R. v. D.W., 2023 ONCJ 40

WARNING The court hearing this matter directs that the following notice 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judge or justice may make an order directing that any information that could identify the victim or a witness shall not be published in any document or broadcast or transmitted in any way, in proceedings in respect of (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, 160, 162, 163.1, 170, 171, 171.1,172, 172.1, 172.2, 173, 213, 271, 272, 273, 279.01, 279.011, 279.02, 279.03, 280, 281, 286.1, 286.2, 286.3, 346 or 347, or (ii) any offence under this Act, as it read from time to time before the day on which this subparagraph comes into force, if the conduct alleged would be an offence referred to in subparagraph (

i) if it occurred on or after that day; or (

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

(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 victim of the right to make an application for the order; and (

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

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

summary conviction. ONTARIO COURT OF JUSTICE CITATION: R. v. D.W., 2023 ONCJ 40 DATE: January 16, 2023 COURT FILE No.: 21-A34345 BETWEEN: HIS MAJESTY THE KING — AND — D.W.

Before Justice P.K. Burstein Heard on September 20, 21, 22 and November 15, 2022 Reasons for Judgment released on January 16, 2022 H. Harty................................................................................................. counsel for the Crown A. Pollard....................................................................................... counsel for the Defendant BURSTEIN J.: Introduction [ 1 ] In the early morning hours of January 1, 2021, the 25-year-old Defendant was laying in his 16-year-old cousin’s bed as the families’ joint New Year’s Eve celebration was winding down.

His cousin, K.L., and some other young people came into the bedroom. K.L., climbed onto her bed beside the Defendant. The Defendant began touching K.L.’s leg and then her breasts. According to K.L.’s evidence, she was unsure how she felt about this. However, when she felt his exposed penis rubbing against her backside, she became scared and knew that she did not want that to happen. K.L. climbed out of bed and went to the washroom. She was followed by two of the girls who had been in the room with them.

When it became apparent that something “inappropriate” had occurred, the girls alerted one of the adult family members. The Defendant was confronted by his older sisters about the allegation outside the house. He tearfully admitted to having engaged in sexual activity with K.L. [ 2 ] The incident was, in turn, reported almost immediately to the police.

The Defendant was soon charged with sexual assault and sexual exploitation. [ 3 ] At his trial before me, the Crown called the complainant and three of the girls who were present in the bedroom at the time of the sexual activity. [1] I also heard testimony from three of the adult family members who were present in the home at the time of the incident; namely, E.W. (K.L.’s mother), C.M. and E.M. (the Defendant’s two older sisters) [2] .

As is his right, the Defendant elected to not testify nor to call any evidence. [ 4 ] The Crown alleges that the sexual touching of K.L. occurred without her consent and, in the alternative, that K.L.’s consent was irrelevant given that the Defendant was in a “position of trust” and so was prohibited from sexual activity with K.L. by virtue of s. 153 of the Code.

Although the Defendant admitted to having engaged in some sexual activity with the complainant on the night in question, his position was that the only sexual touching which occurred was consensual and that, because he was not in a “position of trust”, the consensual sexual activity did not offend either s. 153 or s. 271 of the Code .

Summary of the evidence [ 5 ] The Defendant and K.L. had known each other for many years. Their two families spent a lot of time together over those years. The Defendant’s mother and K.L.’s grandmother were siblings. K.L.s mother, E.W., was first cousins with the Defendant and his older sisters E.M. and C.M. The three women were very close. Similarly, C.M.’s daughter, A.C. was only about two years younger than K.L. and had grown up being close friends with her.

K.B.-L., the 13-year-old daughter of a close family friend, and good friend of A.C., was treated like she too was part of the extended family. [ 6 ] K.L. was the second oldest of 7 children. Her older sister was about a year older. Growing up, the Defendant had always been closer with K.L.’s older sister. As the years passed, once her older sister became busier with work, K.L. grew closer with the Defendant. The adolescents and teenagers in the family referred to the Defendant’s older sisters as “aunty”, even though they too were only cousins.

According to E.M., even K.B.-L., who was not related by blood, referred to them as “aunty” because of the close relationship between them and K.B.-L.’s parents. [ 7 ] Unlike the other adults in the family, the Defendant spent most of his time socializing with the teenage and adolescent members of the family. The Defendant did not enjoy spending time with the adults because he did not drink or smoke, activities which were common for the adults when they gathered.

When the families would get together, sometimes the Defendant would go off with the younger family members to hang out at a local playground. [ 8 ] K.L. was asked about her relationship with the Defendant prior to the events in question. She “always saw him as an older brother” in that he was someone “to look up to”. She said that she felt like she should have known something sexual would occur but that she felt that she had “ignored the signs”. The Defendant, according to K.L., had always been “touchy”, such as touching or placing his hand on her thigh. Sometimes he would “cuddle” her.

In addition, K.L. explained that whenever she tried speaking to the Defendant about his girlfriend or about a boy in who she was interested, the Defendant would “shut it down”. [ 9 ] It was common for the families to get together to celebrate special occasions. That is what happened at K.L.’s family home on New Year’s Eve, 2020. There were about 15 to 20 people in attendance at the New Year’s Eve celebration. [ 10 ] K.L.’s family home was a two-storey single dwelling.

For most of the New Year’s Eve celebration leading into January 1, 2021, the adults remained downstairs while the children were upstairs in the various bedrooms.

[ 11 ] After midnight had passed, K.L. was in her room with A.C., K.B.-L. and N.S. K.L.’s younger sister was already asleep in the top bunk of their bunk bed. The Defendant was almost asleep in K.L.’s bottom bunk. K.L. and the other three girls were on the floor playing games and socializing. N.S. was at the foot of the bed playing on her phone. K.L. was with A.C. and K.B.-L. on the floor beside the bottom bunk. [ 12 ] According to K.L, in response to the Defendant asking for a hug, K.L. climbed up on to the bed. She then offered to tuck him in. As she was doing so, the Defendant began touching her thigh.

K.L. felt she was okay with that as it was “not that big of a deal”. K.L. said that the Defendant then began moving up her leg and squeezing it. She was “confused”. The Defendant stopped and turned to face the wall when another young family member came into the room. However, once they left, the Defendant resumed squeezing K.L.’s leg. She was “still kind of confused and… was [thinking] I don’t why he’s doing that”. [ 13 ] K.L. went on to say that after the Defendant had moved his hand up her leg, he then “starts kind of going under [her] clothes and doing it”.

K.L. said that she “was just thinking like this is weird”. She claimed that she was still “confused”. The Defendant then started touching K.L. “between [her] legs kind of with his hand like in [her] pants”. K.L. again said that she was “confused”. [ 14 ] After touching her between the legs, the Defendant allegedly told K.L to “move a little bit… to move, like… like lay down”. K.L. said “okay”. Once she had lay down in the bed beside him underneath the blanket, the Defendant put his hand under her clothes again. He moved his hand higher and began squeezing her breasts.

K.L.’s evidence was that she was asking herself “do I like this? Like, am I having a good time?” [ 15 ] As he was touching her between the legs and squeezing her breasts, K.L. supposedly felt the Defendant’s “other hand and he like pulls out his dick”. K.L. said that she felt the Defendant take out his penis, begin stroking it and then between her legs as he started thrusting. According to K.L., that is when she knew “like this shouldn’t be happening and I have to get out”. K.L. claimed that it seemed like this had continued for a long time, “like twenty minutes”.

K.L. said that, while the Defendant was thrusting with his exposed penis between her legs, A.C. and K.B.-L. kept “looking back” at her and asking her if she was okay. She responded, “mm- hmm”. K.L. said that she “kept trying to signal [A.C.] because she kept looking … [and] she knew something was wrong”. K.L. tried to extend her hand in an attempt to reach A.C., but the Defendant pulled it back. When K.L. felt the Defendant starting to pull her pants down, she was “scared” and told him that she needed to go to the washroom. [ 16 ] After getting out of the bed, K.L. ran to the washroom.

She said that she started crying because she “felt sick” and “felt gross”. The Defendant’s sister, E.M., started knocking on the door saying that she needed to use the washroom. K.L. exited the washroom without looking at her and went into her younger brother’s room. A.C. and K.B.-L. followed. They could tell that K.L. was upset and asked her what was wrong. K.L. claimed that she was “in the middle of … telling them … what happened” when the Defendant opened the bedroom door and said he needed to speak with K.L. K.L said that when she refused, he pressed her to come and then would not leave the room.

As he stood in the bedroom doorway, K.L. and A.C. started playing “hand games” with one another. K.L. said that the Defendant then came into the room and sat beside K.L. According to K.L., A.C. and K.B-.L. then left the room. After they had left the room, the Defendant told her to not tell anyone about what had happened. K.L. then got up and went to the washroom. A.C. and K.B.-L. were already in there. [ 17 ] Once inside the washroom, K.L. started crying again. According to K.L., A.C. presented two options: say nothing and pretend nothing happened or go tell someone.

That is when C.M., the Defendant’s older sister, came upstairs. She was called into the washroom by A.C. and K.B.-L. K.L. claimed to provide “a short version” of what happened, saying that the Defendant had done “something bad”. K.L. said that she then told her “everything” and that C.M. asked if anything like that had happened before. When asked by C.M. if K.L. wanted her to address it, K.L. supposedly told C.M. to hold off until C.M. and the Defendant were in the car on the way home. [ 18 ] A.C. was C.M.’s 13-year-old daughter. She was K.L.’s cousin and the Defendant’s niece.

A.C. told the police that some time after celebrating the New Year’s countdown with the adult family members on the main floor, her and K.L. went back upstairs to K.L.’s bedroom. The Defendant was sleeping in K.L.’s bed. A.C., K.L. and K.B.-L. were sitting on the floor to the side of K.L.’s bed using a computer music program. At some point, K.L. said that her back was hurting from sitting on the floor for so long and then got up and lay on the bed beside the Defendant. For the first five or ten minutes, K.L. continued to be verbally engaged with A.C. and K.B.-L. as they were still using the music program.

K.L. then became quiet. A.C. and K.B.-L. kept looking back at her as they thought she may have fallen asleep. They asked her if she was okay or if she was tired and she responded that she was not tired and was okay. At some point, K.L. said that she needed to use the bathroom and then got up and went to the bathroom. According to A.C., K.L. eventually exited the bathroom and went to her younger brother’s room. A.C. and K.B.-L. followed. Noticing that something seemed amiss, A.C. asked K.L. what was wrong. K.L. told them that the Defendant had touched her in a sexual manner.

After confirming to the police what K.L. had described about the Defendant approaching and speaking to K.L. after K.L. had first disclosed the sexual touching, A.C. told the police about the meeting in the bathroom between her, her mother (C.M.), K.B.-L. and K.L. A.C. said that during that meeting K.L. had been hesitant to reveal what had happened and so A.C. told her mother that the Defendant had been “touching [K.L.] inappropriately”. When C.M. said that she wanted to hear it from K.L., K.L. “eventually started talking”.

A.C. did not tell the police what K.L. had said to C.M. [ 19 ] According to K.B.-.L., her, A.C. and K.L. had been sitting on the floor in K.L.’s bedroom for a while when the Defendant came in and lay down in K.L.’s bed because he was tired. After complaining that her back was hurting, K.L. climbed onto the bed and lay down beside the Defendant. Even though she was on the bed, K.L. continued to participate with A.C. and K.B.-L. in using the computer program. K.B.-L. and A.C. kept turning around to check on K.L. She “looked fine”.

At some point, according to K.B.-L., K.L. said that she needed to go to the bathroom, got up from the bed and then left the room. It was only once K.L. had been gone for a while that A.C. and K.B.-L. thought there may be something wrong with her and so went to check. As they exited the room, K.L. called them into K.L.’s brother’s room. K.L. seemed panicked. When A.C. asked her what was wrong, K.L. disclosed that the Defendant had engaged in sexual activity with her. K.B.-L. also confirmed that the Defendant had approached and spoken to K.L. following that initial disclosure by K.L.

Lastly, K.B.-L. talked about the subsequent meeting between the three girls and C.M. (A.C.’s mother) in the bathroom. According to K.B.-L., when C.M. asked K.L. what was wrong, K.L. “told her what happened”. [ 20 ] N.S. explained that her mother is very close with E.W. (K.L.’s mother). N.S.’s mother is K.L.’s godmother. N.S. told the police that she had been in the bedroom with the others when K.L. had been on her bed with the Defendant. N.S. was sitting on her own on the

floor near the closet. She was charging her phone. N.S. was “on Tik Tok or whatever”. Because she was at the foot of the bed, asopposed to being beside the bed with A.C. and K.B.-L., N.S. had a limited view of the two people laying on the bed. N.S. rememberedK.L. being underneath the blanket with the Defendant but also that K.L “was like halfway off” the bed. [21] C.M testified that she was getting ready to leave the celebration some time after midnight. She went upstairs to say goodnight toher daughter, who was staying over, and to the other young people.

Once upstairs, C.M. was approached by her daughter and K.B.-L. They told C.M. that something inappropriate had happened between K.L. and the Defendant but would not say what. They were allclearly upset. According to C.M., K.L. did not say anything and would not provide C.M. with any further details of what had happened. [22] C.M. went downstairs to look for the Defendant. Having learned that he was somehow involved in what had upset the girls,C.M. wanted to hear his side of the story. C.M. found the Defendant outside. She asked him what had happened. In response, hebecame very emotional and began crying.

He implied that something had happened and that it was a mistake. He did not clarify what hemeant by that. C.M. went back inside the house to speak with her sister, E.M., and with E.W., K.L.’s mother. [23] Meanwhile, the Defendant’s other sister, E.M., had made her way outside the house as everyone was getting up to leave for thenight. Once outside, she saw her sister, C.M., crying. E.M. approached the Defendant to ask what was wrong. He explained to E.M.that he was the reason why C.M. was crying. The Defendant continued by telling E.M. that C.M. was crying because of what he hadtold her about him touching K.L.

When asked by E.M., the Defendant then described how he had touched K.L. “I was rubbing her leg,”he said. According to E.M., the Defendant said that he had been rubbing K.L.’s leg when K.L. took hold of his hand and they beganrubbing her leg together. Their hands then moved up her body and underneath her clothing. The Defendant said that he had taken hishand away at one point but that K.L. had then grabbed his hand and moved it back up her clothing until it was touching her breast. E.M.testified that she was in shock when she heard all this.

The Defendant was crying and saying he was sorry. [24] The day after the incident, E.W. received a Facebook message from the Defendant, which she eventually provided to the police. Screenshots of the message were introduced at trial. The message was a lengthy written apology from the Defendant to E.W. about theevents of the night before. The relevant portion of the message read as follows: I’m sorry for the rift that will be set between us. I’m really sorry for bringing about a traumatic experience, for the guilt of messing upthat bad. I’m appalled beyond expression.

To think I’m the cause of nightmare that there’s no waking up from to which I am at fault. I’mdesperate to do what’s right and to right this wrong. Kiana I am so sorry for putting us through this! I should’ve been the adult. Ishould’ve disengaged and said “No, I’m not playing a

part in this horrifying idea.” The truth is I’m under the presumption that neither one thought it was horrific at first. There is no justification yet I know drinking is never an adequate excuse, but I’ll sooner jump before ever drinking and repeating this fora second time. It’s horrifying! Alcohol to me has always been overshadowed with a cloud of darkness, as domestic violence always isand has been partly caused by alcoholics which in fact is why it’s always scared me. Unfortunately I now know that even in moderateand low quantities it can still be a home wrecker, a poison, with devastating consequences!

For as long as I live I’ll never consume itagain. Not that I was to but I can begin to understand again why people become subject to think of suicide. It is with great disdain and thedeepest sympathies and regret that I’d like to solemnly, deeply apologize. It was clearly and on so many levels WRONG! I am not only waking up horrified but am truly upset and am super sorry that I played a

part in this horrific story, memory and lifeexperience. I’m so sorry, [E.W.]! I’m devastated. What must be proven to establish guilt on charges of sexual assault and sexual exploitation? [25] As with any other criminal offence, the offence of sexual assault is defined by an actus reus and a mens rea. The actus reuscomponents of a criminal offence refer to the conduct that is criminalized and the mens rea components focus on the requisite state ofmind.

Given that there was no issue in this case concerning proof of the mens rea components of either offence, the following discussionfocusses only on the actus reus components. [26] To establish the actus reus of sexual assault, the Crown must prove that the alleged sexual contact occurred without thecomplainant’s consent. As Canadian courts have repeatedly said for over 20 years, this determination involves a purely subjectiveapproach.

Canadian criminal law has firmly rejected the idea that the issue of whether a complainant consented to sexual activity can orshould be determined by a court’s objective assessment of the circumstances or the apparent relationship between the accused and thecomplainant: see R. v. Ewanchuk, (SCC), [1999] 1 S.C.R. 330 at para. 31 and R. v. J.A., 2011 SCC 28 at para. 47.

Thequestion of whether the complainant consented is determined exclusively by the complainant’s state of mind towards the sexual contactat the time it occurred. [27] A complainant’s general right to subjectively decide whether to consent to sexual activity is qualified by ss. 150.1 and 153 of theCode.

Section 153 provides that: 153.

(1) Every person commits an offence who is in a position of trust or authority towards a young person, who is a person with whomthe young person is in a relationship of dependency or who is in a relationship with a young person that is exploitive of the young person,

and who (

a) for a sexual purpose touches, directly, or indirectly, with a part of the body or with an object, any part of the body of the youngperson; or (

b) for a sexual purpose, invites, counsels or incites a young person to touch, directly or indirectly, with a party of the body or with anobject, the body of any person, including the body of the person who so invites, counsels or incites and the body of the young person.

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

a) the age of the young person (

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

c) the evolution of the relationship; and (

d) the degree of control or influence by the person over the young person.

(2) In this section, “young person” means a person 16 years of age or more but under the age of eighteen years.

Section 150.1(1) of the Criminal Code says that when an accused is charged with an offence under s. 153(1), it is not a defence to thecharge that the "young person" may have consented to the sexual touching or to the other sexual activity described. In essence, thecombined effect of these two provisions extends criminal liability to otherwise consensual sexual activity between a 16-year-old and theiradult intimate partner in cases where that young person’s relationship to their adult intimate partner made them potentially vulnerable. [28]

Section 153 prohibits sexual activity involving a young person when an adult can be classified as having been in any of the fourenumerated relationships. Though the four legislative classifications are all aimed at a singular concern of power imbalance between theyoung person and adult, each of the four was designed to capture a different set of circumstances. When interpreting one term within alegislative list, it is a basic principle of statutory construction that legislators do not intend to include redundant terms; that is, each termin s. 153 was intended to connote something similar but distinct.

For example, in R. v. Audet, (SCC), [1996] 2 S.C.R.171, the Supreme Court of Canada recognized that being in a “position of trust” was similar, but different, from being in a “position ofauthority”. The inquiry into whether the adult was in a “position of trust” is a case specific inquiry. [29] In proving the prohibited “position of trust”, the Crown must show that the young person’s vulnerability existed independent ofthe sexual encounter itself.

However, the Crown need not prove that the trusting nature of the relationship resulted in the sexual activityoccurring. [30] In Audet, the Supreme Court of Canada identified some of the factors which may assist in determining whether the accused wasin a “position of trust” in relation to a young person with whom they engaged in sexual activity: - The age difference between the accused and the young person; - The evolution of their relationship; - The status of the accused in relation to the young person; - The degree of control, influence or persuasiveness exercised by the accused over the young person; and - The expectations of the parties affected, including the accused, the young person, and the young person's parents.

See also R. v. C.D., [2000] O.J. No. 1667 (C.A.) and R. v. Aird, 2013 ONCA 447. [31] In R. v. Aird, supra (at para. 24), the Ontario Court of Appeal suggested that the complainant’s subjective perception of therelationship was entirely irrelevant to the issue of whether the Crown had proven the accused was in a “position of trust” for thepurposes of s. 153: Section 153(1) thus bans any sexual contact between an adult and a young person within any of the four relationships enumerated in thesection.

That the young person consents, does not appear vulnerable, or does not subjectively view the relationship as one of trust,

authority, or dependency or as exploitative is irrelevant. [Emphasis added.] [32] While I am most certainly bound by what the Court of Appeal said in Aird, I am concerned that the Court’s sweeping rejection ofthe complainant’s subjective perception of the nature of their relationship with the accused is inconsistent with the Supreme Court ofCanada’s comment in Audet about the “expectations of the parties” and with the Supreme Court of Canada’s recent jurisprudentialemphasis on a complainant’s autonomy when deciding whether sexual activity was consensual. [33] Most recently, in R. v.

Kirkpatrick, 2022 SCC 33 , [2022] S.C.J.

No. 33, the Supreme Court of Canada reviewed thereasons for adopting a “purely subjective approach” to determining whether a complainant consented to the sexual activity: - “All persons ‘have in inherent right to exercise full control over their own bodies and to engage only in sexual activity that they wishto engage in’.” (at para. 51) - “Each person’s ability to set the boundaries and conditions under which they are prepared to be touched is grounded in concepts asimportant as physical inviolability, sexual autonomy and agency, human dignity and equality.” (at para. 51) - “Having control over who touches one’s body, and how, lies at the core of human dignity and autonomy.” (at para. 55, and see alsoR. v.

Ewanchuk, supra at para. 28 and R. v. G.F. 2021 SCC 20 at para. 1) - “[U]nder our law of consent, all persons are able to decide to consent or not based on whatever grounds are personally meaningful tothem….

This respect for individual choice, and the personal motivations underlying it, lies at the core of sexual agency.” (at para. 70) [34] In view of Canadian criminal law’s emphasis on a complainant’s sexual autonomy and agency, the question of whether a 16-year-old’s consent to sexual activity can be vitiated by the nature of their relationship with the accused should properly include aninquiry into the complainant’s own perception of that relationship.

While not sufficient to establish or refute the “trust” element of the s.153 offence, I believe that a court should consider whether the complainant subjectively perceived the accused to have been in a“position of trust” at the time the complainant may otherwise have consented to the sexual activity. Canadian criminal law recognizes thegeneral right of persons who are 16 years of age or older to subjectively decide whether to consent to sexual activity with another.

According to the legislative scheme, however, when the young person’s intimate partner is in an alleged position of trust, the otherwiselegally capable young person may be prevented from exercising their sexual autonomy in deciding whether to consent to sexual activitywith that adult.

Accepting that courts have rejected the need to prove a causal link between the position of trust and the sexual activity,recognition of the young person’s autonomy and dignity should still compel an examination of the young person’s perspective of therelationship in deciding whether to attach a prohibited classification and thereby criminalizing what the young person believed andintended to be consensual sexual activity. [35] Prior to the Court of Appeal’s decision in Aird, the Supreme Court of Canada in Audet had expressly held that the “expectationsof the young person” were a relevant consideration in deciding whether their adult intimate partner was in a position of trust.

In otherwords, while neither necessary nor determinative, the Supreme Court of Canada in Audet expressly considered the complainant’ssubjective view of the relationship as being relevant to whether that relationship involved the proscribed element of trust.

However,given Aird’s clear references to those passages in Audet, it is unclear how I can properly consider the “expectations of the young person”about the relationship while also still adhering to the Court of Appeal’s admonition about the irrelevance of the young person’ssubjective perception of the relationship. [36] In the end, having regard to the Supreme Court’s recent jurisprudential emphasis on the complainant’s subjective perspective incases of alleged sexual impropriety, I am persuaded that the young person’s perspective on the nature of their relationship with the adultremains relevant to a trial court’s determination of whether an adult intimate partner was in a position of trust in relation to that youngperson.

In this case, though, that issue is somewhat moot since neither party asked K.L. to articulate her perspective on whether therewas an element of “trust” to her relationship with the Defendant. There were, however, some subjective features of her evidence whichwere relevant to the issue. Some basic principles for deciding whether to accept witness testimony in sexual assault cases [37] There are some well-settled principles to apply when analyzing witness testimony in a trial involving allegations of sexualassault. The following principles have been particularly relevant to my decision in this case:

(1) There is a distinction between the credibility and reliability of a witness’s testimony. Credibility relates to the honesty of thewitness's testimony. Reliability relates to the accuracy of the witness's testimony and involves a consideration of the witness's ability toaccurately recall and recount an event: see R. v. H.C., 2009 ONCA 56, at para. 41.

(2) Assessments of a witness’s credibility and reliability may lead a trier of fact to accept all, some, or none of what that witnesssays.

(3) When assessing the credibility of a witness "[i]t is now acknowledged that demeanor is of limited value because it can beaffected by many factors including the culture of the witness, stereotypical attitudes, and the artificiality of and pressures associated witha courtroom": see R. v. Rhayel, 2015 ONCA 377 at para. 85. In Rhayel, the Ontario Court of Appeal instructed trial judges to makefindings of credibility without undue reliance on such fallible considerations as demeanour evidence.

(4) It is wrong to rely on stereotypes or supposed “common-sense” assumptions about how a sexual offence complainant isexpected to act, either to bolster or to challenge their credibility: R. v. J.C. 2021 ONCA 131 at para. 63; R v. A.B.A. 2019 ONCA 124, atpara. 5. It is equally wrong to draw inferences from stereotypes about the way accused persons are expected to have acted: R. v.Quartey, 2018 ABCA 12 at para. 21, aff'd 2018 SCC 59 and R. v. Cepic, 2019 ONCA 541 at para. 24.

(5) Similarly, a trial judge must be careful to avoid drawing inferences which go beyond the realm of “common sense” and which, instead, require support from expert opinion evidence. In some instances, doing so would offend the very strict limits on judges taking “notice” of disputed facts: see R. v. Find , 2001 SCC 32 . Analysis and findings (

a) Has the Crown proven beyond a reasonable doubt that the Defendant sexually assaulted K.L.? [ 38 ] Leaving aside the complainant, I found all of the witnesses who gave evidence at trial to be credible. I am satisfied that all of them were doing their level best to tell the truth. While they were all more closely aligned with K.L. than with the Defendant, I am satisfied that none of the three girls present in the bedroom during the sexual activity were biased for the complainant or against the Defendant.

They each appreciated the importance of telling the truth when they were interviewed by the police and when cross- examined at trial. As for the three adult witnesses, even though E.W. had expressly distanced her family from the Defendant the day he had sent the apologetic message, there was no reason to believe that anyone from E.W.’s family harboured any animus towards the Defendant. Equally, I am satisfied that no one in the Defendant’s own family had any bias against either him or K.L. resulting from what he had been accused of doing to K.L.

None of those six witnesses were seriously challenged in cross-examination by the defence. [ 39 ] I am also satisfied that the evidence of the three adult witnesses was reliable, at least in respect of the limited material facts to which they testified. Apart from the background information they each provided about the Defendant’s relationship with K.L. and his position within the family, the three adult witnesses had little firsthand knowledge of the events in question. The essential feature of E.W. and C.M.’s evidence was the Defendant’s emotional apology to each of them.

E.W.’s evidence in that regard was confirmed by the copy of the text message which the Defendant had sent to her. C.M.’s testimony about the Defendant’s apology did not purport to provide details of what he had said beyond his admission that he had made a mistake. That much, C.M. would have easily remembered, especially considering what she had already learned from the three girls about the Defendant doing something “inappropriate” with K.L. I am also satisfied that E.M. has accurately recalled the contents of the conversation she had with the Defendant after he had spoken with their sister, C.M.

On her own evidence, she found the Defendant’s revelations shocking and, thus, was more likely to remember them. The details she remembered hearing from the Defendant are also consistent with details which K.L. later provided to the police. There was no evidence at trial suggesting that E.M.’s account had ever been tainted by information provided independently by K.L. [ 40 ] Not only do I accept E.M.’s evidence of what the Defendant said to her, I also accept the Defendant’s version as being a credible and reliable account of his sexual encounter with K.L.

Where the Crown chooses to lead an accused’s out-of-court statement at trial, that statement becomes evidence both for and against that accused. In this case, while the Defendant’s statement to E.M. clearly amounts to an admission of engaging in sexual activity with K.L., it also serves as evidence from the Defendant about the nature and extent of that sexual activity. The Defendant’s statement to his sister was made while the Defendant was very emotional and trying to apologize for his perceived wrongdoing.

That mitigates any concern that he was either capable or willing to concoct a version favourable to his legal interests. There was no evidence that when he made the statement, the Defendant had any reason to believe that the police may get involved. He was speaking only to his older sister. I am satisfied that the Defendant was being candid with her about what he believed he had done wrong. [ 41 ] Of the three girls who were present in the bedroom during the sexual activity, I found A.C. and K.B.-L. to be reliable witnesses about what did or did not happen in the bedroom.

I was not so satisfied in relation to N.S. By her own admission, N.S. was focussed on her phone and not really paying attention to what was going on around her. On the other hand, apart from their general confirmation of the sequence of disclosures which occurred after K.L. had left the room, I found the details of what A.C. and K.B.-L. reported K.L. having said about the sexual touching to be less than reliable. Their evidence made clear that K.L. made a series of disclosures in their presence and that they remained with K.L. for hours after.

I could not rely upon their evidence as to what K.L. had supposedly reported about the sexual activity either to discredit K.L. or to buttress her credibility.

I am, however, satisfied that K.L. did disclose to them, and to C.M., that something sexually inappropriate had occurred between her and the Defendant and that those initial disclosures triggered reactions and responses from some of the adult family members in the house, including the Defendant’s admissions to his sisters C.M. and E.M. [ 42 ] Turning finally then to the evidence of K.L., I accept that she engaged in sexual activity with the Defendant which she eventually found objectionable. I am, however, unable to accept all of K.L.’s account of what happened during the sexual encounter.

Her claim that the Defendant exposed his penis, was stroking it and then began thrusting it between her legs is difficult to reconcile with her other evidence and with the evidence of A.C. and K.B.-L.. K.L. claimed that, while the Defendant was laying behind her on the bed fully clothed wearing dress pants and while he was in the midst of groping her breasts, he was able to expose his penis without her seeming to recognize it was happening. The logical frailty of her claim was made more evident by the evidence of A.C. and K.B.-L.

Both said that K.L. was essentially right beside or above them and that they continually were looking back to check on her to see if she had fallen asleep. Neither A.C. or K.B.-L. noticed anything wrong, nor did either of them notice any movement that would have been involved in the thrusting K.L. had claimed. Moreover, K.L. claimed that the entire episode with the Defendant lasted for something like 20 minutes. [ 43 ] K.L.’s description of how and why she lay down beside the Defendant was also contradicted by the evidence of A.C. and K.B.- L.

K.L. claimed that she had lay down on the bed after the Defendant had asked her to hug him. She also said that she had lay down on the bed because the Defendant had asked her to lay down beside him. By contrast, both A.C. and K.B.-L. said that K.L. had been sitting on the floor with them and then said that her back was hurting before getting up and laying down on the bed.

Given its close temporal nexus to K.L.’s claim of how the sexual touching soon began, the inconsistencies about how and why K.L. lay down beside the Defendant had a negative impact on her credibility. [ 44 ] K.L.’s evidence did not persuade me beyond a reasonable doubt that the Defendant exposed his penis, touched his penis, or touched her with his penis. I am not satisfied that the Defendant was thrusting his penis against K.L.’s backside or between her legs. I am also not satisfied that the Defendant touched her near her vagina nor that he tried to pull down her pants. While there is no legal

requirement for confirmatory evidence, given my concerns about the credibility of K.L.’s description of the sexual activity, I am only satisfied that the Defendant was sexually touching K.L.’s leg and breasts, just as the Defendant had confirmed in his contemporaneous admissions to his sisters, utterances which were adduced at trial by the Crown. [ 45 ] I am not satisfied that the Defendant’s apologies to either E.W. or C.M. amounted to incriminating confessions capable of confirming K.L.’s evidence about the nature and extent of the sexual touching.

I agree that the Defendant’s two apologies amounted to admissions that he engaged in some form of sexual activity with K.L. However, beyond that, the two apologies were too ambivalent to be considered proof that the Defendant was admitting to either non-consensual sexual activity or to sexual activity involving his exposed penis. In the circumstances of this case, I am satisfied that the Defendant’s apologies were motivated by his significant remorse for having engaged in sexual touching with his cousin.

This was evident in his strong emotional responses to both of his sisters when they confronted him outside the house about what had just happened with K.L. The Defendant was not apologizing for having committed a crime, but rather for transgressing an obvious moral boundary.

In rejecting the Crown’s submission that the apologies should be treated as confessions, I note that neither apology included any indication by the Defendant that he had ever introduced his penis into the sexual activity nor that the sexual activity had occurred without K.L.’s consent. [ 46 ] In the context of this case, I am also not persuaded that K.L.’s post-event demeanour helps to shore up the Crown’s case against the Defendant. There is no doubt that K.L. was upset and emotional following her sexual encounter with the Defendant.

Much for the same reasons why the Defendant’s apologies were too ambivalent to be probative of the facts in issue, K.L.’s demeanour after the sexual encounter is consistent with her extreme embarrassment for having engaged in sexual touching with her older cousin and being worried how her family would react. K.L. fairly admitted to experiencing those concerns immediately following when she was in the midst of disclosing the sexual touching to A.C., K.B.-L. and A.C.’s mother, C.M.

To be clear, K.L.’s behaviour may well be reflective of how many 16-year-old girls would react if they were sexually assaulted by their older cousin. The issue, however, is whether I can safely infer that the evidence of K.L.’s post-event demeanour is reasonably consistent only with the Defendant’s guilt. I cannot. [ 47 ] In sum, I am satisfied beyond a reasonable doubt that the Defendant engaged in the sexual touching of K.L.’s leg and breasts. The evidence from the Defendant’s two older sisters confirms that to be true.

However, I am not satisfied beyond a reasonable doubt that K.L. was not consenting in her own mind to the sexual touching of her leg and breasts. While I am satisfied that K.L. did not (and would not) consent to being touched by the Defendant’s penis, the evidence does not satisfy me beyond a reasonable doubt that the Defendant did that. For the reasons set out above, I am left in doubt as to whether the Defendant exposed his penis and then began thrusting it against K.L. and between her legs. The Crown has not proven that the Defendant is guilty of sexual assault. (

b) Has the Crown proven beyond a reasonable doubt that the Defendant is guilty of sexual exploitation because he was in a “position of trust” in relation to K.L.? [ 48 ] Unlike with the s. 271 offence of sexual assault, the Crown need not prove a lack of consent to make out a charge of sexual exploitation under s. 153.

Accordingly, the issue in relation to the s. 153 charge in this case was whether the Crown has proven beyond a reasonable doubt that the Defendant was in a “position of trust” when he engaged in the sexual activity with K.L. which I have found occurred; namely, the touching of K.L.’s leg and breasts. [ 49 ] The Crown points to the following features of the evidence in support of its claim that the Defendant was in a position of trust in relation to K.L. when the sexual touching occurred: - K.L. and the Defendant are in fact cousins - K.L. said that she considered him to be like an older brother (but referred to him as “uncle”) - According to K.L., their shared interest in poetry was “their thing” - K.L. testified that she discussed advice from the Defendant - K.L. testified that she had only felt comfortable having the Defendant lay in her bed with her because of who he was to her - E.W. testified that the Defendant would go out into the neighborhood with K.L. and the other younger family members - K.L. testified that she felt safe with the Defendant The defence did not contest the complainant’s evidence on those points.

Indeed, to the extent that other members of the family could, they confirmed the complainant’s perspective of her relationship with the Defendant. The defence did, however, point out that the adult family members who testified described the Defendant as being socially immature in so far as he did not enjoy hanging around the adults.

The defence also emphasized that K.L. described the Defendant as being “a dork” and that it was actually K.L. who usually gave advice to the Defendant about girls. [ 50 ] In deciding whether the Crown has proven the “position of trust” element of the s. 153 offence, I begin by noting that the existence of a familial connection does not presumptively create a “position of trust”.

An accused’s familial relationship to a young person may or may not be indicative of that proscribed relationship, depending on the specific nature of the familial relationship and whether it created an element of “trust” between the accused, the complainant and her parents or guardians. [ 51 ] In this case, the evidence convincingly showed that the Defendant’s opportunity to enter the complainant’s bedroom and lay in her bed flowed from his strong familial connection to her.

The evidence proves that the complainant and her parents felt safe in having the Defendant spend time in her room because his longstanding familial connection to them engendered a level of “trust”. The Defendant was not some 25-year-old man hoping for permission to enter K.L.’s bedroom and lie in her bed. Based on his longstanding familial relationship with K.L., the Defendant had developed a history of having safely navigated K.L.’s home and of having safely spent

time alone with her. In her words, the Defendant was like her “older brother”. Similarly, the fact that K.L. would lay down in the bed underneath the blanket with the Defendant was a function of that same pre-existing trust. Her relationship with the Defendant also made her feel safe whenever he had touched her leg in the past, something which would not have been true if the Defendant was simply some 25-year-old man she knew.

While I appreciate that the actions I am relying upon as evidence of the trusting nature of the relationship were also precursors to the sexual activity at issue, those factors were present on January 1 st because of the pre-existing relationship, not because of the sexual activity that later took place. Those factors would have been equally indicative of the trusting nature of the Defendant’s relationship with K.L. had they been described as occurring weeks or months prior to January 1, 2021.

I am satisfied beyond a reasonable doubt that the Defendant was in a position of trust when, for a sexual purpose, he touched K.L.’s leg and breasts on January 1, 2021. In the context of s. 153, it is irrelevant whether the Crown has proven that K.L. consented to that sexual touching. Conclusion [ 52 ] The evidence fails to prove the elements of the sexual assault charge beyond a reasonable doubt. The Defendant is found not guilty of that count. [ 53 ] The evidence does, however, satisfy me beyond a reasonable doubt that the Defendant committed the s. 153 sexual exploitation offence.

He is found guilty of that count. Released: January 16, 2023 Signed: Justice P.K. Burstein