r v. D. W., 2017 QCCQ 16221

R. c. D.W. 2017 QCCQ 16221 COURT OF QUÉBEC CANADA PROVINCE OF QUÉBEC CITY OF MONTRÉAL "Criminal and penal division" N° : 500-01-094348-130 DATE : July 11, 2017 ____________________________________________________________________ BEFORE THE HONOURABLE JUSTICE DANIEL BEDARD, J.C.Q. ____________________________________________________________________ THE QUEEN Prosecutor v. D. W. Accused ____________________________________________________________________ JUDGEMENT ____________________________________________________________________ INTRODUCTION [ 1 ] Mr. D.

W., born on [...], 1967, faces the following accusations: “1- Between November 1, 2007 and April 30, 2008, in Montreal, district of Montreal, did touch for sexual purposes a part of the body of X, a young person towards whom he was in a position of Trust and authority or being a person with whom X was in a relationship of dependency, committing thereby the indictable offence provided by section 153(1) a of the Criminal Code ; 2- Between May 1, 2008 and May 21, 2009, in Montreal , district of Montreal, for a sexual purpose, did touch a part of the body of X, a person under the age of sixteen (16), committing thereby the indictable offence provided by

section 151a) of the Criminal Code ; 3- Between May 1, 2008 and May 21, 2009, in Montreal, district of Montreal, for a sexual purpose, did invite, counsel or incite X , a person under the age of sixteen (16) years, to touch him, committing thereby the indictable offence provided by

section 152a) of the Criminal Code ; 4- Between May 22, 2009 and December 31, 2010, in Montreal, district of Montreal, did touch for sexual purposes a part of the body of X, a young persons whom he was in a position of trust or authority or being a person with whom X was in a relationship of dependency, committing thereby the indictable offence provided by section 153(1)

a) of the Criminal Code ; 5- Between May 22, 2009 and December 31, 2010, did, for sexual purpose invite, counsel or incite X, a young person, to touch him, being in a position of trust or authority towards him or being a person with whom X was in a relationship of dependency, committing thereby the indictable offence provided by section 153(1) b of the Criminal Code ; 6- Between November 1, 2007 and December 31, 2010, did commit a sexual assault on X, committing thereby the indictable offence provided by

section 271a) of the Criminal Code .” [ 2 ] There is no litigation concerning the constitutional rights of the accused and identification is admitted. [ 3 ] Since May 1, 2008, the age of consent is 16 years instead of 14 years as was the case before the modification. [ 4 ] The plaintiff was born on [...], 1993, which explains the dates specified in each count. [ 5 ] The defense is one of denial of any act or gesture of sexual nature towards or with the plaintiff, consequently the Court deals with contradictory versions where credibility and trustworthiness are the central parameters of the analysis. [ 6 ] The plaintiff and his sister testify for the prosecution and the accused and his wife testify in defense.

ISSUE TO RESOLVE A. Does the Court believe in its totality the defense consisting of the testimonies of the accused and his wife? B. If the answer to the first question is negative, are there conflicts between the evidence of the defense and that of the prosecution that

the Court is unable to resolve? C. If the answer to the second question is negative and the Court thus rejects the defense in its totality, does the evidence of the prosecution convinced the Court beyond a reasonable doubt that the accused is guilty? FACTS [ 7 ] In this section, when the Court mentions “during the period”, it refers to the 2007-2010 years. [ 8 ] The first witness for the prosecution is the plaintiff X, born on [...], 1993, who turned 24 the day preceding the beginning of the trial. He explains that he is a transsexual male and was previously known as a woman.

After the alleged abuse, her birth certificate was modified to include her new gender and name. Previously, he was known as X. As of today, he has undergone a double mastectomy. From 2007 to 2010, he was known as a woman. [ 9 ] In November 2007, the plaintiff is aged 14 years old and lives in Town A with her parents. There is also her brother E. at home but her three sisters live elsewhere. The situation at home is not pleasant. There is abuse of language, her brother and father yell at each other.

She is nervous and scared. [ 10 ] The plaintiff goes to school and calls her sister J., who is eight years older than her. She meets her sister in the parking lot of the grocery store Maxi. The accused is with her sister. They go in the store to buy groceries for a meal and then drive to the townhouse where the accused lives. The accused is the one driving. Also in the house, there is the boyfriend of her sister and others. [ 11 ] They enter, removed their coats and the accused removes all his clothing except his boxers. During the meal preparation, the plaintiff discusses with her sister in the living room.

Her muscles are sore due to lack of exercise. The accused tells her that he is a registered massage therapist and offers to massage her. [ 12 ] After dinner, she and the accused go upstairs in the room where the massage table is set up. It is a very small room, tiny in fact. The accused is still in boxers, whereas she is wearing a T-shirt and jeans. Candles are lit and she sits on the table as does the accused. They talk. The plaintiff affirms that right from the start, she concludes that the accused could be the father of anybody in the house.

The accused sits on her left and they discuss football and other sports. The accused tells her that he discussed her situation with her sister and asks her what was going on at home. [ 13 ] The plaintiff tells him about the situation at home and finds the accused sympathetic. The accused installs a sheet on the table, tells her to undress and to go under the sheet. The accused does not look. It is the first time the plaintiff gets naked in front of a grown man. [ 14 ] While laying on her stomach with her head in the hole of the massage table, the accused makes her smell oils and she chooses almond oil.

She lifts her head looks around and sees that the accused is naked. While the accused massages her back, legs and arms, he also puts two fingers in her vagina and moves them a bit. [ 15 ] The plaintiff then turns herself on her back, the massage continues and once more the accused revisits her genitals. He asks her if she would like or dislike more and the plaintiff is not at ease. [ 16 ] The plaintiff asks the accused to lay on her. When she is anxious, if she is wrapped, it appeases her. So as demanded, the accused lay on her. Nothing else happens.

Then the accused leaves the room and the plaintiff lays there a few minutes, gets clothed and returns downstairs. [ 17 ] She affirms that she is nervous, curious and aroused, by the situation. On the massage table, she tells the accused that she was abused, when aged seven years. The accused asks her if she has consulted a therapist and the plaintiff confirms that she did, but it wasn’t a success. The accused tells her before the massage that, he is or was on training as a sexologist. She doesn’t know what a sexologist is.

She also discusses sexual dysfunctionality following the abuse and she is answered that things can be done. There is no discussion during the massage and the accused doesn’t say anything concerning him. [ 18 ] Why does she stay in the room? The plaintiff does not know what her options are and she is curious and aroused. She does not say no or yes to the sexual touching during the massage. [ 19 ] Once downstairs, her situation is still discussed. The accused tells her that she can come to the house, to watch television, movies, for a massage and others. They speak about paganism, since there was a coven.

The accused asks her how old she is and she answers fourteen, which school she attends and which grade. Could she find his daughter Y and she answers that she knows her, she is in a lower grade. [ 20 ] She leaves by bus and then forwards to the accused the email address of his daughter, if the Court understands clearly. [ 21 ] The plaintiff confirms returning to the townhouse in Town B. It was a weekday, after school. Some people were in the house. The accused is still in boxers. They discuss Y, the daughter of the accused.

Everybody is normal including the accused. [ 22 ] The accused asks her, if she is still in sports, if her muscles are still stiff. It’s a yes and no for a massage. She is curious and aroused about sex and likes the way her body feels after a massage. She feels that the accused wants to help her with her situation at school. [ 23 ] She thus receives a massage, similar to the first one. It lasts around 30 minutes whereas the first one was longer, approximatively 45 minutes. No sheets the second time, directly on the leather.

The accused is naked and after the massage tells her that he is getting dressed and going down.

[ 24 ] At the beginning, the plaintiff goes to Town B, once every two weeks and her parents do not know. The plaintiff knows quite well Y, daughter of the accused, from age 14 to seventeen and a half. [ 25 ] Why does she go to Town B? To get away from home. [ 26 ] The accused then moved in an apartment, in Town C, designated as Town C in the judgment. The accused was living there with C. and Je.. There was also Y, in and out. Sometimes her sister J. was there, if not, she was at work. The plaintiff also went at Town C for the massages that she liked and appreciated.

She never saw any diploma confirming that the accused was a massage therapist. She thinks that at the time, Je. is the girlfriend of the accused. She does not witness anybody else getting a massage. The discussions with the accused are various and as an example they discuss driving and the accused helps her with driving lessons. She knows that the accused receives welfare, and the latter speaks about his life in the army. The accused is kind of an uncle to her. They speak about Y. She feels quite good in the house, at ease, and it is quiet.

For her, it is a safe place from home, she has meals and watches movies. [ 27 ] The accused seems to be the person in charge of everything. At one point, her sister J. doesn’t live with the accused or at the accused’s place anymore. After Town C, the accused moves at Lake ([Lake A]). At Town C, the massage is done on a single bed and at Lake, the massage table is in the master bedroom. [ 28 ] When the plaintiff turns sixteen of age, the massage includes penetration, in the accused’s bed. [ 29 ] The first time, the accused lays on her and penetrates her for a while.

He wants the plaintiff to flip and he starts with his tongue and stops because the plaintiff says no. The plaintiff wants to massage the accused since it means that she will not receive or will avoid a massage. [ 30 ] On the massage table, she remembers while her head is in the table hole, touching his penis and also giving a blow job on the bed. The accused chooses the bed for a massage even if the table is there and available. Two times, the plaintiff chooses the bed because it permits discussion. The accused initiates the sexual touching.

He also counsels on how to go about with the teachers with whom she has problems. He is sympathetic to her situation. [ 31 ] The accused does not ask her to touch his penis, when it takes place while she has her head in the hole of the massage table. [ 32 ] Je. cannot ignore what his going on between her and the accused, since she is in the house at the time. [ 33 ] Why does she keep going? Because she does not want to stay home, because of the meals, the massages and the fact that it is different. [ 34 ] She summarizes the situation by saying that the accused and her, are at the time, friends with benefits.

The accused is almost family. [ 35 ] At Lake, when she is 16 or 17 years old they started kissing in the massage room and the accused kisses her intensely. She does not respond and tries to break it. As for penetrations, it happens more than once at Lake, when she is sixteen. At Lake, penetrations go on for about a year. [ 36 ] When does it end? Around Christmas, at the time, she is aged 17 years.

She stops sporting activities, has no consequences from authorities or coaches and that gives her courage to stop the relation with the accused and she is not sure about her sexuality. [ 37 ] She fears the accused since she sees him hit his two dogs. So she is afraid he will hit her also and having sex with him is violent in itself. Maybe the accused could force her to have sex with him. [ 38 ] She also sees the accused beat C.. C. is a submissive and she wears a collar.

She sees the accused put C. against the wall and beat her with the back of his hands. [ 39 ] The accused never tells her not to say about the sexual relation. At the time, she is really fed up or done with sex between her and the accused and is not willing to continue. The accused never puts a condom and sometimes he bites her. He stops upon her refusal to be bitten. [ 40 ] In December 2010, she shows up at Lake for the last time. She is aged 17 years. Several months later, she discovers that the accused operates a renovation business. She helps him, gets paid and no sex is involved.

Nervous at the beginning, but relaxed after getting paid. [ 41 ] In her head, the plaintiff has always known that she was a male. The accused is aware of the situation and tells her that hormones are possible. She is 14 years when they discuss that situation and maybe five such discussions take place over the years. [ 42 ] When the plaintiff turns 18, she does not celebrate with her family. [ 43 ] It is because of Y that she goes back, during that period. She is also intrigued by the massage, curious. She then knows that it is sexual, that it is wrong, that the accused could be her father as for age.

It felt good and to some extent she wanted it. [ 44 ] Why go to the police in 2012? Because at the time, she has a hard time with sexual relations with her partner and she links it to the accused. What she lived with the accused was traumatic, she was too young, he was too old and it was morally incorrect. [ 45 ] At the time, the accused is helping her in various ways, with her situation at home and school. He makes her feel special and nobody gets the same treatment from the accused. [ 46 ] The last time she sees the accused is in August 2011, at the end of the contract.

The accused listens to her when she speaks to him about her problems, but he never takes sides. He is the only one to whom she speaks about her problems.

[ 47 ] Cross-examined, the plaintiff, doesn’t know for how long her sister was living with the accused. At the time, she has no relation with her sister. [ 48 ] Why is she certain that the first time at Town B is in 2007? Because of the school exams. The accused is there, her sister J., S., M. and Je.. [ 49 ] The plaintiff qualifies the relation with her parents, as decent. The verbal violence at home is not against her, but towards her brother. In 2007, she has no clue with whom J. is living. In the parking lot of the Maxi, the accused drives, not Je..

She doesn’t remember if they have a car and only remembers a van. [ 50 ] When she goes at Town B the first time, it is after school and she eats before the massage. She stays a few hours, leaves by foot and takes the bus. [ 51 ] She is invited by the accused to go upstairs. She does not discuss her past abuse in front of all the people, doesn’t think so. She goes to Town B every two weeks and cannot describe the second floor. [ 52 ] Does she remember showing up at Town B at three o’clock in the morning? No. She doesn’t know when J. moved out of Town B.

To her knowledge Je. is at the time, a dancer and the accused doesn’t work. She never sees N. at Town B. She meets her at Lake. At Lake, there is Je., the accused, C., Y sometimes but not N.. In [Street A] or [Lake A], she visits maybe ten times. After [Street A], she doesn’t remember Town D. [ 53 ] She visits at Town C a few times. The apartment is fairly small and located on the top floor. She has sexual contact with the accused in the bedroom, on the bed. Y is also there when sexual contacts take place .C. also lives there and there is no sexual intercourse with the accused at Town C.

During this period, she is not speaking to her sister J.. [ 54 ] She visits at Lake several times. That is where she meets N. but doesn’t know if she lives there. [ 55 ] After Lake, she visits at Town E, in [...]. She does not visit often and it’s when she works for the accused. [ 56 ] What does she know about the relation between Je., the accused and J.? Nothing is the answer. [ 57 ] She knows that C. is a submissive (BDSM terminology), more precisely controlled. It’s C. that confirms it to her.

She never witnesses sexual activities in the house, nobody speaks about it, and neither do they discuss BDSM. [ 58 ] She is present in the house when C. is disciplined but as for the beating it takes place at Lake. The accused discusses with her as to the possibility of discipline and the wearing of a collar. She is then 16 or 17 years and it takes place at Lake. The collar is buckled in the back. [ 59 ] Was the accused violent with her? She answers that the accused had sex with her, without her consent. Four times the accused tries to go on her, she refuses and he tries again.

The accused says to her that he would like to collar her. [ 60 ] Did she follow the accused to each place where he was moving? They both did. The accused would text her to come. It was mutual. [ 61 ] The people in the house made it clear that they were polymorphous, sexually speaking. [ 62 ] Her relation with Je. is correct. She never comes in the room when she is with the accused. She doesn’t advise her sister concerning her relation with the accused. [ 63 ] Was she aware that the accused was affected by erectile dysfunction?

She notices that he seems to have difficulty with his erections, she realizes that at Lake. She had seen Viagra pills. [ 64 ] Before Lake, the plaintiff sees the penis of the accused five or six times. In December 2010, she has her last sexual contact with the accused. She graduates from high school in June 2010. When she works for the accused, it involves the destruction of a deck and she doesn’t remember who pays her. [ 65 ] At Lake, she asks them to live with them. She is 17 years old and there is verbal violence at home.

She wants to know what kind of conversation they must have before, in order to determine if they are compatible. That replaces her first answer. [ 66 ] What problems does she have at school? Problems with her math teacher, bullying also is a problem. [ 67 ] The two times when the accused massages her, does he lay on her? The first time at her request. She does not speak about her gender the first time the accused massages her. She watches movies with all of them and she helps cleaning.

When in a room with the accused, it can last from 20 minutes to three hours. [ 68 ] At Lake, who was in a relationship and with whom? Cannot really say. She views the accused as an uncle, more than a friend. [ 69 ] How can she see him as an uncle? The answer is not clear. [ 70 ] When is the first time she fears the accused? When she sees him for the first time, but she really starts fearing the accused when she witnesses the episode with the dogs and with C. at the end of 2010. But she keeps visiting notwithstanding these incidents?

The answer is positive. [ 71 ] The accused never obliged her to do things, never obliged her to come visit and was never mad if she did not visit. Between 2007 and 2010, the plaintiff estimates that they have five or six sexual relations and that the accused has a hard enough erection.

[ 72 ] During that period, she lied to her parents as to her presence at the accused’s house. The second witness for the prosecution - J. N., administrative assistant [ 73 ] She meets the accused in college, probably in 2003. She lives with him at Town B for less than a year. The accused is already living there with M., Je. and possibly a fifth person. She contributes $ 300 per month. She is not at ease at home with her parents and that explains her move.

The accused leaves the leased premises on July 1, at which time she is not living there anymore. [ 74 ] At the beginning of her stay in the townhouse leased by the accused, she is with J3., then with S.. Her room is on the second floor. There is one small room, a middle room that she occupies and the master bedroom occupied by the accused and M.. At the time, Je. occupies the third room. The accused is then, in college, full time. [ 75 ] Her relation with her sister is scarce. It is not a close relation.

She comes to visit, speaks with the accused and his daughter Y. [ 76 ] She doesn’t remember the first time the plaintiff visits her. She is there when her sister visits. On occasions, her sister goes with the accused to talk. The plaintiff does not speak to her about the situation at home. Her sister visits for a talk or a massage. The massage table is in the first bedroom. There is a bed on the floor and a massage table that can be unfolded when a massage takes place. With a white cotton cover.

She cannot say how many times she is present when the plaintiff visits with the accused. [ 77 ] Once while she is there and the plaintiff visits, she asks the accused what is going on upstairs. She is curious. The accused answers that the plaintiff never had a conversation with no one before. He says that they discuss and he gives a massage to the plaintiff. He adds that everything is consensual. At the time she is seventeen going on eighteen. [ 78 ] She never witnesses BDSM at Town B. How then does she know about it?

She attends a BDSM gathering during her stay at Town B and notices that the accused is a dominatrix. [ 79 ] The accused and her sister can stay upstairs from 15 to 60 minutes. Her sister is happy after. The accused is a very generous and active person. He is the one leasing. At the time, M. is the partner of the accused. She doesn’t think that the accused is with Je. at the time. She leaves the premises at the beginning of July. [ 80 ] Cross examined, she believes that she enters at Town B in 2004. She starts the relation with S. in 2007. While at Town B, she has sexual relations with the accused.

S. is sometimes with her in Town B, so it has to be in 2007. [ 81 ] She remembers the accused calling her at three o‘clock in the morning in panic. The plaintiff was at the door of the accused’s residence, having visions and the accused was refusing to let her in. He was asking her to come and pick up her sister. She did and brought her sister to her parent’s home. [ 82 ] She does not remember the episode of the Maxi. She does not know if she introduces her sister to the accused, she doesn’t know how they met. Maybe the accused drives a red SUV, when at Town B.

After M., Je. becomes the partner of the accused. [ 83 ] She remembers the accused and Je. living at her place for about two weeks. The massage table is mobile so it can be anywhere in the house: dining area, master bedroom or elsewhere. In defence the accused testifies [ 84 ] Aged 50 years old, he is in the towing business. He is married to Je. since three years and a half and they have been together for approximatively ten years. [ 85 ] He stayed at Town B for about four years. In college, he was in professional theatre design and then in social psychology. He didn’t graduate.

At Town B there was M., Je., El., J., J3. who left and came back and other roommates. [ 86 ] He is married and it is an open relationship. They are polymorphous, which means that the couple can be more than two. In order that there be a third person, both have to care and like that person. If not then it’s not possible. In 2007, there is a triangle composed of him, Je. and N.. The same in [Street A]. Then he resides in Town D, Town C, then at J.’s place for two months, then at Lake and finally at Town E, in Town F. [ 87 ] As for BDSM, the accused and his wife attend fetish clubs or meetings.

Je. is a switch and he is a dominatrix. It is not a daily activity, maybe once a month and less since they have a child. N. and C. were also part of BDSM and C. was poly, meaning that both could sleep with her. The accused and his wife can have sexual relations with others but it must not be a secret. If one is not advised then the other must tell him or her right away after the sexual relation with a third person. Furthermore, one can impose his or her veto, prohibiting a sexual relation with that third person. [ 88 ] The accused submits that it is impossible for the plaintiff to ignore it when she is visiting.

It is discussed. [ 89 ] As for J., he meets her in college, she moves in with him, moves out and comes back. At the time, she has problems at home. [ 90 ] He meets the plaintiff for the first time in the parking lot of the Maxi. They pick her up in the afternoon. The car is a Ford Taurus and belongs to Je.. Then they go home and spend most of the time in the living room. X wants to speak about something so they go at the top of the stairs. The accused is wearing gym shorts. There is no air conditioning in the house and that is what he usually wears,

sometimes with a T-shirt. We are in summer or fall. There is no massage room, it is impossible. He occupies the master bedroom with Je., J. and S. another bedroom and that leaves a very small bedroom, also occupied. The massage table is by the dining room. The massage table does not fit in the small bedroom or it does but then, that leaves no space to circulate. [ 91 ] The accused is alone with the plaintiff at the top of the stairs. They discuss Y, maybe bisexuality and afterwards they return downstairs. The accused has five children, the last one has Je. as mother.

After Town B, they move to [Street A] and Y who is 14 years old at the time, moves in with them. [ 92 ] How many times does the plaintiff visit at Town B? According to the accused, three times, the last time is when she is at the door, in a state of panic, saying that aliens want to kidnap her. He makes her wait outside, on the balcony, telephones J. who comes and picks her up. [ 93 ] Never is he alone in the house with the plaintiff. At [Street A], there is him, Je., Y, N. and one roommate Ch..

The plaintiff visits three times maybe four. [ 94 ] The plaintiff has been released from hospital following mental health problems if the Court understands well. When the plaintiff visits, it is to see Y and her stay is as long as the time between two buses. Indeed, she gets off one bus, visits and takes the following bus. She is under a curfew imposed by her mother. The accused knows that the plaintiff is older than Y and according to him, they are not close friends. [ 95 ] When the plaintiff visits at [Street A], she first speaks with Y and then comes down to see the adults.

He is never alone with her and there is no massage. He is not a registered massage therapist. The massage table is probably in the master bedroom and at the time, the accused and his partner Je. are polymorphous with N.. [ 96 ] The accused doesn’t reside for a long period of time in Town D, maybe six or seven months. There are Je., Y, J4 and him for a short period and C. that moves in. At the beginning, C. is friend with N. and there is no poly. The plaintiff visits two times for sure not more than three. The first time she comes on her bike and Je. drives her back home. They all talk together.

The second time the plaintiff wants to speak to him in private, so they go in the master bedroom. The doors are kept open and his wife Je. comes up every five minutes to check, because neither of them trust the plaintiff who is schizophrenic and bipolar. This information comes from the plaintiff. [ 97 ] At one point, the accused and his wife voice their concerns concerning the plaintiff while at the restaurant with the plaintiff’s sister, J..

As for the discussion in the master bedroom, the accused does not precisely remember but the sexuality of the plaintiff and the fact that she felt caged by her mother were discussed. He doesn’t recall discussion about gender. Both times, the plaintiff arrives on her bicycle. [ 98 ] At Town C, they stay between four and six months. It is a small apartment, a four and a half. C. takes the living room, Y the small bedroom and the accused and Je., the master bedroom. The plaintiff visits on numerous occasions. She works at the nearby pool. The accused is not in school and does not work full-time.

The plaintiff visits and stays for dinner a few times. The accused is never alone with the plaintiff, nothing happens in the master bedroom and no massages take place. [ 99 ] Afterwards, the accused, Je. and Y stay at J.’s place for a few weeks. The plaintiff doesn’t visit and Y is fostered in a family, since there is no sufficient space. The Direction of Youth Protection intervenes in the life of Y on many occasions. It is not related to referrals of sexual nature, given the answer of the accused. [ 100 ] At Lake, the plaintiff comes often and Y is back with the accused.

He has a small contract to execute and the plaintiff helps. The plaintiff turns eighteen while they are at Lake. On December 28, 2011, the accused is bitten by his dog, an infection occurs and he is on intravenous antibiotics for four months. His last scan for his hand takes place in May, 2012. [ 101 ] The plaintiff shows up on numerous occasions while he is in on intravenous treatment. He is not in good condition and his wife advises the plaintiff that he is not available. The plaintiff is not happy with the situation. [ 102 ] When does the accused have a sexual relation with the plaintiff?

Two or three days after her birthday when she turns eighteen. [ 103 ] The plaintiff wants to learn massage therapy and finally he agrees, as a birthday gift. He gives her a massage, she wants more and he decides to go ahead and has a sexual relation with the plaintiff. His wife is in the house, but the subject is not discussed between them before. Je. is annoyed with the plaintiff, considering her attitude towards her, which has been going on, for a period of time.

Each time, there is a sign of tenderness between him and his wife, the latter gets dirty looks from the plaintiff, who is always clinging around him. [ 104 ] Sexual intercourse takes place in the master bedroom. [ 105 ] Afterwards, the plaintiff visits more often, but the accused has problems with his hands. Then she disappears for three months and they learn that she is hospitalized. At St-Mary, the plaintiff shows up for one day, for the deck.

After that day, the accused sees the plaintiff one more time. [ 106 ] When Y moves back with her mother, the plaintiff and the half-sister of Y show up in a car to see her. [ 107 ] The accused has no driving licence until 2015. At the time, his licence is suspended for ten years for unpaid tickets that amount to more or less $5,000. The accused denies giving driving lessons to the plaintiff, as she affirms in her examination. The accused does not take Viagra pills, they do not work for him, Cialis pills are better.

He takes one or one and a half pills before a sexual relation and it can be effective up to two days, but usually one. [ 108 ] The accused denies a relationship with the plaintiff and he doesn’t really know more concerning her than anybody else. He always since the beginning, keeps his distance. The plaintiff always visits in the afternoon and is gone by nightfall. The plaintiff stays for

dinner during the period maybe five times, total. [ 109 ] The plaintiff never touches him sexually and had she touched him, it would have been the first and the last time. [ 110 ] Why does the plaintiff stop visiting? Maybe the plaintiff was angry because he was not available. [ 111 ] J. is at the time of Town B, a friend with benefits. [ 112 ] Cross-examined, the accused states that J. and her boyfriend are an open couple as he and his wife are. Meaning partner- swapping. [ 113 ] The plaintiff never witnesses BDSM when visiting. C. had a necklace, not a leather collar.

She wore a symbolic necklace given to her by him and Je.. [ 114 ] As for the dogs, the accused smacked them on the nose. He was training his dogs for recue purposes and explains. As for school problems, the plaintiff discusses the issue with Je. when she visits. Most of the time, the plaintiff does venting when she is with them. He doesn’t remember school problems. Je., N. and C. are bisexual. [ 115 ] The plaintiff spoke about her abuse in the past in front of everybody. [ 116 ] The accused is a towing operator since 1986, on an-on and off basis.

Presently full-time since two years. [ 117 ] The accused explains his educational history. He has no high school diploma. He enters John-Abbott, two years after, and enrolls in professional Theatre Design and Technologies. He quits to return at age 35. Does not pursue and switches to social psychology, receives loans and bursaries. Does not graduate. Enrolls in anthropology at Concordia University with minor in sexuality. Does not graduate. During that time, he leases at Town B. With M. at the beginning then with Je. who works at the Café A, as a nude dancer. [ 118 ] She is seventeen when he meets her.

She said she was eighteen at the beginning. She had written an erotic story with werewolves on a website, so he communicated with her. [ 119 ] When J. comes to live at Town B, he is not with M. anymore even if she is still there. There is also El., for a short time. J. leaves and moves back in, after the arrival of Je.. S. is living at Town B when J. comes back. [ 120 ] The accused then answers questions concerning Y and his problems with the Direction of Youth Protection over the years.

The accused affirms that Je. is the person who first gets in touch with Y, after the plaintiff offers her to do so. [ 121 ] He meets the plaintiff at Maxi for the first time and he doesn’t know how it came about. [ 122 ] At Town B, the master bedroom is occupied by him and Je., J. and S. each have their own room at the beginning. The massage table is in the living room. When younger, the accused worked for Ambulance St-Jean and took a course in sport medicine, course that he completed. That is when he learned about massages. The massages given to customers are given at the customer’s residence, rarely at home.

At Town B, the massage table can also be located in the second biggest bedroom, when the room is not leased. The cubicle room is utilized as a bedroom, but previously as computer room. The massage table cannot be unfold in the cubicle room because if the case, there is no more space available to move around. [ 123 ] The first time the plaintiff visits, she wants a private discussion with him. The discussion doesn’t take place in a room upstairs.

The accused considers that the plaintiff is too young to be alone with her. [ 124 ] The accused thinks that J. had said to the plaintiff that he had a good gay friend and the plaintiff wanted to know how his gay friend dealt with his sexuality. They also discuss Y and it is the plaintiff that provides Y’s email to Je.. He denies going upstairs in a room with the plaintiff as he denies saying to J. that everything was consensual. [ 125 ] How does he know that it is at three o’clock in the morning that the plaintiff knocks at his door?

He remembers because Je. and N. finish dancing and arrive at Town B between three thirty and four o’clock in the morning, so he can pinpoint the hour when the plaintiff shows up. That incident takes place in the fall, probably. [ 126 ] Why not let her in the house? The accused answers that working for Ambulance St-Jean, they learned not to be alone with a person of minor age. He telephones J. because she lives three minutes away from his home and there is nothing he can do for the plaintiff, concerning her state. [ 127 ] It is the plaintiff that tells them about her stay in the hospital?

He was under the impression that it was for six months, not two weeks. [ 128 ] At Town D, the plaintiff comes by bicycle. She always has problems at home with her mother and her brother. Everything is said in front of everybody. Nothing is a secret. A few times, they have a private discussion in Town D and in the master bedroom. [ 129 ] He doesn’t want to be alone with her. She is underage, too friendly and sits too close. [ 130 ] What does he fear?

The accused fears being in a compromising situation, when nobody is around. [ 131 ] At Lake, the plaintiff asks a few times for a massage. [ 132 ] Then at one point, N. tells him that he should give a massage to the plaintiff, as a birthday gift. At this point the accused has no fear since the plaintiff is eighteen years.

[ 133 ] So he proceeds with the massage and the plaintiff asks him afterwards if they can fuck, and the accused says yes. He waits a day or two to discuss the sexual relation with his wife Je.. He has a partial erection because the night before he took Cialis. [ 134 ] Afterwards the plaintiff does not visit for nearly three months and when she comes back, tells them that she was hospitalized following a suicide attempt. [ 135 ] C. has a chain around the neck, not a collar. J. comes with them to fetish clubs. The accused confirms bringing the plaintiff to a cadet club because she wanted to know about it.

He knew the administrator so he introduced her to him and that is all. Je. is the one that drives to the cadet club. [ 136 ] He does not discuss the case with Je. during court recess for lunch and yes he is frustrated by the court proceedings. When he has a sexual relation with the plaintiff, Je., C., Ofelia are in the house. He is not sure for Y and N.. The second witness for the defense - Je. L. [ 137 ] She meets the accused on line, while living in the U.S.A. She has written an erotic story and the accused communicates with her afterwards. She sees him six months after.

At the beginning, she tells him that she is eighteen years old then admits to being seventeen. The accused is aged approximatively 45 years, at the time. She books a hotel room in New Jersey to meet the accused. [ 138 ] After their first encounter, she comes to Montreal to visit the accused and ends up at Town B, with the accused and M.. When the accused goes to New Jersey, he is with M. and J.. When she meets the plaintiff at Town B, J. and S. are living there. J. is in the small room and S. in the other room, more spacious. [ 139 ] She is the one that drives to the parking lot of Maxi.

When they come back to the house, the plaintiff sits on the couch with J.. Then the accused and the plaintiff go to the top of the stairs. In the living room, the plaintiff discusses school, family problems. The fact that she thinks she is gay is discussed at the top of the stairs and the witness can make out part of the conversation from where she is in the living room. [ 140 ] The plaintiff tells her that she is bisexual and knows at the time that the witness is bisexual.

She sees the plaintiff twice at Town B, the first after the Maxi pickup and the second when she and the accused go back to Town B for D. to get his math book. [ 141 ] At [Street A], the plaintiff visits in between buses. She feels kind of sorry for her, considering all her problems. [ 142 ] In Town D she remembers two visits from the plaintiff. She is on the sofa with C.. The situation is not good because the plaintiff ignores them. She is confused because the plaintiff only wants to speak with the accused, alone.

She speaks about it to the accused, but he is always ready to help. [ 143 ] The accused and the plaintiff thus go in the master bedroom and the doors are left open because she knows that the accused doesn’t want to be alone with the plaintiff. She is the one that opens the two doors. [ 144 ] The plaintiff comes in the afternoon and leaves at six pm. [ 145 ] At Town C, there is no space for the massage table. In Town B, the table is in the living room and in the master bedroom for [Street A] and Town D. [ 146 ] The witness explains the different places where they live and where she works during the period.

She doesn’t remember being alone with the plaintiff. Three or four times the accused and the plaintiff discuss in the master bedroom. The accused never speaks to her about having a sexual relation with the plaintiff. They discuss the plaintiff and the accused tells her that he is more and more uncomfortable with the plaintiff. The plaintiff is underage and keeps asking for massages. That’s in Town D. [ 147 ] At Lake the situation continues. She is of the opinion that the plaintiff needs help. She notices that when she or C. are close to the accused, the plaintiff looks at them in a nasty way.

The plaintiff is not interested in them and only answers the accused. [ 148 ] In 2010, she works less, maybe one or two night shifts, usually Fridays and Saturdays. She doesn’t think the plaintiff comes around during weekends. C. receives welfare, Y attends school. The plaintiff’s pattern of visits is either in the afternoon or evening, never for a complete day. [ 149 ] There is no relation that exists with the plaintiff, they are not really friends.

She doesn’t mind the presence of the plaintiff in the house and most of the time they are all in the living room, except when the plaintiff wants to speak in private with the accused. The witness produces numerous documents to explain their whereabouts between 2007 and 2011, as for their residences and the number of months at each place. [ 150 ] The accused tells her about sexual intercourse with the plaintiff a day or two after. She is upset and imposes her veto on any future sexual relation with the plaintiff. [ 151 ] Why is she upset?

Because of the attitude of the plaintiff towards her and also because the accused previously told her he was uncomfortable with the plaintiff. [ 152 ] She is present when the plaintiff asks training in massage therapy. It happens at Lake. The accused said he would not teach her, so the subject was closed. [ 153 ] She is not happy nor upset with the massage the accused gives to the plaintiff as a birthday gift. Never is the accused alone in the house with the plaintiff. He is all along very adamant concerning that issue.

[ 154 ] When she meets the accused, he has an erectile dysfunction problematic. He takes Cialis one or twice a week and the effect can last from one to three days. The pills are in the bedroom or bathroom, in the condom bag. [ 155 ] BDSM is always done behind close doors, so it is impossible for the plaintiff to witness any of it during the period 2007-2010. [ 156 ] The plaintiff is very upset when she realizes that the accused, bitten by the dog, is not in shape to speak with her. She doesn’t speak to the plaintiff concerning the sexual intercourse with her husband.

She is the one that pays the plaintiff for the help given for the deck. [ 157 ] The witness confirms that the accused drives occasionally during the period but she opposes. She confirms that she discussed the dates for every place they lived since 2007, because they did not agree as for the number of visits of the plaintiff in each place. When she rents the hotel room in New Jersey, she has a sexual relation with the accused, not with J. or M.. She is seventeen at the time and her father knows and agrees. [ 158 ] She describes the premises at Town B.

There is the small room for craft work, then the room for El. and M. is in the small room. J. moves in 2008 and S. a few months after. The plaintiff visits, according to her, for the first time in 2008. The massage table is at the beginning in the craft room and the accused goes to the client’s residence for a massage, not in their house. The conversation between the accused and the plaintiff takes place at the top of the stairs, she can hear part of it. J. is present in the house.

She doesn’t remember sports being discussed. [ 159 ] The second time she sees the plaintiff is when she comes back with the accused for the math book. The plaintiff only visits a few time at [Street A]. [ 160 ] During the time they reside at Town B, the plaintiff has a psychotic episode and is hospitalized. The plaintiff knows that she is bisexual and has been abused in the past. [ 161 ] In Town D, the plaintiff wants to speak with the accused alone.

He husband is a very generous and open person, so people often want to speak with him. [ 162 ] The accused is not, during the period, at ease with the plaintiff because of her age. The fact that they are in in Court, tells it all. [ 163 ] During her examination when asked where was the table, didn’t she say before answering the question, “do you mean when X was around”, why so? The witness tries to explain. She denies C. wearing a collar, it is a necklace. [ 164 ] She never perceives that the plaintiff wanted a sexual relation with the accused.

The dirty looks from the plaintiff start in Town D and continue at Lake. [ 165 ] She has a sexual relation with the accused the day before the latter has one with the plaintiff. [ 166 ] The accused since the beginning of their relation takes Cialis not Viagra. [ 167 ] The above constitutes the facts considered for analysis.

Much more than the above has been tendered as evidence, but needless to say that relevancy, even for the facts above poses a problem. [ 168 ] Furthermore during examinations and cross-examinations of the witnesses, the questions asked often go back and forth from one residence to the other, from the start to the end of the period and from one person to the other in one of the residences. As a result it impacts on the pathway usually applied in the analysis of the evidence.

POSITION OF THE PARTIES [ 169 ] The defense submits that the evidence establishes that the plaintiff is right from the start, obsessed by the accused. The plaintiff lied about the incident at three o’clock in the morning and is not credible neither trustworthy. [ 170 ] Furthermore, the evidence submitted by the prosecution does not establish that the accused is towards the plaintiff, a person in a position of trust, authority or that the plaintiff is in a relationship of dependency with the accused. The defense refers to R. v. Audet [1] . [ 171 ] The prosecution advances that the witness Je.

L. is an interested witness and that her testimony is so aligned or harmonized with the testimony of the accused that it is not credible and trustworthy. Furthermore, the first incident related by the plaintiff is so unique and impregnated in her memory that it is a guaranty of trustworthiness. [ 172 ] The prosecution recognises that she does not meet her burden as to the counts relating to the accused as a person of trust, authority or with whom the plaintiff is in a relationship of dependency, more specifically counts 1, 4 and 5.

ANALYSIS OF THE FACTS AND DECISION [ 173 ] A clarification in needed before the Court proceeds with the analysis of the factual information. [ 174 ] A large part of the evidence relates to the behavioural aspects of the sexual life of the accused and the persons with whom he lives with, during the period going from 2007 to 2010. Evidence tendered by the plaintiff and revisited in defence.

For the Court, unless exceptional or particular circumstances, absent in the case at bar, that evidence is not to be considered as evidence of the accused’s propensity to sexual contacts of whatever nature with anybody and that includes the plaintiff.

[ 175 ] The relevancy of such evidence can only serve, at the best, to explain or put in light, the number of persons in the different residences, at different times during the 2007-2010 period. There is no nexus between the sexual life and activities of the persons that lived with the accused and of the accused himself and the allegations of the plaintiff. The evidence is also of no use for credibility purposes for the motives outlined further in the judgement:

A) Does the Court believe the defense consisting of the testimonies of the accused and his wife, after having heard all the evidence? [ 176 ] The testimony of the accused doesn’t contain any flagrant inconsistencies. He denies any sexual relation with the plaintiff except the one after the plaintiff has reached eighteen years of age. He doesn’t hesitate before answering and does not try to evade questions, concerning his sexual life. He doesn’t show any dislike for the plaintiff in his answers.

He is frustrated and nervous and considering the nature of the questions, it is comprehensible. [ 177 ] That evidence partially contradicted by the testimony of the plaintiff, doesn’t establish that during the period he is the one seeking contacts with the plaintiff.

As for the discussions with the plaintiff, he listens but he is not the one soliciting privacy for these discussions and does not act as a councillor. [ 178 ] He is aware that the plaintiff has issues at home, issues concerning her sexuality and is affected by mental health problems. [ 179 ] His testimony and the testimony of his wife are so aligned that it raises a doubt, more so when his wife testifies that she has a sexual relation with him the day or two days prior to his sexual relation with the plaintiff, in order to explain his erection. [ 180 ] He also contradicts the sister of the plaintiff as for the massage the first time he meets her. [ 181 ] The Court, if the accused is not comfortable or at ease to be alone with the plaintiff does not find consistent that private discussions continue and if so in the master bedroom on some occasions.

The main reason provided by the accused is that the plaintiff is underage. If that is the case, then why not have the discussion elsewhere than in a bedroom. But then the number of persons in each place, can explain the choice of a bedroom. [ 182 ] When he meets his wife Je. in New Jersey and is aware that she is aged 17 years, why does he have a sexual relation with her.

Even if we are not after May 1, 2008 when the age of consent was modified, why is not the accused, uncomfortable to the point of refusing to engage in sexual intercourse, as he did with the plaintiff? [ 183 ] For the Court, the witnesses of the defense are not sufficiently clear, coherent and transparent in light of all the evidence as to retain in its totality the defence of denial, at the first step.

B) Even if the Court does not accept the defense in its entirety, does it raise a reasonable doubt, when all of the evidence is considered? [ 184 ] As stated before, the accused contradicts the sister of the plaintiff J., as to a massage when he meets the plaintiff for the first time and also contradicts her as to the fact that she asks him what is going on and he answers that everything is consensual. For the Court the fact that the sister doesn’t remember picking the plaintiff at Maxi affects her trustworthiness.

It is an important moment, she doesn’t have a close relation with the plaintiff and the latter telephones her because things are not going well. Such an important moment should still be in the memory of the witness. She cannot explain how the plaintiff and the accused met. As for the fact that everything was consensual, if it was said as the witness claims, it does not mean that it necessarily related to a sexual activity.

At the time the plaintiff is aged 14 and a reasonable person would assume that the sister would not ask about consensual sex, but takes the steps to prevent any sexual activity between her sister and a man aged more than 40 years. The testimony of the sister J. is not reliable on these aspects. [ 185 ] The testimony of the wife Je. is first of all an interested testimony and caution is the rule. It confirms the testimony of the accused but at the same time it concerns the attitude of the plaintiff towards her and C. near the end of the plaintiff’s visits. Furthermore it is consistent.

The Court believes that the plaintiff was the subject of discussions between the accused and her, considering her age, her attitude and her problems whether of mental, sexual or familial nature. [ 186 ] The witness states that the accused had a sexual relation with her the day prior to his sexual relation with the plaintiff and the Court has no evidence to bypass that possibility, even if it appears surprisingly, accommodating for the defense. [ 187 ] The fact that she is upset when her husband tells her he had a sexual relation with the plaintiff is consistent not only with the rules that they apply to themselves as for sexual relations with others but also with the way she behaves with or perceives the plaintiff on all the previous visits. [ 188 ] The testimony of the accused contradicts the plaintiff namely for every sexual activity alleged, for the massages and for the driving lessons. [ 189 ] The plaintiff testifies with ease, gives numerous details, answers without noticeable hesitation, but at the same time many answers and explanations are after analysis, improbable, incredible, inconsistent or simply implausible.

a) If as stated, the plaintiff experiences fear the first time she meets the accused, why does she want a private conversation with him, why would she accept a massage? The accused is in boxers and it destabilizes the plaintiff according to her testimony. She is fourteen and the accused is over 40 years. Why not stay away from any possible privacy with the accused?

b) Why, in that context, considering she was abused in the past would she accept to undress and receive a massage from a stranger in boxers? The question is also in relation with the fact that the plaintiff had received services in psychotherapy, following an abuse when she was younger.

c) Why would she say in the massage room, that she had been abused in the past?

d) Why return so many times? The Court does not accept the explanation given by the plaintiff that she went because she did not want to be at home. Considering the length of time she was spending at the accused’s place, more specifically not very long each time and returning home shortly after, it doesn’t stand. If as she stated, the relation with her parents is at the time, a decent one then where is the problem? The yelling between the father and her brother is not in itself, sufficient to always want to get away from home on such a frequent basis, or if so, why not go elsewhere?

e) Why return so many times, if you are abused, should you not prefer to stay home where you have a decent relation with your parents? Even if possibly aroused?

f) The Court does not accept as an answer that the plaintiff sees the accused as an uncle. It is an inconsistent answer in the light of her testimony, considering all the evidence.

g) The plaintiff says, that on occasions she wants to massage the accused because she then will avoid being massaged by him. That explanation is also inconsistent, since the easiest way to avoid the situation is not to go at the accused’s residence, or if so refuse any offer for a massage.

h) When the plaintiff alleges receiving her first massage, she is anxious and thus asks the accused to lay on her, because when she is wrapped, tension goes down. The Court finds that answer inconsistent. How if you fear the accused, feel anxious and see him as an uncle can you go ahead and ask the accused totally naked to lay on your body?

i) The plaintiff chooses the bed a few times because it permits discussion. Again for the Court the explanation is inconsistent.

j) The plaintiff decides to end her sporting activities and considering the absence of backlash from anyone, she decides that she can do the same as for sexual activities with the accused. It gives her courage. The Court does not see the link that the plaintiff wishes to establish, the difference between alleged repeated sexual assaults and sporting activities is too far away. Putting an end to sporting activities that are public also equals to put an end to expectations from coaches and others. A teenager can surely foresee a backlash.

Putting an end to a sexual activity that you describe as mutual and that takes place only if you decide to visit, with no expectations from anybody, is quite different, if not another world.

k) Why does the plaintiff discuss the possibility of living with the accused and the others, first of all if she fears him and second if it means being sexually active with the accused? [ 190 ] All of the above seriously impact on the issue of credibility of the plaintiff and when coupled with his complete examination and cross-examination, brings the Court to the conclusion that it is impossible to resolve the conflicts in the evidence without a reasonable doubt surfacing at the end, namely considering, the number of visits, the reasons provided for these visits, the explanation as to the end of the visits, the length of time between the first and the last visit, the reason advanced for wanting to massage the accused and the possibility envisaged by the plaintiff to live at the accused’s place. [ 191 ] The evidence tendered by the prosecution is silent concerning the mental health problems of the plaintiff between 2007 and 2010 more precisely the incident that takes place at three o’clock in the morning and the suicidal attempt, both incidents followed by the hospitalization of the plaintiff.

It does not mean that it would have made a difference as for the conclusion.

It simply means that it could have possibly provided explanations in relation with answers given by the complainant and enlighten the analysis of the evidence one way or the other. [ 192 ] Consequently in the case at bar, it is not a situation of complete rejection of the defense. [ 193 ] The Court cannot resolve the contradictions and conflicts between the evidence of the prosecution and defense, considering the credibility and trustworthiness issues related to each protagonists. [ 194 ] Would the conclusion at the second step be the absence of a reasonable doubt, thus a complete rejection of the defense, the Court at the third step would still acquit the accused. [ 195 ] The evidence of the prosecution, does not convince beyond a reasonable doubt, given the credibility issue related to the plaintiff more specifically as outlined in the previous

section and considering the trustworthiness issue with the testimony of the sister of the plaintiff, J.. FOR THESE REASONS, THE COURT: [ 196 ] ACQUITS the accused on all counts _________________________________ DANIEL BÉDARD, J.C.Q. M e Anne Gauvin Attorney of the DPCP M e Anna Levin Attorney of the accused Dates of hearing: May 23 and 24, 2017