COURT FILE NO.: CR-21-19892 DATE: 2024/04/12
ONTARIO SUPERIOR COURT OF JUSTICE
BETWEEN:
HIS MAJESTY THE KING – and – L.M.
Counsel: Ernesto Caceres, for the Crown Natalie Trottier, for the Accused
Heard: Dec 7, 8, 11, 12, 13 and 14, 2023
Reasons for Decision
(Abbreviated version released orally April 4, 2024)
PURSUANT TO SECTION 486.4 OF THE CRIMINAL CODE THERE IS AN ORDER IN PLACE DIRECTING THAT THE IDENTITY OF THE COMPLAINANT AND ANY INFORMATION THAT COULD DISCLOSE SUCH IDENTITY NOT BE PUBLISHED IN ANY DOCUMENT OR BROADCAST IN ANY WAY.
WILLIAMS J.
[1] L.M. is charged with gross indecency under s. 157 of the Criminal Code, R.S.C., 1985, c. C-46.
[2] The Crown alleges that L.M. committed an act of gross indecency on the complainant between March 15, 1979 (when he was 13) and August 13, 1983 (when he turned 18.)
[3] The complainant is W.J.M., who goes by the name J.M. L.M. was married to J.M.’s father, R.M., when the act of gross indecency is alleged to have taken place.
[4] J.M. says that when he was 13, L.M. began to touch him inappropriately. J.M. said that L.M. began by rubbing his shoulders. He said she then began to touch his groin. He said that some years later, they had sexual intercourse, instigated by L.M.
Chronology
[5] The following chronology is relevant.
[6] J.M. was born on August 13, 1965. He was 58 years old at the time of the trial in December 2023.
[7] L.M. is 10 years and five months older than J.M.
[8] L.M. and J.M.’s father began to live together at 131 Woodridge in Ottawa in March 1979. This is in the Bayshore area.
[9] L.M. and R.M. were married on June 16, 1979.
[10] L.M. and R.M. lived together at the home on Woodridge at least until January 26, 1982.
[11] This chronology means that:
a. J.M. was 13 when L.M. and R.M. moved in together on Woodridge—they moved in together in March 1979, and J.M. had turned 13 on August 13, 1978.
b. J.M. was 13 when L.M. and R.M. were married on June 16, 1979.
c. L.M. and R.M. continued to live in the home on Woodridge at least until J.M. was 16—they lived in the home at least until January 26, 1982; J.M. turned 16 on August 13, 1981, and would have been 16 on January 26, 1982.
J.M.’s Evidence
[12] J.M. said he lived with his mother and R.M. in Gatineau and then in Ottawa until they separated when he was around 12 years old. J.M. said he continued to live in Ottawa for a year, and then moved to Belleville with his mother. J.M. said he thought he was around 12 years old when he moved to Belleville.
[13] J.M. said he would visit his father on weekends a couple of times a year.
[14] J.M. said that when he was 13, L.M. began flirt with him and touch him. He said when it started, she rubbed his shoulders and put her hand on his crotch area. He said this happened a couple of time before he moved from Belleville to live with his father and L.M. in Ottawa.
[15] J.M. said that when he moved in with his father and L.M., the touching escalated, and he and L.M. had sexual intercourse. He said this happened within a couple of weeks of him moving in with them.
[16] J.M. said he and L.M. stayed up to listen to music after his father went to bed. He said they were in the living room. He said that L.M. put her hand on his groin and touched his penis. J.M. said he did nothing. He said he just froze. He said his father was upstairs. J.M. said the first time, she put her hand over his pants. He said he remembers her hand being on top of his pants for sure. J.M. said he didn’t know when she went into the pants. J.M. said L.M. then grabbed his hand and put it on her breast. He said from there, they ended up on the floor. His pants were taken off and her clothes came off. They had sexual intercourse.
[17] J.M. said he felt scared, awkward, curious and aroused.
[18] J.M. said he was lying on the floor and L.M. was on top of him. He said his back was itchy. He remembered that L.M. was wearing a strong perfume.
[19] He said that afterwards, he felt awkward and dirty.
[20] J.M. said that after the first time, it happened probably at least once a month.
[21] Asked whether he wanted to have sex with L.M., J.M. said he didn’t think he wanted to because he was very nervous and felt awkward. He said, “my head was saying one thing and my other head was saying another thing.”
[22] J.M. said he was very worried that his father would find out. He became emotional when he talked about his father, who is suffering from dementia. He said he did not want to talk about his father, because it breaks his heart.
[23] J.M. said he thought he was 16 ½ when he moved out of the Bayshore house. He continued to go to school. He said he didn’t do well. He did not finish grade 11, although he did get his grade 12 many years later.
[24] J.M. said he moved back in with his father and L.M. when was around 17½. His father and L.M. were living on Wilfrid Lavigne St. in Aylmer, Quebec at the time. J.M. said that time, he lived with them for about 8 months. He said that he and L.M. had sexual intercourse at the home in Aylmer. He said it was the same scenario in Aylmer as at Bayshore: his father would go to sleep, he and L.M. would be drinking wine and feeling good, L.M. would make advances, he would be on the ground, frozen, afraid his father would wake up.
[25] J.M. said that on one occasion, when he was close to 18, he and L.M. had sex at a hotel in Ottawa. He said that L.M. told his father they were going to Ottawa so that she could buy him some clothes.
[26] J.M. said his father and L.M. separated when he was 18 or 19 and he never saw L.M. again after that.
L.M. Did Not Testify
[27] L.M. did not testify. She was, of course, under no obligation to do so.
[28] The Crown brought a voluntariness application in respect of a statement L.M. had given to the police, intending to use the statement only for purposes of cross-examination if L.M. testified.
[29] As L.M. did not testify, I have, of course, disregarded her statement.
Analysis
[30] The elements of the offence of gross indecency are the following:
- The accused is the person who actually committed the offence of gross indecency;
- The offence of gross indecency occurred at the time and place set out in the indictment;
- The acts of gross indecency were with the complainant either consensually or otherwise; and
- The acts committed are a very marked departure from decent conduct expected of the average Canadian in the circumstances which existed at the time and a crime against public morality. (R. v. McGrory, 2019 ONSC 3776, at para. 23); (R. v. St. Pierre (1974), 17 C.C.C. (2d) 489, 3 O.R.(2 nd ) 642 (Ont. C.A.), at para. 26); (R. v. A. (E.G.), 2017 ONSC 5315, at para. 158).
[31] I accept J.M.’s evidence that he and L.M. engaged in sexual activity and that L.M. was the instigator.
[32] J. M’s description of how L.M. touched him, how she guided his hand to touch her, how her body felt light on top of his, how his back felt itchy, how he froze, how he wanted to but didn’t want to and how he worried about his father finding out was detailed and uncontradicted by other evidence.
[33] I am mindful that J.M. was describing events that took place 40 years earlier, when he was a teenager. Nonetheless, his description of the nature and progression of the physical contact he had with L.M. the first time they had sexual intercourse and how he felt about it appeared to be clear in his mind. J.M. did not appear to exaggerate. He did not appear to bear ill will toward L.M. He did not attempt to justify his conflicting feelings about what he and L.M. did; he just identified them.
[34] I also accept J.M.’s evidence that sexual intercourse with L.M. was not a one-time event and that, after the first time, it happened on a regular basis, usually in the living room, after his father had gone to bed, and on some if not most occasions after they had had a few drinks.
[35] J.M. said he contacted the police about L.M. because his son was approaching the age he had been when this happened to him, and it made him think about it. In my view, it would have been very difficult for a man in his 50s to complain to police 40 years after the fact that he believed he had been sexually assaulted by a woman, and a woman who had been a family member at the time. I do not believe that J.M. made this up.
[36] The defence attempted to attack J.M.’s credibility on the basis that he testified that he had told his aunt and uncle that he and L.M. had had a sexual relationship, and when his aunt testified at the trial, she denied this. J.M. had virtually no recollection of the conversation with his aunt and uncle, although he acknowledged that telling them had been a significant event for him. I agree with the Crown counsel’s submission that little turns on the conflicting testimony between J.M. and his aunt on this point, particularly as the aunt testified that she heard about J.M.’s allegations from another family member five or six years before the trial, indicating that J.M. must have disclosed the information to someone. I cannot reconcile the conflicting evidence of J.M. and his aunt. I agree with the Crown counsel’s submission that it is not a material inconsistency that needs to be reconciled.
[37] For these reasons, I find that the Crown has proven, beyond a reasonable doubt, the first and third elements of the offence of gross indecency, enumerated in para. 30, above.
Element #2: Did the offence of gross indecency occur at the time and place set out in the indictment?
[38] As I noted at the outset of these reasons, the Crown alleges that L.M. committed an act of gross indecency on J.M. between March 15, 1979, when he was 13, and August 13, 1983, when he turned 18.
[39] Although I have accepted J.M.’s evidence that he and L.M. had a sexual relationship and that L.M. was the aggressor, for several reasons, I am unable to accept much of J.M.’s evidence about the timing of certain events and about how old he was at the time.
[40] J.M. said he moved in with his father and L.M. at the Bayshore home in the spring or summer of 1980. (He turned 15 on August 13, 1980.) J.M. said L.M.’s “flirting” became a lot more aggressive at that time. He said the first sexual encounter with L.M. after he moved into the Bayshore home took place about two weeks after he moved in, and that that first encounter escalated into sexual intercourse. He said that after that first time, it happened at least once a month and it continued to happen after he started school in the fall.
[41] J.M. said he knew it was in the spring or summer of 1980 that he had moved from Belleville to Ottawa, because his mother never would have taken him out of his school in Belleville during the school year.
[42] J.M. also said he remembered that he moved in with his father and L.M. before his 16 th birthday, which was in August. He said he knew this because he got his driver’s licence when he was in Ottawa, and he thinks he got his “365” licence, which was a learner’s permit, on his birthday.
[43] Although J.M. said he moved in with his father and L.M. in 1980 and connected the timing of the move to his 16 th birthday and getting his “365”, J.M.’s 16 th birthday was in August 1981, not August 1980.
[44] Further, J.M.’s Ontario Student Record showed that J.M. attended a school in Belleville until October 1981 and did not start to attend Sir Guy Carleton High School in Ottawa until November of 1981.
[45] Asked about the information recorded in his OSR, J.M. agreed that he must not have moved to his father’s house until October or November of 1981. Although J.M. had said confidently that his mother would not have taken him out of school during the school year, this is evidently precisely what happened. Although J.M. had testified that he and L.M. began to have sexual intercourse about two weeks after he moved into the Bayshore home, that they then had sex at least once a month, and that the sex then continued after he started school, he would have attended school as soon as he moved to the Bayshore home. His recollection that the sex started months before he started to attend school in Ottawa cannot be accurate.
[46] J.M. also said that his father and L.M. separated when he was 18 or 19 and that he did not see L.M. after that. He said the sexual encounters with L.M. took place in the five-year period before his father and L.M. separated. J.M. was then shown a separation agreement between his father and L.M. that said that they were separated on August 7, 1997. J.M. would have been about to turn 32 on August 7, 1997.
[47] J.M. then said that he felt like he had been 18 or 19 when his father and L.M. separated, but it was obviously later. He agreed that, according to the separation agreement, he would have been 31 when they separated. He said he hadn’t really paid too much attention to it. He said he had remembered the best he could.
[48] It is entirely possible that August 7, 1997 was not the first time J.M.’s father and L.M. separated. It is possible that they separated earlier, and then reconciled, although J.M. said he did not remember that ever happening. However, even assuming that the August 7, 1997 date cannot be accepted for its truth or was wrong, what was telling was that, having testified that he was 18 or 19 at the time of the separation, upon being shown the separation agreement, J.M. readily agreed that he was obviously wrong. In this case, he was wrong by 12 or 13 years. The only explanation he offered was that it “felt” like he had been 18 or 19 and he really hadn’t been paying attention. In my mind, this evidence calls into question the reliability of all of J.M.’s evidence in respect of when events took place and how old he was at the time.
[49] A less significant but still relevant point is that, as I mentioned previously, J.M. said that he was around 12 when his parents separated, that he lived in Ottawa for about one year when they separated, and that he then moved to Belleville. He said he was around 12 when he moved to Belleville. As there was a year between the separation and the move to Belleville, J.M. cannot have been the same age when he moved to Belleville as he was when his parents separated. I take from J.M.’s evidence that when he said he was “around” a certain age, it was a rough estimate that could be off by at least a year.
[50] I am not being critical of J.M. His inability to pinpoint dates, or how old he was when certain events happened, and his willingness to accept the dates that appear in documents is very human. As I mentioned previously, I am mindful that J.M. was testifying about events that took place when he was a teenager, 40 years in the past. That said, I find much of J.M.’s evidence in respect of the timing of events and in respect of how old he was when certain events happened to be unreliable.
[51] I cannot be satisfied, for example, that L.M. touched J.M. inappropriately when he was 13. This is for two reasons, the first being my overall concern about the reliability of J.M.’s evidence in respect of timelines and how old he was when certain events happened. Further, when J.M. was asked about what happened between himself and L.M. after he moved into the Bayshore home, he described how he and L.M. had been listening to music, and she put her hand on his groin and touched his penis. He said he felt awkward and froze. Asked whether L.M. had touched his penis over the pants, he said, “the first time” he remembered it was over the pants, and he “remembered on top for sure.” This evidence, in particular J.M.’s comment about it being “the first time” L.M. had touched his penis, left me with a doubt as to whether L.M. had ever touched J.M.’s groin before this time. For these reasons, general and specific, I cannot accept J.M.’s evidence that L.M. touched him inappropriately before he moved into the Bayshore home in October or November 1981.
[52] I also cannot be satisfied that J.M. and L.M. had sexual contact at the Bayshore home or whether the sexual contact did not start until J.M. moved in with his father and L.M. in Aylmer. The sexual touching, and even the sexual intercourse, may have started at Bayshore, but given the frailties of J.M.’s evidence in respect of timelines, and his similar description of the incidents in the two locations, I cannot be satisfied that the incidents in the two locations were not conflated.
[53] I am satisfied, beyond a reasonable doubt, that J.M. and L.M. had sexual contact, which included sexual intercourse. I am satisfied that they had sexual intercourse in Aylmer, Quebec and at a hotel in Ottawa. I cannot, however, be satisfied beyond a reasonable doubt that there was sexual contact between J.M. and L.M. before J.M. moved in with his father and L.M. in Aylmer when he was 17 ½ years old.
[54] As the indictment alleges that L.M. committed an act of gross indecency on J.M. between March 15, 1979, and August 13, 1983, which was his 18 th birthday, I find the Crown has proven, beyond a reasonable doubt, the second element of the offence of gross indecency, that the alleged offence occurred at the time and place set out in the indictment.
Element #4: Were the acts committed a very marked departure from decent conduct expected of the average Canadian in the circumstances which existed at the time and a crime against public morality?
[55] I have found that L.M. and J.M. had a sexual relationship that was instigated by L.M. This relationship included sexual touching and sexual intercourse.
[56] Although L.M. was married to J.M.’s father and was, therefore, his stepmother, I was not satisfied on the evidence that L.M. and J.M. had a parent-child relationship or that L.M. was in a position of authority over J.M. J.M. was 16 when he began to live with his father and L.M. at the Bayshore home. J.M. had a mother, albeit a mother who had sent him to live with his father. J.M. had a good relationship with his father. J.M. said that L.M. took him to get his driver’s licence, cleaned the house and made meals, but that she did not make rules or impose discipline. J.M. did not rely on L.M. for food or money. L.M. and J.M. lived under the same roof for a total of less than two years. Although J.M.’s frequently referred to L.M. during the trial as his “stepmother”, he testified that he had always addressed her by her first name, L., adding that he thought she was closer to his age than to his father’s age. As I noted earlier in these reasons, L.M. was 10 years and five months old than J.M.
[57] I have found that sexual contact may have begun after J.M. moved in with his father and L.M. in November 1981 when he was 16, but that I cannot be satisfied beyond a reasonable doubt that it started before he moved into the home his father and L.M. shared in Aylmer when he was 17 ½. L.M. would have been 27 or 28 at the time. L.M. would have been married to J.M.’s father for about 3 ½ years at the time.
[58] In determining whether conduct amounts to an act of gross indecency, the consent of the complainant, although not a defence, is nonetheless a relevant consideration. (R. v. Sharpe, 2007 BCCA 191, at para. 41, citing R. v. St. Pierre, supra.) In considering the issue of consent, I must be careful. I am mindful that it would be incorrect to assume that a teenaged boy cannot be sexually assaulted by a woman. I am reading nothing into J.M.’s decision to wait almost 40 years before reporting L.M. to the police.
[59] J.M.’s evidence was that he both wanted and did not want to have sex with L.M. When he described the first time they had sex, he said he “froze.” He said his father was upstairs. He described feeling scared. He also described being aroused. As I have already noted, he said his head was saying one thing, but his other head was saying another thing. He said he felt awkward and dirty afterwards.
[60] I note that when J.M. described his first sexual encounter with L.M., he did not say that L.M. removed his clothing, or that she removed her own clothing. Despite his otherwise detailed description of the encounter, his evidence in this respect was vague. He used the passive voice, saying that “his pants were taken off”. He said that L.M.’s clothes “came off”. I was left not knowing how the clothes ended up on the floor and wondering whether, through his use of the passive voice, J.M. was attempting to minimize his involvement.
[61] Frequently during his testimony, J.M. tied his misgivings about having sex with L.M. to his father being in the house and to his fear that his father might hear them. He said he worried that he might be thrown out of the house if his father found out. He said that L.M. always told him not to worry. J.M. said that at times he would say to L.M. that he didn’t think it was a good idea for them to have sex, but that he didn’t always say that.
[62] J.M. said that, at one point, he talked to L.M. about whether he should use a condom. This suggested to me that he was actively planning for a future sexual encounter with her. J.M. also described how, at the Ottawa hotel, he and L.M. had drinks in the bar, and then went to a room with a hot tub where they had more drinks and then had sex. He did not suggest that he felt he had no choice but to follow L.M. to the room.
[63] J.M. did not suggest that, at any time, L.M. threatened him or coerced him into having sex with her. J.M. said that when he expressed misgivings about having sex, which were typically related to his concerns about his father waking up, L.M. would tell him not to worry. J.M. did not say that the sex with L.M. was ever without his consent.
[64] I have considered whether J.M. might have felt forced to have sex with L.M. because he required a place to live. However, he was not a young teenager at the time he moved into the Aylmer home. Before moving into the Aylmer home, he had lived independently for several months, having earlier moved out of the Bayshore home his father and L.M. shared. Although J.M. said that he had been “poor” when he lived independently, there was no suggestion that he was not capable of working. I am not satisfied that he was dependent on his father and L.M. for a place to live at this time, other than by choice.
[65] Having carefully considered J.M.’s evidence, I find that he was an active and consensual participant in the sexual relationship with L.M. I accept that he felt conflicted about it. I find that he felt guilty about having sex with his father’s wife and that he was always very concerned that his father would find out.
[66] The facts in support of the charge against L.M. are alleged to have taken place in the late 1970s and early 1980s. I was unable to find that the sexual contact between L.M. and J.M. started before J.M. moved into the home in Aylmer, when he was around 17 1/2, which would have been in early 1983.
[67] It is well-settled law that the applicable law is the law that was in force at that time.
[68] “Gross indecency” has not been a crime in Canada since the mid-1980s, but it was a crime at the relevant time.
[69] To determine whether L.M.’s conduct was “a very marked departure from the decent conduct expected of the average Canadian in the circumstances”, I must apply the standard of “decent conduct” in Canada in the early 1980s, 40 years ago.
[70] To quote Molloy J. in R. v. LaPage, 2014 ONSC 5855, at para. 28: “The question that immediately arises is: How am I supposed to know that? No evidence was presented with respect to the social and sexual mores of average Canadians [at the relevant time.]”
[71] In LaPage, Molloy J. found that the determination of public decency standards so many years in the past cannot be based on any individual judge’s personal recollection. As she put it, it is a difficult enough task to determine contemporaneous public decency standards in one’s own community. Putting oneself back in time to make such a determination cannot be said to be an objective assessment. Molloy J. concluded that, although expert evidence would not be required in every case in which standards of public decency or public norms were at issue, in the case before her, expert evidence was required to establish what the public decency standards were at the relevant time.
[72] In the case before me, I must determine whether, in the early 1980s, it would have been a very marked departure from expected decent conduct for a 27- or 28-year-old woman to have sex with the 17 ½ year old son of her husband, who was living under the same roof, when there was no parent-child relationship between them.
[73] I am guided by Molloy J.’s observation that, in some respects, our society is more tolerant about certain things now than it was 40 years ago, and in other respects, it is less tolerant and more protective. In the 1980s, for example, a 14-year-old could consent to sexual intercourse; now, with certain exceptions, the age is 16. What happened between L.M. and J.M. happened long before the “Me Too” movement, which raised awareness of the issues of sexual harassment and sexual abuse. In the early 1980s, would it have been a very marked departure from decent conduct for a 27- or 28-year-old female to have sex with a 17-year-old male? What if the female and the male were living under the same roof and the female had been married to the 17-year-old male’s father for about 3 ½ years at the time? Would Canadian society at the time have considered this scenario to be exploitive? Would L.M.’s conduct have been considered immoral at the time? If so, would it have been considered to be so immoral as to be criminal?
[74] I agree with Molloy J. that I cannot simply think back to the early 1980s, and where I was at the time, and decide how I think Canadians would have reacted at the time to the fact situation before me. This would not be an objective assessment. I also cannot simply decide what I think the standard would be now, and then assume that 40 years ago, the standard would have been either more or less permissive. As Molloy J. put it, the question is not whether public decency standards are more or less tolerant now than they were, the issue is whether they are the same and clearly, they are not.
[75] In my view, given the substantial period of time that has elapsed since the events that took place in this case, expert evidence would be required to establish the standards of public decency and sexual mores in the early 1980s.
[76] For this reason, I find that the Crown has failed to prove the fourth element of the offence of gross indecency.
Disposition
[77] For these reasons, although I find that J.M. and L.M. had a sexual relationship that included sexual intercourse, that the relationship was initiated by L.M., that J.M. was around 17 ½ when the relationship began and L.M. was married to J.M.’s father, I am unable to find, on the evidence, that the acts committed by L.M. were “a very marked departure from decent conduct expected of the average Canadian in the circumstances which existed at the time.”
[78] I find L.M. not guilty of the charge against her.
Justice Heather Williams Date: April 12, 2024