R. v. Guindon, 2022 ONCJ 641

WARNING The Court hearing this matter directs that the following should be attached to the file: An order restricting publication in this proceeding under ss. 486.4(1) , (2) , (2.1) , (2.2) , (3) or (4) or 486.6(1) or (2) of the Criminal Code shall continue. These sections of the Criminal Code provide: 486.4(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judge or justice may make an order directing that any information that could identify the victim or a witness shall not be published in any document or broadcast or transmitted in any way, in proceedings in respect of (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, 159, 160, 162, 163.1, 170, 171, 171.1, 172, 172.1, 172.2, 173, 210, 211, 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 at any time before the day on which this subparagraph comes into force, if the conduct alleged involves a violation of the complainant’s sexual integrity and that conduct would be an offence referred to in subparagraph (

i) if it occurred on or after that day; or (iii) REPEALED: S.C. 2014, c. 25, s. 22(2), effective December 6, 2014 (Act, s. 49). (

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) 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.

(2.1) Subject to subsection (2.2), in proceedings in respect of an offence other than an offence referred to in subsection (1), if the victim is under the age of 18 years, the presiding judge or justice may make an order directing that any information that could identify the victim shall not be published in any document or broadcast or transmitted in any way.

(2.2) In proceedings in respect of an offence other than an offence referred to in subsection (1), if the victim is under the age of 18 years, the presiding judge or justice shall (

a) as soon as feasible, inform the victim of their right to make an application for the order; and (

b) on application of the victim or the prosecutor, make the order.

(3) In proceedings in respect of an offence under

section 163.1, a judge or justice shall make an order directing that any information that could identify a witness who is under the age of eighteen years, or any person who is the subject of a representation, written material or a recording that constitutes child pornography within the meaning of that section, shall not be published in any document or broadcast or transmitted in any way.

(4) An order made under this

section does not apply in respect of the disclosure of information in the course of the administration of justice when it is not the purpose of the disclosure to make the information known in the community. 2005, c. 32, s. 15 ; 2005, c. 43, s. 8(3)(b); 2010, c. 3, s. 5 ; 2012, c. 1, s. 29 ; 2014, c. 25, ss. 22, 48; 2015, c. 13, s. 18 . 486.6(1) Every person who fails to comply with an order made under subsection 486.4(1) , (2) or (3) or 486.5(1) or (2) is guilty of an offence punishable on

summary conviction.

(2) For greater certainty, an order referred to in subsection (1) applies to prohibit, in relation to proceedings taken against any person who fails to comply with the order, the publication in any document or the broadcasting or transmission in any way of information that could identify a victim, witness or justice system participant whose identity is protected by the order. 2005, c. 32, s. 15 . ONTARIO COURT OF JUSTICE CITATION: R. v. Guindon , 2022 ONCJ 641 DATE: December 15, 2022 Information No.: 3912-998-20-A71 3911-998-20-C1139

BETWEEN: HIS MAJESTY THE KING — AND — AURÈLE GUINDON Before Justice Diane M. Lahaie Heard on March 1, 7, 8 and September 8, 9, 20 and October 4, 2022 Reasons released on December 15, 2022 Mr. Alex Simard.................................................................................. Counsel for the Crown Mr. Ryan Langevin.........................................................................

Counsel for the accused LAHAIE, J.: [ 1 ] Aurèle Guindon faces seven counts of sexual exploitation, two counts of sexual interference and two counts of sexual assault. [ 2 ] The Crown brought a similar fact application, which the Court allowed. The written ruling allowing the Crown’s Application is attached to the Information.

The charges stem from an investigation commenced by the OPP into allegations that the accused abused adolescent boys he employed to perform general maintenance work on his property. [ 3 ] Credibility is the central issue in this case. [ 4 ] The accused enjoys the presumption of innocence, which is only defeated where the Crown proves each of the elements of these offences beyond a reasonable doubt. [ 5 ] In arriving at my ultimate findings, I have directed my mind to the decision of the Supreme Court of Canada, in R. v.

W.(D.), [1991] 1 S.C.J. 742, which sets out the well-established standard to be applied by a trial Court when assessing credibility. Where the Court believes the evidence of the accused, obviously, the Court must acquit. If the Court does not believe the testimony of the accused but is left in reasonable doubt by it, the Court must acquit.

Finally, even if the Court is not left in doubt by the evidence of the accused, the Court must ask whether, on the basis of the evidence which the Court accepts, the Court is convinced beyond a reasonable doubt by that evidence of the guilt of the accused. [ 6 ] The Court may accept some, all or none of the evidence of any witness. In making findings of fact, I must apply the standard of proof beyond a reasonable doubt.

A fact will not be found against the accused unless I am satisfied beyond a reasonable doubt of its existence. [ 7 ] The Court heard the evidence of D.M., Z.M., B.M., K.T., C.D., T.M., C.M., Ca.M. and S.M. The accused also testified. [ 8 ] Following my review of the totality of the evidence, I find the facts to be as follows: The Facts [ 9 ] D.M. was born in October 2002. In April 2018, he was 15 years old. He lived in Williamstown with his parents, played competitive hockey and attended C[…] District High School.

D.M. learned the accused, an older gentleman who lived in South Glengarry, was looking for someone to do general maintenance work on his property. Mr. Guindon met with D.M. and D.M.’s mother, C.M. It was explained that D.M. was a student and that he also played competitive hockey. His work

schedule would have to be set around his other obligations. The accused hired D.M. to work part-time on his property in April 2018. D.M. would be paid $15 per hour, in cash at the end of the week. His duties included general yard maintenance, planting and watering flowers, washing windows, washing cars and piling wood for the winter. [ 10 ] In July 2018, D.M.’s parents bought a home near the accused’s residence. When D.M.’s parents’ home was being renovated, the accused offered to have D.M. move in with him during the renovation but this did not happen.

[ 11 ] D.M. was impressed by the accused’s wealth. Mr. Guindon owned a waterfront property, and he had several expensive cars, a bus and dozens of tractors. D.M. looked up to his employer, who had owned a business and had amassed significant wealth. [ 12 ] In 2018, the complainant enjoyed his job and thought Mr. Guindon was “a good guy to work for”. The complainant did not have a driver’s licence and sometimes Mr.

Guindon would pick him and his younger brother up from school at […] and drive them home so the boys would not have to take the bus. [ 13 ] The accused would bring D.M. along for coffee get-togethers with the accused’s friends at Tim Hortons and they would go for drives.

In the Fall of 2018, D.M. made a plaque for the accused in woodworking class which depicted two people with their arms around each other’s shoulders, which included the symbol for friendship and read “no. 1 Boss”. [ 14 ] When D.M. started working for the accused again in the Spring of 2019, the accused began asking D.M. for hugs before he left to go home. At first, the complainant brushed off the request as it made him feel uncomfortable. As the accused looked sad and appeared to pout, the complainant ultimately submitted to the hugging which became something of a ritual.

The accused would say “come here and give me a hug” with his arms open and the complainant would hug the accused. At times, the accused would say that D.M. was not squeezing him hard enough. He corrected the complainant’s hugging style so D.M. would hug him tighter. The situation made the complainant feel uncomfortable because it was not something he wanted to do with his boss.

D.M. was conflicted but rationalized that perhaps the accused was just a lonely old man who needed a friend and help with his property and the complainant filled this void. [ 15 ] The accused bought D.M. gifts, for example, he would buy breakfast, he bought him a knife he liked when they went to the flea market together, he gave him tools, a toolbox and he purchased a golf cart for D.M. to drive around the accused’s property and to travel to and from the complainant’s home. At one point, Mr.

Guindon asked if D.M. would go to Daytona with him to watch the car races but the complainant’s parents refused to let him go. [ 16 ] When D.M. was about to get his drivers’ licence, he started looking at potential cars to buy on Marketplace. Given Mr. Guindon’s experience with cars, the complainant thought Mr. Guindon could help him make a good selection. He asked the accused to go see a 2010 Mercedes S class he had seen on Marketplace. The accused went to see the car with D.M. and commented that the car had a lot of rust on it, adding “whatever makes you happy, we’ll get it” or words to that effect.

When he got back from school, D.M. saw the car in Mr. Guindon’s driveway. The complainant was excited and sat in the car. The accused then told D.M. that he could not just give him the car, that they would have to start being more or that they would have to be together, in order for that to happen, words which the complainant understood to mean that they would have to be romantically involved. The complainant told the accused that was weird and that he was not interested. [ 17 ] When they ran out of work to do around the property, the accused and D.M. would go for drives.

The accused continued to pay D.M. for the time they spent driving around. During these drives, the accused would sometimes place his hand on D.M.’s thigh and rub it. This made D.M. uncomfortable. He would bring his legs closer together and move them closer to the passenger side door. The complainant recalled this happening when they were on their way to the flea market in Lachute in the accused’s 1990 green Mercedes. They stopped at Herb’s for lunch on the way to the flea market and the accused grabbed D.M.’s thigh and rubbed it as he looked at the complainant in a way that made him feel uncomfortable.

The accused also did this to the complainant on two other occasions when they were driving in the accused’s green Volkswagen Jetta. The incidents disturbed D.M. who concluded that the situation was “weird”. He felt uncomfortable, particularly because of the accompanying look the accused would give him as he rubbed his thigh. The complainant would simply smile and look away. [ 18 ] D.M. asked Mr. Guindon what he knew about the Volkswagen Tourag. The complainant was aware of a Tourag for sale at a dealership in Cornwall and he was scheduled to go see it with his parents the next day.

The complainant also told the accused that his parents were interested in buying a Mercedes at the same dealership. When they went to the dealership the following day, D.M. and his parents learned the accused had purchased both vehicles. D.M. was about to get his full G2 licence and hoped to buy the vehicle with $3,000 he had saved. He was somewhat angry with the accused, as were the complainant’s parents. When Mr.

Guidon realized they were angry, he sold the Tourag to D.M. for the same price he had paid. [ 19 ] Still in 2019, during his second season of work for the accused, D.M. noticed the accused was displaying signs of jealousy. When D.M. took time off work to be with his girlfriend, the accused would text him to advise D.M. that he should not bother showing up for work the following week, given that the complainant was too busy for him. Mr. Guindon also sent text messages to D.M. which made the complainant feel uncomfortable.

He texted D.M. in the morning to tell him good morning and at night, he would text him to say good night and at times “I love you”. If D.M. did not acknowledge his messages, the accused would not respond to D.M.’s messages inquiring about whether there was work to be done. The complainant felt that it was “like a boyfriend thing” where he had to pay attention to the accused. [ 20 ] With time, the hugging also involved the accused resting his head in D.M.’s neck. As he did that, the accused also kissed the complainant’s neck a few times.

This made D.M. feel very uncomfortable. [ 21 ] At one point, the complainant thought he would like to start breeding bunnies. The accused took him to the store and got him everything he would need to start up that venture and told the complainant that bunnies were cute “but not as cute as you”.

The complainant testified that he felt confused at the time and thought perhaps the accused was manipulating him. [ 22 ] That summer, the accused told D.M. that since he did not have a wife or children, if D.M. kept doing what he was doing for him and they could be “more”, everything the accused had, could be left to the complainant in his will. The conversation about the accused’s will was a way for the accused to try to advance things between himself and D.M. romantically. [ 23 ] In July 2019, D.M. was packing up tools in the accused’s shop and the accused asked him for a hug.

Again, D.M. felt uncomfortable but he hugged the accused anyway. After the hug, the accused pulled on the complainant’s arm and asked for “another one”. This time though, the accused tried to pull D.M. in for a more intimate kiss. Unlike the previous times when the kisses were on the complainant’s neck, D.M. realized that the accused, whose lips were puckered, was trying to kiss him more intimately. D.M. forcefully

pushed Mr. Guindon away. D.M. quickly fled the shed, leaving the door open as he was shocked and frightened. [ 24 ] D.M. found employment at the marina in the summer of 2019. D.M. also continued to work for the accused but Mr. Guindon angrily told D.M. that he did not want him to work at the marina. D.M. felt as though the accused was jealous of the time he spent working elsewhere and he decided to end his working relationship with the accused. D.M. dropped off the keys he had been given and told Mr.

Guindon he would not be working for him anymore. [ 25 ] After he quit his job with the accused, D.M. told his girlfriend and her mother, C.D., about some of the accused’s actions. C.D. told D.M. that she did not think this was right and that he should tell his parents. D.M. did not mention anything to his parents that summer. [ 26 ] Z.M. was born in September 2003. He was 16 years old when he worked for the accused in the Spring of 2020. His grandfather, Ca.M., was a friend of the accused.

Z.M. would often go to the Cornwall Square, a shopping mall, to have lunch with his grandfather, who was there having coffee with the accused. The accused sometimes bought Z.M.’s lunch. [ 27 ] Ca.M. told Z.M. that the accused was looking for someone to work around his property, doing lawn maintenance and fixing his boat house. Other than delivering ad bags, this would be his first summer job. Ca.M. spoke with Z.M.’s mother and then to Z.M., who agreed to work for the accused. Z.M. worked 5 hours per day, 5 days per week for $14/hour. Z.M. was paid at the end of the week. [ 28 ] Z.M. worked for Mr.

Guindon for approximately 4 weeks, beginning in early May and ending on June 5, 2020. Z.M. lived over a half hour away from Mr. Guindon’s residence so the accused picked him up and dropped him off. Sometimes his parents and grandparents went to Mr. Guindon’s property to see what Z.M. was doing when he worked there and bring him lunch. [ 29 ] The complainant’s work went well at first but in approximately the third week, the accused started displaying anger and swore at Z.M. After being angry, the accused would then ask Z.M. for a hug. Z.M. thought these requests for hugs seem to come out of nowhere.

Sometimes, the accused would just suddenly stop working and ask for a hug. He also asked for a hug when they had lunch together. During some of the hugging, the accused told Z.M. that Z.M. wasn’t doing it right and he would pull him in tighter. On occasion, the accused asked Z.M. for a kiss which Z.M. ignored, walking away. [ 30 ] At first, Z.M. felt bad for the accused as he must have been a lonely man, so he hugged him when asked, but then the hugging became more frequent and Z.M. felt “it got weird”.

Z.M. did not want to hug the accused, but he did it anyway even if it made him feel uncomfortable. [ 31 ] In the last two weeks of Z.M.’s work, the accused started grabbing Z.M.’s leg, squeezing it and rubbing it up and down, as Mr. Guindon drove and while they were in the golf cart on the accused’s property. When the accused did this, Z.M. felt uncomfortable and moved his leg over to the opposite side. At times, the leg grabbing happened when the accused and Z.M. were joking around but sometimes the mood was not a joking one. [ 32 ] Z.M. quit working for the accused at the end of his shift on June 5, 2020.

Z.M. told his parents that he quit because the accused was giving him attitude, swearing at him and getting angry with him. He did not mention the hugs, requests for a kiss or the leg rubbing because he was uncomfortable and did not know how to tell his parents about that. [ 33 ] B.M. was born in December 2005. He was 14 years old when he worked for the accused doing property maintenance for one day on June 23, 2020. [ 34 ] When Ca.M. learned that his grandson was no longer working for Mr. Guindon, he suggested to the accused that perhaps B.M., his neighbour across the street, might be interested in working.

B.M. and his mother, K.T., met with Ca.M. and the accused at Lamoureux Park in order to discuss the type of work B.M. would be doing, the hours and the pay. He would be paid $12 per hour for a total of $60 per day. This was B.M.’s first job. [ 35 ] B M. worked for the accused for one day and then he quit. The accused asked Ca.M. to deliver $60 to B.M. When Ca.M. went to B.M.’s home, B.M.’s aunt made disparaging remarks to Ca.M. which led to further conversation about why B.M. did not want to work for the accused.

Ca.M. immediately called his daughter from B.M.’s home as he was concerned that something may have happened between the accused and his grandson, Z.M. He told his daughter to speak to Z.M. Z.M. spoke to his father about what transpired when he worked for the accused. Z.M.’s mother, S.M., telephoned police. Police also spoke to B.M. [ 36 ] During the police investigation, an

article appeared in a newspaper naming the accused and the charges being investigated. C.M., D.M.’s mother received the

article and she and her husband confronted D.M. and asked if anything had happened to him when he worked for Mr. Guindon. D.M. then also spoke to police revealing what had occurred. Analysis of the Evidence [ 37 ] D.M. testified in an honest and straightforward fashion. He was unshaken in cross-examination. I found him to be a credible witness and I found his evidence reliable. [ 38 ] There were minor inconsistencies in D.M.’s evidence which I find to be the result of the complainant’s discomfort with what happened to him.

For example, D.M. initially testified that during the incident in the garage, the accused moved in to try to kiss him on the cheek. Later, he testified that the accused tried to kiss him on the lips. This event was clearly the incident which made D.M. most uncomfortable as he described it. It was also a detail he did not disclose to his parents or to C.D. when he first expressed his feelings about the accused’s behaviour. D.M. first disclosed that event to police. I found the complainant very fair and more precise in his final description of what took place that particular day.

He described how the accused’s lips were puckered as he asked for “one more” and started moving in to kiss him “on the face”, either the cheek or the lips. I am convinced beyond a reasonable doubt based on my review of the totality of the evidence that this incident occurred, as the complainant described it when he went into further detail. I am convinced beyond a reasonable doubt, following my review of the totality of the evidence, that the accused was attempting to get the

complainant to engage in an intimate kiss when he pulled him in asking for “one more”. I was not troubled by the incremental disclosure and more detailed description of this event as the complainant became more comfortable testifying about what occurred during that final encounter. [ 39 ] As stated, I found D.M. to be a fair witness who did not exaggerate his evidence. He did not present as someone who bore the accused any ill will.

He readily admitted that he thought his boss was a great guy that first season and that he made the decorative plaque filed in evidence because that is how he felt about his boss and his friend. He acknowledged that he was a fit athlete who stood 5’9” tall then, that he was in better shape than the accused and could handle himself.

He conceded that when he texted “LOL” to the accused, it could have been interpreted as “laugh out loud” or “lots of love”. [ 40 ] In my assessment of the evidence, I also considered that none of the text messages referred to were produced as the complainant had upgraded his phone. [ 41 ] D.M. readily acknowledged that he learned that Mr. Guindon had been charged from an

article his parents sent him which he read once. He could not recall the specifics but communicated that he was shocked by the

article to learn that there had been others. [ 42 ] I find that the

article played no role in changing D.M.’s detailed account of the accused’s actions. D.M. repeatedly stated that he felt the accused’s actions were inappropriate given his employment relationship. I am convinced beyond a reasonable doubt that he feels that way today and that he felt that way when he was being hugged and kissed and when the accused grabbed and rubbed his leg, looking at him in an intimate way. [ 43 ] D.M. did not know the other two boys. I find that there was no intentional collusion or inadvertent tainting of this witness’s evidence by the newspaper

article he could barely recall or by anyone close to him or outside his family. D.M.’s evidence was clear, frank and reliable. [ 44 ] Z.M. testified is a clear and straightforward fashion. I will not review his evidence in detail as, like D.M., it is essentially set out in the court’s findings of fact set out above. I found Z.M. to be a credible witness and I found his evidence reliable. [ 45 ] Z.M. was initially mistaken about the year he worked for the accused, saying that he had worked for him in 2019.

Following my review of the totality of the evidence, I am convinced beyond a reasonable doubt that Z.M. worked for the accused in May and June 2020 as set out above. [ 46 ] I accept this complainant’s evidence that he was uncomfortable with the touching that took place and found it strange and awkward. Z.M. testified that this was “an old man asking me for a hug and a kiss, and I don’t really know him”. I find that he felt that way at the time and that he simply did not understand the accused’s purpose. [ 47 ] Z.M. was a very fair witness.

For example, Z.M. testified that he quit his job with the accused in large part because the accused would blow up at him. He also agreed with the suggestion made to him in cross-examination that the accused’s behaviour was not normal but that it was not necessarily sexual. What this witness has pieced together, even at this stage, is ultimately of limited value. It is the Court’s role to determine the purpose of the touching. What was clear from Z.M.’s testimony was that the accused’s contact with his leg, the hugging and the request for a kiss made Z.M. feel uncomfortable.

He described how the hugs were “random”, describing how he would be halfway through doing something and the accused would come up and hug him. He was also clearly uncomfortable when he was being corrected during the hugs. In cross-examination, Z.M. explained that the accused would say “you don’t hug right” as he would push the complainant’s head closer to his own. [ 48 ] The complainant was unshaken in cross-examination about the issue of the lever on the golf cart. He explained how there was a difference between “going for my leg and the lever”.

Z.M. did not believe the rubbing or grabbing of his leg was an accidental contact as the accused reached for the lever on the golf cart. [ 49 ] In cross-examination, counsel asked Z.M. about his statement, during which he denied that the accused put his hands anywhere. Z.M. was also asked during his statement whether the accused did something else that maybe other people may think is normal but made him feel uncomfortable. In his police statement, Z.M. replied “Well, not really, no”.

I accept Z.M.’s explanation that at that point in the statement, he was thinking about inappropriate touching of his more intimate body parts. [ 50 ] Z.M. did not know the other two boys.

I find that there was no intentional collusion or inadvertent tainting of this witness’s evidence either through conversations between Z.M. and his parents or between Z.M. and his grandfather, Ca.M. or anyone else. [ 51 ] B.M. worked for the accused for one day and was so uncomfortable with the way he was being touched by the accused that he quit, according to his evidence. [ 52 ] B.M. testified that the accused picked B.M. up at home and drove him to his property. B.M. spent his shift spraying for spiders and cleaning the pond.

The accused showed B.M. his tractor collection and his bus, according to his evidence. B.M. explained the tasks he would be performing over the course of the summer. [ 53 ] As they drove from one area to the other on the golf cart, the accused touched B.M.’s leg several times which made B.M. uncomfortable, according to his evidence. B.M. testified that he thought about how his grandfather would touch him like that, but he was uncomfortable with that type of touching by a man he had just met.

B.M. thought about the money he was making and decided to ignore the accused’s actions. [ 54 ] B.M. testified that, at one point when B.M. was walking towards a shed with his arms by his side, he felt the accused grab him by the wrist and pull him in for a hug. He thought at first that the accused wanted to shake his hand but then he felt the accused hugging him with the accused’s hands on B.M.’s lower back. B.M. thought the accused was “creepy”. He patted the accused once with one hand during the approximately 5 second hug and the accused released him.

[ 55 ] B.M. recounted how when the accused drove him home, Mr. Guindon reached towards B.M.’s lap where B.M.’s hands were resting. B.M. moved the accused’s hand upwards and shook it as he said goodbye. The gesture which took place near his lap made the complainant feel uncomfortable. [ 56 ] When his aunt asked how his day had gone, B.M. said it was good but that the accused was touchy. At dinnertime, he told his parents about how the accused touched him on the golf cart and how Mr. Guindon pulled him in for a hug.

He told his mother he wanted to quit and asked her to say that he was needed to babysit his brother even though his aunt babysat his younger brother. B.M. did not return to work for the accused. [ 57 ] There were some significant problems with B.M.’s evidence.

Upon reviewing the totality of the evidence, I conclude that there was inadvertent tainting of this witness’s testimony which impacted its reliability. [ 58 ] B.M. was recalled after his mother testified given an issue that arose during her testimony. [ 59 ] On its own as well, B.M.’s evidence was inconsistent on various issues, including when he learned that there were other complainants. He testified that he learned that “a neighbour boy”, who would be D.M., was a complainant a year before he testified.

He also stated that he only learned there was a 3 rd boy, who would have been D.M., the day he testified. [ 60 ] Similarly, he stated that he learned about Z.M. right away through an

article in the paper and also testified that he was not sure how he learned about Z.M. When I examine the evidence as a whole, I find that B.M. did not know any of the details surrounding the incidents involving the other two complainants before he spoke to police but that he was influenced by his mother who communicated various things to him prior to the date he provided his statement to police. [ 61 ] As a result of the foregoing difficulties, I placed no weight on his evidence. [ 62 ] K.T. is B.M.’s mother.

She testified that she met the accused once when Ca.M. came to her home to ask if her son was looking for work which led to her meeting the accused near the RCAF in Lamoureux Park. She testified that she spoke with the accused about the work to be done and that they negotiated $12 per hour. The plan involved the accused picking B.M. up at 10:30 on Tuesday morning. [ 63 ] K.T. testified that the woman referred to by B.M. as his aunt is actually a close friend of the family. She was babysitting B.M.’s younger brother that summer. [ 64 ] According to K.T., when she got home from work after B.M.’s day with Mr.

Guindon, they were all excited to hear about B.M.’s first day of work. K.T. testified that B.M. told her about being touched on the leg and that he appeared uncomfortable. He was conflicted about going back to work for the accused because he had not been paid but when K.T. offered to pay him, he said he would not return to work. K.T. testified that she sent the accused a text message saying B.M. would not be returning to work as he had to help babysit.

She also called to confirm he had received the text message. [ 65 ] K.T. testified that she was not involved in how this matter got to police, that this was between her babysitter and Ca.M. the following day. According to K.T., Ca.M. told her they were pressing charges and he apologized, asking if B.M. would speak to the OPP. K.T. explained that the OPP showed up at their home and asked if they would provide statements. She testified that they attended the OPP detachment and provided their statements. According to K.T., they never met Z.M. and only learned his name when it came on “the court paperwork”.

K.T. testified that she never shared any information with Z.M.’s parents and that she did not tell Ca.M. what happened to her son. [ 66 ] According to K.T., they only learned the week of the trial that there was a third boy. [ 67 ] K.T. testified that her brother-in-law, a police officer named Jason Mines, had warned her at a family birthday party, before her son started working for the accused, that there were rumours about Mr. Guindon and young boys working in the yard.

According to K.T., she spoke to Jason Mines about this before B.M. went to work for the accused, but she did not say anything specific to her son, merely that the accused was elderly, and that people of his generation are sometimes more touchy and to watch his personal space. [ 68 ] K.T. explained that she looked the accused up online and knew he had money. She learned about his business and that he had sold it.

K.T. acknowledged that she discussed what took place between the accused and B.M. at the dinner table and that they also discussed the situation on their way to the OPP station to provide their statements. K.T. also explained that there were a dozen or so such family birthdays per year and that these gatherings had continued after their statements were provided to police.

K.T. testified that they were “trying their best” not to discuss this matter at home. [ 69 ] K.T.’s evidence was problematic as she testified that she knew about various rumours but only warned her son in a general sense about older people being touchy. It is difficult to comprehend how she would have let her son work for the accused if she had such suspicions but ultimately, I was troubled by her evidence regarding her searches of the accused online and that she knew he had money. While I do not find that K.T. intentionally influenced her son, her involvement created a doubt regarding to B.M.’s evidence.

At the conclusion of her evidence, B.M. was recalled. His statement to police included a reference to his uncle having told him that the accused butters young boys up and touches them inappropriately and that this was learned at a Sunday family dinner. When he was recalled, B.M. explained that Cst. Mines told his mother about that rumour and that his mother told him, which explained that reference in his statement. [ 70 ] K.T.’s evidence gave the Court cause for concern regarding the reliability of her son’s evidence. I find that K.T. inadvertently tainted B.M.’s evidence.

I note as well that K.T. was not immediately forthcoming about what she had heard from Cst. Mines and the searches she had conducted pertaining to the accused. I accept K.T.’s evidence that she had no direct or indirect contact with the other complainants or their families. [ 71 ] C.D. testified that D.M. dated her daughter in 2019. C.D.’s husband is an OPP officer. She testified that D.M. was describing

what happened to him when he worked for the accused, when she was driving her daughter and D.M. one day. C.D. testified that she spoke up and told D.M. that she did not feel good about what he was saying and encouraged him to speak to his parents about it. According to C.D., she followed up with D.M. approximately two weeks later and learned that he had not spoken to his parents about the situation. C.D. testified that she did not advise D.M.’s parents as she knew at that point that D.M. was changing jobs. [ 72 ] C.D. was an honest witness who testified in a straightforward and unbiased manner.

I found her to be a credible witness and I found her evidence reliable. I instructed myself on the limited use that could be made of this evidence. It was considered only in the context of the failure by D.M. to make a timely complaint and not to increase the credibility of D.M.’s testimony, as this would offend the rule against prior consistent statements. [ 73 ] T.M. is D.M.’s brother. He testified that he worked for the accused for one day, cleaning one of Mr. Guindon’s cars.

T.M. described how the accused would pick him and his brother up from school in his green Volkswagen Passat or his Mercedes S Class in May or June of 2019. According to T.M., the accused would put his hand on his brother’s thigh when they were in the car. In cross- examination, T.M. agreed that what he observed was more of “a tap”, as he stated to police. I find that T.M. was undoubtedly influenced by these charges involving his brother and that he hoped to be of assistance. His testimony was likely the product of inadvertent tainting. I placed no weight on this witness’s testimony. [ 74 ] C.M. is D.M.’s mother.

She testified that she and her family lived in Williamstown in 2018 when D.M. started working for Mr. Guindon. She stated that moving close to Mr. Guindon’s property was just a coincidence. C.M. explained that she learned the accused was looking to hire someone, from her housekeeper. She testified that she met with the accused and her son before D.M. started working for Mr. Guindon to ask what type of work he would be doing for the accused. D.M. was 15 years old at the time.

According to C.M., the accused always sent her a text message before he picked D.M. and T.M. up from school. [ 75 ] C.M. testified that she thought there were “red flags” which she described as something not feeling right, such as how the accused often seemed to find himself in the area of D.M.’s school, how he often picked him up from school and how he bought him gifts. She acknowledged that she never confronted the accused about these feelings, explaining that she trusted her son. [ 76 ] C.M. testified that a neighbour sent C.M. a newspaper clipping of an

article setting out that Mr. Guindon had been charged with sexual interference and directing people to contact police if they had any information to share. C.M. explained that D.M. was at a camp with his girlfriend and her family and that she and her husband waited for him to return to sit down to discuss it. According to C.M., D.M. told her various things which led her to ask him if he wanted to tell his story to police. When D.M. said he did, she made an appointment with police and the two of them went to the police station to provide their statements. [ 77 ] I found C.M. to be a credible witness.

I accept her evidence that she met with the accused and D.M. before he started to work for the accused to find out what her 15-year- old son was going to be asked to do. I accept that she received text messages from the accused when he would be picking her sons up from school. I also found her evidence reliable on the issue of the newspaper clipping and the events that followed.

I found this evidence to be reliable and consistent in important respects with the unfolding of these events. [ 78 ] I find however that C.M.’s red flags as she described them were not present in her mind while her son was working for the accused. I am convinced that these are “flags” which arose in her mind when she read the newspaper article. I therefore accept some of the evidence of this witness as reliable. I conclude that C.M. initially did not just let her son work for a stranger without satisfying herself that the work and employer were appropriate. She met with Mr.

Guindon in advance to ensure that her son would be safe and that he was not being asked to perform any tasks of which she did not approve, or which might conflict with his other obligations. [ 79 ] Finally, I find that C.M. did not know the other boys or their families and that her testimony was not impacted by their accounts in any way. [ 80 ] Ca.M. is Z.M.’s grandfather. As stated above, he became friends with the accused approximately a year before Mr. Guindon was charged with these offences. They would have coffee together at the Cornwall Square shopping center almost daily. Mr.

M. testified that the accused told him that he had a boy working for him but that the boy quit and he needed to find someone to help with maintenance around his property. Mr. M. recommended the accused hire his grandson, whom he had met at the mall during these coffee gatherings. [ 81 ] Mr. M. believed that his grandson worked for the accused for a week or two and then quit. Mr. M. then spoke of a boy who lived across the street from him, B.M., and suggested that the accused hire him. Mr.

M. testified that he was present when the accused met with B.M.’s mother under the gazebo down by the river to review the conditions of employment. [ 82 ] Mr. M. testified that he learned from the accused that B.M. quit as well, and that he owed the boy a day’s pay. Mr. M. agreed to take B.M.’s pay to him as B.M. lived across the street from his home. When Mr. M. arrived to pay the boy, he met with B.M.’s aunt who told him that if he “ever touched my kid again, I’ll smack you”. Mr. M. explained that B.M. did not work for him and that he was only there to deliver B.M.’s pay on behalf of someone else. Mr.

M. called his daughter from B.M.’s house and told her something had happened to B.M. when he worked for the accused, asking his daughter to speak with Z.M. [ 83 ] In cross-examination, Mr. M. acknowledged that as far as he was aware, B.M. and his grandson did not know each other. He explained that he felt guilty about the situation and that he was angry. According to Mr. M., he did not speak to his daughter or his grandson again until after they had spoken to police. [ 84 ] Ca.M. testified in an honest, straightforward and clear fashion.

I found him to be a credible witness and I found his evidence reliable, with the exception of how long his grandson worked for the accused. I preferred the evidence of Z.M. on this issue as he was the one who worked for the accused, and he was in a better position to recall this detail. [ 85 ] S.M. is Z.M.’s mother and Ca.M.’s daughter. S.M. testified that she met the accused a few times when she went to his property to see her son while he was working there. She thought Z.M. worked for the accused for approximately 3 and a half weeks.

She stated that her father called her quite upset, to advise her that something had happened to B.M. while in Mr. Guindon’s employ, suggesting that

she speak with her son. S.M. testified that she did not know specifically what happened to B.M. but that she shared her father’s concerns with her husband. S.M.’s husband then went to the bike shop with Z.M. and when they returned, she learned a few things and decided to call police. [ 86 ] In cross-examination, S.M. stated that she did not tell her son that something happened to B.M.

She acknowledged that in the two years since the incident, they had discussed the case and that she was advised by her father, prior to testifying, that B.M. was also a complainant although she does not know this boy. [ 87 ] S.M. testified in a fair and candid manner. I found her to be a credible witness. I found her evidence reliable. I am convinced beyond a reasonable doubt that S.M.’s evidence was not impacted by collusion and that there was no inadvertent tainting of her evidence as a result of her discussions with family members. S.M. was a fair witness who testified in a forthright manner.

The accused’s evidence [ 88 ] The accused essentially denied the allegations made by the complainants. He denied that certain actions were posed while in certain instances, he maintained that his actions were misinterpreted as they were not advanced for a sexual purpose. [ 89 ] Mr. Guindon was born in December 1946; he was 75 years old when he testified. He owned a trucking company, which he sold in 2005. The accused described his residential property.

He did not dispute that he hired the three complainants to assist him with general maintenance of the grounds as it was quite demanding to keep up the manicured landscaping. He testified that when he ran his trucking business, he would use someone from his shop to do the maintenance at his home but that after he sold his business in 2005, he needed to find help. [ 90 ] The accused acknowledged that D.M. worked for him from May to October 2018 and for part of the season in 2019. He recalled meeting with C.M. to discuss the tasks her son would be performing.

According to the accused, he would communicate with D.M. by text message. Mr. Guindon explained that he would go for coffee in Monkland every afternoon, which meant he would drive by C[…] High School and could pick D.M. and his brother up from school. He was not asked why the coffee spot changed from Monkland to Cornwall after D.M. stopped working for him and I drew no adverse inference from this observation. [ 91 ] The accused testified that when D.M. was getting his driver’s licence, they went to look at cars together in St. Jerome, Dunvegan, Lachute and Oka.

The accused explained that without a dealer’s licence, a person can sell five or six cars per year, and he did this as a hobby. [ 92 ] On the issue of the Mercedes S Class, he went to see with D.M., the one that had rust on it, the accused testified that he did not think D.M. could afford that vehicle so he bought it, thinking that he would resell it, but that he ended up keeping it for himself. Mr. Guindon testified that D.M. would have liked to have that vehicle “but he couldn’t afford it”. The accused denied that he told D.M. “I can’t just give you this” or anything about the two of them having to be “more”.

He explained that he bought this vehicle for himself and not for D.M. [ 93 ] The accused recalled going to the flea market in Lachute but believed nothing was purchased there. [ 94 ] On the issue of placing his hand on D.M.’s thigh, the accused testified that he may have tapped D.M.’s leg, like “hey how are you?” He denied rubbing D.M.’s thigh. [ 95 ] The accused acknowledged that he bought the Volkswagen and Mercedes D.M. told him about. He agreed that he sold the Volkswagen to D.M. for what he had paid for it “given it was the kid who worked for me”. Mr.

Guindon testified that he still has the Mercedes. [ 96 ] The accused agreed that he bought the golf cart and told D.M. he could use it to travel back and forth to his home, but he denied this was a gift. Mr. Guindon acknowledged that he never got the golf cart back. [ 97 ] According to the accused, “things went south” over D.M.’s work hours once he got a job at the marina. The accused testified that D.M. was working for him 25 hours per week but he was “chasing more hours”.

He also testified that it was a problem that D.M. was “gonna pick his times to work” and that the marina was being given priority in his view. [ 98 ] Mr. Guindon testified that when D.M. sent him a text message writing “LOL”, he googled what that meant and discovered that it was a short form for “lots of love”. Consequently, he texted “LOL” because it seemed like the thing to do as they were friends. The accused added that D.M. was like the son or grandson he never had.

The accused testified there were possibly discussions with D.M. via text to arrange work “but a lot of it was a given because he worked 4 to 5 days per week. Not a lot of hours”. [ 99 ] On the issue of his comments about the will, Mr. Guindon testified that “they got that all twisted up or whatever” and that what he meant was D.M. would have to do more around the property because of his bad knee and hip, that because the snow was deep, he could not lift his knees. The Court noted that D.M. never worked for the accused in the winter.

According to the accused, he told D.M. that he would have to do the snow, cut the lawns and that he would probably mention him in his will. Mr. Guindon explained that he has “siblings and stuff but they are well enough”. The accused testified that this conversation took place in the Spring of 2019. He maintained that he told D.M., not that they would have to be more for D.M. to be a beneficiary in his will, but that D.M. would have to do more. [ 100 ] The accused testified that at the end of every shift, he would put his arm around D.M.’s neck or hug him but that this was a mutual thing.

He demonstrated the gesture in a manner that was inconsistent with a hug, showing outstretched arms around the back of the recipient’s neck or head, standing an arm’s length away. He denied saying that D.M. was not hugging him tight enough and he could not recall if they spoke during these hugs. [ 101 ] The accused stated that his relationship with D.M.’s parents was good, but he could not recall C.M.’s name.

[102] Mr. Guindon recalled going to Home Depot to buy what D.M. needed to start his bunny business but he denied saying thatbunnies were cute but not as cute as him. [103] The accused denied trying to kiss D.M. but he stated that he did, one time, say “kiss me” just to see D.M.’s reaction. He statedthat this occurred in 2019. Mr. Guindon could not recall the conversation but stated that he said, “would you kiss me?” or “kiss me” justto see his reaction.

According to the accused, D.M. looked “dumbfounded and that was the end of it”. [104] According to the accused there was no physical contact between him and D.M. other than the hugs and possible taps on the leg. [105] In cross-examination, the accused conceded that the golf cart was at D.M.’s house for three to four months before D.M. quit. [106] He was challenged on the request for D.M. to kiss him. He stated that when working side by side with someone, there is lots ofkidding around. He maintained that it was just to see D.M.’s reaction. He then stated that he was “likely just kidding around”.

Mr.Guindon acknowledged that he had 125 employees when he owned his trucking company and that he had never asked any of them for akiss. He ultimately conceded that perhaps this was not reasonable or appropriate. [107] His evidence regarding the contact with D.M.’s leg evolved in that he stated in cross-examination that he did this to get D.M.’sattention in the car and on the golf cart. He maintained that D.M. listened to music and that he wore earphones, so it was a means ofgetting his attention. [108] The accused recalled that Z.M. worked for him in mid-summer 2019.

He confirmed that Z.M. came to be in his employ throughCa.M. as described in this witness’ testimony. According to the accused, Z.M. would go to the Tim Hortons at the Square in Cornwallover his lunch break from high school. Mr. Guindon stated that he never met Z.M.’s parents before Z.M. started working for him andthat the contact was through Ca.M. [109] The accused did not recall having raised his voice or having sworn at Z.M. as described by Z.M. Mr. Guindon did not recall anyincidents as described on the golf cart with Z.M.

He said he hugged Z.M. the same way he hugged D.M. at the end of the day, “put myarm around him or give him a hug” but on the “days they screwed up, that didn’t happen”. [110] Mr. Guindon testified that he did not recall saying that Z.M. was not hugging him right and explained “I don’t know if I pulled hishead into my shoulder” but this was possible if you are hugging someone. The accused testified that “it was a mutual thing” becausewhen he hugged Z.M., Z.M. hugged him back. [111] The accused denied asking Z.M. for a kiss.

He did not recall if they were ever on the golf cart together but said that he may havetapped “their leg” to move the shifter between the seat. When he demonstrated the tapping motion that may have occurred, Mr. Guindonused the back of his hand which would be inconsistent with a move to shift gears. [112] The accused testified that he met B.M. through Ca.M. as described in this witness’s testimony. He recalled meeting “the kid andhis mother under the gazebo” at the park and “hashed it out for what he was going to get paid”. He testified that he likely tapped B.M.’sleg as he did Z.M.’s.

He did not recall a handshake in the car when he dropped B.M. off at home. [113] In cross-examination, the accused acknowledged that he employed these boys, directing them in their work, controlling theirbreaks, determining their rate of pay and paying them. He agreed that he was their boss. [114] I reject the evidence of the accused. Mr. Guindon’s evidence did not raise a reasonable doubt on the issues before me. He wasnot a credible witness. The Law and the Court’s Findings and Conclusions [115] A trial is not a credibility contest.

It would be an error, where there is conflicting evidence about whether the accused is guilty, todecide a criminal case simply by choosing which version of events is preferred. That being said “An outright rejection of an accused’sevidence based on a considered and reasoned acceptance beyond a reasonable doubt of the truth of conflicting credible evidence is asmuch an explanation for the rejection of an accused’s evidence as is a rejection based on a problem identified with the way the accusedtestified or the substance of the accused’s evidence” (R. v. J.J.R.D., [2006] O.J.

No. 4649 at para. 53). [116] In this case, however, there were also problems with the way the accused testified and the substance of his evidence. [117] As then Chief Justice McLachlin explained in R. v.

R.E.M., 2008 SCC 51 , [2008] 3 S.C.R. 3 at paragraphs 48-49: “Assessing credibility is not a science … [I]t may be difficult for a trial judge to articulate with precision the complex intermingling ofimpressions that emerge after watching and listening to witnesses and attempting to reconcile various versions of events … While it isuseful for a judge to attempt to articulate the reasons for believing a witness and disbelieving another, in general or on a particular point,the fact remains that the exercise may not be purely intellectual and may involve factors that are difficult to verbalize … In short,assessing credibility is a difficult and delicate matter that does not always lend itself to precise and complete verbalization (See also R. v.S.(R.D.), (SCC), [1997] 3 S.C.R. 484, at para. 128 and R. v.

Lifchus, (SCC), [1997] 3 S.C.R. 320 atparagraph 29). [118] It is however important for the Court to provide reasons or examples to explain why I did not believe the accused. [119] Mr. Guindon would speak at length in a manner which was unresponsive to the questions being asked of him as though trying toshift the attention away from this situation. For example, he spent an inordinate amount of time discussing his cars and his negotiations.

He talked about how many cars one could buy without a dealer’s licence and how he was not afraid for his investment when he boughtthe Volkswagen because he paid $3,000 but it was worth $4,500. I realize that Mr. Guindon was not an experienced witness and that hemay have been nervous, but he is facing eleven counts of sexual offences against young persons, and it was unusual to hear so much

about these issues. In any event, I gave little weight to this in the end. [120] Mr. Guindon’s evidence evolved as he testified. He would say something with certainty and then testify that he did not recall. For example, he testified that he did not correct the boys’ hugging style but in cross-examination, he stated that he did not know if he haddone that as he did not recall. [121] His evidence was also inconsistent and illogical.

For example, he was quite careful to demonstrate what he did when he huggedD.M., showing outstretched arms and how his hands would be on the back of the recipient’s head or neck, an arm’s length away. This isnot a hug. I find that he was attempting to distance himself from the notion that he would have been in close personal contact with thecomplainants. [122] His evidence on the issue of hugging was also inconsistent in the sense that he left open the possibility that he, that is Mr.Guindon, would have “pulled Z.M.’s head into my shoulder” which was possible, according to him, when you are hugging someone.

This was inconsistent with his earlier demonstration of a hug. [123] The accused’s evidence regarding his will was also illogical. According to his evidence, he said D.M. would have to “do” moreand if he did, he would essentially make him the beneficiary in his will. When he explained what that might entail, the only addition toD.M.’s regular tasks seemed to be snow removal. This evidence made no sense. [124] The accused’s evidence regarding his request for a kiss from D.M. was also illogical and inconsistent. He testified that he did thisto see D.M.’s reaction. He testified that he did this jokingly.

Then he stated that he was “likely just kidding around”. He then concededthat this was inappropriate. However, the explanation he provided for this request made no sense. [125] It was also illogical that the accused would have hit the boys’ legs accidently when he was reaching for the gear shift, but that hewould have come into contact with them, with the back of his hand, as he demonstrated. I find that this too, was an attempt to distancehimself from the possibility that he touched them with the inside portion of his hand.

His evidence regarding why he might have touchedD.M.’s leg also evolved to include his contention that it was to get D.M.’s attention as D.M. wore earphones. [126] The Court could provide a number of further inconsistencies in the evidence of the accused and portions of his evidence whichwere illogical, but the point has been made. [127] Section 153(1) of the Criminal Code sets out the offence of sexual exploitation which reads as follows: 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 exploitative of the youngperson, 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 part 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. [128] In the present case, to prove that the accused was guilty of sexual exploitation, the Crown must establish these four elementsbeyond a reasonable doubt: - The accused engaged in a form of sexual conduct prohibited by s. 153(1) - The complainant was at least 16 and under the age of 18 when the conduct occurred - The accused had the mens rea for each element of the offence - The accused stood in a position of trust or authority towards the complainant when the sexual acts took place (See R. v.

Audet, (SCC), [1996] 2 S.C.R. 171, at para. 16; R. v. Aird, 2013 ONCA 447 , [2013] O.J. No. 3027ONCA, at para. 25) [129] Defence counsel argues the accused was not in a position of trust or authority towards the complainants, that there was norelationship of dependency and that the relationship with the young persons was not exploitative in nature. Should the Court find that theaccused was in a position of trust or authority, defence counsel argues that the Court should be left in doubt on the totality of theevidence that the touching was for a sexual purpose. [130] In R. v.

Aird, supra, the Ontario Court of Appeal reviewed factors to be considered in assessing whether a relationship falls withins. 153 of the Code, writing, at paragraph 28: The considerations that bear on whether a relationship comes within s. 153 flow from the obvious purpose of this section: to protect ayoung person who is vulnerable to an adult because of the imbalance in their relationship. With this purpose in mind, the courts haveidentified several considerations relevant to an assessment of whether a relationship of trust exists. They include:

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 expectation of the parties affected, including the accused, the young person and the young person’s parents. See R. v. Audet ; R. v. C.D. , [2000] O.J. No. 1667 (C.A.) . See also R. v. D.E. , [2009] O.J. No. 1909 (S.C.) . [ 131 ] When I consider each of the above-noted factors, I find that there was both a position of trust and authority in this case.

Mr. Guindon was over 70 years of age, while the boys were adolescents. With D.M., the relationship evolved from one summer to the next. D.M. made a plaque which depicted two people with their arms around each other’s shoulders and the words “no. 1 boss” and the symbol for friendship. Z.M.’s working relationship with the accused was more limited as it only lasted a few weeks. [ 132 ] Regarding the status of the accused in relation to the young persons, as stated, he was their boss. D.M. also looked up to the accused.

Regarding the degree of control, influence or persuasiveness exercised by the accused over the young persons, Mr. Guindon controlled their work and their pay. He was also a significant person in D.M.’s life, someone whose opinion he sought out as he respected him. I find that the accused would intentionally get angry with Z.M. and then hug him to control him. [ 133 ] Mr. Guindon was also in a position of trust when I consider the expectation of D.M. and Z.M.’s parents and Z.M.’s grandfather.

C.M. met with the accused in advance to determine what the accused would be asking her son to do, and the accused would text D.M.’s mother to advise her that he would be picking D.M. and his brother up from school. I find that Z.M.’s parents and grandfather also went to check on Z.M. at work on more than one occasion to ensure that all was well. [ 134 ] I am not left in doubt that the relationship between the accused and D.M. and the accused and Z.M. fell within the meaning of

section 153 of the Code. Both D.M. and Z.M. were vulnerable to the accused because of the imbalance in their relationship as the accused stood in a position of trust and authority. [ 135 ] Defence counsel argues that the Court should be left with a reasonable doubt that the contact between the accused and the complainants was for a sexual purpose. [ 136 ] Upon reviewing the totality of the evidence, I am convinced beyond a reasonable doubt that Mr. Guindon engaged in the offending conduct with both D.M. and Z.M. for a sexual purpose. [ 137 ] As stated, D.M. and Z.M. did not know each other.

They provided a similar description of Mr. Guindon’s behaviour. I find that the accused corrected their hugging style because he wanted to be in closer physical contact with them as he was attracted to them. Further, I find that these hugs were intended to lower the complainants’ inhibitions about being that close to him, in the hopes that the physical contact would progress. I am not left in any doubt that Mr.

Guindon engaged in this behaviour for a sexual purpose. [ 138 ] The accused’s behaviour, including the contact with their legs, the hugs, the requests for a kiss, and in the case of D.M., the kissing of his neck, made the complainants uncomfortable. [ 139 ] I accept D.M.’s evidence regarding the conversations which led him to believe that he would materially benefit if he and the accused could be “more”. I find that Mr.

Guindon bought the Mercedes, the golf cart and the other gifts for D.M. as he hoped to encourage D.M. to become intimately involved with him. [ 140 ] I find that D.M. and Z.M. both felt uncomfortable when the accused asked for a kiss and that these requests were made by Mr. Guindon for a sexual purpose. I find that D.M. felt uncomfortable with the way the accused looked at him when he touched him on the leg because the look was one of sexual interest.

I find the accused would rest his head on D.M. and occasionally kiss him on the neck during these hugs because he was attracted to him and wanted to encourage progressive physical intimacy. [ 141 ] Following my review of the totality of the evidence as it relates to Z.M., independent of “similar fact” considerations, I am convinced beyond a reasonable doubt that the accused’s actions towards this complainant in hugging him tightly, asking for a kiss, rubbing his leg in the car and in the golf cart, were for a sexual purpose. [ 142 ] I have no doubt that Mr.

Guindon intended to have these complainants engage in progressively more touching, normalizing contact between them through frequency and increasing closeness. Mr. Guindon’s purpose was sexual. [ 143 ] I have reviewed the cases filed and I have considered each of the arguments raised by defence counsel. With respect, they are rejected in relation to the accusations involving D.M. and Z.M. [ 144 ] I accept the arguments of defence counsel in relation to B.M.

More specifically, I was not convinced beyond a reasonable doubt of the guilt of the accused in relation to B.M. based on my review of the totality of the evidence. While there may have been an attempt to engage in the same pattern of behaviour with B.M., this is not the criminal standard of proof. I was significantly troubled by the tainting of B.M.’s evidence. The evidence of the witnesses who testified as to the allegations involving this complainant did not rise to the standard of proof beyond a reasonable doubt.

An acquittal is entered on counts 4 through 7 on Information 20-A71. [ 145 ] Upon reviewing the totality of the evidence, I conclude that the Crown has met its heavy burden on each of the charges of sexual exploitation involving D.M. and Z.M. The accused’s evidence is rejected. Mr. Guindon’s evidence has not raised a reasonable doubt. I am convinced of the guilt of the accused on the seven counts of sexual exploitation involving D.M. and Z.M. based on the evidence that I accept.

[ 146 ] There is a finding of guilt on the remaining seven counts. The Honourable Madam Justice Diane M. Lahaie Released: December 15, 2022