Court File and Appearances
Court File No.: CR-23-319
Date of Judgment: April 10, 2025
Ontario Superior Court of Justice
Between:
His Majesty the King – and – P.W.
Crown Counsel: Heather Donkers, Rachel Knetsch
Defence Counsel: Laura Ellis, Ron Ellis
Heard: February 3, 4, 5, 2025
Restriction on Publication
By court order made under s. 486.4(1) of the Criminal Code, information that may identify the person described in this judgment as the complainant may not be published, broadcasted, or transmitted in any manner. This judgment complies with this restriction so that it can be published.
Introduction
[1] P.W. stands charged with one count of sexual assault and one count of sexual exploitation of his niece, A.P., contrary to sections 271 and 153(1)(a) of the Criminal Code.
[2] The complainant A.P. testified to eight separate incidents of unwanted sexual activity that occurred with her uncle between 2010 and 2014, when she was between approximately 14 and 18 years of age.
[3] The complainant was the only witness for the Crown. The defence did not call evidence. Jurisdiction and identity are admitted.
[4] There is also no dispute that there was at least one incident of sexual activity between the accused and his niece when she was 17 years old. The accused admits he is the biological father of A.P.’s son P.K., born in July 2014, when A.P. was 18 years old. However, the accused submits the evidence does not demonstrate beyond a reasonable doubt that this sexual intercourse was either nonconsensual or that the nature of their relationship made A.P.’s consent legally inoperative.
[5] This trial began before a jury on a four-count indictment, with a count of sexual exploitation and a count of sexual assault in respect of a second complainant. However, that complainant did not complete her testimony and the Crown invited the court to dismiss those two counts during trial. P.W. then re-elected to complete the trial judge-alone, with the Crown’s consent. The court did not consider any of the limited testimony heard from the other complainant in reaching a decision on the remaining counts.
[6] These reasons explain the verdicts I have reached.
Overview of Evidence
[7] A.P., now 28, was born in 1996 in Mexico and was raised in the Old Colony Mennonite community.
[8] She moved with her parents and four siblings from Mexico to Canada in 2009, when she was about 13 years old. She last attended school when she was 11 years old and still living in Mexico. She was otherwise home schooled by her mother and then additionally by other members of the extended family after they moved to Canada.
[9] The accused is her father’s brother. A.P. first met the accused when her family moved to Canada. She described the accused as the “cool uncle”. He would play games with the children, let them play for money and gave them beer. He bought A.P. the handbook for her driver’s test and helped teach her how to drive. He was involved in home schooling her, her siblings, and cousins. He was someone she trusted and looked up to.
[10] The accused gave her gifts such as her favourite chocolates and cigarettes. He gave her a touchscreen cellphone and told her to tell her parents that friends gave it to her. He told her she deserved it.
[11] A.P. was sexually naive before these alleged incidents involving the accused. She had a basic understanding of her menstrual cycle, but A.P. otherwise received no sex education before the charged conduct began.
[12] A.P. testified there were too many instances of unwanted sexual activity with her uncle for her to remember. However, some stood out in her memory. She related the incidents in the order in which she recalled they occurred.
[13] A.P. recalled that the first time anything of a sexual nature occurred with her uncle was when she was between the ages of 14 and 15 in 2010 or 2011. Her father had just had surgery. Her uncle had come over to the home to help change her father’s bandages. She spoke with her uncle outside the house. He then sent her a text message to say that her breasts looked good in what she was wearing. He sent her another text to apologize for the comment. I am mindful of the risk of moral prejudice and reasoning prejudice arising from this account and only consider this evidence as narrative; to understand the complainant’s testimony of how her relationship with her uncle unfolded and the alleged offences took place.
[14] I now turn to her account of those alleged incidents.
1. The Convenience Store
[15] The first incident of sexual touching happened a month or two after her uncle had sent her the text messages I just described. She was alone at home with her brothers. The accused came to the house and asked her to come with him to the convenience store and said he would buy them some beer. He stopped his vehicle on the side of a dirt road between Watford and Arkona on the way back from the store. He asked her if she appreciated him for getting the beer and then asked her for a kiss. He rubbed his hands on her body over her clothes and moved slowly down to her vagina. He pulled her underwear to the side and inserted his fingers. She asked him what he was doing. He said he was getting his “thank you”.
[16] The accused told her she could not tell anyone, or her family would get in trouble since they were in Canada illegally. She was frightened because she did not want to return to Mexico, where the family had been very poor.
2. Backseat of Accused’s Vehicle
[17] The next incident happened in the summer, a couple of months later, this time in the back seat of her uncle’s vehicle. She thought she was about 15 years old and was certain she was still under the age of 16 because she did not yet have her beginner’s driving permit. She got her beginner’s almost immediately after her sixteenth birthday.
[18] Her uncle picked her from her friend’s house in his vehicle. He pulled into a park and told her to get into the back seat. He opened her dress, lifted her skirt, and penetrated her with his penis. He told her that if she said anything her family would be deported.
3. The Cornfield
[19] She was unsure whether the cornfield incident fell exactly into this order, but recalled it happened in October, when the air was chillier and that she was not yet sixteen years old.
[20] Her siblings and cousins were watching a “chainsaw massacre movie” in a treehouse that the accused had built near the soybean and corn fields at his home. A.P. left the treehouse and walked to the house to use the washroom. P.W. came up behind her in the field and asked her for a “blow job”. She asked what that was. He explained she would put her mouth on his penis. She thought it was a strange request but complied. She testified she did not know what normal was.
[21] He asked if he could touch her, and she said “no”. However, he opened her dress and touched her breasts. He then inserted his fingers inside her vagina and after some time he penetrated her vagina with his penis. The activity started with them standing but they ended up on the ground with her on her back. She remembered the cold ground, the strong smell of her uncle’s “Axe” deodorant and cigarettes and the feeling of the bugs from the corn crop crawling onto her arms and biting her.
4. The Sandpit
[22] A.P. and her family were at the accused’s one night for a barbecue dinner. She recalled she was now 16 years old because this happened after she obtained her beginner’s licence. Everyone had been drinking alcohol and so stayed the night at her uncle and aunt’s place. She testified that she had “passed out” and woke up to the accused leading her outside the house to an area behind a sandpit in the backyard. She remembered him getting on top of her and vaginally penetrating her with his penis. She could not remember if he asked her for consent, but she did not want to have sex.
[23] She could not remember how she got back to bed. She said she did not drink as much again after this incident because she did not want the sexual activity with her uncle to happen again.
5. Behind the Tree
[24] A.P. explained she was not sure if this incident happened before or after the “sandpit” incident I have just related, but she recalled it happened when she was 16 years old. It happened at her family home before they moved to another house.
[25] She was home with her brother while their parents were away. Her uncle came over with beer. The group of them built a fire in the backyard. When she was alone by the fire with her uncle, he touched her breasts over her clothes and kissed her neck. He asked her to go behind a tree with him. She said “no”, but they ended up behind the tree. She thought he pushed her there. She hoped her brother would come back outside. The accused lifted her skirt, pulled her underwear to the side, and penetrated her with his penis. She thought he asked if he they could have intercourse and she said “no”, but he went ahead.
6. Her Bedroom
[26] The next incident she could recall happened on her bedroom floor, also when she was 16 years old. Her family had just moved out of the house. She was there with one of her brothers to finish cleaning the house.
[27] The accused then stopped at the house. Her brother wanted to leave. The accused said he would take A.P. home once she was finished cleaning. The accused came upstairs while she was cleaning. He asked if they wanted to have one “last fun” in her bedroom. She did not remember whether she said “no”, but she did not want the activity. They engaged in sexual intercourse on her bedroom floor.
[28] When he took her home, the accused told her to keep her mouth shut. If she said anything he would say it was her father who was touching her. This made her afraid and she worried her father would go to prison or that their family would be deported to Mexico.
7. When Aunt Had Surgery
[29] When she was 17 years old, A.P. was instructed to help at the accused’s house while her aunt had surgery. She was expected to care for the children and do the cooking and cleaning while her aunt recovered. She was reluctant to go because she was afraid her uncle would make sexual advances on her. However, she could not tell her parents why she did not want to help her relatives.
[30] One day her uncle returned to the house while her aunt was at a medical appointment. A.P. was in the kitchen. He asked her if she wanted to go in the backroom. She refused at first, but he repeated his request, and he eventually told her that if she did not come to the backroom, he would hurt her. She understood this to mean that he would beat her or something worse. A.P. testified that her uncle had an “anger”, and she did not want to disappoint him. She had hoped the abuse would stop but she “gave up” on having a normal life. She agreed to go with him into one of the bedrooms. They engaged in sexual intercourse. He initially used a condom, but he said it did not feel good and took it off.
[31] She believed that this incident caused her pregnancy. She delayed taking a pregnancy test for a few months out of fear. She did not tell her parents until the pregnancy was advanced. When she told the accused, he claimed he was not responsible because he had a vasectomy.
[32] She eventually told her parents that the father of the child was someone she had met at a party. She was afraid to tell the truth because of the judgment she would face in her community. She explained that in the community, such occurrences are always the woman’s fault. If you get pregnant, you are expected to deal with it. She did not want the community to hate her child.
8. Anal Intercourse
[33] A.P. testified that the last incident of charged conduct occurred in July or August 2014, when her son was about two and a half weeks old. The accused and his family were at her family’s home. A group of family members started out for a walk to the back of the property. She turned around to return to the house. She accepted the accused’s offer to take her back on his four-wheeler. He then asked her for sexual intercourse. She refused as she was still recovering from childbirth. He suggested anal intercourse. She initially refused because she thought it would really hurt. He suggested they could try, and he would stop if she said it hurt. She immediately felt pain on the anal penetration, and she asked him to stop. He did not. She remembered the sensation of the ground beneath her fingers during the act and she thought she would pass out from the pain.
[34] She continued to engage in sexual activity with the accused after their son was born, although she could not recall how many times or when the sexual contact ended. She described this as “casual sex”. She explained she was in a mindset for a time where she thought she needed to make a relationship with her uncle work because she had had his child. They had even discussed on occasion before she got pregnant that he would leave her aunt for her.
[35] A.P. testified that these experiences with her uncle made her feel crazy. She had given up on having a normal life and did not resist his advances. She had a relationship with a boy her age during part of the time of this abuse, and her boyfriend never forced her into unwanted sexual activity. That experience made her question what was happening with her uncle. But she did not tell anyone at the time because of fear of deportation and having to return to Mexico, where her family had lived in extreme poverty.
Disclosure
[36] The complainant married in 2018. In 2020 she confided in her husband about the relationship with her uncle after she became emotionally unwell and suicidal. Her husband guided her to tell her parents. A.P. then told her aunt because she thought her aunt had the right to know.
[37] The accused has been paying child support since in or about 2020 or 2021. Her husband assisted in arranging for the support as she did not want to have anything to do with her uncle. He does not have a relationship with the child beyond paying support.
[38] She was reluctant to report the incidents to police. She was afraid of her community’s judgment. They do not take people to court or else you get shunned. She testified that she is no longer a member of the community.
Positions of the Parties
Crown Position
[39] The Crown submits the evidence establishes the accused’s guilt on both counts beyond a reasonable doubt. A.P. provided uncontroverted testimony about the multiple assaults in a forthright and compelling manner. Her admitted pregnancy by the accused is powerful corroboration of her testimony and proves there was sexual activity with her uncle when she was 17 years old. Her testimony that the sexual activity started before she turned 17 was unchallenged. The inconsistencies in her testimony are minor and should not trouble the court where she suffered the abuse over many years as a young person.
[40] The Crown submits that the accused’s guilt on the offences of sexual exploitation and sexual assault is established through several routes that arise from the evidence of the circumstances of these eight incidents.
[41] First, she was not legally capable of consenting to those acts that occurred before she was 16 years old, such that the offence of sexual assault is established beyond a reasonable doubt. Second, the Crown urges the accused was in a position of trust or authority towards A.P. for those acts that occurred when A.P. was between 16 years old and under 18 years old, such that the offence of sexual exploitation is established beyond a reasonable doubt. Third, the Crown further submits that the accused abused his position of trust or authority to induce the complainant to engage in the sexual activity that occurred after she was 16 years old, such that there was no consent in law. Fourth, the Crown argues at least one incident involved the complainant’s submission to the activity because of the accused’s threats or fear of the application of force to the complainant such that again, no consent was obtained. Finally, the Crown submits that the last incident of charged conduct alternatively arose from the complainant’s express lack of consent, which her uncle ignored.
Defence Position
[42] The accused submits the court cannot safely rely upon the complainant’s credibility and the reliability of her testimony to establish his guilt beyond a reasonable doubt. A.P. could not keep her story straight. She was careless with her evidence and her failures in memory are inconsistent and troubling. For example, she could give very detailed accounts of some incidents but with others she could not even recall if she gave the accused oral sex. She gave starkly different and irreconcilable descriptions of the same incident in her police statements, such as telling police on one occasion that the accused put his hand over her mouth and forced her into the bedroom, whereas she later stated he had asked for sex, and she ignored him. The complainant also revealed that she had engaged in some research on criminal procedure, suggesting that she was thinking about how to prove her allegations.
[43] While the accused and A.P. engaged in sexual intercourse when she was 17 years old, the accused submits there is no credible evidence he was in a position of trust or authority towards her such that the law deems there to be no consent. His role as her uncle is not enough to establish that quality of the relationship. There was, in fact, no power imbalance. The complainant’s description of some of the sexual acts, such as saying “we ended up having sex” shows that she engaged in the sexual relationship voluntarily and that she was in a position to decide whether or not they would engage in sexual activity.
The Law
[44] The accused is presumed innocent of each offence unless and until the Crown establishes his guilt beyond a reasonable doubt on each count. This is a heavy burden on the Crown that never shifts.
[45] 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.
[46] When assessing credibility, I must examine both the internal consistency of a witnesses’ evidence as well as consistency of that evidence with other evidence.
[47] 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.
[48] An honest witness may still be unreliable or have an imperfect or inaccurate recall of events.
[49] 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. Credibility speaks to veracity and truth-telling while reliability speaks to accuracy and trustworthiness.
[50] Where an adult is testifying as to events which occurred when she was a child, her credibility should be assessed according to criteria applicable to her as an adult witness. However, the presence of inconsistencies in her evidence pertaining to events that occurred in childhood, 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: R. v. W. (R.), [1992] 2 S.C.R. 122.
[51] 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. There is no inviolable rule on how people who are the victims of trauma like a sexual assault will behave. A delay in disclosure, standing alone, will never give rise to an adverse inference against the credibility of the complainant. The timing of the complaint is simply one circumstance to consider in the factual mosaic of a particular case.
[52] 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.
Sexual Assault
[53] The offence of sexual assault requires proof of the following four elements:
a. That P.W. intentionally touched A.P.;
b. That P.W. intentionally touched A.P. in circumstances of a sexual nature;
c. That A.P. did not consent to the sexual touching by P.W.; and
d. That P.W. knew that A.P. did not consent to the sexual touching.
[54] Consent refers to the voluntary agreement of the complainant to engage in the sexual activity in question: s. 273.1(1). Consent must be present at the time the sexual activity in question takes place: s. 273.1(1.1). The absence of consent is reflected by whether the complainant, in her own mind, wanted the sexual activity in question to occur.
[55] There must be evidence of consent through either clear words or conduct from the person being touched. Consent must be freely given. 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. Consent may be revoked or withdrawn at any time: R. v. Ewanchuk, [1999] 1 S.C.R. 330; R. v. J.A., 2011 SCC 28; R. v. Barton, 2019 SCC 33.
[56] A complainant under the age of 16 cannot consent to sexual activity: s. 150.1.
[57] There is no consent if the complainant submits or does not resist by reason of threats or fear of the application of force to the complainant: s. 265(3)(b).
[58] The Criminal Code also provides that there is no consent at law if the accused induces the complainant to engage in the activity by abusing a position of trust, power, or authority: s. 273.1(2)(c). This provision addresses the kinds of relationships in which an apparent consent between the accused and complainant is rendered illusory by the dynamics of the relationship between the accused and complainant, and the accused’s misuse of the influence vested in the accused by virtue of the relationship. The use of the term “induces” introduces a more subtle form of pressure that can be inferred from the circumstances of the exercise of the power or authority. An individual who is in a position of trust over another may use the personal feelings and confidence engendered by that relationship to secure apparent consent to sexual activity: R. v. Lutoslawski, 2010 ONCA 207, paras. 12-13.
Sexual Exploitation
[59] The offence of sexual exploitation requires that proof of the following four elements be present:
a. That A.P. was a “young person”;
b. That P.W. intentionally touched A.P.;
c. That the intentional touching was for a sexual purpose; and
d. That P.W. was in a position of trust or authority towards A.P.
[60] A “young person” is 16 years old or more but is less than 18 years old: s. 153(2).
[61] The young person’s apparent “consent” to the sexual touching is not a defence to the offence of sexual exploitation: s. 150.1(1). This offence makes it clear that a person in a position of trust or authority towards a young person is not to engage in sexual activity with that person, even where there is apparent consent. The purpose of this offence is to protect a vulnerable young person because of the imbalance in their relationship with the accused: R. v. Audet, [1996] 2 S.C.R. 171, para. 25; R. v. Aird, 2013 ONCA 447, para. 27. It is therefore not necessary to show that the accused actually abused or exploited his special position towards the young person to establish the offence of sexual exploitation. However, as noted by the Supreme Court of Canada, in most if not all cases in which the evidence shows that an accused in a position or relationship that comes within the offence of sexual exploitation actually abused his position in relation to the complainant to obtain the sexual favours, the accused will at least have also committed a sexual assault, since sections 265(3)(d) and 273.1(2)(c) of the Code provide there is no consent in such a situation: Audet, at para. 22.
[62] Relationships of trust can arise in varied circumstances. Factors relevant to whether a relationship of trust exists include the age difference between the accused and the young person, the evolution of their relationship, the status of the accused in relation to the young person and the degree of control, influence or persuasiveness exercised by the accused over the young person: Aird, at paras. 28-29.
[63] A relationship of authority is a related but distinct concept from trust. A relationship of authority invokes notions of power and the ability to hold in one’s hands the future or destiny of the person who is the object of the exercise of authority: Aird at para. 34. Authority has been defined as “the right to command”, a “power or right to enforce obedience”, a “power to influence the conduct and actions of others,” and “superiority of merit or seductiveness that compels unconstrained obedience, respect and trust.” It is not restricted to cases in which the relationship of the authority stems from the accused’s role but extends to any relationship in which the accused actually exercises such a power: Audet at para. 34.
Assessment
[64] A.P. testified at some length about several unwanted sexual acts that occurred over 10 to 15 years earlier. I carefully watched and listened to her evidence.
[65] Her lack of formal education was evident in her manner of expression and choice of words. Nevertheless, she presented as very serious, responsive, and careful in her testimony. She was fair in acknowledging what she could not recall and thoughtful in providing her best estimates of the years in which the incidents happened in relation to her memory of what age she would have been. She logically organized her memory of the events into those that occurred before she got her driver’s licence or beginner’s permit when she turned 16, and those events that occurred afterward. Her sensory descriptions of her memories of the temperature of the air, the smell of her uncle, and being bitten by insects while laying on the ground were convincing and compelling.
[66] She was emotional at times when challenged on her truthfulness. It was clearly difficult for her to relate the details of the encounters to the court. She maintained the accuracy of her testimony under skillful cross-examination and was even shown to be correct in her recollection when her earlier police statement was reviewed on a point of contention.
[67] Cross-examination nevertheless did identify inconsistencies in her evidence. Having considered the nature of the discrepancies, I am satisfied that these issues do not undermine the integrity of her core allegations. I shall now review a few examples.
[68] In an earlier statement, A.P. testified that her uncle “never asked” her for permission before he sexually touched her. However, when she was asked at trial if her uncle asked for permission with respect to specific instances of sexual activity, she answered variously in respect of the several incidents that she could not remember if he asked, or that he did not ask, or that he did ask, and she refused. She fairly acknowledged the contrast of this testimony with her earlier statement. She explained that she was first referring to the five or six times of unwanted sexual activity that she recounted to police, and for which he did not ask permission. When pressed further, she explained there were many instances of sexual activity with her uncle that she still had not spoken of. I accept her explanation as reasonable in the context of activities that occurred several years ago, over a four-to-five-year period. Moreover, reviewed in context, her earlier statement that he “never asked” was clearly a generalized comment, whereas her trial testimony as to what she could or could not remember about being asked for permission was in response to very specific questions about very specific acts during each of the encounters in issue.
[69] In her testimony about the assault at her uncle’s house, she claimed that she first refused his repeated requests to go into a back bedroom with him but that he then threatened he would hurt her. However, when she referred to this incident in an earlier police statement, she explained that he asked her if she wanted to have sex and she just responded “ok”. In a further account of the incident to police she also referred to him placing his hand over her mouth.
[70] She acknowledged these differences on cross-examination. She explained that her different descriptions of that incident in the two statements were because she did not know why she had to repeat the account. She also explained that her statements and testimony were all true, that they were part of the same event and that the one statement did not tell the whole story.
[71] I have carefully considered these apparent discrepancies. While each description on its own raises an inconsistency, I accept that all her descriptions about this incident can be true. She explained several times in her testimony that she “gave up” trying to avoid sexual contact with her uncle and would not resist his advances.
[72] The complainant testified that she engaged in casual sexual intercourse with her uncle for a time after she had the baby. However, in cross-examination, she was confronted with the fact that she told police that the “last time” she had sex with her uncle was at his house when her aunt was away. A.P. explained that her use of the words “last time” was her reference to the fact that this was the last sexual encounter they had before she found out she was pregnant. She believed it was this encounter that caused her pregnancy.
[73] Having carefully listened to her manner of expression throughout her testimony, I accept her explanation and do not find this to be a material inconsistency.
[74] She also explained that the acts that she described as “casual sex” that occurred after her pregnancy was because of her belief at the time that she was now in a relationship of some kind with her uncle because she had had his child. She was steadfast in her denial that she actively wanted to pursue marriage or a permanent relationship with her uncle. I accept that her submissive conduct is not evidence of her independent and voluntary decision to continue a relationship with her uncle. I do not find that this raises a concern about a motive to fabricate these allegations.
[75] Accordingly, I find A.P. to be a credible and reliable witness. I would not expect her to have a perfect and detailed recall of these incidents. They happened between 10 and 15 years ago, when she was a young person. I would expect her perception of events to be affected by her naivete and youthfulness and her recollection of details to be affected by the passage of time. She withstood cross-examination and her core allegations remain intact.
[76] I accept and find that each of the eight incidents testified to by A.P. are proven beyond a reasonable doubt. I will now explain my findings in respect of each incident.
Findings on Each Incident
1. The Convenience Store
[77] I am satisfied the Crown has proven that the accused sexually assaulted A.P. in his truck in 2010 or 2011 when A.P. was between 14 and 15 years old, contrary to s. 271 of the Code. Her description of her uncle touching her body, involving digital vaginal penetration as a “thank you” for him buying her beer, was intentionally done in circumstances of an objectively sexual nature. As she was not yet 16 years old, consent is not relevant to this assessment and is not a defence.
2. Backseat of Accused’s Vehicle
[78] This incident involved vaginal sexual intercourse in the back seat of the accused’s vehicle a couple of months after the first assault. I am satisfied the Crown has proven that the accused sexually assaulted A.P. contrary to s. 271 of the Code. As she was not yet 16 years old, consent is not relevant to this determination and is not a defence.
3. The Cornfield
[79] This incident involved the accused asking the complainant to perform fellatio, followed by digital vaginal penetration, touching of her breasts and vaginal sexual intercourse. She was almost 16 years old, by her account. She could not recall her answer to her uncle’s request for fellatio, but testified she said “no” to his opening of her dress and touching of her body. I am satisfied the Crown has proven sexual assault contrary to s. 271 of the Code. While she recalled she was close to age 16, she was still not of the minimal age requirement for consent to even be considered. Again, the issue of her consent or lack thereof is not relevant to this determination and is not a defence.
[80] In any event, I find that the issue of consent does not even arise on the evidence of these first three encounters. While she could not remember if she said yes or no to performing oral sex on her uncle, her account of all three of these incidents establishes that she either submitted to or did not resist his touching and direction. Setting her age aside, this is not the conduct of a consenting participant to sexual activity.
4. The Sandpit
[81] This incident occurred when the complainant and her family had stayed the night at her uncle’s place. She was 16 as she recalled she had gotten her beginner’s licence. She consumed alcohol and, in her words, “passed out”. Her uncle woke her up and took her into the backyard, where they engaged in vaginal sexual intercourse.
[82] I am satisfied the Crown has proven both the offences of sexual assault and sexual exploitation in respect of this incident. The sexual nature of the touching or activity is established for both offences.
[83] Her age of 16 qualifies her as a “young person” in respect of the offence of sexual exploitation.
[84] I also find that the accused was in a position of trust or authority towards the complainant at the time of this offence. I arrive at this conclusion on more than his status as her “uncle”, although his familial relationship to her remains as one relevant factor in this assessment. She first came to know him when she arrived in Canada from Mexico. She was in a country new to her. She was young, naïve, and isolated in the community in which she and her family lived and in which she was home schooled. He was 17 years her senior and as her uncle, had some status in her life as an authority or caregiver, as illustrated in his roles in home schooling her and her siblings and cousins, picking her up in his vehicle from a friend’s house. He would have been a responsible adult in her world at the time. He further enjoyed elevated and influential status in her life as the “fun” uncle, who would play games and allow her to drink beer and smoke cigarettes. The accused was able to exploit his powerful role and engender her trust and loyalty through grooming behaviours such as leaving her with gifts of chocolate and cigarettes and a cellphone. Her vulnerability and the power imbalance are further exemplified by the threats he used to ensure her silence from the time of the first incident, with the fear that disclosure would risk deportation to Mexico. Her vulnerability, naivete, and isolation is exemplified by her statement that at the time she had no idea what “normal” was for a relationship. It was only later, when she had an intimate relationship with a young man her age that she was able to question what was happening with her uncle.
[85] This satisfies the essential elements for the offence of sexual exploitation.
[86] To the extent there is evidence that suggests the complainant consented to the sexual activity such that it would not be a sexual assault, I find that there can be no consent at law pursuant to s. 273.1(c). I am also mindful of her evidence that she had been consuming alcohol and, in her words, had “passed out” before the incident. However, this evidence did not rise to a suggestion that she lacked an operating mind at the time of the sexual activity due to intoxication. This was also not raised in argument. In any event, I find that there was no consent because the accused used his position of trust and authority to induce her to engage in the sexual activity. It was his ongoing position of power and influence over her, as I have just summarized, that enabled him to direct her into his backyard and to use her for his own sexual gratification.
5. Behind the Tree
[87] The complainant testified this incident started at a bonfire at her family home and ended behind a tree, where they engaged in sexual intercourse. She thought he might have pushed her behind the tree. She thought he asked to have intercourse and that she said “no” but that he went ahead with the act anyway. By her evidence, she would have been 16 or older but less than 18.
[88] I am satisfied this evidence establishes both the offences of sexual assault and sexual exploitation beyond a reasonable doubt. The circumstances of the relationship of trust and authority and the complainant’s naivete and vulnerability as I have summarized continued in the context of this incident, such that the act was one of sexual exploitation.
[89] The complainant testified that she expressly refused the sexual activity on this occasion but that her uncle proceeded. This communication of no consent would establish sexual assault. However, to the extent there would be doubt as to whether she expressed consent or a lack of consent on this occasion, such as whether her uncle physically pushed her to behind the tree, I find her participation in the sexual activity was ultimately induced through the accused’s abuse of his position of trust and authority towards the complainant. I rely on my earlier analysis of how this relationship of trust and authority enabled him to prey on her vulnerability and induce her participation. In my view, those conditions continued in this event.
6. Her Bedroom
[90] The complainant testified to engaging in sexual intercourse with the accused on her bedroom floor after he asked if they wanted to have one “last fun” in the bedroom. I also accept her recollection that she would have been 16 at the time.
[91] I am satisfied the Crown has proven both the offences of sexual assault and sexual exploitation in respect of this incident.
[92] Again, the intentional sexual purpose of the activity is evident from the complainant’s description of the act of sexual intercourse.
[93] For the reasons I have just explained, I am satisfied this sexual activity took place while the accused was in a position of trust or authority towards his niece. The effects of their dysfunctional relationship would have continued to operate in the mind of the complainant, who remained vulnerable and confused at this time.
[94] Similarly, for the reasons I have also just explained, I am also satisfied that he used his position of trust or authority to induce her participation in the sexual activity such that there can be no consent at law. The power imbalance enabled him to seek opportunities to engage in sexual encounters with her at his bidding, such as coming to the house when she was alone.
7. When Aunt Had Surgery
[95] The complainant testified this incident happened when she was 17 years old and had been staying at her uncle’s home to help with cooking and care of the children while her aunt had surgery.
[96] I find that this incident also establishes the offences of sexual exploitation and sexual assault beyond a reasonable doubt.
[97] I rely on my earlier findings of the nature of the relationship of trust and authority towards A.P. to establish the offence of sexual exploitation.
[98] Her evidence about this incident suggests she did not consent or that her participation was induced through threats or also through his abuse of his position of trust and authority. It is entirely possible that all three conditions could have been present. However, I am satisfied that sexual assault is established through inducing her participation by an abuse of a position of trust and authority. She was alone in his house and submitted to his direction. He continued his use of the power imbalance in their relationship to procure her submission for his sexual gratification. She testified she had tried to avoid being sent to her uncle’s house to help because she was afraid this would happen. I find that she was in an ongoing situation of helplessness perpetrated by the accused. By this time, she had resigned herself to not having a normal life and she submitted to his control.
8. Anal Intercourse
[99] This incident of anal intercourse occurred when the complainant was 18, shortly after their child was born in the summer 2014.
[100] I find that her evidence establishes the offence of sexual assault beyond a reasonable doubt. He induced her agreement to attempt anal intercourse with the promise they would stop if she found it too painful. She found it too painful and asked him to stop. He did not. The continued sexual act despite her express withdrawal of consent establishes the offence of sexual assault. Moreover, I am satisfied that there would be no consent at law as this encounter was again induced through his abuse of his position of trust and authority. The conditions of their power imbalance continued. She was particularly vulnerable as she had just given birth to their baby as a young single parent and where no one in her community knew who the father was at the time. She testified to her mindset or belief at the time that she would have to have a relationship with him because he was the father.
Conclusion
[101] In summary, I have found the complainant credible and reliable in her testimony of all eight instances of unwanted sexual activity. The first, second, third and eighth incidents establish the offence of sexual assault. The fourth, fifth, sixth and seventh incidents establish the offences of sexual assault and sexual exploitation.
[102] The Crown has therefore established the accused’s guilt beyond a reasonable doubt on count 1 and count 2 of the indictment.
Justice Katherine Tranquilli
NOTE: As noted in court, on the record, this decision in writing is to be considered the official version of the Reasons for Judgment and takes precedence over the oral Reasons read into the record.
Released: April 10, 2025
R. v. P.W., 2025 ONSC 2141
ONTARIO SUPERIOR COURT OF JUSTICE HIS MAJESTY THE KING – and – P.W. REASONS FOR JUDGMENT Justice K. Tranquilli
Released: April 10, 2025