SUPERIOR COURT OF JUSTICE
COURT FILE NO.: CR 21-056 (Owen Sound)
DATE: 2022-08-23
ONTARIO
SUPERIOR COURT OF JUSTICE
BETWEEN:
Her Majesty the Queen
-and-
Mark Ross Monteath
A. Camilletti, for the Crown
H. Thompson, for Mr. Monteath
Heard: June 20 to 25, 2022
Justice R. Chown
Judgment
This judgment is subject to a publication ban under s. 486.4 of the Criminal Code prohibiting the publication, broadcast, or transmission, in any way, of any evidence that could identify the victims. This judgment complies with the publication ban in that it does not contain evidence that could identify the victims.
[1] The accused, Mark Ross Monteath, is charged on a five-count indictment with:
sexual exploitation (touching) (s. 153(1)(a));
sexual exploitation (inviting touching) (s. 153(1)(b));
sexual assault (s. 271);
invitation to sexual touching (s. 152); and
failure to comply with an order of prohibition (s. 161(4)).
[2] The accused pleads guilty to the fifth charge and not guilty to the other charges.
Overview
[3] A lifetime order of prohibition prohibits the accused from having “any contact – including communicating by any means – with a person who is under 16, unless under the supervision of a person the court considers appropriate.”
[4] The accused befriended K, age 16 at the relevant time, and had her come to his apartment on multiple occasions. K generally brought T, her 13-year-old sister, when she went to the accused’s apartment.
[5] It is alleged that during these visits: (1) the accused asked T to suck K’s toes, and when she declined, he sucked K’s toes; and (2) he had K massage his upper leg.
The Essential Elements of the Charges
[6] Count #1, the sexual exploitation charge under s. 153(1)(a), is in relation to K and is based on the accused putting her toes in his mouth. As defined for these allegations, this offence has four essential elements:
K was a “young person” at the time;
the accused intentionally touched K, either directly or indirectly;
the touching was for a sexual purpose; and
the accused was in a position of trust or authority towards K.
[7] Count #2, invitation to sexual touching contrary to s. 153(1)(b), is in relation to the accused asking K to massage his upper leg. As refined for these allegations, this offence has four essential elements:
K was a “young person” at the time;
the accused invited, counselled, or incited K to touch the accused’s body;
the invitation, counselling, or incitement to touch was for a sexual purpose; and
the accused was in a position of trust or authority towards K.
[8] Count #3, the sexual assault charge, is in relation to K and arises from both the toe sucking by the accused and the massage of the accused’s upper leg by K. As refined for these allegations, sexual assault has four essential elements:
The accused intentionally touched the complainant. (With respect to the leg massage, the Crown’s position is that touching by K in response to the accused’s invitation to do so satisfies this element.)
The complainant did not consent to the touching. (For this element, the Crown relies on s. 273.1(2)(c), which says that no consent is obtained if the accused induces the complainant to engage in the activity by abusing a position of trust, power or authority.)
The accused knew that the complainant did not consent. (Where, as here, the complainant ostensibly consented but s. 273.1(2)(c) applies, and the Crown ’s theory is that the accused was in a position of trust, the Crown must show that the accused knew he was in a position of trust.)
The touching occurred in circumstances of a sexual nature.
[9] Count #4, invitation to sexual touching contrary to s. 152, relates to the accused’s effort to get T to suck K’s toes. As refined for these allegations, this offence has three essential elements:
T was less than sixteen years old at the time;
the accused invited, counselled, or incited T to touch, either directly or indirectly, K’s body; and
the invitation, counselling, or incitement to touch was for a sexual purpose.
[10] Count #5, failure to comply with an order of prohibition contrary to s. 161(4), has two essential elements:
the accused was bound by an order of prohibition; and
the accused did not comply with the order.
The Burden and the Standard of Proof
[11] All essential elements of the offences must be proven by the Crown, and each element must be proven beyond a reasonable doubt.
[12] The burden of proof rests with the Crown. There is no burden on the accused to prove anything. The accused is presumed to be innocent of the charges.
[13] Proof beyond a reasonable doubt does not mean proof to an absolute certainty, but it is also more than proof of likely or probable guilt. It lies closer to absolute certainty than it does to the civil standard of proof on a balance of probabilities. Unless the court is sure that the accused is guilty, he must be acquitted.
Witnesses
[14] The Crown called three witnesses: the complainant K; her sister, the complainant T; and their mother. On consent, the video recorded police statements of K and T were admitted into evidence under s. 715.1 of the Criminal Code. K and T also expanded on this evidence in their in-court testimony.
[15] The defence did not call any evidence.
Facts
Order of Prohibition
[16] The parties submitted an agreed statement of facts which was filed as exhibit 1. It reads:
At the time of the alleged offences, the Accused, Mark Ross Monteath was bound by a lifetime Prohibition Order under s. 161 of the Criminal Code made by Justice K. Moore on October 10, 2018 at the City of Brockville, that included the following term: Prohibited from having any contact – including communicating by any means – with a person who is under 16 unless under the supervision of a person the court considers appropriate.
At the time of the alleged offences, the Accused, Mark Ross Monteath was bound by a three-year Probation Order issued by Justice K. Moore on October 10, 2018 at the City of Brockville, that included the following terms:
Not to employ any children under the age of 16.
Not to be alone with any child under the age of 16.
Not to be in any dwelling, residence, motel/hotel room, cottage or mobile home, including any outdoor space of these areas, where there is a child under the age of 16 years of age present, unless the child's parent or guardian is also present and that parent or guardian is fully aware of your criminal record having been made aware of same by the Probation Officer.
Background
[17] K was 16 at the time of the alleged offences. T was 13. The accused was 59.
[18] K and T have another sister, R, age 10 or 11 at the time. She is not a complainant but will be mentioned in these reasons.
[19] The mother is separated from the girls’ father. However, at the relevant time, the mother and father and the accused all lived in the same housing complex.
[20] The complainants’ mother and father broke up in March of 2018. K’s relationship with her father was “not very good” after that, according to the mother. K has never lived with her father since the separation. T and R have lived with him at times.
[21] K has anxiety. This started in 2015 and became severe at the end of 2016. She has a severe eating disorder which required hospital treatment in 2019 and is ongoing. In grade 9, K was on an individualized education plan.
[22] T has a severe learning disability. She gets agitated and aggressive with outbursts if she doesn’t understand something. This tendency was on display during her trial testimony, as she had several outbursts and was angry with counsel.
A Job at the Liquidation Store
[23] In December of 2020, K was looking for a job. She was enrolled in a school program which allowed her to get credits for working. She was told she might be able to get a job at a liquidation store. She took her resume there and applied.
[24] The accused worked at the liquidation store. T’s evidence was that he was a manager there and the owner was named “Jeff.”
[25] K met the accused and spoke to him. There was no formal interview. He gave her a job.
[26] During this first discussion, K told the accused her age. The accused asked what her birthday was, and she told him.
[27] For her job at the liquidation store, K was to be paid $15 per hour “out of the till,” i.e., cash. However, she only worked two shifts before being fired because the owner of the store did not want part-time employees.
[28] On the second shift, K bought a bong from the liquidation store. The accused brought it home for K, taking the money for it out of her last pay.
Visits to the Accused’s Apartment
[29] K said the first time she went to the accused’s apartment was when he told her she was fired from the liquidation store. The accused texted and asked K to come. In her police interview, K said this occurred about four weeks before her police interview, which would place it on December 19, 2020. She was there for about two hours. T went with her. He paid them for that visit. K said in her police interview that the accused paid her to listen to him say that she was fired.
[30] At one point in K’s trial testimony, she said that she received a Christmas card from the accused after four or five visits, which would suggest the first visit may have been earlier than December 19, 2020. She then said that only two visits occurred in the new year, which would suggest there were six or seven visits altogether.
[31] Later, K testified that she visited the accused at his apartment four or five times, and not more than 10 times.
[32] T’s evidence was that she first met the accused in the summer before the alleged offences. Later she said the summer or fall. She said that she had visited the accused’s apartment 20 to 25 times. T also testified that they went to the accused’s apartment on Christmas Eve, which was the day after K had been told she didn’t have a job anymore.
[33] T’s evidence and K’s evidence as to the number of visits to the accused’s apartment and the dates and date range of those visits was not consistent. I preferred the evidence of K and generally accept her evidence as to the number of visits and the timing of the visits. She was not very definitive about this, but any discrepancies and lack of precision do not raise serious concerns about K’s credibility or reliability. It is not surprising that there was no precision in this evidence. Nothing was documented from these visits.
[34] The last visit resulted in the police complaint so the date of it is known: January 16, 2021.
[35] On the second last visit, K was served alcohol and the accused sucked her toes. At trial K referred to that visit as the “foot night.” I conclude that the “foot night” took place between January 9 and January 12, 2021. I base this on K’s police interview where she said the “last hangout” prior to the 16th of January was “like a week ago.” Later, she said it was “four, maybe five days,” before the 16th of January.
[36] K did tell her mother and her father about the visits to the accused’s apartment. K testified that her parents thought she was helping the accused with a couple of things and getting paid.
[37] K told the accused T’s age. The accused told K that T was too young to come around, and he did not want her to come around. K’s mother told K that she did not want her going to the accused’s apartment without T. K testified, “Yeah, I told him I wasn't supposed to come without [T]. He said I was old enough to do things on my own.” On one occasion, when K asked the accused if she could come to his apartment with T, he said, no, and that “he didn't want her up there.”
[38] Notwithstanding this, and notwithstanding the order of prohibition and the probation order, the accused did not put an end to the visits. K continued to come with T.
[39] On one occasion during Christmas break of 2020, or shortly after, K and T needed a ride home from across town. K could not find a ride, so as a last resort she called the accused. He came and got them and brought them home.
[40] T and K both said that the accused gave them $100 each on Christmas Eve.
[41] K described activities, occurrences and conversations that occurred during her visits to the accused’s residence, and I accept her evidence on these points.
• The accused told K he would pay her just to hang out at his house. At one point he told her she could help him with various things. For instance, he was going to pay her to help assemble a desk. He also told her that he was going to start a company and he was going to have her help him with it.
• K was at first uncomfortable with getting paid to hang out with the accused.
• K said that at first, “We were just getting to know each other, telling each other about our lives, how we've been treated, how, um, we've had good lives and everything.”
• On one of the visits to the accused’s apartment, K brought her stepdad’s tools to assist with assembling the desk. However, they never assembled the desk. She was later asked by her mother to bring the tools back.
• K described showing the accused some photos of herself that were on her phone. These showed her wearing a bathing suit with a crop top. In response to the photos, the accused told K she was “doing good” with her weight. This comment was made in connection with her eating disorder.
• On one occasion, the accused told K she “had a nice ass.” It jiggled when she walked away. She had nice eyes.
• K talked to the accused about school, her mental health, and her father. The accused was “downgrading” her father. K did not openly share with her parents what she did or talked about at the accused’s apartment.
• The accused would have K pour him drinks when she was there.
• K and T were paid for each occasion that they spent time with him.
• The accused used nicknames and endearments when speaking to the complainants, such as “hey, baby,” and “hey, boo.” He fist-bumped and gave hugs.
• The accused discussed with T the possibility that she could watch or help look after his cat.
• The accused discussed a possible business of packing surprise bags with electronics and putting them in stores. T testified, and I accept, that he told her after putting these surprise bags in the stores, “he'd go back the next week and collect all the money. And I'd get a few bucks outta that.”
• The accused told the girls he was wealthy.
[42] The mother testified that the girls were not allowed to go to the accused’s apartment individually. They had to go together. She advised them of this. She discussed this with the girls’ father who agreed.
The Foot Night
[43] The accused was intoxicated when K went to his apartment on the foot night. K went by herself initially, and T came later.
[44] At the time, K regularly smoked marijuana from a bong. She took her marijuana and smoked one bowl at his apartment (but not inside).
[45] T did not consume any marijuana. She was not there yet when K smoked the marijuana.
[46] The accused asked K to have a drink with him. She didn’t want to say no and be rude. He also asked T to drink, but K did not want T drinking because she was only 13.
[47] K had two cans of Smirnoff Ice. The accused kept telling the girls to “stay, have another one.” To get the accused “to stop harping on her [i.e., T] to drink,” K poured some alcohol in a cap and gave T just a little bit so “he would can it,” i.e., stop pestering T to drink.
[48] The complainants started planning to leave. They were sitting on the floor getting their shoes ready. During this, the accused wanted T to suck K’s toes. He said he would pay her five dollars if she sucked her sister’s toe. T declined. He goaded her using cute nicknames for T that her dad and mom called her. T still declined. The accused then said, “I’ll do it for you then.”
[49] The accused then grabbed K’s foot, pulled her sock off, and started naming all the toes. T described that the accused “started touching her [K’s] foot like weirdly.” “Like sexually.” Like he was massaging it. With two hands. And he started sucking it. He started at the pinkie and went up. He put her toes inside his mouth. He licked between her toes. K was screaming and laughing, and T was screaming and laughing at her.
[50] Even though T did not suck K’s toe, the accused still paid her. He gave K $50 that day and gave T $25.
[51] When the girls returned home. They were laughing and giggling, and K did disclose the toe sucking to their mother. She also disclosed that she had been drinking at the accused’s apartment. The mother told the girls they could not go there again.
[52] The mother was aware that the foot night was the second time K drank alcohol at the accused’s apartment. In cross examination, the mother acknowledged that neither of the complainants appeared to be under the influence.
The Last Visit
[53] The last occasion K went to the accused’s apartment was on Saturday, January 16, 2021.
[54] T was not at home that day. She was at a friend’s for a sleepover.
[55] The complainant’s mother was at home. K asked if she could go to the accused’s apartment, but her mother said absolutely not. The mother went out to get milk. K went to the accused’s apartment at about 2:00 p.m. She stayed until 6:00 p.m.
[56] When K’s mother got home, K was not there. She had a hunch K had gone to the accused’s apartment. Although she was a little perturbed, she did not go get her. R went to check on K and came back. The mother was reassured that K was fine. R went back a second time to say that dinner was ready, and K came back with R.
[57] Upon her return, K disclosed to her mother what had occurred at the accused’s apartment.
[58] What had occurred was the following. The accused asked K to have a drink with him. He offered her a gin. She took it and drank it very slowly. He then offered her another one. She took it with her when she went to the bathroom, and she dumped it.
[59] The accused played a drinking game with K. K’s inexperience and naïveté was demonstrated in her description of the game, which was as follows:
[W]e played this game called Caps and it's where there's two beer bottles with, um, five caps each person and you try to knock it off, the cap off the bottle. Um, so I went a couple of times and he gave me cash and then he decided to take it up a notch and I didn't want to. I, I told him to stick it with just a tiny, tiny little bit and he then went up more and more.”
[60] The accused engaged K in sexual conversations:
[W]e played, um, we talked. There was this girl he talks about a lot and her name is Sarah and apparently she is a lot like me. But she is blonde and very pretty and he said that he only brings girls that are very pretty into his life. And apparently this girl reminds me a lot like him, and she tried doing a lot of sexual things…
He, yeah, he only brings pretty girls into his life, uh, blonde, skinny, nice bodies…
[61] K told the accused an inside joke with a couple of her friends that when they’re older they are going to be strippers. They discussed “stripper names.” The accused talked to her about becoming a stripper and doing private shows.
[62] The accused told K he had a clogged artery in his right leg. He talked about having a gay massage therapist who was coming on to him, and that he did not want to go back to this therapist. This conversation took place during the caps game.
[63] The accused introduced betting into the game. K described this as follows:
Yeah, it was like a, if you win, you get this, but if you lose, you do this for me.
Um, the first couple of rounds, like the first like six rounds was fine. It wasn't, we were talking, we were having a good time but then he brought up, he kept bringing up the fact that his massage therapist and all this. So I'm like okay, well, clearly he wants me to massage his leg. And so I'm like I can do that for you. So like if, I guess if you win, I can do that for you. And, um, well, we bet 20 bucks or, um, a leg massage. And he didn't think he was going to win, so he bet, uh, me to give him 20 bucks and at the time, didn't have it but now do. Um, I then lost and that's when I gave him the leg, leg massage. …
[64] The accused told K there was lotion in the bathroom. When K came out of the bathroom with the lotion, the accused dropped his pants but left his boxers on. K told the accused it was weird to massage his leg. She testified that she didn’t want to do this, but she didn’t listen to herself. She started rubbing his upper leg. The accused demonstrated on K’s arm what he wanted. He encouraged her to go higher on his leg. She went as high on his leg as what would be “the bikini line on a female.”
[65] Consistent with her mother’s evidence, K testified that R came to the door twice. The first time she brought cake. The second time was about 45 seconds to a minute into the massage. K was startled, thinking it was her mother. She jumped up and went into the bathroom and washed her hands and left with R.
[66] In her police statement, K said she recognized where things were going. It looked like it was him showing that he wanted sex, and she felt he was planning it.
[67] The mother again acknowledged that K did not appear to be under the influence of alcohol after that visit. K testified, and I accept, that she was drunk but by the time she got home, her adrenaline “knocked me sober.”
[68] When she got home, she disclosed what had occurred to her mother.
Credibility and Reliability
[69] In assessing the complainants’ evidence, I must remember that it should be assessed with care but bearing in mind that they are teenagers:
While children may not be able to recount precise details and communicate the when and where of an event with exactitude, this does not mean that they have misconceived what happened to them and who did it. … The credibility of every witness who testifies before the courts must, of course, be carefully assessed but the standard of the “reasonable adult” is not necessarily appropriate in assessing the credibility of young children.”
R. v. B. (G.), 1990 CanLII 7308 (SCC), [1990] 2 S.C.R. 30, at p. 55.
[70] Furthermore:
Every person giving testimony in court, of whatever age, is an individual, whose credibility and evidence must be assessed by reference to criteria appropriate to her mental development, understanding and ability to communicate.
R. v. W. (R.), 1992 CanLII 56 (SCC), [1992] 2 S.C.R. 122, at p. 134.
[71] Testifying was clearly a very difficult experience for K and T, but especially for T. T got frustrated and angry during the questioning. Multiple breaks were required. She was most angry when she did not understand a question or when she was confronted with having said something that was inconsistent with her other evidence or difficult to understand.
[72] I had very few concerns about the credibility and reliability of K. I accept her evidence on the most central issues. I felt she may not have remembered some of the less important details well, and sometimes would not acknowledge this. She had particular difficulty articulating the amounts of money she received from the accused and what she did with the money. I did accept that she and her sister were paid every time they spent time with the accused, and that they were paid amounts that were significant for them. The amounts that the complainants were paid is not a central issue.
[73] In general, K was a strong witness. I have no hesitation in accepting her evidence as it relates to my findings of fact set out above.
[74] I did have concerns about the credibility and reliability of T in some respects. My sense was that sometimes her answers were designed to protect her self-esteem. In general, however, I also accept her evidence on the most central issues. I accept that she was offered alcohol by the accused. I accept that he did pay her for each visit to his apartment. I accept that the accused asked her to suck K’s toes. I accept her detailed description of the toe sucking incident. I accept that T recognized, in a manner consistent with her age and maturity level, that the accused touched K’s foot “sexually.” I accept that the accused tried to goad her into sucking K’s toes and that he offered to pay her. These features of her evidence were consistent and not shaken on cross examination, and were generally corroborated by her sister’s evidence, although not in every detail. I have integrated the evidence of T that I accept in my findings above.
[75] I did not trust T’s description of the timing of, and number of visits to, the accused’s apartment. T had difficulty articulating a narrative that included the timeline. I also did not trust the reliability of T’s evidence as to the amounts that they were paid. Again, I did accept that they were paid every time they spent time with the accused, and that they were paid amounts that were significant for them. Again, these are not central issues.
Analysis
[76] I will review the charges in the reverse order that they are found on the indictment.
Count #5 – Failure to Comply with an Order of Prohibition
[77] As indicated above, the accused has pled guilty to this offence. It is agreed that there was an order of prohibition in place. The accused had contact and communication with T, who was under 16 at the time, and this was not under any appropriate or approved supervision. Similarly, the accused was in a dwelling with T, and T’s parent or guardian was not “also present” as required by the probation order. Therefore, the accused breached the order of prohibition and the probation order.
[78] There shall be a finding of guilt on count #5.
Count #4 – Invitation to Sexual Touching
[79] It has been established beyond a reasonable doubt that T was less than sixteen years old at the time the accused invited her to suck K’s toes.
[80] I accept K’s and T’s evidence that the accused invited T to suck K’s toes. The Crown has proven this element of the offence beyond a reasonable doubt.
[81] The Crown has also proven beyond a reasonable doubt that the invitation by the accused for T to suck K’s toes was for a sexual purpose. The evidence demonstrates that the accused gradually introduced increasingly sexualized conversation with K. I am satisfied that the accused invited the toe sucking not only for his own sexual gratification in the moment, but also because he was grooming the complainants, and in particular the complainant K, and was building his efforts to engage K in sexual activity for his own sexual gratification. The “in the moment” gratification and the grooming effort both satisfy the “for a sexual purpose” element of the offence.
[82] There shall be a finding of guilt on count #4.
Count #3 – Sexual Assault
[83] As indicated above, the Crown advances two theories of guilt for the sexual assault. The first is that the toe sucking by the accused was a sexual assault. The second is that the accused’s invitation to massage his upper leg followed by the touching by the complainant of the accused’s upper leg amounts to a sexual assault.
Intentional Touching
[84] With respect to the accused sucking the toes of K, I have no doubt that this occurred as described by K and T. There can be no doubt that the accused intentionally touched K to suck her toes.
[85] With respect to K massaging the accused’s upper leg, the Crown submits that sexual assault does not require the accused to apply force to the complainant. Participation by the accused in physical contact of a sexual nature between the complainant and the accused amounts to a sexual assault even if it resulted from the complainant complying with the accused’s invitation. This submission is well supported by R. v. Tyler, 2015 ONCA 599 at paras. 10 and 12; R. v. R.V., 2021 SCC 10 at paras. 49-65; and R. v. K.D.M., 2017 ONCA 510 at paras. 33-39.
[86] I have accepted K’s evidence that she touched the accused’s upper leg in response to his invitation.
[87] I find that the Crown has proven the “intentional touching” element of the offence of sexual assault beyond a reasonable doubt, both respect to the toe sucking and with respect to K touching the accused’s upper leg.
Consent
[88] On the issue of consent, the Crown relies on s. 273.1(2)(c) of the Criminal Code, which says that no consent is obtained if the accused induces the complainant to engage in the activity by abusing a position of trust, power or authority. The Crown asserts that the accused was in a position of trust. Several factors support this position:
• There was a huge discrepancy in the age of the accused (59) and the age of the complainants (16 and 13) at the time of the alleged offence.
• Both K and T were vulnerable in that they were young and unsophisticated, and their parents lacked resources. The complainant’s mother described how they became homeless in 2019 because their then-landlord sold the house where they were living, and they camped for the summer of 2019. She described the housing complex where they moved in September of 2019 as undesirable but that it was all that was available that they could afford.
• The accused was initially the complainant’s work supervisor and then later portrayed himself as her employer and potential employer for a more significant venture with his planned business. The complainant K probably saw through the accused’s uncertain and exaggerated business venture plans. However, he remained her employer in the sense that she was being regularly paid by him.
• The amounts of money the accused was paying were meaningful to the complainants. The accused was grooming K. He was incentivising behaviour with money and through his conversation. As indicated, he gradually sexualized the conversation. He denigrated the complainants’ father (“downgraded” was the word K used). He engaged K in conversation about her eating disorder and in sexualized conversations about her appearance, about strippers giving private dances, and about his gay massage therapist coming onto him. He offered benefits including money, a ride, alcohol, and the opportunity to smoke marijuana at his residence. He brought the bong home for K from the liquidation store. He had K serve him his alcohol and then moved to pressuring the complainants to drink alcohol and then moved to getting K playing a drinking game. He then pressured her by getting her to bet on the outcome of the drinking game. There can be no doubt that the accused was grooming the complainants – preparing them and trying to build trust so that he might engage them in sexual activity.
[89] All the foregoing are indicators that the accused was in a position of trust towards the complainant: R. v R.T., 2017 ONSC 2625.
[90] The Crown has proven beyond a reasonable doubt that in January of 2021 the accused stood in a position of trust in relation to the complainant K.
Knowledge
[91] The Crown must also prove that the accused knew he was in a position of trust.
[92] I have found that the accused was grooming the complainants and was intentionally ingratiating himself and trying to build trust with them. He successfully sucked K’s toes and successfully got her to massage his upper leg. If follows that he knew by then that he had succeeded in placing himself in a position of trust.
[93] I find that the knowledge element of the offence has been proven beyond a reasonable doubt.
Sexual Nature
[94] The Crown must prove that the touching occurred in circumstances of a sexual nature.
[95] I find that the toe sucking was both for the accused’s sexual gratification at that moment, and an escalation of the grooming the accused undertook to further his efforts to engage K in sexual activity. The act was an intimate one. The way the accused held and touched K’s foot with both hands, named her toes, and sucked her toes including licking between her toes makes it plain that the touching occurred in circumstances of a sexual nature. Any objective observer could recognize the activity by the accused as being of a sexual nature. Even 13-year-old T recognized the sexual nature of the activity.
[96] Any objective observer would also recognize that the leg massage was touching in circumstances of a sexual nature.
[97] I find that this element of the offence has been proven beyond a reasonable doubt.
Conclusion regarding sexual assault
[98] All the elements of sexual assault have been made out for both the toe sucking and the leg massage. There shall be a finding of guilt on count #3.
Count #2 – Sexual Exploitation – s. 153(1)(b)
[99] As indicated above, count #2 also relates to the accused’s asking K to massage his upper leg. Reviewing the four elements of this offence,
- The Crown has established beyond a reasonable doubt that K was 16 and therefore she was a “young person” at the time.
With respect to the other three elements, as I have already discussed above, the Crown has proven beyond a reasonable doubt that
the accused invited K to touch the accused’s upper leg;
the invitation, counselling, or incitement to touch was for a sexual purpose; and
the accused was in a position of trust towards K.
[100] There shall be a finding of guilt on count #2.
Count #1 – Sexual Exploitation – s. 153(1)(a)
[101] As indicated above, count #1 is in relation to K and is based on the accused putting her toes in his mouth. As refined for the allegations in this case, this offence has four essential elements:
K was a “young person” at the time;
the accused intentionally touched K by putting her toes in his mouth and by licking her toes;
the touching was for a sexual purpose; and
the accused was in a position of trust or authority towards K.
[102] For the reasons already provided above, I find that the Crown has proven all these elements beyond a reasonable doubt.
[103] There shall be a finding of guilt on count #1 of the indictment.
Applying R. v. Kienapple
[104] Before entering any convictions for the five counts on the indictment, I will hear from counsel regarding the application of R. v. Kienapple, 1974 CanLII 14 (SCC), [1975] 1 S.C.R. 729.
Chown J.