HER MAJESTY THE QUEEN ) Ms. Carolyn Reimer ) on behalf of the Crown ) v. ), 2017 MBPC 34

2017 MBPC 34 IN THE PROVINCIAL COURT OF MANITOBA THOMPSON CENTRE BETWEEN: HER MAJESTY THE QUEEN ) Ms. Carolyn Reimer ) on behalf of the Crown ) and ) ) ) DOREEN NANCY RINGROSE ) Mr. Eric Wach ) on behalf of the Accused ) ) ) Reasons for Decision delivered on the 11 th day ) of August A.D. 2017, at the City of Thompson, ) in the Province of Manitoba. Restriction on Publication: A publication ban is in effect pursuant to s. 486.4(1) of the Criminal Code of Canada prohibiting the publication, broadcast or transmission in any way of any information that could identify any of the complainants in these proceedings.

RAMBOW, P.J. REASONS FOR DECISION Introduction [ 1 ] Doreen Nancy Ringrose (the “Accused”) is charged with 4 counts from Thompson, Manitoba, on February 9 th , 2013, to wit, sexually assaulting and sexually exploiting two persons with a disability, C1 and C2 under Criminal Code sections 271 and 153.1(1) . [ 2 ] The trial on these charges took place before me in Thompson, MB between July 17 th and 19 th , 2017, at the conclusion of which I reserved my judgement.

The Issue [ 3 ] The issue, as it turns out on the evidence, is a very narrow one. [ 4 ] Did the Accused, who was in a position of trust or authority towards persons with a mental disability (C1 and C2), counsel, incite or induce them to engage in sexual activity (kissing) by abusing her position of power, trust or authority? [ 5 ] If she did, then any consent they would have given to sexual activity with her would be vitiated and, assuming all other elements of the offences have been proven beyond a reasonable doubt, she would be convicted. If not, she would be acquitted.

The Evidence [ 6 ] I advised counsel that the Court was very grateful for the admissions and agreements at the outset of the trial which streamlined the evidence and resulted in three, versus the original five, days of trial. [ 7 ] Counsel agreed at the outset as follows: 1) Time/date/jurisdiction as set out in the Information was agreed to;

2) The two named Complainants in the Information, C1 and C2, were in fact adult persons with a mental disability pursuant to s. 153.1(1) of the Criminal Code of Canada ; 3) The Accused was in a position of trust or authority over C1 and C2 at the material time; 4) The Psychological consultation/assessment reports authored by Dr. Rhyno on March 3 rd , 2010 and Dr. Marrone on August 25 th , 2011, could be tendered by consent at the trial and be marked as Exhibits “1” and “2” respectively. 5) Dr. Rhyno’s and Dr.

Marrone’s reports were originally ordered for purposes other than determining C1 and C2’s ability, or lack thereof, to consent to sexual activity. In fact, neither Doctor could provide an opinion to that effect. 6) Dr. Rhyno’s and Dr. Marrone’s reports are an accurate depiction of C1 and C2’s cognitive abilities/limitations as of February 9 th , 2013. [ 8 ] In addition, the Crown called 4 witnesses to testify at the trial: Rachel Templeton, Tiffany Beaver, Ainslee McLaughlin and Art Starling.

The Accused did not call any evidence. [ 9 ] I must say that I found all Crown witnesses to be credible and that the issue to be decided by the Court did not rest on credibility. [ 10 ] Given that the events in question go back to the winter of 2013, each witness was not certain of all details or events, and each readily admitted same when that happened, and they were prepared to adopt details from their original statements or incident reports where their viva voce evidence departed from what was originally recorded over 4 years ago. [ 11 ] I will now review the Crown’s evidence.

i) Rachel Templeton [ 12 ] Ms. Templeton is currently the executive Director/CEO of the Juniper Centre in Thompson, MB. She has been in that role, or in an acting position for that role, since February of 2013, prior to which she was employed in various other roles at the Juniper Centre dating back to 1992. She has 26 years experience in her particular field. [ 13 ] Ms. Templeton referred to the persons attending the Juniper Centre as “residents” or “participants” or “people we support”.

I will refer to them hereafter as “Participants”, which ultimately became the most common reference used throughout the trial. [ 14 ] The Juniper Centre is a non-profit organization which offers day and residential programs to 44 adults living with developmental disabilities whom are resident in Thompson for at least 6 months, are diagnosed with a developmental disability prior to age 18, and possess an IQ of 70 or less, whom typically are referred to them by Family Services. To that end, Ms.

Templeton advises that they maintain in Thompson a number of residences, where all of the Participants’ normal living and activity needs are addressed 24/7, in addition to running a day program from Monday to Friday weekly which relates more to jobs and life skills, including one relating to the distribution of advertising mail (“Ad Mail”) in the Thompson area. Services and programs are provided depending on the specific wants/needs/abilities of each Participant, in an attempt to have them lead the most fulfilling lives as possible. [ 15 ] Ms.

Templeton was familiar with C1 and C2, having worked with them at the Juniper Centre, and indicated that they participate in both the day and residential programs. She testified that the level of dependency for both concerning emotional help is high. C1 had greater medical issues than C2, but C2 had greater mental health issues and struggled with boundary issues including physical contact with staff and asking personal questions. C1 struggles more than C2 with trust issues, including feeling comfortable around new staff.

She noted in cross-examination that both C1 and C2 would sometimes go out to social functions in the community, with staff checking up on them in person or via telephone. [ 16 ] Ms. Templeton testified on the hiring and training (initial and on-going) processes at the Juniper Centre, and how staff would come to be given information on dealing with vulnerable persons generally but also specific to the Participants and any issues they might have.

She indicated that staff also receive a number of documents, including the Protection Training Booklet which deals with protecting vulnerable persons from abuse and neglect (Exhibit 3), the Juniper Centre Collective Bargaining Agreement (Exhibit 4) and the Juniper Centre Policy Manual (Exhibit 5). The Crown tendered though Ms. Templeton Letters of Acknowledgment signed by the Accused in 2000 and 2009 (Exhibit 6) that she had been given copies of Exhibits 4 and 5 and agreed to review them and report back to management within 2 weeks if she had any questions.

Also provided was Exhibit 7 relating to the Foundations Course which the Accused had taken with other staff at the Juniper Centre through Red River College in the fall of 2010 and which related to working with persons with disabilities. Exhibit 8 was an excerpt from the Foundations Course materials which addresses, amongst other things, the type of relationship which staff should have with vulnerable persons and what are the appropriate boundaries which should be observed. [ 17 ] Ms.

Templeton in her evidence referred to Page 40 of Exhibit 5, item #2, which states that one of the ways to meet the goal of the Juniper Centre to support the Participants through their development of relationships and their sexuality is “by understanding and respecting the power dynamic between Support Staff and Participants, and never abusing that dynamic through sexual contact with a Participant.” Accordingly, she testified that any sexual contact between staff and Participants is strictly prohibited, albeit Participants are

otherwise free to exercise their sexual freedoms. [ 18 ] She confirmed that these materials do in fact specifically discuss how staff are to conduct themselves with the Participants and that relationships with the Participants are expressly not permitted and are, in fact, considered a form of abuse. These expectations, she testified, were made very clear to all staff, including the Accused.

She explained that staff are paid to perform their roles, are in a position of trust and power, and they are not the family or friends of the Participants, whom are in a position of dependency for many of their basic wants/needs. The goal is to help them develop their own circle of family and friends. She stated that physical contact with Participants is limited to a handshake or a high five. Hugging is generally not appropriate between staff and Participants. [ 19 ] Ms. Templeton testified that the Accused used to work as one of the Juniper Centre staff under her supervision.

She believed she had been hired in or around the year 2000. The Accused performed various roles at the Juniper Centre, but as of February 9 th , 2013, she was Ad Mail room Supervisor/Senior Area Supervisor, which had her involved with supervising many aspects of the day program and also the operation of the Ad Mail room to ensure that the contractual obligations of same were being met, including delivery of Ad Mail throughout the Thompson area, and that Participants received appropriate payment for their labors through a system of “checkmarks” which she entered and sent on to payroll. [ 20 ] Ms.

Templeton advised that the Accused would have been quite familiar with C1 and C2, as she interacted with both of them in the Ad-mail program which ran weekly from Monday to Friday and would have received briefing from time to time, as with other staff, on their specific issues/wants/needs. [ 21 ] Ms. Templeton testified regarding the events of the night of February 9 th , 2013, when the Juniper Centre was holding a special farewell event at their hall for the outgoing executive director, Jamie Weller, involving Participants, present and former staff, board members, Mr.

Weller’s friends and family, and other members of the public. Approximately 80 to 90 persons attended, and alcohol was being served to anyone whom wanted it, with the exception of on duty staff. She herself did not consume alcohol that night. There were speeches and presentations.

In cross-examination, she described the dance following the formal presentations, with music, dance lighting (i.e. dimmed lights) and people on the dance floor, including Participants, staff and members of the public. [ 22 ] She testified that around 11 pm, she received information which led her to become involved with the Accused, whom was off duty on the night in question. As she approached the Accused whom was seated in the middle of the hall, a staff member by the name of Kevin Sauve indicated that he needed her help with something.

She observed a staff member, Tiffany Beaver trying to get C1 away from the Accused and the Accused was told to go to another table. Ms. Templeton instructed Ms. Beaver to stay with C1 and she then guided the Accused to another table where she was now sitting down with other staff. [ 23 ] Ms. Templeton described the Accused as slurring her words and that she was not walking straight. She was definitely not sober, albeit she admitted that she did not spend much time observing the Accused between when she first came to the function and when she became involved with her and wanted her to leave.

She had seen the Accused sober on many occasions before and the walk was definitely different. The Accused did not require assistance to walk, did not vomit, did not lose consciousness at any time, nor did Ms.

Templeton recall seeing her fall, and she recalled her being able to speak coherently and to provide relevant responses including names of staff, including reference at one point to “James”. [ 24 ] In response to questions posed in cross-examination, she testified that the Accused was “noticeably intoxicated”. [ 25 ] When she told the Accused it was time to go, the Accused apparently understood and replied appropriate to the context “I’m not fucking going home”. [ 26 ] Ms.

Templeton in her testimony described C1 as not being sober, as her words were a little slurred, she was a little unsteady on her feet and she was acting a little more friendly than usual. [ 27 ] Ms. Templeton recalled that her next step, based on her dealings with the Accused and information she had received from staff, was to go looking for James Goble, to help with the situation and to get the Accused out of the building and home.

Someone may have then got her attention to return to the Accused, where she saw C1 now sitting on the Accused’s lap in the far side of the hall (not in the middle anymore), and that board members Caroline or Donna and staff Tiffany were involved at one point, and that they intervened to remove C1 from the Accused’s lap. She and others were then trying to arrange for the Accused’s transport home. She described the Accused as pushing out with her arm at one point to move Donna out of the way. Ms.

Templeton spoke to the Accused’s husband Glen on the phone and advised him that the Accused had acted inappropriately and needed to leave, but was refusing to do so. When she handed the phone to the Accused, the Accused smacked her hand to move the phone away.

She ultimately handled the situation by attending at the Accused’s home, watching her children while the Accused’s husband Glen attended at the hall to remove the Accused and bring her home. [ 28 ] The next communication with the Accused came in the form of texts exchanged the very next morning, with the Accused inquiring as to what she had done, what was going on and saying she was “sorry”.

Following discussions with board members and staff and involving a union rep, the Accused was placed on paid suspension pending a Juniper Centre investigation into allegations of an inappropriate sexual incident with a vulnerable person. In her later discussions with the Accused in the presence of her husband about what had taken place, the Accused indicated that “I was just dancing with them”. Ultimately, the Juniper Centre deemed the incident one of abuse and terminated the Accused’s employment. ii) Tiffany Beaver [ 29 ] Ms.

Beaver, age 23, testified that she was a long term resident of Thompson, MB who currently owned a business but was staying at home with her son. [ 30 ] She had been employed by the Juniper Centre as a support worker following her graduation from high school, including the period of February of 2013. While having worked at several of the residences, she had worked approximately one year at the residence where

C1 lived, attending to the everyday needs of the occupants of that household. [ 31 ] She relayed her understanding that she was not to have a relationship with the Participants outside of her work, to not contact them or “friend” them on Facebook, but saying “hi” was ok. You could talk to them at work and interact with them. Physical contact with them was to be restricted to either a handshake or a “high five”. Hugs were even were not appropriate, nor was kissing or holding hands. This was made clear to her by her employers. [ 32 ] When asked to comment about C1 specifically, Ms.

Beaver testified that she was very shy and it would take a lot before she warmed up to people. She could also be very stubborn, and would “shut down” if she was upset with you. She would joke around with you once she got to know you. Her specific limitations related to cooking, remembering to shower, taking medications, her banking, and getting up for work, all of which were things that she needed assistance with.

She could go out on outings on her own, but you would have to pick her up. [ 33 ] If given instructions, she would generally comply as directed with some encouragement, unless she was upset in which event she would shut down and not comply. She could be influenced by what staff told her, and she would generally do whatever she was told by staff. [ 34 ] She testified that C1 was not affectionate with her. They would “high five” each other, and that was all. [ 35 ] Ms. Beaver knew C2 too, but not as well as C1, having spent time with her at one of the larger residences.

She described her as being very hyper and happy, with good and bad days. [ 36 ] Ms. Beaver testified specifically about the events of February 9 th , 2013, when the Juniper Centre was having a farewell social for their CEO which she attended. She was on duty that night, working with the residents of R4 including C1, and therefore not drinking alcohol. She was monitoring C1 very closely all night due to her diabetes and her blood sugar levels, including keeping her moving on the dance floor. [ 37 ] Ms.

Beaver was familiar with the Accused and knew her to work in the Ad Mail program, including supervision of C1 and C2. She saw her at the social function that evening, and there was a specific incident which caught her attention. [ 38 ] While sitting with another Participant (Maddy) and watching C1 dancing with C2 and the Accused, huddled closely together in a circle on the dance floor, Ms. Beaver observed the Accused and C1 kissing (already in progress), and then C2 would pull the Accused’s face to her with her hands and they would kiss. C1 would then do the same, and it would go back and forth.

She observed that the kissing involved the tongues touching of all the persons involved, moving both inside and outside of their mouths. Ms. Beaver described it as “sloppy” kissing, with the Accused actively participating, albeit C1 and C2 were the ones always moving her face back and forth and she never actively changed the position of her face on her own. The Accused did not attempt to walk away or otherwise remove herself from the kissing. [ 39 ] It took Ms.

Beaver a bit before she realized what was going on, but she ultimately concluded this was inappropriate contact between staff and a Participant and as her worker she wanted to get her away from this situation. This led her to walk over to get C1 to come with her. [ 40 ] Despite repeated requests, words of encouragement and pulling at her, C1 was mad, stubborn, pushing at Ms.

Beaver and would not come with her, telling her loudly in close proximity to the Accused such things as “no”, “get away from me”, “I’m not coming with you”, “Leave me alone”, “I’m okay” and “I’m with my boss” or “She’s my boss”. [ 41 ] At this point she went to locate the on-call manager at Juniper Centre, Kevin Sauve to help her get the girls. [ 42 ] When she got back, the Accused was with Ainslee McLaughlin off the dance floor, who was trying to feed her bread or a bun and sober her up a little, and ultimately ended up sitting down in a corner by herself eating (albeit Ms. Beaver didn’t see how she got there).

C1 and C2 were still dancing together, and she had checked on C1 at one point to see if she was okay. [ 43 ] C2 then apparently spotted the Accused, going over to her and sitting on her lap, which she described as being “facing sideways, like you would hold a toddler”, and seconds later C1 then apparently spotted them and went over and the two of them took turns sitting on the Accused’s lap in similar fashion. Ms. Beaver requested help and Kevin Sauve, James Gobel, Rachel Templeton (CEO) and/or Donna Wilson (Juniper Centre Chairperson), assisted her in removing C1 and C2 from the Accused’s lap.

As soon as they would get one of the off the Accused’s lap, the other would take her place and it became a chaotic situation. She did not see the Accused’s hands. The Accused did not try to push C1 or C2 off from her lap, nor did she overhear the Accused telling them to get off. [ 44 ] Ms. Beaver also testified, having identified and refreshed her memory from page 5 of her police statement that she also observed C2 kissing the Accused while seated on her lap, albeit she couldn’t recall much if anything what the kissing consisted of. [ 45 ] Ms.

Beaver described C1 as having a disability and being “pretty drunk” and that the Accused was “taking advantage of her”. She said that C1 had already consumed 6 alcohol coolers that night. When asked for more details of this in cross-examination, she indicated that C1 was walking on her own at the dance and able to have coherent conversations and that she was “feeling the effects of alcohol”. She was not “falling over drunk”. [ 46 ] As for the Accused, Ms.

Beaver described her as stumbling, slurring her words (albeit she could not recall any specific conversation) and “pretty intoxicated” or “pretty drunk”, albeit able to walk about on her own, not falling down and not vomiting or losing consciousness at any point in time. When cross-examined on her statement to the RCMP on July 16 th , 2013, Ms. Beaver confirmed that she had truthfully and accurately described the Accused’s level of intoxication to the police at a point in time when her memory was better.

Therein, she had described the Accused as “she seemed really spaced out”, “she was stumbling and slurring her words”, “she was totally out of it” and “like she couldn’t even really walk without the two girls on her side” (in reference to C1 and C2).

iii) Ainslee McLaughlin [ 47 ] Ms. McLaughlin testified that she is 27 years old and currently living in Snow Lake, MB and on maternity leave from her employment as a school counsellor. She has a Bachelor of Social Work degree. She was employed by the Juniper Centre in February of 2013, having started working there approximately one year earlier. She worked at the Juniper Centre for approximately 2.5 years in total, doing largely casual work in the residences and day programs while she was doing her social work degree.

She worked at 4 different residences, doing one on one work with participants, but also as house staff where she would give out medications, prepare meals and help with all daily activities of the home. [ 48 ] She worked with both C1 and C2 as part of her duties, at each of their separate residences. She knew C2 better than C1. She described C2 as a couple of years older than her, living at the Cambridge House and needing very little support in terms of her daily living activities. She did, however, need a lot of guidance and advice in terms of relationships.

She stated that you might not appreciate her disability if you met her on the street, but it would become apparent once you spent more time with her that she needed support from her workers. She could be impulsive, act without thinking and was not really capable of making informed decisions. She would not always take advice, and she was a follower who could be led astray or persuaded to change her mind, depending on what people told her. Ms. McLaughlin described a good working relationship with C2 and that C2 would come to her for advice.

C2 did occasionally “catch” her in hugs, but she would just stand there and not reciprocate and would ask C2 to “high five” her instead. [ 49 ] She described C1 as very independent too, and had past relationships and an older daughter. She would be very quiet at first, then opened up to you once you got to know her more. She did not really look for advice as many of the other Participants did, but did sometimes fish for advice in an indirect way. [ 50 ] She was aware as staff that friendships were ok with Participants, but not relationships and definitely not romantic ones.

Hugs were not appropriate as per directive of Rachel Templeton, but pats on the back or “high fives” were acceptable. Kissing was definitely not appropriate. She testified that in her own common sense, inappropriate physical contact with Participants was a form of abuse given their role as “caretakers”. [ 51 ] Ms. McLaughlin testified that she was present at the Juniper Centre farewell social for the outgoing CEO on February 9 th , 2013. She was originally on duty as a staff member, returning later as a guest between 10:15 and 10:30 p.m.

She had at most 3 drinks the entire evening. [ 52 ] She was familiar with the Accused and her role as a senior staff and supervisor in the Juniper Centre Ad Mail program. She saw her at the social. She described the Accused as being “heavily intoxicated” when she saw her arrive between 9:00 and 9:30 p.m. while Ms. McLaughlin was still on duty. She based her conclusion of intoxication on the Accused’s gait/walk/stumbling, the look on her face and eyes, very slurred speech and the fact that she did see her fall on the dance floor at one point.

However, she did not see the Accused lost consciousness or vomit, and the Accused was able to dance and walk on her own unassisted as well as have conversations which were relevant and appropriate to context, including referring to the names of other persons. [ 53 ] She testified that she observed the Accused dancing with C1 and C2 in a normal fashion, but she was concerned about, and watching closely, the Accused given her state of intoxication.

She testified about taking the Accused off the floor several times for food or water, and that C1 and C2 were concerned about her state too when she was taken off the dance floor. In fact, in cross-examination she testified that C2 at one point was caring for the Accused, giving her ice water, which related to how heavily intoxicated she was. [ 54 ] She felt she wasn’t getting anywhere with the Accused and continued to watch her, especially as she felt that Participants ought not to be in the position of having to care for staff.

As she glanced back and forth from the dance floor and the Accused, she saw the Accused lean in close towards C1 and engage in what she believed to be a kiss. It was not a long kiss, nor was it a short peck either. She based this on how the Accused had moved in close towards C1, how her face had disappeared behind C1’s, and also on the shocked look she observed on C2’s face, which she described as a “jaw drop” or “shocked” look at what she was seeing. C1 was facing away from Ms. McLaughlin, but C2 and the Accused were facing towards her.

She candidly admitted that she did not actually see any kiss take place (i.e. did not witness actual contact of lips), and she could not hear any words exchanged between the two nor could she see C1’s face/facial expressions, but she truly believed it had happened based on the totality of what she saw on the dance floor. It was an assumption only, as she could not note something in an Incident Report that she did not actually see. She testified that she did not see the Accused rebuff or remove herself from physical contact with C1. [ 55 ] Ms.

McLaughlin testified that “alarm bells” went off and she immediately went to the Accused, C1 and C2 and tried to force feed the Accused a bun. It became an “emergency” or a “matter of great concern” at that point. She then went to James Gobel, a manager in the day program, to enlist his aid in dealing with the Accused. She told him that the Accused needed to leave and that they needed to get her out of there, that things had “gotten out of hand” and explained to him what she thought she had seen on the dance floor.

She also had a conversation with Tiffany Beaver. [ 56 ] She described the Accused as being non-compliant with her efforts to have her eat, drink or leave. She was not listening to her and Ms. McLaughlin described herself as losing patience with her. She felt frustrated, angry, alone and wanted more support in dealing with the Accused and in getting her to leave. She was by then off duty, it was a going away party and it was not her job to take care of another intoxicated staff member.

She felt that the Accused had taken advantage of a Participant (C1). [ 57 ] In cross-examination and in reference to an Incident Report she herself had made close in time to the incident, Ms.

McLaughlin confirmed that she had accurately written words to the effect “C2 and C1 would not leave her even though I asked them to go back to dancing”, “Doreen was not listening to anything I was saying and she could hardly stand and did not even respond when talked to” and in reference to the perceived kiss on the dance floor between the Accused and C1 “once their faces moved together, I wasn’t sure what I just saw but I left my seat”. This was when she walked to the dance floor to intervene and Tiffany Beaver had walked over as well.

She also confirmed her Incident Report notation the Accused had fallen twice while dancing, and that she helped her up only once and brought her to sit and have a bun. She confirmed that the Accused fell at 10:50 p.m. and that the kissing incident took place about 20 minutes later.

[ 58 ] In cross-examination and in reference to her earlier police statement dated August 3 rd , 2013, Ms. McLaughlin confirmed that she had truthfully and accurately described the Accused to the police as “her eyes were glazed over like no-one was home”, “you would look at her and she just looked past you as if she had no idea that she was talking to you”, “she was not coherent at all”, “it was just like looking into a blank slate sort of thing” and that she wasn’t sure “how much of it the Accused was taking in”, and that C1 and C2 may have been helping/supporting the Accused after she fell on the dance floor.

She agreed that at one point she had told Jamie Weller to not give the Accused a shot of liquor given her state of intoxication. [ 59 ] In cross-examination, Ms. McLaughlin testified that one point, the Accused was led from Ms. McLaughlin’s table back to the dance floor as she was bothering persons at the table. This was before she was dancing with either C1 or C2. iv) Art Starling [ 60 ] Mr. Starling testified that he is a Thompson resident whom has worked for the past 5.5 years for the Juniper Centre as a residence worker.

His duties are to assist in the day to day life of the Participants, to guide them, involve them in activities and to help them lead fulfilled lives. He was familiar with both C1 and C2, but had not worked directly with them. He also knew the Accused through her involvement as the head of the Ad Mail program. [ 61 ] His understanding of the Juniper Center policy on relationships with Participants was that physical contact was to be limited to a handshake or a “high five”, and that hugs and kisses were not appropriate.

To him, this was based on common sense and his own morality. [ 62 ] He testified that he was in attendance at the Juniper Centre farewell social on February 9 th , 2013, and that he was there for “a good time”. He was not on duty. He believed he had drank approximately 5 to 6 beers evenly paced over the course of the entire event, which lasted from approximately 8:30 p.m. to 12:30 a.m. While he would not have been legal to drive, he had no difficulty walking or speaking. [ 63 ] He confirmed that he saw C1 and C2 at the social, but was unable to comment on their level of sobriety.

He also saw the Accused when she was sitting for a period of time (approximately 10 minutes) at the same table with a mixed group of people, and testified that she appeared to have had a “head start” on the evening, meaning that she appeared to have already consumed alcohol. He had seen her sober at work many times before, and spoken to her many times before, and noted a difference in her behavior and speech. [ 64 ] He noted her to be slurring her words and she appeared to be intoxicated, based on his observations of her and her overall behaviour.

He observed her walking on her own and she was able to talk (albeit he had no specific conversation with her himself), but he did testify that at one point during the presentation to Jamie Weller, she was attempting to joke or heckle but he was not able to understand her or get the gist of what she was saying and he attributed this to her level of intoxication affecting her ability to communicate.

She did not fall down, vomit or lose consciousness at any point. [ 65 ] She also made comments at the table thanking persons for help in the Ad mail room, and to him these were not context appropriate as no-one at the table save and except maybe one person were currently in the Ad mail room, albeit some had been involved there at least peripherally in the past. [ 66 ] In cross-examination, he confirmed that in his prior statement to the Juniper Centre dated March 8 th , 2013, he had described the Accused as “extremely intoxicated” and “she did not seem herself”, and that she was talking and “not making a whole lot of sense”. [ 67 ] He indicated that he thought C1 or C2 might have had a drink or two, as they both were a little more excited than usual, but that could also have been due to the “atmosphere”. [ 68 ] Mr.

Starling testified that he either glanced, or was directed, towards roughly the centre of the dance floor, and saw C1 and C2 walking “arm in arm” with the Accused across the dance floor. He was not sure the exact order they walked in. They stopped walking and he then saw a kiss shared between the Accused and C2, and then between the Accused and C1. These were two separate kisses, lip to lip, not terribly long but not a peck either. He did not describe the kisses as “passionate”, and said they were both between 1 to 3 seconds in length, but he wasn’t entirely sure due to the passage of time.

The lighting was dim and he was not close enough to see their facial expressions, hand gestures/motions or to hear any words exchanged between them. He did not see anyone else approach them or with them. They were headed in the direction of the bar. [ 69 ] This incident stood out to him. Due to his training he viewed it to be inappropriate behavior between staff and Participants. He did not take any action to deal with what he saw and did not fill out an incident report, but was later interviewed by James Gobel about what he had seen. [ 70 ] In cross-examination, Mr.

Starling indicated that he observed C2 kiss the Accused (i.e. C2 moved her head towards the Accused when they were side by side). [ 71 ] When questioned by the Court, he testified that he observed the kiss between C1 and the Accused already in progress.

v) Psychological consultation/assessment reports [ 72 ] I was provided with two such reports, as identified above as Exhibits 1 and 2. I will not refer to them in great detail as counsel noted at the outset of this trial that both C1 and C2 are persons with a mental disability and that certainly is borne out by the Reports. There is no doubt based on the totality of the evidence before me that both of them are vulnerable persons. [ 73 ] In her report on C2, Dr.

Rhyno notes on page 2 that C2 “is functioning within the Extremely Low range of overall intellectual ability with a Full Scale IQ equal to 63 (1 st percentile) compared to same-aged peers.” She says further on page 3 that “Given Ms. C2’s child-like naivety and the deficits in adaptive social skills, I would be concerned that she is susceptible to being taken advantage of or

mislead in ways that could result in physical and/or emotional harm from others.” On the same page, she goes on to state that C2 is “a young adult with Extremely Low intellectual abilities” and diagnoses her as meeting the “full criteria for a diagnosis of Mild Mental Retardation”. [ 74 ] In her report on C1, Dr. Marrone notes on page 5 that C1 “attained a Full Scale IQ of 43, which falls into the Extremely Low range of intellectual functioning (less than 0.1 percentile). She was noted on page 4 to be “shy and withdrawn”.

She noted on page 6 “an examination of her scores presented above indicates an overall severely impaired pattern of performance, suggesting a high degree of cognitive inflexibility”. On page 9 she described C1 as a “fragile and timid woman”. Ultimately on page 10 she concludes that “the results of this assessment support a diagnosis of significantly impaired intellectual functioning”. Issue and Analysis [ 75 ] I indicated at the beginning of these reasons for decision that the issue before the Court is a very narrow one. Time, date and jurisdiction were admitted at the outset of the trial.

The Accused was easily identified in Court by multiple Crown witnesses who knew her and had worked with her at the Juniper Centre. Both C1 and C2 were admitted to be persons with a mental disability. The Accused admitted that she had been in a position of trust or authority over them. Kissing had clearly taken place and the Accused’s counsel did not argue that this behavior was not sexual in nature or did not violate C1 or C2’s sexual integrity.

Further, the Crown did not dispute that the kisses were factually consensual . [ 76 ] Rather, the Crown took the position that any consent given by C1 or C2 was vitiated because the Accused was in a position of trust or authority towards them as persons with a mental disability, and that she did counsel, incite or induce them to engage in sexual activity (kissing) by abusing her position of power, trust or authority. [ 77 ] The Crown argues that the testimony of the witnesses it called must be viewed as a timeline , where each witness’ testimony must be viewed as separate instances making up the totality of what took place, rather than conflicting versions of what happened, and that the court needs to undertake a contextual analysis of all the evidence before it.

The Crown submits that if you consider the totality of what took place, notwithstanding the absence of specific words between the Accused and C1 and C2, the Court can infer facts necessary to convict the Accused, even if the evidence in support of same is subtle as opposed to overt. [ 78 ] The Crown refers to the Drs. Rhyno and Marrone reports which establish the clear vulnerability of C1 and C2, including issues with memory and decision-making abilities and whom both were highly impressionable.

The Crown submits that while they have the freedom under the law to make their own decisions, including those on sexuality, they were kissing the very person whom was supposed to be helping guide them to make those decisions. The Crown argues that there could not be a higher level of trust, power or authority than an employee at Juniper whom was acting as caretaker for vulnerable persons , particularly where that caretaker was responsible for the Ad Mail program and how much the Participants got paid for their work in that program.

The Crown argues that the Accused had a lot of specific knowledge about C1 and C2 and their issues, which she exploited when she engaged in kissing them. The Crown says that the Accused was aware from the policy and procedure materials at the Juniper Centre that this type of activity with Participants was considered abuse and therefore inappropriate, yet she persisted nonetheless.

Consent, in these circumstances, is urged by the Crown to be considered illusory . [ 79 ] The Accused argues that there simply is no evidence in support of the material averments and that there must be an acquittal as the Crown has not proven its case beyond a reasonable doubt. In particular, the Accused argues there is no evidence that she initiated any of the kissing, so she could not possibly have counselled, incited or induced C1 or C2 to have engaged in the sexual activity in question. Her acquiescence to the sexual activity does not found her guilt under the law.

The Accused says that the case law requires much more in terms of actual steps to counsel, incite or induce before the court can conclude that such has taken place. [ 80 ] Further, even if the Court concludes that she did counsel, incite or induce as those terms are defined under the law, the Accused argues that there is no evidence that she did so by abusing a position of trust, power or authority. [ 81 ] The Accused, while conceding the high level of vulnerability or impressionability of C1 and C2, argues that she did nothing to exploit them, and that the test of reasonable doubt in Lifchus is a high one, and the test is not met on this case. “Probably” happened is not enough to support a conviction, argues the Accused. [ 82 ] Relevant Provisions from the Criminal Code as of Offence Date Sexual exploitation of person with disability 153.1

(1) Every person who is in a position of trust or authority towards a person with a mental or physical disability or who is a person with whom a person with a mental or physical disability is in a relationship of dependency and who, for a sexual purpose, counsels or incites that person to touch, without that person’s consent, his or her own body, the body of the person who so counsels or incites, or the body of any other person, directly or indirectly, with a part of the body or with an object, is guilty of (

a) an indictable offence and liable to imprisonment for a term not exceeding five years; or (

b) an offence punishable on

summary conviction and liable to imprisonment for a term not exceeding eighteen months. Definition of consent

(2) Subject to subsection (3), consent means, for the purposes of this section, the voluntary agreement of the complainant to engage in the sexual activity in question. When no consent obtained

(3) No consent is obtained, for the purposes of this section, if (

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

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

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

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

e) the complainant, having consented to engage in sexual activity, expresses, by words or conduct, a lack of agreement to continue to engage in the activity. Subsection (3) not limiting

(4) Nothing in subsection (3) shall be construed as limiting the circumstances in which no consent is obtained. When belief in consent not a defence

(5) It is not a defence to a charge under this

section that the accused believed that the complainant consented to the activity that forms the subject-matter of the charge if (

a) the accused’s belief arose from the accused’s (

i) self-induced intoxication, or (ii) recklessness or wilful blindness; or (

b) the accused did not take reasonable steps, in the circumstances known to the accused at the time, to ascertain that the complainant was consenting. Accused’s belief as to consent

(6) If an accused alleges that he or she believed that the complainant consented to the conduct that is the subject-matter of the charge, a judge, if satisfied that there is sufficient evidence and that, if believed by the jury, the evidence would constitute a defence, shall instruct the jury, when reviewing all the evidence relating to the determination of the honesty of the accused’s belief, to consider the presence or absence of reasonable grounds for that belief. Sexual assault 271(1) Everyone who commits a sexual assault is guilty of (

a) an indictable offence and is liable to imprisonment for a term not exceeding 10 years; or (

b) an offence punishable on

summary conviction and is liable to imprisonment for a term not exceeding eighteen months. Meaning of consent 273.1

(1) Subject to subsection (2) and subsection 265(3), consent means, for the purposes of sections 271 , 272 and 273, the voluntary agreement of the complainant to engage in the sexual activity in question. Where no consent obtained

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

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

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

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

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

e) the complainant, having consented to engage in sexual activity, expresses, by words or conduct, a lack of agreement to continue to engage in the activity. Subsection (2) not limiting

(3) Nothing in subsection (2) shall be construed as limiting the circumstances in which no consent is obtained. Caselaw Provided [ 83 ] Counsel provided me with a number of authorities. I will now review them.

[ 84 ] R v. Alsadi , 2012 BCCA 183 was a decision of the British Columbia Court of Appeal written by Chiasson, J.A. involving a 29 year old security guard whom had sexual relations (touching of breasts/oral sex) with a complainant who was a psychiatric patient (49 years old and whom suffered from schizophrenia for approx. 30 years) at the hospital where he worked. [ 85 ] While in uniform and patrolling the hospital grounds, the Accused encountered the complainant outside having a cigarette.

After she made comments to him that she found him physically attractive, he suggested they go inside to continue their conversation because it was cold. Once inside, the complainant hugged him and kissed him on the mouth. The complainant waited while the Accused deposited his bicycle in a safe place so they could continue kissing. The Accused suggested they go somewhere more private. The complainant suggested a stairwell, but the Accused proposed a day-care clinic, which was locked and alarmed, but for which he had keys and was able to disarm the alarm.

Once inside, the complainant selected a couch, where they continued to kiss, leading up to further sexual activity. [ 86 ] The trial judge had concluded that the Accused was not in a position of trust or authority at the time of the incident. The British Columbia Court of Appeal considered the same Criminal Code provisions as set out above, and quoted approvingly from a number of authorities including R v.

Lutoslawski (a decision of the Ontario Court of Appeal in 2010) in paragraph 19. [ 87 ] Justice Chiasson concluded at paragraph 30 that the trial judge had made a number of errors in his decision and that it would be open to the court on the evidence to have found that as a security guard, the Accused was in a position of “trust, power or coercion”. [ 88 ] He stated further at paragraph 30 that the evidence could also support a finding that the Accused incited or induced the complainant to participate in the sexual activity.

If this were the case, the issue would be whether the Accused “abused his position to obtain her participation”. In other words, as stated in paragraph 33 of the decision, can the Court appropriately infer that the victim’s participation was incited or induced by the Accused’s abuse of a position of trust, power or authority? [ 89 ] Justice Chiasson indicated further in paragraphs 24, 26 and 33 that the issue was not whether the victim misapprehended her right to refuse his advances, or feared reprisals, or did not understand she could say “no”.

Coercion or overpowering the victim’s free will is not required to support a finding that the complainant’s consent had been vitiated. [ 90 ] The matter was remitted back for a new trial. [ 91 ] R v. Lutoslawski , 2010 ONCA 207 was a decision of the Ontario Court of Appeal written by Doherty, J.A. involving an Accused who was alleged to have sexually exploited/assaulted (full sexual intercourse) a number of teenage girls in the context of his organization which took Polish-Canadian boys and girls on wilderness camping trips and overseas excursions.

The Crown took the position concerning the victim, J.P. that notwithstanding she had agreed to participate in sexual activity with the Accused as Scout Leader between ages 15 and 19 at a number of various locations/outings, her agreement did not constitute an effective consent because it was induced by the Accused’s abuse of his position of trust and authority over her ( s. 273.1(2) (

c) Criminal Code ). The Accused at trial agreed that he was in a position of trust and authority over the victim, but maintained that the evidence did not support a finding that he had abused that position to obtain her consent. [ 92 ] In addressing that s. 273.1(2) (

c) of the Criminal Code is broader than s. 265(3) (d), and does not require a coercive use of authority to overcome resistance to consent, Justice Doherty indicated at paragraph 12 of his decision that “

section 273.1(2) (

c) addresses the kinds of relationships in which an apparent consent to sexual activity is rendered illusory by the dynamics of the relationship between the accused and the complainant, and by the misuse of the influence vested in the accused by virtue of that relationship.” [ 93 ] He stated further in the same paragraph that “an individual who is in a position of trust or authority over another may use the personal feelings and confidence engendered by that relationship to secure an apparent consent to sexual activity.” [ 94 ] In endorsing R v.

Makayak at paragraph 13, Justice Doherty recognized that the word “induces” introduces a more subtle form of pressure that can be inferred from the circumstances of the exercise of the power or authority. [ 95 ] He concluded in paragraph 15 that the trial judge erred by failing to apply s. 273.1(2) (

c) to the facts as he found them, and that “had he considered that section, he may have concluded that J.P.’s apparent consent to the sexual activity was, as a matter of law, no consent at all.” [ 96 ] The matter was remitted back for a new trial concerning this particular complainant. [ 97 ] R v. Kiared , 2008 ABQB 767 was a decision of the Alberta Court of Queen’s Bench written by S.D.

Hillier, J. involving a driver who was alleged to have sexually assaulted causing bodily harm and sexually exploited (cunnilingus/sexual intercourse/anal intercourse) an adult female passenger whom he was transporting pursuant to his employment with Disabled Adults Transportation System (DATS).

The Crown conceded that complainant had capacity to give consent to sexual activity. [ 98 ] Justice Hillier went on to consider s. 153.1 of the Criminal Code , stating as follows at paragraph 60: With respect to s. 153.1, the Crown must establish that: - C.L. is a person with a mental or physical disability; - the Accused was in a position of trust or authority toward C.L.; and

- in the circumstances of this case, the Accused for a sexual purpose counseled or incited C.L. to touch, without C.L.’s consent, hisbody. [99] In paragraph 62, Justice Hillier quotes the Supreme Court of Canada decision in R v.

Audet for the proposition that “it is importantto consider the purpose and objective pursued by Parliament, in passing legislation such as s. 153.1, of protecting the interests of personswho are vulnerable due to the nature of their relationships with certain persons.” (emphasis mine). [100] He went on further to state at paragraph 74 that “no consent is obtained where the accused induces the complainant to engage inthe activity by abusing a position of trust, power or authority: s. 153.1(3)(c).” [101] While ultimately concluding that Crown had not established a position of trust existed in relation to the victim, Justice Hillierindicated further in paragraph 74 of his decision that if he was wrong in that finding, he would find on the facts of this case that theAccused abused that position of trust, and lack of consent would be established, as: sexual activity took place during the course ofservices the Accused was rendering as a DATS employee to the complainant, it was as a result of that employment that the Accusedgained introduction to the complainant, he had familiarity to her disabilities/vulnerabilities and access to her home and activities assomeone known to her, he appeared at her residence in uniform and there was a relational imbalance given his greater mental acuitycombined with her immature naivety stemming from her disability. [102] The accused was ultimately convicted of sexual assault cause bodily harm but acquitted of sexual exploitation of a person withdisability under s. 153.1(1) of the Criminal Code. [103] R v.

Makayak, 2004 NUCJ 5 , 2004 NUCJ 05 was a decision of the Nunavut Court of Justice written by E. Johnson, J.involving an Accused who was alleged to have sexually assaulted an inmate he was guarding in a remand cell in Baker Lake. JusticeJohnson ultimately determined that the sexual activity which took place was non-consensual, and also considered s. 273.1(2)(

c) of theCriminal Code. At paragraph 61, he indicates that the Accused knew the victim was vulnerable and highly motivated to cooperatebecause of her dependence on him to give and withhold favors. His belief in consent was “tainted” by an awareness of one of the factorsin s. 273.1(2) namely subsection (c). [104] On the issue of inducement or abuse to trigger this subsection, Justice Johnson stated at paragraph 69 of his decision that:

Section 273.1(2)(

c) broadened the scope of criminal conduct to include breach of trust or power. However, the

section also added thewords “induces the complainant . . . by abusing a position of trust, power or authority”. Does this mean there has to be some form ofcoercion? In my view, these words remove the need for coercion that may be present for section 265(3)(d). It is clear from Mathesonthat it is the exploitation of the imbalance that is the key consideration.

Section 273.1(2)(

c) was passed a number of years after thecourts had struggled with section 265(3)(d). Parliament had the opportunity to consider the case law that had developed up to that point. The use of the word “induces” introduces a more subtle form of pressure that can be inferred from the circumstances of the exercise ofthe power or authority. [105] After quoting the definition of “induce” from the Oxford English Dictionary at paragraph 69, Justice Johnson went on inparagraph 70 to note: The accused initiated the conversation with the complainant that led to the massage.

He then built on this non-sexual contact to movethings to the next stage by making the offer to the complainant to stretch her legs outside the cell, knowing full well this would facilitatefurther contact. There is no doubt that he was inducing the complainant toward a sexual act. [106] He stated further at paragraph 71: The next requirement is that the inducing flows from the abuse of authority.

The mere existence of the power or authority does notvitiate the consent as can be seen in the Levandier case referred to in footnote 2. [107] He concludes at paragraph 73 as follows: I conclude therefore, that if the complainant consented as alleged by the accused it was vitiated by the words and actions of the accusedin inducing her to have sex by the abuse of his power and authority over her as a civilian prison guard. [108] The Accused was convicted of sexual assault. [109] R v.

Hogg, 2000 CarswellOnt 3091 was a decision of the Ontario Court of Appeal written by Finlayson, J.A. involving an Accusedwhom was alleged to have sexually assaulted/confined a female whom performed oral sex on him in exchange for cocaine. The trial wasbefore Judge and Jury and the Ontario Court of Appeal determined that a new trial be ordered based on error in the instruction to thejury, particularly as it related to s. 273.1(2)(

c) of the Criminal Code. [110] Justice Finlayson said in particular at paragraph 12: Most important, the trial judge failed to instruct the jury that if the Crown was relying upon s. 273.1(2)(

c) to vitiate the complainant’s

consent to the sexual assault under s. 271 of the Code, the onus was upon the Crown to establish the factual underpinning of the section,namely that the appellant was in a position of trust, power or authority with respect to the complainant which reduced her to a state ofdependency upon him such that he was able to misuse his dominant position to extract her consent to a sexual assault. [111] He stated further at paragraph 13: If the jury were to convict the appellant on the application of the principle of vitiated consent, they would have to be satisfied beyond areasonable doubt on all of the evidence that the appellant had misused his power or authority over the complainant because of herdependence on him as a supplier of drugs. [112] Finally, Justice Finlayson commented at paragraphs 16, 17 and 20: 16 It is to be noted that the trial judge restricted his instruction to “power” and omitted “authority” and “trust” as one of therelationships in s.273.1 (2)(c).

There is little direct authority on the meaning of “position of power” in the subsection and whencontrasted to authority and trust it is probably the broader term and as such is less formalized or structured. Nevertheless, had it beenappropriate to leave the

section to the jury at all, it was the duty of the trial judge to give the jury some help on its meaning in the contextof criminal proceedings. 17 The protection of the vulnerable and the weak and the preservation of the right to freely choose to consent to sexual activity isclearly the aim of s.273.1(2)(c): R. v. Ewanchuk (1999), (SCC), 131 C1.C. (3d) 481 at 496-98 (S.C1.); R. v. Audet (1996), (SCC), 106 C1.C. (3d) 481 at 490ff (S.C1.); Norberg v. Wynrib (1992), (SCC), 92 D.L.R. (4th)449 at 460-64 (S.C1.).

I have no doubt that it could have application to the relationship between a drug dealer and an addicted client.However, the relationship is not one of an imbalance of power per se. This is not a case of a position of authority or trust, such as in theprototypic doctor/patient, teacher/student relationship, where vulnerability is inherent to the relationship itself.

The trial judge shouldhave instructed the jury that they must be satisfied that because the appellant was a supplier of illicit drugs to the complainant, that thisrelationship created a relationship of dependency that could be exploited by the appellant to vitiate the complainant’s consent to engagein sexual activity: R. v. Audet, supra: R. v. Matheson (1999), (ON CA), 44 O.R. (3d) 557 (Ont. C.A.).

It should havebeen made clear to the jury that this involved both an objective and a subjective standard: the objective relating to establishing that therelationship was that of supplier and drug user and the subjective relating to her dependency upon him as her supplier such that she couldnot give independent consent to his sexual advances.

In both cases, the burden of proof was on the Crown. 20 However, when we return to the night of the alleged offence in June of 1994 and address the issue of consent to sexual activity,there is no objective evidence of a client/customer relationship and no subjective evidence that the complainant consented to oral sex orany sex as a result of her dependency on the appellant as her supplier. She was adamant that she did not consent to oral sex: hertestimony was that she was forced to have sexual intercourse. [113] R v.

Thompson, 2017 SKCA 33 is a decision of the Saskatchewan Court of Appeal written by Ottenbreit, J.A. involving anAccused whom at trial was convicted of sexual assault (digital penetration) on a 36 year old mentally disabled adult, including a findingthat s. 273.1(2)(

c) of the Criminal Code applied due to the complainant’s mental capabilities (she had the mental capabilities of an 11 to13 year old) and that the Accused was in a position of trust towards her (he was a mature individual, a long-time family and personalfriend and a trusted support, and the complainant would be laying in his office on a table for treatments with nothing but a sheet). Thetrial judge did not accept that any of the touching had been consensual. The appeal as to conviction was dismissed but the Crown’sappeal of sentence was allowed. [114] R v.

Rhynes 2004 PESCAD 15 was a decision of the Appeal Division of the P.E.I. Supreme Court written by McQuaid, J.A.involving an 18 year old Accused who was convicted at trial of two counts of invitation to sexual touching concerning two females lessthan 14 years old (i.e. “inciting” the complainants to touch him) under s. 152 of the Criminal Code. [115] This decision related to a Crown appeal from the

summary conviction appeal court which set aside the convictions and enteredacquittals. [116] The

summary conviction appeal court found there to be no evidence which showed the Accused “recommended” or “persuaded”or “actively induced” the victims to engage in sexual touching, despite the accused permitting his vehicle to be used to pick up thevictims and participating in the sexual activity in that he made himself available for it, meeting at an abandoned restaurant to engage insexual activity, and participating in phone calls or conversations with the victims about meeting them at various locations prior to sexualactivity taking place.

There had to be more to constitute incitement than an “assumption on the part of the parties that sexual activitywill take place when they meet”. [117] Justice McQuaid noted at paragraph 8 of the decision as follows: However, as with any criminal offence, the purpose of which is to protect members of society from the wrongful conduct of others, eachhas essential elements which must be proven beyond a reasonable doubt before a person accused of committing one of the offences canbe convicted.

[118] Justice McQuaid in considering the meaning of the term “incite” referred at paragraph 42 to s. 22 of the Criminal Code concerningcounselling another to commit an offence, which he took to be applicable to the entire Criminal Code. [119] He stated in paragraph 43: The spectrum of the way in which a person may counsel another to commit an offence ranges from saying or doing anything whichwould advise the person to commit the offence to urging or persuading someone to commit an offence.

To incite someone to commit anoffence clearly means the alleged offender must urge or persuade the other person to do so. [120] He indicated further at paragraph 47: When considering whether an accused person counselled the commission of an offence, mere passive acquiescence is not sufficient toprove the offence. The offender must in some manner encourage the commission of the offence either by recommending or urging. Similarly, s. 152 requires some evidence of

an act on the part of the respondent to demonstrate that the respondent urged thecomplainants to touch him for a sexual purpose because in this case the Crown alleged the accused “incited” the complainants. [121] Finally, at paragraph 49: With respect to

section 152 and specifically with respect to this charge against the respondent, it would be necessary for the Crown toprove his conduct, viewed objectively, was conduct which encouraged, persuaded or urged the complainants to touch him for a sexualpurpose. [122] Leave to appeal and the appeal were both dismissed, noting that the

Summary Conviction Appeal judge had properly identifiedflaws in the trial judge’s evaluation of the evidence, properly concluded that to “incite” touching for a sexual purpose contrary to s. 152of the Criminal Code it must be proven the offender by some positive act, urged persuaded or encouraged the person under the age of 14years to do so, and had not acted beyond the scope of her power as a

Summary Conviction Appeal Court judge. [123] I was also provided by counsel with copies of the decisions in Regina v. William E. Coutts Co. Ltd (ON CA) onthe meaning of the word “induced”, R v. L. (D.B.), 1995 CarswellOnt 988 (Ontario Court of Appeal) on the finding of a “position oftrust” and the dependency/vulnerability which often accompanies it and R v. Ewanchuk, (SCC), [1999] 1 S.C.R. 330on the actus reus/mens rea of sexual assault and the meaning of “consent”.

I have considered these cases but am not making any specificreference to them in my reasons for decision. iii) Conclusion [124] None of the witnesses actually saw the Accused initiate kissing with C1 or C2.

Ainslee McLaughlin assumed she had seen theAccused do so, however, I find that evidence speculative at best and I do not find that evidence comes close to proving beyond areasonable doubt that either a kiss took place at that specific point in time or that the Accused initiated it. [125] So, upon review of the evidence, the inference that is as compelling as any other is that C1 or C2 initiated the kissing upon theAccused and she thereafter participated in the kissing. [126] I remind myself of what Mr. Justice Cory said in R v.

Lifchus (SCC), [1997] 3 SCR 320 at paragraph 27: First, it must be made clear to the jury that the standard of proof beyond a reasonable doubt is vitally important since it is inextricablylinked to that basic premise which is fundamental to all criminal trials: the presumption of innocence. The two concepts are forever asclosely linked as Romeo with Juliet or Oberon with Titania and they must be presented together as a unit.

If the presumption ofinnocence is the golden thread of criminal justice then proof beyond a reasonable doubt is the silver and these two threads are foreverintertwined in the fabric of criminal law.

Jurors must be reminded that the burden of proving beyond a reasonable doubt that the accusedcommitted the crime rests with the prosecution throughout the trial and never shifts to the accused. [127] And later at paragraph 39: Instructions pertaining to the requisite standard of proof in a criminal trial of proof beyond a reasonable doubt might be given along theselines: The accused enters these proceedings presumed to be innocent.

That presumption of innocence remains throughout the case until suchtime as the Crown has on the evidence put before you satisfied you beyond a reasonable doubt that the accused is guilty. What does the expression “beyond a reasonable doubt” mean?

The term “beyond a reasonable doubt” has been used for a very long time and is a part of our history and traditions of justice. It is soengrained in our criminal law that some think it needs no explanation, yet something must be said regarding its meaning. A reasonable doubt is not an imaginary or frivolous doubt. It must not be based upon sympathy or prejudice. Rather, it is based onreason and common sense. It is logically derived from the evidence or absence of evidence. Even if you believe the accused is probably guilty or likely guilty, that is not sufficient.

In those circumstances you must give the benefitof the doubt to the accused and acquit because the Crown has failed to satisfy you of the guilt of the accused beyond a reasonable doubt. On the other hand you must remember that it is virtually impossible to prove anything to an absolute certainty and the Crown is notrequired to do so. Such a standard of proof is impossibly high.

In short if, based upon the evidence before the court, you are sure that the accused committed the offence you should convict since thisdemonstrates that you are satisfied of his guilt beyond a reasonable doubt. [128] I also remind myself of the rule in Hodge’s case which was recently discussed by Mr. Justice Cromwell of the Supreme Court ofCanada in R. v.

Villaroman, 2016 SCC 33 , [2016] 1 SCR 1000 wherein he stated at paragraph 30 as follows: It follows that in a case in which proof of one or more elements of the offence depends exclusively or largely on circumstantial evidence,it will generally be helpful to the jury to be cautioned about too readily drawing inferences of guilt.

No particular language is required.Telling the jury that an inference of guilt drawn from circumstantial evidence should be the only reasonable inference that such evidencepermits will often be a succinct and accurate way of helping the jury to guard against the risk of “filling in the blanks” by too quicklyoverlooking reasonable alternative inferences. It may be helpful to illustrate the concern about jumping to conclusions with an example.If we look out the window and see that the road is wet, we may jump to the conclusion that it has been raining.

But we may then noticethat the sidewalks are dry or that there is a loud noise coming from the distance that could be street-cleaning equipment, and re-evaluateour premature conclusion. The observation that the road is wet, on its own, does not exclude other reasonable explanations than that ithas been raining.

The inferences that may be drawn from this observation must be considered in light of all of the evidence and theabsence of evidence, assessed logically, and in light of human experience and common sense. [129] He stated further at paragraph 37 as follows: When assessing circumstantial evidence, the trier of fact should consider “other plausible theor[ies]” and “other reasonable possibilities”which are inconsistent with guilt: R. v. Comba, (ON CA), [1938] O.R. 200 (C.A.), at pp. 205 and 211, per MiddletonJ.A., aff’d (SCC), [1938] S.C.R. 396; R. v.

Baigent, 2013 BCCA 28 , 335 B.C.A.C. 11, at para. 20; R. v.Mitchell, [2008] QCA 394 (AustLII), at para. 35. I agree with the appellant that the Crown thus may need to negative these reasonablepossibilities, but certainly does not need to “negative every possible conjecture, no matter how irrational or fanciful, which might beconsistent with the innocence of the accused”: R. v.

Bagshaw, (SCC), [1972] S.C.R. 2, at p. 8. “Other plausible theories”or “other reasonable possibilities” must be based on logic and experience applied to the evidence or the absence of evidence, not onspeculation. [130] And finally at paragraph 38 he indicated: Of course, the line between a “plausible theory” and “speculation” is not always easy to draw.

But the basic question is whether thecircumstantial evidence, viewed logically and in light of human experience, is reasonably capable of supporting an inference other thanthat the accused is guilty. [131] Based on the totality of the evidence before, as well as consideration of the case law, I am not convinced of the Accused’s guiltbeyond a reasonable doubt on any of the counts. I am not satisfied beyond a reasonable doubt that the Accused, counselled, incited orinduced C1 or C2 to engage in sexual activity with her.

If I am wrong about that, I am also not satisfied beyond a reasonable doubt thatany counselling, inciting or inducing to engage in sexual activity flowed from an abuse of her position of trust, power or authority. [132] I can see why the Accused’s employer terminated her employment at the Juniper Centre. I can see why they would have regardedher behavior as “abuse”, as that term is defined in their policy and other manuals.

I can see why the Accused’s behavior might beregarded as repugnant and morally questionable, and certainly unprofessional given the amount of time in which she had worked at theJuniper Centre and the rules that she was obligated to follow, whether on-duty or not, and her knowledge of C1 and C2 and theirdisabilities. The degree of her public intoxication showed a substantial departure in common sense and good judgment.

[133] However, these conclusions are different than the narrow legal question before me. The mere fact that she participated in kissingwhich may have been initiated by others is not proof beyond a reasonable doubt that she counselled, incited or induced C1 or C2 toengage in the kissing by abusing a position of trust, power or authority. That being the case, their consent to sexual activity is recognizedunder the law and was not vitiated by the Accused’s actions. [134] I recognize that the analysis is contextual, and that I am to consider the totality of the evidence when considering the legal issuebefore me.

I accept that there need not be specific words to conclude that the Accused has counselled, incited or induced the sexualactivity in question. I could infer it from the Accused’s actions. I also recognize that the behavior which results in counselling, incitingor inducing can be very subtle and not overt. Nonetheless, I do not find there to be compelling or persuasive evidence that the Accusedcounselled, incited or induced sexual activity with C1 or C2.

Further, I do not find that the Accused abused her position of power, trust orauthority in so doing. [135] I agree with the Defence argument that the case law provided would require the Crown in this case to have established a greaterlevel of involvement or activity, either in words or actions, to counsel, incite or induce the complainants to engage in sexual activity.

TheDefence correctly, I believe, contrasts this case with decisions in which the sexual activity took place in isolated places or where thevictims were isolated from others, or where there had been specific words, urging, encouragement or active steps taken by Accusedpersons to get them there or to become involved in sexual activity. [136] To conclude otherwise on these facts would require me to come dangerously close to, if not arrive at, a finding that the Accused ispresumed to have counselled, incited or induced, or to have abused her position of trust, power or authority de facto by virtue of being inthat position.

The law does not permit that finding, nor am I prepared to conclude such on the facts of this case. [137] Finally, in considering the charges under s. 153.1(1) of the Criminal Code, while not required to do so given my findings above, Iam also satisfied that the Accused on these counts lacked the specific intent to commit these offences due to her significant level ofintoxication. To that end, I have considered the comments of Mr. Justice Moldaver of the Supreme Court of Canada in R. v.

Tatton,2015 SCC 33 , [2015] 2 SCR 574, wherein there is a full discussion of specific vs. general intent offences and that intoxicationcan form a defence to a specific intent offence. The totality of the evidence before me, including that from cross-examination whereoriginal police statements/incident reports were put to the witnesses concerning the Accused’s level of intoxication, leads me to concludethat the Accused was severely intoxicated and to the point where her ability to form specific intent was non-existent.

I would haveacquitted on this basis alone on these particular charges, had I been required to go that far in light of my previous findings. [138] The Accused is therefore acquitted on all counts. Dated: this 11th day of August, A.D. 2017. _______________________________ Todd A. Rambow PJ