COURT FILE NO.: CR-22-13
DATE: 20230630
ONTARIO
SUPERIOR COURT OF JUSTICE
BETWEEN:
HIS MAJESTY THE KING
– and –
L.R.
Defendant
Moheb Tewfik for the Crown
Alan Richter for L.R.
HEARD: May 9-17, 2023
REASONS FOR JUDGMENT
c. boswell j. (orally)
I. OVERVIEW
[1] Many Canadians obsess over hockey. A.F. is one of them. She started to play the game when she was 4 years old. She dreamed of one day playing on the Canadian National Women’s Hockey Team. Now 28, she describes hockey as the single most important thing she has done in her life.
[2] Though she did not realize her dream to play for Team Canada, she was, by all accounts, an elite player. Her involvement in hockey at an elite level provides the context to the charges currently before the court. But this case is not about hockey. It is about sexual exploitation. It centers on A.F.’s allegation that she had a sexual relationship with an adult male coach at a time when she was 15 years old.
[3] L.R. is the coach in question. He is presently 49 years old. Like A.F., he played hockey at a high level as a youth. He went on to have a professional career in providing hockey skills training to individuals and groups. During the 2009-10 hockey season, he was the volunteer head coach of an elite, Toronto-area, midget girls hockey team. A.F. was a member of the team that season.
[4] I pause to note something. I am referring to the parties by their initials only. I will similarly refer to any witnesses by their initials only. The purpose in doing so is to honour the publication ban in place, which prohibits the publication of any information that may identify a complainant or witness in this case. For the same reason, I will not identify the hockey team at the centre of the narrative of this case. I will refer to that team by the fictitious name, “the Clarets”.
[5] A.F. first played for the Clarets during the 2008-09 season. She acquitted herself well enough that her continued role on the team for the 2009-10 season was never really in doubt. She nevertheless had to attend try-outs in the spring of 2009. It was during those try-outs that she says she first met L.R. After formally making the team, she participated in a number of training sessions with L.R. during the summer of 2009. She turned 15 on July 11, 2009.
[6] A.F. testified here that as the summer of 2009 progressed into the fall of 2009, her relationship with L.R. crossed a line it never should have approached. She said that they began a sexual relationship; one that continued for more than a year, until she ended it sometime before her grade 12 school year.
[7] A.F. testified that as she matured, she found that her experience with L.R. was impeding her ability to maintain healthy, intimate relationships. She disclosed her prior relationship with L.R. to her boyfriend in December 2020, then to his parents and, finally, to her own parents and brother. The disclosure led to a report to the police and a number of charges against L.R. including two counts of sexual assault and one count each of sexual interference, invitation to sexual touching and sexual exploitation.
[8] L.R. comprehensively and categorically denies A.F.’s allegations. He denies that he had an inappropriate relationship with A.F. and further denies that there was sexual touching between them of any kind at any time.
[9] The charged offences have modestly different essential elements. But at their core, they all depend on the Crown being able to establish, to the reasonable doubt standard, that sexual touching occurred between L.R. and A.F. in the relevant period.
[10] In an effort to meet its onus in this case, the Crown tendered eleven witnesses. They included A.F., her mother and father, five of her former Clarets teammates, two assistant coaches from the 2009-10 season and the general manager of administration for the Clarets for that same season.
[11] L.R. elected to testify in his own defence. He tendered three further witnesses, including one additional member of the Clarets team from the 2009-10 season, as well as his wife and his daughter.
[12] I have considered the evidence in detail and the following reasons explain the verdicts rendered today.
[13] Before I get into an examination of the essential elements of the charged offences, it is important that I set out some of the fundamental legal principles that apply to my consideration of the evidence in this case.
II. FUNDAMENTAL PRINCIPLES
The Presumption of Innocence
[14] The presumption of innocence is an organizing principle of the Canadian criminal justice system. L.R. is presumed innocent of the charged offences. The presumption of innocence is only displaced if I am satisfied that the Crown has proven a charged offence beyond a reasonable doubt.
The Burden and Standard of Proof
[15] The Crown has the sole burden of proving L.R.’s guilt with respect to each of the charged offences. L.R. has no obligation to prove anything and he had no obligation to testify.
[16] L.R.’s guilt must be established to the reasonable doubt standard before a conviction can be registered against him.
[17] The concept of proof beyond a reasonable doubt is of fundamental importance in the Canadian criminal justice system. It imposes a high standard. A reasonable doubt is not an imaginary, far-fetched, or frivolous doubt. It is not a doubt based on sympathy for or prejudice against anyone involved in this trial. It is a doubt based on reason and common sense. It is a doubt that logically arises from the evidence, or the absence of evidence.
[18] Proof of probable or likely guilt is not enough to sustain a conviction. At the same time, proof beyond a reasonable doubt does not require absolute certainty. Absolute certainty is a standard that is impossibly high. Having said that, the law is clear that proof beyond a reasonable doubt falls much closer to absolute certainty than to proof on a balance of probabilities.
[19] In the final analysis, in order to convict L.R. of an offence, I must be sure that he committed it. If I am not sure, I must acquit him of that offence.
The Assessment of Evidence
[20] The evidence of each witness who testified must be considered from a common sense perspective, with an open mind and without sympathy, prejudice or bias. As the trier of fact, I may choose to believe and rely upon some, all, or none of any witness’s testimony.
[21] The factors to be considered when assessing the testimony of a witness are not a closed list. They include, amongst others, whether the witness appeared to be telling the truth, the consistency of the witness’s evidence, both internally and externally, and whether the witness had any motive to fabricate evidence or to favour one side over the other.
[22] My assessment of a witness’s testimony involves a consideration of both its credibility and reliability. Credibility and reliability are not the same thing. Credibility has to do with the truthfulness of the witness. Reliability has to do with the accuracy of the witness’s testimony. Reliability involves an assessment of the witness’s ability to observe, recall and recount evidence. A witness who is not credible cannot give reliable evidence. But credibility is not a proxy for reliability. A credible witness may give unreliable evidence. See R. v. H.C., 2009 ONCA 56 at para. 41.
[23] This case involves incidents that allegedly occurred more than a decade ago. In cases of this nature, particular scrutiny is called for in approaching the reliability of the evidence. Trial judges must be mindful of the passage of time and “appropriately cautious when assessing testimony of events from a distant past.” See Paddy-Cannon v. Canada (Attorney General), 2022 ONCA 110, at para. 38.
[24] As Blair J.A. observed in R. v. Sanichar, 2012 ONCA 117, at para. 42, the court must be alive to “the inherent frailties attaching to evidence that attempts to reconstruct distant events through the prism of memory that may be coloured or distorted by the erosive impact of time and life experience”.
[25] I note that while the majority decision in Sanichar was overturned by the Supreme Court in a ruling reported as 2013 SCC 4, the Supreme Court did not depart from Justice Blair’s indication that the reliability of evidence of historical allegations needs to be rigorously scrutinized.
[26] In Sanichar, Blair J.A. cited, with approval, the decision of Minden J. in R. v McGrath, [2000] O.J. No. 5735 (S.C.J.) where he too cautioned that careful scrutiny must be paid to the reliability of evidence in cases of historical sexual assaults. Minden J. identified a number of factors that should be kept in mind. They include:
(a) A witness's difficulty in recollection due to the passage of time must not lead to an "undiscriminating acceptance" of his or her evidence. A trier of fact must pay particular attention to serious inconsistencies in the account, as well as to significant inconsistencies between present testimony and prior accounts;
(b) At the same time, an abundance of detail in the recounting of an event does not necessarily imply an accurate memory; and,
(c) A trier must bear in mind the "subtle and not so subtle influences" that may have, over time, distorted memory. The influences upon the life of a witness over the course of many years may, for instance, make it difficult to fairly assess an apparent lack of motive to fabricate.
[27] At the same time, I must be mindful of the fact that A.F., and a number of the other witnesses who testified, are adults doing their best to recall childhood memories.
[28] Our law recognizes that children do not have the same ability as adults to recall precise details accurately. As Chief Justice McLachlin said in R. v. W.(R.) (1992) 1992 CanLII 56 (SCC), 2 S.C.R. 122 at paragraph 26:
In general, where an adult is testifying as to events which occurred when she was a child, her credibility should be assessed according to criteria applicable to her as an adult witness. Yet with regard to 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 she is testifying.
[29] The fact that a witness was a child – or at least a young person – at the time of the events in issue may attenuate some of the inconsistencies in the evidence or provide a satisfactory explanation for the absence of peripheral details.
The Exculpatory Testimony of L.R. and Y.R.
[30] L.R. elected to testify in his own defence. His testimony was resoundingly exculpatory in nature. He denied that there was ever any sexual touching between him and A.F.
[31] Moreover, L.R.’s wife, Y.R., offered additional evidence which is arguably exculpatory.
[32] A.F. testified that L.R. drove a grey Land Rover. She said he frequently picked her up in that vehicle, both for the purpose of driving her to hockey-related activities and to engage in sexual activities.
[33] Y.R. testified that she and L.R. owned two vehicles at the time in question. The Land Rover was one. The other was a blue VW Jetta which had a standard transmission. Y.R. testified that she broke her left foot and badly sprained her left ankle in late August 2009. She said she was in an air cast until January 2010. In the result, she could not drive the Jetta since she was unable to work the clutch. She said L.R. drove the Jetta during the period that she was in the air cast. She said that he would not have left her at home without a vehicle she could drive if needed. Obviously L.R. could not be driving in the Land Rover with A.F. between August 2009 and January 2010 if he exclusively drove the Jetta during that period.
[34] Y.R. also corroborated testimony given by L.R. that he had lunch with his young daughter, D.R., every school day during 2009 and 2010. L.R. testified that D.R.’s elementary school was a short walk from their home and D.R. came home every day for lunch. They would either eat in or go out for lunch. The significance of this testimony is that A.F. testified that there were occasions when L.R. picked her up at her school at lunchtime and they engaged in sexual touching in his car during the lunch period. Obviously, L.R. could not have met A.F. at lunchtimes if he indeed had lunch with his daughter every single day.
[35] It is imperative that the criminal standard of proof be applied “when making credibility and reliability determinations relating to exculpatory evidence on vital issues.” See R. v. D.M., 2022 ONCA 429 at para. 58.
[36] In accordance with the Supreme Court’s instructions in R. v. W.(D.), 1991 CanLII 93 (SCC), [1991] 1 S.C.R. 742, I must approach my assessment of all of the exculpatory evidence relating to vital issues of fact and apply the reasonable doubt standard to that evidence with the following framework in mind:
(a) First, if a consideration of the exculpatory evidence leads me to believe that L.R. did not have sexual contact with A.F., as alleged, then of course I must acquit him of the charged offences, because I will not be satisfied, in those circumstances, that his guilt has been proven beyond a reasonable doubt;
(b) Second, even if I do not believe L.R.’s denials of the conduct charged in this case, or other exculpatory evidence that tends to support his denials, I must still acquit him of a charge if the exculpatory evidence raises a reasonable doubt about his guilt in relation to that charge; and,
(c) Third, even if a consideration of the exculpatory evidence does not leave me in a state of reasonable doubt about his guilt in relation to an offence, I must not convict him of that offence unless I am satisfied beyond a reasonable doubt, based on evidence that I accept and rely upon, that he is guilty of that offence.
[37] I note as well that should I reject L.R.’s exculpatory testimony, I must be careful not to use that rejection as positive evidence of guilt. Rejected evidence is simply evidence that I am not prepared to believe and rely upon in deciding this case. It is not proof of anything.
[38] Having referenced the fundamental principles that govern my assessment of the evidence in this case, I turn to an examination of the essential elements of the charged offences and the evidence adduced in relation to those elements.
III. THE ESSENTIAL ELEMENTS
[39] As I noted, L.R. is charged with two counts of sexual assault, as well as one count each of sexual interference, invitation to sexual touching and sexual exploitation.
Sexual Assault
[40] Counts 1 and 4 charge L.R. with sexual assault. To establish L.R.’s guilt for committing a sexual assault against A.F., Crown counsel must prove to the reasonable doubt standard that L.R. intentionally applied force against A.F., without her consent and knowing that she did not consent. The application of force must occur in circumstances of a sexual nature.
[41] Count 1 on the Indictment alleges that L.R. sexually assaulted A.F. in the period between September 1, 2009 and July 10, 2010. The assertion of the Crown is that any sexual activity engaged in between A.F. and L.R. between these two dates occurred when A.F. was 15 years old. It could not have been consensual, in the circumstances, given that, since May 1, 2008, the applicable age of consent in Canada is 16. See Criminal Code s. 150.1(1). A.F.’s 16th birthday was on July 11, 2010. Having said that, Crown counsel elected not to proceed with Count 1 because it tends to overlap with the offences charged at Counts 2 and 3 of the Indictment.
[42] Count 4 on the Indictment alleges that L.R. sexually assaulted A.F. between July 11, 2010 and September 30, 2011. A.F. was 16 during this period. As I refer to the evidence in more detail shortly, it will become clear that A.F. apparently consented to engage in sexual activity with L.R., after she turned 16. The Crown asserts, however, that any such apparent consent was not legally effective. More specifically, that any such apparent consent was vitiated by virtue of the nature of the relationship between A.F. and L.R.
[43] Section 273.1(2)(c) of the Criminal Code provides that consent is not obtained where an accused person induces a complainant to engage in sexual activity by abusing a position of trust, power or authority.
[44] In R. v. Snelgrove, 2019 SCC 16, at para. 3, the Supreme Court instructed that the aim of s. 273.1(2)(c) is “the protection of the vulnerable and the weak and the preservation of the right to freely choose to consent to sexual activity.” The court expressly approved of Justice Doherty’s observation in R. v. Lutoslawski, 2010 ONCA 207, at para. 12, that “An individual who is in a position of trust over another may use the personal feelings and confidence engendered by that relationship to secure an apparent consent to sexual activity.”
[45] In Lutoslawski, Justice Doherty explained that s. 273.1(2)(c) “addresses the kinds of relationships in which an apparent consent to sexual activity is rendered illusory by the dynamics of the relationship between the accused and the complainant, and by the misuse of the influence vested in the accused by virtue of that relationship.”
[46] In the result, the principle live issues for determination in relation to Count 4 are whether sexual activity occurred between L.R. and A.F. between July 11, 2010 and September 30, 2011 and, if so, whether any apparent consent to such activity was vitiated under s. 273.1(2)(c) of the Criminal Code.
Sexual Interference
[47] Count 2 alleges that L.R. committed the offence of sexual interference in relation to A.F. between September 1, 2009 and July 19, 2010. To prove L.R.’s guilt for this offence, the Crown must establish, to the reasonable doubt standard, that L.R. intentionally touched A.F. for a sexual purpose at a time when she was under the age of 16 (in other words, prior to July 11, 2010).
Invitation to Sexual Touching
[48] Count 3 alleges that L.R. committed the offence of invitation to sexual touching. To establish L.R.’s guilt for this offence, Crown counsel must prove, to the reasonable doubt standard, that L.R. invited A.F. to touch his body for a sexual purpose at a time when she was under the age of 16. By “invite” I mean to request, suggest, ask, encourage or urge.
Sexual Exploitation
[49] Count 5 charges L.R. with committing the offence of sexual exploitation. A finding of guilt for this offence requires the Crown to prove, to the reasonable doubt standard, that L.R. was in a position of trust or authority towards A.F. and that L.R. touched A.F. for a sexual purpose at a time when she was over the age of 16, but under the age of 18.
IV. THE LIVE ISSUES
[50] The essential elements of the various charged offences overlap somewhat. Those essential elements, and the positions taken by the parties, raise the following issues for determination:
(i) Did L.R. engage in sexual activity with A.F.?
(ii) If the answer to (i) is “yes”, how old was A.F. at the time that L.R. engaged in sexual activity with her?
(iii) Was L.R. in a position of trust in relation to A.F.?
(iv) Did L.R. use his position of trust to induce A.F. to engage in sexual activity with him? And,
(v) Was L.R.’s relationship with A.F. exploitative?
[51] I will consider each of the live issues in turn.
ISSUE ONE: DID SEXUAL ACTIVITY OCCUR BETWEEN A.F. AND L.R.?
[52] This first issue is at the core of each of the charged offences. Unless I am satisfied beyond a reasonable doubt that L.R. engaged in sexual activity with A.F. at some point, none of the charges can be made out.
[53] As I noted, L.R. categorically denies that any sexual touching occurred between him and A.F. at any time. The structure of the W.D. analysis suggests that exculpatory evidence be considered first, though this is not a strict requirement. See R. v. Vuradin, 2013 SCC 38, at para. 21. Moreover, the trier of fact is not required to assess the accused’s credibility in isolation from the other evidence at trial. See R. v. Li, 2023 BCCA 47 at para. 86. What matters is that the principle of reasonable doubt remains the central consideration. The trier of fact must determine whether, on the whole of the evidence, he or she is left with a reasonable doubt about the guilt of the accused. See R. v. C.L.Y., 2008 SCC 2 at para. 8.
[54] L.R.’s testimony consists largely, but not entirely, of bare denials of the alleged sexual activity with A.F. There are, however, several aspects of his testimony that I would describe as going to the issue of opportunity and, more broadly, to the issue of the credibility of A.F.
[55] It is difficult, in my view, to get any real measure of L.R.’s evidence, without having first examined the allegations made by A.F. In the result, I intend to begin with a canvas of her testimony. Her testimony focuses on a period in her life between grades 9 and 11, when she was between 14 and 16 years old.
The Testimony of A.F.
[56] A.F. comes from a family of four. Her parents were both teachers. They had a family home in East Gwillimbury, near Sharon, Ontario. A.F. attended an athletics-based high school in York Region for grade 9 which, for her, was academic year 2008-09. She tried out for and made the Clarets midget team for the first time in the spring of 2008 and played for them throughout grade 9.
[57] In the spring of 2009, she tried out to remain on the Clarets. L.R. was the midget team coach that year and he selected her for the team. They met for the first time, she says, during try-outs. She was 14.
[58] L.R. ran a hockey training academy in Durham Region. Some of the members of the Clarets trained with the academy. A.F. was very competitive and, as she testified, she did not want to feel like she was falling behind other players. She too trained with L.R.’s academy on a number of occasions in the summer of 2009.
[59] L.R.’s academy offered private, semi-private and group sessions. In the summer months, they ran hockey camps for younger players. A.F. was not entirely clear on how many sessions she attended during the summer of 2009. In her recollection, she was at L.R.’s academy at least weekly and sometimes multiple times in a week that summer.
[60] She recalled assisting L.R. with some of the younger kids at summer camps but was not clear on whether those occurred in both 2009 and 2010 and, if so, how frequently she helped out. Under cross-examination, she confirmed that her recollection is that she helped out with summer camps in 2009, but she conceded that she might be mistaken about that.
[61] At any rate, A.F. said that when she was at L.R.’s academy she was on the ice with him the whole time. She said they were in communication whenever she was on the ice. Those communications, she said, increased as the summer of 2009 wore on and turned into fall. She had turned 15 in July 2009.
[62] A.F. testified that at some point during the summer of 2009, she and L.R. began to exchange text messages. She had a Blackberry phone at the time. She said that they would be texting as she drove home from training sessions or camp and sometimes they would talk on the phone. Their conversations were initially hockey related. They would consist, she said, of comments by L.R. such as “I am really enjoying spending time with you…can’t wait to see you on the ice.”
[63] According to A.F., her conversations with L.R. became more like the type of communications one might have with a boyfriend or girlfriend. Indeed, she said that at some point, L.R. sent her a text message asking to be added as a friend on her Blackberry Messenger (“BBM”) application. His message, she said, was “your boyfriend is asking to be added as a friend.”
[64] Under cross-examination, A.F. agreed that she told Detective Mitchell on March 21, 2020 that it was the spring of 2009 when her relationship with L.R. became something more than a coach/player relationship. She was 14 at that time. She said here, however, that she believed the relationship was becoming inappropriate in the summer, heading into the fall, after she had turned 15.
[65] In any event, A.F. testified that she found the attention from L.R. intriguing. She did not know where their relationship was going, but she was interested. She knew she was just 15 and that L.R. was married and had a young child. Nevertheless, they talked about having feelings for one another. They began to talk about plans for the future. She said they talked about being together and moving to Bora Bora once she was out of high school. Though they would have to wait to be together, it was going to be worth it because they were soul mates.
[66] Hockey season began in the fall. The Clarets traditionally started their season with a tournament in Stoney Creek during the month of September. Regular league games began later in September or early October. A.F. said the Clarets’ home rink was at Seneca College. They practiced there twice weekly – Tuesday and Thursday early evenings. They had games on weekends.
[67] A.F. switched high schools in the fall of 2009. She attended grades 10-12 at an all-girls private school in the Forest Hill area of Toronto. She boarded there for all three years.
[68] Several of the Clarets’ players attended the same private school as A.F. They would generally carpool to practices. The mother of one of the players A.F. went to school with was the manager of the Clarets team. She generally drove all of the girls who went to the private school to the practices together. They had a routine whereby the girls would grab something from the dining hall and then head off to practice.
[69] A.F. said her parents would usually pick her up and take her to the games on weekends.
[70] It was at a practice where, according to A.F., her relationship with L.R. progressed to include sexual touching. She said they discussed their relationship becoming physical. They decided to have their first kiss at Seneca before a practice. L.R., she said, located a private area they could sneak off to before practice started.
[71] With the assistance of the officer in charge of this investigation and a camera operator, A.F. provided a tour of the area of the arena where the dressing rooms were, the hallways she said she walked through to enter the College itself, and finally, to an area under a staircase where she said she and L.R. regularly met before practices to kiss one another. A video of the walking tour was shown in evidence and marked trial exhibit 1.
[72] A.F. recalled that she and L.R. first met in their secret area in September 2009. They continued to make an effort to meet in the same spot before every practice throughout the hockey season. They made their arrangements, she said, by text communications.
[73] A.F. testified that she and L.R. eventually discussed taking their relationship to the next level – having sex. Given that she lived at a boarding school and he lived with his wife, they agreed they would go to a hotel. She said they went to a Howard Johnson’s hotel, just off Highway 401, near Scarborough. L.R. made the arrangements and paid for it. The date was, she said, October 10, 2009. L.R. picked her up from her boarding school in his grey Land Rover. They attended the hotel and engaged in sexual intercourse. Afterwards, L.R. told her he loved her. She said she loved him back. He drove her back to school right afterwards.
[74] A.F. said she was certain of the date because she wrote a poem to L.R. on the one year anniversary of the first time they had sex. She expressly mentioned October 10, 2009 in the poem. She used the poem to refresh her memory before trial.
[75] A.F. accepted defence counsel’s suggestion that October 10, 2009 was a Saturday and it fell on Thanksgiving weekend. A.F. said they would not have had hockey if it was Thanksgiving weekend. She agreed that this would have been the first opportunity for her to go home to Sharon for a weekend. And she agreed that the boarding school encouraged the students to go home for Thanksgiving weekend. She was confident, however, that she remained at boarding school long enough to facilitate the tryst at Howard Johnson’s.
[76] A.F. testified that she was a virgin prior to the Howard Johnson’s rendezvous. She had a lot of questions, which she talked over with L.R. One of those questions was what she should do with her pubic hair. She said she settled on shaving it.
[77] She said that she and L.R. came up with pet names for their genitals. Hers were called “Tila” in honour of a pornographic film star named Tila Tequila. She said Ms. Tequila had a song called, “I like to fuck” which L.R. played for her. His penis was nicknamed “Jimmy”, for reasons that are unclear.
[78] There were, A.F. said, many sexual encounters that followed that first one. She could not put an exact number on it but said it was “often”. They included:
(a) A number of trysts at the Comfort Inn in Pickering. These, she said, were more frequent in the summer of 2010 when she had more time away from school. They would occur after training sessions at L.R.’s academy. The hotel was perhaps 20 minutes from the arena;
(b) A late-night hook-up at a hotel in Rochester while at a hockey tournament. She said L.R. slipped her a key to his room. She waited until her roommate was asleep and snuck down the hall to L.R.’s room, where they engaged in sexual intercourse. She left her own room door latched open so she could get back in without disturbing her roommate;
(c) One occasion when L.R. came to her family home in Sharon. Her parents were both at work. L.R. came in, they had sexual intercourse and he left. The whole episode was brief because L.R. had no excuse for being there, should her parents come home;
(d) On another occasion, she told her parents she was going for a run. L.R. picked her up not far from her home and they drove to a location down a rural road that they thought would be discrete. They began to have sex in the front seat of L.R.’s Land Rover. A police car drove by, stopped and began to turn around. In a state of panic she climbed into the rear of the car and swiftly re-dressed. L.R. drove down the laneway of a nearby home. A man was in the laneway and L.R. apologized to him and said they had just got turned around looking for somewhere. A.F. recalled this incident being in the spring of 2010, close to the Clarets’ year-end party;
(e) A special occasion when they went to a hotel in the east end of Toronto. She could not recall the name of the hotel but recalled that it was nicer than the Comfort Inn. It had an in-room Jacuzzi tub. She remembers they went and ate at a nearby Harvey’s, then went back to the room and had sexual intercourse. This event was significant to her because they stayed overnight together for the first, and only, time;
(f) A.F. testified that by the summer of 2010 she and L.R. were emotionally and physically involved. They spent a lot of time together on the ice at L.R.’s academy. During this summer, L.R. shared in driving her to the academy for training sessions and camps. L.R.’s hockey academy was about 45 – 60 minutes from A.F.’s family home in Sharon. She did not have a driver’s license in either 2009 or 2010. She said that her parents initially drove her to her training sessions. At some point, L.R. began to assist with driving her. He would meet her parents at a small parking area near where Highway 407 intersects with the York/Durham Townline. A.F. thought this did not happen frequently in the summer of 2009 and that it was during the summer of 2010 when it occurred more. She said there would be sexual touching in the car when they were together;
(g) There were also times, A.F. said, when she and L.R. had sex in his vehicle in the parking lot of the arena where he ran his academy. These instances occurred following training, though she could not remember the specific training sessions; and,
(h) A.F. also testified that L.R. picked her up from school at times. She said he would collect her somewhere adjacent to her school, that they would get lunch together and engage in sexual touching including, sometimes, intercourse, though this was not a frequent event. Under cross-examination, she agreed that in her January 6, 2021 statement to Detective Mitchell, she said L.R. would literally pull up right in front of the school parking lot and she would get into his car. She later clarified, in that same statement, that if it was during school hours she would meet him on a side street, so it wasn’t right in front of the school where her friends would see.
[79] Under cross-examination, L.R.’s counsel took A.F. to a passage in her January 6, 2021 police statement. She told Detective Mitchell at that time that “it would become almost like a daily or a couple days a week, he would come to Toronto and pick me up from boarding and we would either go and like, help out volunteer with one of his teams or we would just hang out and go to a hotel and have sexual intercourse.” She confirmed that she was trying to be truthful when she made that statement to Detective Mitchell.
[80] Defence counsel’s cross-examination of A.F. proceeded to focus on the implausibility of her evidence of the frequency of L.R.’s trips to her boarding school. She agreed that L.R. was not coming to her boarding school on Tuesdays and Thursdays, because they had practices those days. He was also not coming on Wednesdays because she had other school athletics. And he was not coming on game days on weekends. Mondays, she said were available because she had nothing else on.
[81] A.F.’s limited availability makes the notion of “an almost daily or couple days a week” frequency seem unlikely. That said, what was not clear in the evidence was the time period in which L.R.’s attendances at the boarding school increased in frequency. At some point, of course, hockey season ended. My understanding is that the end point was roughly the end of March, which was three months before the end of the school year. A.F. would have had considerably more free time after the hockey season ended. That is to say, A.F.’s busy schedule during the hockey season may not have precluded more frequent contact after the end of the season.
[82] A.F. testified that, apart from the sexual aspect of their relationship, L.R. treated her differently than other players. He appointed her captain of the Clarets in the 2009-10 season, even though there were more senior players on the team. And he bought her gifts. Those gifts included lingerie and a ring from Pandora.
[83] A.F. further testified that she participated in activities with L.R.’s family. For instance, she said she went to the Toronto Zoo with L.R. and his daughter, D.R., in the summer of 2010. This was a big moment for her, she said, because they snuck a kiss and held hands. They talked about going to live in Bora Bora and having a son together, who they would name Nathan.
[84] She recalled a time when she went with L.R.’s daughter to a local entertainment farm, going out trick or treating with L.R.’s daughter for Halloween 2010, and another time she went with L.R., his wife and daughter, on a shopping trip to a mall in Buffalo, N.Y. These latter two events she recalled for the first time during her cross-examination. She had not previously mentioned them to anyone.
[85] The relationship ultimately ended, A.F. said, when she was in grade 11. She said she realized she was lying to her family and friends and that the relationship with L.R. was never going to be a “real thing”. She said she ended things with a break-up text. She said she sent L.R. a message on BBM saying she realized their relationship was “sick” and that he had used her. She said she didn’t want any further communication with him and none occurred.
[86] A.F. did not disclose the relationship to her family and friends until December 2020, roughly a decade after it ended. She first disclosed it in a letter she wrote to her boyfriend. The letter was marked trial exhibit 2. In it she described being lured into a relationship at age 15 by her hockey coach who was “40 years old, married with children”. She agreed, under cross-examination, that “40” was an exaggeration and that L.R. was in his mid-30s. Moreover, he had just one child, not “children”. She said she had no ulterior motive in describing L.R. that way.
[87] As I noted, the Crown tendered ten witnesses following A.F.’s testimony in an effort to corroborate certain aspects of her evidence. I will defer any review of their testimony until after I have addressed L.R.’s evidence. I will, at this point, move on to an overview of L.R.’s evidence.
The Testimony of L.R.
[88] L.R. commenced his testimony by denying that he ever:
• kissed A.F., at Seneca Arena or otherwise;
• met A.F. under the stairs at Seneca Arena;
• had sexual intercourse or any other sexual contact with A.F.;
• engaged in sexual activity with A.F. in his Land Rover;
• picked A.F. up from her boarding school;
• stayed overnight in a hotel with A.F.;
• was ever in a hotel room alone with A.F.;
• bought A.F. lingerie or a ring; or,
• received a poem from A.F.
[89] Beyond denying that any of the alleged sexual activity occurred, L.R. gave evidence directed at (1) undermining A.F.’s credibility and reliability generally; (2) to support the assertion that her allegations are, in a number of respects, implausible; and (3) to demonstrate that he realistically did not have the opportunity to engage in sexual activity with A.F. on the occasions described by her.
[90] L.R. testified that he first met A.F. about a month before the spring 2009 Clarets’ try-outs. He said he was introduced to the team as the new coach for the 2009-10 season and he had an opportunity to meet with each player and their parents one-on-one to discuss his plans for the next season.
[91] While A.F. said the seeds of her relationship with L.R. were sown in the summer of 2009, L.R. said that he had minimal contact with her during that summer. He introduced a two page, partly typed, partly handwritten document that he said reflected any skills training sessions he did between August 14 and October 10, 2009. He said the handwriting on the document was that of his former business partner. The document was marked trial exhibit 9. In hindsight, more attention should have been paid to the basis for the admissibility of the document. It is unclear whether the document was tendered as a business record under s. 30(1) of the Canada Evidence Act, or whether there was some other basis for its admission as original evidence. It was not offered as evidence of past recollection recorded. Indeed, in closing submissions, defence counsel suggested that it was utilized only as an aide memoire to L.R. If that was the case, it was not entirely clear that, having reviewed the document, L.R. had an actual present recollection of specific skills training he did with A.F. in the summer of 2009.
[92] In any event, having reviewed the document, L.R. testified that there were only three training sessions he had with A.F. at his academy between August 14 and October 10, 2009 that were unrelated to the Clarets. The first was August 14, 2009. It was a semi-private session with two other skaters. The second was September 27, 2009 and it appears to have been a private session. The third was on October 4, 2009 and involved 8 players from the Clarets.
[93] L.R. said that A.F. also participated in a 5-day Clarets training camp that L.R. ran at his academy between August 17 and 21, 2009. Training was 3 hours per day during the camp. In addition, she participated in a 2-day Clarets’ training camp with L.R. at Seneca Arena over the weekend of August 29-30, 2009.
[94] L.R. testified at length about his busy personal and professional schedule throughout the 2009-10 hockey season. The objective, I understand, was to demonstrate that he simply did not have the time to engage in sexual activity with A.F. as alleged.
[95] L.R. testified, for instance, that in addition to running his skills academy and coaching the Clarets, he also helped coach a high school hockey team in Pickering during that school year. He identified the team calendar for that season and it was marked trial exhibit 10. Again, more care should have been taken to articulate the basis upon which the calendar was admissible in evidence. It is not even clear who created the calendar, though L.R. said he received it from the head coach. He did not clarify whether he has an independent, present recollection of the events displayed on the calendar, though his testimony certainly suggests that he was confident in the accuracy of the contents of the calendar. He said it is an accurate representation of what the 2009 schedule was. I will proceed on the basis that its permissible use was to refresh his memory as to dates and times he was engaged with the high school team.
[96] L.R. testified that the high school team practiced on Tuesdays from 3:40 to 4:30 p.m. and that they had games and tournaments through the end of March 2010. The Clarets practiced, as I noted, on Tuesday and Thursday evenings at Seneca Arena at 5:30 p.m.
[97] In addition to L.R.’s professional commitments, he testified that he also had significant personal commitments in the relevant time period. L.R. said his wife is a dental hygienist. In 2009-10 she worked part-time. Her hours were Mondays and Wednesdays, 8:00 a.m. to 5:00 p.m. and Tuesdays, 1:00 p.m. to 7:30 p.m. They had a young daughter, D.R., who turned 7 in December 2009. D.R. was busy with her own activities, which required a good deal of L.R.’s attention. He said she played tennis and had private lessons Thursdays after school. She was also very seriously into dancing. She danced Mondays and Wednesdays after school and all day Saturdays.
[98] Mondays and Wednesdays, he took D.R. to school. On both those days she was required to leave school early in order to get to dance class. He would pick her up at school at 3:00 p.m. and drop her off at dance. Tuesdays he picked her up from school at the normal time. Her mom picked her up from school at the normal time on Thursdays and Fridays.
[99] L.R. testified that he ate lunch with D.R. every day. On Tuesdays, Thursdays and Fridays, his wife ate lunch with them too. Lunch was from 11:30 to 12:30 p.m. He denied that he ever travelled to A.F’s school at lunch to meet up with her.
[100] L.R., as I noted, denied that he engaged in any sexual touching with A.F. at any time.
[101] He denied that he met A.F. under the stairs for make-out sessions prior to Clarets’ practices. He said A.F. often arrived at the rink with the other boarding school players just as the Zamboni was doing the flood. In other words, she had only about 10 minutes to get her equipment on.
[102] He said he too would frequently be rushing to get to the arena on time for practices. Tuesdays were particularly difficult. He said he got off the ice at the end of a high school practice at 4:30 p.m. The rink was in Pickering. He had to travel through Scarborough to get to the Seneca arena for 5:30 p.m. He said he frequently arrived at 5:05 or 5:10 p.m.
[103] L.R. denied that he communicated with A.F. by cell phone to choreograph make-out sessions under the stairs. He said he did not use his cell phone once he was in the arena. Moreover, he said the team had a rule about no cell phone use in the dressing room. He said that rule was strictly followed.
[104] L.R in fact denied that he exchanged text messages with A.F. at any time for any reason. He said specifically that there was no texting between them prior to the beginning of the Clarets’ season, none between the start of the season and the selection of team captains, and none after the selection of captains. He said there was no break-up text from A.F. to him. Indeed, he said, under cross-examination, that he did not have A.F.’s email address or cell phone number.
[105] L.R. denied that he had sexual intercourse with A.F. at any time. He denied that he went with A.F. to a Howard Johnson’s hotel on October 10, 2009. He said that Thanksgiving was a time when his schedule and the schedules of his wife and daughter connected. There was no work, hockey or dance. They could and did celebrate being together.
[106] L.R. denied that he had sexual intercourse with A.F. at a hotel in Rochester during a hockey tournament. He denied ever being alone with A.F. in a hotel room. Recall that A.F. testified that she had only one roommate in Rochester. She said it would have made it impossible to sneak out of her room had she had more than one roommate. L.R. testified that the players were assigned 3-4 to a room in Rochester.
[107] L.R. further denied that he engaged in any sexual activity at any time with A.F. in a vehicle. A.F. testified that L.R. only ever drove a grey Land Rover. Any in-vehicle sexual activity they engaged in, occurred, she said, in the Land Rover.
[108] L.R. testified that he and his wife, Y.R., had two cars in 2009 and 2010. One was the grey Land Rover. The other, a blue VW Jetta. V.F. was another of the Clarets players to testify. She trained with L.R. in the summers of 2009 and 2010 and assisted him with his camps both years. She testified that she received rides to games or practices from L.R. She testified that L.R. had two vehicles, a grey Land Rover and a navy Jetta. She recalled being in the Jetta a few times. She was also in the Land Rover.
[109] Both L.R. and Y.R. testified that Y.R. injured her left foot on August 18, 2009. She fractured her foot and badly sprained her left ankle. She was in an air cast between August 18, 2009 and some time in January 2010.
[110] L.R. said he drove the Jetta exclusively from the end of the summer of 2009 until at least the middle of January 2010. Y.R. did not have the ability to drive the Jetta because it had a manual transmission with a left-foot clutch.
[111] As I noted, Y.R. similarly testified that L.R. drove the Jetta during the period August 18, 2009 to January 2010. She said L.R. “would not leave her at home without a car she could drive when she was injured”, so he took the Jetta.
[112] All of this is to suggest that L.R. could not have engaged in sexual activity with A.F. in the Land Rover in the period between August 18, 2009 and January 2010.
[113] L.R. denied that he gave A.F. rides to practices or games. He said the only player he assisted with rides to games or practices was V.F. He did agree that he assisted in driving A.F. to training sessions at his academy in the summer of 2010. He said he came to learn that A.F’s parents were travelling a great distance for training sessions. He offered to help. He chose the exchange area, which was 8 minutes from his house. He denied that there was any sexual activity between him and A.F. during the car rides.
[114] According to L.R., if A.F. was coming down to his academy to train, he would have her assist with summer camps as opposed to coming down for just one hour. He denied that the training sessions ever went into the evening in the summer. The latest they had ice time, he said, was 4:00 p.m. due to the requirements of local men’s leagues. His summer work hours were, he said, 9:00 a.m. to 4:00 p.m. During the hockey season, his hours were more like 3:30 p.m. to 11:00 or 11:30 p.m.
[115] L.R. denied that he had shown any favoritism towards A.F. in selecting her to be a captain during the 2009-10 season. He said the captains were selected by a player vote. There were, in fact, two captains that season – one for home games and one for away games. A more senior player was also selected as a captain.
[116] L.R. testified that A.F. developed a relationship with his daughter. He said it was like a sisterly relationship. It had nothing to do with him. Instead it developed organically between A.F. and D.R. He did not ask A.F. to spend time with D.R. It was A.F. who initiated their contact.
[117] For instance, A.F. appeared at one of D.R.’s dance recitals and brought her flowers. On another occasion, she brought D.R. a baby chick for D.R. to have for a week (A.F.’s family home sat on 50 acres and they raised chickens). And A.F. came to his family home on Halloween 2010 and went trick-or-treating with D.R.
[118] L.R. denied that he ever attended the Zoo with A.F. He did agree that A.F. accompanied his family to Buffalo to shop one weekend. He said D.R. asked if A.F. could come along. He and his wife thought that it might be good for D.R. to have someone in the back seat with her on the drive to Buffalo.
[119] Having provided a general overview of the evidence of A.F. and L.R., I will take a moment to focus on some of the areas in which their evidence conflicts, either with each other’s testimony, or with the testimony of other witnesses.
Resolving Conflicts in the Evidence
[120] Obviously, A.F. asserts that she and L.R. engaged in a prolonged sexual relationship and L.R. denies that assertion. At this point of the analysis, I do not intend to address that fundamental conflict. For now, I will focus on other conflicts that arose in the evidence and which may bear on the court’s assessment of the credibility and reliability of the testimony of A.F. and L.R.
The Jetta
[121] I will begin with what defence counsel asserts is the most significant conflict in the evidence: whether L.R. drove the blue Jetta exclusively in the period between August 18, 2009 and January 2010. Defence counsel described this as a “paramount issue”. He asserted that if the court accepts the evidence of L.R. and Y.R. that L.R. was driving the Jetta exclusively in the period August 2009 to January 2010 – or at least does not reject it entirely – it is evidence inconsistent with guilt. He argued that it materially undermines A.F.’s version of events, which was that L.R. only drove a Land Rover.
[122] With respect, I do not share counsel’s views about the significance of the evidence relating to the Jetta.
[123] I accept Y.R.’s evidence that she injured her left foot and ankle in August 2009 and that she was in an air cast until January 2010. I further accept that, in those circumstances, she was unable to drive the Jetta during that period, given that it had a manual transmission.
[124] I also accept that L.R. principally drove the Jetta during that same period – August 2009 to January 2010.
[125] I do not accept, however, that L.R. never drove the Land Rover during that same time period.
[126] While each of L.R. and Y.R. testified that they each drove both vehicles, I find that L.R.’s preferred vehicle was the Land Rover. He said precisely that in both direct and cross-examination. He preferred it, he said, because there was more storage room for hockey equipment. That makes sense.
[127] Given L.R.’s preference for the Land Rover, I conclude that it is likely that he predominantly drove it at all material times, other than between August 2009 and January 2010. In that period, I find that it is likely that he predominantly drove the Jetta.
[128] A number of witnesses described L.R. as driving a Land Rover, or at least a vehicle consistent with a Land Rover. A.F.’s father and mother both described his vehicle as a Land Rover, though they differed on its colour. A.F.’s former teammate, V.S., described L.R. driving a black or grey VW Tiguan, which is similar in size and shape to the Land Rover. The Clarets’ administrator, G.B., could not recall specifically what vehicle L.R. drove but thought it was an S.U.V. A Land Rover is an S.U.V. A Jetta is not.
[129] Apart from L.R. and Y.R., only one witness – V.F. – described L.R. as driving a Jetta. V.F. in fact recalled L.R. having both a Land Rover and a Jetta. She said he gave her rides in both, though she was not specific about the timing of those rides.
[130] The recollections of these supporting witnesses tends, in my view, to support the conclusion that L.R. predominantly drove the Land Rover. It is the vehicle that witnesses predominantly recalled him driving.
[131] Having said that, I do accept that he principally drove the Jetta between August 18, 2009 and some point in January 2010. Given his preference for the Land Rover, however, I find it extremely unlikely that there was no instance, over that five-month period, when he drove it.
[132] I find, in any event, that the car issue is quite minor in nature. I say that for the following reasons:
(a) I find that L.R. did not assist with driving A.F. to training sessions with his academy until the summer of 2010;
(b) A.F. testified that L.R. came to her school on occasion at lunch. She said those times were infrequent. She did not specifically place any in the period between September 2009 and January 2010;
(c) A.F. testified that she and L.R. engaged in sexual activity in the Land Rover. Again, she did not specifically place any of that activity in the period between August 2009 and January 2010. One incident – which involved a chance encounter with a police vehicle while on a sideroad near her parents’ home in Sharon – occurred, she said, in the spring of 2010 near the end of the Clarets’ season. And any of her references to sex in the Land Rover in the arena parking lot after training sessions were restricted to the summer of 2010; and,
(d) In my recollection, the only time between August 18, 2009 and January 2010 when A.F. specifically recalled being in the Land Rover was when she said L.R. picked her up from school and drove her to the Howard Johnson’s hotel on October 10, 2009. I consider it entirely possible that on this one occasion – a Saturday when Y.R was not working and D.R. had no activities to get to – that L.R. drove the Land Rover. At worst, A.F. may have been mistaken about the vehicle L.R. drove on this one occasion 13 years ago. Such a mistake would not completely undermine her credibility. It would amount, in my view, to a minor inconsistency that impacts, minimally, on the reliability of her account of that particular incident.
[133] I appreciate that the issue of the Jetta goes beyond the question of whether A.F. was in it during the fall of 2009. She testified that the Land Rover was the only vehicle L.R. drove. Even if A.F. was not in the Jetta during the fall of 2009, one might expect that she would at least recall that he drove the Jetta during that period. She does not have that recollection. Her lack of recollection might arguably say something about the general reliability of her evidence of events alleged to have taken place during that time frame.
[134] I note, however, that of all of the witnesses who testified, the only one – apart from L.R. and his wife – who recalled him driving the Jetta was V.F. I think it likely that he predominantly drove the Land Rover apart from a period of several months in the fall of 2009. It is the Land Rover that witnesses generally associated him with. In my view, the fact that A.F. does not recall him driving the Jetta is not remarkable.
Summer 2009 Training
[135] A.F. recalled the seeds of her relationship with L.R. being sown in the summer of 2009. As I noted earlier, she testified that while she was not entirely clear on how many sessions she attended at L.R.’s academy that summer, she thought it was at least weekly and sometimes multiple times in a week. Moreover, she thought she may have assisted with his summer camps that year as well.
[136] L.R. testified that he did not have A.F. assisting him with summer camps in 2009. V.F. testified that A.F. helped out with camps during the 2010 summer but did not do so in 2009. I accept that evidence. I think it unlikely that A.F. assisted with camps in the summer of 2009. She barely knew L.R. when the summer of 2009 began.
[137] There are no records that reflect any training she did with L.R.’s academy in July 2009. I am unable to reach any conclusion about whether she trained at all that month.
[138] There are records relating to August 2009. They reflect that A.F. had a semi-private lesson with L.R. on August 14, 2009. In addition, as part of the Clarets’ pre-season training, she trained with L.R. at his academy for 3 hours per day between August 17 and 21, 2009. She then spent a week in Miami with her mother and returned for a 2-day training camp with L.R. on August 29-30, 2009.
[139] I am, for the reasons just expressed, unable to say how frequently, if at all, A.F. trained with L.R. prior to August 2009. It is apparent, however, that she spent considerable time training with him in that August.
The Captaincy
[140] A number of witnesses testified about their views regarding the selection of A.F. as one of two team captains for the 2009-10 season. Some thought she was not the best choice. Others appear to hold the view that the players’ votes were ignored. Ultimately, I believe the court was invited to infer that L.R.’s naming of A.F. as a captain was an example of favouritism. Moreover, that such favouritism supports the further inference that L.R. had an inappropriately close relationship with A.F.
[141] I am not prepared to draw the inferences urged on me in relation to the selection of the Clarets’ captain in 2009. I find that the captains were selected by a players’ vote. Theories offered by witnesses as to how that vote might have been tampered with are just that: theories. They lack a proper evidentiary foundation.
Thanksgiving 2009
[142] As I have indicated, A.F. testified that the first time she had sexual intercourse with L.R. was on October 10, 2009. In cross-examination, defence counsel pointed out to her that October 10, 2009 was the Saturday of Thanksgiving weekend. She had not recalled that this particular event occurred on Thanksgiving weekend. Her lack of that specific recollection is unremarkable, in my view, given that it was more than a decade ago.
[143] There are two controversies that arise on the evidence relating to Thanksgiving weekend 2009. Both are best described as touching on the implausibility of a rendezvous happening between A.F. and L.R. on that weekend.
[144] First, A.F. had only just begun her first year away at boarding school in September 2009. Thanksgiving weekend was, she agreed, her first opportunity to go home for a weekend with her family since the beginning of school. She further agreed that the school encouraged, though did not require, the students to go home that weekend. The suggestion is that it is unlikely that A.F. remained in Toronto, rather than go home to be with her family.
[145] Second, Thanksgiving weekend was a break from hockey and dance for L.R.’s family. Both he and his wife testified that it was an important weekend to them; one that they would have spent together as a family. Again, the suggestion is that it is implausible that L.R. would have taken time away from his family on that weekend in order to meet up with A.F. at a hotel.
[146] In my view, it is not at all implausible that L.R. and A.F. could have met on October 10, 2009.
[147] A.F. recalled staying at the boarding school on the Saturday in issue, while her roommate, H.M. went home to Barrie. She recalled the rendezvous with L.R. being in the afternoon or evening.
[148] Thanksgiving weekend is three days long. There is nothing implausible, in my view, about A.F. spending the Saturday in Toronto and the balance of the weekend with her family in Sharon. Whether that happened, I cannot say, because A.F. could not specifically recall what she did with the balance of the weekend.
[149] On the basis of the evidentiary record before the court, I find that it is also not implausible that A.F. spent the entire Thanksgiving weekend in Toronto.
[150] A.F.’s father, G.F., testified that A.F. would occasionally come home to Sharon on weekends while she was in boarding school, but not for every occasion. He could not specifically recall whether A.F. had come home for Thanksgiving weekend in 2009. He said she would miss certain things that other people might automatically attend, like Thanksgiving. Hockey was always her primary focus. For their family, Thanksgiving was not, he said, a mandatory family get-together.
[151] Y.R. and L.R. both emphasized the fact that Thanksgiving was a great weekend for them to be together as a family. Y.R. testified that she could not recall any Thanksgiving weekend when L.R. was away overnight, or otherwise not with their family.
[152] There is no suggestion that L.R. was away overnight on Thanksgiving weekend 2009. It is not at all implausible, in my view, that L.R. might have been out for several hours on the Saturday and that, some 13 years later, Y.R. does not recall it.
[153] A.F. says she had sex with L.R. on Thanksgiving weekend 2009. L.R. denies it. There is obviously a serious conflict in their evidence in that respect. I do not believe, however, that the fact that October 10, 2009 fell on Thanksgiving weekend makes it any more or less likely that the alleged tryst occurred.
Lunches
[154] A.F. testified that L.R. picked her up on occasion at lunch time at her school. She said they would have lunch together and engage in sexual touching. L.R. denied ever having done so and further suggests that it was not possible for him to have done so, since he ate lunch with his daughter, D.R., every day. Y.R.’s testimony corroborated L.R.’s evidence on this point.
[155] A.F.’s testimony was that the lunchtime meetings were infrequent. According to her, the illicit relationship between her and L.R. commenced in the fall of 2009 and continued until at least late 2010. In other words, it encompassed virtually the whole of the 2009-10 school year and perhaps half of the 2010-11 school year.
[156] In my view, it is not impossible that L.R. missed lunch with his daughter on the occasional instance throughout that period and instead had lunch with A.F. It is entirely possible that if he did so, Y.R. would not now recall those occasions many years later.
[157] Again, I appreciate that L.R. absolutely denies that he ever met A.F. at her boarding school for lunch. I will address his denials shortly. For now, I simply note that, in my view, it was not impossible for him to have arranged to meet her for lunch on the odd occasion.
The Overnight Hotel
[158] A.F. testified that she spent an overnight with L.R. at an upscale hotel in Toronto. She could not recall the specific date. L.R. denies it happened.
[159] Y.R. testified that L.R. was never away on an overnight in 2009-10 other than the two away tournaments played by the Clarets in Rochester and Sarnia. She denied Crown counsel’s suggestion that it is hard to remember every single night from that long ago. She said L.R. never spends nights away from her.
[160] I am, frankly, unable to resolve this conflict in the evidence. One would expect that if A.F. spent only one overnight with L.R., it would stick out in her mind and it would be something she would remember.
[161] Similarly, if L.R. never stayed away from Y.R. overnight, one would expect that if he did so, it would be highly unusual and would stick out in Y.R.’s mind.
[162] The Crown alleges that A.F. had a sustained sexual relationship with L.R. that included numerous incidents of sexual touching. It is not necessary that the Crown prove that each and every alleged incident occurred. Moreover, it is not necessary that I be able to resolve every discrete factual issue raised in the case. See R. v. S.H., 2011 ONCA 215 at para. 14. That I am unable to resolve this one factual issue makes little difference in my assessment of the evidence as a whole.
Rooming in Rochester
[163] As I noted, A.F. testified that she had one roommate at the hotel in Rochester when the Clarets played in a tournament there in November 2009. She said it would not have been possible for her to sneak out of the room if there had been another roommate. A number of witnesses were asked about the rooming protocol for the Rochester tournament. They gave inconsistent evidence including:
• L.R. testified that, at tournaments, there would be 3-4 players in a room. Only goalies shared 2 to a room;
• G.B., the team administrator, said the players were typically booked 2-3 to a room, usually 3, but he did not recall what the situation was in Rochester;
• F.M., the former assistant coach, said players were assigned 3 to a room, though it could be fewer if someone wasn’t able to go. Goalies were assigned 2 to a room;
• J.S., the other assistant coach, said she could not remember how many players were in one room. She thought it was either 2 or 4; and,
• V.F. said she could not recall who she roomed with, but said rooms would be assigned on the basis of 2 different defence pairs to a room or a defence pair plus a goalie. It was pretty standard, she said, to be with your defence pair or your line mates.
[164] The upshot of the rooming evidence is that no one, apart from A.F., had a specific recollection of who roomed with whom at the Rochester tournament 13 ½ years ago. Even A.F. could not say who her roommate was; only that she had just the one. Based on the various accounts offered by other witnesses, there could have been anywhere from 1 to 3 additional players in A.F’s room.
[165] Given the state of the evidence on this point, I am certainly in no position to conclude that A.F. is wrong about how many roommates she had. I accept her evidence that it was one. She had a reason to recall how many roommates she had on that occasion. The other witnesses who testified on the point did not.
The Zoo
[166] A.F. testified that she went to the Toronto Zoo with L.R. and his daughter in the summer of 2010. She provided some specific details about why the Zoo visit was significant to her.
[167] L.R. denied that they went to the Zoo together. D.R. similarly denied that she had ever been to the Zoo with A.F. Y.R. testified that D.R. has been to the Zoo with her and L.R. as a family and also with her school. She could not recall D.R. ever going to the Zoo with A.F.
[168] This is another instance where I am simply unable to resolve the conflict in the evidence. Again, it is unnecessary for me to resolve this conflict. The Zoo trip is not part of the charged conduct.
Texting
[169] A.F. said she and L.R. texted regularly with one another. L.R. said they never texted with one another. I find that they did.
[170] A.F. testified that she had a Blackberry cell phone. A number of witnesses corroborated A.F.’s evidence that she had a cell phone, including her mother and father and her roommate, H.M. L.R. confirmed in his evidence that he too had a cell phone.
[171] The evidence of a number of witnesses tended to corroborate A.F.’s evidence that she communicated with L.R. by cell phone, including:
• A.F.’s father, G.F., testified that he was aware that A.F. was in contact with L.R. by cell phone, including occasional phone calls;
• A.F.’s roommate, H.M., said she was aware that A.F. received text messages and phone calls from L.R. She said she observed A.F. communicating with L.R. by cell phone on numerous occasions. She thought at the time that it was perhaps related to H.M.’s leadership role on the Clarets. She did not ask questions.
H.M. indicated that there were occasions when A.F. would tell her she had just been speaking with L.R. To the extent that H.M.’s knowledge of cell communications is based on statements made to her by A.F., it is inadmissible hearsay. While there was certainly an element of that in H.M.’s testimony, I also understood her evidence to include her own direct observations;
• F.M. testified that he observed what he concluded was text messaging going on between A.F. and L.R. on the team bus ride to Rochester. I put little weight on this evidence, however, given that it involved a 10-15 second observation by F.M. that each of A.F. and L.R. were texting and they were simultaneously smiling. He inferred from their expressions that they were texting one another, but conceded that it was possible they were texting with other people;
• J.S. testified that L.R. texted with A.F. and that it was not normal for coaches to text with players. She testified about her observations on the team bus ride to a tournament she thought was in Sarnia. She said that L.R. and A.F. were both texting on their phones during most of the bus ride. They sat on opposite sides of the aisle. She said that she inferred that they were texting each other based on the looks exchanged across the aisle and on the vibrating of their phones; and,
• B.W. – another former Clarets’ teammate – testified that A.F. texted with L.R. She said there were a couple of times when she saw L.R.’s name pop up on A.F.’s phone. She said she specifically saw A.F. texting with L.R. in the hockey locker room.
[172] L.R. testified that the Clarets had a rule about no cell phones in the locker room. He said the rule “did not need to be enforced”. From that I took him to mean it was observed. He said it would have caused a lot of problems among the players if someone snuck a cell phone into the dressing room.
[173] A.F. testified, however, that the rule existed but was not enforced. V.S., a former teammate, similarly said the rule was not enforced. B.W. did not recall there being a rule about no phones in the dressing room. V.F. recalled that there was a rule about handing in cell phones on game days but did not recall if they had to do so for practices.
[174] I find that L.R. and A.F. did communicate with one another by text messages. I reach that conclusion for the following reasons:
(a) Apart from L.R.’s bare denial that he did not communicate with A.F. by text, I have no other reason to doubt the veracity of A.F.’s evidence on this issue;
(b) A.F.’s evidence is corroborated by a number of what I accept as reliable sources, including her father, her boarding school roommate, a teammate and an assistant coach; and,
(c) Given the nature of the relationship between A.F. and L.R., I consider it improbable that they did not communicate at any time by text messages. A.F. assisted L.R. with his summer camps in 2010. He regularly assisted with driving A.F. partway when she trained with him and worked in his camps in the summer of 2010. And A.F. spent time with L.R.’s daughter, including a trip to a local farm, an outing at the Pickering Playing Fields, trick-or-treating on Halloween, and a day long trip to Buffalo with his whole family. It strikes me as particularly unlikely that, given this context, they never had communications with one another by cell phone.
Opportunity
[175] L.R.’s position is that, in light of his busy schedule and A.F.’s similarly busy schedule, there was little, if any, time available for them to have met – particularly for him to have met her at her boarding school.
[176] I have a number of comments to make based on the state of the evidentiary record.
[177] First, the events in issue happened more than a decade ago. Though the schedules of A.F. and L.R. were clearly busy, there were undoubtedly gaps in those schedules that afforded them opportunities to meet. That no one can say precisely when those gaps were is not surprising. But I note that L.R. had his own business and, during the hockey season, was generally the master of his own time during the mornings until mid-afternoons. A.F. was a high school student. She testified about how easy it was for her to sign herself out of school. In my view, the old proverb, “where there is a will there is a way” applies here.
[178] Second, A.F., for understandable reasons, was not able to name specific dates on which sexual activity occurred, other than October 10, 2009. As I have already pointed out, A.F.’s schedule became significantly less stressful once hockey season ended. For at least 3 months in the spring of 2010, she was not playing hockey. Nothing in her evidence suggested that their alleged sexual activity occurred in a pattern spread evenly throughout the year, save for their purported make-out sessions at Seneca.
[179] Third, my impression of A.F.’s evidence is that she described a relationship that increased in intensity throughout the period of late summer 2009 to the end of the fall of 2010. That a relationship would build in intensity as time goes on generally accords with common sense, though I appreciate that some relationships burn brightly very quickly and flame out just as fast. My impression is that the majority of the sexual activity described by A.F. allegedly occurred in the period from the spring of 2010 to the end of the summer of 2010.
[180] At any rate, I am not persuaded that a lack of opportunity posed any significant impediment to the relationship as described by A.F.
[181] Having provided an overview of the testimony of A.F. and L.R. and having addressed some of more prominent conflicts in the evidence, I will move on to my observations about the credibility and reliability of the evidence of A.F. and L.R.
The Credibility and Reliability of the A.F. and L.R.
[182] Sexual assault cases are very difficult, particularly when they involve historical events. Though there were a number of corroborative witnesses offered by both sides, none of those witnesses offered any direct evidence about the material issue in dispute – whether sexual activity occurred between A.F. and L.R. That is not surprising because acts like the ones in issue here generally take place in private. In the result, this case reflects the classic he said/she said paradigm.
[183] A trial, at its core, is an exercise in getting at the truth. It is often very difficult to discern the truth in circumstances like the ones here. It is particularly important in these circumstances that the court not determine the case based on a preference for one party’s evidence over the other. This is not a credibility contest. Earlier in these reasons, I referred to the Supreme Court’s decision in R. v. W.D. It is imperative that the principles enunciated in that case be respected and that the reasonable doubt standard be applied to the exculpatory evidence offered by the defendant.
[184] The assessment of credibility is a very nuanced exercise. As I noted earlier, it involves a consideration of a number of factors including, but not limited to:
(a) the internal consistency of the witness’s evidence – whether it changes over time, for instance between a police statement or preliminary hearing and trial, or between examination-in-chief and cross-examination;
(b) the external consistency of the witness’s evidence – whether it is consistent with other evidence that the court accepts;
(c) the inherent plausibility of the evidence, in light of the application of logic and human experience; and,
(d) the witness’s demeanour.
[185] With these factors in mind, I will begin with my general observations about the credibility and reliability of the testimony of L.R.
The Assessment of L.R.’s Evidence
[186] Defence counsel described L.R.’s evidence in the following terms. He said L.R. testified with confidence. He provided detailed evidence. He was balanced – he accepted reasonable suggestions put to him and rejected ones he did not agree with. And he had clearly done his homework to recall the events of 2009-10.
[187] I largely agree with defence counsel. L.R.’s evidence was detailed; it was given with confidence; and he clearly had done his homework to recall the events of 2009-10.
[188] L.R. was adamant that no sexual touching occurred between him and A.F. at any time. He categorically denied that they had a sexual relationship. And that evidence appeared not to be shaken in any way under cross-examination.
[189] In making final submissions, Crown counsel identified a number of areas of L.R.’s testimony that he thought problematic. They include:
(a) He gave inconsistent evidence in relation to a reference letter he wrote for A.F. The letter was written on the letterhead of his academy and was dated May 10, 2010. He initially indicated that the letter was written in the context of A.F.’s involvement with his academy. He subsequently said that it referred to A.F.’s involvement with the Clarets and denied that it had anything to do with her involvement with the academy. He said he wrote it on the academy’s letterhead because he did not have letterhead for the Clarets. Crown counsel argued that his evidence changed when he realized that his reference letter provided support for A.F’s involvement in his academy during the 2009 year;
(b) The use of the Jetta. Crown counsel took issue with L.R.’s evidence that he drove the Jetta in the summer of 2010. He submitted that it is not credible that L.R. drove the Jetta that summer for at least two reasons. First, because his wife no longer had a foot injury. Second, because the Land Rover had more cargo space and was better suited to carrying around his hockey gear;
(c) L.R.’s evidence about the voting for team captains. Crown counsel pointed out that there was some inconsistency between L.R.’s recollection of sharing the ballots with the assistant coaches and the recollections of the assistant coaches who both said he did not share the ballots. Moreover, Crown counsel suggested that L.R.’s evidence about how he knew who a particular player had voted for was internally inconsistent; and,
(d) Finally, Crown counsel also raised a concern about L.R.’s evidence regarding how closely the rule against cell phones in the dressing room was followed. He was adamant that players were not using cell phones when in the dressing room. That evidence is in conflict with the evidence of A.F. and V.S. who said the rule was not enforced.
[190] In my view, none of the problems identified by the Crown have any significant impact on L.R.’s credibility.
[191] The reference letter is vague in terms of A.F.’s involvement with the academy. It merely says she is enthusiastic, positive and hard-working in training sessions. By the time the letter was written, L.R. had trained her extensively through both his academy and the Clarets team. There is nothing remarkable, in my view, about the reference letter, nor L.R.’s evidence about it.
[192] Crown counsel’s submissions about the Jetta appear to be premised on the suggestion that L.R. said he predominantly drove the Jetta in the summer of 2010. I do not recall him suggesting that he predominantly used the Jetta at any time other than when his wife had a foot injury. He said he exclusively drove it during that period. Otherwise, he said he and his wife drove whatever vehicle suited their needs on any particular day. He confirmed that his preference was to drive the Land Rover.
[193] I do not consider L.R.’s evidence about his use of the Jetta to be generally not credible. I have already addressed why I do not consider it to be in conflict with A.F.’s evidence about only being in L.R.’s Land Rover. I note that L.R. testified that he recalls A.F. being in his Jetta in the summer of 2010. A.F. does not recall that. In my view, the fact that there are differences in recollection of events that are now well over a decade old is not surprising. L.R. did not suggest that A.F. was never in his Land Rover. The real conflict in their evidence centers on whether there was sexual contact between them when they were in the Land Rover.
[194] In terms of the selection of team captains, I think far too much has been made of this issue. There was a team vote. There is grossly insufficient evidence upon which one might conclude that L.R. acted against the results of the vote. There is a difference of recollection between L.R. and the assistant coaches in relation to whether he shared the ballots with them. Nothing turns on that in my view.
[195] Finally, I am not troubled by L.R.’s evidence about the rule against cell phones in the locker room. I think it entirely possible that players used their phones in the locker room without him knowing about it. As a male coach of a young female hockey team, he spent very little time in that locker room with the players.
[196] In my view, L.R.’s testimony was almost entirely unproblematic. I say “almost” because there is one area of L.R.’s testimony that causes me genuine concern. In particular, his evidence that he never communicated with A.F. by text. I find that he did. And I find that he was not being truthful when he said he did not. It would be one thing if there had perhaps been one or two texts to the player over the course of the season. I could, in those circumstances, readily accept that L.R. may have simply forgotten about the texts. But here, there is not only A.F.’s credible evidence that she and L.R. communicated continuously by text, there are also a number of other witnesses who corroborate that L.R. communicated with A.F. by text on numerous different occasions. I do not accept L.R.’s evidence that he did not communicate by text with A.F., nor do I think that it is at all likely that he has simply forgotten about the texts.
[197] L.R.’s false evidence about text communications is not a small matter. It is a very significant matter, in my view. It demonstrates that L.R. actively attempted to mischaracterize the nature of his relationship with A.F. and that he attempted to distance himself from a level of connection that he had with A.F.
[198] L.R.’s evidence on this issue – which I find to be untruthful – does not mean I do not accept anything he testified to. But it does, on its own, explain why his denials of sexual activity of any kind with A.F. do not raise a reasonable doubt in my mind about whether such activity occurred.
[199] I will move on to my observations of A.F.’s credibility and reliability.
The Assessment of A.F.’s Evidence
[200] In my view, A.F. provided credible and reliable evidence.
[201] Like L.R., A.F. was articulate and well-spoken. That is not to say that a liar cannot be articulate and well-spoken. Many are. What I mean to express is that A.F. was clear in her evidence. She came across as fair and measured in her testimony. She was forthright and candid.
[202] A.F. was indeed candid about a number of things that do not reflect well on her. For instance, that she lied to her family, friends, teammates and her school; that she forged communications from her father’s email account to get passes out of boarding school; and that she had a sexual relationship with a man she knew was married and had a child.
[203] A.F. was also candid about a number of things that were undoubtedly embarrassing to her: the preparations she made for her first sexual experience at the Howard Johnson’s; the pet name used for her vagina; the use of sex toys; and other details of her alleged sexual encounters with L.R.
[204] A.F. gave a very detailed account of her relationship with L.R. I am mindful of Justice Minden’s caution that a great deal of detail does not necessarily mean that an historical account is credible and reliable. There is more than one possible reason for this cautious approach. One is that a skilled liar may be able to concoct a very detailed story and keep it straight over a number of tellings. Another is that the mind can play tricks – particularly with memory. Recollections may evolve over time. Blanks may be filled in by what the mind thinks was probable or what seems to fit. Or suggestions may taint or outright alter a recollection.
[205] But this is not a case where, for instance, A.F. described a one-off sexual touching that occurred a decade ago. A.F. described a fairly long term, fairly intense, intimate relationship between herself and her coach. Certainly some of the details might be a little hazy, or even wrong, but I think it extremely unlikely that she has imagined or “misremembered” an entire sexual relationship that stretched over the better part of two years. Indeed, in my view, either the complainant had a sexual relationship with the defendant, or she has made the whole thing up.
[206] Having carefully listened to A.F.’s testimony and having observed her in the witness box, I am satisfied that she is not lying about having had this relationship with L.R. There is nothing in her account of events or her demeanour that would lead me to believe otherwise. To be clear, I am not suggesting that L.R. has any onus to prove that A.F. is lying, or even to offer a motive to explain why she might be. I am merely saying that I have no compelling reason to believe that A.F. is not credible and many reasons to believe that she is.
[207] Again, I am mindful of Justice Minden’s caution that the influences on A.F.’s life over the past decade may make the assessment of an apparent lack of motive to fabricate challenging to assess. I also appreciate that someone may fabricate a story even without a rational or discernable motive to do so. Having said that, I am not going to speculate about what, if any, motive to fabricate might exist. I would not go so far as to say that there is a proven absence of a motive to fabricate here. There is simply no evidence either way.
[208] I have expressed a number of reasons why I find A.F.’s evidence to be credible. In addition to those reasons, I find that A.F.’s version of events is plausible, that it holds together, that it makes sense and that it is, for the most part, both internally and externally consistent.
[209] To be fair, defence counsel did establish that there were some inconsistencies in A.F.’s accounts over time. Arguably, the most significant one is the statement A.F. made to Detective Mitchell on January 6, 2021. Specifically, her indication that she did not engage in sexual intercourse with L.R. until she was 16.
[210] A.F. gave a videotaped statement to the police on January 6, 2021. She told Detective Mitchell that she was 15 when she first met L.R. at the Clarets’ try-outs and that she turned 16 that summer. That was an obvious error. It is not controversial in this case that she first met L.R. in the spring of 2009, when she was 14, turning 15.
[211] A.F. went on to state, rather firmly, that nothing sexual happened between her and L.R. until she was 16. She said they had an understanding that, because it was wrong otherwise, they would not do anything until she was 16, though she said they did not have that specific discussion. She reiterated that all of the sexual activity between them took place when she was 16, which she said was between 2009 and 2010.
[212] At some point following her initial police statement, A.F. received a phone call from Detective Mitchell. She could not remember specifically what he said to her, but the gist of it was that Crown counsel was not prepared to proceed with charges against L.R., given that all of their sexual contact occurred after she turned 16. She was upset by that information.
[213] Detective Mitchell subsequently contacted her again and advised that the dates she had given him in her first statement appeared to be wrong. She went in and gave a further videotaped statement on March 21, 2020. In that statement, she confirmed that the dates she had given him in the first statement were correct, but she said she had her ages wrong. She had said she was 16 at a time when she was 15.
[214] On one level, this was a simple mix up with dates. To be sure, A.F. was clear with Detective Mitchell that sexual activity occurred in 2009. She was incorrect when she told Detective Mitchell that she was 16 at the time. In 2009 she turned 15.
[215] There was an implied suggestion that A.F. fabricated the October 10, 2009 incident at Howard Johnson’s to get around the Crown’s concern about sexual intercourse only occurring when she was 16. I am satisfied, however, that A.F. referred to October 10, 2009 as the first occasion when she had sexual intercourse with L.R. many years before this matter was even reported to the police. In particular, A.F. wrote a poem, which I referred to earlier, in which she made reference to the October 10, 2009 date. I accept her evidence that the poem was written on or about the one year anniversary of that date. The poem was admitted into evidence for the limited purpose of rebutting any assertion of recent fabrication relating to the October 10, 2009 date.
[216] That said, this inconsistency in A.F.’s evidence was, on another level, not just a mix-up over dates. A.F. seemed adamant with Detective Mitchell that age 16 was significant to her and to L.R. and that they decided to wait to have sex until she was 16. She specifically said nothing happened when she was 15.
[217] A.F. explained here that while there was an understanding of the significance of age 16, they decided to go ahead and have sex anyways. That explanation may very well be true. But that information was not conveyed to Detective Mitchell.
[218] What is somewhat troubling is my sense that A.F. was not necessarily recalling what actually happened but was instead constructing what seemed at the time reasonable to her and she conveyed that to Detective Mitchell as fact. That is not how truth works. It is, however, not uncommonly how police statements work, especially when the events being described happened long ago.
[219] I am satisfied that A.F. did her best to be truthful with Detective Mitchell. I accept that she had pushed her relationship with L.R. to the recesses of her memory because it was not a positive experience. And once she disclosed the relationship to her boyfriend and her family and came forward with a police statement, she was suddenly trying to recall relatively ancient details with a richness that perhaps was not immediately available to her.
[220] I also accept that A.F. was not a veteran of police statements. She was a fish out of water. It can be a discombobulating experience being interviewed on video by a police detective. And I accept that A.F. did her best to answer the questions put to her by Detective Mitchell. Sometimes people in those circumstances will offer answers based on recreations modelled on logic and human experience, rather than actual experience in an effort to answer the questions of the police as fully and completely as possible.
[221] A.F. should have been more careful with the information provided to Detective Mitchell. That said, this somewhat troublesome feature of her evidence cannot be considered in isolation. It has to be considered in the context of the evidence as a whole. And, on the whole, as I have said, I find that her evidence is credible and reliable for the reasons I have articulated.
[222] Sometimes an accused person will assert that a delay in disclosure impacts the credibility of the complainant. No such assertion was made here. The law is clear that there is no inviolable rule on how victims of a sexual assault will behave. See R. v. D.D., 2000 SCC 43, at para. 65. In the circumstances here, nothing about the timing of A.F.’s complaint causes me to have any concern about her credibility.
Conclusion on Issue One
[223] To reach a conclusion on this first issue – whether I am satisfied beyond a reasonable doubt that sexual activity occurred between A.F. and L.R., I must return to the W.D. framework.
[224] L.R. has categorically denied that he engaged in a sexual relationship with A.F. at any time and in any way. I reject L.R.’s denials, however, for two reasons:
(a) First, I find that he lied about never communicating with A.F. by text. I find that he lied about it in an attempt to distance himself from A.F. To be clear, I am not using my conclusion about his lie, or the reason for it, as positive evidence of guilt. I am using it solely to explain why I reject his denial of a sexual relationship with A.F.; and,
(b) Second, even if his credibility had not been undermined by his lie, I find that when his evidence is stacked against A.F.’s evidence, I am not left with a reasonable doubt about whether sexual activity occurred between them. I rely in this conclusion on the reasoning of Doherty J.A. in R. v. J.J.R.D., 2006 CanLII 40088 (ON CA), [2006] O.J. No. 4749, leave to appeal dismissed, [2007] S.C.C.A. No. 69. In particular, I am entitled to reject L.R.’s evidence on the basis of a reasoned and considered acceptance of the truth of conflicting evidence. That is what I have done here. This is not simply a matter of preferring A.F.’s account of the events in issue. For the reasons I have stated, I find A.F.’s evidence credible, reliable and overwhelmingly compelling. I find that she was being truthful about having had a sexual relationship with L.R. over the period in issue.
[225] In light of A.F.’s credible and reliable account of events, and what I have concluded was false testimony by L.R. about the texting, I am not left in a state of reasonable doubt about the existence of a sexual relationship between L.R. and A.F.
[226] Apart from his bare denials, there were, as I have noted, certain exculpatory aspects of L.R.’s evidence that were corroborated by his wife and daughter. For instance, the time during which he exclusively drove the Jetta as well as his practice of having lunch with his daughter. I have already addressed that corroborative evidence and I have found that it is not necessarily incompatible with A.F.’s version of events. To be clear, I have considered that evidence, along with all of the other evidence, including L.R.’s denials, and remain of the view that the exculpatory evidence tendered by the defence does not raise a reasonable doubt in my mind about whether a sexual relationship occurred between L.R. and A.F.
[227] In terms of the final prong of the W.D. analysis, it will no doubt be clear based on my preceding comments, that I accept and rely upon A.F.’s evidence to conclude, to the reasonable doubt standard, that L.R. engaged in a sexual relationship with A.F. during the 2009-10 hockey season and beyond.
[228] In closing submissions, defence counsel argued that because of A.F.’s narrative of events, it was incumbent upon the Crown to prove the entire arc of the relationship between A.F. and L.R. to the reasonable doubt standard. With respect, I disagree. As always, the Crown need only prove the essential elements of the charged offences to the reasonable doubt standard.
[229] As I noted earlier, each of the charged offences includes a core essential element of sexual touching between L.R. and A.F. at particular periods of time. Based on my acceptance of the evidence of A.F., I am satisfied beyond a reasonable doubt that the Crown has established that sexual touching occurred between L.R. and A.F. in the charged periods. I will move on to the next issue.
Issue Two: How old was A.F. at the time that L.R. engaged in sexual activity with her?
[230] A.F. turned 15 years old on July 11, 2009. I find that sexual contact between her and L.R began well before she turned 16 the following summer and continued after she turned 16.
[231] More particularly, I am satisfied beyond a reasonable doubt that sexual touching took place between A.F. and L.R. that included:
(a) Kissing at Seneca College before practices during the 2009-10 hockey season, though I am unable to say precisely how many times this occurred. A.F. testified that it occurred before each and every practice, but I suspect there were some occasions, as L.R. suggested, when they were too rushed before practice to have found the time to meet under the stairwell to make out;
(b) Sexual intercourse at Howard Johnson’s Hotel on October 10, 2009;
(c) Sexual intercourse on multiple occasions at the Comfort Inn, both before and after A.F.’s 16th birthday; and,
(d) Other touching of a sexual nature in L.R.’s Land Rover in 2010 when he drove her part of the way to and from training sessions in Durham, both before and after her 16th birthday, as well as an occasion near her home in Sharon when they were interrupted by a passing police car. This latter event occurred, I find, in the spring of 2010 when A.F. was 15.
Issue Three: Was L.R. in a position of trust in relation to A.F.?
[232] The determination of whether L.R. was in a position of trust with respect to A.F. involves a fact-specific inquiry. See R. v. P.S., [1994] O.J. No. 3775 at para. 2. and R. v. J.J., 2023 ONSC 2360 at para. 13.
[233] The inquiry is informed by the purpose of s. 153 of the Criminal Code, which is to protect young persons who are vulnerable to adults as a result of an imbalance of power in their relationship. Some of the factors identified by the courts as significant 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. Aird, 2013 ONCA 447, at para. 28.
[234] As Blair J., as he then was, observed in R. v. P.S., [1993] O.J. No. 704 (Gen. Div.) at para. 36, a relationship of trust involves aspects of reliability, truth and strength of character. It arises where the nature of the relationship “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 “where the child or young person is particularly vulnerable to the sway of these factors.”
[235] It is clear to me that L.R. was in a position of trust with respect to A.F. both while he was her coach and continuing thereafter.
[236] Hockey was the most important thing in A.F.’s life at all times material to the charges before the court. She played for an elite team. She had aspirations of playing for, arguably, the most elite women’s hockey team in the world. She certainly had aspirations of playing for an elite team in the U.S. college system.
[237] L.R. was her coach. He was 20 years her senior. She spent a very significant amount of her time in 2009 and 2010 in his company and under his guidance. He was in a position of tremendous influence on her.
[238] L.R. also controlled the lines on the team as well as the ice time allotted to each player. Apart from controlling L.R.’s experience in hockey for the 2009-10 season, he also had a direct impact on how she appeared to scouts who paid close attention to the Clarets team.
[239] Beyond the hockey season, L.R. continued to train A.F. on a regular basis at his academy in Durham. She continued to look up to him. He continued to have an influence on her hockey career. Moreover, he was entrusted by her family with transporting her to and from those sessions. She was left alone in his care for extended periods of time, including the day long outing to Buffalo.
Issue Four: Did L.R. use his position of trust to induce A.F. to engage in sexual activity with him?
[240] Where the Crown relies on s. 273.1(2)(c) to vitiate a complainant’s apparent consent to engage in sexual activity, the onus is on the Crown to establish the requisite factual basis for such a finding.
[241] Vitiation of consent is not established solely by proving the existence of a relationship of trust. Section 273.1(2)(c) requires that both objective and subjective elements be met. First, the Crown must establish that, objectively, there was a relationship of trust, power or authority between the accused and the complainant. Second, the Crown must establish that, subjectively, the complainant was induced to engage in sexual activity with the accused because of the accused’s abuse of the relationship. This element focuses on the question of why the complainant engaged in sexual activity with the accused. See R. v. M.S., 2022 BCCA 390 at paras. 38-39.
[242] It is not necessary that the Crown point to a particular act of inducement. In other words, a finding of inducement may be inferred from all the circumstances. Moreover, s. 273.1(2)(c) does not require that coercion is used to obtain apparent consent. See R. v. Snelgrove, 2019 SCC 16, at para. 3. As I referred to earlier, a person in a position of trust may use the personal feelings and confidence engendered by that relationship to secure an apparent consent to sexual activity: R. v. Lutoslawski, 2010 ONCA 207, as above, at para. 12.
[243] The evidentiary record here, however, does not contain sufficient indicia of inducement to support such an inference. On A.F.’s own evidence, she was clearly enthusiastic about the relationship when it first began. Exactly how she came to be enthusiastic is not clear. It is impossible, on the record before me, to determine if, for instance, A.F. developed a teenage crush on her coach and he took advantage of that, or if he did something to actually induce A.F. to engage in sexual activity with him. A.F. described a relationship where she and L.R. spoke openly about taking their relationship to ever more intimate stages. But the specifics of those discussions were not provided, which is not surprising given the passage of time.
[244] I am simply not able to determine if the element of inducement is present here.
Issue Five: Was L.R.’s sexual relationship with A.F. exploitative?
[245] Unlike s. 273.1(2)(c) which requires the Crown to establish that the accused abused his position of trust to induce the complainant to engage in sexual activity, s. 153 of the Criminal Code does not require proof of any nexus between the relationship of trust and the giving of consent. It simply forbids sexual activity between specific categories of adults and young persons. A sexual relationship is exploitative if the adult is in a position of trust with respect to the young person. See R. v. J.J., 2023 ONSC 2360, at para. 13.
[246] I have found that L.R. had a sexual relationship with A.F. at a time when she was a young person – in other words, between the ages of 16 and 18. I have also found that L.R. was in a relationship of trust with respect to A.F. both before and after the 2009-10 hockey season. That relationship continued throughout the summer of 2010 and beyond. The inexorable conclusion is that the relationship was exploitative.
[247] I return, finally, to the essential elements of the charged offences.
V. VERDICTS
Count Two
[248] Count 2 alleges that L.R. committed the offence of sexual interference in relation to A.F. between September 1, 2009 and July 10, 2010.
[249] In relation to this charge, I am satisfied beyond a reasonable doubt, for reasons I have set out, that L.R. intentionally touched A.F. for a sexual purpose at a time when she was under the age of 16. That touching included, at a minimum, kissing at Seneca College before practices during the 2009-10 hockey season, sexual intercourse at Howard Johnson’s Hotel in October 2009, and sexual activity in L.R.’s Land Rover on a sideroad near Sharon in the spring of 2010.
[250] There will be a finding of guilt on Count Two.
Count Three
[251] Count 3 alleges that L.R. committed the offence of invitation to sexual touching. For the same reasons I have expressed in relation to Count 2, I am satisfied beyond a reasonable doubt that L.R. invited A.F. to touch his body for a sexual purpose at a time when she was under the age of 16.
[252] There will be a finding of guilt on Count 3.
Count Four
[253] Count 4 alleges that L.R. sexually assaulted A.F. between July 11, 2010 and September 30, 2011. While I am satisfied beyond a reasonable doubt that L.R. intentionally applied force to A.F. in circumstances of a sexual nature in the time period specified, I have a reasonable doubt about whether there was a lack of consent.
[254] A.F. was over the age of 16 at the time of the alleged offence and apparently consented to the sexual activity she engaged in with L.R. in that time period. The Crown argued that consent was vitiated, but for the reasons I expressed, I am not satisfied that the Crown has established that L.R. abused his position of trust to induce A.F. to engage in sexual activity with him.
[255] There will be an acquittal on Count 4.
Count Five
[256] Count 5 charges L.R. with committing the offence of sexual exploitation between July 11, 2010 and September 30, 2010.
[257] For the reasons I have expressed, I am satisfied beyond a reasonable doubt that L.R. was in a position of trust with respect to A.F. and that he touched A.F. for a sexual purpose at a time when he was in that position of trust and she was between the ages of 16 and 18.
[258] That sexual touching included, at a minimum, sexual intercourse at the Comfort Inn on multiple occasions, sexual touching in L.R.’s Land Rover in the parking lot of the arena where L.R. ran his academy, and sexual touching in L.R.’s Land Rover while driving to and from the driving exchange point at Highway 407 and the York/Durham Townline.
[259] There will be a finding of guilt on Count 5.
C. Boswell J.
Released: June 30, 2023