of the person touched" (R. v. Ewanchuk, 1999 CanLII 711 (SCC), [1999] 1 S.C.R. 330, at para. 42).

[88] "Consent" is defined in s. 273.1(1) of the Code as "the voluntary agreement of the complainant to engage in the sexual activity in question". It is the "conscious agreement of the complainant to engage in every sexual act in a particular encounter" (J.A., at para. 31), and it must be freely given (see Ewanchuk, at para. 36). This consent must exist at the time the sexual activity in question occurs (J.A., at para. 34, citing Ewanchuk, at para. 26), and it can be revoked at any time (see Code, s. 273.1(2)(e); J.A., at paras. 40 and 43). Further, as s. 273.1(1) makes clear, "consent" is not considered in the abstract. Rather, it must be linked to the "sexual activity in question", which encompasses "the specific physical sex act", "the sexual nature of the activity", and "the identity of the partner", though it does not include "conditions or qualities of the physical act, such as birth control measures or the presence of sexually transmitted diseases" (R. v. Hutchinson, 2014 SCC 19, [2014] 1 S.C.R. 346, at paras. 55 and 57 (emphasis deleted)).

[89] Consent is treated differently at each stage of the analysis. For purposes of the actus reus, "consent" means "that the complainant in her mind wanted the sexual touching to take place" (Ewanchuk, at para. 48). Thus, at this stage, the focus is placed squarely on the complainant's state of mind, and the accused's perception of that state of mind is irrelevant. Accordingly, if the complainant testifies that she did not consent, and the trier of fact accepts this evidence, then there was no consent -- plain and simple (see Ewanchuk, at para. 31). At this point, the actus reus is complete. The complainant need not express her lack of consent, or revocation of consent, for the actus reus to be established (see J.A., at para. 37).

[90] For purposes of the mens rea, and specifically for purposes of the defence of honest but mistaken belief in communicated consent, "consent" means "that the complainant had affirmatively communicated by words or conduct her agreement to engage in [the] sexual activity with the accused" (Ewanchuk, at para. 49). Hence, the focus at this stage shifts to the mental state of the accused, and the question becomes whether the accused honestly believed "the complainant effectively said 'yes' through her words and/or actions" (ibid., at para. 47).

The court in Barton, at para. 98, made it clear that “a belief that silence, passivity or ambiguous conduct constitutes consent is a mistake of law, and provides no defence”.

[211] At the time of these events, the age of consent was 14 years old. As for the sexual assault allegation, the Crown does need to prove the absence of consent or that the consent was vitiated in some way. This court will return to the issue of vitiated consent below. However, as for whether the Crown has proven a lack of consent, this requires an assessment of the evidence of the witnesses.

[212] P.S. testified that G.D. initiated the sexual activity and that he consented to that sexual activity at the time, place and manner it occurred.

[213] There were some problems with the evidence of P.S. that caused the court some concern as to his credibility and reliability. Those issues are as follows:

1. With respect to D.M. bringing R.S. to the house for the first time, P.S. initially stated that R.S. was 14 years old, however, later stated that he was probably 15 years old.

2. P.S. provided somewhat contradictory evidence about his reason for not being happy about R.S. being brought to the home; initially suggesting that he was too young, but later stating that R.S. did not fit in their lifestyle, given that he was “basically a street person”.

3. When R.S. approached P.S. in his store sometime later and a relationship developed, P.S. initially stated that R.S. was 15 but then later said that he was 16.

4. P.S. denied that B.C. and G.D. had alcohol in the Tottenham home, yet B.C. testified that P.S. would, with some coaxing, buy him alcohol and bring it home.

5. In describing the first incident of sexual activity, P.S. stated, “I said before I start having sex with him on that day… I said to him… ‘ok if it bothers you at all just push me away and stop me’. I says… because I still wasn’t sure that he wanted it.” When this comment was put back to P.S. in cross-examination, he stated that G.D. “wanted it after that conversation”.

6. With respect to the second instance of sexual activity, P.S. initially stated that it was four days after the first incident, however later stated that it was a week or two between these events.

7. P.S. seemed to have some difficulties recalling the details of some of the sexual activity.

8. P.S. initially suggested in examination in chief that he had asked B.C. about the ladder incident. However, in cross-examination, he stated that he had not discussed that with B.C.

9. P.S. stated that B.C. did not immediately return to the house after he was expelled, but then later stated that it was possible that B.C. did return to the Tottenham house in those 2-3 weeks that G.D. was still there.

[214] While this court did have some concerns, given these discrepancies, overall, P.S. appeared to be accurately trying to describe these events. His evidence was at times incriminating, leading this court to believe that he was not simply creating a story for the court to hear. P.S. was trying to tell the truth in a matter of fact manner, even when it was not to his benefit. He shared his interest in pets. He shared his interest in wrestling. P.S. was having fun going to wrestling with these much younger men. He shared his relationship with G.D. As to the relationship itself, and the chronology of events, many aspects of the evidence of P.S. and G.D. were the same: attending wrestling (including a weekend trip), attending the gym, meeting wrestlers, G.D. staying at his condo and swimming in the pool, going to the nudist resort, allowing G.D. to live at his home in Tottenham, and the visibility of drugs in that residence. P.S. did not deny or attempt to excuse the dramatic age difference. He did not deny the many things that he did for and with G.D. over time.

[215] According to P.S., G.D. was old enough to know what he wanted, and to tell him what he wanted, which he did. This court accepts that G.D. was sexually curious and initiated the sexual activity as P.S. described. P.S. was clear that G.D. initiated the sexual contact and that he consented to the sexual contact. This court accepts the evidence of P.S. as to how the sexual activity occurred.

[216] G.D. stated that he did not consent and in fact was asleep when some of the acts commenced. Clearly if G.D. was asleep, there can be no consent. In R. v. J.A., 2011 SCC 28, [2011] S.C.J. No. 28, para. 66, the court made it clear that an unconscious or sleeping person cannot consent to sexual activity. Further, if G.D. just laid there numb, feeling helpless, there is no consent. Consent lives in the subjective mind of the person giving it or not giving it. If this court believes G.D. that he did not consent to any of these acts, then there is no consent and the Crown would have proven this beyond a reasonable doubt.

[217] However, with respect to the evidence of G.D., there were numerous and material inconsistencies in his evidence, including the following:

1. When G.D. was first interviewed by the police on October 20, 2017, he told the police that he lived at P.S.’s house for 2.5 or 3 years. At the trial when initially confronted with this idea, he stated, “I said I might have visited….I don’t remember saying that”. Several passages of the statement were then put to him. It was suggested to G.D. that he told the officer that from the ages of 15 to 17, he was living with P.S. in Tottenham. He stated, “I believe we were trying to determine the age I was, not how long I lived there.” G.D. then acknowledged the following discussion with the officer:

October 20, 2017 – Page 3 – lines 1-17

G.D.: That was at the age of fifteen ‘cuz I went to high school (in there), he brought us in, so I’m forty-four, subtract that from eight--…uh, fifteen to at least seventeen until I told my dad and my dad…I didn’t outright tell my dad ‘cuz if I woulda told my dad I know my dad would’ve done something and I didn’t wanna see him go to jail, so I just kept it silent, but my dad came and he got me outta the house.

PCM: So I guess approximately twe--…twenty-seven years ago or so.

G.D. I’m forty-four, so…

PCM: Yeah, okay.

G.D: …I think I was six--…I can’ remember exactly, either sixteen or seventeen, that’s when I left the man’s house.

In response to this passage being played, he stated “I said the word ‘I think’, trying to distinguish what actual age I was and that’s what we’re trying to do now.” A further passage was then played for him:

October 20, 2017 – Page 18 – lines 1-15:

PCM: Well--. Um, (inaudible). Uh, so I’m…I’m assuming that…that you lived with, uh, [P], em, for…like roughly two years.

GD: Too long,

PCM: Like between the years of…of…of fifteen…

GD: I didn’t finish…

PCM: …and seventeen.

GD: ….the high school.

PCM: Yeah. But… but you stayed there between the years of fifteen and seventeen, …

GD: Possibly….

PCM: …uh, years old?

GD: …seventeen, yeah, seventeen and a half.

In response to this, G.D. stated that he went back to the house a few times after he left, right up until he was seventeen and a half or eighteen. He explained that he camped out back once and went back when his father painted the house. When it was suggested to him that he visited P.S. so frequently that it was like he continued to live there, he responded “no”. G.D. then explained that he did say this to the officer, but that he was taking Risperdal at the time of his statement because he was not sleeping at night. It was suggested to G.D. that there was a big difference between 3-4 months and 2 years. He then said that he was older when they camped out, that it was a different summer, and so this could be why he said what he said. When asked how many times he was back at the Tottenham house, he stated, “might have been three times”. He stated that he was in a “dark place” before going to give this statement and that he had almost taken his life.

A further passage was played for him, which in part was as follows:

October 20, 2017 – Page 25 – lines 1-11

PCM: And you were about s-seventeen or so.

G.D.: Yeah, ‘cuz I still had to try to finish high school in Ottawa and I still didn’t finish…

PCM: So you lived there for about…

GD: Too long.

PCM: ….like two years.

GD: Three years.

PCM: Or two…two….two or three years?

GD: Two and a half, three years.

In response to being shown this passage, he said “my voice did say that”.

Finally, the following passage was put to him:

October 20, 2017 – Page 28 – lines 20-27:

PCM: So over that course of time there you probably had nu--…uh, numerous …numerous encounters with, uh, [P] I’m assuming because you were there for a two and a half or three-year period.

GD: Very much. To the point that’s where I feel bad that I would even go into that bedroom accepting it.

It was suggested to G.D. that he had lots of time to correct the officer’s misunderstanding of the amount of time he lived in Tottenham with P.S. To this, G.D. responded that in one of his transcripts he did remember correcting himself. He stated that by the time of the second police statement, he no longer had the thoughts of suicide, he was attending therapy again, and had started talking to people again. He also suggested that he had been diagnosed with PTSD and he was still dealing with that.

In re-examination, G.D. was referred to his statement from December 30, 2017 with Detective Smith. He agreed that in that statement he told Det. Smith that he left the Tottenham house before the end of grade 9.

2. Despite having spoken to police twice and having testified at a preliminary hearing, he said for the first time, at this trial, that the first sexual encounter with P.S. was when he was asleep. G.D. agreed that in his first statement to the police, there was no reference to being asleep and waking up as the oral sex was being performed. In explanation for this G.D. stated that “I pushed it down, deep down”, and that he had since talked in therapy. G.D. agreed that, up until the time of the trial, it was his position that the sexual acts only happened under the influence of drugs. In fact, in the first statement, G.D. told the officer that he was awake and under the influence of cocaine.

3. G.D. was asked whether there was any other touching before or after the oral sex. His response was that when he was lying beside him the odd time, he would give him a karate chop across the chest, but “that would be it”. Again, G.D. was asked whether there were any other acts, other than oral sex, to which he said “only blow jobs”. He was then asked about any other touching, to which he said “just when he rubbed the legs, karate chop on the chest and the odd sleeper hold, and asked if he could dry me off when coming out of the hot tub”. To refresh his memory, the Crown had G.D. read a passage from his statement to the RCMP in Fort Saskatchewan on October 20, 2017. He then said that this helped his memory and was asked again whether there was any other act of a sexual nature. He then said, he would “continue to lick areas, the genital area, and around the anal cavity and lick around that area and all that stuff.” He stated that “this happened pretty much every time he did the blow job.”

4. In relation to the third described incident of sexual activity, G.D. stated that after giving both he and B.C. oral sex, P.S. than asked G.D. to “tell me what you want me to do to [B].”. Later when asked whether it was sexual content that P.S. was asking about, he said it was, and stated, “at one of them, he wanted me, he got me to say, do you want me to penetrate [B] in the anal area.”

5. G.D. was inconsistent about the timing of his conversation with B.C. on the couch in Tottenham. G.D. explained that at one point in September, B.C. had moved back to Guelph and it was just him and P.S. at the house. According to G.D., B.C. returned back to the residence in October, having been gone for about 2-3 weeks, however, never returned to school. G.D. stated that he decided, “I’m out”. G.D. stated that he told B.C., as they sat on P.S.’s couch, that they would make this all stop if “we stand together” and B.C. decided “not to stand up”. According to G.D., B.C. said no. G.D. stated that he then decided to call his father and leave the residence. Later on in his testimony, G.D. stated that this conversation with B.C. occurred after the second incident of sexual activity.

6. In cross-examination, it was suggested to G.D. that in his October 20, 2017 statement, he told the officer that “he [P.S.] got my family there many times” meaning having his family at the Tottenham house many times. In response to that suggestion, he said that his family came out one time and his father returned another time to paint the house. He agreed that this was not “many times” but agreed that those were the words he used with the officer that day.

7. G.D. did not want to admit that it was his idea to move to P.S.’s residence in Tottenham. However, eventually he seemed to agree that he did not like Ottawa, that he wanted to leave Ottawa, and it was his idea to go to Tottenham, to which P.S. agreed.

8. G.D. stated that he did not attend wrestling matches after moving to P.S.’s house in Tottenham in the summer of 1988. However, he was then shown a program / event card from August 28, 1988 (Exhibit 1 – photo 916). He stated that he did not recall attending Maple Leaf Gardens from Tottenham, however stated, “I would say yes I was there….If I have that, I was there”. In re-examination, he stated that this would have been prior to moving to Tottenham – which simply does not accord with his own timeline.

9. G.D. stated that he did not attend wrestling matches from Ottawa, however, he was shown Exhibit 1, photo 918, which was a match from Sunday, July 9, 1989. He stated that if he was in possession of the event card, he was there. It was suggested to him that he went with P.S., however, he stated “not necessarily” and that it could have been with his older brother or it could have been with P.S. In re-examination, he reverted to his earlier position that all wrestling was attended when he was living on Queen Frederica and that he did not go to wrestling from Ottawa.

10. G.D. had stated that the Chimo Hotel incident occurred when he was still 15 years old, approximately 5-6 months after he left Tottenham. However, it was suggested to him that he told the police in his statement that he was 17 or older by the time of the Chimo Hotel. His answer was “maybe, yeah”.

11. As for the cause of his first breakdown, in examination in chief, he simply explained that he woke up, felt the walls closing in, and thought P.S. was coming for him. In cross-examination, when asked what caused the first breakdown, he admitted that he had left his girlfriend and was living with his cousin. He had not mentioned the breakup of the relationship in examination in chief.

12. G.D. suggested that he reported the sexual abuse to police in Ottawa after his first breakdown. It was confirmed by D/Sgt Susan Stone that there was no occurrence on file. (See Exhibit 2A / 2B)

13. As for the second breakdown, G.D.’s evidence was substantially different from that of his brother T.D. G.D. stated that he disclosed these events to his brother T.D. on the telephone from the hospital. T.D. never mentioned that G.D. was hospitalized and rather stated that G.D. was driving to Ontario. T.D. was worried about him and met him in Thunder Bay and they continued the journey together. According to T.D., it was during this drive that G.D. disclosed to him.

14. G.D. and T.D. were inconsistent about the timing of T.D. and his family attending P.S.’s pet store and whether this was around the time of the first or second breakdown.

15. G.D. stated that B.C. witnessed some of the sexual activity between him and P.S. B.C. completely denied this. While it is true that B.C. admitted that he still loves P.S., this does not mean that he would lie about these events.

[218] As stated, there are numerous difficulties with G.D.’s evidence. These inconsistencies are impossible to reconcile in order to accept his evidence as to how the sexual activity occurred. In the result, this court is left with a reasonable doubt on the issue of consent.

[219] However, this does not end the inquiry.

[220] This court must consider whether, if consent existed as P.S. suggested, it was valid, or was it induced by a position of trust or authority. The Crown initially suggested that this court must specifically consider s. 273.1(2)(c).

[221] In 1983, Parliament passed what is now s. 265(3) of the Criminal Code. The provision lists certain circumstances that may vitiate consent and read at the time as follows:

265(3) For the purposes of this section, no consent is obtained where the complainant submits or does not resist by reason of

(a) the application of force to the complainant or to a person other than the complainant;

(b) threats or fear of the application of force to the complainant or to a person other than the complainant;

(c) fraud; or

(d) the exercise of authority.

[222] In s. 265(3), there was, and still is, no mention of a position of trust.

[223] This section was discussed in R. v. Geddes, 2015 ONCA 292. The Court stated:

[34] I do not read Matheson as holding that the power of one person to influence another to any extent establishes “authority” over the other. Many people who are in a relationship may be influenced to engage in sexual activity by their partner. Influence, as it relates to true consent, is a question of degree. At some point, influence becomes coercion and apparent consent nothing more than submission. Consent that is the product of coercive influence does not reflect a true exercise of one’s right to control one’s own body. To treat coerced consent as effective consent is to deny the very autonomy which underlies the requirement of consent.

[35] The exercise of influence to the point of coercion constitutes “the exercise of authority” for the purposes of s. 265(3)(d): Lutoslawski, at para. 12. In Matheson, Austin J.A. stated, at p. 588:

I am satisfied that the purpose of s. 265(3)(d) is to criminalize coerced sexual relationships rather than to proscribe sexual relationships within specific categories of relationships.

[36] An accused stands in a position of authority over a complainant if the accused can coerce the complainant into consent by virtue of their relationship. The existence of a position of authority does not mean that any sexual activity between the accused and the complainant is non-consensual. The Crown must also prove beyond a reasonable doubt that the accused secured the complainant’s apparent consent to the sexual activity which is the subject matter of the charge by the exercise of that coercive authority over the complainant: R. v. Samkov, 2008 ONCA 192, [2008] O.J. No. 1005, at para. 7; R. v. Farler, 2013 NSCA 13, 326 N.S.R. (2d) 255, at paras. 77-78.

[37] The determination of whether apparent consent is vitiated by a coercive exercise of authority will require an examination of the nature of the relationship between the accused and the complainant, as well as the specific circumstances surrounding the apparent consent to the sexual activity in issue. There is no closed list of factors relevant to the assessment of the nature of the relationship and no one factor is necessarily determinative of the nature of the relationship. Certain relationships, such as doctor-patient or teacher-student, will go a long way to establishing the kind of relationship in which a coercive exercise of authority may occur. Similarly, evidence that demonstrates a clear power imbalance between the parties to the relationship and the exploitation of that imbalance by one of the parties will be important in determining whether apparent consent was obtained through coercion…

In other words, the Crown must prove beyond a reasonable doubt that the sexual activity was obtained by “the exercise of that coercive authority over the complainant”.

[224] While s. 265(3) was clearly in force at the relevant time, there has been no suggestion by the Crown in this case that G.D. submitted or did not resist by reason of the exercise of coercive authority of this nature. The Crown has certainly not proven this beyond a reasonable doubt and, in fact, did not seek to do so. Given that this court accepts that the sexual activity occurred in the manner in which P.S. described, there is no element of coercion, as required by s. 265(3)(d).

[225] In 1992, Parliament adopted a provision dealing specifically with consent to sexual assault. Section 273.1 stated:

273.1(1) Subject to subsection (2) and subsection 265(3), “consent” means, for the purposes of sections 271, 272 and 273, the voluntary agreement of the complainant to engage in the sexual activity in question.

(2) No consent is obtained, for the purposes of sections 271, 272 and 273, where

(a) the agreement is expressed by the words or conduct of a person other than the complainant;

(b) the complainant is incapable of consenting to the activity;

(c) the accused induces the complainant to engage in the activity by abusing a position of trust, power or authority;

(d) the complainant expresses, by words or conduct, a lack of agreement to engage in the activity; or

(e) the complainant, having consented to engage in sexual activity, expresses, by words or conduct, a lack of agreement to continue to engage in the activity.

This section, obviously, includes situations of vitiated consent that s. 265(3) does not contemplate.

[226] Initially, the Crown submitted that s. 273.1(2)(c) was applicable in the case at bar and relied on the case of R. v. Lutoslawski, 2010 ONCA 207.

[227] In Lutoslawski, the respondent was charged with several counts of sexual exploitation and sexual assault. He was acquitted of all counts at trial. At the appeal, the Crown argued that the trial judge did not refer to s. 273.1(2)(c), but rather only referred to s. 265(3)(d). The court held that s. 273.1(2)(c), which deals with inducing the complainant to engage in the activity by abusing a position of trust, power or authority, is much broader than s. 265(3)(d), which deals only with the exercise of authority. The Court stated:

[12] I agree with Crown counsel’s submissions that s. 273.1(2)(c) is broader than s. 265(3)(d). Section 273.1(2)(c) speaks not only to the abuse of a position of authority but also to the misuse of a position of power or trust. The section addresses the kinds of relationships in which an apparent consent to sexual activity is rendered illusory by the dynamics of the relationship between the accused and the complainant, and by the misuse of the influence vested in the accused by virtue of that relationship. The term “exercise of authority” in s. 265(3)(d) suggests a coercive use of authority to overcome resistance to a consent. Inducing consent by abusing the relationships set out in s. 273.1(2)(c) does not imply the same kind of coercion. An individual who is in a position of trust over another may use the personal feelings and confidence engendered by that relationship to secure an apparent consent to sexual activity.

The Court suggested that s. 265(3) requires a coercive use of authority, whereas s. 273.1(2)(c), is a more subtle way of abusing the position which exists.

[228] The Crown also relied on R. v. S., 2018 ONSC 2922, in which the court made it clear that the requirements to prove the charge of sexual exploitation versus what is required to prove that consent is vitiated or invalid under s. 273.1(2)(c) are quite different. The Court stated:

[93] However, the result is not the same with respect to the charge of sexual exploitation under s. 153(1)(a). There is a difference between what the Crown must prove under that section and what the Crown must prove under s. 273.1(2)(c).

[94] Because the consent of the young person is irrelevant, it is not necessary to prove that it was obtained by abusing the position of trust under s. 153(1)(a): Audet, para. 26. Nor is it necessary to prove that the complainant viewed the relationship as one of trust: Aird, at para. 24. It is sufficient if, having regard to the age difference between the young person and the accused, the evolution of their relationship, and the status of the accused in relation to the young person, the court is satisfied beyond a reasonable doubt that the accused was placed in a position of trust: Audet, para 38.

[229] After considering the Crown’s submissions on this point, including the case law presented, it became clear to this court that s. 273.1(2)(c) was not in force at the time of these alleged events. The sexual assault count encompasses a time period between July 1, 1988 and December 31, 1991. This section was not in force until August 15, 1992. Having realized this, the court invited counsel to make further submissions on this point, at which time the Crown conceded that the section is not applicable to the case at bar.

[230] Even though this court has concluded that s. 273.1(2)(c) is not applicable, even if this section were applicable at the relevant time, this court would not find, beyond a reasonable doubt, that consent was vitiated in this case. While this court is convinced beyond a reasonable doubt that P.S. was in a position of trust at the relevant time, this court is not convinced beyond a reasonable doubt that P.S. used the personal feelings and confidence engendered by that relationship to secure an apparent consent to sexual activity. This court is not convinced beyond a reasonable doubt that P.S. induced G.D. to engage in the activity by abusing a position of trust, power or authority, in light of this court’s acceptance of the version of events presented by P.S.

CONCLUSION

[231] For all of the foregoing reasons, this court is satisfied beyond a reasonable doubt that P.S. was in a position of trust toward G.D., and that a relationship of dependency existed, at the time sexual activity occurred between them. P.S. is guilty of count 1 – sexual exploitation.

[232] Given the assessment of the evidence, this court is not convinced beyond a reasonable doubt that there was no consent or that consent was vitiated. Based on an assessment of all of the evidence, this court is unable to conclude that consent was lacking or that consent was invalid either by an exercise of coercive authority or an inducement to engage in the activity by abusing a position of trust, power or authority. P.S. is not guilty of count 2 – sexual assault.

Justice V. Christie

NOTE: As noted in court, on the record, this written Ruling is to be considered the official version and takes precedence over the oral reasons read into the record. If any discrepancies between the oral and written versions it is the official written Ruling that is to be relied upon.

Released: February 23, 2021