R. v. J.J. and J.M., 2023 ONSC2360

COURT FILE NO.: 170/18 DATE: 2023/04/13

ONTARIO SUPERIOR COURT OF JUSTICE

BETWEEN:

HIS MAJESTY THE KING

– and –

J.J. and J.K.M. Defendants

Counsel: James Spangenberg, for the Crown The defendant J.J. self-representing, but assisted with cross-examination by Ryan M. Fritze Elizabeth Ferris, for the defendant J.K.M.

HEARD: January 6, 7, 8, 9, 10, 2020, and December 14, 2022

RESTRICTION ON PUBLICATION

By court order made under s. 486.4(1) of the Criminal Code, information that may identify the person described in this judgment as the complainant may not be published, broadcasted or transmitted in any manner. This judgment complies with this restriction so that it can be published.

486.4(1)(a)(i)

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judge or justice may make an order directing that any information that could identify the victim or a witness shall not be published in any document or broadcast or transmitted in any way, in proceedings in respect of

• (a) any of the following offences: o (i) an offence under section 151, 152, 153, 153.1, 155, 160, 162, 163.1, 170, 171, 171.1, 172, 172.1, 172.2, 173, 213, 271, 272, 273, 279.01, 279.011, 279.02, 279.03, 280, 281, 286.1, 286.2, 286.3, 346 or 347,

Justice I.F. LEACH

1J.J. and J.K.M., the two co-accused defendants in this proceeding, are each charged with one count of sexual assault, contrary to section 271 of the Criminal Code of Canada, (“the Code”), and one count of sexual exploitation, contrary to section 153 of the Code.

2The charges stem from events that are alleged to have taken place between January 1, 2004, and [a specified date], 2008, here in the City of London. In that regard, and only by way of an initially broad overview of the Crown’s allegations:

a. It is said that, over the relevant time period, the complainant, (then identifying as a young male named J.W. also known as J.C., but by the time of trial self-identifying as a female known as J.L.C.), was a troubled young person, without a stable family or home, and without resources to live independently in a safe manner, who was invited into the adult defendants’ London home from time to time, and was there provided with shelter, food and other items on an intermittent basis.

b. It is also said that, during the said time period, the defendants – acting together and/or separately – engaged in sexual activity with that young person in circumstances constituting the offences of sexual assault and sexual exploitation.

3Specifically, the two counts of the indictment, as amended, read as follows:

Count #1: J.J. AND J.K.M. STAND CHARGED THAT they, between the 1^st day of January in the year 2004 and [a specified date] in the year 2008 at the City of London, in the said region, did commit a sexual assault on J.W., also known as J.C., contrary to section 271, subsection (1) of the Criminal Code of Canada.

Count #2: AND FURTHER J.J. AND J.K.M. STAND CHARGED THAT they, between the 1^st day of January in the year 2004 and [a specified date] in the year 2008 at the City of London, in the said region did, being a person who in a position of trust or authority towards a young person, with a part of his body, for a sexual purpose, directly or indirectly touch the body of that young person, namely J.W., also known as J.C., contrary to Section 153, subsection (1.1), clause (a) of the Criminal Code of Canada.

4Both defendants originally elected to be tried in this court by a judge and jury, but subsequently re-elected, with the consent of the Crown, to trial in this court by judge alone.

5By way of some further preliminary comments on the proceedings:

a. Although the defendant Mr M. has been represented in these proceedings almost from the outset by his counsel Ms Ferris, the defendant Mr J.’s efforts to retain a lawyer were unsuccessful, (e.g., including denial of his application for legal aid, and a dismissal of his formal application for assistance pursuant to what is known in the vernacular as a “Rowbotham application”), and he accordingly has remained formally self-representing for most of these proceedings.

b. At the request of the Crown, an order nevertheless was made pursuant to s.486.3(2) of the Code, directing that Mr J. not personally cross-examine the complainant, (when called as a Crown witness), and appointing Mr Fritze to assist Mr J. for that limited purpose. Although Mr Fritze then attended and participated in the trial on that limited basis, Mr Fritze withdrew from further participation in the proceeding once that role had been fulfilled.

c. Following an abortive attempt to commence the trial herein on January 6, 2020, (when unexpected complications prevented the timely attendance of the complainant as the Crown’s first and principal witness), the trial proper began with arraignment of the defendants on the morning of January 7, 2020, at which time each defendant was arraigned and entered pleas of “not guilty” in relation to each of the two counts set forth in the indictment. The trial thereafter continued without interruption until January 10, 2020, with presentation of the Crown’s case. Evidence tendered in that regard included:

i. the completion of testimony from two witnesses called by the Crown, namely the complainant Ms C. and a friend of hers named J.G.;

ii. the Crown’s filing of exhibits that included video-recorded statements made to the police by each defendant after being arrested, (which were found to be voluntary pursuant to my earlier ruling on the Crown’s pretrial application in that regard), together with transcripts corresponding to each video-recording, (which I had confirmed to be accurate, subject to required corrections indicated in schedules appended to my pre-trial ruling on the Crown’s aforesaid voluntariness application), and copies of the schedules that had been appended to my ruling on the Crown’s voluntariness application; and

iii. the Crown’s filing, as a further exhibit, an Agreed Statement of Facts for purposes of the trial.

d. On January 10, 2020, further progress of the trial nevertheless had to be postponed owing to the sudden illness of the self-representing Mr J.. That happened prior to completion of the Crown’s case, (in respect of which a further witness was contemplated), and the defendants being put to their formal election concerning their possible presentation of evidence.

e. Unfortunately, continuation and completion of the trial thereafter were delayed by numerous events documented on the record, including onset of the COVID-19 pandemic, health concerns of the defendants and further complications. In the result, the matter did not come back before me until December 14, 2022. On that date:

i. Mr Spangenberg indicated on behalf of the Crown that no more Crown witnesses would be called, or further Crown evidence would be led, and the case for the Crown was formally closed.

ii. Each defendant was put to his formal election as to whether he would present evidence, and each defendant elected not to do so, bringing the evidentiary portion of the trial to a close.

iii. I then received closing submissions from Mr Spangenberg for the Crown, from Ms Ferris for the defendant Mr M., and from the defendant Mr J. personally. In that regard, Mr J. provided his comments last by agreement of the parties, (i.e., after hearing the closing submissions made by Ms Ferris), despite the order that might otherwise have been dictated by the order in which the defendants were named in the indictment. In that way, the self-representing Mr J. was able to adopt, (at least to the extent he legally was able to do so), the submissions made by Ms Ferris.

iv. During the course of closing submissions, Mr Spangenberg indicated and confirmed that, in relation to Count 1 of the indictment, the Crown only was seeking verdicts finding the defendants guilty of sexual assault, and not alternative guilty verdicts in relation to the lesser and included offence of assault simpliciter contrary to section 265 of the Code. In the result, it was common ground that, in relation to Count 1 of the indictment, the two possible verdicts for the court’s consideration should be “not guilty” or “guilty of sexual assault”.

6Following completion of the trial herein, I formally reserved my decision, and the matter was adjourned to February 27, 2023, for contemplated oral delivery of my decision. When that day arrived, I nevertheless was called upon to hear another matter, on an emergency basis. In the result, oral delivery of my trial decision was postponed until March 29, 2023. Illness unfortunately prevented my attendance that day, and oral delivery of my trial decision was put over to today.

The legislative framework: relevant provisions of the Criminal Code

7Before proceeding further, I think it helpful to clarify and confirm my view as to the relevant and applicable legislative provisions of the Code, which provide the primary governing framework for consideration of the formal charges brought against the defendants.

8The advisability of doing so seems particularly important in this case, insofar as the charges relate to events that are said to have happened not only many years ago, but also over the course of a somewhat extended period of many years, in turn giving rise to a reality that:

a. a number of Code provisions relating to the matter have been amended since the period in question; and

b. a number of those Code provisions were amended even during the course of the relevant time period specified in the indictment.

9As noted above, that relevant time period specified in the indictment extends from January 1, 2004, to [a specified date], 2008.

10Turning first to provisions of the Code relating to sexual assault:

a. From 1985 onwards, the offence of sexual assault has been addressed by section 271 of the Code. From 1994 to 2012, (covering the entire period specified in the indictment), the relevant substantive portions of section 271 not related to sentencing and summary proceedings read as follows:

271. (1) Every one who commits a sexual assault is guilty of:

(a) an indictable offence …

b. Subsequent amendments to section 271 of the Code have not altered that substantive text, although changes were made to the relevant paragraph and sub-paragraph numbering and lettering, such that the provisions currently are found in what is now s.271(a) of the Code. Count 1 of the indictment in this case nevertheless quite properly refers to s.271(1) of the Code, reflecting how the Code stood at the time of the alleged sexual assault offence.

c. As addressed in more detail below, the absence of complainant consent and an accused’s knowledge in that regard have remained essential elements of “sexual assault” at all material times. For present purposes, that reality also engages, inter alia, the provisions of s.273.1 (1) and s.273.1(2)(c) of the Code, which have remained unchanged since their addition to the Code in 1992 and read in part as follows:

273.1 (1) Subject to subsection (2) …, “consent” means, for the purposes of section … 271, … the voluntary agreement of the complainant to engage in the sexual activity in question.

(2) For the purpose of subsection (1), no consent is obtained if …

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

d. As Ms Ferris raised the possibility of an “honest but mistaken belief in consent” in her closing submissions, I also have regard to s.273.2 of the Code which, despite its current incarnation, read in part as follows from 2003 to 2018, and therefore over the entire period specified in the indictment:

273.2. It is not a defence to a charge under section 271 … that the accused believed that the complainant consented to the activity that forms the subject-matter of the charge, where:

a. the accused’s belief arose from the accused’s

i. self-induced intoxication, or

ii. recklessness or wilful blindness; or

b. the accused did not take reasonable steps, in the circumstances known to the accused at the time, to ascertain that the complainant was consenting.

11As for the offence which commonly has been referred to as “sexual exploitation”, (although express reference to “exploitation” has not always been included in the wording of the relevant Code provisions), I note the following:

a. The offence has always been addressed by section 153 of the Code.

b. From 1985 to November 1, 2005, (and therefore between January 1, 2004, and November 1, 2005, during what I will call “the initial portion” of the relevant time period specified in the indictment in this case), the substantive provisions of section 153 not related to sentencing and summary proceedings read as follows:

153. (1) Every person commits an offence 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 …

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

c. Between November 1, 2005, and May 1, 2008, (and therefore during what I will call “the middle portion” of the relevant time period specified in the indictment in this case), the substantive provisions of section 153 of the Code not related to sentencing were amended and restructured to read as follows:

153. (1) Every person commits an offence who is in a position of trust or authority towards a young person, who is a person with whom the young person is in a relationship of dependency or who is in a relationship with a young person that is exploitative of the young person, 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. …

(1.2) A judge may infer that a person is in a relationship with a young person that is exploitative of the young person from the nature and circumstances of the relationship, including

a. the age of the young person;

b. the age difference between the person and the young person;

c. the evolution of the relationship; and

d. the degree of control or influence by the person over the young person.

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

d. From May 1, 2008, into 2012, (and therefore during what I will call “the final portion”, or last nine weeks or so, of the relevant time period specified in the indictment in this case), the substantive provisions of section 153 of the Code not related to sentencing and summary proceedings read precisely as they had between November 1, 2005, and May 1, 2008, except that s.153(2) of the Code had been amended to read as follows:

153 (2) In this section, “young person” means a person 16 years of age or more but under the age of eighteen years.

e. Finally, I note the changing nature of s.150.1(1) of the Code, which effectively addresses the age at which complainants are able to provide valid consent to sexual activity, subject to other applicable provisions of the Code. In that regard:

i. Between January 1, 2004, and May 1, 2008, (i.e., all but approximately the last nine weeks of the relevant time period specified in the indictment in this case), s.150.1(1) apparently read in part as follows:

150.1 (1) … [W]hen an accused is charged with an offence under … subsection 153(1) … or is charged with an offence under section 271, … in respect of a complainant under the age of fourteen years, it is not a defence that the complainant consented to the activity that forms the subject-matter of the charge. [Emphasis added.]

ii. From May 1, 2008, to date, (and therefore during approximately the last nine weeks of the relevant time period specified in the indictment in this case), s.150.1(1) has read in part as follows:

150.1 (1) … [W]hen an accused is charged with an offence under … subsection 153(1) … or is charged with an offence under section 271, … in respect of a complainant under the age of 16 years, it is not a defence that the complainant consented to the activity that forms the subject-matter of the charge. [Emphasis added.]

iii. In short, what is sometimes referred to informally as the “legal age of consent” to sexual activity in Canada generally was raised from 14 to 16 as of May 1, 2008, leaving aside age proximity qualifications that have no application to this case.

12With those legislative provisions of the Code in mind, I turn next to an overview of general principles relevant to their proper interpretation and application.

General substantive principles – sexual assault and sexual exploitation

13Turning first to the offence of sexual assault:

a. Pursuant to authorities such as R. v. Daigle, 1998 CanLII 786 (SCC), [1998] 1 S.C.R. 1220, and R. v. Ewanchuk, 1999 CanLII 711 (SCC), [1999] 1 S.C.R. 330, the essential elements of the offence of “sexual assault” – effectively an assault within the meaning of section 265 of the Code committed in circumstances of a sexual nature -- are well-established. As we routinely indicate to our criminal juries in the course of standard jury instructions, (see David Watt, Watt’s Manual of Criminal Jury Instructions, 2d. ed., at pp.598-602), the four essential elements of a “sexual assault” offence, which the Crown must prove beyond a reasonable doubt for a finding of guilt, are:

i. an intentional (as opposed to accidental) application of force by the accused to the complainant, whether direct or indirect, and regardless of how violent or gentle that application of force may have been;

ii. the complainant’s lack of consent to that intentional application of force, predicated on the complainant’s knowledge of what was going to happen and a decision by the complainant, (via an exercise of his or her free will, without the influence of force, threats, fear or abuse of authority), to let that intentional application of force occur;

iii. the accused’s knowledge, (whether actual knowledge, or knowledge based on recklessness or wilful blindness), that the complainant did not consent to the force which the accused intentionally applied; and

iv. that the intentional application of force took place in circumstances of a sexual nature.

b. As emphasized by authorities such as R. v. Cook (1985), 1985 CanLII 641 (BC CA), 20 C.C.C. (3d) 18 (B.C.C.A.), R. v. Chase, 1987 CanLII 23 (SCC), [1987] 2 S.C.R. 293, R. v. Litchfield, 1993 CanLII 44 (SCC), [1993] 4 S.C.R. 333, R. v. K.B.V., 1993 CanLII 109 (SCC), [1993] 2 S.C.R. 857, and R. v. Higginbottom (2001), 2001 CanLII 3989 (ON CA), 156 C.C.C. (3d) 178 (Ont.C.A.), the test for determining whether an assault took place in circumstances of a sexual nature is an objective one, and does not focus merely on matters of anatomy. All circumstances surrounding the relevant conduct are relevant to the issue of whether the conduct was of a sexual nature and violated the complainant’s sexual integrity and/or dignity. In that regard, a trier should consider numerous factors, including the body part touched, the nature of the contact, any words or gestures (including possible threats) accompanying the conduct, the accused’s intent or purpose, including the presence or absence of sexual gratification, (although sexual assault does not require sexuality or sexual gratification), and all the surrounding circumstances.

c. As they have particular suggested relevance to this case, I will note again that the provisions of s.273.1(2)(c) of the Code will vitiate any ostensible consent of a complainant, in the context of an alleged sexual assault, if an accused “induces the complainant to engage in the [relevant] activity by abusing a position of trust, power or authority”. In that regard:

i. If the Crown relies upon s.273.1(2)(c) to vitiate a complainant’s ostensible consent to an alleged sexual assault under section 271 of the Code, the onus is on the Crown to establish the requisite factual underpinning for application of s.273.1(2)(c). See R. v. A.H., [2000] O.J. No. 3258 (C.A.), at paragraph 12.

ii. Appellate authority has emphasized that the clear aim of s.273.1(2)(c) of the Code is the protection of the vulnerable and the weak, and the preservation of the right to freely choose to consent to sexual activity. See R. v. A.H., supra, at paragraph 17, and the authorities cited therein, as well as R. v. Snelgrove, 2019 SCC 16, [2019] 2 S.C.R. 98, at paragraph 3.

iii. In applying s.273.1(2)(c) of the Code, courts have turned to authorities addressing section 153 of the Code for guidance as to the meaning of a “position of trust” and/or a “position of authority”. See, for example, R. v. T.R., [1996] O.J. No. 4945 (Gen.Div.), at paragraphs 15-17. I therefore will return in more detail, when addressing general principles relevant to the offence of “sexual exploitation”, to authorities discussing the nature of relationships involving positions of “trust” or “authority”.

iv. At the same time, appellate authority has noted that there is “little direct authority” on the meaning of “position of power” referred to in s.273.1(2)(c) of the Code, except to say that it is probably a broader term, and therefore less formalized or structured, when contrasted to positions of “trust” or authority”, and apparently connotes an “imbalance of power”. Again, see R. v. A.H., supra, at paragraph 17.

v. For now, I note that inducing consent by abusing the relationships set out in s.273.1(2)(c) does not imply the same degree of coercion contemplated by s.265(3)(d) of the Code, which speaks to consent obtained where a complainant submits or does not resist by reason of the “exercise of authority”. It nevertheless does include circumstances in which a person in a position of trust over another used the personal feelings and confidence engendered by that relationship to secure an apparent consent to sexual activity. See, for example: R. v. Lutoslawski (2010), 2010 ONCA 207, 258 C.C.C. (3d) 1 (Ont.C.A.), affirmed 2010 SCC 49, [2010] 3 S.C.R. 60; and R. v. Snelgrove, supra.

vi. I also note that operation of s.273.1(2)(c) of the Code, so as to vitiate the ostensible consent of a complainant to sexual activity, expressly requires not merely the existence of a relationship involving a position of trust, power or authority, but also proof beyond a reasonable doubt that the accused induced the complainant to engage in the relevant activity by actually abusing or misusing that position; an added requirement not needed to make out the offence of “sexual exploitation” addressed by section 153 of the Code. See R. v. A.H., supra, at paragraph 13, and R. v. Audet, 1996 CanLII 198 (SCC), [1996] 2 S.C.R. 171, at paragraphs 13, 22 and 23.

14Turning next to the comparatively less common offence of “sexual exploitation”, general principles in that regard include the following:

a. While consent generally is a defence to a charge of sexual assault, Parliament has recognized that consent is a frail and unreliable concept in cases involving young persons. In particular, young persons may consent or appear to consent in relationships with certain classes of people when such consent is not true consent, or at least not a consent which, for policy purposes, the state is prepared to accept as true consent. As a matter of principle, adults with positions of influence or example should not be permitted to take advantage of that influence or power for self-gratification, and young people who are unable by reason of immaturity to make appropriate choices for their own behaviour should be protected from those who may be inclined to take advantage of them. See R. v. P.S., [1993] O.J. No. 704 (Gen.Div.), at paragraph 21, affirmed [1994] O.J. No. 3775 (C.A.); and R. v. Ogden, [1993] N.S.J. No. 346 (S.C.), at paragraph 20.

b. Parliament responded to such concerns by the passage of section 153 of the Code; i.e., to protect young persons who are in a vulnerable position towards certain persons because of an imbalance inherent in the nature of the relationship between them. See R. v. Audet, supra, at paragraphs 14 and 20.

c. In doing so, Parliament has focused on prohibiting sexual relations between young persons and persons with whom they share a special type of relationship; i.e., the purpose of section 153 of the Code is to make it clear that persons in specified types of relationships with a young person are not to engage in sexual activity with that young person, even though there is apparent consent. In particular, the section commands citizens dealing with children in a relationship of trust, authority, dependency or exploitation not to act on apparent consent of that child to any of the sexual activities described in s.153(1)(a) and (b) of the Code. Total responsibility is placed upon the adult to avoid the forbidden activity. See R. v. Hann, [1992] N.J. No. 203 (C.A.). at paragraph 15; R. v. T.F.G., [1992] O.J. No. 264 (C.A.), at paragraph 6; R. v. P.S., supra, at paragraph 29; R. v. Ogden, supra, at paragraph 16; R. v. Galbraith, 1994 CanLII 215 (ON CA), [1994] O.J. No. 808 (C.A.), at paragraph 13; R. v. Audet, supra, at paragraph 16; R. v. V.R., [2001] O.J. No. 2317 (S.C.J.), at paragraph 8; and R. v. Anderson, 2009 PECA 4, [2009] P.E.I.J. No. 7 (C.A.), at paragraphs 49 and 52-53.

d. As noted in passing above, the duty imposed by section 153 of the Code is not limited to cases where the Crown can show some connection between the type of relationship between an accused and the young person addressed by section 153 of the Code, on the one hand, and the young person’s apparent consent to sexual activity on the other. In particular, section 153 of the Code does not require proof of any nexus between the relationship position held by the accused vis-à-vis the young person and the giving of consent by the young person to the sexual activity; i.e., the Crown need not prove, as a constituent element of the section 153 offence of sexual exploitation, that an accused actually exploited his or her position of trust, position of authority, relationship of dependency or exploitative relationship vis-à-vis a young person. See R. v. T.F.G., supra, at paragraphs 5-6; R. v. Audet, supra, at paragraphs 13, 17-19, and 22-26; R. v. L.R.L., [2000] N.S.J. No. 251 (C.A.), at paragraph 67; and R. v. V.R., supra, at paragraph 8. Again, that represents an obvious distinction between section 153 and s.273.1(2)(c) of the Code; i.e., insofar as s.273.1(2)(c) negates or vitiates apparent consent to sexual activity, in relation to specified forms of sexual assault, only where it is established that an accused abused his or her position of trust, power or authority to induce the complainant’s ostensible consent to sexual activity. Subsection 273.1(2)(c) therefore requires proof of a nexus between an accused’s position of trust, power or authority and a complainant’s consent, whereas section 153 of the Code does not.

e. Nor is lack of consent an essential element of the “sexual exploitation” offence created by section 153 of the Code. Were it otherwise, the entire purpose of the provisions contained therein would be frustrated. See R. v. P.S., supra, at paragraphs 26-30, and the additional authorities cited therein.

f. In cases where an accused is charged with “sexual exploitation” contrary to section 153 of the Code, and the Crown relies on alleged sexual touching of a young person by the accused, as addressed by s.153(1)(a) of the Code, Crown counsel must prove each of the following essential elements beyond a reasonable doubt to secure a conviction:

i. that the complainant was a “young person” at the relevant time;

ii. that the accused touched the complainant;

iii. that the touching was for a sexual purpose; and

iv. that, at the time the acts in question were committed, the accused was in a position of trust towards the complainant, a position of authority towards the complainant, a relationship of dependency vis-à-vis the complainant, or a relationship of exploitation vis-à-vis the complainant.

See R. v. Audet, supra, at paragraph 16; R. v. L.R.L., supra, at paragraph 67; and David Watt, Watt’s Manual of Criminal Jury Instructions, 2d ed. (Toronto: Thompson Reuters Canada Limited, 2015), at pp.579-580.

g. In cases where an accused is charged with “sexual exploitation” contrary to section 153 of the Code, and the Crown relies on an accused’s invitation to sexual touching by the young person, as addressed by s.153(1)(b) of the Code, Crown counsel must prove each of the following essential elements (including their requisite mens rea) beyond a reasonable doubt to secure a conviction:

i. that the complainant was a “young person” at the relevant time;

ii. that the accused invited, counselled or incited the complainant to touch the body of the complainant, the accused or any other person;

iii. that the touching that the accused invited, counselled or incited was for a sexual purpose; and

iv. that, at the time the acts in question were committed, the accused was in a position of trust towards the complainant, a position of authority towards the complainant, a relationship of dependency vis-à-vis the complainant, or a relationship of exploitation vis-à-vis the complainant.

See R. v. Audet, supra, at paragraph 16, and David Watt, Watt’s Manual of Criminal Jury Instructions, (2d ed.), supra, at pp.587-588.

h. While inherent in the above framing of the essential elements to be proven by the Crown beyond a reasonable doubt in order to secure a conviction in relation to section 153 of the Code, the inherent importance and necessity of Crown counsel proving a literal coincidence of all essential elements of the offence should be noted and emphasized. In other words, to secure a conviction, the Crown effectively must not only prove beyond a reasonable doubt that the complainant was a young person, that the accused intentionally engaged in one of the sexual activities described in s.153(1)(a) or (b) with the young person, and that the accused was in a relationship of trust, power, dependency or exploitation vis-à-vis the young person, but also prove beyond a reasonable doubt that all those essential elements of the offence existed or occurred at the same time. For example:

i. To secure a section 153 conviction, it would not suffice for the Crown to prove beyond a reasonable doubt that the accused intentionally touched a complainant for a sexual purpose while in a relationship of trust, authority, dependency or exploitation with the complainant, unless the Crown also was able to prove beyond a reasonable doubt that the complainant also was a “young person” at the relevant time.

ii. Similarly, to secure a section 153 conviction, it would not suffice for the Crown to prove beyond a reasonable doubt that the accused intentionally touched a young person for a sexual purpose unless the Crown also was able to prove beyond a reasonable doubt that the accused’s sexual touching of the young person occurred at a time when the requisite relationship of trust, authority, dependency or exploitation existed. In that regard, it should be recognized that relationships are not static but evolve and change over time. Again, see R. v. Ogden, supra, at paragraph 13. See also s.153(1.2)(c) of the Code, wherein Parliament expressly noted the importance of considering evolution of a relationship; e.g., as a factor in determining the existence of a relationship with a young person that is exploitative of the young person. A position of trust, position of authority, relationship of dependency, or relationship that is exploitative therefore may exist between an accused and a young person at some points in time but not at others, including the time of an alleged offence. Indeed, the Supreme Court of Canada has emphasized that one of the difficulties that undoubtedly will arise in some cases concerns the determination of the times when the “position” or “relationship” in question begins and ends. See R. v. Audet, supra, at paragraph 38. For examples of cases and situations highlighting that necessary temporal focus, see R. v. J.B.M., 2000 CanLII 10803 (MB CA), [2000] M.J. No. 113 (C.A.), at paragraphs 10, 12 and 15; R. v. V.R., supra, at paragraphs 5 and 25; R. v. Anderson, supra, at paragraphs 6, 8, 52, 65 and 78-81; and R. v. Martin, 2011 ONCJ 401, at paragraphs 5-6.

i. Parliament chose not to define the terms “position of trust”, “position of authority”, “relationship of dependency” and “relationship with a young person that is exploitative of the young person” used in section 153 of the Code. See R. v. Anderson, supra, at paragraphs 55 and 67.

j. When determining whether the requisite relationship of trust, authority, dependency or exploitation existed for the purposes of section 153 of the Code, it also should be remembered that Parliament deliberately refrained from adopting an approach, (recommended by “The Report of the Committee on Sexual Offences Against Children and Youths”, also known as “the Badgley Report”, which was released in 1986 and prompted the enactment of section 153 and other Code amendments addressing sexual offences), whereby certain types of relationships would be “conclusively deemed” to constitute such categories of relationship. The question of whether an accused person stands in such a relationship towards a young person complainant is instead a mixed question of law and fact to be approached as a very case specific inquiry; i.e., one to be determined based on the particular context and circumstances of each case, with no one factor being decisive. It will be up to the trier to determine, on the basis of all the relevant factual circumstances, the characterization of the relationship between a young person and an accused. See R. v. P.S., supra, at paragraphs 32 and 34; R. v. Chisholm, [1995] O.J. No. 3301 (Gen.Div.), at paragraphs 9 and 10; and R. v. Audet, supra, at paragraph 38.

k. It must also be remembered that the appropriate focus is the accused person’s position towards, or relationship with, the young person. How that position or relationship is viewed by others may be relevant, but not determinative. See R. v. D.B.L. (1995), 1995 CanLII 2632 (ON CA), 25 O.R. (3d) 649 (C.A.), at paragraph 7.

l. Moreover, the relevant “disentitling condition”, (i.e., the special position or relationship of trust, authority, dependency or exploitation that disentitles an accused from relying upon the ostensible consent of a young person to sexual activity, and effectively prohibits the accused from engaging in sexual activity with such a young person despite ostensible consent), must exist independently of the sexual relationship. In other words, the disentitling conditions must be proven in a manner independent of the alleged sexual conduct. See R. v. Galbraith, supra, at paragraph 14; R. v. Chisholm, supra, at paragraph 7; and R. v. Anderson, supra, at paragraphs 53 and 64. For example, it is a material error of law to reason that proof beyond reasonable doubt of sexual conduct between an accused and a young person is proof that the relationship was exploitative. See R. v. Anderson, supra, at paragraph 94.

m. It nevertheless should be borne in mind that the Crown need only prove beyond a reasonable doubt that the accused was, at the relevant time, in at least one of the four separate categories of relationship giving rise to the prohibition created by section 153 of the Code; i.e., that the accused was, vis-à-vis the relevant young person, in a position of trust, or a position of authority, or a relationship of dependency, or a relationship that was exploitative. In other words, each type or category of relationship specified by section 153 of the Code constitutes a different and separate circumstance in which the offence may be committed, and only one of those circumstances need be proved to constitute the offence. If the evidence supports the placement of an accused in any one of the categories, at the relevant time, that will suffice to prove that essential element of the offence despite excessive averments in the indictment making reference to more than one of the categories. See R. v. Audet, supra, at paragraph 16; and R. v. J.B.M., supra, at paragraphs 27-28.

n. As to what kind of situations fall within the category of a “position of trust”:

i. In this context, what is in question is not the specialized concept of the law of equity called a “trust”. See R. v. P.S., supra, at paragraph 36, and R. v. Audet, supra, at paragraph 35.

ii. Nor are sentencing decisions referring to “trust” necessarily concerned with the concept of trust to which section 153 of the Code refers. See R. v. D.B.L., supra, at paragraph 15.

iii. Recognizing that the concept of a “position of trust” is difficult to define in the absence of a factual context, and that it would be inappropriate to attempt a precise delineation of its limits in a factual vacuum, (See R. v. Audet, supra, at paragraph 37), our courts instead have provided more general descriptions and indications of the type of relationship contemplated by reference to a “position of trust” in this particular context. For example:

1. It has been said that the question of whether an accused was in a “position of trust” vis-à-vis a young person focuses on a broad social or societal relationship between two people. In such a context, appropriate definitions of “trust” include “a firm belief in the reliability or truth or strength of a person”, and “confidence in or reliance on some quality or attribute of a person”. In particular, where the nature of a 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 may assume a position vis-à-vis the young person where those concepts of reliability and truth and strength are put to the test. Taken together, all of those factors may combine to create a “position of trust” towards the young person. Primarily, a “position of trust” is founded on notions of safety and confidence and reliability that the special nature of the relationship will not be breached. See R. v. P.S., supra, at paragraphs 36 and 37; and R. v. Audet, supra, at paragraph 35.

2. It also has been said that, in this context, “trust” is a value that the young person is entitled to put on a relationship; a relationship that develops by natural evolution over a period of time, (i.e., as opposed to a “new” relationship), and one which involves the trust held by a young person in the good judgment and good intentions of the recipient of that trust. See R. v. Ogden, supra, at paragraphs 13 and 17.

iv. It would be excessively formalistic to refuse to recognize that certain persons, (e.g., teachers), by reason of the role entrusted to them by society, will in fact and in the vast majority of cases come within the ambit of section 153 by reason of their status vis-à-vis the young person and, in particular, the relationship they are engaged in with that young person as a consequence of that status. See R. v. Audet, supra, at paragraph 40. However, Parliament did not elect to prohibit sexual contact with a young person by referring to the status of the accused in relation to the young person, so that factor cannot be decisive in itself. See R. v. Audet, supra, at paragraph 39. The issue of whether an accused is in a position of trust therefore must remain fact-dependent, and no fixed definition of “position of trust” will fit all cases. See R. v. D.B.L., supra, at paragraph 11.

v. It similarly would be inappropriate to try to set out an exhaustive list of the factors to be considered by the trier of fact in that regard. However, the age difference between the accused and the young person, the evolution of their relationship, the circumstances in which the alleged offence was committed, and above all the status of the accused in relation to the young person will be relevant in many cases. See R. v. Audet, supra, at paragraphs 38; and R. v. J.B.M., supra, at paragraph 16.

vi. A large age gap between an accused and a complainant may go to support a conclusion that the accused was in a “position of trust” towards the complainant, and the fact of a relatively small age gap between an accused and a complainant, (e.g., of less than two years), may work to support the opposite conclusion. The closer in ages of the accused and the complainant, the more ambiguous their relationship may be; i.e., in situations where there is a closeness in age, the relevance and application of exploitation by the accused and the vulnerability of the complainant may be somewhat blurred. In practical terms, cases where a young person close in age to the complainant has been entrusted with sufficient responsibility to be considered as having been in a “position of trust” toward the complainant are possible but infrequent. However, a difference in age between the accused and a young person, whether large or small, is not alone sufficient to create or negate a position of trust. See R. v. D.B.L., supra, at paragraphs 9 and 13-14.

vii. It should also be remembered that, while the existence of a trust relationship and corresponding “position of trust” often will be accompanied by indicia of a “position of authority”, (e.g., an authority by the dominant person over the other), and/or a “relationship of dependency”, that is not essential to the existence of a “position of trust” for the purposes of section 153 of the Code. In other words, there may be cases where there is a trust relationship and corresponding “position of trust”, but no “position of authority” or “relationship of dependency”. In particular, while there may be some similarities between a position of “trust” and a position of “authority”, the terms “trust” and “authority” are not interchangeable. To the contrary, a “position of trust” may be “somewhat different” or “significantly” different from a “position of authority”. See R. v. L.R.L., supra, at paragraphs 101 and 103; R. v. D.B.L., supra, at paragraph 11; R. v. P.S., supra, at paragraph 37; and R. v. Ogden, supra, at paragraph 13.

o. As to what kind of situations fall within the category of a “position of authority”:

i. In the absence of a statutory definition, interpreting what constitutes a position of “authority” begins with consideration of the ordinary meaning of the words Parliament has used. In that sense, “authority” has been defined as the “right to command”, a “power or right to enforce obedience”, a “power to influence the conduct and actions of others”, and “superiority of merit or seductiveness that compels unconstrained obedience, respect and trust”. See R. v. Audet, supra, at paragraph 34.

ii. A “position of authority” also 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.), at paragraphs 3-4; and R. v. P.S., supra, at paragraph 37.

iii. In some situations, persons in a “position of authority” may be distinguished from persons in a “position of trust” by the manner in which the relationship is created; e.g., with “persons in authority” being the recipients of authority or power transferred to them by the parents or guardians of a child. See R. v. Ogden, supra, at paragraph 14.

iv. However, in the context of section 153 of the Code, to be in a “position of authority” does not necessarily entail just the exercise of a legal right over the young person, but also a lawful or unlawful “power to command” which the adult may acquire in the circumstances. In other words, the term “position of authority” is not restricted to cases in which the relationship of authority stems from a role of the accused, but extends to any relationship in which the accused actually exercises such a power. Parliament intended to direct the analysis to the nature of the relationship between the young person and the accused, rather than their status in relation to each other. See Léon v. La Reine, 1992 CanLII 3818 (QC CA), [1992] R.L. 478 (Que.C.A.), at p.483, and R. v. Audet, supra, at paragraphs 33 and 34.

v. As in relation to determining the existence of a “position of trust”, a large age gap between an accused and a complainant may go to support a conclusion that the accused was in a “position of authority” towards the complainant, and the fact of a relatively small age gap between an accused and a complainant, (e.g., of less than two years), may work to support the opposite conclusion. However, a difference in age between the accused and a young person, whether large or small, is not alone sufficient to create or negate a position of authority. See R. v. D.B.L., supra, at paragraph 9.

p. As to what kind of situations constitute a “relationship of dependency”:

i. Mere economic dependency of a young person on an accused, (e.g., through a young person receiving necessities of life such as food and/or a place to stay from an accused), will not suffice to create a “relationship of dependency” contemplated by section 153 of the Code. What the section contemplates 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 over the young person along non-traditional lines; e.g., a relationship making the young person particularly vulnerable to the influence of the other person. Hallmarks of such a relationship might include economic dependency coupled with an obvious power imbalance in favour of the accused, exhibited by indications such as violence or coercion, the exercise of physical or psychological control or domination over the young person through other means, (e.g., through an authoritative personality, taking advantage of a young person’s addiction to drugs or alcohol, or a situation where the young person had no reasonable alternatives available to him or her), and/or a demonstrable “quid pro quo” between the provision of economic support and the sexual relationship. See R. v. Galbraith, supra, at paragraphs 14-18.

ii. A relationship of “dependency” in the sense required will not exist where an accused exercised no control over the young person, in the sense that the young person at all material times retained the ability to choose his or her future freely without the influence or control of the accused. In that regard, a limited degree of control or influence over the young person resulting from compatible personalities and/or respect for an accused’s knowledge or understanding will not suffice to establish the sort of power imbalance giving rise to a “relationship of dependency” contemplated by section 153 of the Code; e.g., wherein an accused compels the young person to make decisions contrary to his or her freely expressed will. See R. v. Martin, supra, at paragraphs 1, 20, 26 and 38-40.

iii. A large age gap between an accused and a complainant may go to support a conclusion that a complainant was in a position of “dependency” towards an accused, and the fact of a relatively small age gap between an accused and a complainant, (e.g., of less than two years), may work to support the opposite conclusion. However, a difference in age between the accused and a young person, whether large or small, is not alone sufficient to create or negate a relationship of dependency. See R. v. D.B.L., supra, at paragraph 9.

iv. Because a “relationship of dependency” for the purposes of section 153 is a de facto one which can only be determined after due consideration of all relevant circumstances, the jurisprudence in relation to such matters must develop on a case-by-case basis; i.e., to retain the flexibility that the phrase “relationship of dependency” was intended to provide. See R. v. Galbraith, supra, at paragraph 18.

q. As to what kind of situations constitute a “relationship with a young person that is exploitative of the young person”:

i. As noted above, Parliament did not add express reference to this fourth type of relationship to section 153 of the Code until November 1, 2005. However, as noted above, even before a relationship involving exploitation was treated as an express “stand alone” condition disentitling an accused person from engaging in sexual relations with an ostensibly consenting young person, the offence created by section 153 was referred to as “sexual exploitation”; i.e., suggesting that exploitation of a power imbalance and/or influence vis-à-vis a young person was the common denominator underlying the relationships, identified by section 153, in which Parliament considered sexual relations with a young person to be impermissible. See R. v. Anderson, supra, at paragraphs 63, 69, 71 and 73. Not surprisingly, there accordingly were indications in the authorities that evidence of exploitation of a young person by an accused, in their relationship, would suffice to bring that relationship between an accused and a young person within the ambit of section 153; e.g., as a “relationship of dependency”. See R. v. Chisholm, supra, at paragraph 7.

ii. However, principles of statutory interpretation direct that, by expressly adding a fourth type of specified relationship to section 153 of the Code in 2005, Parliament intended to include a relationship which was not previously included within those that came before; i.e., those involving a “position of trust”, “position of authority” or “relationship of dependency”. In other words, the rules of statutory interpretation direct the court to assume that Parliament did not simply intend to repeat what was already in section 153, but only in different words. To the contrary, the court is entitled to assume that Parliament had some specific purpose in mind when it expanded the special types of relationships where sexual contact with a young person is prohibited. See R. v. Anderson, supra, at paragraphs 69-70. In particular, in adding “a relationship with a young person that is exploitative of the young person” to section 153, Parliament intended to address relationships involving a power imbalance in favour of the accused person, but not one arising from a relationship where the accused was in a position of trust, a position of authority, or a relationship where the young person was in a position of dependency. Whether or not there was such a power balance is to be determined from all the circumstances of the relationship between the accused and the young person, although the trier may infer it from the particular circumstances set forth in s.152(1.2) of the Code. See R. v. Anderson, supra, at paragraph 71.

iii. In that regard, it is worth noting again that, of the four types of relationships specified by section 153, in the course of which sexual activity with a young person has been criminalized, “a relationship with a young person that is exploitative of the young person” is the only one in respect of which Parliament has expressly indicated specific considerations that should be included in the court’s assessment of the nature and circumstances of the relationship. In particular, as also noted above, s.153(1.2) of the Code specifies that a judge may infer that a person is in “a relationship with a young person that is exploitative of the young person” from the “nature and circumstances of the relationship”, including:

1. the age of the young person;

2. the age difference between the person and the young person;

3. the evolution of the relationship; and

4. the degree of control or influence by the person over the young person.

r. More generally, the Supreme Court of Canada has emphasized that the definitions of the section 153 terms used by Parliament, like the determination in each case of the nature of the relationship between the 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. See R. v. Audet, supra, at paragraph 36.

s. Finally, in what is perhaps more of a salutary reminder or caution than a principle, numerous courts approaching the application of section 153, (including our Court of Appeal), have thought it appropriate to emphasize that, however inappropriate, unethical or immoral a relationship may appear to those with a more traditional view of the company a young person should keep, Parliament has seen fit to give more sexual freedom to young persons than the Code previously permitted, and a sexual association between a young person and a much older adult does not become criminal pursuant to section 153 without the “added ingredient” of a position or relationship of trust, authority, dependency or exploitation contemplated by the Code. Prima facie, a significantly older adult was entitled to have sexual relations with a consenting 14-year-old prior to May 1, 2008, in the absence of one of those indicated “disentitling” conditions. Since that date, a significantly older adult has been prima facie entitled to have sexual relations with a consenting 16-year-old, in the absence of one of those indicated “disentitling” conditions. According to our law, age disparity between an accused person and young person does not suffice to make the relationship “unnatural” or criminal. See R. v. Galbraith, supra, at paragraphs 13, 15 and 19; R. v. V.R., supra, at paragraph 9; and R. v. Martin, supra, at paragraphs 4 and 32.

15While on the subject of general principles, I turn next to an indication that I have been and am mindful, throughout this proceeding, of fundamental principles applicable to all criminal cases, as well as principles of evidence that include some worthy of express mention and emphasis in a case such as this.

Fundamental principles, and principles of evidence

16In that regard, I begin by noting that, although all the evidence in the trial before me was led by the Crown, with Mr J. and Mr M. electing not to lead or present evidence, I have in mind throughout my reasons and analysis the presumption of innocence and the burden of proof upon the Crown.

17In particular, according to the constitutional guarantee in s.11(d) of the Charter, Mr J. and Mr M. are each presumed to be innocent, and that presumption of innocence remains with each of them throughout this matter, from beginning to end, in relation to any alleged offence, unless and until the Crown establishes that defendant’s guilt with respect to that alleged offence beyond a reasonable doubt. That is a heavy burden and, in relation to the essential elements of each charge against each accused, never shifts.

18Each defendant accordingly had and has no obligation whatsoever to establish his innocence and, in relation to each defendant, I accordingly attach no significance to the fact that he gave or led no evidence at trial.

19Having said that, I nevertheless also am mindful that this is a situation where I effectively have been presented with an account provided by each accused, (i.e., through the admissible video-recorded statements made by the defendant Mr M. to Officer John Matthews of the London City Police Service on December 22, 2016, and through the admissible video-recorded statements made by the defendant Mr J. to Officer Dale Howe of the London City Police Service on December 27, 2016), to consider along with accounts provided by the complainant in her testimony, and the testimony provided by the complainant’s friend J.G..

20Although each defendant chose not to testify on his own behalf, I nevertheless therefore am mindful of the principles underscored by R. v. W.(D.), 1991 CanLII 93 (SCC), [1991] 1 S.C.R. 742, wherein the Supreme Court of Canada emphasized that reasonable doubt may arise in various ways; ways that are not restricted to acceptance of exculpatory testimony or an exculpatory account given by an accused. In particular:

a. It is not appropriate for a trier to decide a case by simply determining whether the trier accepts or rejects allegations of misconduct by an accused made by a complainant and/or others, or to reduce the matter to an effective “credibility contest” between accusers and an accused in that regard; i.e., by determining that the complainant and/or others alleging misconduct on the part of a defendant presented a comparatively more credible account than the account presented by the accused person, and deciding the case against the accused person on that basis. It is not the task of a trier of fact to determine which of two competing versions of an event is true.

b. The trier instead has to consider all the evidence, and decide whether the trier has been satisfied beyond a reasonable doubt that all the essential elements of a particular crime charged against the accused have been established. In other words, the trier’s task is to determine whether the Crown has met its burden of proving the elements of an offence beyond a reasonable doubt.

c. Certainly, if the trier believes and accepts the exculpatory testimony or account of an accused person, in relation to a charged offence, then the trier obviously must acquit that accused in relation to that charge.

d. However, even if the trier does not believe and accept an accused’s exculpatory testimony or account, in relation to a charged offence, the trier must still acquit the accused of the crime charged if that testimony or account raises a reasonable doubt in the trier’s mind; e.g., as to whether the essential elements of that particular offence have been established.

e. Moreover, even if the trier does not believe the exculpatory testimony or account of an accused in relation to a charged offence, and that testimony does not leave the trier with a reasonable doubt as to whether the essential elements of that particular offence have been established, the trier must still ask whether, having regard to the evidence the trier does accept, and looking at the case in its totality, the trier is convinced that the accused is guilty beyond a reasonable doubt of that charged offence; i.e., because the essential elements of that offence have been established beyond a reasonable doubt.

21I am mindful that a reasonable doubt is not an imaginary or frivolous doubt. Nor is it a doubt based upon sympathy or prejudice. Rather, it is a doubt based on reason and common sense, logically derived from the evidence or from the absence of evidence; i.e., from what the Crown has failed to prove. See R. v. Lifchus, 1997 CanLII 319 (SCC), [1997] 3 S.C.R. 320. Moreover, as emphasized by our Court of Appeal in R. v. Darnley, 2020 ONCA 179:

a. an inference giving rise to reasonable doubt need not arise from “proven facts”, (a standard never applicable to an accused), because that would suggest an obligation to establish such facts to a standard of proof, whereas a reasonable doubt can arise from evidence that, while not proven to be true to any standard of proof, has not been rejected;

b. it is also incorrect to link a reasonable doubt to a “conclusion” drawn from the facts, as an acquittal need not be based on a conclusion about innocence but may rest on an inability to conclude guilt; and

c. it is also an error to suggest that an exculpatory inference must be a much stronger conclusion than a speculation or a guess, as such language imports the need for a strong inference, when an exculpatory inference relating to a required element of the offence need merely raise a reasonable doubt.

22In a case such as this, involving a joint trial where two defendants are charged with two offences, without any similar fact evidence application, I am also mindful of the following:

a. Although two defendants are charged and are being tried together, each person charged is entitled to be treated separately on each charge. Each is entitled to have his case decided on the basis of evidence and legal principles that apply to him.

b. Moreover, in reaching my separate verdict for each accused on each charge, I must not use the evidence on any charge to reach my verdict on any other charge, unless such evidence independently relates to that other charge. I also must not use the evidence that applies to only one accused to decide the case of any other accused on the same charge or any other charge.

23Of course, any trial held to determine whether or not the Crown has proven the essential elements of a charged offence beyond a reasonable doubt must be conducted in accordance with the laws of evidence. I will not attempt any sort of exhaustive recitation of the many applicable principles of evidence I accordingly have kept in mind throughout this proceeding but think it advisable to expressly note some in particular.

24For example, as this is a joint trial of two defendants, in which each accused has not testified but has made “out of court” statements admitted into evidence, I am mindful in particular of the following:

a. The “out of court” statements made by Mr M. to Officer Matthews were admitted as evidence to be considered in relation to the charges against Mr M., without their maker being called as a witness, pursuant to a principled exception to the hearsay rule; i.e., as alleged admissions made by Mr M. in relation to the charges against him, admissible for the truth of their content in that regard.

b. Similarly, “out of court” statements made by Mr J. to Officer Howe were admitted as evidence to be considered in relation to the charges against Mr J., without their maker being called as a witness, pursuant to the same principled exception to the hearsay rule, applied in relation to Mr J.; i.e., as alleged admissions made by Mr J. in relation to the charges against him, admissible for the truth of their content in that regard.

c. However, this was not a case where any formal request or effort was made to have evidence of one defendant’s “out of court” statements made admissible in relation to charges against the other defendant; e.g., on the basis that any such statements were made in furtherance of any common design, that any such statements were adopted by the other accused, or that any such statements should be made admissible in relation to the charges against the other defendant having regard to any other recognized and/or principled exception to the hearsay rule.

d. In such circumstances, I am mindful of numerous authorities, including R. v. Martin (1905), 1905 CanLII 108 (ON CA), 9 C.C.C. 371 (Ont.C.A.), R. v. Prosko (1921), 1921 CanLII 635 (QC CS), 40 C.C.C. 109 (Que.K.B.), affirmed (1922), 1922 CanLII 584 (SCC), 63 S.C.R. 226, R. v. Schmidt, 1945 CanLII 4 (SCC), [1945] S.C.R. 438, R. v. Simmons (1955), 1955 CanLII 164 (ON CA), 110 C.C.C. 309 (Ont.C.A.), R. v. Unger (1993), 1993 CanLII 4409 (MB CA), 83 C.C.C. (3d) 228 (Man.C.A.), R. v. B.C. (1993), 1993 CanLII 8564 (ON CA), 80 C.C.C. (3d) 467 (Ont.C.A.), leave to appeal refused (1993), 83 C.C.C. (3d) vi (S.C.C.), R. v. Parberry (2005), 2005 CanLII 40137 (ON CA), 202 C.C.C. (3d) 337 (Ont.C.A.), R. v. Dooley (2009), 2009 ONCA 910, 249 C.C.C. (3D) 449 (Ont.C.A.), and R. v. Largie (2010), 2010 ONCA 548, 258 C.C.C. (3d) 297 (Ont.C.A.), leave to appeal refused (2011), 424 N.R. 400n, 425 N.R. 395n (S.C.C.), indicating and confirming that:

i. An “out of court” utterance or statement by a non-testifying accused, admitted pursuant to a recognized and/or principled exception to the hearsay rule, may be used as evidence both for and against that accused; i.e., the maker of the relevant “out of court” utterance or statement.

ii. In a “joint trial” of more than one defendant, such an “out of court” utterance or statement by one accused nevertheless is admissible evidence only in relation to its maker, and must not be considered in determining the culpability of any other co-accused, in respect of whom it remains inadmissible hearsay even if the utterance or statement describes something said or done by that co-accused. Without limiting the generality of the foregoing:

1. an “out of court” utterance or statement made by one accused which implicates a co-accused is evidence admissible only in respect of its maker, and not in relation to that co-accused;

2. an “out of court utterance or statement made by one accused which is exculpatory of a co-accused is evidence admissible only in respect of its maker, and not in relation to that co-accused;

3. a version of events given by one accused in his or her “out of court” statements cannot be used in assessing the reliability of a different version of those events given in a co-accused’s “out of court” statements; and

4. an “out of court” utterance or statement made by one accused also cannot be used to confirm the evidence of a witness in relation to an accused person who is not its maker.

25I also have been mindful, in particular, of other principles of evidence concerning the conduct and testimony of complainants in a case such as this; i.e., a case concerning allegations of trauma experienced through sexual abuse, and sexual abuse that is said to have taken place many years ago. For example:

a. In relation to such cases, triers must be careful to avoid now thoroughly debunked stereotypes concerning the supposed behaviour to be expected of those who have experienced such abuse; e.g., in terms of avoiding an alleged perpetrator of such abuse, or reporting such abuse immediately. There is in fact no inviolable rule as to how people who are the victims of trauma like a sexual assault will behave. In particular, some will make an immediate complaint, some will delay in disclosing such abuse, while some will never disclose such abuse. Possible reasons for delay in that regard are many, and include but are not limited to embarrassment, fear, guilt and/or a lack of understanding and knowledge. In assessing the credibility of a complainant alleging sexual abuse, the timing of a complaint is simply one circumstance to consider in the factual mosaic of a particular case. A delay in disclosure, standing alone, will never give rise to an adverse inference against the credibility of the complainant. See R. v. D.D., 2000 SCC 43, [2000] 2 S.C.R. 275.

b. Moreover, a case like this, involving allegations of sexual abuse said to have taken place many years ago, before the complainant became an adult, gives rise to additional considerations when it comes assessing the testimony of such a complainant. In that regard:

i. Our law now recognizes that children experience the world differently from adults, and that the peculiar perspectives of children are such that it is not surprising that details important to adults, like time and place, may be missing from their recollections. See R. v. B.(G.), [1990] 2. S.C.R. 30, and R. v. W.(R.), 1992 CanLII 56 (SCC), [1992] 2 S.C.R. 122.

ii. That recognition in turn has implications for how a trier should approach the testimony of an adult testifying about events which occurred when he or she was a child. In particular, as emphasized by the Supreme Court of Canada in R. v. W.(R.), supra:

1. 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 his or her mental development, understanding and ability to communicate.

2. In general, where an adult is testifying as to events which occurred when he or she was a child, his or her credibility therefore should be assessed according to criteria applicable to him or her as an adult witness.

3. However, with regard to his or her evidence pertaining to events which occurred in childhood, the presence of inconsistencies, particularly as to peripheral matters such as time and location, should be considered in the context of the age of the witness at the time of the events to which he or she is testifying.

iii. Notwithstanding the above, while an inability to recall the sequence of traumatic events occurring many years before generally will not be very surprising, (as memories tend to fade and time tends to erode the quality and availability of evidence), and in most instances such an inability therefore may be of little concern, it will be troubling if the evidence of a witness shifts from one telling of an incident or incidents to the next, with each differing version of such events being put forward as a sincere and accurate recollection. Probably the most valuable means of assessing the credibility of a crucial witness is to examine the consistency between what the witness said in the witness-box and what the witness has said on other occasions, whether under oath or affirmation or not. Inconsistencies on minor matters or matters of detail are also normal, and to be expected, and generally do not affect the credibility of a witness, particularly in the case of young persons. However, where an inconsistency involves a material matter about which an honest witness is unlikely to be mistaken, the inconsistency can be significant and demonstrate a carelessness with the truth. In particular, when a witness is comfortable with giving different versions of the same event or events, it suggests a degree of carelessness with the truth that diminishes the general reliability of the witness. Similarly, once a witness has been shown to be deceptive and/or manipulative in giving his or her evidence, that witness can no longer expect a trier to regard him or her as a trusted source of the truth. See R. v. M.(G.), 1994 CanLII 8733 (ON CA), [1994] O.J. No. 2086 (C.A.), at paragraphs 27-30; and R. v. Ghomeshi, 2016 ONCJ 155, at paragraphs 64-65 and 139.

c. Finally, as the Crown relies in this case primarily on the testimony of the complainant, (albeit testimony said to be buttressed to some extent by the testimony of Ms G., and by the statements given by each defendant to the police), I also bear in mind the following:

i. As we routinely indicate to juries during the course of their final instructions, how much or how little a trier relies on the evidence of witnesses does not necessarily depend on the number of witnesses who testify one way or the other. A trier’s duty is to consider all the evidence, and may decide that the testimony of fewer witnesses, or even just one witness, is more reliable than other evidence. In particular, there is no legal bar to convicting on the uncorroborated evidence of a single witness, although that in turn highlights the importance of assessing the credibility, reliability and overall quality of such evidence. It is up to the trier to decide such matters. See David Watt, Watt’s Manual of Criminal Jury Instructions, (2d ed.), at p.270, and R. v. Ghomeshi, supra, at paragraph 131.

ii. As noted above, triers must be very cautious, in assessing the evidence of complainants in sexual assault and abuse cases, to guard against application of false stereotypes concerning the expected conduct of complainants, bearing in mind the reality that the reasonableness of reactive human behaviour in the dynamics of a relationship can be variable and unpredictable. However, a trier must also be vigilant in avoiding the equally dangerous false assumption that sexual assault and abuse complainants are always truthful. Each individual and unique factual scenario must be assessed according to its own particular circumstances. See R. v. Ghomeshi, supra, at paragraph 153.

iii. Moreover, it also should be remembered that a finding that a complainant is both credible and reliable is not necessarily sufficient to satisfy the burden of proof beyond a reasonable doubt. In particular, a reasonable doubt can survive a finding that the complainant is credible. See, for example: R. v. J.W., 2014 ONCA 322, and R. v T.A., 2020 ONCA 783.

26With all of the above principles in mind, I turn to an assessment of the evidence presented in this case, and whether the Crown has proven the essential elements of the sexual assault and sexual exploitation offences charged in the indictment.

Evidence and analysis – General comments

27As noted above, the evidence presented for my consideration was presented solely by the Crown, and included the following:

a. testimony from two witnesses called by the Crown, namely the complainant Ms C. and a friend of hers named J.G.;

b. video-recorded statements made to the police by each defendant after being arrested;

c. transcripts corresponding to each of those video-recordings, which I had confirmed to be accurate subject to required corrections indicated in schedules appended to my pre-trial ruling on the Crown’s aforesaid voluntariness application;

d. copies of those schedules that had been appended to my ruling on the Crown’s voluntariness application; and

e. an Agreed Statement of Facts for purposes of the trial.

28I have reviewed and carefully considered all of that evidence, and my failure to refer to any particular aspects of that evidence should not suggest otherwise. In that regard, I will note in particular that, in an effort to address and hopefully eliminate any possible negative impact on my memory of the presented evidence, owing to the passage of time associated with the repeated delays outlined above, I supplemented my review of the trial notes made in my bench book with a complete and detailed review of ordered transcripts of the trial proceedings, as well as a complete replaying of the digital recordings made of the trial proceedings. From an audio perspective, at least, I therefore effectively sat through the trial twice.

29However, beyond outlining certain aspects of the underlying factual matrix applicable to both defendants which seemed undisputed, and my general assessments concerning the credibility and reliability of those from whom the underlying evidence emanated, (and I use that description only to make it clear that I had regard to the evidence of the witnesses called at trial and the statements provided by the defendants to the police), I intend to focus, in these reasons, on the evidence which has a bearing on the essential elements of each charge faced by each defendant.

30Moreover, although the ordering of the defendants’ names and charges in the indictment might suggest a different structure to my consideration of the evidence and analysis, in my view:

a. it makes more sense to deal first with the charges against Mr M. before turning to those against Mr J., insofar as interactions between each defendant and Ms C. initially progressed in that manner; and

b. for the reasons outlined above, the offence of sexual exploitation is more straightforward than the offence of sexual assault in some respects, (e.g., insofar as consent is always irrelevant to the offence of sexual exploitation), and aspects of the analysis required in relation to the offence of sexual exploitation, (e.g., determination of whether an accused was in a “position of trust” or “position of authority”), have a bearing on whether the existence of any ostensible consent to sexual activity underlying a charge of sexual assault might be vitiated by the application of s.273.1(2)(c) of the Code.

Broad parameters of underlying factual matrix

31As I mentioned a short time ago, certain aspects of the underlying factual matrix applicable to both defendants seemed undisputed, or otherwise clearly established by the evidence presented for my consideration. In my view, such matters included the following considerations:

a. Mr J. and Mr M. are long-term partners, who have been together since 1990 or so; i.e., approximately 26 years prior to their police interviews in late 2016. They moved from Toronto to the city of London sometime in the 1990s. Since 2001-2002 or so, (i.e., approximately 14-15 years prior to their police interviews in late 2016), they have lived together at a specified address on Noel Avenue, here in the city of London.

b. Both defendants are professionally employed, with Mr J. working as a sales support person in the telecommunication sector throughout the time period specified in the indictment, and Mr M., (who is more commonly known by his middle name “K.” than his first name J.), working – at least after the period specified in the indictment - as a florist; e.g., with a flower shop located in London’s Covent Garden Market.

c. Throughout this proceeding, I was never provided with any evidence establishing precise birth dates or ages for Mr J. and Mr M.. However, based on the evidence I received concerning their personal movements, professional work and relationship history, and my observations of both gentlemen during their police interviews and at trial, I think it reasonable to infer that both were nearing or into their fifties when the charges against them were brought and tried.

d. The complainant, Ms C., was born here in London on [a specified date], 1990, to parents who either were separated when she was born, or separated shortly thereafter. Her father thereafter began a new relationship with a partner Ms C. regards as her step-mother. However, at some point, Ms C.’s father and step-mother also separated, and Ms C. resided back and forth with both of those parents as she was growing up; a child with a number of siblings or half-siblings. Her upbringing and homelife involved allegations of neglect and/or violence; e.g., involving removal of Ms C.’s sister and sister’s child from the home of Ms C.’s father by the Children’s Aid Society, and Ms C. asking to be removed from her father’s home for similar reasons. Ms C. also has ADHD, has difficulty reading, and has always struggled in school. She nevertheless continued her formal education into high school, attending what was formerly known as the Sir George Ross Secondary School here in the city of London; the same high school attended by her slightly older (by two years) friend and sometime dating partner, J.G.. When she entered high school, Ms C. was residing in the home of her father.

e. There was no dispute that Ms C. thereafter stayed at the defendants’ Noel Avenue residence in London from time to time during her mid-to-late teens or early twenties, (e.g., from approximately 2004 or 2005 to 2011), although there are uncertainties and/or disputes concerning when and how that came to pass, the timing and duration of such stays, and what transpired during those stays.

General credibility and reliability assessments

32Before proceeding to a more detailed discussion of the particular evidence bearing on the essential elements the Crown was required to prove beyond a reasonable doubt, in relation to each charge faced by each defendant, I think it advisable to indicate my general credibility and reliability assessments of the persons who provided, either through oral testimony, (in the case of Ms C. and Ms G.), or through recorded statements made to the police, (in the case of Mr M. and Mr J.), most of the evidence presented for my consideration.

33I do so because those assessments played a substantial role in my approach to determining whether or not the Crown had established various essential elements of the charged offences beyond a reasonable doubt.

34In relation to Ms C.:

a. In my view, Ms C. was a problematic witness, insofar as I found numerous aspects of her initial presentation to be persuasive, while I was increasingly troubled by various mounting concerns about her reliability and credibility.

b. In relation to Ms C.’s reliability as a witness:

i. At the time of trial, Ms C. was 29 years old. Although she seemed to find the experience of testifying over the course of three days stressful and understandably tiring at times, (such that early or additional breaks were sometimes requested and/or offered), for the most part she testified with energy and confidence. Indeed, for much of her testimony, she seemed to welcome the opportunity to present her account of events. At the time of her testimony, she did not appear to be suffering from any condition or conditions that would impair her ability to recall events with clarity. Indeed, some of the events and episodes she recounted from her teenage years where described in considerable detail.

ii. Nor was I particularly troubled by the time it sometimes took for Ms C. to recall the precise sequence of various events she was describing, or her inability to recall precise dates, times and certain aspects of her surroundings with certainty. Not only was she testifying in relation to matters that may have occurred many years earlier, but also in relation to a period when she was 14-21 years old; i.e., a period covering several years when she was a minor, thereby warranting some allowance, pursuant to authorities such as R. v. B.(G.), supra, and R. v. W.(R.), supra, for uncertainties or inconsistencies regarding peripheral matters such as time and location in relation to those years, despite Ms C.’s own assertions that she was, at the time, more mature than her chronological age might otherwise have suggested.

iii. I nevertheless did have concerns about events Ms C. was describing when, even by her own account, her ability to make accurate perceptions and “download” them into memory was impaired by her contemporaneous consumption of alcohol and/or drugs. As noted below, this led to inconsistencies in her indications about what she could and could not remember during the alleged events underlying the charges against the defendants.

iv. There also were numerous inconsistencies about somewhat peripheral matters in her account, none of which were very significant in themselves, but the cumulative effect of which reinforced my concerns about Ms C.’s reliability. For example:

1. At one point in her testimony, she claimed to have been removed from her father’s home by the Children’s Aid Society. She later indicated that she herself had asked the Children’s Aid Society, (through her high school counsellor), to place her elsewhere.

2. Initially, she cited her inability to get home in time to erase messages about her absence from school as one of her principal reasons for going home with Mr M. to the Noel Avenue residence for the first time. Later, however, she noted in passing that she had the ability to erase such messages remotely from any telephone, and further indicated that the school, in any case, had switched from leaving messages to calling her father directly and “hunting him down” to ensure that he was aware of Ms C.’s school absences.

3. In her initial testimony at trial, Ms C. indicated that, on the day of her first visit to the Noel Avenue residence, she finished part of a can of beer while sitting by the river with Mr M., before having “a few” more cans of beer that evening after she went home with Mr M.. In cross-examination, however, the number varied considerably; e.g., with Ms C. suggesting at one point she might have consumed as many as 3-5 cans of beer that evening after going home with Mr M., before eventually acknowledging that she actually was unable to say if she drank more than one can of beer at the residence on that occasion. Moreover, in further cross-examination, Ms C. acknowledged that, during the preliminary hearing for this matter, she had testified that she actually had not consumed any alcohol at the river prior to attending at the Noel Avenue residence that evening, and that she consumed only one can of beer that evening.

4. At one point in her testimony, she claimed that she “always detested drinking”, and drank only “occasionally”. That did not sit well with other assertions, during the course of her testimony, that she was drinking beer daily at the Noel Avenue residence, (e.g., while failing to attend school as she had promised), and enjoying other drinks there such as numerous daiquiris.

5. When describing the reasons for her decision to end her second extended stay at the Noel Avenue residence, Ms C. initially indicated that Mr M. and Mr J. each resented her for disrupting their relationship with each other, but shortly thereafter claimed the defendants were agitated because they increasingly were jealous of each other’s time with Ms C. and were vying for more attention from her.

v. It was also concerning to me when Ms C. acknowledged in the course of her testimony that some of her central allegations in this proceeding, initially presented in previous statements to the police and/or at trial as what seemed to be assertions of definitely observed and experienced events, (e.g., allegations of being subjected repeatedly to non-consensual anal intercourse, and having a dildo inserted into her anus without her consent), actually were not definite recollections but assumptions Ms C. had made, or inferences she had drawn, based on other observations and experience. Of course, not unlike triers, witnesses draw inferences in every day life based on circumstantial observations. However, a trier needs to know when such inferences are being made by a witness and on what basis, so that the trier, in assessing the weight to be given to such evidence, is also in a position to carry out a necessary additional assessment of whether the drawing of the relevant inference was reasonable in the underlying circumstances. In relation to Ms C., it was not clear to me that I always was being given that opportunity.

vi. Moreover, my concerns in that regard were heightened considerably when, during cross-examination, Ms C. professed to have a memory of events that was improving with the passage of time, (e.g., such that her prior statements to the police and testimony at the preliminary hearing should be discounted, though given much closer in time to the underlying events), and expressly indicated that one of her general techniques for “calming down” while testifying was “filling in between the parts that [she] actually remember[ed]”. [Emphasis added.] Shortly thereafter, she repeated that sentiment by saying, as a suggested explanation and justification for a particular previous inconsistent statement given to the police, (i.e., indicating that she had agreed to being tied down during what will be described in more detail hereafter as the futon incident), that she had merely been “filling in the gaps” between “what [she] could remember and what happened”. Such indications in particular immediately caused me to question the entirety of Ms C.’s evidence; i.e., insofar as it was no longer clear to me what parts of her testimony should be regarded as the recounting of actual memories, and what parts of her testimony should be discounted as creative links between actual memories. Whether such creative links were being done consciously or subconsciously, they certainly made me question whether I was hearing from a reliable witness.

c. As for Ms C.’s credibility:

i. There were some aspects of Ms C.’s testimony that initially made me inclined to regard her as a credible witness. For example:

1. Ms C.’s testimony was replete with indications and acknowledgments that she simply could not remember certain details anymore; e.g., owing to the passage of time, or possibly her level of intoxication at the time of underlying events. Such indications and acknowledgments enhanced my faith that Ms C. was being truthful when saying that she could remember something.

2. At certain points during her testimony, Ms C. candidly indicated that there had been little or no sexual activity between herself and the defendants despite opportunities in that regard; something which made me more inclined to accept her allegations that there had been sexual activity with the defendants on the occasions she indicated.

3. At various points in the trial, Ms C. expressly reminded herself to keep within certain parameters of testimony provided to her by Crown counsel, (e.g., to avoid testimony involving hearsay and/or irrelevant “bad character” evidence), and generally seemed to adhere to that advice. Such efforts made me more inclined to think that Ms C. was intent on recognizing and promoting the truth-seeking objective of the proceeding.

4. Many of her detailed descriptions of certain events seemed spontaneous and genuine.

ii. Moreover, although Ms C. seemed fundamentally unsure about important and significant dates, (e.g., as to whether her first contact with Mr M. occurred in the fall of 2004 when she was 14 or the fall of 2005 when she was 16, which had significant implications for the relevant timeline in a case where age of the complainant had obvious importance), and it was somewhat jarring how her stated certainty in that regard could easily transform into admitted uncertainty, I was inclined to attribute such matters to her age at the time of underlying events, and the reality, (confirmed by our appellate courts), that children perceive matters differently than adults, particularly in relation to matters of time.

iii. However, it was concerning to me that Ms C. frequently described events in hyperbolic terms, and/or otherwise suggested events which in my view seemed implausible. For example:

1. She suggested that Mr M. deliberately had lied during their initial meeting to suggest that he was “just past high school”, even though she herself indicated that Mr M. had said that he was 28 at the time.

2. She claimed that the marihuana and “a few” cans of beer provided to her by Mr M. and Mr J. during her second meeting with Mr M., and her first visit to the Noel Avenue residence later that day, had resulted in a level of intoxication she has never been able to reach thereafter, even when binge drinking “60-pounders of vodka”.

3. She claimed that she had slept through repeated incidents of the defendants having anal intercourse with her without her waking up, and her learning of such incidents only indirectly through observation of “telltale signs” such as fecal stains on her bedding, a used condom in her wastebasket, and/or the way her body was feeling. (While Ms C. indicated such incidents sometimes would occur when she was intoxicated and “passed out” from her use of drugs and/or alcohol, she also alleged that they had occurred while she was simply sleeping, which I found much more difficult to believe.)

4. Ms C. claimed that, towards the end of her time spent at the Noel Avenue residence, Mr J. was bitter because he was jealous of the time Mr M. was getting to spend alone with Ms C., wanted her for himself instead, and felt denied or rejected in that regard; i.e., because, as she put it, “K. was getting more attention from me”. She claimed that there was only a “hint” of such jealousy during her first extended stay at the Noel Avenue residence, but it had become a “major subject” by the time of her second extended stay there, and became more and more apparent and/or overt after that; e.g., with Mr J. asking Ms C. if she could meet and speak with him alone at his office. In my view, there was a jarring disconnect between such ego-centric assertions and Ms C.’s earlier repeated indications that, for many years up until that point, Mr J. consistently had resented Ms C.’s presence, regarding her not only as an unwanted financial burden but someone who was intruding heavily on the relationship between Mr J. and Mr M.. In such circumstances, I thought it far more likely that, if Mr J. remained jealous at all, it was because Ms C. was diverting the time and attention of his partner Mr M. away from Mr J.. Indeed, Ms C. acknowledged in cross-examination that there may have been such jealousy on the part of Mr J.; e.g., because he “just wanted his husband” and “wanted his life back”.

iv. Moreover, I was troubled by the fact, highlighted in cross-examination, that Ms C.’s account of important underlying events had changed in significant ways over time. In that regard:

1. During her testimony at trial, Ms C. claimed that her first sexual encounter with both defendants, during her first evening visit to the Noel Avenue residence, had not been consensual; e.g., emphasizing her understanding that consent had to be verbalized, and/or that she had to be “cognitive enough” to say “yes”, and that she had been so impaired that evening – “too drunk” and “higher than hell” - that she was incapable of appreciating or remembering what was happening or had happened, while also suggesting that she nevertheless had said “no” to sexual activity on that occasion. In the course of cross-examination, however, she acknowledged having felt “honored” when Mr M. initiated sexual activity that evening, and that she felt both “honored” and “special” after that first night of sexual activity at the Noel Avenue residence. She also acknowledged having indicated to police, in her initial statement, that she “didn’t say no” on the occasion in question.

2. At trial, Ms C. described, in considerable and sometimes graphic detail, at least two incidents of sexual activity in which she had been forced to engage while fully awake; i.e., an incident during which Mr M. was said to have grabbed Ms C. by the hair to force her face down towards his exposed penis followed by his masturbating onto her face, and an incident during which Mr M. and Mr J. were said to have tied Ms C. face down on a futon against her will prior to inserting a dildo into her anus, despite her “non-stop” protests indicating that she did not like and did not want to engage in such activity. Both incidents are described in more detail below. For present purposes, I note that her testimony at trial concerning the alleged futon incident deviated from her initial extended statement provided to the police, wherein Ms C. was expressly asked if there were “any sexual encounters where you basically [said] ‘No, I don’t want to be a part of this’”, and Ms C. responded by describing only the “one time she could remember strongly”; i.e., the alleged incident of Mr M. grabbing her hair and pulling her head to his penis before masturbating onto Ms C.’s face. Towards the end of that initial police statement, was C. was expressly asked if there was “anything else [she could] add”, and she still made absolutely no mention of the alleged futon incident; an incident she nevertheless described in emotional detail at trial, accompanied by emphatic protestations that confinement and bondage of any kind had been a lifelong terror for her. When confronted with that failure during cross-examination at trial, Ms C. paused at length before providing any explanation, and then suggested that the relevant police interview had been very brief and superficial; i.e., touching only on the “top of the mountain” or “tip of the iceberg”. In further cross-examination, however, she acknowledged that the relevant interview had lasted at least 30-45 minutes, and that she had been asked if there was anything else she could add. In any event, I found it difficult to reconcile Ms C.’s failure to mention the futon incident even briefly during her first police interview, when expressly asked about incidents of forced sexual activity, with her description, (to which I will return in more detail in a moment), of how terrifying it was for to be tied down and left alone on that occasion, and her descriptions of having engaged in non-stop screams of protests – particularly when she had confirmed, through additional cross-examination, that she had thought a great deal about the matter before going to the police, and had known at the time how important it was to be truthful with the police and provide them with the significant details of her allegations.

3. Moreover, Ms C. indicated during her examination in chief at trial that the futon incident had terrified her because she had a lifetime fear of confinement, such that any thought of bondage and corresponding loss of control over her own movements and safety “scared the crap out of [her]”. In cross-examination, she reiterated and emphasized such fears and concerns, emphatically denying that she would ever consider, suggest or consent to any activity involving her being tied down, or ever agree even jokingly that her being tied down would be a good idea or a “fun” game of any kind. She also specifically and emphatically rejected defence counsel’s suggestions that she actually was the one who, on the occasion in question, had suggested that she and the defendants experiment with bondage and tying her down for pleasure, or that she play any kind of “role” in that regard; e.g., saying “You can suggest all you want, but … I know myself, I know my kicks. … Absolutely not”, as she “liked to be in control”, giving up control was something “very hard” for her to do, and she “absolutely” liked to be in control of her own body. She similarly rejected defence counsel’s suggestion that she had or ever would agree to having her hand tied down, or engaged in the futon incident for her sexual pleasure. However:

a. After once again confirming that she knew it was very important to be truthful and accurate in her statements to the police, Ms C. then was confronted with the recording of her police statement given to Sergeant Mathews in January of 2016, wherein she laughingly had described the alleged futon incident by saying that she was drinking daiquiris with the defendants, and “got into the usual tomfoolery” when Mr M. had suggested tying her hand down and making her “work for it”, (i.e., sexual activity), and she had responded by saying that “sounded like a nice game”. When confronted with that prior inconsistent statement, Ms C. said she had made her earlier comments to the police a “sugar coated thing” as a means of processing what she had been through, and that her memory of the event was much better at trial, years after her earlier statement, after she had undergone some painful therapy. I did not find the explanation for the stark disconnect between her supposed lifetime horror of confinement and her recorded cavalier and laughing reference to being tied down as a “nice game” convincing. Although Ms C. also suggested that her statement in that regard had merely been angry “sarcasm”, that was not my impression when I watched and heard her presentation at that point in the videorecording.

b. Ms C. similarly was obliged to acknowledge that, during the same video-recorded police interview, she had said, in relation to the futon incident:

i. “truth be told, on that occasion, it was quite fun because I did end up smacking K. right on the face”; and

ii. that she remembered telling Mr M. to “fuck off”, but thought Mr M. “thought I was playing the role at that time”.

c. Ms C. also was obliged to acknowledge that, during the course of her testimony at the preliminary hearing, she had said, in relation to the futon incident: “I jokingly suggested to tie up one of my hands”.

d. Finally, I note that, when Ms C. was asked in cross-examination whether she had ejaculated on herself during the futon incident, (which arguably may have been an indication of her having enjoyed the experience), her initial response was “yes, I had halfway came”. When defence counsel seized on that indication, and attempted to follow up on it through further questioning, Ms C. tried to suggest that it had been “pee”, (i.e., that she had “pissed herself”), or perhaps some sort of “cream” or lubricant that had been applied to the object inserted into her anus, then acknowledged that she had “never peed like that”, and that the substance in fact “looked like it was ejaculate”.

4. I should also note that, when asked during her initial police interview about whether there had been any incidents of forced sexual activity, Ms C. also failed to make any mention of the alleged instances – described in detail at trial – when each of the defendants had entered her bedroom to have anal intercourse with her while she was sleeping or not fully awake.

5. I appreciate that some might regard such changing versions of events as the hallmark of an unreliable witness; i.e., suggesting that the witness had difficulty making accurate observations at the time of underlying events, or difficulty in recalling such observations accurately. That may have been true, at least in part, in relation to Ms C.’s changing accounts. However, I am more inclined to think that they were more indicative of a witness that lacked credibility because her significant changes in presented accounts consistently trended in the direction of portraying the defendants in a more negative or culpable light, and because there were, in my view, overt indications that Ms C.’s allegations were motivated in large measure by malice and spite towards the defendants, in turn suggesting the strong possibility of exaggeration or outright fabrication.

v. I do not make such comments regarding the existence and effect of malice and spite lightly. In particular, it is perfectly understandable that victims of crime might and frequently do harbour strong resentment and corresponding ill-will towards the perpetrator or perpetrators of such crime. In my view, such realities alone do not suffice to transform complainants into witnesses in respect of whom a trier should have credibility concerns. In this particular case, however, Ms C.’s comments indicated intense and obsessive feelings of bitterness and hatred towards the defendants, acknowledged and deliberate past efforts on her part to dissemble in an effort to orchestrate situations calculated to inflict pain and harm on the defendants for reasons unrelated to their alleged crimes, and a longing for retribution and/or obsession that seemed to extend well beyond any rational desire for justice, all of which made me question how much her testimony may have been coloured, clouded and/or distorted by such matters. For example:

1. When describing her second meeting with Mr M., which led to her first attendance at the Noel Avenue residence, she made reference to “smug fucking remarks” made by Mr M.; e.g., asking how she knew he was “not some creep”. Such comments were echoed towards the end of her testimony, when she expressed an interest in wanting to know whether Mr M. was “still the same fucking smug asshole that he’s always been”.

2. During cross-examination, Ms C. recounted – with evident pride – that, towards the end of her interactions with the defendants, she realized that she effectively was in “a position of control” vis-à-vis Mr M. and Mr J., (in terms of ability to manipulate their feelings towards her and each other), and decided to use that power by embarking on a deliberate plan calculated to “disintegrate the situation”, permanently end the relationship between them, and simultaneously make Mr M. disinclined to have any further contact with her. In particular:

a. Ms C. said that she “wanted to hurt them [i.e., Mr M. and Mr J.] at that point”, and “cause them pain”. Moreover, although she admittedly could leave them and the Noel Avenue residence at any time, and repeatedly had done so, she wanted to end what she called the “catch back” of being persuaded to return by Mr M. “reaching out” to her, or by her being tempted to make another “S.O.S.” call to Mr M..

b. She knew that, in the past, her interaction with Mr M. had been enough to cause tension and fighting between Mr M. and Mr J.; i.e., to the point of her being asked to leave the Noel Avenue residence. Realizing that she thereby was “able to control the situation to where things [got] heated” between Mr M. and Mr J., she decided to feign a sincere “couple” relationship between her and Mr M. “in everybody’s eyes”. She believed that in turn would cause Mr M. and Mr J. “to split up” by “fighting” and “scrapping”; i.e., getting the dispute between them “elevated so high” that there would be no possible outcome but all the “strands of rope to fall apart, never to be brought back together again”. (Ms C. summed up her views in that regard by saying: “It already happened naturally, so why not induce it?”) However, she also felt that feigning such a relationship with Mr M. also would break his heart, in turn making him disinclined to call her or respond to her calls in the future. (Ms C. summed up her views in that regard by saying “Break the heart, break the link … If the heart’s broken, it’s not going to receive [an S.O.S. call], is it?”) Ms C. referred to her orchestrated manipulations in that regard as her “revenge” and “exit strategy”; i.e., “a way to [deliberately] build resentment to the point of popping” once her arrangements were “built and set”, and she had “set the balls in motion”. In later cross-examination, she returned to her memories of having “staged” a “lot of things”, with those things being “played out to end a certain way”, with the admitted goal of destroying “everything”, so that there would be no chance of her being with the defendants or the defendants being with each other.

c. It is unusual, in my experience, for a witness to readily acknowledge and relish a past practice of sustained dissembling to inflict deliberate harm on others. When that witness is a complainant in a criminal proceeding, and the “others” are defendants to that proceeding, I think that gives rise to obvious credibility concerns.

3. In cross-examination, Ms C. also indicated that she wanted to punish Mr M. and Mr J. severely, (a desire she described in memorable terms), not for their alleged offences but because of their perceived disloyalty to her. In that regard, she said the following in the witness box, with extraordinary intensity: “It took a long time to talk myself down off of doing whatever I could to give back some of the hurt, some of the disloyalty. To give it – the urge to give it back, what I felt, uhm and wanting them to feel that. … At the end of it yeah, I wanted to see hurt, I wanted to see pain. I wanted to see them suffer as I had. To feel what it’s like for the ice below their feet, metaphorically speaking, to shatter and them to slip into the cold water and drown, metaphorically speaking.”

4. Later in cross-examination, Ms C. went further, speaking of her desire to “seek revenge”, and her disappointment that she could not always “rely” on the defendants. In relation to Mr M. in particular, she unforgettably said this: “There’s part of me that would love to see his head decapitated and put on a platter and roasted”.

5. Although she initially testified that she wanted no further contact with the defendants after her relationship and communication with them ended on admittedly negative terms, and “absolutely never” wanted to see them “eye-to-eye” again, she went on to acknowledge in further cross-examination that she had a “sick curiosity” about them; that she wanted to “plant a mole in their life” to see “what the ending of the story was”; that she saw and realized that Mr M. worked at the Covent Garden Market and contemplated getting him fired because she felt so “vengeful” and “hateful”; and that she admittedly had a “weird sick obsession” that led her to drive past the defendants’ house repeatedly -- initially suggesting that had happened only in a “blue moon”, then suggesting it had happened at least a “handful” of times, and then acknowledging that she drove by the defendants house “every time she was down that way”, including “maybe five times” in the “couple of years” before the trial. She also candidly acknowledged that she could not commit to not driving past the defendants’ house again going forward.

vi. My concerns about such spite, ill-will, ulterior motives and acknowledged past dissembling possibly distorting Ms C.’s testimony at trial were reinforced to some extent by Ms G.’s comment that, when Ms C. initially contacted Ms G. and asked Ms G. to speak with the police, Ms C. apparently indicated that she was “trying to make a case against them”; i.e., against Mr M. and Mr J.

vii. Such concerns about Ms C.’s testimony also were reinforced, in relation to her claims against Mr M., by the indications in his statements to the police that Ms C. had been very upset with Mr M. when he finally succeeded in refusing Ms C.’s return to the Noel Avenue address, after which he experienced disturbing “stalking” activity on the part of Ms C.. Such comments made me question whether Ms C.’s feelings of resentment towards Mr M. were driven by causes other than Mr M.’s alleged commission of wrongdoing against her.

viii. Similarly, my concerns about Ms C.’s allegations being motivated and/or distorted by malice and spite emanating from collateral issues also were buttressed, in relation to Mr J., by the indications in his statements to the police that his relationship with Ms C. had ended on an extremely bitter note; e.g., with Ms C. being very upset that she would not be permitted to supplant and replace Mr J. in his partnership with Mr M.. Such comments made me question whether Ms C.’s feelings of resentment towards Mr J. were driven by causes other than Mr J.’s alleged commission of wrongdoings against her.

ix. Finally, I note that Ms C.’s presentation and credibility were not helped, in my view, by frequent instances of her engaging in overt advocacy, (e.g., setting forth her views as to her level of intoxication that should vitiate consent, and whether gestures or verbalization should be regarded as sufficient indications of consent), her repeated failure to answer even simple and straightforward questions with correspondingly simple answers during cross-examination, (e.g., to confirm whether or not she actually had made certain comments in statements provided to the police, and her video-recorded police interview), and her open and marked hostility to counsel during cross-examination -- which included the questioning of defence counsel motives and/or the relevance of various questions, repeated instances of swearing, and Ms C. insulting counsel personally.

d. All of the reliability and credibility concerns I have mentioned, in relation to Ms C., made me question whether it would be safe to make findings of guilt, in relation to Mr M. and/or Mr J., primarily on the basis of Ms C.’s testimony.

35In relation to Ms G.:

a. She was 32 years old when she attended in person at trial to testify about her recollection of matters she experienced between the ages of 16 and 19, as someone who attended the same high school as the complainant Ms C., was (and still is) a friend of Ms C., and dated Ms C. for approximately two years; i.e., when Ms G. was 17-19, and Ms C. was 15-17.

b. Ms G. herself indicated a number of times that she is an introvert by nature and therefore somewhat of a homebody. Testifying at trial therefore admittedly was difficult for her and made her nervous; something that came to the fore at various times during her testimony through palpable unease, frequent apologies, (e.g., if she failed to verbalize answers properly), and occasional nervous laughter.

c. However, I never formed an impression that she was doing anything other than her best to be as honest as possible, and as accurate as her memory, (admittedly incomplete in some respects), would allow. In that respect, my impression of her honesty and candour was reinforced by her express indications that she could not remember or had forgotten certain matters, and by her proactive use of qualifiers, (such as “about”, “maybe”, “probably”, “I believe” and “to my knowledge”), to signal the limits of her memory in respect of certain matters. In the result, I viewed her as an entirely credible witness.

d. For similar reasons, I viewed Ms G. as a generally reliable witness in relation to matters she said she could recall with certainty. In particular, while she may have been 16 or 17 at the time of some of the events she was recalling, I did not form the impression that her status as a minor, (as opposed to the lapse of time), had any appreciable impact on her ability to recall events from the relevant period apart from the limitations which she herself indicated and acknowledged.

e. Having said that, I am mindful that many of Ms G.’s answers were expressly qualified by indications that she was not entirely sure of certain matters, and that she was “really bad” when it came to remembering dates.

f. I also am mindful that Ms G.’s opportunity to make direct observations about the interactions between the complainant and the defendants was somewhat limited, based on her own indications at trial. In particular, as she herself indicated during the course of her testimony, she was an introvert who preferred to socialize and have “dates” with the complainant in her own home; e.g., with Ms C. visiting Ms G.’s home at least twice each week during the course of their two-year “on and off” dating relationship and friendship. In contrast, Ms G. says that lack of transportation made it difficult for her to travel to and from the Noel Avenue home owned by the defendants, (which was located on the opposite end of the city from her home), and that she accordingly visited there only 12 times or so over the course of that same two-year period. Moreover, she noted that, when she visited the Noel Avenue property, she and Ms C. generally would “hang out” together in the basement den of the home; a practice which inherently seems likely to have limited her opportunity to observe interaction between the complainant and the defendants within that residence.

g. Moreover, although Ms G. denied speaking with Ms C. about the details of her intended trial testimony, (and I accept that was the case), there were other indications that Ms G.’s testimony nevertheless incorporated, to some extent, elements of hearsay provided to her by Ms C. on earlier occasions. For example, Ms G. testified that Ms C. would have other friends over to the Noel Avenue residence a minimum of “every other weekend” when she was staying there, but Ms G. herself seems unlikely to have had any direct knowledge about such matters if she herself was not visiting the Noel Avenue residence that often.

h. For such reasons, I had mixed views about the reliability of Ms G.’s testimony and was inclined to accept it only in relation to matters where she expressed certainty about direct observations.

36In relation to Mr M.:

a. As noted above, Mr M. did not testify at trial. However, I was presented with his account of events through the video-recorded statement Mr M. provided to the police, (and Officer Matthews in particular), on December 22, 2016.

b. I accordingly had occasion to hear and see Mr M. at length, during the presentation of his account of events, and will repeat here some of the comments I made during the course of my “voluntariness” ruling concerning my observations and impressions of Mr M. in that regard:

i. At all times, Mr M. presented as someone who was alert, articulate, engaged, attentive and quite animated in his movements and gesticulation.

ii. Throughout the interview, and his presentation of his account of events, Mr M. nevertheless remained relatively relaxed and calm, displaying no marked signs of significant upset or agitation, and speaking easily and conversationally. At all times, he presented as someone possessed of considerable intellect, sophistication and poise.

iii. My overall impression of Mr M. was a person very much aware of the reality that the statements he was making could have significant implications for how the matter would be approached going forward. In other words, Mr M. was taking the interview quite seriously.

iv. I also formed the impression that Mr M. effectively engaged in a measure of advocacy during the course of the interview; i.e., repeatedly and proactively disparaging the complainant and the complainant’s credibility, while emphasizing his own noble motives and minimizing any suggestion of potential misconduct on his part; e.g., by asserting that he actually was victimized economically and sexually by the complainant rather than the other way round.

c. On the whole, while the account of events presented by Mr M. was inherently somewhat one-sided, (i.e., insofar as it was the product of interview questions posed by the police but was not subjected to exacting cross-examination by Crown counsel), and I am mindful that Mr M. generally seemed to have the capacity and inclination to deliberately portray himself in a favourable light and the complainant in an unfavourable light, (thereby making it unlikely that Mr M. would mention or otherwise reveal information helpful to his prosecution and inconsistent with his version of events, if such information existed), there were numerous aspects of his account I found to be compelling. In particular, Mr M. provided his account rapidly, in a very detailed and apparently spontaneous manner, without any notable internal inconsistencies, and without any indication that he suffered from any inability to make observations about relevant events, (all of which took place, if at all, when he was an adult), or to recall them accurately. He also readily confirmed and sometimes proactively indicated that he had engaged in various sexual activities with Ms C. on occasions when she was staying at the Noel Avenue residence. Nor did I find any of his assertions to be inherently implausible. In my view, all of those considerations suggested credibility and reliability.

37In relation to Mr J.:

a. As noted above, Mr J. did not testify at trial either. However, I was presented with his account of events through the video-recorded statement Mr J. provided to the police, (and Officer Howe in particular), on December 27, 2016.

b. I accordingly had occasion to hear and see Mr J. at some length during the presentation of his account of events, and similarly will repeat here some of the comments I made during the course of my “voluntariness” ruling concerning my observations and impressions of Mr J. in that regard:

i. During the interview, Mr J. consistently presented as someone of obvious intelligence, who was very articulate, logical, calm and engaged. He too was treating his police interview as a serious matter, and he seemed intent on providing responsive and precise answers to all of Officer Howe’s questions.

ii. Although Mr J. appeared somewhat reserved and soft spoken at times, and measured in his responses, I am mindful of his indications that he was feeling somewhat tired and weak at the time, (in his words, “not quite up to snuff”, having recently been released from spending five days in hospital), he displayed such traits throughout the interview in relation to both innocuous and serious questions, and I formed a definite impression that his presentation in that regard was simply reflective of his natural general demeanour.

c. On the whole, while the account of events presented by Mr J. also was inherently somewhat one-sided, (i.e., insofar as it too was the product of interview questions posed by the police, and was not subjected to exacting cross-examination by Crown counsel), and I think Mr J. had the intelligence and wherewithal to fabricate an inaccurate account if he had been inclined to do so, at no time did I form the impression that he was intent on anything but responding to Officer Howe’s questions in a truthful and accurate manner. He provided direct responses to questions without any marked hesitation, (except when he was clearly trying to recall specific dates), and was remarkably candid and detailed in readily confirming his acknowledged sexual activity vis-à-vis Ms C.. There were no notable inconsistencies in his account either, despite the extraordinary amount of detail he provided. There also was no other indication that he suffered from an inability to make observations about events and recall them accurately. Nor did I find any of his assertions to be inherently implausible. In my view, all of those considerations suggested credibility and reliability, and I felt the account he provided also was compelling in that regard.

38Against that general factual background and having regard to those general considerations of credibility and reliability, I turn, finally, to a consideration of the evidence bearing on the essential elements the Crown was required to prove beyond a reasonable doubt in relation to each charge faced by each defendant, and whether the charged offences have been proven.

39In that regard, for the reasons noted earlier, I turn first to a consideration of the charges against Mr M.

Charges against J.K.M.

SEXUAL EXPLOITATION – GENERAL COMMENTS

40For the further reasons noted earlier, I also turn first to a consideration of the section 153 charge of “sexual exploitation” against Mr M., set forth in Count 2 of the indictment.

41The full text of that Count was provided earlier in these reasons, but I will reproduce the wording relevant to Mr M. again here, (with necessary adjustments to isolate the charge against Mr M.), for ease of reference:

… J.K.M. STAND[S] CHARGED THAT [he], between the 1^st day of January in the year 2004 and [a specified date] in the year 2008 at the City of London, in the said region did, being a person who in a position of trust or authority towards a young person, with a part of his body, for a sexual purpose, directly or indirectly touch the body of that young person, namely J.W., also known as J.C., contrary to Section 153, subsection (1.1), clause (a) of the Criminal Code of Canada.

42I now also note and emphasize the following specific aspects of that charge as worded in the underlying indictment:

a. Of the four types of position or relationship vis-à-vis a young person addressed by section 153 of the Code, the Crown has confined its allegations to an assertion that Mr M. stood in a “position of trust” or “position of authority” towards the individual who now self-identifies as Ms C. While my discussion of general principles also addressed “relationship of dependency” and “relationship with a young person that is exploitative of the young person”, for the sake of completeness, in my view, the possibility of Crown reliance on those two types of relationships has been foreclosed by the wording of the indictment.

b. Of the types of sexual activity addressed by section 153 of the Code, the Crown has confined its allegations to the type of “sexual touching” activity addressed by s.153(1)(a) of the Code. In my view, the possibility of Crown reliance on the type of “invitation, counselling and/or incitement to sexual touching” addressed by s.153(1)(b) of the Code also has been foreclosed by the wording of the indictment.

43Having regard to such considerations, (and referring to the identified complainant as “Ms C.”, as she now identifies herself), the essential elements Crown counsel must prove beyond a reasonable doubt in this particular case, to establish that Mr M. has committed the offence of “sexual exploitation” contrary to section 153 of the Code, are as follows:

a. that Ms C. was a “young person” at the relevant time;

b. that Mr M. touched Ms C.;

c. that the touching of Ms C. by Mr M. was for a sexual purpose; and

d. that, at the time Mr M. touched Ms C. for a sexual purpose, Mr M. was in a “position of trust” or a “position of authority” towards Ms C.

44I will consider each of those essential elements in turn.

SEXUAL EXPLOITATION – YOUNG PERSON

45I begin with assessment of whether the Crown has proven, beyond a reasonable doubt, that Ms C. was a “young person” for the purposes of [section 153](https://www.canlii.org/en/ca/laws/stat/r