Court File and Parties

COURT FILE NO.: 22-4000000061-000 DATE: 20240418

ONTARIO SUPERIOR COURT OF JUSTICE

BETWEEN: HIS MAJESTY THE KING Counsel: A. Ingvaldsen for the Crown

– and –

R.T.L. Counsel: A. Lobel and H. Gonzalez for the Defendant

HEARD: April 14-18, 2024

REASONS FOR JUDGMENT

RESTRICTION ON PUBLICATION

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of the Criminal Code, information that may identify the person described in this judgment as the complainant may not be published, broadcasted or transmitted in any manner.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

LEIPER, J.

Introduction

[1] R.T.L. is charged with four counts involving the complainant, A., as follows:

a) Between the 13th day of February in the year 2004, and the 30th day of September in the year 2007, at the City of Toronto, in the Toronto Region, did commit a sexual assault upon her contrary to Section 271 of the Criminal Code of Canada;

b) Between the 13th day of February in the year 2004, and the 9th day of November in the year 2004, at the City of Toronto, in the Toronto Region, did with a part of his body, for a sexual purpose, directly touch the body of a person under the age of fourteen years, contrary to Section 151 of the Criminal Code;

c) Between the 13th day of February in the year 2004, and the 9th day of November in the year 2004, at the City of Toronto, in the Toronto Region, he did, for a sexual purpose, invite a person under the age of fourteen years, to directly touch with a part of her body, his body, contrary to Section 152 of the Criminal Code;

d) Between the 13th day of February in the year 2004, and the 30th day of September in the year 2007, at the City of Toronto, in the Toronto Region, did being a person in a position of trust or authority towards a young person, with a part of his body, for a sexual purpose, directly touch the body of that young person contrary to Section 153(1)(a) of the Criminal Code of Canada.

[2] I ordered a ban on the publication of the complainant’s identity and any information that would serve to identify the complainant.

[3] The evidence at trial consisted of two witnesses, the complainant, A. and her mother, P. R.T.L. did not testify nor did he call any witnesses. A. testified from behind a screen to block her view of the accused. I draw no inference from that choice, other than to record the fact that this aid was provided to her.

The Issues

[4] The issue in this case is whether the Crown has proven the four counts in the indictment beyond a reasonable doubt. In final submissions, the defence particularized four areas in support of the submission that R.T.L. should be acquitted by virtue of raising a reasonable doubt as to his guilt of the four counts in the indictment. These submissions can be summarized as follows:

1. A.’s evidence was contradictory;
2. A.’s evidence was incredible and general;
3. A. had a history of lying;
4. A. had a motive to lie about the allegations.

Summary of the Prosecution Evidence

[5] A. testified for a day and a half. She described a pattern of non-consensual sexual activity carried out on her body and requested by the accused, her former stepfather, starting when she was thirteen years of age.

[6] A. lived in an apartment in Toronto with her mother, P. and with the accused at the time of these events. They were a family unit since A. was a toddler. Although she did spend time with her biological father, he lived elsewhere and often exercised his parenting time with her “when it was convenient.” Accordingly, A. had a strong bond to the accused and loved him as a parent.

[7] A. described her mother, P. as strict, quick to anger and reactive. P. would take away privileges, impose rules and sometimes take away things that A. liked as punishment.

[8] During the relevant time, P. worked full time. She commuted by public transit. The accused was the “at home” parent, as he was the apartment superintendent.

[9] The alleged offences started on February 13, 2004 when A. pretended she was going to school on a professional development day, but instead spent the day with a boy her age. They watched a movie, ate lunch and then went to a mall in Toronto.

[10] At the mall, A. was seen by the accused. They made eye contact. In A.’s words, he was “staring me down.” He did not speak to her. She was sure there would be repercussions. She went straight home.

[11] At home, the accused sat with her on her bed and told her that she was in trouble for sneaking out when she should not have. He told her that she would have to do something for him and used the phrase that she should “get me off.” She had no idea what this meant. She testified she had not even shared a “first kiss” with anyone.

[12] When she did not appear to understand what he was asking her to do, the accused became annoyed. He told her “you know…make me come”. He told her he meant she should do that with her hands or her mouth. Once A. understood what he was asking for, she said she “fought it.” She did not agree. The accused told her he would give her time to consider it, otherwise he would tell her mother what she had done and she would be punished.

[13] Over the next week to two weeks, the accused reminded A. several times about their earlier conversation. She testified that the “pressure got to me” and she agreed to do what he wanted. In her words, she decided, “Fuck it, if that is what it takes…” She asked him to confirm he would not tell her mother about what she had done, and said to herself that she would “figure out how to do this…”

[14] On the first occasion that sexual contact occurred, and when P. was not home, the accused took A. into the bedroom he shared with her mother. Both were undressed, although A. put a blanket over her face. The accused performed oral sex on her and then he leaned against her with his penis on top of her vaginal area and thrust against her until he ejaculated onto her abdomen. During this encounter, the accused told her it was important for her to experience this and to know what to do. A. thought it would not happen again.

[15] However, the accused continued to find ways to convince A. to participate in this same kind of sexual activity with him, either by promising to prevent her mother from getting angry over something she had done, or by giving her gifts of money and items she liked. He would give her bus fare, so that she could get home from school sooner. She provided an example of one gift, being a favourite shampoo set that he used to shower with her after the sexual activity and would hide outside the apartment to prevent her mother from knowing about it.

[16] At times she said he treated her like a “girlfriend”, and he told her he loved her. She knew this was wrong. She knew she was not “in love” with him, but that she loved him and believed he loved her. She wondered how it could be made to stop.

[17] She also described manipulative behaviour by the accused, for example him cutting up her intimate clothing and telling her that her mother had done so.

[18] The sexual activity progressed to him asking her to stimulate him with her mouth or hands, including showing her a pornographic video on how to perform oral sex on him. She said in her evidence that she did the “bare minimum” and “what she had to do.” Her evidence was that this happened when she was older, at approximately 14-15 years of age.

[19] The sexual touching and activity happened regularly, once every week or two weeks until A. moved out of her mother’s apartment and to her biological father’s home. She was sixteen years of age.

The Legal Principles

[20] R.T.L. is presumed to be innocent unless and until the Crown has proven the offences beyond a reasonable doubt. Reasonable doubt lies far closer to a near certainty than it does to a balance of probabilities.

[21] R.T.L. did not testify and I draw no inference from that decision. It is for the Crown to prove his guilt beyond a reasonable doubt and not for R.T.L. to prove anything.

The Elements of the Offences

[22] The Crown must prove the essential elements of the offences beyond a reasonable doubt. If I accept the evidence of A. as to the sexual activities in the context of her relationship with her stepfather when she was ages 13-16 while living in the family home, then the elements of each of the four counts in the indictment are made out. If I am left in doubt as to the events of a sexual nature she described, then the Crown has not proven the elements of the offences beyond a reasonable doubt.

[23] I will now review the essential elements of each offence charged. All references to the Criminal Code are to the provisions that were in force between 2004-2007 at the time of the alleged offences.

Sexual Assault

[24] The essential elements of sexual assault, s. 271 of the Criminal Code are as follows:

a) That R.T.L. intentionally applied force of a sexual nature to the complainant; b) That the complainant did not consent to the force applied; c) That R.T.L. knew the complainant did not consent to the force he applied.

The Meaning of “Consent”

[25] Section 273.1 of the Criminal Code prescribes what is meant by consent in law:

273.1 (1) Subject to subsection (2) and subsection 265(3), consent means, for the purposes of sections 271, 272 and 273, the voluntary agreement of the complainant to engage in the sexual activity in question.

(2) No consent is obtained, for the purposes of sections 271, 272 and 273, where

(a) the agreement is expressed by the words or conduct of a person other than the complainant; (b) the complainant is incapable of consenting to the activity; (c) the accused induces the complainant to engage in the activity by abusing a position of trust, power or authority; (d) the complainant expresses, by words or conduct, a lack of agreement to engage in the activity; or (e) the complainant, having consented to engage in sexual activity, expresses, by words or conduct, a lack of agreement to continue to engage in the activity.

(3) Nothing in subsection (2) shall be construed as limiting the circumstances in which no consent is obtained.

Touching the Body of a Person Under 14 for a Sexual Purpose

[26] The essential elements of Section 151 of the Criminal Code are:

a) That the complainant was under 14 years of age; b) That R.T.L. intentionally touched the complainant; c) That the touching was for a sexual purpose.

Invitation to sexual touching of a person under 14

[27] The essential elements of Section 152 of the Criminal Code are:

a) The complainant was under 14 years of age; b) R.T.L. incited, counselled or invited the complainant to touch him; and c) R.T.L.’s communication for touching was for a sexual purpose.

Sexual Exploitation

[28] The essential elements of Section 153(1)(a) of the Criminal Code are:

a) R.T.L. was in a position of trust or authority towards the complainant or was a person with whom the complainant was in a relationship of dependency; and b) R.T.L. either touched a part of the complainant’s body for a sexual purpose, or invited the complainant to touch his body for a sexual purpose.

Analysis of the Issues

[29] I will address each of the issues that the defence raise with A.’s testimony as I have described those issues above.

Was A.’s evidence contradictory?

[30] Mr. Gonzalez for the defence submitted that A.’s description of the first time there was sexual contact is inconsistent. This is based on A.’s evidence that the accused was aggressive towards her when he first used the phrase that she should “get him off” and she did not understand what he meant. The defence position is that the description of this conversation is not consistent with the description of the sexual contact that ultimately did take place. Counsel characterized the acts that took place as first being “focussed on her” rather than on the accused’s sexual need to be satisfied, because it began with oral sex by the accused on A.

[31] This submission assumes that only one type of sexual satisfaction was capable of satisfying the accused, and that the description in the evidence of oral sex performed on A. followed by simulated intercourse leading to ejaculation is so “inconsistent” with his initial demand that this should raise a doubt that any sexual activity happened.

[32] There are several reasons why I reject this submission. First, it assumes that the accused might not change his mind between the first conversation and the initiation of sexual contact. Second, it fails to account for the fact that sexual activity performed on another person may be equally stimulating for the person doing the stimulating. Finally, it suggests that the way the conversation first happened (in an intimidating way by the accused) would necessarily continue during the sexual activity once A. gave in to the pressure.

[33] I find nothing inconsistent in this evidence, particularly given the larger context and the evidence of ongoing predatory and “lover”-like” behaviour described by A. The fear coerced her compliance, and then as she described it, the accused used an ongoing cycle of gifts or threats to maintain ongoing access to her body. The shame and the hiding of this relationship from her mother led A. to feel complicit and responsible for keeping the family unit together. This dynamic leads to the next issue.

Was A.’s evidence incredible or general?

[34] The defence submits that A.’s evidence has an internal illogic which arises from the lack of any evidence that R.T.L. threatened her to ensure her silence. The defence submitted that A. could have told people at her school, for example, and it is not credible that R.T.L. would have initiated the sexual activity as described without having ensured A. would not tell.

[35] I reject this submission. A. painted a clear picture of a household that was strict, with repercussions for her by the two authority figures in her life. She understood, without always being told directly, that she would be blamed and at fault. The sexual relationship initiated by the accused began in secrecy and in an atmosphere of pressure and intimidation. Given her age and dependence on her mother and the accused, her account is not made less credible by there being no direct threats against her if she revealed what was happening to her.

[36] Further, there is the reality that adults often take risks and do not make rational choices. It would be speculative to find that an adult male would not try and take advantage of a vulnerable female without using threats to ensure her silence.

[37] A.’s account of the events and the family context was logical, and consistent with how she saw the world and what her fears and concerns were when she was 13-16 years of age. She had to come home every day to an apartment with her stepfather alone. He was older, with resources. She had no other options. Plus, these events were intertwined in expressions of love and affection from someone she had seen as a father figure since she was a baby. I do not find her evidence as a whole illogical because it did not include overt attempts by the accused to ensure her silence.

[38] Further, later in her evidence, A. described a close call, in which R.T.L. did use a threat to ensure she would not reveal his activity. This relates to the submissions about A. having lied in the past, leading to the submission that her evidence should raise a doubt on that basis. I turn to that submission next. First, I will deal with the issue of generalities.

Generalities in A.’s Evidence

[39] The defence submitted that although A. gave a detailed account of the first sexual encounter, her subsequent descriptions were more general, stating that it was similar. I do not find that undermines her credibility—and is equally reflective of counsel’s choices in what to examine and cross-examine on. The same holds for the submission that she only gave two examples of gifts, the shampoo and money for bus fare. Again, this reflects counsel’s choices and does not mean that the evidence that the accused gave A. gifts from time to time is not reliable. Further, I infer from the nature of the work that P. and the accused had that money was tight in this household, thus what might sound like an inexpensive gift to one person could represent a special or luxury item to someone else. However this was not pursued in examination.

[40] I find that A.’s evidence was not undermined by having not volunteered either additional details about the sexual activity or the gifts from the accused.

Was there a history of lying by A.?

[41] During A.’s evidence, she testified about a call with her former stepsister, K., during a trip to Huntsville to visit R.T.L.’s brother on the long weekend in May of 2004. K. and A. had spent time together at A.’s biological father’s home during the period when K.’s mother and A.’s biological father were a couple.

[42] During the call, K. disclosed to A. that she had been sexually assaulted and was in therapy for the abuse. A. started asking K. questions that caused K. to ask what was happening with A. A. then told K. that she had this “odd relationship” with her step dad, and she didn’t think it was normal. She asked K. “not to tell anybody” because she was dealing with it herself.

[43] K. disclosed what A. had told her, which led to police attending at the apartment and the involvement of the Children’s Aid Society. A. testified that she was frightened by these events, and felt “so much pressure.” She chose to deny what was happening, and told police that she had said it was happening to her as a way to support K.

[44] During this investigation, she testified that R.T.L. told her that he would commit suicide if she told anyone, that he reassured her that it was “just an accusation” and there was “no proof.”

[45] A testified that she “made it all go away” by consistently telling the police, the CAS, her doctor and her family members that nothing untoward had happened. She explained why she did so because she was afraid of what would happen, whether she would be taken away from her family but also when R.T.L. threatened suicide, she was afraid of him hurting himself and what that would mean for her. In her mind, she was the one who had made a mistake and she was overwhelmed by the responsibility for the well being of her mother, of R.T.L. and herself. She chose to insist that she felt safe at home, and repeatedly said she needed to “make it go away.”

[46] Counsel submits that either she was lying to the police about nothing happening or she lied to K. about being assaulted, but these contradictions undermine the credibility of her evidence. Counsel also submitted that if A. was being subjected to this unwanted sexual activity, it was not credible that she would go to Huntsville on a trip with her stepfather and spend time alone with him either in a car, or on a bus.

[47] I disagree. First, on the point of non-disclosure to authorities: The context of the family dynamic is important as is A.’s age at the time of the disclosure. A. described herself as fearful and feeling that she was to blame. It is understandable that she might preserve secrecy and her home as a matter of survival. Further, although the dynamics were more verbal than physical, A. testified that the accused was an easy to anger, “violent” person. Although he never threatened her, she said he intimidated her. At the same time, she was attached to him as a father figure. It is not illogical or incredible that she would not disclose to the authorities, something for which she believed she would be blamed. It was not until she grew up and was able to understand those dynamics, that she testified she saw how he manipulated her, even as he told her that what he was doing was in her “best interests.”

[48] The defence submission in this respect is that A. “is a liar.” I do not agree. The failure to disclose to authorities what she told K. in confidence does not translate to a finding that A. cannot be believed, particularly given the timing and context of these events. A.’s explanation for insisting nothing happened is utterly believable given her lived experience and description of her motivation at the time. I can find that 13 year old A. told a “lie” (that nothing happened untoward) to protect herself, and R.T.L., and I do so find. I am not left in doubt by the fact of her saying something different to all of the adults in authority in 2004. I find that she told the truth to K. and that she told the truth in court.

[49] On the submission that it is not credible that she would readily go with the accused on a trip to Huntsville, this ignores her description of the relationship and her lack of power in the relationship. In answer to the question about why she would do this, she answered, “he wanted me with him.” Further, there were other people around on this weekend. Given that the sexual activity happened in the home when there not other people around, A.’s acquiescence with the weekend away cannot be said to undermine her credibility.

[50] The other aspect of A.’s evidence which the defence relies on as evidence of her lack of credibility arose from a discrepancy between her evidence of moving to her father’s house and that of her mother, P. A. testified that she left to get away from R.T.L., and used her failure to choose her courses as a way to move schools. When asked if her mother had asked her to leave after an argument in which A. knocked her mother’s glasses off her face, she denied that, stating that her mother would not have kicked her out of the house.

[51] P. in her evidence testified that she asked A. to leave after the incident in which A. “smacked” her and knocked off her glasses.

[52] While there was an inconsistency between A. and P. on this point, I do not find that this alters my perception of the credibility of A.’s account of the sexual activity alleged. First, I am left uncertain as to the precise dynamic of A. leaving the home. There was clearly conflict between mother and daughter, which in recent years has been repaired. Second, P.’s evidence overall had several material inconsistencies which were put to P. and which led defence counsel to concede that in several aspects, P. was not a reliable witness. Finally, it is not disputed that A. left the home when she was 16 years of age to live with her father, and never went back after she left.

[53] Even had she done so because her mother asked her to leave, I accept her evidence that she wanted a reason to leave to get away from the relationship with the accused. That is not changed by who made the ultimate decision that she should leave the family home.

Did A. have a motive to lie about these allegations?

[54] Finally, there was evidence that shortly before she complained to the police in 2020, A. contacted the accused and told him she wanted him out of their lives and that he should pay for a divorce from her mother. She threatened to go to the police. He agreed to meet her to discuss that arrangement, but before the meeting could happen, she regretted contacting him. She disclosed to her mother what had happened and with her support she instead went to the police and gave a statement which led to this prosecution.

[55] The defence suggests that her actions reveal a motive to lie about what happened, and that she merely used the “seed” of suspicion against R.T.L. many years ago to try and benefit her mother and their recently reconnected relationship.

[56] I do not agree. I accept A.’s evidence that this was a mistake and that it was more important for her to hold the accused accountable than to pursue something for her mother’s benefit. There is no other evidence of her attempting to somehow “profit” from a false allegation against Mr. R.T.L.. The meeting never happened. A. went to the police. In effect, the pressure tactic was a non-starter.

Conclusion

[57] I accept A.’s evidence as to the sexual activity, that she was under 14 when these events began and that the accused used his position of trust and authority to create a sexually predatory relationship between them when A. was only 13 years of age and which lasted until she left the family home at age 16.

[58] I find the accused R.T.L. guilty of all four counts in the indictment based on the evidence of A.

Justice Leiper Date: April 18, 2024

Court File and Parties (Duplicate Information)

COURT FILE NO.: 22-4000000061-000 DATE: 20240418

ONTARIO SUPERIOR COURT OF JUSTICE

HER MAJESTY THE QUEEN – and – R.T.L.

REASONS FOR JUDGMENT

Leiper J. Released: April 18, 2024