Court File No.: CR-21-50000561-0000
SUPERIOR COURT OF JUSTICE
HIS MAJESTY THE KING
v.
GAGNON NATHAN
REASONS FOR JUDGMENT
BEFORE THE HONOURABLE JUSTICE J. PRESSER
on August 8, 2024 at TORONTO, Ontario
APPEARANCES:
P. Travers Counsel for the Crown M. Bury Counsel for Gagnon Nathan
THURSDAY, AUGUST 8, 2024
REASONS FOR JUDGMENT
PRESSER, J. (Orally):
Ganon Nathan was tried before me, sitting as a judge alone, on two counts in an indictment charging him with one count of sexual assault, contrary to s. 271 of the Criminal Code, and one count of sexual exploitation, contrary to s. 153(1) of the Criminal Code. The charges arise from allegations that Mr. Nathan took advantage of a drug-addicted 16-year-old girl who was working in the sex trade and living in a youth shelter, in the context of a relationship where together they used drugs which were often provided by him, in order to induce her to have sexual contact with him.
The Crown alleges that Mr. Nathan sexually assaulted the complainant, even though at the time she consented to sexual contact with him. The Crown position is that the complainant’s consent was vitiated within the meaning of s. 273.1(2)(c) of the Criminal Code because Mr. Nathan was in a position of power over the complainant, which he abused to induce her to engage in sexual activity with him.
The Crown further alleges that Mr. Nathan sexually exploited the complainant within the meaning of s. 153(1) of the Code because he had sexual contact with her when she was a young person, while he was in a relationship with her that was exploitative of her.
The defence concedes a number of the essential elements of the offences of sexual assault and sexual exploitation. Mr. Nathan acknowledges that he engaged in sexual touching for a sexual purpose with the complainant, that the sexual touching was intentional, and that at the time of the alleged offences, the complainant was 16 and 17 years old, and, as such, she was a young person within the meaning of s. 153(3) of the Code.
However, the defence position is that the Crown has not succeeded in proving beyond a reasonable doubt that the complainant did not consent to the sexual activity, or that the complainant’s consent was vitiated because there was a power imbalance between Mr. Nathan and the complainant which he abused to induce her to consent, or that he was in a relationship with the complainant that was exploitative of her.
The prosecution case, then, turns on whether the Crown has proven beyond a reasonable doubt:
(i) With respect to the offence of sexual assault: that Mr. Nathan was in a position of power in relation to the complainant, which he abused, such that her consent was vitiated; and
(ii) With respect to the offence of sexual exploitation, that Mr. Nathan was in an exploitative relationship with the complainant.
For the following reasons, on all the evidence, I am not satisfied beyond a reasonable doubt that the Crown has proven these two essential elements of the offences charged beyond a reasonable doubt. Accordingly, I must acquit Mr. Nathan of both counts in the indictment.
II. Overview of the Evidence
The complainant and Mr. Nathan met sometime in the spring of 2017. Their relationship evolved over the summer and into the fall of 2017. At the time they met, the complainant was 16 years old. The complainant had moved out of her family home because she felt it was not a safe place for her. She was living in a youth shelter called Peel Youth Village (“PYV”). Ontario Works was paying for the complainant’s shelter directly. She also received $330 per month from Ontario Works, and $25 per week from her mother. She had had a part-time job at the end of 2016 and into early 2017, and again in the late fall of 2017, but was not working other than in the sex trade in the period covered by this indictment. The complainant was also not in school in this period. She did not have a car and relied on public transit when she needed to get somewhere.
The complainant had used or abused prescription drugs before moving into the shelter and became addicted to street drugs while living at the shelter. She tried powder cocaine first, and then crack. She became an addict, using drugs daily or almost daily, sometimes multiple times a day. She also had an alcohol problem, at times drinking daily.
Mr. Nathan was 35 years old at the time of the alleged offences. He had gone to medical school abroad and graduated with his medical degree, but he did not become a doctor. Despite many attempts, and much effort, the defendant could not get into a residency program here. He was $250,000 in debt from his education. He briefly worked part-time at Walmart, and volunteered to do research for which he received some limited funds when the research project received a grant. He was largely unemployed at the time of the incidents at issue, with limited to no income. He lived with his parents. He drove one or the other of his parents’ two cars.
The defendant testified that his inability to secure a residency position led him to become deeply depressed. He started using powder cocaine and became an addict. Mr. Nathan explained that he paid for the drugs he needed to feed his habit by using the funds he was paid on the grant, then by maxing out his parents’ credit cards until they noticed and cancelled the cards, and then by applying for credit cards himself and maxing those out. He also said he borrowed money from friends.
The complainant and the defendant met for the first time, briefly, outside the youth shelter. They again met in April or May of 2017, when she was brought into the sex trade by another resident of PYV, a woman by the name of MM, who was eight years older than the complainant and had experience in the sex trade. This woman was the defendant’s girlfriend at the time. The complainant spent time with the defendant in the hotel where she was engaging in sex work. He did not attend at the hotel to purchase sexual services. He testified that he attended there at his girlfriend MM’s invitation to do drugs with her.
The defendant and the complainant did drugs together, crack, at the hotel. Later the same day, he sent her a text message, saying that if she wanted to leave the sex work situation she was in, he would come back to get her and take her to another hotel. The complainant was not getting to keep any of the money she earned working in the sex trade. The defendant told the complainant by text that she should be making $1,000 a day doing that work, which he testified knew from MM’s experience as a sex worker. He offered to get the complainant a hotel room, and said he would not take any of the money. The complainant did not take the defendant up on this offer. Later in their relationship, the complainant asked the defendant if he would effectively be her pimp. He declined.
A short time later, the complainant was admitted to the Hospital for Sick Children for three to four weeks. When she was released from hospital and returned to PYV, she messaged the defendant. She wanted to buy drugs and none of her regular dealers were responding. She testified that she messaged the defendant because she thought he would have a drug dealer. He replied to her and said he could help. He picked her up at the back of the shelter in his car. The defendant and the complainant went to buy drugs from a dealer the defendant knew, then they did the drugs together in the defendant’s car.
After that, the complainant and Mr. Nathan saw each other two to several times a week most weeks. Meetings between them were arranged when one of them messaged the other through Snapchat, WhatsApp, Instagram messages, or a texting app called TextPlus. The defendant would then drive one or the other of his parents’ cars to pick up the complainant at the shelter, and then drive to get drugs. The first few times they were together, according to the complainant, she and the defendant just hung out in his car, used crack, and talked. At that point, the complainant explained, she was getting together with the defendant because he got her drugs. She agreed that at that time, she thought she was manipulating or using Mr. Nathan to get drugs.
The defendant testified that he was getting together with the complainant because he enjoyed her company. He found her intelligent, witty, and mature. He also explained that addicts like to use drugs in the company of other addicts. He said that doing drugs with the complainant normalized the drug use for him.
The complainant testified that she believed the defendant was a doctor, and that this was a trust-building piece for her. The defendant maintained that he told the defendant that he had graduated from medical school, but never told her that he was a doctor. Both agreed that the complainant did not rely on the defendant for medical advice or treatment and that he never prescribed drugs to treat any medical condition for the complainant.
Over time, according to the complainant, her relationship with the defendant changed. She enjoyed talking with him. She found him mature. She thought he cared about her. They had a real friendship. The complainant never considered Mr. Nathan to be her boyfriend but she did develop some feelings for him. She cared for him, and liked him being a part of her life.
The defendant also started to develop feelings for the complainant. He started to have romantic and sexual feelings for her. He knew the complainant had a boyfriend, but she often told him about problems she was having in that relationship. He hoped that his relationship with the complainant could develop into a real and mutual romantic relationship. He expressed these feelings to the complainant. He testified that the complainant expressed interest in him, too, including a willingness to ultimately have a sexual relationship, but told him that she wanted to go slow. The defendant testified that he told the complainant that he respected her wishes, and that he preferred that the relationship develop organically.
The complainant testified that the defendant started propositioning her sexually. She said he frequently asked her to have sex with him, or do other sexual favours. For example, Mr. Nathan would ask the complainant if he could put his hands on her breasts in the car, or other similar “smaller” sexual acts. Often, especially at first, the complainant said no. When she did, Mr. Nathan did not force himself on her. But according to the complainant, he was persistent in propositioning her. Over time, she said, she felt pressured to agree, or she felt guilty because Mr. Nathan was buying her drugs and driving her around, and she could not reciprocate. She also testified that she was not in a position to give true consent because of the drugs she was using and because she did not understand the contours of a healthy relationship. The complainant testified that she believed she was consenting to sexual contact at the time but that, in retrospect, she did not believe she had genuinely consented.
Mr. Nathan testified that he wanted to have a romantic and sexual relationship with the complainant. Initially, when he discussed this with her, she would express her interest but say that she was not ready. In one text exchange, the complainant wrote to the defendant that she would “100 percent fuck you,” but she had asked him to give her time. She said she wanted their relationship to develop further first. She explained that she was sexually inexperienced, and said that as long as they went slow and he taught her, she was sure they would “get to sleeping together and I know it will be a good time for both of us once we get there.” She also wrote that she would feel guilty if she cheated on her boyfriend.
The defendant testified that if the complainant did not want to have sexual contact, he retreated. He responded to the text I just quoted by writing that he was “totally cool with taking it slow. I’m not a pushy guy when it comes to sex believe it or not.” He also messaged her that he saw her loyalty as an attractive quality, her sexual inexperience as a turn on, and that he was willing to “guide and reach her.” At trial, the defendant said that he was falling for the complainant, and that this made him persistent, but he maintained that the complainant continued to indicate her interest in him, that he was not aggressive or insistent, that he backed off whenever the complainant said no or expressed any hesitance, and that he only ever had sexual contact with the complainant with her consent.
In addition to using drugs and having some sexual contact together, the two had deep philosophical conversations, drove around to different cities to look at the waterfront, took waterfront walks together, sat in the car and looked at the stars, and had fun together. The complainant took Mr. Nathan to her mother’s home when the mother wasn’t there. She showed him her art, the trampoline, and how she could ride a unicycle. They celebrated her 17th birthday together on July 1, 2017.
The first, and by all accounts, the only time the complainant and the defendant had vaginal intercourse, she had just been through an incident that was very scary for her. It took place between the complainant and a drug dealer. The defendant was present with the complainant before this incident, and had been sitting in his car, waiting, while it took place. After the incident, the defendant stayed with the complainant and she felt comforted by him. They went to a motel together. The defendant testified that they went there to do drugs and calm down. The complainant testified that she talked about the scary incident and cried, then the defendant and the complainant had sexual intercourse. The complainant said she thought she was consenting to intercourse at the time. In retrospect, the complainant testified, she could not have consented because she was not in a headspace to do so, given the traumatic incident she had just been through.
The defendant testified that after they used drugs at the hotel, the complainant was calmer. According to the defendant, the complainant said she told him she was ready to have intercourse with him, and that he asked her if she was sure. He testified that she he told him she was, and retrieved a condom from her bag.
After this, the complainant said that she and the defendant had more of a sexual relationship. She said this was because she felt that he had protected her during the scary incident and cared about her. At the time of trial, the complainant said she could not describe why she had felt that the defendant had protected her. She said the defendant did not get out of his car or do anything to help her during the incident.
The complainant testified that she did not really want to have sexual contact with the defendant after the incident. She said that, in some situations, she felt that she either owed it to him or she felt guilty because he was buying the drugs and driving her around and she wasn’t doing anything in return. She also testified that she felt pressured to have sexual contact with the defendant. Mr. Nathan was adamant that he never forced or pressured the complainant to have sex with him.
The complainant testified that a lot of the time the defendant bought the drugs for the two of them to use together. Sometimes she would buy the drugs using her Ontario Works money. She also continued to work periodically in the sex trade, independently, to earn money for drugs. The complainant said that she was not solely dependent on Mr. Nathan for drugs. She had other sources, but she maintained that she didn’t have much money to buy drugs, and that she didn’t always have access to the other drug sources. According to the complainant, she was often dependent on the defendant to get drugs.
The defendant testified that both he and the complainant paid for the drugs they consumed together. Over time, he bought the drugs more often than the complainant did. The defendant explained that when he was paying for more than his share of the drugs they used together, he wondered whether the complainant did not actually care for him, despite her expressions to him that she did. He wondered whether she was just using him to get drugs. He expressed this concern to the complainant, and she responded by reassuring him that she did have feelings for him, too.
Over the course of their relationship, there were times when the complainant did not message the defendant or respond to his messages, and they didn’t see each other. She explained that this was usually when she was trying to abstain from using drugs. She testified that she would ignore Mr. Nathan’s messages when she was trying to quit, or she would tell him why she didn’t want to see him. But, according to the complainant, the defendant would get frustrated with her non-responsiveness. He would persist in messaging her. She would ultimately respond to him and see him because she felt guilty.
The defendant testified that he was confused at the times when the complainant stopped communicating with him, which he referred to as “banishment.” He maintained that the complainant did not tell him why she cut off contact. He did not understand why she would say flattering things to him and tell him she cared about him, and then suddenly and inexplicably stop communicating. He said he thought she might be busy working in the sex trade at those times, or doing drugs with other friends. He continued to message her because he cared for her, was confused, and wanted to understand why she was not in contact.
The complainant agreed that at the beginning of her relationship with the defendant, she thought she was manipulating him to get drugs. With the benefit of hindsight, the complainant testified, she did not manipulate the defendant. Rather, she said, he manipulated and influenced her. She was young and an addict, and he made her feel guilty for buying her drugs when she was not able to reciprocate. The complainant said the defendant put her in positions where she was harmed. She said the defendant took advantage of her and that he had power over her: he had a career and money, was older, and had a car and supportive connections in his life, like his family. She did not have these things.
The defendant maintained that he did not have power over the complainant. He said that he was also an addict, was depressed, unemployed, broke and in debt, had no career and no car, and lived at home with his parents at the age of 35. He maintained that the complainant had power over him. Her youth and beauty were intoxicating for him, and he was flattered by her interest in him. The defendant cared for the complainant and wanted to be in a relationship with her. He thought she was smart and encouraged her to get out of the sex trade and go into nursing. He said he did not manipulate or influence the complainant for sex.
The complainant cut off physical contact with Mr. Nathan at some point in the mid to late fall of 2017, certainly by December 2017 when she entered a residential drug treatment program. The two had sporadic contact by text messaging and the occasional telephone call until August of 2018, when the complainant completely cut contact with the defendant.
In the summer of 2018, the complainant realized that there were still photographs of her advertising sexual services posted to sex trade websites. She went to the police to ask for their assistance in having those photos taken down.
On July 12, 2018, the complainant made a statement to police about the people, including MM, who had trafficked her at the hotel where she first met the defendant. She did not name the defendant in this statement. She testified that she still cared for the defendant and had some good memories of him. She did not want to get him into trouble.
On March 27, 2019, the complainant made a second statement to police in which she did name the defendant. That statement led to Mr. Nathan being arrested and charged with the offences now before the court.
By the time of trial, both the complainant and Mr. Nathan were sober.
III. Overview of Applicable Legal Principles
I have set out the essential elements of the offences of sexual assault and sexual exploitation, as well as the law governing vitiation of consent and exploitative relationships, at length, in my reasons for decision dismissing the defence application for directed verdict in this case: R. v. Nathan, 2024 ONSC 459. I have instructed myself as to the law summarized there and am applying it here. In the interests of economy, I see no reason to repeat what is already set out fully in another decision in this case. However, for the sake of clarity, I provide the following brief summary, touching only on the law relevant to the issues I must decide in this case.
For the offence of sexual assault, the Crown may prove the absence of consent requirement of the actus reus by proving that the complainant’s consent was vitiated. In this case, the Crown position is that the complainant’s consent was vitiated within the meaning of s. 273.1(2)(c) of the Criminal Code because the defendant induced the complainant to consent sexual activity by abusing a position of power. Section 273.1(2)(c) has been interpreted by the Court of Appeal for Ontario in R. v. Lutoslawski, 2010 ONCA 207, at paras. 12 – 13, aff’d 2010 SCC 49, as addressing:
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. The terms “exercise of authority” in s. 265(3)(d) suggests a coercive use of authority to overcome resistance to a consent.
Inducing consent by abusing the relationships set out in s. 273.1(2)(c) does not imply the same kind of coercion. 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.
In R. v. Makayak, 2004 NUCJ 5, at para. 70, the court held that the key consideration in determining whether consent is vitiated under s. 273.1(2)(c) is whether the accused has exploited an imbalance of power. The court elaborated, “The use of the word “induces” introduces a more subtle form of pressure that can be inferred from the circumstances of the exercise of the power or authority.”
A drug supplier may be in one of the relationships set out in s. 273.1(2)(c) with an addict if the trier of fact is “satisfied that because the [defendant] was a supplier of illicit drugs to the complainant, that this relationship created a relationship of dependency that could be exploited by the [defendant] to vitiate the complainant’s consent to engage in sexual activity”: R. v. A.H., 148 C.C.C. (3d) 86 (Ont. C.A.), at para. 17. For such a finding to be made, the Crown would have to prove objective and subjective elements beyond a reasonable doubt. The objective element is that the relationship was one of drug supplier and drug user. The subjective elements is that the complainant drug user was dependent on the defendant “as her supplier such that she could not give independent consent to his sexual advances”: A.H., at para. 17.
For the offence of sexual exploitation, in addition to the other essential elements set out in s. 153(1), the Crown must prove beyond a reasonable doubt that at the time of the sexual touching, the defendant was in a relationship with the young person that was exploitative of the young person.
Section 153(1.2) of the Code sets out factors from which a judge may infer that an accused is in an exploitative relationship with a young person. That provision reads as follows:
Section 153(1.2) - Inference of sexual exploitation
A judge may infer that a person is in a relationship with a young person that is exploitative of the young person from the nature and circumstances of the relationship, including:
(a) the age of the young person; (b) the age difference between the person and the young person; (c) the evolution of the relationship; and (d) the degree of control or influence by the person over the young person.
In the authoritative case interpreting the meaning of “exploitative relationship” in s. 153(1), R. v. Anderson, 2009 PECA 4 at para.74, the PEI Court of Appeal held that such a relationship exists where:
There is a power imbalance between the accused and the younger person in circumstances other than where the accused is in a position of trust or authority or in circumstances where the young person has developed a reliance on the accused who has assumed a position of power over the young person. The evidence must demonstrate, or it must be possible for the court to draw the inference from all the circumstances of the relationship and in particular those factors listed in s. 153(1.2) that the young person is, as a result of this power imbalance, vulnerable to the actions and conduct of the accused who is taking advantage of the young person for his or her own benefit.
See also R. v. Robertson, 2015 ONCA 437, at para. 1.
Whether or not there was a power imbalance such that a defendant and a complainant were in an exploitative relationship is a question of fact to be determined from all the facts and the nature and circumstances of the relationship, including the factors set out in s. 153(1.2): Anderson, at para. 75; Robertson, at para. 1.
IV. Analysis
1. Applicable Legal Principles in Relation to Credibility and the Burden of Proof
A well-established approach to assessing the credibility of a defendant and its relationship to the burden of proof derives from the Supreme Court’s decision in R. v. W.(D.), [1991] 1 SCR 742.
That case holds that defence evidence must be assessed in the context of the evidence as a whole, not in isolation, in this way: (i) if the trier of fact believes the evidence of the defendant, they must acquit; (ii) if the trier of fact does not believe the evidence of the defendant but is left in reasonable doubt by it, they must acquit; and (iii) even if not left in reasonable doubt by the evidence of the defendant, the trier must determine whether, on the whole of the evidence they do accept, they are convinced of the guilt of the defendant beyond a reasonable doubt. In other words, “a trier of fact has three options with respect to exculpatory evidence: he or she can reject it, accept it, or be unsure whether the evidence is true or false”: R. v. A.A., 2021 ONSC 3210, at para. 29, citing R. v. L.K., 2020 ONCA 262, at paras. 18 to 19.
This formulation is consistent with the presumption of innocence. It seeks to ensure that the burden of proving the charge remains on the Crown and never shifts, and that the standard to which the Crown must prove the charge is proof beyond a reasonable doubt and nothing less. A defendant can only be convicted if the trier of fact is satisfied that the exculpatory version of events is false, and is also satisfied that the inculpatory version of events is true.
I now move on to assess the evidence, applying these legal principles, to determine whether the Crown has proven the charges beyond a reasonable doubt.
2. Assessing Mr. Nathan’s Evidence
I have carefully considered and assessed Mr. Nathan’s evidence. I have come to the conclusion that while I do not entirely believe his evidence, I am left in a reasonable doubt by it.
The Crown argued that I should disbelieve Mr. Nathan’s evidence because he lied about when he first learned the complainant’s age. In the Crown’s submission, his evidence on point is contradicted by a text exchange between the defendant and the complainant. I do not accept this submission.
Mr. Nathan testified that he first learned that the complainant was 16 years old a few weeks before her 17th birthday, and by then they had already spent some time together and he was beginning to develop feelings for her. The Crown pointed to a TextPlus exchange between the complainant and the defendant, entered as Exhibit 1(a), images 9 and 10, as evidence that the defendant must have known the complainant’s age earlier. In the course of this exchange, the defendant wrote:
Damn babe... Im totally cool with taking it slow. I’m not a pushy guy when it comes to sex believe or not. It’s actually better leading up to it organically. Well u know I’m pretty into u. Honestly our age difference is the only thing that kinda bothers me. I really like your personality and how we get along. Obviously I think you have a beautiful face. And an amazing body and yeah I say a lot of sexual things I wanna do with u but I really wish you were 18 cause the more we hang out the more I like you and think about seriously dating you.
When this message was put to Mr. Nathan, he agreed that it was sent early on in his relationship with the complainant.
On all the evidence in this case, I am satisfied that the defendant’s evidence that he only learned the complainant’s age a few weeks before her 17th birthday might reasonably be true, even with the message he sent about his hesitancy arising from her age early in the relationship.
The evidence was that the defendant and the complainant spent time together at the hotel where she was being trafficked in April or May of 2017. Soon after that, she was admitted to SickKids Hospital for three or four weeks. She contacted the defendant to ask him to help her get drugs for the first time soon after her release from the hospital. The complainant’s 17th birthday was on July 1, 2017. On this evidence, the complainant would have been discharged from SickKids at some point in May or June. It could well have been true that the defendant only learned her age a few weeks before her birthday, sometime in June, after they had already spent some time together. I cannot conclude that Mr. Nathan lied when he gave this evidence.
The Crown also submitted that I should disbelieve Mr. Nathan’s evidence because he was evasive and not forthcoming about whether he knew the complainant was not in school. I do not agree. I did not find Mr. Nathan’s answers about his knowledge of the complainant’s attendance at school to be evasive.
I considered whether the discrepancy between the evidence of the complainant and the evidence of the defendant about whether he ever offered to pay her for sex negatively impacted on the defendant’s credibility. The complainant testified that Mr. Nathan had offered to pay her for sex. Mr. Nathan testified that he had never offered to pay her for sex. The Crown confronted the defendant with a WhatsApp message he sent the complainant, in which he wrote:
So I’ve been dying to see you since that time at the hotel. Let me know if I can come by to “chill” real quick. No drugs. And I can help you out $$ if that convinces you.
The defendant maintained that he was not offering to pay the complainant for sex in this message. He said that he was asking the complainant to hang out without drugs, but that if she wanted to hang out with drugs, he had money for drugs. The defendant went on to explain that he knew he wasn’t offering to pay for sex because at the beginning of their relationship, the complainant felt guilty about the possibility of having sex with him given that she had a boyfriend. She suggested that if he paid her for sex, he would be like a sex trade client and she would feel less guilty. The defendant said he had refused. He did not want to have that kind of relationship with the complainant and that’s why, he said, he was so certain that he was not offering her money for sex in the WhatsApp exchange.
In my view, Mr. Nathan’s explanation for this WhatsApp message is unlikely but possible. On its face, the message certainly seems to suggest that he was offering to pay the complainant for sex. He’s asking her to “chill” with no drugs, and says he has money if that helps to convince her.
At the same time, I recognize that text-based messages are often abbreviated and written in shorthand that will be understood by both parties, but do not contain full information that would necessarily be comprehensible to others. Accordingly, it is possible that the defendant’s explanation of this text is true. It’s possible that he was asking her to hang out with no drugs, but telling her that he had money for drugs if she preferred to hang out with drugs. It is also possible that he was offering to pay her for sex.
The defendant’s evidence on point contributes to my conclusion that I do not completely believe him, but that his evidence might reasonably be true.
Mr. Nathan’s evidence was generally consistent and forthright. But there was some evidence of deceptiveness, which caused me some concern about his credibility. The issue of what the defendant said or did not say to the complainant about being a doctor, and his evidence at trial on this subject, is illustrative of why I have concerns about his credibility.
The complainant testified that she believed the defendant was a doctor. She said he told her he was. According to the complainant, the defendant did not say much about being a doctor, and would not tell her anything about where he worked. He once said something about a residency in Buffalo. She said the defendant never told her that he failed to qualify or get his licence as a doctor.
The defendant testified that he never told the complainant that he was a doctor. His evidence was that he told her he had graduated from medical school with a medical degree, but did not tell her that he could not get into a residency program and was not a licensed doctor. The defendant explained that he did not want to discuss his failure to become a doctor because he was ashamed. His repeated unsuccessful efforts to get a residency position led him down a really dark hole of depression and addiction. His failure to qualify as a doctor was not something he wanted to talk about.
The complainant and the defendant had a digital discussion about whether he was a doctor by Instagram message on August 15, 2018. This was after the period covered by the Indictment, and after the complainant had completely cut off physical contact with the defendant and was in a residential addiction treatment program. It was in the context of an exchange where the defendant said he was trying to get closure on his relationship with the complainant, and the complainant was asking the defendant several questions about him and their relationship. The exchange relevant to the defendant’s status as a doctor was as follows:
COMPLAINANT: How do I know you are even a real doctor? Some things just don’t add up
DEFENDANT: I never lied to u about that. I went to med school graduated got md finished and passed all my licensing exams did one year of residency in buffalo But it was just a 1 year transitional program so I needed to reapply yo something. Been trying to get into a residency program since then but the competition is insane. Until I get into a program and finish my last 2 years I have been doing research and assisting some other docs. Some things are voluntary some I get paid but very little. And it all goes to my loans. Its been really depressing for me after all that hard work to come this far so close and boom nothing That’s probably why I went to drugs to get away from that And believe it or not there’s not many good opportunities for an md with not residency outside of practicing medicine It’s too specialized There u know everything now. My big secret that [MM] was trying to get me to tell her
COMPLAINANT: have you ever lied about anything? Let’s just be real
DEFENDANT: that was my only secret that I kept from u
And now I’m skipping ahead a little bit within the text exchange to the next page of Exhibit 3.
DEFENDANT: Well I promise you anything u ask I will answer completely truthfully. The residency thing was my biggest skeleton. Nothing else really
COMPLAINANT: If you aren’t making a lot of money for residency, how did you always seem to have money? How were you making money?
DEFENDANT: I told u sometimes I was working on publishing research and got grants from companies. And I get a small very small portion from that. Other than that I used credit and played it back when I got more money from research. I mean I got a little bit of money sometimes from online poker but most of the time I was really broke. U were the one person I never really lied to. Everything I said about how I feel and care about u is 100 percent true.
This text exchange, which post-dates the parties’ relationship and pre-dates these charges, supports the defendant’s evidence that he did not lie to the complainant about being a doctor, at least not overtly. He wrote that he never lied to her about being a doctor, but he also wrote that this was his one big secret, his skeleton in the closet. In cross-examination, the defendant explained that the secret he had kept from the complainant was that he didn’t continue his medical training to become a full medical doctor.
At trial, as noted, the defendant maintained that he never told the complainant that he was a doctor. However, he acknowledged that he had earlier lied to MM and told her that he was a doctor. He testified that MM had told the complainant.
The defendant also testified that people don’t realize what it takes to become a doctor. He recognized that people think if you graduate from medical school, you’re a doctor, but that is not the case.
I conclude, on the basis of all of this evidence, that Mr. Nathan did not overtly or affirmatively lie to the complainant on this subject. But that he was not honest with her, either. He was deceptive by omission. He told her he graduated from medical school, knowing, in his words, that people generally think those who graduate from medical school are doctors. He did lie to MM about being a doctor and knew that MM had passed this information along to the complainant. He knowingly kept his true status hidden from the complainant. Mr. Nathan knew that the complainant would have been operating under the mistaken impression that he was a doctor. He didn’t affirmatively lie about this to her, but he allowed her to continue with a false belief about him by omitting to provide her with full information. He knowingly allowed the complainant to mistakenly believe that he was a doctor.
This is relevant to my assessment of the defendant’s testimonial credibility because, when he testified in relation to this issue, his evidence was focused on the fact that he had never told the complainant that he was a doctor. He continued, in his testimony, to focus on the fact that he had never overtly lied to her about this. He did acknowledge the truth that he had lied to MM, and that MM had told the complainant that he was a doctor, and he did acknowledge that most people think medical school graduates are automatically doctors. In other words, the defendant testified to the truth. He did not lie in his testimony. He did not say that he told the complainant he was not a doctor. He gave all the relevant truthful information that allowed me to conclude that the complainant would have believed he was a doctor. But he did not come right out and tell the court that he knew the complainant would’ve been under the mistaken impression that he was a doctor. In other words, the defendant was deceptive by omission with the court when he testified, as he was with the complainant, on the subject of his status as a doctor. He wanted me to conclude that he did not lie to the complainant about something she said helped build her trust in him. As a result, he was not totally forthcoming in his evidence. This shakes my confidence in the defendant’s credibility, and causes me to question whether he was an honest witness whose evidence can be completely trusted. His failure to be completely forthright in his evidence on this point made me question whether all of his evidence was given in service of a calculated position, rather than being the total truth.
That having been said, I have no specific basis in the evidence that would allow me to reject the defendant’s evidence outright. The evidence of the complainant and the defendant was consistent on much. There were few points of disagreement. And much of the evidence that was independent of the testimony of the complainant and the defendant at this trial, principally the text messages between the parties, was capable of supporting the defendant’s evidence. Even some of the evidence of the complainant herself was capable of supporting the defendant’s evidence. Some of the text messages, combined with the evidence of the complainant, if accepted, was also capable of supporting the prosecution’s theory of liability.
On all of the evidence, either the evidence of the defendant or the evidence of the complainant might reasonably be true. It is for this reason that I am left with a reasonable doubt.
Overall, the evidence of the defendant was to the effect that he was not in a position of power vis-à-vis the complainant because, like her, he was a drug addict, because he was broke and depressed, because he cared for her deeply and wanted to get closer to her, and this gave her some power over him in the dynamics of their relationship.
Initially, the relationship was one of friends who did drugs together, but in time, the relationship became more than that for both of them. They did continue using drugs together, which he paid for more than she did, but they also grew to care for each other and enjoy spending time together. The defendant was trying to move their relationship even further along into a romantic and sexual one. The complainant communicated to him that she wanted this, too, she just wanted to move it that way slowly. He did not abuse a position of influence or control her in order to induce her to have sex with him. He respected her timelines and limits and retreated when she did not want to proceed with sexual contact. The defendant’s position was that the complainant controlled the pace at which the relationship progressed, cutting off and resuming contact when she saw fit, refusing and granting consent to sexual contact when she wanted to. She was not dependent on the defendant for her daily needs, or even for drugs, because she did have some money for drugs, other ways of getting to drugs, and other sources for drugs.
The evidence, considered as a whole, supports that the evidence of the defendant might well reasonably be true.
The text messages the defendant wrote to the complainant during their relationship are capable of supporting his evidence at trial and the exculpatory defence position. These were written contemporaneously, at the time the relationship between the defendant and the complainant was evolving, before he was criminally charged. There are numerous text exchanges in which the defendant wrote to the complainant about how much he cared for her, and how much he wanted to be in a relationship with her. There is the TextPlus message already referred to, where the defendant wrote that he was totally cool with taking it slow, that he is not a pushy guy when it come to sex, and that it is nicer to lead up to sex organically. He also wrote that he got turned on at what she wrote to him about progressing their relationship slowly, at the “thought of us dating or even just slowly progressing what we have now.” In another TextPlus message, the defendant wrote that he wanted to take the complainant out on a “proper date,” which he described as follows:
Like no drugs, sober date, sober, proper date, and I’m not taking no or maybe for an answer, and not waiting weeks, so within the next week or two, and don’t bother ignoring this date thing, ‘cause I’ll be very persistent, not like the touching LOL.
The complainant explained that when the defendant wrote, “not like the touching,” he was referring to the fact that at that point in the relationship, she would say no to sex, not now, later. It is clear from what the defendant wrote that he was referring to the fact that he was not persistent when it came to his desire for sexual touching. The complainant did not write back to disagree or take issue with his characterization that he was not persistent with her when it came to touching.
In yet another TextPlus message, this one dated July 28, 2017, the defendant wrote,
Who knows, maybe one day make u my girl if we click but for now im gonna push for more than what we are now and if I don’t feel u reciprocating, then ill back off or you can just save me the trouble and tell me now what u think. Just be honest and blunt.
These messages, authored by the defendant when there was no thought of criminal charges, together provide support for his testimony. They support his evidence that he cared for the defendant, wanted to have a relationship with her, and was prepared to allow that to grow slowly, at the complainant’s pace; that he wanted to be romantically and sexually intimate with her, but was prepared to retreat sexually and even romantically if she did not want to proceed. These messages suggest that the defendant was allowing the complainant to control whether and how their relationship progressed, and whether and how they would have sexual contact. That he wanted more with her and expressed that to her, but was allowing her to lead.
Much of the complainant’s evidence, both her testimony at trial and the messages she wrote to him during the currency of their relationship, is also capable of supporting the defendant’s evidence.
The complainant testified that she enjoyed the defendant’s company. She found him mature and charming. He made her feel good about herself. He cared about her interests and the details of her life. He’d ask her questions. She felt that he understood her. They did fun things together. She knew that he certainly had feelings for her and expressed care and concern for her in many of their text exchanges.
The complainant testified that at the beginning of their relationship, she considered the defendant a friend who provided her with drugs. In her police statement, the complainant said,
At the beginning, I 100 percent thought I was manipulating him for drugs and felt like this was the best thing ever and that I was controlling him.
At trial, the complainant agreed that she had said this to police and adopted it, emphasizing that she only felt she was manipulating and controlling the defendant for drugs at the beginning of their relationship.
At that time, she would refrain from having any kind of sexual relations with the defendant. She did not want to have sex with him at the time because she was in a relationship with someone else and he was MM’s boyfriend. But over time, the complainant testified, she developed romantic feelings for the defendant. She didn’t see him as her boyfriend per se, but she said she did have feelings for him. She did care about him and liked him being a part of her life.
As noted, the complainant wrote to the defendant on Instagram and said that she would “100 percent fuck you,” but asked him to take it slow. She wrote that she was sure they would get to sleeping together and that it would be a good time for both of them.
The complainant agreed that she often said no to sexual contact, especially at the beginning, and that the defendant did not force her. She agreed that he was not aggressive with her. She maintained, however, that he did pressure her and that she felt guilty and obligated to relent because he was providing her with drugs and driving her around and she could not reciprocate.
The complainant testified that she consented to sexual contact with the defendant, or believed she was consenting at the time, though at other points in her testimony, the complainant said she didn’t really want to have sex, but acknowledged that on specific occasions she might have said yes. The complainant testified at the preliminary hearing that she agreed to do sexual favours for the defendant because she really liked him and didn’t want him to think she was manipulating him to get drugs. The complainant adopted this evidence at trial, and added that she was pressured into agreeing to sexual favours.
At the same time, there was evidence that the complainant did reciprocate with drugs, at least at times. In the TextPlus message, entered as Exhibit 1A, image 15, the complainant wrote:
When I get money at the beginning of July, let’s plan a day sometime after the 7th and I’ll grab a g [which the complainant testified meant a gram] just for you and I. I owe you 40 already so I’ll just grab a G and we’ll hang out for the day.
Later in the same message, she wrote, “You’ve done a lot for me, so it’s my turn to do something for you.”
Even after the complainant cut off in-person contact with the defendant and was in residential addiction treatment program, she exchanged messages with him, indicating that she still cared about him. In an Instagram message dated May 18, 2018, the defendant wrote:
So just kinda curious but why did u call me while you were at rehab? You said I was one of the only people u would call. Why me? Just curious.
On May 19, 2018, the complainant responded:
Because I obviously still care about you. You’re the only person from my past life that I still talk to. I don’t know, I always feel happy when I talk to you.
The complainant agreed that in her March 27, 2019 statement to police she said about the defendant,
He’s one of the nicest people I’ve ever met. He’s like the only person that ever cared about me to the extent that someone’s ever cared about me. Like, even to this day, like being sober, like I had a lot of friends and stuff like that, but there was – no one’s ever taken such an interest or cared about me in the same way he did.
The complainant agreed that she was not dependent on Mr. Nathan for her daily needs. She had food, shelter, a cell phone, and some money independent of the defendant. She did depend on him for drugs some of the time, but she also agreed that she paid for drugs for the two of them some of the time, using her Ontario Works money or money she earned from working in the sex trade. The complainant explained that drug dealers sometimes gave her drugs for free or in exchange for sex. In a text communication with the defendant, the complainant referred to a friend at PYV planning to panhandle to raise money to buy drugs, and offering the defendant at least a line, presumably in exchange for him driving her to pick up the drugs when the money raised from panhandling was available.
In total, this evidence from the complainant was capable of supporting the defendant’s evidence. The complainant’s evidence was also capable of supporting the prosecution’s theory of liability. Either might reasonably be true.
In sum, I do not fully accept the defendant’s evidence. At the same time, it might reasonably be true. I am left in a state of reasonable doubt by it.
3. Assessing the Evidence of the Complainant
Overall, I found the complainant to be a sincere and credible witness. She was intelligent, articulate, and fair. She acknowledged that she had had feelings, including love, for the defendant, and remembered many good times with him. She was a careful witness, who acknowledged the limits of her memory, and did not speculate about things she did not remember or try to fill in gaps. However, I do have some concerns about her reliability.
There were many things the complainant could not remember. For example, she could not remember if she had engaged in oral sex with the defendant. She could not remember for certain whether she and the defendant had had vaginal intercourse more than the one time at the hotel. She could not remember whether the defendant used protection when they had sexual intercourse. She could not remember whether she ever saw the defendant in person after the end of September 2017, or when she last saw him in person. These are but a few of the things the complainant acknowledged she could not remember when she testified at trial. Many of the things the complainant could not remember were not core to her allegations against the defendant, but they do exemplify her memory problems.
Some forgetting would be a natural product of the passage of time. The events at issue occurred in 2017, some six to seven years before the complainant testified at trial.
In addition, by her own admission, the complainant had a poor memory. She attributed this to her drug and alcohol use. The complainant said that at the relevant times, she was using a variety of drugs including powder cocaine, crack cocaine, Xanax, morphine, codeine, LSD, ecstasy, heroin, mushrooms, and alcohol. She used drugs daily or almost daily in 2017. Much of the time she got high several times a day. Between March 2017 and the end of September 2017, the complainant said she was continually high every day except for the times when she would try to stop using. Sometimes the complainant had blackouts when she was drinking heavily. She testified that, “a lot of that time period is just a blur until I got sober.” She said, “Most of the stuff back then is very hazy.”
The complainant agreed that her memory was highly impaired by intoxication, whether by drugs or alcohol, or a combination of drugs and alcohol. But the complainant maintained that the things she remembered having happened did, indeed, happen.
The complainant explained that she had gaps in her memory, things that were missing because of drug and alcohol induced memory loss. But she maintained that the things that she did remember were reliable and did happen. In cross-examination, defence counsel suggested to the complainant that the memories she does have were also affected by her drug and alcohol use. The complainant vehemently rejected this suggestion, saying, “What I know happened, happened.” She maintained that the things she does remember are accurate.
However, the complainant also acknowledged that intoxication not only affected her memory, but also affected her perception of what was happening at the time. The complainant acknowledged that when she used crack cocaine, she thought tornadoes were happening when they weren’t, and that she saw tornadoes that did not exist. She also explained that when she used crack, which was daily or almost daily, her perception of time was altered. Crack use had such a profound effect on her sense of time that she could stare at one thing for several hours without realizing that any time had passed.
In addition, in her statement to police, the complainant said:
There was a time when I, like, remembered certain things, and then now it’s like those things have been told to me. They did not exist to the point that now, like, I feel like they don’t exist.
At trial, the complainant agreed that she had said this to police, but explained that she was referencing that a text conversation she had with the defendant over Instagram in the summer of 2018 had confused her about what had actually transpired in her relationship with him. But the complainant acknowledged that she did not tell the police in her statement that that is what she was referencing.
The complainant also told police in her statement:
There’s a lot of things in my life that I do not remember because of being, like, not sober. There’s a lot of things – and like things were always happening, like whether they were him or someone else, and things were always happening, so I’m, like, I wouldn’t know, like whether that’s him or someone else or, like, things were always happening.
In cross-examination, the complainant agreed that she said this to police, and that she was being truthful when she said it. But she explained that she was referring to things she did not specifically bring up when she made her police statement because she wasn’t sure of them. She maintained that she only told police and only testified to things that she was confident are true.
As a matter of common sense and experience, the complainant’s intoxication could have affected her perception of events as they were occurring at the time, as well as her ability to recall them and recall them accurately after the fact. I accept that the complainant sincerely believes that the things she remembered happening did happen as she remembered them, but given what she described as her constantly high state of impairment, she would have no way of knowing for certain whether the memories she did have were accurate and reliable. She could well have misperceived events as they were occurring and/or misremembered them after the fact. She could equally be correct that the events she did remember occurred as she remembered and testified to them. I have no way of knowing. This contributes to my concern that despite her sincerity, the complainant’s evidence may have been unreliable. And, ultimately, considered with all the evidence in the case, to my finding that the Crown has not proven its case beyond a reasonable doubt.
The defence argued that the complainant’s evidence was unreliable, even if sincere, because it suffered from hindsight bias. The defence suggestion was that the complainant’s memories of her interactions with the defendant had changed or were coloured or influenced in retrospect by events that occurred subsequently. In other words, that the complainant saw herself in a mutual and consenting relationship with the defendant at the time, one where she was able to exercise some power and control, one where she was freely able to choose to consent to sex or withhold consent. But that she came to see her relationship with the defendant as an abuse of power by him to induce sex, and as exploitative of her, as a result of suggestions made to her in counselling or treatment by other people, after the fact. In particular, the defence pointed to a conversation that the complainant testified to having had with a worker at PYV, Matthew Longmore, as well as to her substance abuse treatment and therapy or counselling after she stopped seeing the defendant and was getting sober.
The complainant testified that Matthew Longmore, who was not her worker, approached her while she was still living at the shelter and seeing the defendant. He wanted to talk to her about her relationship with Mr. Nathan. The complainant adopted her evidence at the preliminary inquiry to the effect that she told Matthew that the defendant was great, and Matthew said there was bit more to it. He told the complainant what a Romeo pimp was. The term “Romeo pimp” was never defined in this trial, but I understand it to mean a pimp who is or pretends to be in a romantic and sexual relationship with a young woman, at least, in part, as a means of controlling and exploiting her and ensuring she continues to work for him in the sex trade. The complainant explained that this conversation with Matthew Longmore did not trigger any memories or change her views about the defendant and their relationship, but that it did raise some red flags for her.
The complainant acknowledged that her mindset about whether her sexual contact with the defendant was consensual changed over time. She said that as she got older, had some distance from the defendant, and got sober, she could see things more clearly. The complainant explained that as she matured and got older, her understanding of the relationship with the defendant changed. She maintained that nobody influenced her thinking about the relationship. She said she did get general education on healthy relationships and sex education. At her residential substance abuse program, she attended a group on healthy relationships and what they look like. She realized that there were a lot of discrepancies between her relationship with the defendant and how a healthy relationship was being defined for her.
In cross-examination, the complainant disagreed that her memories of events were greatly affected by what other people said to her about her relationship with the defendant. She disagreed that memory gaps from when she was using drugs and alcohol were filled in by other people. She disagreed that her memory was recast by others.
However, the complainant agreed that she did talk to other people about her life when she was in treatment. She could not remember whether they provided their views to her about her relationship with the defendant because these conversations in discussions she had with others influenced how she felt about her interactions with the defendant.
The complainant also acknowledged that her perception of some events changed as a result of maturing and treatment. She explained that this was because she learned that some things she had thought were okay based on her life experiences to that point were actually not okay.
I accept that perceptions may indeed change over time with subsequent experiences and learning. We often refer to this as the process of gaining insight or even wisdom. It does not necessarily mean that the subsequent perceptions or insights are wrong or unreliable. It may be that the insights gained from subsequent experiences, maturation, introspection, education, and even therapy, are correct. At the same time, memory may be fallible and suggestible. Human perception may be susceptible to suggestion and cognitive biases. I have not received any expert evidence about the frailties of human memory and perception or cognitive bias in this trial. However, these phenomena are well recognized in law, for example in the law dealing with eyewitness identification evidence and the need for unbiased expert opinion evidence. I accept that perception and memory may be influenced by suggestion and cognitive biases.
In this case, there is some reason for concern that the complainant’s perceptions and memories of the events at issue may have been influenced by suggestion and cognitive bias. There is much evidence, including some evidence from the complainant herself, that at the time, she experienced her relationship with the defendant as mutual; that she had some power and control in it and over it; that she chose to continue in it with the defendant for her own reasons and not because she was being exploited or taken advantage of; and that she subjectively consented to sexual contact with the defendant. I have already referred to some of this evidence.
The evidence also reveals that, after the fact, the complainant came to a different view or understanding of her relationship and interactions with the defendant. An understanding that the defendant abused a position of power over her, and exploited her, to induce her to consent to sex with him. And the evidence reveals that in the period between when she thought she was a willing and consenting participant and when she thought she was not, she had discussions, treatment, and therapy.
The evidence does not reveal the content of those discussions, treatment, or therapy beyond the fact that Matthew Longmore raised the possibility that the defendant was a Romeo pimp with the complainant. As a result, I do not have an evidentiary basis that would allow me to conclude for certain that the complainant’s memory and perceptions were influenced or changed, or that she suffered from hindsight bias. But on all the evidence before me, I consider it reasonably possible that they were.
It is equally possible that the complainant’s discussions, treatment, and therapy gave her the tools and concepts she needed to gain insight into the true exploitative nature of her relationship with the defendant. I have no way of determining which is true - whether the complainant’s evidence is a flawed product of influence and cognitive bias, or whether it is a true account produced through introspection aided by therapy. My inability on all the evidence to come to a conclusion on this issue leaves me with lingering but real concerns about the reliability of the complainant’s evidence, and contributes to a reasonable doubt.
I’m relatively close to the end but I still have a ways to go. I see it’s 20 to 12. I think we should maybe take a brief health break now and come back – it won't be too, too long when we come back and I’ll conclude reading the reasons into the record at that time. So I make 20 to 12 now, why don’t we come back at five to 12.
RECESS
UPON RESUMING:
THE COURT: I guess it’s afternoon now. Good afternoon, everybody. We’ll pick up where I left off.
REASONS FOR JUDGMENT
PRESSER, J. (Orally) (Cont.)
4. Assessing All the Evidence
I have come to the conclusion, on all the evidence, that both the Crown’s theory of liability and the defence exculpatory position might reasonably be true. I cannot determine between them, and as a result have found that the Crown has not succeeded in proving the defendant’s guilt beyond a reasonable doubt.
There was broad agreement on much of the evidence in this case. The complainant and the defendant both testified to the same timeline, broad outlines of their relationship, and many of their interactions. There were few points of factual disagreement. The key issue in dispute was the interpretation to be given to the facts that they largely agreed upon. That is to say, the key issue was whether the facts establish beyond a reasonable doubt that the defendant was in a position of power vis-à-vis the complainant that he abused to induce her to consent to sex, and whether he was in an exploitative relationship with her.
I have already explained my conclusion that while I do not completely accept the defendant’s evidence, I am left in reasonable doubt by it, and my conclusion that I have some concerns about the complainant’s reliability which also leaves me in reasonable doubt. I want to further explain my analysis of some remaining points of factual disagreement and how these also, considered alongside all the evidence, leave me with a reasonable doubt.
The complainant acknowledged that at the beginning of their relationship, she thought she was manipulating and using the defendant to get drugs. By the time of trial, she no longer saw it that way. At trial, the complainant testified that the defendant manipulated and influenced her; that he pressured her. She testified that when she would break off contact with him because she was trying to abstain from drugs, she would eventually resume contact because he pressured her and guilted her.
The defendant denied that he pressured or guilted the complainant. He explained that he was confused when she stopped communicating with him.
There is at least some evidence that the defendant did not pressure the complainant when she stopped communicating with him. A TextPlus message exchange dated August 11, 2017 that was entered in evidence reads as follows:
DEFENDANT: Well, it would appear [and I’ve substituted “the complainant” in square brackets] has disappeared from my life [Frowny face emoji] lol its ok tho. Hope youre doing well at least [Happy smiley face emoji] just don’t be a total stranger.
COMPLAINANT: I’m not disappeared lol. Just been more distant. Sorry about that.
DEFENDANT: lol its all good.
I recognize that this is only one message exchange. There may have been others at other times when the complainant was not communicating with the defendant that are not in evidence. There may have been communications where the defendant did pressure and guilt the complainant into resuming contact with him. But the only evidence I have that is not the testimony of the complainant or the defendant in relation to this issue comes from this one message exchange. And it suggests that the defendant did not pressure or guilt the complainant into resuming contact with him.
This message exchange also provides some support for the defendant’s evidence that the complainant did not tell him why she cut off contact with him when she did, which, in turn, provides some support to the defendant’s evidence that he was confused when the complainant stopped communicating. As such, it helps explain why the defendant persisted in texting her. I consider it possible, on all the evidence, that the defendant was persistently pressuring and guilting the complainant, but it is equally possible, on all the evidence, that he was genuinely and reasonably confused by her expressions of interest in him followed by her silence.
The complainant testified that she felt she had to consent to sexual contact with the defendant because he made her feel guilty. He was providing most of the crack they consumed together and was driving her around, and she could not reciprocate. Consenting to sex with the defendant was how the complainant could reciprocate.
The defendant denied that he ever pressured or guilted the complainant for sex, or that he ever exchanged drugs or money for sex with her. He did testify, however, that when he realized he was paying for more of the drugs, he wondered whether the complainant was taking advantage of him. He was concerned that she was using him for drugs. He acknowledged that he raised this with her.
I consider it reasonably possible that the defendant raised this issue with the complainant because he wanted to pressure and guilt her into having sex with him. It is possible that he was providing the drugs to manipulate the complainant to induce her to have sex with him, and that he raised this inequity to reinforce to her that she needed to “pay” her fair share by having sexual contact with him. But I consider it equally possible that the defendant was not pressuring or guilting the complainant to have sex with him when he raised the fact that he was providing more of the drugs. It is reasonably possible that the defendant, who I accept had genuine feelings for the complainant, was worried that she was manipulating his feelings and using him to get drugs; that she was pretending to care for him, and was only spending time with him, because he was providing more of the drugs; that he was actually looking for clarity as to how she saw the relationship, and hoping to be reassured that she wasn’t using him but actually cared for him. This interpretation is reasonable possible, especially when considered against the backdrop of the evidence capable of supporting conclusions that the defendant truly had feelings for the complainant, that he never forced her to have sex with him, that he was not sexually aggressive with her, and that he would retreat whenever she expressed any hesitance.
It was clear on the evidence that the complainant did not depend on the defendant for her daily needs. He did not provide her with her shelter, food (aside from soup on one occasion and a take-out meal on another), clothing, or money (aside from occasionally giving her money for cigarettes). The complainant had sources of income that were independent of the defendant: her own bank account, and her own cell phone, which she paid for. But the complainant was an addict and the defendant did provide her with drugs. The complainant acknowledged that she had other sources of drugs, and some ability to pay for her own drugs. She acknowledged that she was not solely dependent on the defendant for drugs, but that she was, as a result of not having much money, dependent on him for drugs at least some of the time.
I think it is reasonably possible that the complainant was dependent on the defendant for drugs some of the time. But I also think it is also reasonably possible that he was a convenient, readily available, and dependable source of supply for the complainant, while not being one the complainant was dependent on. As noted, the complainant testified to the fact that she had several dealers and sources of drugs. She used her Ontario Works money to buy drugs and worked independently in the sex trade to get money for drugs. She testified to getting drugs for free from drug dealers and in exchange for sex with them. She testified to a friend panhandling to raise money for drugs that she would get to share in. There was also evidence of the complainant trying to sell a bottle of Percocets she got from the defendant to raise funds. In other words, the complainant was resourceful. She was an addict and needed drugs to feed her habit. The defendant was a source of drugs for her. But the evidence allows both for a conclusion that she was dependent on him for drugs, and equally that she saw him as an easy default source of drugs but that if she couldn’t get drugs from him, she would have been able to get her supply elsewhere in other ways.
A conclusion that the complainant was not dependent on the defendant for drugs is supported by the evidence that she used drugs daily, or almost daily, and sometimes multiple times in a day, but that she typically only saw the defendant two times a week. The complainant must have been able to secure drugs when she did not see the defendant. I am not persuaded that the complainant depended on the defendant for her drug supply.
The defence position was that the complainant controlled and manipulated the defendant. The complainant acknowledged that she thought she did at the beginning, but later realized that she did not; that it was the defendant who had controlled and manipulated her.
In my view, there is evidence capable of supporting a conclusion that the complainant did have some independence and control in her relationship with the defendant. The complainant agreed that she often chose when and whether to communicate with him, and when and whether to see him. She agreed that when she cut off contact, she chose when and if to resume. She said that she felt pressured to reconnect with the defendant, but was not forced to do so. Ultimately, it was her choice. The complainant often said no to sexual contact, especially at the beginning of the relationship, and the defendant respected that. She wrote to the defendant about wanting to allow their relationship to progress slowly, and he agreed. Given his clear stated interest in having a romantic and sexual relationship with her, his willingness to respect her stated desire to go slow would have meant that the complainant had at least some control over the whether the relationship moved forward, and if it did, the pace at which it did so.
The defendant described the complainant, despite her youth, as smart, independent, articulate, and mature. This description certainly accords with my observations and impressions of her in court. The complainant was five to six years older at the time of trial than she was at the time of these incidents, and she was sober at the time of trial, which she was not at the time of these incidents. But she presented before me with an abiding intelligence, resilience, maturity, and independence that I believe would have been with her even as a much younger person.
Other evidence in the case is also consistent with a conclusion that the complainant was smart, independent, and resilient at the time of these incidents. The complainant had decided to leave her family home because it was not a safe place for her. She made and executed the decision to live in the shelter. She had her own bank account and paid for her own cell phone. She made the decision to leave school. She secured and then quit two different part-time jobs. She declined the defendant’s offer of getting her a hotel room so she could work in the sex trade and keep her earnings. She decided to steal drugs from a drug dealer, use them, and not hand over the money for them. She made the decision to work independently in the sex trade after her experience of being trafficked. She decided to do this independent of the defendant and notwithstanding his intermittent efforts to convince her not to do so. And she ultimately made the decision to get sober, and got herself into a residential substance abuse.
Many of these choices by the complainant were unfortunate ones, perhaps even maladaptive ones, made by a young person in very bad circumstances. Many of these choices may not have made her life easier or better or healthier, but they are capable of supporting an inference that the complainant was independent, self-determining, resourceful, and smart.
The defendant testified that he could not make the complainant do anything she did not want to do. On all the evidence before me, I conclude that that may well reasonably be true. In my view, the evidence supports a reasonable conclusion that the defendant did not manipulate or control the complainant. It is also, given the complainant’s youth, addiction, and vulnerability, capable of supporting a reasonable conclusion that he did.
The complainant testified that she believed the defendant was a doctor. She said that this was a trust-building piece for her. As noted, I accept that the defendant did not affirmatively lie to the complainant about the fact that he was not a doctor, but that he did knowingly allow her to continue under the mistaken impression that he was.
The defendant testified that his motivation in keeping the status of his medical licence a secret was that he was ashamed. I accept that this explanation is reasonably possible. He may well not have intended to deceive the complainant or falsely induce her trust with a view to taking advantage of her. He may simply have been too embarrassed to own up to the true state of affairs with her. It is also reasonably possible that the defendant intended to allow the complainant to be misled on this issue to impress her and further his romantic and sexual aspirations with her.
The Crown position was that there was a power imbalance in this relationship because the complainant was young, vulnerable, an addict, living in a shelter, a sex worker who had been trafficked, and was separated from her family. By contrast, the defendant was a full adult at 35 years of age, had an education, access to cars and money, and had supportive relationships with his family.
The defence position was that this power imbalance was more apparent than real. The defendant was also an addict, he was depressed, unemployed, deeply in debt, broke, drove his parents’ old cars, and lived at home with his parents at 35 years old.
On the evidence, it is reasonably possible that some of what made the alleged power imbalance more apparent than real was evident or known to the complainant. She knew the defendant’s age, but also knew that he did not have his own home, that he lived with his parents. The complainant refused to speculate as to whether the defendant was an addict, but agreed that every time they were together, he used drugs. She testified that she believed the defendant was a doctor, but agreed that he was available to her almost immediately whenever she called him which he would not have been able to do if he had been working as a doctor. The complainant testified that she believed the defendant had income because she saw him spend and use money, but she also agreed that he was driving older cars, and that she saw no ostentatious displays of wealth.
The defendant testified that there were times when he and the complainant were together and had run out of drugs and money, and he had to call a friend for a loan of $40, and then he and the complainant had to wait in the car for the friend to e-transfer funds. This was not put to the complainant, but I have no reason to disbelieve that it happened. It might reasonably be true.
Both the defendant and the complainant testified to the fact that it was an issue, in different ways to each of them, that he was paying for more of the drugs they consumed together than she was. Presumably this would not have been an issue, or it would have been less of an issue, if the defendant had been a practicing doctor with a healthy income.
On all the evidence, I can neither conclude that there was a power imbalance in this relationship, nor that there was not. Either might reasonably be true.
In considering whether the defendant was in an exploitative relationship with the complainant, I have considered the nature and circumstances of the relationship, including the factors enumerated in s. 153(1.2) of the Code, as follows:
Section 153(1.2)(a) – the age of the young person: the complainant was 16 and 17 years old at the time of the events at issue. She was young, which may have contributed to her vulnerability, especially in the circumstances of her life where she did not have a supportive family, was living in a shelter, and was not attending school. However, there is evidence, as well as my own observations and impressions, that at least in some ways, although young, the complainant was mature, independent, strong-willed, and self-determining. In the particular circumstances of this case, the youth of the complainant may not have resulted in an exploitative relationship;
Section 153(1.2)(b) – the age difference between the person and the young person: there was a large age difference between the defendant and the complainant, 18 to 19 years. A large age difference between an accused and a complainant on its own does not necessarily mean that a relationship between them is exploitative of the younger person: R. v. Martin, 2011 ONCJ 401. However, the greater the difference in age, the more the complainant may be vulnerable to apparent exploitation by the defendant: Anderson, at para. 78. In this case, the complainant testified that she found the defendant mature; that he had power over her because he was older, had a career as a doctor, or she believed he did, and had money. This evidence could reasonably support a conclusion that the relationship was exploitative of the complainant. However, the complainant also explained that she enjoyed talking with the defendant because he was mature; that they had good conversations. The complainant said that she could not have conversations of this nature with her friends and peers at PYV. The complainant said that the defendant’s maturity and the good conversations they had together were part of why she developed feelings for the defendant. In this way, the age difference between the complainant and the defendant may have grounded a good and mutual friendship or even a romantic and sexual relationship that was not exploitative;
Section 153(1.2)(c) – the evolution of the relationship: I have described the evolution of the relationship between the defendant and the complainant at length in these reasons, and need not do so again here. Suffice it to say that there are two equally plausible competing interpretations of the evolution of the relationship. One, consistent with an exploitative relationship, is that as the relationship evolved from one of friends who did drugs together, or “drug buddies,” to one where the defendant pressured and guilted the complainant to have sex with him as a form of payment for the drugs and drives he was providing to her. The other available interpretation of the evolution of the relationship is that it evolved from a relationship of friends who did drugs together to one where they mutually had feelings for each other and engaged in mutual and consensual sexual contact. As, and for the reasons explained, I have no reason to believe or disbelieve either one of these interpretations of the evolution of the relationship. Either one might reasonably be true.
Section 153(1.2)(d) – the degree of control or influence by the person over the young person: one possible interpretation of this factor is that the defendant had control and influence over the complainant because he was older, had access to money, and was able to provide or withhold drugs and transportation to the complainant, and that he used these to control and influence the complainant to apparently consent to sex. But for reasons I have already explained, I am not convinced that the defendant had such control or influence over the complainant. The complainant was mature, smart, independent, and may well have had some power and control over the defendant and in the relationship. I accept that the defendant loved her, and she knew it. Perhaps this was a relationship of power imbalance, with the defendant holding all the power, but perhaps it was a relationship where each had some power, and some vulnerability. The evidence allows for a conclusion that there were power imbalances that went both ways: The defendant had age, education, contact with his family, access to funds (although borrowed or on credit) and cars (although not his own), and could provide drugs. The complainant had the ability to give or withhold her time, attention, and willingness to engage with the defendant. The defendant thought she was beautiful, smart, and funny. He wanted to be with her. It is possible that this gave her some personal power in her relationship with him.
Both parties at this trial argued that the other manipulated and took advantage of them. Both agreed that there was genuine feeling between them. The evidence allows for a conclusion that the defendant was in an exploitative relationship with the complainant. But it also allows for a conclusion that both the complainant and the defendant were in a real, intense relationship where each had strengths and vulnerabilities, and both were ultimately in it because they cared for the other, had fun together, could use drugs together, and wanted things from the other. There was certainly evidence from which I could conclude that there was transactionality on both sides, but also that there was mutuality.
In conclusion, considering all the evidence, I have been unable to find, beyond a reasonable doubt, that the defendant was in a position of power that he abused to induce the complainant to engage in sexual contract with him such that her consent was vitiated within the meaning of s. 273.1(2)(c).
Considering all the evidence, I have also been unable to find, beyond a reasonable doubt, that the defendant was in an exploitative relationship with the complainant within the meaning of s. 153(1). The Crown has not succeeded in proving either sexual assault or sexual exploitation beyond a reasonable doubt.
I want to be clear that I do not disbelieve the complainant. I accept that she was young and vulnerable and that she was unfortunately exploited in the sex trade by others. This verdict is not intended, and does not, invalidate or discredit the complainant’s very difficult life experience, or her amazing and laudable efforts to become sober and live a productive and prosocial life. This verdict represents only that the Crown has not been able to prove its case against the defendant to the requisite standard of proof beyond a reasonable doubt on all the evidence.
V. Disposition
Mr. Nathan is found not guilty of both counts in the indictment.
...MATTERS ARE COMPLETED
FORM 3
Electronic Certificate of Transcript
Evidence Act, subsection 5(2)
I, Helena Tsapoitis-Barbesin, certify that this document is a true and accurate transcript of the recording of Rex v. Nathan Gagnon in the Superior Court of Justice, held at 361 University Avenue, Toronto, Ontario, taken from Recording No. 4899_2-4_20240808_091602 10_PRESSERJ.dcr, dated August 8, 2024 which has been certified in Form 1 by Jacob Lahartinger.
August 9, 2024 Date (Authorized Transcriptionist) Helena Tsapoitis-Barbesin
ACT ID# 2372561617 416-889-6054 Helena10@hotmail.com Transcriptsontario.ca