Court File and Parties

Delivered: Orally, via Zoom, on January 26, 2024 CITATION: R. v. Boere, 2024 ONSC 505

COURT FILE NO.: CR-22-2187 (Sarnia) DATE: 20240126

ONTARIO SUPERIOR COURT OF JUSTICE

BETWEEN:

HIS MAJESTY THE KING Respondent – and – GILLIAN BOERE Appellant

Counsel: Michael Donald, for the Crown Colleen McKeown, for the Appellant

HEARD: October 25, 2023 via Zoom

Restriction on Publication

By court order made under subsection 486.4(1) of the Criminal Code, R.S.C. 1985, c. C-46, information that may identify the person described in this judgment as a complainant may not be published, broadcasted, or transmitted in any manner.

Reasons for Decision

MACFARLANE J.

Overview

[1] Gillian Boere (the “appellant”) was convicted of one count of sexual exploitation, contrary to s. 153(1)(a) of the Criminal Code, R.S.C. 1985, c. C-46 (“Code”), by the Honourable Justice D. Austin following a trial in the Ontario Court of Justice on January 28, 2022. On August 23, 2022, Austin J. sentenced the appellant to 12 months in prison followed by a 12-month probation order and certain ancillary orders. The appellant appeals to this court from both conviction and sentence and has brought an application for leave to introduce fresh evidence in the event that the sentence appeal is granted.

[2] The trial judge found that in the summer of 2019, the appellant, who was then a 34-year-old elementary school teacher, stood in a position of trust towards B.B. (“the complainant”), who was then a 16-year-old high school student volunteer assisting the appellant with her classroom preparation for the fall. The trial judge accepted the complainant’s evidence that he and the appellant had four physical encounters of a sexual nature during that summer, including two episodes of sexual intercourse. The appellant did not testify at trial.

Issues on Appeal

[3] The appellant raises three issues on appeal:

1. The trial judge’s finding that the appellant was in a position of trust was unreasonable and tainted by legal error;

2. The trial judge erred in her assessment of the complainant’s reliability and credibility; and,

3. The trial judge erred in principle in dismissing the appellant’s constitutional challenge to the mandatory minimum sentence as “moot”.

[4] For the reasons that follow, I dismiss the appeal.

Issue #1 – Position of Trust

[5] The appellant argues on appeal that she was not the complainant’s teacher and was not in a position of trust towards him. The appellant emphasized that “[t]he complainant was not vulnerable: he had maturity, agency, and independence.” These are the same arguments the appellant raised at trial. The trial judge rejected each one following a thorough consideration of all the evidence and the applicable law, and I decline to interfere with the trial judge’s findings on this ground of appeal.

[6] The trial judge considered all of the evidence in context in light of the criteria set forth by the Supreme Court of Canada in R. v. Audet, 1996 SCC 198 (“Audet”), and the Ontario Court of Appeal in R. v. Aird, 2013 ONCA 447 (“Aird”), and concluded that the appellant stood in a position of trust towards the complainant. The trial judge expressly weighed each of the considerations that are set forth in Aird, at para. 28:

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

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

[Citations omitted].

[7] The question of whether a relationship of trust exists is a mixed question of fact and law, entitled to deference in the absence of a palpable and overriding error: see R. v. M.M., 2022 ONCA 441. The trial judge assessed all of the Aird criteria and found many of them to be compelling in this case, including: the age of the complainant – he had just turned 16 and had not yet started grade 11; a significant difference in the ages of the complainant (16) and the appellant (34) – more than twice the complainant’s age; the evolution of their relationship over several years from the time the appellant coached the complainant in baseball; the status of the appellant in relation to the complainant as a teacher supervising a student who was performing community service hours; and the expectations of the affected parties that a sexual relationship would not develop in this context.

[8] The trial judge also found that the appellant was not in a position of authority over the complainant, but that there was a power imbalance recognized by the appellant as between herself and the complainant.

[9] The trial judge certainly considered as significant the fact that the appellant was a teacher, even though the complainant was not a student in her class. The appellant’s status as a teacher is central to the trial judge’s analysis of whether there was a relationship of trust in two ways:

a) The volunteer work that the complainant had been performing for the appellant was specifically connected to preparing her classroom for the upcoming school year, or as the trial judge said in her reasons for judgment, “[h]er supervision of community service hours, in my view has to be linked to her role as a teacher”; and,

b) The expectations shared among the complainant, the appellant, and the complainant’s mother that in the circumstances, a sexual relationship would not develop; that the appellant would have a responsibility to ensure that; and that the appellant would not participate in the deception of keeping such a relationship a secret.

[10] The appellant argues that the trial judge’s approach runs counter to the Supreme Court’s conclusion in Audet that even a direct teacher-student relationship will not necessarily involve a position of trust. The appellant further submits that the trial judge held a teacher offering volunteer hours to a young person she has never taught to a more stringent standard, and thereby erred in principle.

[11] I disagree. Audet stands for the principle that teachers are in a position of trust with respect to their students absent evidence raising a reasonable doubt in the mind of the trier of fact about whether the relationship is one of trust: see Audet, at para. 43. Even if that presumption did not arise in this case, it was open to the trial judge to find that in considering all the evidence of the surrounding circumstances, a relationship of trust existed. I see no error in the trial judge’s analysis or her conclusion that the appellant stood in a position of trust toward the complainant.

Issue #2 – Complainant’s Credibility and Reliability

[12] In R. v. Smits, 2012 ONCA 524, 294 O.A.C. 355, at para. 67, the Court of Appeal said:

Under s. 686(1)(a)(i) and s. 822(1) of the Criminal Code, the jurisdiction of the summary conviction appeal judge to review the finding as to sufficiency of the evidence is limited. A summary conviction appeal judge is not entitled to retry the case or to substitute his or her own view of the evidence for that of the trial judge. A summary conviction appeal judge has no basis upon which to interfere with a trial judge’s findings unless they are unreasonable or unsupported by the evidence. [Citation omitted].

[13] The appellant argued at trial that the complainant was not credible or reliable. On appeal, the appellant argues that the trial judge made the following two errors:

a) the trial judge made a palpable and overriding error in finding the complainant’s description of the car incident to be “detailed”; and,

b) the trial judge failed to resolve a material inconsistency between the complainant’s account and the text messages.

a) There was No Palpable and Overriding Error

[14] With respect to the “car incident”, the complainant had testified in chief that:

a) the appellant called him when he was on his way home from the Aylmer Fair;

b) the appellant asked him if they could meet, and was upset about her husband;

c) the complainant agreed and said they could meet at the Delaware carpool spot;

d) the appellant picked him up in her vehicle, a Ford Escape;

e) the appellant was still upset in the vehicle while they talked;

f) Apart from talking about her husband, the complainant did not recall the conversations;

g) the appellant offered to let the complainant drive, and he did;

h) they drove around, went down a back road and pulled over;

i) they engaged in a conversation the complainant did not recall, and then they got into the back seat;

j) they had sexual intercourse again in the back seat for approximately 15-20 minutes;

k) the complainant did not believe that any contraceptives were used;

l) the complainant ejaculated;

m) the complainant recalled conversation during or after the intercourse to the effect that he still couldn’t tell anybody and/or nobody could find out;

n) the complainant was feeling weird, did not know who to talk to about it, and did not know how to deal with being a 16-year-old kid who was with a woman;

o) things were left pretty rough between the complainant and the appellant;

p) the appellant asked the complainant what this was and if she was just another “piece of ass” to him;

q) the complainant responded by saying “[w]hat do you want me to tell my parents? I’m a 16-year-old kid, I can’t bring a 30-something year old woman home.”

[15] The Court of Appeal held in R. v. D.T., 2014 ONCA 44, 305 C.C.C. (3d) 526, at para. 80:

An appellate court may only intervene in a trial judge’s credibility analysis if that analysis is the subject of a palpable and overriding error. In Waxman v. Waxman, this court described the palpable and overriding error standard:

The “palpable and overriding” standard addresses both the nature of the factual error and its impact on the result. A “palpable” error is one that is obvious, plain to see or clear. Examples of “palpable” factual errors include findings made in the complete absence of evidence, findings made in conflict with accepted evidence, findings based on a misapprehension of evidence and findings of fact drawn from primary facts that are the result of speculation rather than inference.

An “overriding” error is an error that is sufficiently significant to vitiate the challenged finding of fact. Where the challenged finding of fact is based on a constellation of findings, the conclusion that one or more of those findings is founded on a “palpable” error does not automatically mean that the error is also “overriding”. The appellant must demonstrate that the error goes to the root of the challenged finding of fact such that the fact cannot safely stand in the face of that error.

[Citations omitted].

[16] The appellant’s trial counsel did not ask any questions about the “car incident” on cross-examination. The trial judge’s findings that the complainant’s evidence in chief provided “sufficient detail” and was a “reliable account of the sexual encounter between [the appellant and the complainant]” are both reasonable and supported by the evidence she heard. I reject the appellant’s argument that the trial judge made any palpable and overriding error of fact.

b) There was No Material Inconsistency

[17] The appellant alleges a “material inconsistency” between the complainant’s account and a Snapchat message entered into evidence at trial. The essence of the appellant’s argument is that the complainant had asked the appellant in a Snapchat message not to say anything to his father; this, according to the appellant, “directly contradicts” the complainant’s evidence that the appellant was the one urging secrecy.

[18] The Court of Appeal held in R. v. A.M., 2014 ONCA 769, 123 O.R. (3d) 536, at para. 14:

A trial judge giving reasons for judgment is neither under the obligation to review and resolve every inconsistency in a witness' evidence, nor respond to every argument advanced by counsel. That said, a trial judge should address and explain how she or he has resolved major inconsistencies in the evidence of material witnesses. [Citations omitted].

[19] In order for a trial judge to resolve an inconsistency, major or otherwise, there has to be an inconsistency in the first place. I find simply that there was no inconsistency or contradiction here. In his evidence in chief, the complainant referenced two occasions when the appellant had asked him not to say anything to anyone because she could get in trouble. The appellant made these statements during the first and last of their four intimate encounters. Later, some time after the last intimate encounter, and after his father had confronted him about his relationship with the appellant, the complainant exchanged Snapchat messages with the appellant that said,

Complainant: Nothin bad, just don’t say anything to him Appellant: He knows I talk to you… that’s nothing new… I promise I won’t say anything I haven’t said anything to him this whole time. Complainant: ya, but he said if I did anything to make you [and your husband] split up I’m a fuckin idiot loser and I just don’t think we should talk for a while

[20] The appellant’s prior statements and the later Snapchat exchange between the complainant and the appellant are not inconsistent to any degree, and they support the trial judge’s finding that the complainant and the appellant had formed a “mutual pact” to keep their relationship a secret.

Issue #3 – Dismissal of the Constitutional Challenge to the Mandatory Minimum Sentence as Moot

[21] Then-Chief Justice McLachlin, writing for the majority in R. v. Lloyd, 2016 SCC 13, [2016] 1 S.C.R. 130, (“Lloyd”), said at para. 18 of that decision:

To be sure, it does not follow that a provincial court judge is obligated to consider the constitutionality of a mandatory minimum provision where it can have no impact on the sentence in the case at issue. Judicial economy dictates that judges should not squander time and resources on matters they need not decide. But a formalistic approach should be avoided. Thus, once the judge in this case determined that the mandatory minimum did not materially exceed the bottom of the sentencing range applicable to Mr. Lloyd, he could have declined to consider its constitutionality. To put it in legal terms, the doctrine of mootness should be flexibly applied. If an issue arises as to the validity of the law, the provincial court judge has the power to determine it as part of the decision-making process in the case. To compel provincial court judges to conduct an analysis of whether the law could have any impact on an offender’s sentence, as a condition precedent to considering the law’s constitutional validity, would place artificial constraints on the trial and decision-making process.

[22] The Crown elected to proceed by summary conviction in this case, which means that, pursuant to s. 153(1.1)(b) of the Code, the mandatory minimum sentence in this case is 90 days of imprisonment, and the maximum sentence is two years less a day in jail. In this case, the trial judge sentenced the appellant to 12 months in jail for sexually exploiting the complainant, followed by a 12-month probation period and ancillary orders.

[23] The appellant argues, as she did at trial, that a conditional sentence would have been appropriate in this case. Clearly, the trial judge did not agree. The trial judge considered, and subsequently declined to address, the constitutional issue, finding that “the mandatory minimum sentence of 90 days does not materially exceed the bottom of the sentencing range in this case and therefore would have no impact on this sentencing.” I accept the Crown’s submission that a conditional sentence would have been “grossly disproportionate” in this case. Therefore, the trial judge committed no error in reaching her conclusion: see R. v. Lavergne, 2023 ONCA 592, at paras. 20-21; and Lloyd, at para. 18. In these circumstances, the trial judge had no obligation to consider hypothetical scenarios, and it was open to her to decline to address the constitutional issue as moot.

[24] Appeal courts must not intervene unless the sentence imposed by the trial judge is demonstrably unfit: see R. v. Lacasse, 2015 SCC 64, [2015] 3 S.C.R. 1089, at paras. 39-41, 51-52. In this case, the trial judge heard extensive sentencing submissions and considered relevant caselaw and sentencing materials. The trial judge reviewed all of the relevant circumstances, and extensively considered and applied the sentencing principles set forth in the Code, including the primacy of denunciation and deterrence, the lack of mitigating effect of a victim’s participation, and the aggravating effect of a breach of trust, all as elucidated in R. v. Friesen, 2020 SCC 9, [2020] 1 S.C.R. 424. She also considered various factors in mitigation, including the low risk that the appellant would reoffend, the fact that this was a first-time offence, and the significant collateral consequences already suffered by the appellant.

[25] The sentence imposed by the trial judge is not demonstrably unfit.

Conclusion

[26] For these reasons, both the appeal from conviction and the appeal against sentence are dismissed. As the sentencing appeal has been dismissed, the application for leave to admit fresh evidence on sentencing does not need to be considered.

J. Ross Macfarlane Justice

Released: Orally, via Zoom, on January 26, 2024

COURT FILE NO.: CR-22-2187 (Sarnia) ONTARIO SUPERIOR COURT OF JUSTICE HIS MAJESTY THE KING – and – Gillian Boere REASONS FOR DECISION Macfarlane J.

Released: Orally, via Zoom, on January 26, 2024