R v BH, 2021 ABQB 689

Court of Queen’s Bench of Alberta Citation: R v BH, 2021 ABQB 689 Date: 20210830 Docket: 191087592Q1 Registry: Edmonton Between: Her Majesty the Queen Crown - and - BH Accused Restriction on Publication Identification Ban – See the Criminal Code ,

section 486.4 . By Court Order, information that could identify the victim must not be published, broadcast, or transmitted in any way. NOTE: Identifying information has been removed from this judgment to comply with the ban so that it may be published. _______________________________________________________ Reasons for Decision of the Honourable Madam Justice J.M. Ross _______________________________________________________

Introduction [ 1 ] BH is charged with sexual assault upon MW on August 2, 2019, contrary to s 271 of the Criminal Code , RSC 1985, c C-46 (the Code ). [ 2 ] Identity, time and jurisdiction are admitted. It is also common ground that there was sexual intercourse between the complainant and the accused. The issues are whether MW subjectively consented to the sexual activity in question, to use the terminology of the majority of the Supreme Court of Canada in R v GF , 2021 SCC 20 [ GF ] , or whether BH honestly but mistakenly believed that she consented.

There is also an issue as to whether, if I were to find the complaint subjectively consented to the sexual activity , or there is a reasonable doubt as to subjective consent, that consent is vitiated under s 273.1(2)(

c) of the Code . The Crown argued BH induced MW to engage in sexual activity by abusing a position of trust, power or authority. Evidence [ 3 ] MW was the only witness for the Crown; BH was the only witness for the Defence. [ 4 ] Both MW and BH testified that they first met about one week before August 2, 2019, at an Alcoholics Anonymous (AA) meeting. [ 5 ] I will commence with MW’s evidence. MW [ 6 ] This was one of the first AA meetings that MW had attended. She was seeking help for addictions to alcohol and drugs. She was 20 years old.

She was at a bad stage in her life; she had recently been charged with impaired driving, her life relationships had been negatively affected by her addictions, she was feeling suicidal and in need of help. She was, as she describes it, at a very vulnerable point in her life. Addiction is lonely. She had recently broken up with a former partner due to her drinking. She had lost her job and her driver’s licence. She was living in her mother’s home, but her relationship with her mother was not stable. She had no friends. [ 7 ] At the AA meeting, MW was looking for support from other people who shared her problem.

She had been welcomed, and received the “big book” which sets out the steps of the AA program. She was looking for a sponsor to take her through the steps. [ 8 ] She met BH in the meeting and spoke to him afterwards. He offered to be her sponsor. He said he would take her through the steps. She agreed. [ 9 ] MW’s understanding of the role of the sponsor was that he or she would act as a leader and mentor, providing assistance during a weak and dark time. In going through the steps of the program, she expected that she would share personal details of her life with her sponsor.

She described it as a position of trust. She thought BH would be a good fit for her; he seemed kind. Her main concern was to get help. [ 10 ] During the next week, she and BH were in touch through Facebook messenger, but did not meet. [ 11 ] On August 1, 2019, she saw BH at the AA meeting and he drove her home afterwards. Her parents were away. She had told BH this earlier, at the meeting, and he had offered to drive her home. They left the meeting between 9 and 9:15 pm. The drive to her home took about 12 or 13 minutes. During the drive he asked her questions about her life.

She shared things about her impaired driving charge, use of drugs, and her broken relationships. It was a very personal conversation. She did not think that this was unusual in the context of a sponsorship. She felt fairly comfortable. He seemed open and prepared to listen. [ 12 ] MW had only been sober for a short time – perhaps two weeks. It was a fight every day to stay sober. She told him it was hard to be alone, because she wanted to drink when she was alone. He dropped her off at about 9:30 pm, made sure she got inside, and then left.

He said she should call if she was having trouble and needed his support. [ 13 ] BH left. During the next approximately two hours, they shared some text messages. A screen shot of these messages was entered as an exhibit at the trial. He asked how her night was going. She said it was quiet, which was better than drinking, but she preferred to be social. She asked how his night was going and he said, ok, he was just finishing a game of crib and then had no plans. She replied: “We should get together and play.

I might even kick your ass at it.” He said that he doubted it, but maybe he would pop by to kick her ass at crib. She agreed. [ 14 ] BH arrived at her home at about 11:30 pm. She had set up cards and snacks at the kitchen table. Neither of them drank alcohol. They played three games over a period of perhaps two hours. They talked; she was having a good time. [ 15 ] When he got up to leave, he asked to use the washroom, and she said of course, and showed him where it was. While he was in there, she went to her bedroom across the hall to get something.

When he came out of the washroom he came to her and asked if that was her bedroom. She said yes. He then pushed her on the bed. It was not an aggressive or hard push, but was enough to push her down on the bed. She was lying on her back. He put his hands on her shoulders and kissed her quickly and abruptly. She believes he was kneeling on the bed over her. She felt shock and disbelief. She froze. She was still and stiff, and let it happen.

She did not speak, nor did he. [ 16 ] After kissing her for a short time, he moved down her body, took off her pants and underwear, and put his fingers in her vagina and performed oral sex on her. She felt disassociation; she laid there while he removed her pants and underwear, and didn’t move. She was not reciprocating in any way. Her hands were on the bed. There was no movement of her body and no communication.

[ 17 ] BH then pulled off his pants and underwear and penetrated her vagina with his penis. She was on her back at first, then he flipped her on her stomach and continued to have intercourse with her. [ 18 ] Throughout the oral sex and sexual intercourse, MW said she remained frozen. Her arms were beside her with her hands pressing into the mattress. Neither one of them spoke. She didn’t move until he had ejaculated, then she got up and showed him to the door. She wanted him out of the house.

He said he would text her, and she said ok, have a good night. [ 19 ] After he was gone, she cried, then phoned C, another AA member, and spoke to him and to his girlfriend. After that call, she called the police to report a sexual assault. This would have been around 1 am. Police officers came to her house, asked her questions, took pictures of the house, and then took her to hospital at around 2 am. At about 5:30 am the same day she gave a formal statement at the detachment. [ 20 ] BH texted her that day, but she blocked his number on her phone.

She has had no contact with him since. [ 21 ] On cross-examination, MW agreed that some of her recollections were not clear. For example, when it was put to her that she had contacted BH on Facebook before the meeting, telling him that her parents were away and asking him to give her a ride home after the meeting, she indicated that she was not sure, but this could have happened.

When it was put to her that BH had not attended the second AA meeting at all, but had come to give her a ride home, she was unsure. [ 22 ] It was her recollection that BH offered to be her sponsor at the first meeting, but she agreed that she did contact him later on Facebook messenger to ask him to be her sponsor.

She recalls him offering to arrange a group study of the AA book, but did not understand this to be because he didn’t want to be her sponsor. [ 23 ] She agreed during the cross-examination, that during the ride to her home, they spoke about intimate things – such as his marriage which was rocky, and his sex life. She told him that she didn’t want to be alone, as that made it harder to stay sober.

He offered that if she needed support he would come over later, after he had seen his friends, and she was okay with this. [ 24 ] While they were playing crib at her house there was continuing discussion of intimate details about each other’s lives. [ 25 ] When BH was in the washroom, she recalls that she went to her bedroom to grab something, but she does not remember what it was. [ 26 ] When BH pushed her onto the bed, it was not a violent push, more like he was guiding her to the bed.

She agreed with the description that she had given during her police interview that it was more like a sensual movement. [ 27 ] MW repeated on cross-examination that her hands stayed beside her body, pressing into the bed. She also said her top stayed on and that she did not remove it. When reminded that she had told police that BH took off her shirt, as well as her pants and underwear, she agreed that this would have been true – her shirt was removed, although she does not remember how it came off.

It might have been removed between when she was lying on her back and then going to her stomach. [ 28 ] MW agreed that after she was flipped over onto her stomach, she was not flat on the bed. Her waist was slightly lifted and her pelvis tilted up; BH was holding her hips. BH [ 29 ] BH was 37 years old in August 2019. He worked as an operator in the oilfields. He was married and had two children. [ 30 ] He met MW on July 25, 2019 in an AA meeting. She came late and sat beside him. After the meeting they introduced themselves and exchanged phone numbers. Both he and his friend C gave her their phone numbers.

His contact page on his phone listed her as MA, with the A indicating that they met at an AA meeting. [ 31 ] During the following week she reached out to him on Facebook, asking him to be her sponsor. He was in Manitoba on a family trip when he got this message and said they would talk about it next week. [ 32 ] On August 1, 2019, he was going to a baseball game. He messaged her saying that he would not be at the meeting, but could talk after. She said good, and could he give her a ride home.

He said no problem. [ 33 ] After the meeting, BH asked other AA members, C and K, if they would do a big book study with MW in his garage. They agreed. He was not comfortable being a sponsor because he was only two years into the program himself. [ 34 ] He drove MW home. She told him she had been fined for impaired driving. He said if she stayed sober things would get better. She said she didn’t like being alone. He said he was going to a friend’s house and she said, that sucks. She kept saying she didn’t want to be alone. [ 35 ] During the ride they were both being flirtatious, smiling, and talking.

They texted while he was at his friend’s house. His impression was that they were still flirting. He asked if he should come over and she agreed. [ 36 ] At MW’s house, while they were playing crib, they were flirting a lot. She asked about his marriage and its problems, including sexual problems. He asked about her life and her ex-boyfriend. [ 37 ] When they finished their third game, he said he should go, and asked to use the bathroom. When he came out of the bathroom, he didn’t see her, and called her name. She said I’m in here.

He went into the room and asked is this your bedroom, and she said yes. [ 38 ] They started French kissing, and moved to the bed together. They did not say anything. She lifted her hips so he could take her

pants off. When he put his fingers in her vagina and performed oral sex, he asked if she could orgasm that way and she said yes. She hadan orgasm. [39] He took off his pants and they had sex in the missionary position. They were kissing again. He asked if she would like to ridehim, and she said yes but she was not good at it. She got on top of him and took off her shirt, a hoodie sweatshirt. [40] He asked if she wanted to go doggy style and she said yes, and they had sex in that position.

He asked if he could come insideof her and she said yes. [41] Afterwards they both got dressed, and he asked her not to tell anyone, because he was married with children. She said ofcourse not. They went to the door together. He said he would text the next day. [42] He went home. The next morning, he sent MW a message. He was blocked. He thought she regretted sleeping with a marriedman. [43] He spoke to C that morning who told him that MW had called and said he raped her. He said he would never do that. [44] He called his wife, then drove to the police station.

He told them he had been accused of rape and asked to talk to someone.His wife called him and said he should get out of there. So, he left. He googled and called a lawyer. He had never been involved withpolice before. [45] He believed MW consented. She was kissing him. They walked to the bed together. He asked if he could take her pants off.She didn’t say anything, but she lifted her hips. He asked if she could come with oral sex. She said yes. She also said yes to riding him,and having sex doggy style.

She was active and involved the whole time. [46] On cross-examination, BH testified that he had been attending AA meetings for 2 years. He had gone through 11 of the 12steps. His impression was that MW was new to AA. He knew she was looking for a sponsor – everyone is – but they didn’t talk about itat the first meeting. They made introductions at the end of the meeting. She asked for his and C’s numbers. He and C were closer to herage than others at the meeting. [47] AA is a place to meet sober friends, as a way of dealing with addiction. He gave her his number as a sober contact.

He didn’tput thought into this; he exchanges phone numbers with a lot of people at AA. [48] After they exchanged numbers, he messaged her that if she needed anything she should not hesitate to call or text. She thankedhim and gave him her house phone number as well, in case she was “at home and needing to call.” He said you bet, call anytime. [49] The messages that he received from MW when he was in Manitoba were on Facebook.

He deleted those the night after theyhad sex, because he was still married. [50] He had not foreclosed the possibility of being her sponsor, he said they would talk about it later, after the meeting. He was notplanning on doing this, but didn’t want to tell her this. He was thinking of steering her to K, but did not tell anyone this. MW did notknow that he didn’t want to be her sponsor. [51] He knew MW had reached out to him for support. He took it that she was looking for a friend, someone who could help. Hisown sponsor is his best friend.

He sees a sponsor as a friend, not a guide. [52] On August 1st, he met her after the meeting. He had told her he would be there and offered to talk afterwards and agreed togive her a ride. He asked others at the meeting about doing a big book study with MW. [53] He agreed that the text messages that they exchanged after he dropped her off at home were not explicitly sexual, but in hismind, they were flirtatious, as was the conversation during the ride home and while playing cards. [54] In the bedroom, they made eye contact and walked together and kissed.

She came towards him to kiss and they kissedpassionately with arms around each other. They moved together towards the bed. [55] He understands how vulnerable people can be when seeking treatment for addictions. He knew she was in a fresh recoveryfrom addictions at the time. Analysis of Credibility [56] My analysis of credibility must comply with the approach delineated in R v W(D), (SCC), [1991] 1 SCR 742and augmented by the Alberta Court of Appeal in R v Rajput, 2020 ABCA 144 at para 14; R v SMC, 2020 ABCA 19 at para 23.

If Ibelieve the testimony of BH that he did not commit the offence charged, I must find him not guilty. If I do not believe his testimony, butit leaves me with a reasonable doubt about his guilt, I must find him not guilty. If his testimony does not raise a reasonable doubt abouthis guilt, but after considering all of the evidence I am not satisfied beyond a reasonable doubt of his guilt, I must find him not guilty. Ifafter careful consideration of all the evidence, I am unable to decide who to believe, I must find him not guilty. [57] To a significant extent, both MW and BH were credible witnesses.

Each of their stories about how they met and theirencounters and communication up until the sexual activity are consistent with the other’s narrative, and consistent with the text messagesthat were marked in evidence. Their

interpretations of those encounters differed greatly, but each of them explained, in a credible way,how they reached those

interpretations. [58] MW was entirely focused at that time in her life on recovering from her addictions. She was aware of how vulnerable she wasand how much she needed a supportive friend and mentor. Her recollection was that from the first meeting, BH had presented himself as

someone who would fill that role. When it was put to her that she reached out to BH to be her sponsor, she agreed that she had, but believed he was willing to take on this role from their first meeting. She agreed that they talked about very intimate matters, including BH’s marriage and sex life. She said she thought this was usual in a relationship with a sponsor, even though she had never been in that type of relationship before. She does not seem to have given much thought to BH’s perception of their interactions.

He was there to help her. [ 59 ] On his part, BH saw what he thought was a young woman who was interested in him. She sat beside him at the first meeting and talked to him afterwards. He gave her his contact information, and C’s as well, in a generally friendly way. She reached out to him, specifically, asking him to be her sponsor, and also asking for a ride home. On the ride she made it clear that she wanted him to come over to her house. On the ride and later in her home she engaged in very intimate conversations with him. When he was about to leave her home, she went into her bedroom.

They looked at each other, and he believed she wanted him to kiss her. [ 60 ] There was one aspect on which BH’s evidence was somewhat evasive: on the issue of whether he agreed to be MW’s sponsor. He was evasive with MW about this, as well. He knew she wanted him to be her sponsor, and while he had reservations about this, he never expressed them to her.

This lack of forthrightness certainly contributed to the possibility that these two people would end up with very different impressions of their communications and their developing relationship. [ 61 ] MW and BH obviously have very different recollections of the sexual contact. There are some points in common – that neither of them said anything when the kissing began, that the sexual contact proceeded through kissing, to digital penetration and oral sex, to sexual intercourse first with MW on her back and afterwards with MW facing downwards.

But MW describes herself as frozen and unresponsive throughout, and says that not a word passed between them. BH says MW’s tongue was in his mouth when they were kissing, that they walked to the bed together, that he asked her about oral sex, and sexual positions, and she responded positively. [ 62 ] MW’s evidence about exactly what happened and how it happened does leave unexplained points. She does not recall specifically why she went to the bedroom, just that she was getting “something”.

At trial she described BH as pushing her onto the bed while she was completely unresponsive, but she also agreed with the description she had given police – that he lowered her to the bed sensually. Most importantly, her direct evidence described her pants and underwear being removed without her cooperation, but did not account for her shirt being removed. On cross-examination, she agreed that her shirt had been removed, but had no recollection of how this happened. It could not have happened while she was on her back with her hands pressing into the mattress.

She suggested it might have happened when she was being turned over from her back to her stomach, but did not indicate that she remembered this or give any details. [ 63 ] BH’s evidence was detailed, and described many events as MW had – for example that neither one of them spoke during the kissing or when he removed MW’s pants and underwear. BH’s evidence of how they moved onto the bed and lay down is more consistent with the description given by MW to police – that he lowered her down sensually – than was MW’s evidence at trial.

And, importantly, BH’s evidence is the only explanation as to how MW’s shirt came to be removed. Analysis of the Elements of the Offence of Sexual Assault [ 64 ] A person commits the actus reus of sexual assault if they touch another person in a sexual way without that person’s consent.

The mens rea consists of the “intention to touch and knowing of, or being reckless of or wilfully blind to, a lack of consent on the part of the person touched”: GF at para 25; R v Barton , 2019 SCC 33 at para 87 [ Barton ]. [ 65 ] The general principles set out in R v Hutchinson , 2014 SCC 19 at para 17 [ Hutchinson ] provide an overall approach to the

interpretation of Code provisions relating to consent to sexual activity: The sexual assault offences invoke the criminal law to protect sexual autonomy. The Criminal Code and jurisprudence establish a high level of protection of the right to choose whether to engage in sexual activity and with whom. The absence of consent to sexual activity, as part of the actus reus of the offence, is judged subjectively from the complainant’s point of view…Consent cannot be implied, must coincide with the sexual activity, and may be withdrawn at any time.

Additionally, no consent is obtained if the apparent agreement to the sexual activity is obtained by coercion, fraud or abuse of authority. … Individually and collectively, these features of sexual assault law protect Canadians’ sexual autonomy. [ 66 ] More recently, the Supreme Court of Canada in Barton , discussed the concept of consent as it relates to the actus reus and the mens rea of the offence of sexual assault at paras 88-90: 88 “ Consent” is defined in s. 273.1(1) of the Code as “the voluntary agreement of the complainant to engage in the sexual activity in question”.

It is the “conscious agreement of the complainant to engage in every sexual act in a particular encounter” ( A. (J.) , at para. 31), and it must be freely given (see Ewanchuk, at para. 36). This consent must exist at the time the sexual activity in question occurs ( A. (J.) , at para. 34, citing Ewanchuk , at para. 26), and it can be revoked at any time (see Code, s. 273.1(2) (e); A. (J.) , at paras. 40 and 43). Further, as s. 273.1(1) makes clear, “consent” is not considered in the abstract.

Rather, it must be linked to the “sexual activity in question”, which encompasses “the specific physical sex act”, “the sexual nature of the activity”, and “the identity of the partner”, though it does not include “conditions or qualities of the physical act, such as birth control measures or the presence of sexually transmitted diseases” ( R. v. Hutchinson , 2014 SCC 19 , [2014] 1 S.C.R. 346 (S.C.C.) , at paras. 55 and 57 (emphasis deleted) ). 89 Consent is treated differently at each stage of the analysis.

For purposes of the actus reus , “consent” means “that the complainant in her mind wanted the sexual touching to take place” ( Ewanchuk , at para. 48). Thus, at this stage, the focus is placed squarely on the complainant’s state of mind, and the accused’s perception of that state of mind is irrelevant. Accordingly, if the complainant testifies that she did not consent, and the trier of fact accepts this evidence, then there was no consent — plain and simple (see Ewanchuk , at para. 31). At this point, the actus reus is complete.

The complainant need not express her lack of consent, or revocation of consent, for the actus reus to be established (see A. (J.), at para. 37).

90 For purposes of the mens rea, and specifically for purposes of the defence of honest but mistaken belief in communicated consent,“consent” means “that the complainant had affirmatively communicated by words or conduct her agreement to engage in [the] sexualactivity with the accused” (Ewanchuk, at para. 49).

Hence, the focus at this stage shifts to the mental state of the accused, and thequestion becomes whether the accused honestly believed “the complainant effectively said ‘yes’ through her words and/or actions”(ibid., at para. 47). [67] Thus, to establish the actus reus of the offence, the Crown must prove beyond a reasonable doubt that MW did not consent;that she did not voluntarily agree to engage in the sexual activity in question. This is from MW’s point of view, with reference to herinternal state of mind at the time of the sexual touching.

It is entirely personal to the complainant (see GF at para 1). [68] MW’s evidence was that she did not consent to the sexual activity. She was surprised by it, she froze in disbelief and remainedfrozen during the entire sexual encounter. She let it happen, but did not reciprocate in any way. She did not speak or otherwisecommunicate with BH. [69] On the other hand, BH’s evidence was that MW verbally consented to some of the sexual activity – she respondedaffirmatively to his questions about oral sex and sexual positions.

While they did not speak during the initial sexual activity, she wasactively kissing him, they moved to the bed together, she lifted her hips so he could take her pants off. [70] When I consider BH’s and MW’s evidence together, I am left uncertain who to believe in regard to how the sexual activityunfolded. There are gaps in MW’s recollection and there is one aspect of her evidence that I do not accept – that she did not in any wayassist in the removal of her shirt. In at least one detail, the removal of MW’s shirt, BH’s evidence about the details of the sexualencounter is more believable than MW’s.

With respect to other details about what happened and what was said, I do not know who tobelieve. [71] In my view this is not case like that described in R v Ewanchuk, [1999] 1 SCR 330, , where thecomplainant’s evidence alone is sufficient to prove the actus reus of the offence, and the accused’s evidence is relevant only to the issueof mistaken belief in communicated consent. There are stark differences in the evidence, including BH’s evidence that MW verballyaffirmed her positive consent to at least some of the sexual activity.

BH’s evidence is relevant in assessing the credibility and reliabilityof MW’s evidence that she did not consent. [72] Because I do not know who to believe about how the sexual activity unfolded, including whether MW verbally agreed tosome of the sexual activity, I am left with a reasonable doubt about MW’s evidence that she did not subjectively consent at the time ofthe sexual touching. [73] While lack of consent is subjective, it is also an element of the actus reus that must be proven beyond a reasonable doubt.MW’s evidence, considered in the context of BH’s evidence, does not reach the standard of proof beyond a reasonable doubt.

The Crownhas not proven beyond a reasonable doubt that MW did not voluntarily agree to the sexual touching in question [74] While it is not necessary to proceed to this issue, I also find that the Crown has not proven beyond a reasonable doubt themens rea of the offence – that BH was aware of or was reckless or wilfully blind to MW’s lack of consent. [75] BH’s evidence that he honestly believed that MW consented was passionate and compelling. His evidence about thecircumstances that led him to this belief was credible, detailed, and consistent.

If the sexual activity happened as BH described it, MW’sactions could be construed as her having affirmatively communicated, by her words and conduct, her agreement to engage in the sexualactivity with the accused. [76] As previously indicated, there are aspects of BH’s and MW’s evidence that leaves me uncertain who to believe about how thesexual activity unfolded. This uncertainty is sufficient to find the Crown has not proven the mens rea of the offence beyond a reasonabledoubt. Is Consent Vitiated? [77] The Crown submitted that any consent is vitiated under s 273.1(2)(

c) of the Code. The Crown argued BH induced MW toengage in sexual activity by abusing a position of trust, power or authority, that of being MW’s AA sponsor. The Supreme Court recentlyconfirmed in GF (at paras 24 and 33-36) that a person may provide subjective consent that is not legally effective due to duress, fraud, orabuse of authority. [78] Before I review the evidence regarding AA sponsorship, I will review case law considering the types of relationships andcircumstances that come within s 273.1(2)(c). [79]

Section 273.1 provides:

(1) Subject to subsection (2) and subsection 265(3), “consent” means, for the purposes of sections 271, 272 and 273, the voluntaryagreement of the complainant to engage in the sexual activity in question. …

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

c) the accused induces the complainant to engage in the activity by abusing a position of trust, power or authority…

[80] Similar language is found in s 153(1) of the Code:

(1) Every person commits an offence who is in a position of trust or authority towards a young person, who is a person with whom theyoung person is in a relationship of dependency or who is in a relationship with a young person that is exploitative of the 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 youngperson…

(1.2) A judge may infer that a person is in a relationship with a young person that is exploitative of the young person from the nature andcircumstances of the relationship, including (

a) the age of the young person; (

b) the age difference between the person and the young person; (

c) the evolution of the relationship; and (

d) the degree of control or influence by the person over the young person. [81] Another related provision is s 265(3)(d):

(3) For the purposes of this section, no consent is obtained where the complainant submits or does not resist by reason of … (

d) the exercise of authority [82] In R v Audet, (SCC), [1996] 2 SCR 171 [Audet], the Supreme Court of Canada considered the concept of a“position of trust or authority” in s 153(1). The case involved a 22-year-old physical education teacher, and his former student, who was14 years old. They did not meet at school, but at a bar during summer vacation. They engaged in oral sex after coming home from thebar, and the accused was charged with sexual exploitation of a young person.

The accused was aware he would be returning to thecomplainant’s school in the fall and teaching students in the grade that she would be entering. [83] The trial judge and the majority of the Court of Appeal acquitted. The Supreme Court reversed the acquittal, observing thatthe courts below had found that the Crown must prove, “as a constituent element of the offence of sexual exploitation, that the accusedactually exploited his or her position of trust or authority towards the young person,” and that this was incorrect (at para 13).

TheSupreme Court explicitly distinguished s 153(1) from s 273.1(2)(c), which requires the Crown to prove not only the existence of aposition of trust or authority, but that the position was abused (at paras 22-25). There is no need to prove the position was actually abusedunder s 153(1). [84] The Supreme Court approved the following definition of “position of trust” in Audet at para 33 (citing R v SP, [1993] OJ No704, 1993 CarswellOnt 6991 (Ont Ct J)): One needs to keep in mind that what is in question is not the specialized concept of the law of equity, called a “trust”.

What is in questionis a broader social or societal relationship between two people, an adult and a young person. “Trust”, according to the Concise Oxford Dictionary (8th ed.) is simply “a firm belief in the reliability or truth or strength of a person”.

Where the nature of the relationship is suchthat it creates an opportunity for all of the persuasive and influencing factors which adults hold over children and young persons to comeinto play, and the child or young person is particularly vulnerable to the sway of these factors, the adult is in a position where thoseconcepts of reliability and truth and strength are put to the test.

Taken together, all of these factors create a “position of trust” towards theyoung person. [85] The Supreme Court also held that no evidence was required “to prove that teachers play a key role in our society that placesthem in a direct position of trust and authority towards their students” (at para 41). [86] In R v Lutoslawski, 2010 ONCA 207, the Court of Appeal held that s 273.1(2)(

c) is broader than s 265(3)(d) (at para 12):

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. Thesection addresses the kinds of relationships in which an apparent consent to sexual activity is rendered illusory by the dynamics of therelationship between the accused and the complainant, and by the misuse of the influence vested in the accused by virtue of thatrelationship. 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 273.1(2)(

c) does not imply the same kind of coercion. An individual who is in aposition of trust over another may use the personal feelings and confidence engendered by that relationship to secure an apparent consentto sexual activity. [87] In that case the accused was a scout leader and the complainant one of his charges. The accused admitted that he was in aposition of trust and authority toward the complainant during their sexual relationship. The trial judge held that he had exploited thatrelationship, although it was not proven that the sexual activity took place in the context of the scouting relationship.

The Court ofAppeal ordered a new trial on the ground that the trial judge had considered only s 265(3)(

d) and not s 273.1(2)(c). [88] In R v Snelgrove, 2018 NLCA 59 [Snelgrove], the accused, an on-duty police officer, in uniform and in a marked patrol car,gave the intoxicated complainant a ride home from a bar. She had lost her key, and he helped her get into her apartment through an openwindow. She invited him in. Sexual activity ensued. The Court of Appeal held (at para 16):

[T]he relationship of an on-duty police officer to a member of the public is traditionally one of trust or authority. In the absence ofevidence to the contrary, that relationship is presumed and does not require evidence. [89] The trial judge did not instruct the jury on s 273.1(2)(

c) because there was no evidence that the complainant had been reducedto a state of dependency or that the accused had misused his dominant position to extract her consent. The Court of Appeal held that thiswas an error (at para 24):

Section 273.1(2)(

c) does not require a finding of dependency by the complainant or a dominant position by the accused. Rather, section273.1(2)(

c) is engaged when an accused abuses, that is, misuses or makes improper use of his position of trust or authority, therebyinducing, that is, persuading or enticing the complainant to consent to sexual activity. [90] A case comment on Snelgrove by Janine Benedet, of the Allard School of Law, UBC in the Westlaw publication of the case(2018 NLCA 59 , 2018 CarswellNfld 378) provides a broad comparison of the Code provisions set out above:

Section 273.1(2)(

c) has been judicially considered in relatively few cases since its enactment in 1992, and the relationships at issue inthose cases varied considerably. As the majority notes, the

section was meant to cover circumstances broader than s. 265(3)(d), whichsays that no consent is obtained where the complainant submits due to the exercise of authority. By contrast, s. 273.1(2)(

c) speaks to thesituation where someone misuses a situation of influence to encourage another person to engage in sexual activity. The actions of theaccused may be subtle rather than overt.

Nonetheless, it requires something more than just occupying the position of authority, in orderto distinguish it from the offence of sexual exploitation of a young person aged 16 or 17 pursuant to s. 153. [91] In R v Bovay, 2021 ONSC 3092, the Court held that a father was not in a position of trust towards his children’s babysitter,noting that “unlike with teachers towards their students, there is not a strong presumption that parents are in a position of trust towardstheir babysitters for the purposes of s. 153” (at para 72).

Further, the factors in s 153(1.2) did not support the finding of an exploitativerelationship in that case. [92] In R v Makayak, 2004 NUCJ 5, a prison guard was found to be in a position of power or authority towards a remand prisoner.He was also found to have induced her to engage in sexual activity by abusing that position. Inducement under s 273.1(2)(

c) does notrequire coercion, it includes “a more subtle form of pressure than can be inferred from the circumstances of the exercise of the power orauthority” (at para 69). That inducement was found in the guard’s violating prison rules to have the opportunity to touch the complainantsexually. [93] In my view the principles delineated in these cases do not support the application of s 273.1(2)(

c) in this case. [94] The relationship between an AA sponsor and the person they are sponsoring is not like the relationship of teacher and studentor on-duty police officer and member of the public. The nature of the relationship is not sufficiently well known in the generalcommunity to find the existence of a trust relationship in the absence of evidence. [95] The evidence in this case does not prove the existence of a trust relationship to the Crown’s standard of proof beyond areasonable doubt. MW described the sponsorship relationship as a position of trust, but BH described a sponsor as a sober friend.

Noother witness testified on the subject. I accept the Defence submission that s 273.1(2)(

c) requires more than the complainant’s subjectivefeeling of trust; it requires circumstances that support an objective determination of a trust relationship. To hold otherwise would notshow the appropriate restraint described in Hutchinson at para 18. The Supreme Court stated: As the most serious interference by the state with people’s 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 isundesirable or unethical but “lacks the reprehensible character of criminal acts”: . . . .

The criminal law must provide fair notice of whatis prohibited and clear standards for enforcement. [96] If a trust relationship vitiating consent arose from the subjective feeling of the complainant, this would clearly fall short ofproviding “fair notice of what is prohibited and clear standards for enforcement”: Hutchinson at para 18. [97] Adapting the language of Audet, I conclude that the Crown must prove that the relationship between the accused and thecomplainant was of a nature such that it created an opportunity for persuasive and influencing factors by the accused to come into play,and the complainant was particularly vulnerable to the sway of these factors.

While the complainant viewed all sponsorship relationshipsin this way, the accused characterized a sponsor as simply a sober friend.

I do not know, based on the evidence in this case, whethereither of these characterizations would be generally accepted in the AA community or the broader community. [98] Looking at the specific characteristics of this relationship, it is my view that the relationship had simply not evolvedsufficiently to create an opportunity for the accused to possess persuasive and influencing factors over the complainant, or for thecomplainant to have a particular vulnerability to the sway of these factors. If a sponsorship relationship existed, it had existed for onlyone evening.

The only specific activity relating to the AA program that had been undertaken by the accused was to make somearrangements for an AA group book reading to take place in his garage in the future, which would involve not only himself and thecomplainant, but two other AA members as well. Apart from that, the accused had given the complainant a ride home, at her request, andhad later visited her in her home, at her invitation. The evidence was that the conversations between the accused and the complainantwere personal, but not specifically about the AA program.

Even given the age difference between the complainant and the accused, andthe vulnerability of the complainant in the early days of her recovery from addiction, this is not sufficient to meet a test adapted fromAudet. [99] If I found that a relationship of trust had been proven, it would still be necessary for the Crown to prove that the accusedinduced the complainant to consent to sexual activity through an abuse of that relationship. This does not require coercion, but requiressome form of persuasion or pressure arising from the exercise of the trust relationship.

Here the complainant made it clear when theaccused gave her a ride home that she did not want to be alone. In texts exchanged afterwards, there was no pressure or persuasion by theaccused to permit him to visit, simply an offer to do so that was accepted by the complainant.

[ 100 ] I conclude that the Crown has not proven either a trust relationship or an inducement as required by s 273.1(2)(c). Accordingly, that

section does not apply to vitiate the complainant’s consent to the sexual activity in question. Conclusion [ 101 ] For the reasons above, I find the accused not guilty of sexual assault. Heard on the 26 th day of July, 2021 to the 28 th day of July, 2021. Dated at the City of Edmonton, Alberta this 30 th day of August, 2021. J.M. Ross J.C.Q.B.A. Appearances: Brett Grierson for the Crown Jamil Sawani for the Accused