ONTARIO

SUPERIOR COURT OF JUSTICE

COURT FILE NO.: CR22-00000030

DATE: 20240105

BETWEEN:

HIS MAJESTY THE KING

– and –

CHAD CHATTERSON

Defendant

J. Melo, for the Crown

James Battin, for the Accused

HEARD: December 11, 12 and 15, 2023

GARSON J. (delivered orally)

Introduction

[1] Chad Chatterson, the accused, stands charged with a single count of sexual assault, alleged to have occurred between November 1, 2017, and June 30, 2018.

[2] MP, the complainant, now 22, was 16 at the time of the allegations, and was the only witness for the Crown.

[3] The accused and his son, Greg, both testified for the defence.

[4] These reasons explain the verdict that I have reached.

MP

[5] MP, now 22, met the accused through his son Greg, shortly before Halloween in 2017. MP and Greg rode the bus to school together and began spending time at Greg’s home where the accused lived.

[6] MP recalled spending more and more time at the accused’s home as her father and stepmother fought often and routinely yelled at MP (who needed to get away from this conflict).

[7] MP described her stepmother as emotionally abusive and someone who made her feel inadequate; and so MP spent time with Greg at the accused’s home, where she would go to escape her feelings.

[8] She described the accused as “her friend’s dad” and the “responsible adult”. She recalled one occasion where she attended the accused’s home in a hysterical state, and he tried to calm her down and help her feel better.

[9] By November 2017, she described that her relationship with the accused began to change to “something more” and that the accused led her into this change, and she just went along with things. This included the accused making sexual remarks and jokes to her including that she was “pretty hot and thick”.

[10] MP’s insecurity at that time made her feel like this was a compliment. MP testified about five separate allegations of sexual acts between her and the accused. I next turn to review each of these alleged incidents.

Incident One: Motor Vehicle

[11] MP recalled going along with Greg and the accused to drive Greg to his swim class. While Greg was swimming, MP described how she and the accused went for a drive in the accused’s car and started joking around and playing a game of Truth or Dare on her cellphone. This was the more mature version of the game, and the Dare cards would often involve sex acts.

[12] It was dark and between 6:00pm and 7:00pm. A card came up that read “ear kissing” and the accused began kissing her earlobe, which she described as a “weird and tickling” feeling on her ear. She testified she did not want to be kissed like this at that time.

[13] She next described her shirt and bra coming off and “nipple play”, which she also described as creating a “weird sensation”. She explained that she assisted the accused in removing her shirt and bra.

[14] At some point, all her clothes came off, as did the accused’s pants. A Dare card came up calling for a “blowjob” and she “kind of felt that she was supposed to do it”. She testified that she did not want the nipple touching to occur but “let it happen” and was not “present in her own mind”.

[15] She eventually stopped performing oral sex on him because she said she “didn’t want to continue” and “he agreed”. She also remembered “slight fingering” that did not last long and was a little bit painful, and that stopped when she asked him to stop.

[16] They returned to pick Greg up from swim class and drove home and she then returned to her home, where she felt “weird, uneasy and greasy” and remained uncharacteristically quiet that night.

Incident Two: Basement Bedroom

[17] A few days after the first incident, MP received a request from the accused’s girlfriend (who along with her 2 kids, lived at the accused’s home), to babysit her 6-year-old daughter. MP agreed and attended at the accused’s home, where she sat on the living room couch and played on her phone while the 6-year-old slept.

[18] The accused returned home from bringing Greg to swim class and brought MP to his bedroom in the basement. MP made a sketch of the layout of this bedroom. She and the accused sat on his bed chatting. She accepted his offer to have some gummies and after ingesting them realized they were edible pot gummies (5-gram dose) and she quickly became overpowered and felt relaxed.

[19] She remembered the accused removing all her clothes and putting on a condom and having vaginal intercourse with her. This felt wrong and she kept telling herself in her head that “this is my best friend’s father”.

[20] She stared at the ceiling and asked the accused how long it would take, he replied a few minutes or less so she “let him finish and let him do what he wanted.” She was unable to move him and described to him that this experience was a little bit painful and did not feel good, and he told her it was OK and that it was his first time “popping a cherry”.

[21] The accused hurried off afterwards to pick up Greg, and MP acted like nothing happened when they returned.

Incident Three: Basement Bedroom and French Maid Costume

[22] A week or two after incident two, and still in November 2017, the accused asked MP and Greg to help him dismantle a worktable from his workplace. They did so. He paid MP and Greg in pizza when they returned to the accused’s home.

[23] Greg took a shower. The accused brought MP to the basement and asked her to wear a French Maid’s outfit that belonged to his girlfriend. She agreed because “she always wanted to try this”.

[24] The accused asked her to speak French and “clean the pipe”, which she understood as his request for oral sex. He was now standing naked in front of her with an erection. MP “felt awkward” but “went along with this”.

[25] She next described being “flipped to doggy style and penetrated” on the bed, and later being flipped onto her back where the accused performed oral sex on her.

[26] She testified that she did not want oral sex performed on her but that she “just let it happen” and that it ended because she felt like she “peed in his mouth” and apologized to him.

[27] Both she and the accused soon went back upstairs (he first and she a few minutes later) and she remained in the living room with Greg and watched TV. She testified she did not want to have sex and that her mind was saying it wasn’t correct or right and that the sensation was different. She did not know what oral sex performed on her was and just lay there and worried “if Greg could hear this or see this” as she did not want to jeopardize her friendship with Greg.

Incident Four: Closet Room in Basement

[28] In late December 2017, while the accused and Greg were moving the accused’s girlfriend to a new home, MP was feeling sad and having some problems with Greg and a third friend named Madison and she went over to the accused’s home to offer to help move the accused’s girlfriend, but was quickly told her help wasn’t needed.

[29] MP now felt left out and went to the basement and cried. The accused consoled her and used his arm to warm her shoulder. The accused then brought her to a closet room in the basement, pulled down his pants, asked her to kneel, and forced her head onto his erect penis and made her perform oral sex on him. She “went along” but was crying and worried that Greg and Madison would come down and see this.

[30] Moments later, Greg and Madison came down as MP was kneeling in front of the accused and the accused told Greg and Madison that “nothing happened”. MP was unsure if Greg saw anything but believed Madison suspected something. MP described this incident as lasting less than 5 minutes and testified that she cried the whole time and “begged the accused to stop”.

Incident Five: Garage

[31] On June 11, 2018, MP was fighting with Greg, and the accused texted MP and asked how she was doing and he texted that he wanted her to come over so that he could help her and Greg fix their friendship.

[32] MP went to the accused home. She and the accused sat in the garage, and both smoked from a marihuana bong. Roughly one hour later after chatting, the accused told her he was “horny” and had an erection. MP responded “sure” and testified she just wanted it to get over with. She described herself at that time as feeling “stoned and not thinking”.

[33] MP asked the accused to go get a condom, he said no because he was afraid that he may lose his erection and that Greg may see him. MP next described that he pulled off her pants and that she was on a chair with her legs up by her head and the accused was “raw dogging it”, meaning having sex with her with no condom.

[34] This act ended when the accused ejaculated. MP felt weird and upset afterwards and ran home holding her shoes in her hand where she took a 30-minute shower and cried. MP sketched out a drawing of the layout of the garage.

[35] She explained that she said nothing to anyone about this because she was “scared because of threats” made on many prior occasions after the second incident that if she told anyone, the accused would deny it and put this all back on her.

[36] She took these threats seriously and was scared because she had seen a gun the accused kept in his basement in a bowling bag off the laundry room, and he had also told her he could shoot her and that he had previously used the gun to shoot a sick dog.

Cross Examination

[37] MP agreed that she first approached Quebec police about these allegations on October 19, 2019, when she was attending school in Quebec. She later gave a statement to Woodstock Police on December 4, 2019, and in January 2020 resumed living full-time in Woodstock.

[38] She described a December 12, 2019, meeting with Greg at a park that evening at Greg’s request to talk about the charges and for Greg to help MP. They met and immediately walked a few minutes to the accused’s house, at which point the accused emerged and was very upset with MP and Greg tackled his dad and blocked him from attacking MP. She was scared and shaking. The accused, who did most of the talking, told MP that he would lose custody of his daughter if these charges remained, and he denied these allegations.

[39] She elaborated on the first incident and stated that it took place in the parking lot at the Polish Hall in the accused’s PT Cruiser that had separate front bucket seats. She denied suggestions put to her that these events did not happen and stated that during the last or fifth incident, when the accused refused to put on a condom out of fear his erection would go away, she “let him do whatever he wanted”.

The Defence: The Accused

[40] The accused, now 47, and a truck driver, recalled living at 38 Gibins St., Woodstock with his two kids, and others at the time of these allegations. He first met MP in 2016 and overtime she and his son Greg developed a friendship. She started coming to his house quite a bit in the fall of 2017, and the accused and MP soon developed a friendship, which included chatting about many things including porn channels.

[41] He described MP and Greg’s relationship as toxic with lots of drama and MP blaming everything on Greg.

[42] He recalled the first alleged incident much differently than MP. MP did come with them to one swim lesson for Greg and, when the accused wanted to leave to get cigarettes, MP repeatedly asked to tag along and the accused said fine. They drove to a variety store on Norwich Ave., and he bought cigarettes while MP looked at bongs and other stuff used for marihuana. No sexual activity occurred.

[43] He recalled the second alleged incident also unfolding in a different manner. He agreed that her drawing of the basement room was somewhat accurate and recalled that she came down to that room but denied giving her gummies with pot, or any sexual activity occuring or any conversation about pain after sex.

[44] His testimony about the third alleged incident was that he did own a French Maid costume, but it was MP who asked to try this on, and he agreed, and she developed a script that they could use for sexual role play.

[45] MP wanted to try sexual acts and wanted the accused to show her how to perform these acts. When it came time to go ahead with the agreed plan for sexual activity, the accused was unable to go ahead because her script mentioned the words “clean the pipes”, which he associated with his father’s flatulence, and he could not be serious. He apologized to MP for not being able to do what they had planned.

[46] He described the fourth alleged incident much differently than MP. He recalled coming home one evening around late December 2017 and was told MP was upset and had gone downstairs into the basement closet room. He proceeded down there and found MP on her knees, and when he asked her what happened she looked at him with a smirk and pulled his shorts down exposing his penis. He immediately pulled them up and asked her what she was doing. Greg and Madison then came downstairs, and MP got up from her knees and the three kids went back upstairs.

[47] Dealing with the fifth allegation, the accused agreed with the general outline of MP’s drawing of the garage and recalled her showing up at the garage on that June 2018 day when both he and Greg were in the garage. He kept marihuana in a locked security box in the garage but never gave any to MP that day. He believed she was coming to his home much less in 2018 and hanging out much less with Greg. He and MP spoke for about 30 minutes, and MP asked the accused if he would continue to try and show her things and threatened that if he would not, that she would say that Greg or the accused raped her. This made the accused upset and he told her he was done with her and that she should leave. No sexual acts occurred.

[48] The accused denied making any threats to MP or showing her a gun. He did own a gun at that time, which he kept in the rafters above the furnace and did use to put down his sick dog.

[49] He testified that on December 12, 2019, MP and Greg came to his home and he confronted her and asked her what she was doing and why she was making these allegations. He described Greg as the one who was upset and that he stepped in between Greg and MP at one point.

[50] Inside his home, he told MP she was trying to ruin his life and that he would end up losing his kids. MP told him that what she was alleging was not true and that she did not want to be in Quebec anymore and that she was asking to stay with the accused and Greg at his house. The accused refused to let her.

[51] She told the accused that she was going to tell the police this was a dream and to stop everything and that these events never happening was the truth, and she had already told this to her own father. She was worried that the police might charge her with fraud.

[52] The accused explained that the portion of his police statement where he admitted to sexual acts with MP was not true, and that he said these things because his anxiety was peaking at that time, and he was under the influence of a drug.

Cross Examination

[53] He explained that he was having panic attacks during the day of his police interview and was intoxicated by smoking three marihuana joints, and this is why he gave inaccurate information and answers to police.

[54] He was also taking Ciprolex at that time for severe depression, and that the interaction of the two drugs led to dizziness, light-headedness, and confusion. He explained that when he panics, his heart and mind race with thousands of thoughts and that he also suffers from ADHD, borderline personality disorder, anxiety, and bi-polar disorder.

[55] He maintained no sex acts took place and no sexual boundaries were crossed but confirmed that he and MP did discuss a plan to have sex, but the plan did not unfold because of the wording in the script about “cleaning the pipe”. Sex was the plan that the accused reluctantly agreed to.

[56] He met MP in 2016 but only saw her twice in 2016 before establishing a friendship in the fall of 2017, when she was often at his home with Greg. He knew she was 16 in 2017 and described their relationship as “a friendship”.

[57] He was taken through a series of statements he made to police in his December 13, 2019, interview with DC Murray from the Woodstock Police Service and agreed that although he initially told police that no sexual intercourse or oral sex took place between himself and MP, he later went on in his statement to repeatedly refer to various sex acts and provide details of these acts, all of which he now says were not true.

[58] He said these false statements because the officer was not accepting his earlier denials and he was in “flight mode” and just rambled on with false details to be allowed to go home. It was only much later after this interview that he started writing things down and trying to figure out what happened.

[59] He maintained that he later told police about these sex acts that never actually happened because he just wanted to escape from the police interview and go home and he believed these were the answers DC Murray wanted to hear.

[60] He agreed that DC Murray spoke softly, asked open-ended questions, and repeatedly told him he could stop speaking at any time and call a lawyer at any time.

[61] Examples of excerpts from his statement that were not true included:

i. He never saw MP in lingerie (p.28);

ii. They did have sex and he did perform oral sex on MP and he thought there were 2 separate times sex happened and one time she wanted the missionary position and to try a bunch of different positions (pp.31-32, 35 and 39);

iii. That sex acts only happened on the bed (pp.37-38);

iv. That she had no reaction when he performed oral sex on her (p. 32);

v. That they were both naked at the time of the sex acts (p.33).

[62] He confirmed MP’s December 12, 2019, visit to his house and her fear that she would be charged with fraud if she recanted and was worried, she would be called a liar. He agreed that he and MP discussed not telling Greg or MP’s dad about their plan for sex and was aware that 16 is the legal age of consent.

[63] He did open a condom package when they were about to go through with the plan for sex, but the condom never got used because he could not “get it up”.

[64] He told police that he wrote on MP’s butt as a Dare when he played a few rounds of Truth or Dare with Madison, Greg, and MP but recalled in court that it was Madison’s butt that he wrote on and maintained that he did not play this game alone in his car with MP.

[65] He believed he looked disturbed in the video statement to police and that the video made no sense when he reviewed it before trial and that an earlier reference in the video to him attempting suicide caused his mind to go there later in the interview. He now feels bad about misleading police.

[66] He acknowledged knowing of MP’s history and her problems at home, and knew that she was a troubled teenager. He agreed they confided in each other but denied being a father figure or an authority figure for MP. He did not believe MP was vulnerable at that time nor was she a follower. He denied ever threatening MP or acting as her protector at any time. He explained that it was MP who wanted the sexual acts between them to occur, and his plan was to go along with it until he backed out.

[67] He explained that the first incident as testified to by MP was physically impossible because the front bucket seats in that car were broken and his stomach pressed up against the wheel and that he was not “generously endowed”.

Greg Chatterson

[68] Greg, now 21, briefly testified for the defence. He confirmed how he and MP met and their quick friendship. He was present at a December 12, 2019, meeting between himself and MP at a nearby park in the early evening.

[69] As they began walking to the accused’s home, MP was telling Greg that the allegations she had brought against his dad started in Quebec after she talked to her uncle and then went to police. She was now stressed and scared and did not know what would happen.

[70] Greg broke down MP’s comments to him that night into 4 bullet points:

i. The story she told her uncle was about a dream she had and that she was extremely drunk at a bar at the time she told her uncle this story;

ii. Her uncle then brought her to the police station;

iii. Her father then became aware she was now returning to Ontario; and

iv. She did not know what her next step would be.

[71] Greg testified that at the accused’s home, MP stated that none of these allegations are real and that the accused did not rape her. He described MP as very emotional and sputtering. MP was worried the accused would physically go after her and Greg reassured her this would not happen.

[72] Greg, MP, and the accused sat in the living room and MP, who did about half of the talking, went into more detail about how her story to police was a dream and spoke about how angry her father was. The accused asked MP why she made these allegations, and Greg spoke of the lasting effects these allegations had on all three of them.

[73] MP went on to say she was feeling very stressed and needed to end it and to tell police that this was all a dream. Greg described the accused as accepting of all this and not saying very much. Greg made clear to MP that she needed to go to the police now and MP indicated she would go the next day. The conversation lasted about 20 minutes. MP texted Greg the next day to confirm she did go to police and make a further statement.

Cross Examination

[74] Greg shared conversations he had with his father (the accused) that no actual sexual activity occurred between MP and his father, that his father told him, “he couldn’t get it up” and that he started to back out at the point of foreplay, but that things did not work out. His father also shared that MP requested oral sex from him and that his father could not do so because he was not into it and was uncomfortable doing it with MP.

[75] Greg described one incident that he became involved in where MP tried to pull his father’s pants down and Greg and Madison came downstairs, and MP looked up at them from inside the basement closet. This was the only incident he became involved in.

Positions of the Parties

[76] The Crown relies on MP’s evidence at trial that she did not want any of these sex acts to happen and asks me to find that sufficient to prove her lack of consent. The Crown relies on a series of threats that MP testified to and suggests that even if the court has a doubt as to whether she consented, she submitted to the sex acts after the second incident (the time after which she alleges the threats were made) by reason of these threats and, in any event, any consent is vitiated by reason of s. 265(3)>(d) and s. 273.1(2) of the Criminal Code.

[77] The Crown argues that the accused was in a position of trust or authority with respect to MP and induced her to engage in the sex acts in question by abusing that position of trust or authority.

[78] The Crown submits that the accused’s denials of any sex acts occurring is not worthy of belief when contrasted with his voluntary admission to police of at least two sex acts.

[79] The Crown asks the court to find that Greg’s evidence adds little value to the overall evidence and that nothing turns on it and much of it comes from the mouth of the accused. The Crown asks for a finding of guilt as charged.

[80] The defence takes a contrary view with respect to Greg’s evidence and points to the conversation of December 12, 2019, with MP and later, MP and the accused, and suggests that at a minimum, this should raise a reasonable doubt. The defence suggests that the accused’s trial testimony is credible as are the accused’s denials of any sex acts with MP.

The Law

[81] The accused is presumed innocent of this charge unless and until the Crown establishes his guilt beyond a reasonable doubt. This is a heavy burden on the Crown that never shifts.

[82] Proof beyond a reasonable doubt is not equal to proof of probable or likely guilt. It is also not proof to a level of absolute certainty. Simply put, it requires that I be sure that the accused committed the offence.

[83] Considering the evidence called by the defence, I must apply the principles established in R. v W.(D.), [1993] 1 S.C.R. 742 which provides as follows:

i. If I believe the evidence that the defendant did not commit the offence, I must find him not guilty;

ii. If I disbelieve him but nonetheless find that the defence evidence creates a reasonable doubt as to his guilt, I must find him not guilty; and

iii. Even if I disbelieve him and the defence evidence does not raise a reasonable doubt, I can only find him guilty if on the evidence that I do believe and accept, his guilt has been proven beyond a reasonable doubt.

[84] If I cannot decide who I believe at the end of the day, I must acquit. W.(D.) does not apply to each individual piece of evidence but only to the essential elements of the offence.

[85] When assessing credibility, I must examine both the internal consistency of a witnesses’ evidence as well as consistency of that evidence with other witnesses. I must apply the same level of scrutiny to all witnesses.

[86] I must be mindful of the plausibility of a witnesses’ account and any motive to fabricate or embellish. Although I may consider the demeanour of a witness, I must be careful not to place too much weight on this factor considering an increasing recognition that individual traits and backgrounds may impact demeanour without affecting credibility.

[87] An honest witness may still be unreliable or have an imperfect or inaccurate recall of events.

[88] In cases of this nature, credibility assessments are a central issue and may ultimately inform the findings that determine whether the Crown has proven the case beyond a reasonable doubt or whether the evidence, considered in its entirety, raises a reasonable doubt.

[89] Credibility speaks to veracity and truth-telling while reliability speaks to accuracy and trustworthiness.

[90] What I must not do is turn this trial into a credibility contest where I simply pick and adopt one version of events over another.

[91] I must also be careful not to subscribe to any recognized myths and stereotypes about how victims of sexual assault react and respond, including that genuine victims of sex assault report these incidents at the earliest opportunity and do not associate with the alleged perpetrator after the offence.

[92] I must be wary of assumptions as to how a victim of sex assault typically responds to such acts, and keep in mind factors such as power imbalance or fear, and if they exist, how they affect the behaviour of the parties.

[93] The Crown may rely on a statement from the accused, often containing both inculpatory and exculpatory parts, as part of its case-in-chief or as a prior inconsistent statement for potential impeachment use in cross-examination, should the accused testify.

[94] In this case, the accused concedes the statement to police was voluntary. Both parties asked that I only consider those portions of the statement referred to in oral evidence and not consider the remainder of the statement, much of which was redacted as either irrelevant or potentially prejudicial to the fair trial rights of the accused.

[95] In these circumstances, I rely upon the contents of the accused’s voluntary statement to police presented into evidence solely for the purposes of impeachment in assessing the accused’s credibility and not as stand-alone evidence that can go to the substantive issue of guilt. This is consistent with the clear position of the Court of Appeal in R v. McKerness, 2007 ONCA 452 at para. 37 where the Court stated that a prior inconsistent statement is not admissible for its truth.

[96] The offence of sexual assault requires proof of three elements:

i. An intentional touching;

ii. Of a sexual nature; and

iii. In the absence of consent.

[97] Consent refers to the voluntary agreement of the complainant to engage in the sexual activity in question. Consent refers to the person being touched and to whether that person subjectively consented at that time. The absence of consent is reflected by whether the complainant, in this case MP, her own mind, wanted the sexual activity in question to occur.

[98] The state of mind of the person being touched may be reflected in their words or gestures and behaviour at the time. There is neither presumed nor implied consent and any consent must be freely given. There must be evidence of consent through either clear words or clear conduct from the person being touched. Consent may be revoked or withdrawn at any time: R. v. Ewanchuk, 1999 CanLII 711 (SCC), [1999], 1 S.C.R. 330, R. v. J.A., 2011 SCC 28, [2011] 2 S.C.R. 440 and R. v. Barton, 2019 SCC 33, [2019] 2 SCR 579.

Credibility Assessments

MP

[99] MP testified about several unwanted sexual acts. I carefully watched and listened to her evidence. She presented as both a polite and respectful witness. She was clearly having a difficult time in her life at the time of these alleged incidents.

[100] She seemed genuine in her belief at trial that these events occurred without her consent. I must keep in mind that she was a troubled and emotionally abused 16-year-old at the time of these allegations.

[101] Her evidence must be examined in the context of all the evidence heard. I was impressed with her evidence. She was straightforward in her testimony, and I found her to be both a reliable and credible witness.

[102] I have little difficulty accepting the bulk of her evidence, particularly where it conflicts with the evidence of the accused. She was unshaken during cross examination and there were very few inconsistencies in her evidence, both internally and when considered with other evidence I accept. I explain later in these reasons the limited areas of her testimony that I do not accept and rely on.

The Accused

[103] The accused repeatedly denied the offences. He made several admissions and withstood a lengthy cross examination.

[104] His evidence was in sharp contrast to an earlier inconsistent lengthy statement he gave to police and inconsistent with much of MP’s evidence. His tone was calm and responsive. However, much of his evidence lacked both credibility and reliability and made little sense. It was at times illogical and at other times unreasonable. I do not believe or accept much of his version of events.

[105] His stories about going along with a script for role play during sex until he heard the phrase “clean the pipes”, which made him unable to carry through with the plan, defies common sense. The explanation that he was ready to engage in sex but for three words that triggered a memory of his father’s flatulence is not worthy or capable of belief.

[106] As I will discuss later, I reject much of his evidence about whether sexual acts occurred. I do accept his evidence that MP spent a lot of time at his house, that they became friends, and that he chatted with her about pornography channels. I accept and rely on his testimony that he and MP “confided in each other”.

[107] The Crown’s very able cross examination of the accused on his prior inconsistent statement made clear to me how little I can rely on his testimony regarding the denial of any sex acts.

[108] His denials rang hollow. Simply put, his version of events that no sex acts occurred was incapable of belief and the notion that he “reluctantly agreed” to a plan to have sex with MP is entirely rejected by me. I will comment further on his evidence later in my decision.

Greg

[109] Greg’s time in the witness stand was brief and the focus of much of his evidence narrow. I found Greg’s evidence to be of limited assistance to me. Much of his evidence, beyond the meeting of December 12, 2019, was no more than repeating self-serving statements the accused said to him.

[110] I have already made clear my rejection of much of the accused’s testimony. A repeated unreliable statement is no more reliable than the original unreliable statement.

[111] I do find Greg’s evidence helpful on the alleged fourth incident where he corroborates that MP was seen by him on her knees next to the accused while MP alleges she had just performed unwanted oral sex on the accused.

[112] However, having accepted MP’s version of what took place during the December 12, 2019, visit, I reject Greg’s evidence on that meeting.

[113] Before turning to my analysis of the evidence, I pause to specifically reject some of the evidence of the accused and make the following findings of fact:

i. I reject the accused’s evidence that no sexual acts took place;

ii. I reject the accused’s evidence and Greg’s evidence about the conversation that took place on December 12, 2019, between MP and Greg and later between MP, Greg and the accused. This conversation occurred after Greg reached out to MP. I am not satisfied that she recanted these allegations at that time. I accept her version of events that evening and find that the meeting, called by Greg once he knew MP had returned to Woodstock, was to bring MP to the accused’s home to allow the accused an opportunity to convince MP not to go ahead with these allegations;

iii. I cannot decide whether the alleged threats MP testified about occurred. However, given my later findings, the absence of these threats is of no consequence in my final analysis. What I do accept from the accused’s testimony is that he did tell MP on more than one occasion that they should not tell anyone about their sexual conversations, especially Greg or MP’s father.

Analysis

Did intentional touching of a sexual nature occur?

[114] MP alleged five separate incidents. I accept and find as a fact that the Crown has proven beyond a reasonable doubt that four separate incidents or sex acts occurred. They are incidents two through five.

[115] After considering the entirety of the evidence I do accept, I am left with a reasonable doubt as to whether the version of events, as testified to by MP for incident one, occurred.

[116] I accept the evidence of the accused as it relates to the type of vehicle they were in at that time, his and MP’s physical size at the time, and that the front bucket seats were broken.

[117] MP testified that the mature version of Truth or Dare was being played on MP’s phone and she described initially joking around before a card came up about earl lobe kissing. Who initiated the game? What was said after the card came up? Why were more cards being drawn after the initial card? Why was the game continuing?

[118] Her evidence is vague as to how all her clothes came off, as to how she was able to perform oral sex on him. I simply cannot find as a fact that events unfolded in the manner described by MP.

[119] I cannot reject the evidence of the accused on incident one and find that it raises a reasonable doubt as to whether the accused intentionally touched MP in a sexual manner that evening in his car.

[120] I reach a different conclusion on the remaining four incidents-incidents two through five. MP’s evidence for these alleged events is more detailed and is partly confirmed by some of the accused’s own testimony and Greg’s testimony. The accused testified about a plan for her to wear a French Maid outfit he had and to keep the plan to have sex secret from Greg and MP’s father.

[121] In reaching this conclusion, I firmly reject the accused’s testimony at trial that his false statements to police were made so that he could escape from police and go home that night. Nothing was further from the truth. He knew at the outset he did not have to speak, knew he could stop at any time, knew the plan for getting his paperwork for his release, knew the answers he gave would not change any of this.

[122] His testimony to suggest he was confused, disoriented, and impaired by a combination of marihuana and Ciprolex at the time of his statement to police is completely at odds with the detailed and responsive answers he provided throughout the more than 2-hour interview. I firmly reject his trial testimony that no sexual touching occurred. It clearly and repeatedly did.

[123] I accept MP’s testimony as to how she was touched in a sexual manner during incidents two through five. I reject the accused’s denial of any sexual acts for incident two, and his incredible and unbelievable testimony about how planned sex for incident three did not proceed.

[124] I remain mindful that I must not use his prior inconsistent statement, not adopted by the accused for much of its content, for its truth and that its only use by me is to impeach his credibility.

[125] Turning to incidents four and five, I again have little difficulty accepting the version of events as testified to by MP. Incident four was denied by the accused and partially observed at the end by Greg. Both MP and the accused confirmed Greg was there at the end.

[126] Although MP’s actions in retreating to the basement when upset to the point of crying may not be the obvious choice of best places to retreat, I need to examine her behavior through the lens of an emotionally unstable 16-year-old.

[127] Greg does come down at the end and, like the accused, confirms MP’s location, her positioning, and her proximity to the accused.

[128] Incident five is alleged to have taken place almost 6 months after the first 4 incidents. MP is now a sporadic visitor and has had a falling out with Greg. As earlier indicated. she is reached out to by the accused and attends his home on the understanding that he will help her address ongoing troubling issues with Greg.

[129] Although vague on details, she alleges that her pants come off and she is in a chair with “her legs up getting rammed”. The accused version, in sharp contrast, which I completely reject, is that she is now asking him to show her things about sex and if he doesn’t, she will accuse him of rape.

[130] Put simply, by accepting much of MP’s evidence as the truth as it relates to incidents two through five, this acceptance, standing alone sufficiently explains my rejecting outright the accused’s and Greg’s evidence where it contradicts or conflicts with the evidence of MP: R. v D. (J.J.R.) (2006), 2006 CanLII 40088 (ON CA), 215 C.C.C. (3d) 252, at para. 53 (Ont. C.A.).

[131] Indeed, much of the evidence that I do accept from the accused and Greg strongly corroborates some of MP’s evidence.

Did MP Consent? Was Consent Vitiated?

[132] The focus now shifts to MP’s state of mind and her words and actions both before and during the sexual activity in question.

[133] Although I heard evidence from MP that she ingested marihuana gummies before incident two and that she smoked a bong with marihuana before incident five, I am not satisfied that doing so rendered her incapable in either incident of understanding the sex acts in question, the person she is engaging in these acts with, and the fact that she had a choice as to whether to do so.

[134] The Crown argues that the accused made threats or exercised authority over MP, both of which are capable, as per ss. 265(3) and 273.1(2)(c) of the Criminal Code of vitiating or weakening her consent to the point that it is not recognized at law. Given my inability to find that threats were made, my focus now shifts to whether the accused occupied and abused a position of trust, power, and authority over MP.

[135] The Crown asks me to find that, even if I conclude MP consented or I have a reasonable doubt as to whether she did not consent, I should find on the evidence that the accused used his personal feelings and confidence built up in his relationship with MP to secure her consent: R. v. Lutoslawski, 2010 ONCA 207, 258 C.C.C. (3d) 1 (affirmed 2010 SCC 49, [2010] 3 S.C.R. 60), at para. 12; R. v. Geddes, 2015 ONCA 292, 322 C.C.C. (3d) 414, at paras. 30-37.

[136] The Crown relies on the accused’s admissions in cross examination that he knew MP was vulnerable, knew MP confided in him, knew she came to his home to escape her feelings of inadequacy at her own home, and took the time to gain her trust and confidence and friendship and then coerced her into consenting.

[137] This is a 41-year-old accused and a 16-year-old teenager. A confused, vulnerable, emotional, and somewhat immature teenager. Twenty-five years younger than the accused and a close friend of his son Greg.

[138] Age discrepancy is but one factor in a constellation of many. The accused agreed he talked openly about sex with MP. Agreed to a plan to have sex with MP. Had a clear power imbalance over MP and was aware of MP’s troubled home situations and ongoing relationship struggles and constant fighting with Greg. His house became MP’s safe place, comfortable place, and the accused became her “responsible adult”.

[139] The accused had the clear power to influence MP’s conduct and behaviour. Any consent she may have given under these circumstances is nothing more than cooperation with or submission to the accused’s authority as a much older man, the father of her close friend and someone whom she trusted to be a responsible adult.

[140] While s. 265(3)(d) of the Criminal Code speaks to the “exercise of authority” in vitiating consent, s. 273.1(2)(c) of the Criminal Code refers to “inducing the complainant to engage in the activity by abusing a position of trust, power or authority”.

[141] As our Court of Appeal made clear in Lutoslawski at para. 12, s. 273.1(2)(c) deals with relationships where the dynamics are such that the accused misuses the influence available to him because of that relationship. Things such as personal feelings, confidence of the complainant, and her obvious vulnerability, when used by someone in a position of trust over another to secure consent to sexual activity, is the type of behaviour that this section is intended to capture.

[142] The evidence before me satisfies me beyond a reasonable doubt that the accused was clearly in a position of trust over MP and abused this trust to secure MP’s apparent consent to the alleged sexual activity by exercising his coercive authority over MP.

[143] As such, even if I find or have a doubt as to whether MP consented, such consent is vitiated by operation of law.

[144] Accordingly, having determined that the accused abused a position of trust, power, or authority to induce MP to consent, I need only briefly address the remaining issues of consent since she either did not consent, or if she did, such consent is vitiated by law.

[145] For clarity, my findings on the issue of no consent being obtained or consent being vitiated in these circumstances by the accused inducing MP to engage in sexual activity by abusing a position of trust power, and authority are sufficient to fully address the issue of consent.

[146] For purposes of completeness, I will now go on to conduct a further analysis on the issue of actual consent.

[147] There are two distinct aspects to consider when assessing actual consent. First, MP’s subjective voluntary agreement to engage in the sex acts in question; second, relevant evidence such as words or gestures before and during the sex acts.

[148] MP testified that she did not consent in her mind to these acts. I accept her testimony.

[149] Consent must be given at the time of the sex act and to the specific act in question. Silence or passivity are not consent. There is no evidence before me that a voluntary agreement to consent to the sexual activity in question was reached or sought before incidents two through five.

[150] MP testified she did not want these incidents to happen but just let them happen, let the accused finish, and during incident four, begged him to stop and cried throughout. She wanted to get incident five over with. These are not the words or conduct of a consenting participant to sexual activity.

[151] Once again, I must be careful to keep in mind that MP was 16 at the time of these incidents.

[152] For incident two, she testified that after unknowingly ingesting a small number of gummies, the accused removed her clothes and had vaginal intercourse with her. Her passivity is not consent.

[153] For incident three, although she consented to trying on the French maid outfit, she did not consent to the many sex acts that followed. Even if I accept that “going along” with oral sex equates with consent, and I do not, no consent was sought or received for vaginal penetration or to perform oral sex on her.

[154] Incident four requires little analysis. The accused forced her head onto his penis while she cried. No consent.

[155] Incident five saw MP say “sure” when asked for sex but wanted the accused to wear a condom which he refused. She explained that she went along with it because of fear from earlier threats and felt weird and upset afterwards.

[156] Although the word “sure”, which MP says she used in response to the accused’s request for sex after saying he was “horny”, may raise a reasonable doubt that she was not consenting, it is clear to me that her consent was sex with a condom and that the unprotected sex acts that occurred were non-consensual: R. v. Kirkpatrick, 2022 SCC 33.

[157] Notwithstanding the passage of time between incidents four and five, I return to my finding of an earlier abuse of a position of trust, power, and authority and am satisfied that the effects of this abuse lingered and continued to operate in the mind of MP, who remained both vulnerable and confused.

[158] I am satisfied beyond a reasonable doubt that the acts described by the complainant in incidents two through five occurred without her consent. I accept her evidence that she was not consenting.

[159] In any event, I have already found that any consent in these circumstances is vitiated by law given my finding of the accused’s position of trust and authority over MP and his inducing MP to engage in the sexual activity by abusing this position of trust, power, and authority.

[160] Knowing MP’s age and vulnerability, the accused deliberately abused this position as a responsible adult to position MP for sexual acts.

[161] I am also satisfied beyond a reasonable doubt that the accused intended to touch MP for a sexual purpose and that he knew she was not consenting or was wilfully blind or reckless as to her lack of consent.

[162] The accused’s evidence that no sex acts occurred does not, on the diametrically opposed evidence before me, permit me or require me to engage in an analysis of whether he held an honest but mistaken belief in communicated consent: R. v. A.D.H., 2015 ONCA 690, at para. 15.

Conclusion

[163] I return to principles in W.(D.). I disbelieve the denial of the accused that there were no sex acts. The defence evidence does not raise a reasonable doubt regarding the essential elements of the offence, either standing alone or when considered in the context of the evidence as a whole.

[164] I find that four separate sex acts, incidents two through five, took place in the manner testified to by MP. The limited evidence of the accused that I do accept, coupled with Greg’s limited evidence that I also accept, does not raise a reasonable doubt on the issue of lack of consent.

[165] The evidence that I do believe and accept satisfies me beyond a reasonable doubt and proves the offence of sexual assault.

[166] For the above reasons, I find the accused guilty.

“Justice M.A. Garson”

Garson J.

Released: January 5, 2024

COURT FILE NO.: CR22-00000030

DATE: 20240105

ONTARIO

SUPERIOR COURT OF JUSTICE

HIS MAJESTY THE KING

– and –

CHAD CHATTERSON

REASONS FOR JUDGMENT

Justice M.A. Garson

Released: January 5, 2024