R. v. T.(D.), 2011 ONCJ 213

WARNING The court hearing this matter directs that the following notice should be attached to the file: A non-publication and non-broadcast order in this proceeding has been issued under subsection 486.4(1) of the Criminal Code . This subsection and subsection 486.6(1) of the Criminal Code, which is concerned with the consequence of failure to comply with an order made under subsection 486.4(1) , read as follows: 486.4 Order restricting publication — sexual offences. —

(1) Subject to subsection (2), the presiding judge or justice may make an order directing that any information that could identify the complainant or a witness shall not be published in any document or broadcast or transmitted in any way, in proceedings in respect of (

a) any of the following offences: (

i) an offence under

section 151, 152, 153, 153.1, 155, 159, 160, 162, 163.1, 170, 171, 172, 172.1, 173, 210, 211, 212, 213, 271, 272, 273, 279.01, 279.02, 279.03, 346 or 347, (ii) an offence under

section 144 (rape), 145 (attempt to commit rape), 149 (indecent assault on female), 156 (indecent assault on male) or 245 (common assault) or subsection 246(1) (assault with intent) of the Criminal Code ,

chapter C-34 of the Revised Statutes of Canada, 1970, as it read immediately before January 4, 1983, or (iii) an offence under subsection 146(1) (sexual intercourse with a female under 14) or (2) (sexual intercourse with a female between 14 and 16) or

section 151 (seduction of a female between 16 and 18), 153 (sexual intercourse with step-daughter), 155 (buggery or bestiality), 157 (gross indecency), 166 (parent or guardian procuring defilement) or 167 (householder permitting defilement) of the Criminal Code ,

chapter C-34 of the Revised Statutes of Canada, 1970, as it read immediately before January 1, 1988; or (

b) two or more offences being dealt with in the same proceeding, at least one of which is an offence referred to in any of subparagraphs ( a )(

i) to (iii).

(2) Mandatory order on application. — In proceedings in respect of the offences referred to in paragraph (1)(

a) or ( b ), the presiding judge or justice shall (

a) at the first reasonable opportunity, inform any witness under the age of eighteen years and the complainant of the right to make an application for the order; and (

b) on application made by the complainant, the prosecutor or any such witness, make the order. . . . 486.6 Offence. —

(1) Every person who fails to comply with an order made under subsection 486.4(1) , (2) or (3) or 486.5(1) or (2) is guilty of an offence punishable on

summary conviction. COURT FILE No.: 09 2240 Citation: R. v. T.(D.) , 2011 ONCJ 213 ONTARIO COURT OF JUSTICE BETWEEN: HER MAJESTY THE QUEEN — AND — D. T. Before Justice Lloyd Dean December 10, 2010 and January 20, 2011 TOM MEEHAN ................................................................................................... for the Crown JOHN SITTER .................................................................................................. for the Accused JUDGMENT

INTRODUCTION [ 1 ] The complainant K. M., age 33, has cerebral palsy and is confined to a wheelchair. The fact that she is suffering from cerebral palsy is obvious to anyone who observed her. The complainant has been hearing, vision and speech impaired since birth. The services of American Sign Language Interpreters were required. She has much difficulty communicating. During her testimony very few words she uttered orally were easy to understand. All answers/testimony attributed to the complainant in the following paragraphs are what the interpreters relayed to the court.

The complainant was responding to questions by using a combination of hand gestures, head nods, facial expressions and audible sounds. The accused, age 51, is her uncle. He is married to her mother’s sister. THE FACTS The complainant’s testimony in chief [ 2 ] The complainant gave evidence that the accused would come to visit her at her house. She indicated he touched her chest and her vagina in the living room, bathroom and bedroom of her home. She was asked where she was when he touched her chest and vagina. She indicated he touched her in her bathroom; he touched her vagina with two fingers hard.

She told him to “stop it, go home”. When asked if she was wearing clothes and whether he touched her over or under the clothes, she indicated he touched her inside. She was asked if she needed help going to the bathroom. She answered that she could go to the bathroom herself. She testified that he carried her to the bathroom and she hated that. She told him to stop and go home. She repeated he touched her breasts and vagina.

Although the complainant could not remember the specific year this incident happened, through other evidence, including that of the accused, it is clear the incident occurred on August 8, 2009, the date of the allegations charged. [ 3 ] She was asked when came over, what would he do. She answered by saying she told him “no, don't touch, I'm tired, stop it”. She was asked when he came over and did not touch her, what would they do. She answered by saying “he carried me to the boat, touch my vagina there to, can't remember, hard to explain”. She was asked what drinks they might have had when he came over.

Her response: “he touched my boobs, told him go away; I don't want this anymore, told him go away”. She was asked what he did with his two fingers the time in August. Answer: “he put two fingers in my vagina”. She was asked further about the two fingers. She answered that her mom called the police and the next day she explained what happened. The prosecutor asked if she was hurt. She answered by saying “yes, had sex with me”. She was asked again when he touched her vagina with his fingers if that hurt her. She answered “yes, it hurt”. The prosecutor asked if she ever gave him permission to touch her.

Answer: “no, no, made me crazy”. [ 4 ] She also testified that when she went to Camp Rainbow, which was owned by the accused, he touched her. And she testified of another incident where she stated the accused pulled down her pants and touched her with his penis in her vagina. When she gave this evidence she indicated, through the interpreters, disgust with what he did (“Oh my God”). She was asked by the prosecutor if she asked him to touch her vagina with his penis. She replied, “Yeah, yeah right “. The prosecutor asked if she understood his question. Her response was, “yep, yep “.

The complainant’s testimony given during cross-examination [ 5 ] When asked if she was able to tell someone when she wanted something or not she replied, “That’s right”. She was questioned about an incident when she was twenty-four years of age. The accused and she were arm wrestling, and the accused touched her breast accidentally. It was put to her that the accused asked if he could touch it again and she said yes. In response to that suggestion the complainant answered “well yeah, right, okay”. [ 6 ] She was questioned about the incident involving the accused putting his penis in her vagina.

It was put to her that she asked him to touch her with his penis. She answered “not sure, I'm not sure”. It was put to her that when he was touching her boobs she said she didn't want it anymore, counsel putting the emphasis on the word “anymore”. She answered she “wanted it to stop, but it kept going, kept going and I said stop, I don't want”. It was put to her that in the past she allowed the accused to touch her sexually. Her response was “no, no, no, no”. When she was asked again about the arm wrestling incident she answered “he touched my breast and vagina”.

It was suggested by defence counsel that she didn't say no that time. Answer: “Right”. She was questioned about the incidents at the camp. Counsel suggested the accused would touch her. Answer: “yes that's right, in the boat”. It was put to her that she never told anyone that was happening. Answer, “I didn't that's right”. It was suggested that she never told anyone she didn't want to go back. She replied, “No”.

[ 7 ] Defence counsel asked about the accused coming over to her house. He suggested that she would let him in when he came back. She agreed. Then counsel asked about August 8, 2009. Defence counsel suggested before he touched her breast the accused asked her if he could. She answered “don't remember, I'm confused”. Defence suggested the accused put his hand on her waist and then asked if he could touch her there. Answer: “Oh, that's right. I'm sorry”. Defence went on to ask if he did touch her down there. She replied “yes”. Defence suggested the accused touched her because she said yes.

Answer: “yes, that's right”. [ 8 ] She was asked about the bathroom incident. Defence asked her if the accused stimulated her in the bathroom. Answer: “yep”. It was suggested there was lots of water. Answer: “Yeah right”. She was asked if that scared her. Answer: “yes, yes, right”. It was suggested she took her wet shorts and clothes and put them in hamper. She answered “yes”. Counsel suggested that they sat down and had pop together for 15 minutes after that. Answer: “ yeah ”. It was suggested that she asked the accused what happened with the water in the bathroom. Answer: “don't know”.

Counsel then suggested the accused told her he had to leave and gave her a hug and left. Answer: “yes”. Testimony of the complainant’s mother [ 9 ] The mother of the complainant testified that her daughter can do a lot with her left hand but doesn't do a whole lot with her right. She is not able to walk. She is bound in a wheelchair. She can move, do laundry for her and clean the counters. She gave evidence that she can understand her daughter. They communicate using sign language and if she is not able to understand, her daughter will write it down for her.

She said her daughter has been vision, hearing and speech impaired since birth. She testified her daughter finished high school. She attended a vocational high school and completed the basic course which I understand to be an adaptive course for those with intellectual challenges. The mother described her daughter's intellectual age being 16 or 17 years old. During cross examination she stated it could possibly be 19 with some things but gets confused with some other things. She indicated her daughter is employed with the Associated Persons with Physical Disabilities and works twice a week.

Her daughter folds and stuffs envelopes and does some looming. [ 10 ] The mother indicated that the accused is her brother-in-law. He attended all family functions and was very well liked. She indicated he was one her daughter’s favorite uncles and has been ever since her daughter could vocalize. When her daughter was younger she would visit the accused on weekends. Since her daughter was twenty-one or twenty-two she would go camping at a campground the accused owned in Noelville, ON.

The daughter has not been there in five or six years. [ 11 ] She was asked by the Crown if she has noticed a difference in her daughter recently. She indicated her daughter has been angrier all the time in the last year to year and a half, attacking her more. She indicated her daughter attacks her by riding at her with her wheelchair. [ 12 ] She testified that most of the time the accused would stop by the house when she was at work. She would know he had visited because she would see Tim Horton cups and would ask her daughter about it.

The mother indicated her daughter would not usually have visitors during the day. [ 13 ] She acknowledged in cross examination that her daughter could become quite vocal when she wanted something and when she didn't want something. Direct testimony of the accused [ 14 ] The accused testified about the incidents on August 8, 2009. He indicated that he went over to visit the complainant. They hugged and kissed. He said he gave her a “regular peck on the neck, cheek”. They both got a pop out of the fridge and sat together in the living room. He sat in a chair and she sat beside him in her wheelchair.

He indicates they were holding hands. He asked her if he could touch her breast and she said yes. They were kissing, this time it was french kissing. He pointed to her waistband and asked if he could touch her down there. She said yes. He indicated he started stimulating her clitoris and she seemed to be enjoying it. There was kissing and stimulation going on at the same time. She then flowed (his words), wet herself and then went into her bedroom to get another pair of shorts. She then went into her bathroom and he followed her.

He testified that he asked her again to see what had happened because he wasn't sure. He says he then inserted two fingers into her vagina. He testified that he had asked her and she had said yes. He said she was getting her old shorts off and new ones on. He took a towel and cleaned up her wheelchair and helped her with her shoes. They went back to the living room. She asked what happened. He said he didn't know. She was watching some daytime show and he said he had to leave and left.

[ 15 ] He confirmed the incident with the arm wrestling, indicating that he accidentally touched her breast and then continued to touch her breasts. He testified that he asked her if it was okay and she had said yes. He indicated this was the first sexual touching between the two (According to the question put to the complainant during cross-examination, the arm wrestling incident occurred when the complainant was twenty-four). With regards to any incidents at his campground, the accused indicated it was mostly just touching and he asked her every single time if he could touch her and she said yes.

He testified he would ask, “Can I touch you there, or point and ask”. He indicated that there was a time or two when she said she had enough or it's been enough and when “she has been hot and bothered and said that's enough”, and he would stop. He indicated he has never inserted his penis in her vagina. He indicated there have been attempts at oral sex. He testified he would show her his penis and she would either say yes or no. He would always let her initiate the first move. She would say no or put it in her mouth. He testified that the complainant did not say no on August 8, 2009.

Evidence of the accused given in cross examination [ 16 ] In cross-examination the accused acknowledged that he does not know or use sign language. He stated they talk or write in a journal to each other. He indicated there was no writing in the journal about sex. He acknowledged that he would supply the content of the communication and the complainant would say yes or no. He also acknowledges that the complainant’s English is really limited. [ 17 ] With regard to the sexual acts, it was the accused’s evidence that the complainant would initiate them.

He went on to testify that he would not stick his penis in her mouth but would let her come to it. He was asked how the complainant would initiate it and he responded by saying “I would show her my penis or would point to it and she would either say yes or say no”. It was put to him that it was really him who initiated the activity by taking his penis out. To that he responded, “Possibly”. The accused maintained that the complainant understood him and he believes she also can hear him. He believes he communicates with her effectively. [ 18 ] The accused testified the complainant has touched him sexually too.

There were times when he would put her hand on his thigh and she would move her hand up and touch his penis. [ 19 ] He disagreed with the suggestion that he would always visit when no one was home, but acknowledged that most visits occurred when no one else was home. He acknowledged that what he was doing with the complainant was not the right thing to be doing. He indicated he liked the attention and she also liked the attention, and it was their secret. In response to the Crown suggesting that she never asked him to do these things, the accused agreed.

The Crown then suggested that he did it to her anyway, to which he replied “he asked”. The Crown questioned whether he asked her if she liked it. He replied “no I asked if it was okay”. He denied touching her sexually first and then asking if it was okay. It was suggested to him that he knew the mother was at work and that's why he visited during the day. He agreed. He acknowledged that he is married and agreed that he visited when he did and without his wife so that they could be alone. He denies taking advantage of the complainant. He acknowledged that he brought tea or coffee from Tim Horton’s when he visited.

He agreed with the Crown that he was aware the complainant loved him from childhood as many nieces loved their uncles, but he denied taking advantage of that. [ 20 ] The accused disagreed with the mother that the complainant's intellectual age is 16 or 17. He testified that she is an adult. He went on to say that the mother gets her alcohol, let's her watch R-rated movies, holds a job, finished school, and therefore he believes she is an adult. He went on to state that he feels she is sophisticated enough to have a sexual relationship.

He also acknowledges that the complainant's mother would not have approved of the sexual relationship. He acknowledged thinking that if anyone found out he would have difficulty with his family and his wife, as he is currently. He again acknowledged that this all started with arm wrestling and an inadvertent touch of the complainant's breast. The Crown suggested that up until that incident he had been faithful to his wife but in a split second of touching her breast inadvertently he decided to be unfaithful.

He replied yes. [ 21 ] Referring to the August 8th incident in the bathroom, he admitted that he stimulated her to see what had happened with her flow. He repeated that he asked her if he could see what had happened. He says he wanted to touch her vagina to see if that is what caused the flow. He acknowledged this touching was as a result of his curiosity and sexual urge. He then admitted it was for his own sexual gratification. Position of the Parties

[22] The defence submits that all sexual activity was consensual and there is no vitiation of consent by the application of either s.265 (3)(

d) or s. 273.1 (2). The Crown argues the complainant did not consent to the sexual activity. In the alternative the Crown arguesif the court concludes that the complainant consented or is left with a reasonable doubt that she consented upon applying s. 265 (3)(d)and/or s. 273.1 (2) the Court should make a finding that the consent is vitiated. [23] The position of the defence is that the complainant was capable of consenting and did in fact consent to the sexual activity which occurred on August 8th, 2009. The defence argues that s. 265 (3)(

d) does not apply, nor do any of the subsections of s. 273.1 as theaccused is not in a position of authority or trust vis-à-vis the complainant. He points to the fact that the accused is an uncle by marriage,not by blood, and he is not in a care giving capacity to the complainant. He also points to the evidence given by the mother of thecomplainant that her daughter could be forceful when she doesn’t want something.

He further submits that cerebral palsy is a physicaldisability and although there may be some mental challenges with it there is no evidence before the court that the complainant isintellectually flawed to the point that she does not have the capacity to consent. Defence counsel points to the evidence of thecomplainant surrounding the incident with the accused penis, submitting that the complainant in her evidence in chief stated she wantedthe accused to touch her with his penis. He submits what we have here is two consenting adults agreeing to have an affair.

He admits itis inappropriate and may be disdainful, but is not criminal. [24] It is the Crown’s position that the complainant has severe cerebral palsy, is deaf, communicates with tremendous difficulty at thebest of times and intellectually is somewhere in the middling teenager range. [25] Crown counsel argues that there was no consent given by the complainant. Crown counsel asks the court to consider the totalityof the evidence given by the complainant to arrive at that conclusion.

He argues that it is clear from the entirety of the complainant’sevidence that she misunderstood the questions surrounding the penis incident. [26] Crown counsel points out that the accused in his testimony essentially outlined that not only did the acts occur as described bythe complainant but the sexual relationship goes back to the beginning of the last decade. The Crown submits it was an ongoingexploring of sexual acts over a number of years with his niece back to a time when she was younger, less sophisticated and thereforemore vulnerable.

The Crown points out if she is at an intellectual age currently of 16, 17, or 18, the court can infer she was even youngerintellectually when the sexual activity between the accused and complainant began. [27] The Crown submits that on all the evidence there was no consent as a factual matter, but beyond that the accused breached aposition of trust, power, or authority and any consent she may have given is vitiated.

Although the Crown submits that many of thesubsections of s. 273.1 and s.273.2 may apply depending on the factual findings of the court the Crown ultimately rests its submission ons. 273.1 (2) (c), arguing that the accused abused his position of power, trust or authority.

The Crown relied on a number of factors tosupport this position: - the timing, nature, and method of the visits; they occurred without the complainant or her mother knowing in advance that theywere going to happen; the complainant’s total lack of control or say as to the timing and duration of the visits - the accused was welcomed in the home because the complainant’s mother thinks he is there for a traditional uncle and niece visit - the Crown points to the ages of the two and the difference in sophistication between the two, particularly the lack of sophisticationon behalf of the complainant - the complainant’s personal, physical and developmental challenges [28] With respect to the incidents which occurred on the alleged offence date, Crown counsel submits that the entire sexual activityon that day amounted to a sexual assault.

He further submits that even on the accused’s own evidence the court can make a finding ofguilt. Crown counsel points to the evidence given by the accused surrounding the bathroom incident. The accused testified that hefollowed her into the bathroom to stimulate her again while she was sitting on the toilet, admitting that he did so out of sexual curiosityand for his own sexual gratification. ANALYSIS [29] A conviction for sexual assault requires proof beyond reasonable doubt of two basic elements, that the accused committed theactus reus and that he had the necessary mens rea.

The actus reus of assault is unwanted sexual touching. The mens rea is the intentionto touch, knowing of, or being reckless of or wilfully blind to, a lack of consent, either by words or actions, from the person beingtouched: see R. v. Ewanchuk, (SCC), [1999] 1 S.C.R. 330. [30] The crime of sexual assault is only indirectly defined in the Criminal Code. The offence is comprised of an assault within anyone of the

definitions in s. 265(1) of the Code, which is committed in circumstances of a sexual nature.

Section 265 reads: 265.

(1) A person commits an assault when

(

a) without the consent of another person, he applies force intentionally to that other person, directly or indirectly; (

b) he attempts or threatens, by

an act or a gesture, to apply force to another person, if he has, or causes that other person to believe onreasonable grounds that he has, present ability to effect his purpose; or (

c) while openly wearing or carrying a weapon or an imitation thereof, he accosts or impedes another person or begs.

(2) This

section applies to all forms of assault, including sexual assault, sexual assault with a weapon, threats to a third party or causingbodily harm and aggravated sexual assault. [31] As stated in Ewanchuk, supra, at paragraph 25: 25 The actus reus of sexual assault is established by the proof of three elements: (

i) touching, (ii) the sexual nature of the contact,and (iii) the absence of consent. The first two of these elements are objective. It is sufficient for the Crown to prove that the accused’sactions were voluntary. The sexual nature of the assault is determined objectively; the Crown need not prove that the accused had anymens rea with respect to the sexual nature of his or her behaviour: see R. v. Litchfield, (S.C.C.), [1993] 4 S.C.R. 333,and R. v. Chase, (S.C.C.), [1987] 2 S.C.R. 293. [32] Sexual assault is a crime of general intent.

The Crown need only prove that the accused intended to touch the complainant inorder to satisfy the basic mens rea requirement. See R. v. Daviault, (SCC), [1994] 3 S.C.R. 63. [33] As with the actus reus of the offence, consent is an integral component of the mens rea, only this time it is considered from theperspective of the accused. Sexual assault only becomes a crime in the absence of the complainant’s consent.

The common lawrecognizes a defence of mistake of fact which removes culpability for those who honestly but mistakenly believed they had consent totouch the complainant. “As such, the mens rea of sexual assault contains two elements: intention to touch and knowing of, or beingreckless of or wilfully blind to, a lack of consent on the part of the person touched.” : see Ewanchuk, supra, at par. 42. [34] There is no dispute in this case that the actions of the accused amounted to touching of a sexual nature.

The central issue in thismatter is whether the complainant consented to all of the sexual acts that occurred on August 8, 2009. [35]

Section 273.1(1) of the Code provides a specific definition of consent for the purpose of sexual assault: 273.1(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. [36] If the complainant consented, the question to be decided is whether that consent is vitiated by the operation of s. 265 (3)(

d) or s.273.1 (in full) of the Criminal Code. [37] With respect to the issue of consent as it relates to the actus reus of the offence of sexual assault, the Supreme Court stated inEwanchuk, supra: 36 To be legally effective, consent must be freely given. Therefore, even if the complainant consented, or her conduct raises areasonable doubt about her non-consent, circumstances may arise which call into question what factors prompted her apparent consent.

The Code defines a series of conditions under which the law will deem an absence of consent in cases of assault, notwithstanding thecomplainant’s ostensible consent or participation. As enumerated in s. 265(3), these include submission by reason of force, fear,threats, fraud or the exercise of authority, and codify the longstanding common law rule that consent given under fear or duress isineffective: see G. Williams, Textbook of Criminal Law (2nd ed. 1983), at pp. 551-61… (Emphasis added.)

[ 38 ] Section 265(3) reads as follows: 265. . . .

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

a) the application of force to the complainant or to a person other than the complainant; (

b) threats or fear of the application of force to the complainant or to a person other than the complainant; (

c) fraud; or (

d) the exercise of authority . (Emphasis added.) [ 39 ] Consent in connection with sexual assault is also limited by s. 273.1(2) of the Code. Consent in relation to the mens rea cannot be tainted by an awareness of any of the factors enumerated in ss. 273.1(2) which states: 273.1 . . .

(2) No consent is obtained, for the purposes of sections 271, 272 and 273, where (

a) the agreement is expressed by the words or conduct of a person other than the complainant; (

b) the complainant is incapable of consenting to the activity; (

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

d) the complainant expresses, by words or conduct, a lack of agreement to engage in the activity; or (

e) the complainant, having consented to engage in sexual activity, expresses, by words or conduct, a lack of agreement to continue to engage in the activity.

(3) Nothing in subsection (2) shall be construed as limiting the circumstances in which no consent is obtained. (Emphasis added.)

[40] In addition, s. 273.1(3) provides that, “Nothing in subsection (2) shall be construed as limiting the circumstance in which noconsent is obtained.” [41] There is some concern on my part as to whether or not the accused has the intellectual capabilities as outlined by her mother. Theresponses given by the complainant to some of the questions asked has caused me some concern as to whether the complainant’sintellectual age is below that of a 16 year old. I even have some concern that the complainant could understand or comprehend the sexualactivity in question.

But the only evidence I have as it relates to those concerns comes from the mother. It might have been helpful tohave more scientific/expert evidence on those issues. Despite my concern I don’t feel it would be proper of me to come to any otherconclusion then what the evidence supports. One would think the mother should know at what level of intellectual ability her daughteris performing. Some of the complainant’s answers regarding whether she consented to the sexual activity on the date of the allegedoffence and any sexual activity that occurred prior to that date are ambiguous.

As a result I cannot conclude that the complainant did notconsent to the sexual activity, including on the offence date. In other words, there is reasonable doubt about the lack of consent. [42] As stated in Ewanchuk, supra, once it has been established there was consent, or a reasonable doubt about the lack of consent hasbeen established then it becomes necessary to consider whether the complainant agreed for one of the reasons which in law vitiate herconsent.

If the prosecution shows, beyond a reasonable doubt, that the decision to consent was motivated by one of the factors listed in s.265 (3) or s. 273.1 (2) in such a way that her freedom to choose was thereby vitiated, the law considers that there was lack of consent andthe physical element of the sexual offence is thereby established: see Ewanchuk, supra, at para. 40. [43] The onus is on the prosecution to prove that any consent was vitiated: see Ewanchuk, supra. [44] The Supreme Court of Canada in Norberg v.

Wynrib (1992), (SCC), 92 D.L.R. (4th) 449, analyzed the conceptof “exercise of authority” by considering the issue from the standpoint of assault, referring, inter alia, to subs. 265(3) of the Code(formerly 244(3)). LaForest, J. noted that the causes of invalidation specified in the provision were not new in law and that Canadiancase law has long recognized that the exploitation of a person’s vulnerability vis-à-vis another person can affect the validity of theconsent. [45] Alain Morand, J.C.Q of the Court of Quebec in the case of R. c. H.H., 2007 QCCQ 4738, gave a good and accurate

summary ofthe law surrounding “exercise of authority” since the Supreme Court’s judgment in Norberg; paragraph 31reads as follows: [31] The following principles emerge from this Supreme Court judgment and from subsequent case law:[8] - the circumstances of each case need to be examined to determine whether an overwhelming imbalance exists in the powerrelationship between the parties; - if it can be proven that there was such a disparity in the relative situations of the parties, that the weaker party was unable to choosefreely, consent in the case of sexual activity will be regarded as legally ineffective for reasons of public policy; - the exercise of authority means the ability to influence the behaviour of others in such a manner as to make them consent to sexualactivity and is not limited to the right to command or to force obedience; - irrespective of the nature of the relationship between the accused and the complainant, the purpose of subsection 265(3)(

d) of theCode is that the consent must be valid and actual; - the court must carefully consider the nature of the relationship between the parties in order to determine: (1) the existence of animbalance in the power relationship between the parties, (2) exploitation of this imbalance, and (3) the causal effect of this exercise ofauthority on the consent given by the complainant; - if the type of sexual intercourse in question deviates sufficiently from the norms of social conduct, this may alert the court to thepossibility of exploitation. [46] The protection of the vulnerable and the weak and the preservation of the right to freely choose to consent to sexual activity isclearly the aim of s. 273.1(2)(c): Ewanchuk, supra at 496-98; R. v.

Audet (1996), (SCC), 106 C.C.C. (3d) 481 at 490ff(S.C.C.); Norberg v. Wynrib, supra. at 460-64. [47] After careful consideration of all the evidence I find that the complainant’s consent was vitiated by the exercise of authority,within the meaning of subparagraph 265(3)(

d) and the abuse by the accused of a position of trust and authority within the meaning of273.1(c), and the case law, for the following reasons:

- the complainant’s chronological age was 32 but according to her mom her intellectual age was as low as 16; on the evidence before the court at the time the sexual activities began, the complainant was 20 or 21 years old; - the accused’s physical, intellectual and social skills were vastly superior to that of the complainant’s; it is obvious to anyone that the complainant is a special needs person; it is hard to imagine anyone more in need of protection, other than perhaps children of tender years; - the complainant was the accused’s niece and he was her favourite uncle since she was old enough to express herself; the accused was an important adult figure in the complainant’s eyes for many years; he was aware that the complainant has loved him as an uncle since childhood; - the accused benefitted from this situation which gave him easy access to the complainant; he was a trusted family member by the complainant’s mother (her caregiver); - the accused, who was married, visited the residence of the complainant alone at the accused’s instigation, at times that were convenient to him, and when he knew no one but the complainant would be home; he admitted this was on purpose so that they could be alone; - the method used by the accused to intiate the sexual activity; he would touch her and then ask if it was okay, he would show her his penis and wait for her to move towards it or say no; (although he does not see these actions as him initiating the sexual touching I strongly disagree); the accused agrees that the complainant never asked him to do any of the sexual things they engaged in; - the complainant was vulnerable (confined to a wheel chair because of the debilitating effects of cerebral palsy; vision, hearing and speech impaired since birth); the accused dominated and preyed on the complainant in that situation in order to use her solely for the purposes of appeasing his sexual appetite, with no other intention, on his own admission (the August 8, 2009 bathroom incident); - the accused described their sexual relationship as “their secret”; language that is eerily similar to that used put sexual predators and heard so often in trial courts. [ 48 ] As a result I conclude that the totality of the evidence shows beyond a reasonable doubt that the accused exploited an overwhelming inequality to his own advantage, abused a position of trust and authority to influence and manipulate the complainant, thereby vitiating any consent the complainant may have given.

It is abundantly clear that there was such a disparity in the relative situations of the parties that the weaker party (the complainant) was unable to choose freely. As well, for reasons of public policy (fairness and the doctrine of unconscionability) it is my view that on the facts and circumstances of this case any consent of the complainant requires it to be regarded as legally ineffective. [ 49 ] Consequently, I conclude that the evidence as a whole demonstrates beyond a reasonable doubt that the accused had the requisite actus reus and mens rea necessary to be found guilty of the offence of sexual assault.

Dated: April 19, 2011 ________________________ Judge Lloyd Dean