COURT FILE NO.: CR-20-603 DATE: 2023-06-29 ONTARIO SUPERIOR COURT OF JUSTICE

BETWEEN:

HIS MAJESTY THE KING – and – MORDECAI GAL Defendant

COUNSEL: K. Batorska, for the Crown J. Couse, for the Defendant

HEARD: March 27-30 and May 1-2, 2023

RESTRICTION ON PUBLICATION Pursuant to 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of the Criminal Code, information that may identify the person described in this judgment as the complainant may not be published, broadcast or transmitted in any manner.

REASONS FOR JUDGMENT

FRASER J.:

I. Introduction

[1] This case is about whether the Defendant, as one of the oldest male members of a Muslim youth group, stood in a position of trust towards a 16-year-old girl, the Complainant, who was 12 years younger than he was and a member of the youth group.

[2] The Defendant is charged with a single count of sexual exploitation contrary to s. 153 of the Criminal Code, R.S.C. 1985, c. C-46.

[3] The two met through the youth group when she was 15 and he was 28. Most of their interactions were through the youth group. Eventually, in secret, the two entered into a “temporary marriage” in which it is alleged there was a single sexual encounter between June 17 and 18, 2016 at a hotel that the Defendant rented. The temporary marriage involved a promise by the Defendant that the Complainant would receive $5,000 and an apartment. At the time of the alleged encounter, the Complainant was 16 and the Defendant was 28.

[4] The Defendant held no official title, was not formally appointed as a youth group leader, and was not paid as a youth group leader. Yet, as one of the oldest male members of the group, the custom was that that he was respected and that he commanded more respect than others younger than he. The Defendant was one of a number of persons who lectured the youth on religious topics.

[5] This case concerns whether, in the circumstances, the Defendant stood in a position of trust towards the Complainant.

II. Burden of Proof

[6] The Defendant is presumed innocent. He has nothing the prove. The presumption of innocence remains with the Defendant unless the Crown, through the evidence tendered at trial, has satisfied me beyond a reasonable doubt that he is guilty.

[7] A reasonable doubt is not an imaginary or frivolous doubt. It is not based on sympathy for or prejudice against anyone involved in the proceedings. Rather, it is based on reason and common sense. It is a doubt that arises logically from the evidence or from an absence of evidence.

[8] The Crown is not required to prove anything to an absolute certainty. However, I need to be sure that the Defendant is guilty to displace the presumption of innocence. Probably guilty or likely guilty is insufficient. If I concluded that the Defendant was probably or likely guilty but was not satisfied beyond a reasonable doubt, I must make a finding of not guilty.

III. Offence of Sexual Exploitation

[9] Sexual exploitation is an offence where the issue of consent is irrelevant.

[10] Section 153 of the Criminal Code provides that:

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.

[11] The Crown asserts that the Defendant was in a position of trust.

[12] For the Defendant to be found guilty, the Crown must prove beyond a reasonable doubt that:

• The Defendant engaged in a form of sexual conduct prohibited by s. 153(1).
• The Complainant was at least 16 and under the age of 18 when the conduct occurred.
• The Defendant had the mens rea for each element of the offence.
• The Defendant stood in a position of trust towards the Complainant when the sexual acts took place.

See R. v. Audet, [1996] 2 S.C.R. 171, at para. 16.

[13] In Audet, the Supreme Court of Canada adopted the analysis of Justice Blair in R. v. P.S., [1993] O.J. No. 704, that trust takes its meaning from the ordinary usage of the word. As Justice Blair wrote, quoted at para. 32 of Audet:

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

[14] Trust, the Court held at para. 35 of Audet, must be “interpreted in accordance with its primary meaning: ‘[c]onfidence in or reliance on some quality or attribute of a person or thing, or the truth of a statement.’” Whether the person occupied a position of trust will depend on the facts of the case. The Court declined to enumerate those positions where the person occupies a position of trust, holding at para. 38 that:

It would be inappropriate to try to set out an exhaustive list of the factors to be considered by the trier of fact. The age difference between the accused and the young person, the evolution of their relationship, and above all the status of the accused in relation to the young person will of course be relevant in many cases.

[15] In R. v. Aird, 2013 ONCA 447, the Court of Appeal for Ontario held at para. 24 that it is irrelevant that the young person does not appear vulnerable or does not subjectively view the relationship as one of trust. Rather, that is a matter for the Court to decide.

[16] Writing for the Court, Justice Laskin set out at paras. 28-29 the factors to consider in assessing whether the accused is in a position of trust or authority.

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

• The age difference between the accused and the young person;
• The evolution of their relationship;
• The status of the accused in relation to the young person;
• The degree of control, influence or persuasiveness exercised by the accused over the young person; and
• The expectations of the parties affected, including the accused, the young person and the young person’s parents.

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

No one consideration is determinative. But each one may play a role. At bottom, “trust”, wrote LaForest J. for the majority in Audet, at para. 35, must be “interpreted in accordance with its primary meaning: ‘[c]onfidence in or reliance on some quality or attribute of a person or thing, or the truth of a statement.’”

[17] In R. v. R.T., 2017 ONSC 2625, Justice Pomerance further elaborated on these principles at para. 36 as follows:

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

• The age difference between the accused and the young person – the higher the age difference, the more likely it is that the relationship is a trust relationship.
• The status of the accused – the more formal the status (teacher, father figure, big brother, mentor, etc.), the more likely it is that the relationship is a trust relationship.
• The degree of control, influence or persuasiveness exercised by the accused over the young person.
• The expectations of the parties affected, including the accused, the young person and the young person’s parents.
• The vulnerability of the young person – i.e. his or her level of intelligence, sophistication, independence, and maturity and relationship with his or her parents.
• Any grooming, pressuring, or incentivising behaviour on the part of the accused – i.e. denigrating the young person’s parents; engaging in sexual discussions and sexualizing the young person; and offering benefits, particularly things the young person cannot get or do at home (drugs, alcohol, etc.)

[18] My task is to examine the relationship and the circumstances in the case before me to determine whether the Defendant can be said to occupy a position of trust.

IV. Evidence

[19] Before addressing the evidence of the two witnesses, I will discuss the concepts of credibility and reliability. I will then assess the evidence of the two witnesses in this case.

(a) Credibility and Reliability

[20] In assessing the testimony of a witness, I must examine the credibility and the reliability of the witness. Credibility is about the honesty and integrity of the witness. Reliability is about the accuracy of the witness’s testimony. A witness who is not credible cannot be relied on. However, a witness who is credible is not necessarily reliable: R. v. Morrissey (1995), 22 O.R. (3d) 514, at p. 526 (C.A.).

[21] I also note that the Complainant is a young adult testifying to events that occurred when she was 15 or 16 years old. For that reason, I am mindful of the guidance from the Supreme Court of Canada in R. v. W.(R.), [1992] 2 S.C.R. 122, at p. 134, which provides that, in general, her credibility should be assessed as an adult witness. However, inconsistencies relating 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 she is testifying”: W.(R.), at p. 134.

(b) Evidence of the Complainant

[22] The Complainant was raised in the Muslim faith. She testified that she attended her mosque (the “Mosque”) since childhood with her family. In 2015, religion dominated her life. Her entire community attended the Mosque and was affiliated with the Mosque.

[23] At the time the Complainant came to know the Defendant, he used a different name with the initials M.A.

[24] The Complainant saw the Defendant for the first time at another mosque (the “Other Mosque”). She said that he was giving a talk on early marriage and the benefits of getting married at an early age. She understood that he occupied the position of youth group leader at the Other Mosque.

[25] M.A. joined the youth group at the Complainant’s Mosque around the Fall of 2015. The Complainant told the Court that he became a leader within the youth group. As a leader, decisions concerning the youth group’s events needed to be finalized through him. The youth group members could suggest events, but the Defendant would approve them. She stated that he was the oldest and had the most say.

[26] The Complainant also testified that the Defendant was instrumental in coordinating joint events between youth groups of the Mosque and the Other Mosque. There was another man, M.S., who was a few years younger who was also a leader in the group. M.N. was the eldest female member of the group and she was also a leader.

[27] The Complainant formed the opinion that the Defendant was well-respected, knowledgeable, and had lots of Islamic knowledge. She thought that he was a religious person and had insight to offer her.

[28] The youth group was organized so that the young people could have programs catered to young people born and raised in Canada. The youth group is affiliated with the Mosque. The programs of the youth group were predominately in English whereas the programs in the Mosque were in Farsi. The youth group encouraged both a sense of community and attendance at the Mosque. The Complainant believes that she first met the Defendant during a hiking trip organized by the youth group at the Mosque.

[29] The youth group was comprised of 10 to 20 young people who would meet every Friday at the upstairs level of the Mosque which was dedicated to the youth group. They also met at events. The age range of the participants would be from 11 to over 30. The group offered teachings about how to be a good Muslim in Canada. It offered mentorship, and the group engaged in charity work including fundraising. The events outside of the Mosque included participating in Regent Park meals on Sundays. Sometimes they would go as a youth group and sometimes the members participated individually. There were also infrequent hiking trips, ice skating, and at least one camping trip.

[30] The Complainant said that the Defendant was the moderator of an online group chat for youth group members. I took this to be an administrative function rather than having a role in moderating discussions.

[31] She said that in her religion, elders are treated with respect and their knowledge and insight is valued. She described that in the beginning, the relationship between her and the Defendant was one of leader and follower. She described him as being very opinionated and she as very impressionable.

[32] She said that at the youth group meetings at the Mosque, the Defendant encouraged young marriage and he was knowledgeable about the process and benefits of being married. For example, he described OSAP benefits for married students.

[33] The Complaint had a strained relationship with her parents because it was a strict religious household. She did not want to fit into the mould of the good Muslim girl and wanted an existence beyond the Mosque. She was being homeschooled after going to a regular high school in grade 9. Her parents wanted her to be in a more controlled environment and pulled her out of the high school during that grade 9 year. The Complainant found this very isolating and was desperate to get back out into society. She discussed her homelife with the Defendant.

[34] The Defendant would give her advice. When she complained about her home situation and spoke of her desire to leave the oppressive environment, the Defendant suggested that marriage was the solution.

[35] Her discussions with the Defendant started with planning events for the youth group but then evolved to more personal conversations. The Complainant did not have her own cell phone and used her mother’s phone. She had access to a computer for school and they communicated through online messaging applications like Telegram and Wickr.

[36] At one point, the Defendant suggested that a boy the Complainant’s age was a good match. He facilitated a conversation between the Complainant and the boy. That fell through and there was no marriage proposal forthcoming. However, that situation enabled the Defendant to continue speaking with the Complainant on a personal level.

[37] She stated that unbeknownst to her parents, she was alone with the Defendant when they were driving back from events, once from the Other Mosque. On some occasions, they would get Tim Horton’s Iced Capps. He would not drive her all the way home but drop her close to her house. Her parents did not know that she was spending time alone with him. She would not share the details with her parents.

[38] The Complainant testified that the conversations about marriage became more frequent after she turned 16. She became open to the idea, which seemed like a solution to her. She thought that marriage would mean that she could make her own decisions; that if she was to be married, she would be able to return to high school and see her friends. Young marriage seemed like a good option for her.

[39] The Complainant and the Defendant came to an agreement that they would engage in a temporary marriage. The Complainant testified that this is a religious concept that some people believe in. There is a dowry and an agreed upon gift and the parties agree to be married for a specific period of time. The agreed upon time was until her 17th birthday. She agreed to marry him temporarily on the condition that he give her $5,000 and that she receive an apartment close to her high school. These were terms that she set.

[40] The Complainant testified that her parents were approached about the proposed marriage. In the Complainant’s culture, normally it would be the tradition that the son’s parents approach the daughter’s parents to discuss the proposed marriage. In this case, the Defendant’s sister called the Complainant’s mother. The Complainant was present with the mother for this call, listening on speaker phone. The Complainant’s mother said no, telling the Defendant’s sister that the Complainant was too young, as she was 16 at the time. The Defendant’s sister responded that said she was certain the Defendant did not know how old she was. The Complainant’s parents did not consent to the marriage.

[41] Although their contact became less frequent at this point, she continued to have a relationship with the Defendant. Around this time, she got a part-time job and was able to see the Defendant for short interactions. They also communicated by Telegram or Wickr. The relationship had moved from platonic to romantic with discussions about sex and a life together.

[42] The Complainant was offered advice by a mentor (not the Defendant) who came to visit her at work. The mentor advised her that she should go down the path of temporary marriage rather than having a relationship with the Defendant outside of marriage.

[43] The Complainant determined that she would proceed. She wanted to have friends her age, she wanted a relationship, and she wanted to leave home. Marriage was her way out. She set the terms of $5,000 and the apartment. She understood that in this temporary marriage, she would fulfill the Defendant’s sexual needs. The two discussed his sexual needs and the Defendant told her that was the primary reason he was interested in marrying her.

[44] The two entered into the temporary marriage. As for the timing, the Complainant described it “as this time of year”. The trial was taking place in March and the Complainant advised the Court that it was Ramadan. The Complainant said that the temporary marriage took place during Ramadan in 2016. They uttered some Arabic words in the car, the Defendant broke his fast at a Mandarin restaurant, and they went to the hotel to consummate the marriage.

[45] It is agreed that on June 17, 2016, the Defendant rented a hotel room at the Courtyard by Marriott in Brampton, Ontario. Jurisdiction and identity are also admitted. The date of the offence is admitted.

[46] At the hotel, the Defendant checked them in under a different name, the name which appears on the indictment and under which he has been arraigned, which was a name that she did not know before. She removed her headscarf that she wore for modesty. She described this act as them coming together as man and wife.

[47] The Complainant was not sure about the order of what happened next. They both freshened up in the bathroom. She testified that the Defendant told her that he had applied a numbing cream to his penis which would make him last longer. She said that she didn’t know what that meant because she had “zero sexual knowledge”. When the Complainant came out of the bathroom, the Defendant was waiting for her under the sheets where she joined him. She said that she was not sure what to do but she figured it out. They had sex. He did not wear protection. After it happened, there was not much conversation and they left.

[48] The Complainant said she believes the hotel was in the Markham/North York area.

[49] The Complainant said while the intercourse was happening, she felt like she was fulfilling her responsibility and that she did not want what occurred to occur again. It was impersonal. She felt repulsed and that it seemed like he had done it a million times before.

[50] After that, the Complainant returned home.

[51] The Complainant did not want to be in the relationship with the Defendant. But in her mind, she had engaged in sexual activity and basically eloped. She thought that if her parents found out that they would kick her out. If she ended the relationship with the Defendant, she would not have the promised apartment and would have nowhere to go and be homeless.

[52] She had plans to move to the apartment and, on the morning that she planned to move, her father found out. She had packed bags to leave and he confronted her. She told him that she was leaving, disclosing the temporary marriage. He “freaked out” and told her she was not making a good decision. After listening to him, she realized that she would not get kicked out or disowned. She realized that she could get out of the situation as she did not want to be in the temporary marriage. She ended things with the Defendant.

[53] The Defendant did not pay her $5,000 or give her an apartment. The Complainant testified that her parents did not want her to go to the police. After she turned 18 and moved out of their house, the Complainant went to the police.

[54] There were frailties with the Complainant’s evidence.

[55] The Complainant was vague on timing and non-specific about the location of the hotel. These do not concern me as I think this is to be expected given the age at the time of the events.

[56] While the Complainant described the Defendant as a leader of the youth group at the Mosque, she could not identify any formal appointment to the position. She acknowledged that others in the youth group also held responsibilities. She was forced to confront that others in the group occupied positions of power.

[57] She had little knowledge of his responsibilities at the Other Mosque. Yet, she was prepared to identify him as the head of the youth group at the Other Mosque without any information to support it.

[58] The Complainant remembered attending a “Not in My Name” event without her sister, when in fact it appears from a Facebook posting that her sister attended with her. She had described this as one of the occasions that she was alone with the Defendant.

[59] The Complainant testified that the Defendant had final say in the youth group but M.N., whose evidence is set out in more detail below, did not endorse that. Rather, she testified that there was no single leader of the group, although she did testify that the Defendant had the aura of authority and that the leaders in their mid-twenties were treated with more respect.

[60] While the Complainant testified that the Defendant frequently lectured on the topic of early marriage, the second witness did not relay that detail. Rather, she testified that the topics discussed at the youth group focused on the Twelve Imams and the Prophets.

[61] The Defendant argues that the Complainant is prone to exaggeration. She exaggerated the Defendant’s role in the youth group and her vulnerability in the relationship, both in sexual terms and in terms of her power. While the Complainant’s sexual experience is irrelevant to the essential elements of the offence, without any of the counsel eliciting the evidence, she made a statement about the state of her sexual experiences (“zero sexual knowledge”) which conflicted with her statement to the police. This led to mid-trial applications concerning prior sexual history.

[62] Following the applications, the Complainant provided an explanation when confronted with the inconsistency, about what “zero sexual knowledge” meant. While I do not entirely accept her explanation for why she used this phrase, I find that it does not impact her credibility or reliability on the question of whether the Defendant and the Complainant had sex. I find her evidence on this point to be reliable. I am convinced beyond a reasonable doubt by her account that they had sex. I am also convinced that sex was part of the arrangement that she made with the Defendant.

(c) Evidence of M.N.

[63] The second witness, M.N., was the eldest female member of the youth group. She had been a part of the youth group since the time that she was 14 or 15 years old. She was approximately 19 years old in the Fall of 2015 and in second year university when the Defendant joined the youth group. She too knew the Defendant by the name M.A.

[64] She remembers the Defendant attending most events in the Fall of 2015 and becoming more involved as a leader of the group.

[65] M.N. testified that there was no real leader of the youth group. The leaders were seen to be the planners of events. A person could plan an event if they were mature enough to do so.

[66] There was a hierarchy within the youth group. The older, more mature, male members had more power. M.N. described the Defendant as loud, opinionated, and that he spoke with authority. His age would mean that others deferred to him.

[67] The youth group had a small research group in October/November of 2015 comprised of M.N., the Defendant, and two other male members. Together, they planned a series of lectures for the youth group. M.N. recalled this as being about the Prophets and the Twelve Imams. The research group members rotated delivering talks on these topics, and the Defendant’s turns were approximately every month to 1.5 months. She recalls him giving approximately four presentations.

[68] In the youth group, she noticed that the Complainant and the Defendant were texting each other. She thought the texting to be inappropriate but said nothing. It was not against the rules of the youth group but was against the cultural code whereby men and women would not intermingle. Men would interact with men and women would interact with women.

[69] In late 2018 or early 2019, the Complainant contacted M.N., told her that she had been groomed into a relationship with the Defendant, and asked her if she would be willing to speak with the police.

[70] I find that despite her being contacted by the Complainant and the Complainant having told her that she had been groomed by the Defendant, she gave her evidence free of bias and animus. She did not appear to have been primed by the Complainant. She testified in a straightforward manner and recognized the limits of her knowledge. Despite her acquaintance with the Complainant and her family from attendance at the Mosque, she did not appear to favour the Complainant.

[71] I accept M.N.’s evidence that the Defendant was opinionated and that he had the aura of authority. From the totality of her evidence, I can conclude that she viewed him as a leader within the youth group and that he occupied that role.

V. Analysis

[72] Above I concluded that the Complainant and the Defendant had sex, that the Complainant was 16 years old at the time, and that the Defendant knew that. These in my view have been proven beyond a reasonable doubt.

[73] I must now examine whether the Defendant stood in a position of trust. To do so, I will examine: the age difference between the accused and the young person; the evolution of their relationship; the status of the Defendant in relation to the Complainant; the degree of control, influence, or persuasiveness exercised by the accused over the Complainant; and the expectations of the parties affected, including the accused, the young person, and the young person’s parents.

(a) Age Difference

[74] There is a 12-year age difference. The Defendant was well into adulthood when the two had sex.

(b) Status of the Defendant

[75] The relationship evolved in a safe place where the Defendant enjoyed a leadership role and the trust of the youth group. The group and the Complainant put faith in him and his Islamic knowledge, and he commanded respect. It was one of the few places where the Complainant was permitted to attend, given the strict rules of her house.

[76] I find that he was one of the older members of the group who lectured the other members of the group. This certainly made him a mentor. By custom, as one of the older males, he was deserving of respect. He gained the trust and confidence of the young people in the group through all of these actions.

[77] But he also occupied a counselling role. He counselled the young people on how to be a good Muslim in Canada. Through his involvement in the group, he gained access to the young people of the Mosque. In the case of the Complainant, her parents allowed her to socialize only at the Mosque, which signaled that from the parents’ perspective, the men of the youth group could be trusted.

[78] I find that he did moderate the group chat. He acted as a matchmaker which further enhanced the trust and reliance that young people placed in him.

(c) Vulnerability of the Complainant

[79] The Defendant argues that the Complainant embellished her vulnerability. She wanted her independence. The Defence asserts that the Complainant was mature: she helped organize events for the youth group and she expressed her opinion in the youth group.

[80] Like many 16-year-olds, she may have thought herself an adult and indeed been mature in many ways. However, the evidence before me demonstrates that she was an isolated 16-year-old yearning for a social life and existence beyond the Mosque. Her parents had taken her out of the public school system to home school her. Her existence was home, her part-time job, and her life at the Mosque. All of this was laid bare for the Defendant to see as he cultivated a private relationship with her made possible because of his status in the youth group.

[81] The Defence suggested that this case was similar to R. v. D.H., 2016 ONCJ 754. I do not agree. In that decision, the Court found no position of trust where the Complainant was openly rebellious and exercising a high degree of independence such that the step-father was not in a position of trust.

[82] It is true that the Complainant took on many mature duties as was expected of her in the Mosque and as a teenager in the Muslim community. These duties included serving food at events. She also took on organizing roles within the youth group including organizing a camping trip.

[83] It is also true that the Complainant was rebelling against her family. However, this made her more vulnerable, not less. She wanted to be able to go to regular school and not be home schooled. She wanted an existence outside of the Mosque. As with many young people, the desire to get out from the rules of the house left her vulnerable.

(d) Influence of the Defendant

[84] The Defendant exploited that vulnerability in many ways:

a. He spoke of the value of early marriage; b. He attempted to arrange a relationship with another boy for her; c. When that did not work out, he raised the topic of a temporary marriage with him; d. He approached her family about marriage; e. When her parents said no, he nevertheless persisted with the idea in secret.

(e) Expectations of the Parties Affected and Incentivizing Behaviour

[85] As I noted above, the Mosque was one place where the Complainant was permitted to be. It was a safe space in her mind and in the mind of her parents. I find that her parents’ agreement to have her attend the youth group and its activities, came with the expectation that those leaders and mentors within the group would conform to the cultural code and norms of the Mosque: that women would interact with women and men with men. Flirtatious behaviour was not condoned, let alone sexual interactions.

[86] The evidence suggested that some people in the Mosque community other than the Defendant thought that girls were ready for marriage at 13 or 14 years old. I do not have enough evidence to determine whether that was a widely held belief. However, even if the view was widely held, the evidence suggests that those intending to marry would need the approval of parents and that consent would need to be sought from the girl’s parents by the mother of the intended groom. Consent was not forthcoming and nevertheless, the Defendant persisted in pursuing a relationship with the Complainant.

[87] The Defendant argues that there was no clear line, and no way for him to know that he occupied a position of trust in law such that his conduct was criminal. He further argues that respect by one’s peer group does not equate being in a position of trust. I agree that that alone cannot amount to being in a position of trust.

[88] However, the Defendant didn’t stumble into this problem. He had a choice. He knew that the Complainant was desperate to leave her house and be independent. He capitalized upon this to engage in a sexual relationship, by promising things that he suggested would secure her independence. The Complainant came to see it as the only way out of her isolated existence and he knew that. She trusted his advice that a temporary marriage was the way out and she relied on him to escape her circumstances to her detriment.

[89] He was able to do so because of the role he had in the youth group and the trust that it engendered.

[90] It matters not that she set the terms of the temporary marriage. By the time that that occurred, I accept that she had been led to believe that temporary marriage represented the only option for her.

[91] I find that the Complainant was a vulnerable person and that she placed her faith in the Defendant because he occupied a position of trust in the youth group. The Defendant knew that she was vulnerable because she confided in him about her family, and he gave her advice in his capacity as one of the eldest members of the youth group. I am persuaded that that made him a leader in the youth group even though he was not formally appointed, and others shared responsibility. He was a mentor. He was a confidant. Young people in the group looked up to him because of his religious knowledge. The community expectation was that the older males could be trusted to lead.

[92] For these reasons, I am satisfied beyond a reasonable doubt that the Defendant occupied a position of trust. The Defendant had the requisite knowledge of the position he occupied and that it engendered trust. He knew of the Complainant’s age. I have found that there was a sexual encounter. As a result, the Crown has proven is case beyond a reasonable doubt.

[93] I find the Defendant guilty of the offence of sexual exploitation.

[94] I am grateful for the assistance of both counsel on this matter.

Justice S.E. Fraser Released: June 29, 2023