R. v. King, 2012 ABQB 57

Court of Queen ’ s Bench of Alberta Citation: R. v. King, 2012 ABQB 57 Date: 20120124 Docket: 100039510Q1 Registry: Edmonton Between: Her Majesty the Queen - and - Vernon Anthony King Accused Restriction on Publication: By Court Order, information that may identify the person described in this judgment as MSL may not be published, broadcast, or transmitted in any manner. There is also a ban on publishing the contents of the application for the publication ban or the evidence, information or submissions at the hearing of the application.

See the Criminal Code , s. 486.4 _______________________________________________________ Reasons for Judgment of the Honourable Mr. Justice Brian R. Burrows _______________________________________________________

[ 1 ] The indictment charges Vernon Anthony King with five offences against MSL : 1. Sexual assault contrary to s. 271 of the Criminal Code between July 1, 2008 and May 30, 2009. 2. Sexual touching contrary to s. 151 of the Criminal Code between July 1 and December 1, 2008. 3. Invitation to sexual touching contrary to s. 152 of the Criminal Code between July 1 and December 1, 2008. 4. Sexual exploitation by sexual touching contrary to s. 153(1) (

a) of the Criminal Code between December 1, 2008 and May 30, 2009. 5. Sexual exploitation by invitation to sexual touching contrary to s. 153(1) (

b) of the Criminal Code between December 1, 2008 and May 30, 2009. Video Statement of the Complainant [ 2 ] MSL gave a sworn videotaped statement to police on September 1, 2009. In her testimony at trial she adopted the content of that statement. The video statement was admitted into evidence pursuant to s. 715.1 of the Criminal Code . [ 3 ] In the video statement MSL said that she met Mr. King on June 30, 2009 in the home of neighbours in the same residential complex in which her family lived. She thought he was really nice.

He was involved in the Seventh Day Adventist Church and said he would take her to church. He said he had been a youth worker in Toronto before coming to Edmonton. He came to her house in the same complex that same day and they played dominos on the porch. [ 4 ] At the time Mr. King was living with a relative in the same complex. MSL saw him frequently over the course of the following two weeks. On July 2 he got a job in construction and rented his own apartment. He moved into the apartment in mid July.

MSL helped him move. [ 5 ] It was while she was helping him move into his new apartment that the first sexual encounter between Mr. King and MSL occurred. They were rough housing with each other in his bedroom and the activity progressed into a sexual encounter in which both removed their clothing and he inserted his penis in her vagina. She did not object. [ 6 ] At the time she was 15 and he was 43. She said Mr. King was aware that she was 15 because she told him. [ 7 ] Their sexual relationship started in mid July 2008 and continued until late March or early April 2009.

During that time they had sex frequently - as often as 3 or 4 times a week. He always wore a condom. She was using birth control pills. [ 8 ] She stated in her video statement that shortly after she met him she heard him tell her mother that he was going to marry her, MSL , when she turned 18. She believed her mother did not take this seriously. MSL herself, however, appears to have taken it somewhat seriously because in her video statement she said that because he said he was going to marry her, having sex with him was not a “ big deal ” . [ 9 ] She stated in her video statement that Mr.

King took her to church at the beginning of the relationship but as time progressed he became unwilling to be seen with her. He would not let her ride in the front seat of his car. He did not take her to church anymore.

As I understood her statement, he stopped taking her to church prior to December 2008. [ 10 ] In November 2008, Mr. King rented the basement suite in the house where MSL ’ s family rented the main floor. For a time before the basement suite was ready for him, he lived in their part of the house. [ 11 ] In the video statement MSL said that when she was having her period, they would have oral sex. That is she would perform fellatio. She described the first time this happened, which was when she was 15. She said he wanted sex. She told him she was having her period. He said he could really use a “ blow job ” .

So she gave him one. [ 12 ] In the video statement she was not asked and did not say whether there had been any incidents of fellatio when she was 16. [ 13 ] MSL turned 16 on December 1, 2008. [ 14 ] In her video statement MSL described the last sexual encounter she had with Mr. King. They had stopped having sex. She however continued to visit him in his basement suite. One day when her mother was calling her upstairs, he asked for a parting hug. When she went to give him a hug he started grabbing at her crotch. Then he pushed her on the bed and tried to kiss her.

She turned her face away and put her hands on his face and tried to push him off. Her mom continued to call. He said she would have to come back. She did go back the next day and when she went into his suite he pulled her pants down, bent her over and had sex with her. The interviewer asked if she told him “ no ” when he pulled her pants down. She answered, “ Uh I I was trying to push him off didn ’ t I didn ’ t want to wake up the household. ” The interviewer asked, “ Okay so you didn ’ t yell or anything? ” She answered by a gesture which I understand to mean that she agreed that she did not yell or anything.

Evidence of MSL [ 15 ] In her testimony at trial MSL stated that the contents of her video statement were true. [ 16 ] She testified that there had been an incident prior to the first sexual encounter which she described in the video statement when Mr. King had attempted twice on the same day and both times unsuccessfully to have sex with her in her house.

As I understood her evidence the lack of success related to unspecified mechanical difficulties as opposed to a lack of willingness on the part of MSL [ 17 ] MSL testified that she stopped having sex with him in March or April 2009 because he was becoming aggressive. Further, he had promised he would marry her and she had stopped believing that he truly intended to do so. She said that in March or April 2009 the relationship ended because she told him it was over. She did not say she would not have sex with him anymore. Thereafter she tried to maintain a friendship with him because they lived in the same house.

She continued to visit him in his suite. In mid May that ended as well. [ 18 ] She testified that when she first met him he said he was a youth pastor who would take her to church. She understood a youth pastor to be someone who teaches teenagers about church in a more “ kid-friendly ” way, in a way they can more easily relate to. She saw him as an older person that she could respect because he was a person of the church.

They went to church every Saturday until November 2008 when their church attendance stopped. [ 19 ] By the time of their first sexual intercourse, though they were still going to church, she viewed him as more of an equal. When they went to church she wasn ’ t learning anything from him. She understood he was not really a youth pastor. At church he sat and watched the service. He did not have any involvement with the youth of the community. His sole involvement was to take MSL and occasionally one or two or her siblings to church. [ 20 ] She testified that at the beginning of the relationship she saw Mr.

King as someone she could look up to as a male figure.

[ 21 ] Her testimony at trial regarding the incidents of oral sex did not elaborate on her video statement on that subject. During the submissions of counsel I asked whether she had testified that incidents of oral sex occurred after her 16 th birthday. Ms. Green believed that she had testified to that effect. I have checked my notes and listened to the audio recording of her evidence and I could not find any reference in MSL ’ s evidence to oral sex having occurred after she was 16. Her evidence is silent on that point. [ 22 ] In her trial testimony as to the last sexual encounter with Mr.

King, she testified that when he pulled down her pants and bent her over she said, “ No ” . In cross examination she testified that she said, “ No ” and “ Stop ” when he bent her over. She did not want to have sex with him on that occasion, did not give him permission to have sex with her and felt invaded by him. Evidence of SSL [ 23 ] SSL is MSL ’ s mother. She testified that she met Mr. King at about the same time MSL did, if not on exactly the same occasion. In their first brief conversation she learned that Mr.

King was involved in the Seventh Day Adventist Church which was of interest to her because she had been brought up in that church and was familiar with its discipline. In the days following their initial meeting Mr. King started asking about taking her children to church. He said he was a youth pastor and wanted to take her children to church. She thought this would be positive and beneficial for her children and agreed. [ 24 ] She testified that MSL was born December 1, 1992 and was therefore 15 in July 2008. From near the time they met, Mr. King was aware of MSL ’ s age.

SSL, herself, had told him MSL was 15. [ 25 ] She believed that Mr. King became a mentor to her daughter, MSL . She testified that his role was similar to the role of a “ big brother ” in the Big Brothers Big Sisters Society. [ 26 ] On one occasion she allowed MSL to stay over at Mr. King ’ s apartment when they had been at a church youth function on Friday evening and were going to church on Saturday. She understood Mr. King ’ s apartment had a spare bedroom. [ 27 ] She testified that she continued to trust Mr. King until June 2009 when MSL told her of their sexual activity.

She was not asked whether she was aware that Mr. King stopped taking MSL to church in November 2008. Her evidence was entirely silent on that subject. [ 28 ] She testified that MSL informed her in June 2009 that she and Mr. King had been having sex. She spoke to Mr. King about this information and in the course of their discussion he admitted to her that he had had sexual intercourse with MSL. Theory of the Crown [ 29 ] The Crown submits that Mr. King is guilty of sexual assault charged in Count 1 on either of two theories. First, the Crown says all of the consensual sexual intercourse which occurred between Mr.

King and MSL between mid July 2008 and December 1, 2008 constitutes sexual assault because MSL was 15 years old at the time and, therefore, her consent was legally ineffective. Her consent does not give Mr. King a defence. [ 30 ] The Crown also submits, by way of a second additional theory, that after MSL was 16, on the last occasion on which they had sexual relations, MSL did not consent. In forcing MSL to have sex against her will, Mr. King committed sexual assault on that occasion. [ 31 ] The Crown ’ s theory as to Count 2, sexual touching contrary to s. 151 , is that when MSL was 15 Mr.

King touched her sexually with his body and thereby committed that offence.

[ 32 ] The Crown ’ s theory as to Count 3, invitation to sexual touching contrary to s. 152, is that Mr. King invited MSL when she was 15 to touch him sexually when he asked her to perform fellatio on him when she had her period and thereby committed that offence. [ 33 ] The Crown ’ s theory as to Count 4, sexual exploitation by sexual touching contrary to s. 153(1)(a), is that when MSL was 16 and therefore a young person within the meaning of s. 153(2), Mr.

King, who was in a position of trust toward her, touched her sexually with his body and thereby committed that offence. [ 34 ] The Crown ’ s theory as to Count 5, sexual exploitation by invitation to sexual touching contrary to s. 153(1)(b), is that when MSL was 16 and therefore a young person within the meaning of s. 153(2), Mr. King, who was in a position of trust toward her, invited her to touch him sexually by asking her to perform fellatio on him when she had her period. Count 1 - Sexual Assault - s. 271 [ 35 ] I believe MSL ’ s evidence that Mr.

King had sexual intercourse with her many times between mid July 2008 and at least the end of March 2009. The evidence establishes that from July 2008 to December 1, 2008, a period when many instances of sexual intercourse occurred between Mr. King and MSL, MSL was 15 years old. [ 36 ] By operation of s. 150.1(1) of the Criminal Code , as MSL was under 15 years of age at the time of the sexual intercourse Mr.

King had with her prior to December 1, 2008, it is not a defence that she consented to the sexual intercourse. [ 37 ] The Crown has proved all the elements of sexual assault contrary to s. 271 of the Criminal Code beyond a reasonable doubt. [ 38 ] Mr. King, I find you guilty of Count 1 of the indictment. [ 39 ] Having made that finding, it is not necessary for me to consider

Part 2 of the Crown ’ s theory in relation to Count 1. [ 40 ] However, it could conceivably be helpful in the context of sentencing for me to have made a finding regarding

Part 2 of the Crown ’ s theory. I am not satisfied that the Crown has proved beyond a reasonable doubt that Mr. King forced MSL to have sex against her will on the occasion she testified was their last sexual encounter. I found MSL ’ s evidence concerning that incident to be equivocal. In her video statement she stated that when he made a sexual advance on that occasion she had attempted to push him off because she did not want to wake up the household. She did not mention having said “ No ” or “ Stop ” . She added those significant details at trial 2 ½ years later.

She testified that before that incident she had told Mr. King that she had broken up with him and their sexual relations ended. It was not clear, however, if there was any significant or even perceptible interval between what she considered the last occasion of consensual sex and the last sexual encounter. I have a reasonable doubt as to whether there truly was anything in the circumstances that ought to have caused Mr.

King to realize that she was not as much consenting to the sexual relations on the last occasion as she had consented on all the previous occasions, if indeed she was not consenting on the last occasion, about which I also have a reasonable doubt. In my view the Crown has not proved beyond a reasonable doubt that any non-consensual sexual encounter occurred between Mr. King and MSL. Count 2 - Sexual Touching - s. 151 [ 41 ] The findings of fact I have made above also constitute the elements of the offence charged in Count 2 of the indictment. The evidence establishes that Mr.

King, for a sexual purpose, touched MSL with a part of his body and at the time she was under the age of 16. The Crown has proved Count 2 beyond a reasonable doubt. [ 42 ] Mr. King, I find you guilty of Count 2 of the indictment.

Count 3 - Invitation to Sexual Touching - s. 152 [ 43 ] I believe MSL ’ s evidence that prior to December 1, 2008, at a time when she was 15 years old, and on an occasion when she was having her period, Mr. King invited her to perform fellatio on him and she did. The Crown has proved beyond a reasonable doubt that Mr. King, for a sexual purpose, invited MSL who was under the age of 16 to touch a part of his body with her body. [ 44 ] Mr.

King, I find you guilty of Count 3 of the indictment. [ 45 ] I feel it appropriate to observe that the distinction the Crown has sought to make between the conduct which constitutes the offence under s. 151 (penile/vaginal intercourse) and the conduct which constitutes the offence under s. 152 (inviting fellatio) is artificial. Each time Mr. King proposed penile/vaginal intercourse was just as much an instance of invitation to sexual touching as the instances when he proposed fellatio. And each instance of fellatio was as much an instance of sexual touching as the instances of penile/vaginal intercourse.

Nonetheless I am satisfied that the conduct which the Crown submits constitutes the offence created by s. 152 in fact does so and has been proved beyond a reasonable doubt. Count 4 - Sexual Exploitation by Sexual Touching - s. 153(1) (a) [ 46 ] The issue in the context of Count 4 is whether Mr. King was in a position of trust or authority toward MSL . The other elements of the offence created by s. 153(1) (

a) have been proved beyond a reasonable doubt. [ 47 ] The Crown submits that Mr. King was in a position of trust or authority toward MSL because it was a feature of their relationship that he was a youth pastor with the church and would be involved in her development as a member of the church. [ 48 ] After reviewing the evidence on this point I am left with a reasonable doubt as to whether this element has been proved to have been a fact at the relevant time. I accept that Mr. King told MSL and her mother that he was involved in the church and would take MSL and her siblings to church.

I accept that SSL thought Mr. King would act appropriately and in the best interests of her children in taking them to church. But the evidence is that this was the situation in July 2008 and for a few months following that. MSL ’ s evidence was that in fact Mr. King did no more than take her to church. He did nothing more than act as a courier, a provider of transport. He was not in fact a youth pastor and did not do anything to promote her development as a church member except accompany her to church. And, significantly, their church attendance ended in November 2008, before she turned 16.

Clearly by the time MSL turned 16 if Mr. King ’ s own church involvement and his taking her to church had put him in a position of trust toward her, that foundation for a position of trust had ceased to exist by the time she was 16. There is no evidence that SSL did not know that church attendance had ceased before MSL ’ s 16 th birthday. [ 49 ] In my view whatever had been the case when MSL was 15, that is, though Mr.

King may at that time have been in a position of trust or authority toward MSL in the early months when she was 15, I am not satisfied beyond a reasonable doubt that a position of trust or authority continued to exist because of Mr. King ’ s church involvement or for any other reason, when she was 16. [ 50 ] I find that one element of the offence charged in Count 4 has not been proved beyond a reasonable doubt. [ 51 ] Mr. King, I find you not guilty of Count 4 of the indictment.

Count 5 - Sexual Exploitation by Invitation to Sexual Touching - s. 153(1) (b) [ 52 ] For the same reason, I find that the offence charged in Count 5 of the indictment has not been proved beyond a reasonable doubt.

[ 53 ] Additionally in the context of Count 5, as previously noted, I am not satisfied that the Crown proved that there ever was an instance when Mr. King invited MSL to perform fellatio on him after she was 16. MSL described the first instance of her having performed fellatio on Mr. King. It occurred when she was 15. I am satisfied she was never asked specifically when testifying whether there had been an instance of fellatio after she was 16.

In my view the evidence does not establish that beyond a reasonable doubt there was an instance of fellatio after MSL turned 16 or that, if there was, it was the result of Mr. King ’ s invitation as distinct from MSL ’ s initiative. [ 54 ] Mr. King, I find you not guilty of Count 5 of the indictment.

Summary of Conclusions [ 55 ] To summarize, I find Mr. King guilty of Counts 1, 2 and 3 of the indictment. I find him not guilty of Counts 4 and 5. [ 56 ] I would ask counsel to address the application of the Kienapple principle in these circumstances. Heard on the 16 th day of January 2012. Dated at the City of Edmonton, Alberta this 20 th day of January 2012. Brian R. Burrows J.C.Q.B.A. Appearances: Danielle Green for the Crown Mike Clancy for the Accused