Restriction on Publication

By court order made under subsection 486.4(1) of the Criminal Code, information that may identify the persons described in this judgment as a complainant may not be published, broadcasted, or transmitted in any manner.

Reasons for Judgment

Brian D. Dubé

Delivered: Orally on February 20, 2025

Court File No.: CR-23-3608 (Chatham)

Heard: September 4, 5, 12, and 23, and October 30, 2024

Counsel:

• For the Crown: James Boonstra
• For the Accused: Kenneth Marley

A. Introduction

At the time of the trial, the accused, Steve Moreau (“SM”), was 41 years of age and the complainant, VJ, was 24 years of age. The incidents allegedly occurred between early 2017 and mid 2021. At this time, the complainant was between the ages of 16 and 21 and the accused between 34 and 38 years old. At all relevant times, the accused employed VJ at a janitorial company that he owned.

On September 30, 2020, the complainant formally reported the incidents to the police. She attended the Chatham-Kent Police Department (“CKPD”) and provided a videotaped statement which resulted in charges against the accused pursuant to the Criminal Code, RSC 1985, c C-46.

The accused was subsequently arrested and is charged on a three-count indictment as follows:

1. That between January 2, 2017, and March 5, 2018, in the Municipality of Chatham-Kent, being in a position of trust or authority towards VJ, a young person, did for sexual purposes touch directly with parts of his body the body of VJ, contrary to s. 153(1) of the Criminal Code.
2. That between January 2, 2017, and July 31, 2021, in the Municipality of Chatham-Kent, did commit a sexual assault on VJ, contrary to s. 271 of the Criminal Code.
3. That between September 1, 2018, and September 31, 2019, in the Municipality of Chatham-Kent, did commit a sexual assault on VJ, contrary to s. 271 of the Criminal Code.

On consent, at the conclusion of the Crown’s case, the end date in count #3 (September 31, 2019) was amended to conform with VJ’s evidence. The end date is now December 31, 2019.

B. Background

The complainant was 16 years old when the accused hired her at his janitorial company. The relationship quickly became sexual and continued until VJ was 21 years old. At all times during the relationship, VJ remained an employee of the accused.

On one occasion, VJ alleges that the accused engaged in sexual activity without her consent.

There are three issues to decide in this trial:

a. Did the accused engage in sexual activity with VJ while she was under the age of 18 years and he was in a position of trust or authority over her, thereby vitiating consent,

b. Did the accused, at all times, abuse a position of trust or authority towards VJ in order to influence her to engage in sexual activity, thereby vitiating consent, and

c. Did the accused engage in sexual activity with VJ on one occasion without her communicated consent.

At trial, the defence admitted jurisdiction and the identity and continuity of text messages/images that the police downloaded from the complainant’s phone.

The judge-alone trial of this matter was held in Chatham over four days. The court heard evidence from two witnesses. Final submissions were delivered on the third and fourth day. The witnesses at trial consisted of the complainant, VJ, and the accused, SM.

C. Preliminary Rulings

1) Publication Ban

A publication ban was ordered pursuant to s. 486.4 of the Criminal Code.

D. Evidence

1) The Complainant - VJ

The complainant is currently 24 years old. She met the accused through a friend who assisted her at the age of 16 year to obtain employment as a commercial/industrial cleaner at the accused’s janitorial business. According to VJ, the accused’s date of birth is March 16, 1983 and he was 34 years old at the time the two first engaged in sexual activity.

Her first day of employment was January 2 or 3, 2017. By text, it was arranged that the accused would pick her up from her parent’s house and take her to the first jobsite, which he did that first afternoon at approximately 5:30 p.m.

The first shift involved just the two of them cleaning an industrial/office site together. VJ testified that right from the start, the two got along and enjoyed each others’ company. She said that the accused was an easy person to talk to and she felt comfortable with him.

During this early period of her employment, the two would usually work alone together, but occasionally others would work with them. Her shifts were on Wednesday evenings, either Saturday or Sunday, and sometimes she would pick up another shift during the week.

The nature of the relationship quickly changed over the next several weeks from an employer/employee relationship to a sexual one. VJ testified that text messages and telephone conversation between the two became more personal. The accused also began to open up about his struggling marriage and parental challenges. The complainant found the accused to be very charming.

In mid January 2017, the accused asked her to work on a day that was not a typical workday, and she agreed. When the accused picked her up as he usually did (she did not have a driver’s licence at this time), he told her that he decided they would get something to eat, drive around and talk instead. The complainant testified that she was flattered because she enjoyed his company so much while working.

The two smoked some marihuana. The accused then told her a story about him being called up to the blackboard when he had a “boner” in high school. The complainant testified in cross-examination that she may have initiated that discussion when she told the accused that she often became sexually aroused riding the bus to school. This was the first time the conversation between the two became overtly sexual. On other occasions, the accused had told VJ that if he were younger, he would have dated her.

On January 28, 2017, the accused asked the complainant to clean an apartment building on a day that she was not scheduled to work. On the ride to the jobsite, the accused vented about his relationship with his wife, that she had been cheating on him for years and that they were only together for the sake of his seven-year-old daughter. The accused also told her for the first time that he was attracted to her and had a crush on her. VJ was taken aback and flattered. She also said that she had a crush on him.

At the jobsite, the accused expressed how much he liked her and that he wished to kiss her. VJ told him that she was nervous and not ready yet. The accused told her that they would get a pizza first and then kiss afterwards.

After pizza, the two eventually kissed and “felt up” each other. VJ testified that she “batted” the accused hands away on several occasions when he began to feel her breasts and vagina over her clothing. After pulling his hands away, he would again periodically touch those areas. At one point, he placed his hand down her pants and touched her vagina. VJ pulled his hand out and told him that she was not ready for that yet. The accused responded by saying that he was attracted to her because she said no to his advances – VJ testified that she felt good that she got his approval for saying no. The sexual activity did not escalate any further that night. (I note that while the touching by the accused of the complainant in the manner that he did could, arguably, constitute a sexual assault, the Crown did not allege that this incident was the subject matter of any of the counts in the indictment.)

This first sexual act of kissing occurred after the two had worked together approximately ten times.

VJ testified that although she had conflicting emotions regarding the accused, especially since he was in his 30’s, she nonetheless developed a very close and strong connection to him and was falling deeply in love.

The week after the two kissed, the accused picked VJ up from school and they went out to eat. The two then drove around and eventually parked in a rural area. They started to make out before the accused asked if he could give her oral sex. VJ testified that she was nervous but ultimately agreed. The accused then proceeded to give VJ oral sex in his vehicle and she eventually did the same to him in return. Before dropping VJ off, the accused gave the complainant a pamphlet of the ten commandments and explained the importance of having a relationship with God. It was obvious to VJ that religion was very important to him.

The following week the two ended up together at a jobsite. They proceeded again to give each other oral sex. The accused asked VJ if they could have sexual intercourse. VJ said she was not ready yet and remarked that in any event he did not have a condom.

On the next occasion, February 12, 2017, the two were scheduled to work together. The accused picked her up as usual and then the two parked in an out-of-the-way spot on the way to work and started making out. He told her as they were parked that he had a condom and would put it on his penis and just rub her vagina but would not penetrate her. VJ was nervous but ultimately agreed to have full sexual intercourse with him, which happened for the first time on that occasion.

VJ had strong but conflicting feelings about the relationship. She often told him about the concerns she had regarding the age gap, his marriage, and that her parents, or society for that matter, would not approve. At one-point, VJ Googled the legal age of consent and advised the accused that it was sixteen unless one of them was in a position of authority such as being an employer. The accused replied by saying that he really loved her and because she was so mature for her age, their relationship was different and an exception to the rule. The accused told her this several times during the relationship but would then insist that she keep the relationship a secret. The accused also emphasized that if people found out, his daughter could be taken from him.

VJ testified that she had a deep sense of love and loyalty towards the accused. She went on to say that she did not wish to jeopardize his relationship with his daughter.

The accused had the master key and alarm code to the various jobsites. The jobsites would sometimes be used by the two to engage in sexual activity.

The sexual relationship continued through the summer and into the next year, which was grade 12. During that period, the two spent more time together and referred to themselves as boyfriend and girlfriend. They were also beginning to discuss a future together.

They would communicate and send images to each other largely through Snapchat, knowing that same would be deleted unless both intended to save what was sent. VJ would often, either intentionally or accidentally, save communications or images sent to her phone via screen shots. Sometimes, she would delete the materials if she believed that her parents were becoming suspicious and possibly go through her phone. She also changed the call display name for the accused on her phone to the name of her friends, Ashley and/or Gabby, and saved some of the more private Snapchat communications she had with the accused to a password protected “My Eyes Only” function.

VJ freely admitted that she lied to her parents and others about the nature of her relationship with the accused, testifying at trial that it happened “more times than I can count.”

A forensic examination of the complainant’s phone by the police (Exhibit #1a and 1b) resulted in the extrapolation of several messages and images. These included a sexualized poem and sexually explicit messages sent between the two in 2017, as well an image of the accused’s erect penis that, according to the complainant, was sent to her just before her 18th birthday.

On March 5, 2018, the complainant turned 18. Even though VJ started to realize by this time that the accused was struggling with drug and alcohol abuse, she remained committed to the relationship.

Until mid-2018, the number of hours that VJ consistently worked for the accused remained the same, except that it increased somewhat during summertime. VJ testified that she received no significant perks during her employment with the accused, such as being promoted to a managerial position.

By June 2018, VJ’s hours increased to close to full-time after another employee went on maternity leave. She was also making approximately $17 per hour, which was more than the student minimum wage she made when she started her employment. The complainant also became a salaried employee during COVID, making the equivalent of $25 per hour for a 40-hour week.

As time went on, the accused became friend’s with VJ’s family, and he eventually employed her older and younger sisters.

By March 2019, the accused had separated from his wife, and VJ started to spend even more time with him at his house. VJ testified that as they spent more time together, she noticed that the accused’s struggles with alcohol and substances had become worse.

In the September/October 2019, VJ had a medical procedure in which she received an IUD. She was told that she would likely experience pain after the procedure and to avoid sexual intercourse for at least 24 hours. The accused drove her to and then back home from the medical procedure. That night the two were spooning and cuddling each other in bed while watching television. The accused began to “come on to her” and she felt his erect penis on her backside. He began to pull the complainant’s pajama pants down, but she told him that she was in pain and did not want to have sex. According to VJ, the accused ignored her and inserted his penis in her vagina anyways. The complainant cried silently during intercourse as her face was positioned away from the accused.

VJ failed to disclose this incident in both videotaped statements that she provided to the police. The first time VJ disclosed this sexual assault was when she was cross-examined at the preliminary hearing. She explained that she did not previously tell anyone about the incident because she was never asked if the accused ever had sex with her without her consent. VJ did say she brought this event to the attention of PC Sharrow of the CKPD when, in between the two videos, he had asked her questions from a questionnaire. According to VJ, when PC Sharrow gave her the option of providing a formal statement about the incident, she declined to do so.

In December 2019, VJ finally obtained her driver’s licence. In late 2020 or early 2021, VJ bought a house that needed extensive renovations. The complainant explained that during this period, she rarely saw or worked with the accused and instead spent most of her time working on the house. He was also becoming increasingly mean to her and was regularly belittling her. The complainant felt overwhelmed and burdened by the accused’s struggles with family/work/finances/anxiety and his substance abuse issues. The relationship had become toxic and VJ eventually decided that she wanted out, but that proved difficult because she felt trapped financially since she now owned a house and he was her only source of income.

The two continued to keep the relationship secret even though the complainant was now 21 years old. They were both still concerned that if they went public, people would figure out when the relationship first started.

Eventually things came to a head after VJ had what was essentially an emotional break-down on August 25, 2021. VJ called 911 on that day and told the operator, and then the police officers who attended her residence, that she had been involved in an inappropriate relationship with the accused. When she was later cross-examined on the officer’s notes, VJ denied that she refused to identify the accused as the one who she claimed sexually assaulted her.

VJ was subsequently taken to the hospital by her mother. On the way there, she attempted to delete the communications she had with the accused. She did this, she says, to prevent her mom from being embarrassed, believing that she would go through her phone while she was in the hospital. VJ was eventually discharged once she spent a couple nights recovering in the hospital. After a few more days of work, she and her sister gave the accused their notices of resignation. VJ also ended their relationship at this time.

VJ has now started her own cleaning business, which she continues to operate today.

On September 30, 2021, VJ attended the CKPS headquarters and provided a videotaped statement about the incident. She gave another recorded interview on November 11, 2021. Both interviews were conducted by PC Sharrow.

2) The Accused

The accused elected to testify in his defence.

The accused confirmed, in large part, the contents of Exhibit #1b as well as the complainant’s testimony regarding the facts central to the incidents. This includes the events that occurred within the first couple months of the relationship. A summary of the accused’s testimony is as follows:

a. The accused was born on March 16, 1983. He was 34 years of age when he first met VJ.

b. The accused owned a janitorial company. He hired VJ and she remained his employee during the relationship. She started off at minimum wage and then her rate of pay increased with time. VJ also assumed more managerial duties. The accused was responsible for placing people at different jobsites. He also had the authority to both hire and terminate employment.

c. Shortly after he hired VJ, the accused confided in her that his wife cheated on him and the marriage was done. The accused agreed that while it was not his intent, telling VJ that his marriage was over would indicate that he was available.

d. The accused knew that VJ was only 16 years old when the two became sexually intimate, including when they had sexual intercourse for the first time.

e. The first sexual act consisted of kissing, “making out” and heavy petting on top of clothing. The sexual activity then quickly progressed.

f. On one occasion, the accused picked VJ up, and they drove to a rural road outside of Chatham. VJ took her own pants off and they engaged in oral sex. Afterwards, it was VJ who talked “excitedly” about having sexual intercourse. The accused reassured VJ that they would only have sex when she was ready. The accused testified that he did not intend to pressure her in any way to have sexual intercourse.

g. The next time the two met, they had sexual intercourse. A significant difference between the accused’s version and that of VJ is that the accused said it was VJ who brought the condom. The accused testified that he never brought a condom because he did not believe that she was ready to have intercourse. Consistent with both accounts, the accused testified that he told her that he would just rub his penis on her vagina, believing that it would not lead to intercourse. He also testified that not only was it VJ who wanted to have sex with him at this time but that it was she who put the condom on his penis – before sitting on his erect penis.

The two would on average have intercourse at least once a week until the relationship ended in 2021.

The employer/employee relationship remained essentially the same until COVID. At that time, VJ gained more managerial type responsibilities within the corporation and her wages, as well as many of the other employees, increased. In the case of VJ, her wages increased from $17 to $24 per hour.

According to the accused, it was VJ who wanted to keep the relationship secret – and he merely assisted her to do so. The accused was not at all concerned whether the relationship was legal; rather, his concern was if it was socially acceptable. Although he had developed a relationship with her family, particularly her mother, the accused testified that he was not really concerned about inadvertently disclosing the nature of the relationship to them.

In relation to the alleged sexual assault after the IUD procedure, the accused mostly confirmed VJ’s evidence but stated emphatically that the two did not have sexual intercourse that night. The accused confirmed that VJ told him that they should not have intercourse and, while he did not specifically recall what happened that night, he testified that he would have respected her wish.

The accused testified that he had no idea until VJ filed her letter of resignation in late summer 2020 that she wanted to end the relationship. He believed the two were still in love and that they would eventually marry.

The accused was subsequently arrested in January 2022.

E. Position of the Parties

1) Theory of the Defence

The case of R. v. W.(D.), [1991] 1 S.C.R. 742, applies as the accused testified. The defence argues that the accused was not shaken in cross-examination and his evidence should be accepted. Alternatively, even if not fully accepted, the accused’s evidence should at least raise a doubt as to his guilt. Finally, even if the accused’s evidence is rejected in its entirety, the evidence of the complainant is so unreliable, especially in relation to count three, or is otherwise insufficient to prove his guilt beyond a reasonable doubt on the essential elements in counts one and two.

As it relates to counts one and two, the defence argues that the Crown has not proven beyond a reasonable doubt that the accused was in a position of trust or authority towards VJ, even though the accused was her employer. In any event, even if it is proven that the accused was in a position of trust, there is nothing in the evidence to suggest that this played any role or had any influence over how their intimate relationship began and developed.

As it relates to count three, the defence submits that the failure by VJ to disclose to the police in her two videotaped statements that the accused had sexual intercourse with her without her consent raises serious questions about the reliability and/or credibility of her account of this incident. Without evidence confirming her testimony, the defence argues that it would be dangerous to convict on this count.

Accordingly, the accused ought to be acquitted of all charges.

2) Theory of the Crown

The Crown submits that but for the sexual assault in count three, the evidence as between the accused and the complainant were similar.

In relation to counts one and two, the accused was her employer and therefore in a classic position of trust and authority towards her during their sexual relationship. The Crown submits that the evidence of guilt is overwhelming during that period when sexual activity took place while VJ was under the age of 18 years and therefore he ought to be convicted on count one.

The Crown further argues that the accused also influenced VJ to engage in sexual activity by abusing the position of trust and authority as her employer. The Crown argues that consent under s. 273.1(2)(c) in respect to sexual assault offences does not require coercive force to nullify consent but rather may flow naturally from personal feelings and confidence engendered by that relationship, which is consistent with the testimony of VJ. Therefore, the accused should be convicted of count two.

As it relates to count three, VJ was a credible and reliable witness, and her evidence ought to be accepted without any reservation. Her evidence was straightforward and honest when she testified about the accused ignoring her request not to have sex and then forcing himself on her after the IUD procedure. The accused’s testimony, on the other hand, was self-serving and tended to minimize his own responsibility, and it ought to be rejected. After considering all the circumstances, including most importantly VJ’s testimony, the sexual assault has been proven beyond a reasonable doubt and therefore the accused also should be convicted on count three.

In conclusion, the Crown submits that the case against the accused has, on all counts, been proven beyond a reasonable doubt.

F. The Law

1) The Standard of Proof

To convict a person accused of a crime, the Crown must prove every element of each offence charged beyond a reasonable doubt. Accordingly, I instruct myself on the criminal standard of proof in accordance with the guidance provided by the Supreme Court of Canada in R. v. Lifchus, [1997] 3 S.C.R. 320, at para. 39.

2) The Distinction Between Credibility and Reliability

The credibility and reliability of a witness are two distinct concepts. Simply, credibility relates to whether a witness was telling the truth, and reliability is whether a witness, although apparently honest, provides the court with inaccurate evidence: see R. v. Morrissey, 22 O.R. (3d) 514 (C.A.).

3) Assessment of Credibility

If an accused elects to testify on his own behalf and the court is presented with two fundamentally different versions of the critical events in question such that credibility is important, the principles enunciated in W.(D.) are central to the court’s analysis. In W.(D.), Cory J. held that the trier of fact should be instructed on the issue of credibility in accordance with a three-step analysis, at p. 758:

First, if you believe the evidence of the accused, obviously you must acquit.

Second, if you do not believe the testimony of the accused but you are left in reasonable doubt by it, you must acquit.

Third, even if you are not left in doubt by the evidence of the accused, you must ask yourself whether, on the basis of the evidence which you do accept, you are convinced beyond a reasonable doubt by that evidence of the guilt of the accused.

4) Principles Relating to Children’s Evidence

Although the age of the complainant ranged from 16 years old at the time of the first incident to approximately 21 years old when her relationship with the accused ended, I find that the principles related to the reception of children’s evidence are applicable, at least in relation to those incidents that took place before she turned 18 years old. In historic sexual abuse cases against children, the Supreme Court of Canada in R. v. W.(R.), [1992] 2 S.C.R. 122, at p. 134, explained that when adults testify as to events that occurred when they were a child, “the presence of inconsistencies, particularly as to peripheral matters such as time and location, should be considered in the context of the age of the witness at the time of the events to which she is testifying.”

With all the above in mind, I will now consider the evidence of the witnesses.

G. Analysis

1) The Evidence of the Accused

I will assess the accused’s evidence at the outset before dealing with the facts in relation to each count.

I reject those parts of the accused’s evidence that are not otherwise confirmed by VJ’s testimony. The evidence, which I do accept, includes that he both intended and did engage for a sexual purpose to have intimate relations with VJ before she turned 18 years old.

The accused clearly has little insight with respect to how morally inappropriate it was for him to have sexual relations with his 16-year-old employee. In fact, the failure by him to have any insight into what he did was obvious when he described at trial the seemingly normal and healthy way the relationship that he had with this teenage employee of his quickly developed shortly after they first met.

More troubling is how he minimized what he did in terms of developing the sexual relationship he had with VJ. The thrust of his testimony was that it was primarily this young 16-year-old complainant, and not him, who from the onset had controlled the direction and pace of the relationship. According to the accused, it was VJ who played the leading role in quickly escalating the sexual activity between the two, from simply kissing to having sexual intercourse within six weeks or less, that he had essentially taken a hands-off approach and allowed the relationship to develop at a pace set by VJ. If the accused is to be believed, at no time did this 34-year-old employer in any way attempt to persuade or influence VJ to do anything that she was otherwise reluctant, at least initially, to do.

Again, I reject the accused’s evidence in all areas that conflict with VJ’s evidence, which I will comment on soon when I deal with count two – although, apart from count 3, very little turns on this credibility contest.

Count One – Sexual Exploitation

The applicable parts of s. 153(1) of the Criminal Code states the following:

153 (1) Every person commits an offence who is in a position of trust or authority towards a young person… and who

(a) for a sexual purpose, touches, directly or indirectly, with a part of the body or with an object, any part of the body of the young person; or

(2) In this section, young person means a person 16 years of age or more but under the age of eighteen years.

From David Watt, Watt’s Manual of Criminal Jury Instructions, 2024, (Toronto: Thomson Reuters, 2024), at p. 522, the definition of “Position of Trust” and “Position of Authority” are defined as follows:

Position of Trust

An individual is in a position of trust towards a young person when the relationship between them creates an obligation or responsibility on the adult. For there to be a position of trust, there might be but does not have to be, a formal legal relationship between the young person and the adult.

What is important is the nature [of their relationship]. A position of trust creates an opportunity for [an individual to persuade or influence a young person].

Position of Authority

An individual is in a position of authority towards a young person if [he or she is in a position either to enforce obedience by the young person, or to influence the young person’s conduct]. For there to be a position of authority, there might be but does not have to be a formal legal relationship between [them].

What is important is the nature of [their relationship]… A position of authority creates an opportunity for [an individual to persuade or influence a young person]… A position of authority includes any relationship [in which] one person actually exercises a power or influence over another person. [Emphasis in original.]

When comparing s. 153(1) (sexual exploitation) in relation to count 1 with the definition of consent in s. 273.1 (sexual assault) of the Criminal Code in count 2, there is a notable difference between the two sections regarding the definition of position of trust and position of authority.

Section 153(1) states that any person in a position of trust or authority who, for a sexual purpose, touches the body of a young person is guilty of an offence.

In contrast, the wording of s. 273.1(2)(c) states the following:

(2) For the purpose of subsection (1), no consent is obtained if

(c) the accused induces the complainant to engage in the [sexual] activity by abusing a position of trust, power or authority;

As it relates to s. 273.1, it is not merely whether a person is in a position of trust or authority that is prohibitive but whether the person also “induces the complainant to engage in the [sexual] activity by abusing a position of trust, power or authority.” Under s. 153(1), the Crown is not required to prove anything beyond that the person was in a position of trust or authority when the young person was touched for a sexual purpose – nor is the Crown required to demonstrate that the accused abused that position of trust or authority.

Accordingly, it appears that the forbidden conduct in s. 273.1 is much more narrow or restrictive when obtaining another person’s consent than the behaviour captured by s. 153(1): see R. v. Audet, [1996] 2 S.C.R. 171, at para. 23.

I will have more to say about s. 273.1 later.

I will now focus on s. 153(1) and whether the accused held a position of trust or authority towards VJ during that period when she was under the age of 18 years old and the two engaged in sexual activity. In that regard, all circumstances must be considered, including the age difference between the two and the status of the accused in relation to VJ. The nature of the relationship is also important in this analysis: see Audet, at para. 38.

The facts in relation to this count are not at all in conflict as between the two witnesses.

At the time the two first engaged in sexual activity, VJ was 16 years old and the accused was 34 years old - an age gap of approximately 18 years. As the direct employer of this young person, the relationship between him and VJ created mutual legal employment obligations and responsibilities. It also created an opportunity for the accused to persuade and influence VJ and force obedience from her. Examples include that the accused had the authority as her employer to set VJ’s rate of pay, the number of hours she worked and at which jobsite she would be placed. He also had the authority to terminate her employment and enforce her to comply with employment related policies and procedures.

Whether the accused abused this position of authority or trust as VJ’s employer is an irrelevant consideration. The only issue is whether the accused occupied a position towards this young person that would have created the opportunity to persuade or influence the complainant to engage in the sexual activity – and there is no doubt in my mind that these circumstances existed at the time the two had sexual relations. I agree with the Crown that caselaw has recognized employers as someone who enjoys a position of trust towards an employee: see R. v. R.H., 2024 ONCA 672, at para. 2; R. v. DiMichele, 2020 ONCA 48, at paras. 2, 9.

Section 153(1) recognizes that young persons are vulnerable and that the burden is on those in a position of trust or authority to say no even if that young person wishes to engage in any form of sexual activity. On this point, La Forest J. in Audet refers to what he described as the eloquent comments of Woolridge J. in the case of R. v. Hann (No. 2), 86 Nfld. & P.E.I.R. 33 (Nfld. S.C.), at p. 36:

The implication from the wording of Section 153 is that notwithstanding the consent, desire or wishes of the young person, it is the adult in the position of trust who has the responsibility to decline having any sexual contact whatsoever with that young person.

The significant difference in age coupled with the employer/employee relationship created an obligation on the accused in the circumstances to abstain absolutely from acting on any temptations that may arise when dealing with this young person.

It is for all the above reasons that I find that the accused was in a position of both trust and authority towards VJ when he had, before she turned 18 years old, touched her for a sexual purpose.

After considering the uncontested evidence that the accused willingly engaged in sexual touching VJ during that period leading up to her 18th birthday, I find the accused guilty beyond a reasonable doubt of sexual exploitation, which is count one in the indictment.

Count Two – Sexual Assault

The Crown argues further that even though the complainant had consented to sexual activity with the accused, there is no consent at law by operation of s. 273.1(2)(c).

To begin, the fact that a person is in a position of trust or authority is not, by itself, sufficient to vitiate consent where sexual activity occurs: see R. v. Snelgrove, 2018 NLCA 59, 366 C.C.C. (3d) 164, at para. 15, aff’d 2019 SCC 16, [2019] 2 S.C.R. 98.

A case dealing with the applicability of s. 273.1(2)(c) that has some similarity with the case at hand is the decision of R. v. Lutoslawski, 2010 ONCA 207, 260 O.A.C. 161. In Lutoslawski, the accused was in a position of trust as an organizer with a youth group that took children on camping trips. He was in his late 30’s or early 40’s when he met the 15-year-old complainant on one of these trips. While on camping trips, as well as on other occasions, they engaged in consensual sexual relations, including intercourse. A long-term intimate relationship ensued until it ended when she was 19 years old. The complainant testified that during this period, she thought she was in love with the accused. The trial judge erroneously referred to s. 265(3)(d) (assault) instead of s. 273.1(2)(c) (sexual assault) on the issue of whether the Crown had proved the absence of consent. The accused was ultimately acquitted at trial. Doherty J.A., for the majority, quashed the acquittal and directed a new trial. In doing so, he said the following, at paras. 12 to 13:

12 I agree with Crown counsel's submissions that s. 273.1(2)(c) is broader than s. 265(3)(d). Section 273.1(2)(c) speaks not only to the abuse of a position of authority but also to the misuse of a position of power or trust. The section addresses 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 term "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.

13 The distinction between s. 273.1(2)(c) and s. 265(3)(d) was also addressed in R. v. Makayak, 2004 NUCJ 5 at para. 70:

Section 273.1(2)(c) broadened the scope of criminal conduct to include breach of trust and power. However, the section also added the words "induces the complainant ... by abusing a position of trust, power, or authority". Does this mean there has to be some form of coercion? In my view, these words remove the need for coercion that may be present for section 265(3)(d). It is clear from Matheson [Citation omitted.] that it is the exploitation of the imbalance that is the key consideration. Section 273.1(2)(c) was passed a number of years after the courts had struggled with section 265(3)(d). Parliament had the opportunity to consider the case law that had developed up to that point. 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.

See also M. Manning, A. W. Mewett and P. Sankoff, Criminal Law, 4th ed. (Markham: LexisNexis, 2009) at p. 880.

See also R. v. Snelgrove, 2019 SCC 16, [2019] 2 S.C.R. 98, at para. 3.

The British Columbia Court of Appeal decision of R. v. M.S., 2022 BCCA 390, 421 C.C.C. (3d) 391, is also instructive on the applicability of s. 273.1(2)(c) in cases of sexual assault. At paras. 49, 51 and 53, the court said the following:

49 First, as the case law above makes clear, the "inducement" requirement in s. 273.1(2)(c) is focused on why the complainant engaged in the sexual activity. If the Crown proves, based on all of the circumstances, that the complainant did so because she was induced by the accused's abuse of his position of trust, then that proves there was a lack of consent. This can be inferred; it is not a requirement that the Crown point to a specific action of "inducement" by the accused, such as using persuading words.

51 A determination that the accused abused his position of trust to induce the complainant to engage in the activity does not require overt words of persuasion. Rather, the whole of the circumstances must be considered to determine whether the complainant was induced -- whether that is described as influenced, enticed, or persuaded -- by the accused's abuse of trust to engage in the sexual activity.

53 I disagree with the appellant's argument that this interpretation would make s. 273.1(2)(c) no different than the sexual exploitation offence in s. 153(1)(a). There is an additional element in s. 273.1(2)(c), which involves the inducement to engage in the sexual activity by abuse of a position of trust. It is conceivable that where a complainant is a strong adult without any personal vulnerabilities or vulnerabilities inherent in the relationship, and it is the complainant who pursues and initiates the sexual activity with another adult who holds a position of trust, that the Crown will not be able to make out the lack of consent pursuant to s. 273.1(2)(c): see for example the discussion in Snelgrove at para. 28.

On the issue of the complainant’s subjective state of mind regarding consent in sexual assault cases, the court in M.S. had this to say, at paras. 37, 38:

37 Section 273.1(2)(c) recognizes that there may be circumstances where a complainant apparently consents by going along with and participating in sexual activity without objection, but the overall circumstances are such that it cannot be said the complainant truly agreed to it.

38 The jurisprudence is clear that s. 273.1(2)(c) requires that these elements be met: (a) first, a finding that objectively, there is a relationship of trust, power or authority between the accused and the complainant; and, (b) second, a finding that subjectively, the complainant was induced to engage in the sexual activity because of the accused's abuse of that relationship. The subjective nature of the analysis of the complainant's state of mind is in keeping with the general approach to consent: see R. v. A.H., 148 C.C.C. (3d) 86, para. 17; Ewanchuk. The Crown must prove that the complainant entered into the sexual activity as a result of the accused's exploitation (or, to put it another way, abuse) of their relationship of trust.

While I find that at all relevant times, the accused occupied a position of trust and authority towards VJ, I have ultimately concluded, despite struggling with this issue, that the Crown has not proven beyond a reasonable doubt that there was no consent to the sexual activity by virtue of s. 273.1(2)(c). More specifically, I am not entirely satisfied beyond a reasonable doubt, as I must be, that the accused induced or otherwise influenced, enticed, or persuaded, either overtly or subtly, the complainant to engage in sexual activity by abusing his position of trust or authority while she was under his employ.

The relevant period in count 2 is from the start of the sexual relationship, when the complainant was a month or two shy of her 17th birthday, until September 2021 when, at the age of 21 years old, she finally resigned from the accused’s company.

I had the opportunity to carefully listen to and watch the complainant testify at trial over a two-day period and I believe I developed a good understanding of her as a person – and I find her to be both credible and reliable. While I appreciate that she was 24 years old and testifying about events that took place when she was much younger, I nonetheless believe I have a good sense of what her subjective state of mind was when, at such a young age, she decided to have, and remain in, a sexual relationship for as long as she did with a person who was 18 years or so her senior: see M.S., at paras. 20, 57.

As I have already found, the sexual relationship between the two began when VJ was unable to provide lawful consent. Thereafter, the two quickly fell in love and settled into what was a relatively stable intimate relationship. By all accounts, VJ appeared to be happy in that relationship - at least for the first couple of years. While the two would often spend alone time together late at night engaging in sexual activity at various jobsites, when I consider all the circumstances, I am not satisfied that there is sufficient evidence to find that the accused’s position as the VJ’s employer had any discernable impact on the decisions she made regarding the sexual nature of their relationship. I am instead of the view that VJ was more than capable of making decisions about sex free from any influences that may have resulted from that employment relationship.

Although it is not necessary for the purpose of my ruling to make these findings, I am nonetheless satisfied that there is no evidence to indicate that the complainant was in any manner and at any point exploited during the relationship or in a state of dependency vis-à-vis the accused – a position that the defence mistakenly believed was an essential element of both counts one and two. Instead, because of VJ’s confidence, discipline, and maturity that stretched well beyond her youthful years, and despite the significant age gap between herself and the accused, it was apparent that she was able to quickly establish herself as an equal in a relationship that eventually lasted approximately four and ½ years. The complainant also had a significant degree of autonomy during that time she was with the accused. She mostly lived at home with her parents and siblings, all of whom appeared to love and support her, until she saved enough money to purchase and move into her own house, by herself, when she was just 20 years old.

The two spoke often of getting married, and both participated in online training with the goal of operating the janitorial company jointly as business partners. It was only when VJ was increasingly exposed over the years to the accused’s failings as both a human being and a romantic partner (abusing drugs and alcohol, anxiety, depression, emotional abuse etc.) did she slowly start to withdraw from the relationship until she, of her own free will, abruptly ended both that and her employment with the accused in September 2021.

The Crown argues that the accused abused his position of trust and authority towards the complainant by continuing a secret, intimate and sexual relationship with her while she was an employee. According to the Crown, this is evident by viewing the circumstances as a whole, including certain strongly held beliefs that the accused expressed about: (1) the relationship being an exception to the rule, (2) that in the eyes of God, they were married because the relationship was consummated by sex, and (3) that it was wrong for either of them to deny the other sex. While the accused certainly communicated these beliefs to the complainant, this in no way demonstrates that within the context of the position of trust and authority that he held as VJ’s employer he expressed these beliefs in a manner that may have either directly or subtly influenced her to have sexual relations.

The fact that the accused was VJ’s employer played only a minor incidental role in the development, maintenance, and eventual demise of their romantic relationship. Although only one of many factors within the matrix of all the evidence in respect to this issue, I find that if anything, the accused was a good employer who treated all his employees, including VJ, fairly and without any favouritism. VJ’s rate of pay and hours of work, for instance, appeared to have improved naturally over time and was based, it appears, on merit and her excellent work ethic and nothing more.

Further, at no time did it appear that the accused attempted to abuse or exploit the fact that VJ was, as an employee, financially dependent on him. Considering the dynamics of the relationship, I find insufficient evidence to demonstrate that the accused misused the influence vested in him by virtue of the employer-employee relationship or used personal feelings and confidence engendered by the nature of that working relationship to secure apparent consent from VJ for sexual activities. After considering all the circumstances, and not any specific acts or words spoken, I am convinced that a sexual relationship would have developed between the two in the exact same way as it did had the accused been VJ’s co-worker rather than her boss.

I am also mindful of Doherty J.A.’s comments in Lutoslawski, a case that has similarities to this one. Before ordering a new trial, Doherty J.A. found, at para. 16, that while the Crown’s case was formidable, a conviction would not necessarily have flowed from the trial judge’s factual findings. While a very close call, I am also not entirely convinced, when considering the whole of the circumstances, that the Crown has proven beyond a reasonable doubt that the accused abused his position of trust and authority to induce VJ to have sexual relations in a manner consistent with s. 273.1(2)(c). I do so while bearing in mind the principle set out in R. v. Hutchinson, 2014 SCC 19, [2014] 1 S.C.R. 346, at para. 18:

As the most serious interference by the state with peoples’ lives and liberties, the criminal law should be used with appropriate restraint, to avoid over-criminalization. It draws a line between conduct deserving the harsh sanction of the criminal law, and conduct that is undesirable or unethical but “lacks the reprehensible character of criminal acts”. [Emphasis in original; citations omitted.]

Accordingly, I find the accused not guilty of count two.

Count Three – Sexual Assault

Even though I have rejected the accused’s testimony in all areas that conflict with VJ’s testimony, including evidence that is relevant to count three, I am still left with a reasonable doubt based on her evidence alone. I will explain.

As it relates to the allegation in relation to count three, a reasonable doubt is raised in my mind due to VJ’s failure to disclose this serious sexual assault not only once but in both of her videotaped statements to the police. According to the complainant, she disclosed this incident only at the preliminary hearing when she was cross examined in this area. While VJ testified at trial that she had advised PC Sharrow of the incident, the officer was not called as a witness nor were any records produced to confirm VJ’s evidence on this point.

As the trier of fact, I can accept all, some, or none of a witnesses’ evidence. As it relates to VJ, I accept virtually all her evidence save and except for that part related to the sexual assault that allegedly happened after the IUD procedure. Again, the failure to disclose this significant event until the preliminary hearing coupled with the absence of evidence confirming that she also advised PC Sharrow of this incident raises a reasonable doubt in my mind as to the reliability of the complainant’s version in this one specific area.

As a result, in the absence of other evidence capable of enhancing the quality of VJ’s evidence, her testimony in this area falls just short of establishing a solid foundation for a verdict of guilt.

Accordingly, I find the accused not guilty of count three.

H. Conclusion

After considering all the evidence, I find the accused guilty beyond a reasonable doubt on count one, not guilty on count two, and not guilty on count three in the indictment.

Brian D. Dubé

Released: Orally on February 20, 2025