R. v. Olson Date:, 2016 BCPC 150

Citation: R. v. Olson Date: 20160525 2016 BCPC 0150 File No: 37773 Registry: Duncan IN THE PROVINCIAL COURT OF BRITISH COLUMBIA REGINA v. ANDREW MICHAEL OLSON REASONS FOR JUDGMENT OF THE HONOURABLE JUDGE C.J. ROGERS Counsel for the Crown: L. Fontaine Counsel for the Defendant: G. Simair Place of Hearing: Duncan , B.C. Date of Hearing: April 7, 8, 11, May 9, 2016 Date of Judgment: May 25, 2016

[ 1 ] Mr. Olson is charged, on a six count Information, with offences relating to a sexual relationship he had with a young woman who I will refer to, in order to protect her privacy, only as the complainant. At the time of their relationship the complainant was 17 years of age and Mr. Olson was a teacher at a residential high school that she attended. It is acknowledged that, on December 28, 2014 and March 6, 2015, Mr. Olson and the complainant engaged in sexual intercourse, as well as other sexual acts.

Although different issues arise in relation to the various counts, the primary and most significant issue I must resolve is whether Mr. Olson was in a position of trust or authority, a relationship of dependency, or an exploitative relationship with respect to the complainant. THE FACTS The Foundation of the Relationship between the Complainant and Mr. Olson [ 2 ] At the time of all of these alleged offences, the complainant was a grade 12 student at a private residential school. She boarded at the school. Mr. Olson was a teacher at the school, although he did not teach any classes to the complainant. Mr.

Olson was also a house leader at the school. This meant that he resided on the campus and was directly responsible for the care of approximately 55 male students who lived in a residence attached to his home. At the time of all of these events, the complainant was 17; Mr. Olson was 34. [ 3 ] The complainant and Mr. Olson first met approximately eight years prior to the events that give rise to these allegations, when the complainant was approximately nine years of age. They met when the complainant attended the school with her mother to visit her brother who was, at that time, a boarding student there. Mr.

Olson was, at that time, in a position of responsibility in relation to the residence where the complainant’s brother lived, although a lower position than that of house leader. [ 4 ] The complainant and Mr. Olson also had an indirect relationship for many years prior to these incidents as a result of the relationship between the complainant and Mr. Olson’s wife, Leah Olson. Ms. Olson was a teacher, academic coordinator and vice principal at a school that the complainant attended in grade 8. At that time, the complainant’s mother, who was a single mother, was suffering from cancer and was very ill. Ms.

Olson, who lived near the complainant and her family, provided support to the family by preparing some meals for them and by, on occasion, driving the complainant and her brother to school. Through this interaction Ms. Olson developed a friendship with the complainant’s mother. When Ms. Olson became involved with the complainant’s family, Mr. Olson was already aware of them because of his prior relationship with the complainant’s brother. Mr.

Olson was not directly involved in providing support but was aware of the family’s basic circumstances and of his wife’s involvement with them. [ 5 ] In September 2013, the complainant became a student at the school where Mr. Olson taught. She was, at that time, in Grade 11. This school is a large private school with approximately 485 students in grades 9 through 12, most of them boarding students. The students come from across Canada and around the world.

The students live on campus in five different “houses”, each with a house leader, an assistant house leader, and a number three who are directly responsible for the care of the students in their house. The house leader, assistant house leader and number three live on campus, in accommodation either in or adjacent to the houses they are responsible for. The headmaster, the deputy headmaster and approximately four other staff members also live on site.

Each student at the school has an assigned advisor and, depending on their needs, may also work with a nurse, a psychological counsellor and a guidance counsellor, as well as other individualized staff. The deputy headmaster testified that, after the senior management team, the house directors are the most important members of staff. [ 6 ] The deputy headmaster testified that, because the students at the school live on campus, the staff members take on the role of guardian to them, standing in the role of their parents.

He testified that all staff have responsibility in this regard and play a role in student safety. [ 7 ] The deputy headmaster takes the lead role in discipline, although all the staff (as well as some of the older students) are engaged to some degree in dealing with minor disciplinary matters. As disciplinary offences get more serious, they are referred to either the house leader or, for the most serious offences, to the deputy headmaster, to determine appropriate punishment.

If any student is given a punishment by the deputy headmaster, all of the house directors as well as all of the academic staff are advised. [ 8 ] By the time the complainant started at the school, Ms. Olson had changed jobs and was also employed at this school as a guidance counsellor. She continued to be actively involved with the complainant and her academic needs in her employment role, as well as remaining supportive towards the complainant in a more personal manner. [ 9 ] Mr.

Olson did not teach the complainant any classes, coach her in any sports, or have any direct involvement in her academic needs or progress. He was privy to information about her academic progress, but not to specific details of her needs. Mr. Olson had a potential role in her discipline, just as any other teacher at the school, but there was no evidence he ever actually dealt with the complainant in this way.

They did encounter each other on campus and there was evidence of interactions in the nature of her seeking his approval for some of the boys in his house to attend a party she held at her mother’s home; him encouraging her, without success, to take a class that he was teaching; him seeing her when she attended his home to meet with his wife; and him being aware that she had been disciplined for a major disciplinary offence. The Development of the Sexual Relationship

[ 10 ] In December 2014, Mr. Olson and the complainant began to interact on Facebook. In analysing the relationship between the complainant and Mr. Olson, I have the benefit of the entirety of their Facebook communications, which were kept by the complainant, and later seized from Facebook by the investigating officers. These communications make up Exhibit 4. [ 11 ] The Facebook interaction commenced with Mr.

Olson contacting the complainant in the early morning hours of November 30, 2014 to inquire about a party that the complainant was having, which he knew about because some of the boys in his house had attended (and had required his permission to do so). During this conversation he asked about whether everyone behaved at the party and, in particular, whether the boys from his house were being inappropriate, said it was unacceptable if they were not and that he would assist if that was the case. He stated: “you and your mom are my girls so I won’t accept them treating you guys badly”.

He went on to tell the complainant that he cared about her and her mother and asked how her mother was. [ 12 ] Mr. Olson then turned the conversation to the topic of boys and asked the complainant, “any nice boys for you”. When she responded that they were all too young or immature, he replied by telling her that he wasn’t surprised by that as “you seem more mature than your age”. [ 13 ] Mr. Olson then commented on the relationship that he and his wife had with the complainant, her brother and her mother and reiterated that he cared for her.

He told her that he worried about her. [ 14 ] Shortly after these communications, Mr. Olson made the following comment: “has an older guy showed up that you can hook up with?:)”. The complainant responded with concern about whether the person she was communicating with was actually Mr. Olson. [ 15 ] There was then further conversation in which Mr. Olson expressed worry about the complainant and again said that he cared about her. The conversation ended with the complainant falling asleep and Mr. Olson expressing the hope that they would talk again.

He signed off with “xo”. [ 16 ] There was a brief conversation later in the day on November 30 th in which the complainant contacted Mr. Olson to ask about a resident of his house and requested that Mr. Olson have that resident call her. [ 17 ] The next communication of substance occurred on December 13, commencing with Mr. Olson contacting the complainant in the early morning hours to ask about some discipline that she had been subject to at the school. The complainant told Mr. Olson that she and another student had been caught drinking by one of the house directors.

In this conversation the complainant expressed her concern about loss of respect by teachers and faculty members. Mr. Olson told her that she had not lost his respect. [ 18 ] Later in this conversation, the issue of whether their Facebook communications were inappropriate came up, raised first by Mr. Olson. The complainant replied that they were not inappropriate but said she wouldn’t tell anyone so as not to get him into trouble.

He responded: I don’t worry at all with you…but the fact that you think you shouldn’t repeat it makes me think you think that we shouldn’t be chatting in this way...I personally don’t have a problem telling Leah or others that we chat…but some might wonder if we disclosed everything… [ 19 ] After some further back and forth, the complainant said, in relation to whether Mr. Olson should share the nature of their conversations with his wife: “Well its your call entirely”. He replied: I mean I don’t tell her the extent of our conversations….she definitely doesn’t know that. I think it has gone beyond that.

The complainant responded by saying: “If it will make you feel better than please tell her!”. Later in that same conversation the following exchange took place: Olson Keep that between you and me The complainant Our little secret Olson that makes it sound all sinister :P The complainant I’m sorry mr. Olson Olson not at all….i don’t feel that way….its just “it’s our little secret” sounds like we shagged our something! The complainant That is true, I’ll refrain from using anymore comments that refer to sexual content Olson hehe….i’m not offended…. The complainant Good! Olson sexual innuendo on!

The complainant Because that wasn’t my intention

Olson I know it… The complainant Lol Olson you are a sexual beast like me…it’s ok [ 20 ] It is shortly after this, in this same conversation, that the complainant writes with explicit sexual content about her and Mr. Olson and what would happen sexually between them if they were together. [ 21 ] Shortly after this explicit communication, Mr.

Olson moved the conversation from the fantasy scenario created by the complainant to discussion of a realistic possibility of sexual interaction between them by saying: I’m married…with someone you have a lot of feelings for….do you mean you would be ok with doing something and not having her know? The complainant responded that she would and they began planning how and when a sexual interaction between them might take place. It is clear that Mr.

Olson was aware of the implications of such a relationship as he mentioned being fired if they didn’t wait until the complainant graduated. [ 22 ] On December 18, there was further discussion about sexual contact between them and Mr. Olson stated “you have to graduate so its legal” and referred to being fired and put in prison for such activity. He then proposed a plan whereby sexual contact between them could occur and provided her with dates (from Boxing Day to January 3) when Ms.

Olson would be away and the complainant could come to his home. [ 23 ] Pursuant to this plan, on December 28, in the early morning hours, the complainant attended to Mr. Olson’s home and there was sexual contact between them. [ 24 ] The next communication between them, later that same morning, commenced with Mr. Olson reminding the complainant to delete her outgoing calls and to never trust anyone with this secret. [ 25 ] Throughout January and February Mr.

Olson and the complainant continued their Facebook communications, often, although not always, engaging in discussion of sexual topics. [ 26 ] The complainant testified that, during this time, she was feeling very vulnerable. She felt neglected at home because her mother was occupied with her brother. She expressed this to Mr. Olson on January 11 by saying that things were not okay for her and “my moms so weak and fragile right now, I’m worried about her health and my brother is stressing her out. Between him and my dad, they are both useless and cruel towards me as well”. Mr.

Olson asked if there was anything he can do to help. The complainant’s response was: “No, you and mrs. Olson do enough for me as it is”. [ 27 ] On February 2, the complainant said the following, in the context of explaining to Mr. Olson why she wanted to have a sexual relationship with him, rather than someone else: “you’re a secret, your older..IDK And your my exes house director.. or assistant HD at least”. [ 28 ] The complainant testified that she eventually fell in love with Mr. Olson.

She said she expressed her feelings in the form of a sexual relationship because she thought that was what he wanted and she wanted to make him happy and wanted him to like her back. She testified that, despite Mr.

Olson’s comments to the contrary in their Facebook communications, she felt there was hope that he might leave his wife and the two of them could be together. [ 29 ] At the beginning of March, the two again started making plans to meet for purposes of a sexual encounter and, on March 6, they met at a hotel near to the school and engaged in sexual acts. [ 30 ] After this meeting there was further Facebook interaction, which ended March 24 th . Sometime shortly after the last communication, the relationship came to light and Mr. Olson was arrested.

There has been no communication between them since that time. [ 31 ] The complainant testified that she did not originally want Mr. Olson to be charged as she was still in love with him when this matter came to light. She testified that, at the time of her testimony in court, she was no longer in love with Mr. Olson. She stated that she had done a lot of growing since that time and now feels used, lied to and manipulated. The Sexual Interactions [ 32 ] It is acknowledged that the complainant and Mr. Olson engaged in sexual interactions on two occasions. The first took place at Mr.

Olson’s home, while his wife was out of town, in the early morning hours of December 28, 2014. They had both been drinking. They had mutual oral sex and vaginal intercourse in the early morning hours. [ 33 ] The second sexual interaction took place at a hotel in a town near to the school. The complainant made the arrangements. They drank wine together in the living room area of the hotel room. According to the complainant, they began to kiss and Mr. Olson pulled her off the couch and pushed or threw her onto a nearby chair. She landed on the arm rest of the chair and told him it hurt. He ignored

that and pushed her against the other side of the chair, which also hurt. After that they went into the bedroom and had vaginal intercourse and mutual oral sex. [ 34 ] The complainant testified that, during the oral sex, she was in a lot of pain and told Mr. Olson but he didn’t listen. She testified she tried to push him off of her by grabbing his head but he didn’t stop. She said she told him to give her a minute and he stopped. She went to the washroom and was in a lot of pain. She returned and told him and he said he would be more gentle. They started to have sex again and it was painful for her.

She said it hurt but they continued anyway. During the sex she felt he wasn’t listening to her but she didn’t want to make him unhappy so she continued. The next day she was in a lot of pain in her vaginal area. This pain continued for at least five days. Her buttocks was also sore, but not as sore as her vagina. She later noticed bruising on her buttocks. [ 35 ] On March 26, 2015, the complainant went to the doctor who noted bruising on her right buttock and took a photograph that was made Exhibit 1 in these proceedings.

THE LAW Sexual Exploitation [ 36 ] The elements of the offence of sexual exploitation are: 1. The complainant is a young person within the meaning of s. 153(2); 2. The accused engaged in one of the activities referred to in s. 153(1); 3. The accused was in a position of trust or authority towards the young person, or the young person was in a relationship of dependency or the relationship was exploitive of the young person; 4.

The mens rea for each of these elements. [ 37 ] In this case, there is no issue with respect to the fact that the complainant was a young person of age 17 at the time of these incidents and that Mr. Olson was aware of her age. [ 38 ] There is no issue that, on December 28, 2014 and March 6, 2015, Mr. Olson knowingly engaged in a number of the activities referred to in s. 153(1)(a). Defense counsel does raise an issue as to whether the activities prohibited by s. 153(1)(

b) took place. To prove an offence under section 153(1)(b), the Crown must prove that Mr. Olson, for a sexual purpose, invited, counselled or incited the complainant to touch him. It is clear on the facts that he invited her to do so both by words in their Facebook communications and by his actions on and before December 28 in inviting her to his home for the purpose of sexual interaction and where they engaged in intercourse and mutual oral sex. Similarly, it is clear that such an invitation was made with respect to the activities of March 6. I find the accused engaged in the activities prohibited by both s. 153(1)(

a) and (b). [ 39 ] There is no issue on the facts of this case with respect to mens rea. It is clear from all of the evidence that Mr. Olson intended to engage in the prohibited activities and did so for a sexual purpose. [ 40 ] The remaining element is the one most seriously in issue in this case. Relationship of Authority or Trust [ 41 ] The leading case on the meaning of the terms “position of authority” and “position of trust” is the decision of the Supreme Court of Canada in R. v. Audet , [1996] SCR 171.

Since neither “authority” or “trust” is defined in the Criminal Code , the Court looked to the ordinary meaning of the words and defined “authority” as “right to command”, “power to enforce obedience”, and “power to influence the conduct and actions of others”. “Trust” was defined as “confidence in or reliance on some quality or attribute of a person or thing”. Confidence was defined as “the attitude of trusting in or relying on a person or thing: firm trust, reliance, faith”.

The Court noted that it is difficult to define these words in the absence of a factual context and stated that “it will be up to the trial judge to determine, on the basis of all the factual circumstances relevant to the characterization of the relationship between a young person and an accused” to determine whether the relationship existed at the time of the alleged offence. See Audet , paras. 34-38 [ 42 ] In attempting to define trust and authority, the Court in Audet stated that the status of a person, such as their role as a teacher, does not create, in itself, a position of trust or authority.

But it went on to note that, in the vast majority of cases, teachers, by virtue of their relationship with their students, will be in such a position. The Court stated: In my view, no evidence is required to prove that teachers play a key role in our society that places them in a direct position of trust and authority towards their students. Parents delegate their parental authority to teachers and entrust them with the responsibility of instilling in their children a large part of the store of learning they will acquire during their development.

The Court concluded that “teachers will, apart from exceptional circumstances, be in a position of trust and authority towards their students”: Audet, para. 41 . [ 43 ] In its discussion of the role of teachers in society, the Court noted the importance of the integrity of teachers, even outside of the

school, in the integrity of the education system as a whole, and that teachers stand in the place of parents when the parents are not present. The Court concluded that, “in the absence of evidence raising a reasonable doubt on this point, teachers are necessarily in a position of trust and authority towards their students”: Audet , para. 44. [ 44 ] It is, however, important to note that there will be situations where teachers are not in a position of trust or authority and that each relationship must be considered on an individual basis.

The Supreme Court of Canada stated that these situations would be the result of “exceptional factual circumstances” where “the element of trust or authority is totally absent”: Audet , para. 32. [ 45 ] The Supreme Court of Canada held that there was no requirement that an accused who is in a position of trust or authority towards a young person actually exploit that position. In coming to this conclusion, the court found that an

interpretation that required a finding of actual abuse of a position of trust or authority could not be reconciled with s. 150.1(1), which provides that consent is not a defense to a charge of sexual exploitation. The Court noted that s. 150.1(1) uses different language from other Criminal Code consent provisions, which do require abuse of trust, power or authority to vitiate consent. In order for s. 153(1) to have meaning, the abuse of the position cannot be and is not required.

An accused who engages in sexual acts with a young person to whom he is in a position of trust or authority is guilty of an offence, regardless of the consent or desire of the young person. “It is the adult in the position of trust who has the responsibility to decline having any sexual contact whatsoever with that young person”: Audet, para. 23. [ 46 ] After coming to the conclusion that abuse of the position is not an element of this offence, the Supreme Court of Canada went on to note that, because of his belief that it was, the trial judge in Audet had erred in considering that the accused had not provided the alcohol that the complainant drank the evening of the offence, and that the complainant had voluntarily chosen to enter the room in which the accused was sleeping and to lie down in his bed with him, in his consideration of whether there was a position of trust or authority.

The relevant factors in the Audet case, according to the Supreme Court of Canada, were the age difference between the two (he was 22, she was 14) and the fact that he had been her teacher until a few days prior to the offence and would teach her again in the fall. The fact that the sexual activity took place during the summer break did not raise a reasonable doubt in the mind of the Court that there was a relationship of trust and authority. [ 47 ] I have been provided with a number of cases where courts have made determinations whether certain relationships were relationships of trust or authority.

I have considered them all but, of course, each case must be assessed on its own facts, and no two relationships are the same. [ 48 ] In R. v. Aird , 2013 ONCA 447 , the accused was a 28 year old student in his second year of teacher’s college. The complainant was a 17 year old grade 12 student. The mother and the accused met when he was a student teacher in her younger daughter’s grade 8 class. The complainant’s mother hired the accused as a tutor for her older daughter, the complainant. The accused and the complainant engaged in a sexual relationship.

The relationship continued, off and on, for about a year and a half. She was 18 when it ended. In finding that the accused was in a position of trust, the trial court relied on the fact that he was a student teacher (even though he was not the teacher of the complainant), that he was paid to tutor the complainant, that he was considerably older than she was, and that the nature of the tutor/student relationship “created an opportunity for him to use his status and the persuasive and influencing factors he held in their relationship to effectively groom her into a sexual relationship”: para. 30.

The Court of Appeal upheld the conviction on the basis that the accused was in a position of trust towards the victim, despite the fact that he had no ability to discipline her, had no authority over her grades, and was not teaching her as part of a school or formal academic program. In doing so, it noted the difference between trust and authority and held that the control over grades and discipline went only to the issue of authority and did not undermine the position of trust. The court also noted the significance of the mother’s expectations about the relationship.

At paras. 28 – 29, the Court had this to say about assessing whether a relationship is one of trust: The considerations that bear on whether a relationship comes within s. 153 flow from the obvious purpose of this section: to protect a young person who is vulnerable to an adult because of the imbalance in their relationship. With this purpose in mind, the courts have identified 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 expectations of the parties affected including the accused, the young person and the young person’s parents. . . . No one consideration is determinative. But each one may play a role. [ 49 ] In R. v. Poncelet , 2008 BCSC 202 , the accused was a 41 year old who trained the 15 year old complainant to rope and ride horses.

He did not have other students and the teaching was not structured in any way. Shortly after the lessons began they commenced a sexual relationship that continued for about one year. After the sexual relationship ended they remained friends. In determining whether there was a trust relationship between them, the Court looked at whether there was a power imbalance between the young person and the accused and concluded that there was not. The Court further held that the relationship evolved mutually. [ 50 ] In R. v. J.S.S. , 2010 NBCA 51 , the accused was a 33 year old teacher’s assistant at a high school.

The complainant was a 17 year old student at the school, but was enrolled as a distance student and so was rarely present on the school premises. The accused had no or little contact with the complainant at the school and there was no evidence about his ability to influence her academic performance, discipline or extra-curricular opportunities. The trial judge found that the accused was in a position of trust and authority, based on a policy directive that the accused was required to follow as a condition of employment.

In overturning the conviction, the Court of Appeal held that a judge must consider the characteristics of the relationship and could not rely on a policy directive to determine

whether a relationship was one which fell within s. 153. A new trial was ordered since the trial judge did not make the necessaryfindings of fact to allow a proper determination of the issue of trust or authority. [51] In R. v. Mercer, (NLSCTD), the accused and his wife were friendly with the complainant’s parents and saweach other sporadically over a number of years. When the complainant was 16 she was invited to spend the summer with the accusedand his wife. The accused was 37. During that summer the complainant and the accused had sexual interactions on three occasions.

The Court held that the accused was not in a position of trust in relation to the complainant. In coming to this conclusion the Courtfound that there was no power imbalance between the two and the complainant, in staying with the accused and his wife, was exercisingher independence. [52] R. v. Osmond, 2015 SKQB 148, involved a 27 year old high school teacher and a 16 year old, who had been her student. Whilethe accused was teaching the complainant, they became friends and eventually expressed romantic feelings for each other. They did notact on these feelings until after the accused left the school.

About a month after the accused’s teaching contract ended, they met and hadintercourse on three occasions. The Saskatchewan Court of Queen’s Bench held that the accused was not in a position of authority at thetime of the sexual interactions as her authority over the complainant arose directly from being a teacher at his school and, at the time ofthe sexual contact, she was no longer his teacher and would not be his teacher in the future, and thus had no duties or powers in relationto him.

With respect to trust, the court held that, while there was some basis for a finding of trust, as it had only been a month since shehad stopped being his teacher, that in fact the trust relationship ended when the accused finished teaching. Relationship of Dependency [53] I was provided with two cases to assist in understanding what is meant by a “relationship of dependency”. [54] In R. v.

Galbraith, (1994) (ON CA), 90 CCC (3d) 76, the Ontario Court of Appeal defined a “relationship ofdependency” as one where the young person relied on the accused and where the accused had assumed a position which created a powerimbalance. The Court declined to set out examples of this type of relationship, holding that it must be determined on a case-by-casebasis. [55] In R. v. Martin, 2011 ONCJ 401, the Ontario Court of Justice considered a relationship between a 45 year old man and a 16 yearold girl. The Crown alleged that the relationship was one of dependency.

The complainant became acquainted with the accused becauseshe was friendly with his son and she regularly visited their home. The complainant was described as very intelligent and academicallygifted. She eventually found that she could carry on more meaningful conversations with the accused than with his son and startedspending time engaging in such conversations. At age 16, the complainant graduated from high school and started University. Shedecided to leave home as her relationship with her father and step-mother was strained. The accused agreed that she could move into hishome.

At first the relationship was purely platonic but eventually became sexual. The sexual relationship continued until the time of thecharges. The Court found that the relationship between the accused and the complainant was a normal healthy relationship and that therewas no power imbalance between the two of them and thus no relationship of dependency.

Exploitative Relationship [56] An exploitative relationship is one where a power imbalance in favour of an accused person, that does not arise from a positionof trust, authority or dependency, is used to take advantage of the young person for the accused’s benefit: see R. v. Anderson, 2009PECA 4, para. 74. ANALYSIS Position of Trust or Authority [57] I find the following facts particularly relevant to the issue of whether Mr. Olson was in a position of trust or authority in relationto the complainant: 1. Mr.

Olson was a teacher at the school the complainant attended, although at no time did he actually teach classes to the complainant; 2. The school was a boarding school. The complainant was primarily a boarding student, although she also sometimes stayed with hermother who lived nearby; 3. Mr. Olson resided on the school campus. His residence there was a result of his position as house director of one of the schoolresidences, although not the one that the complainant resided in. Mr. Olson had, years earlier, been involved in the management of thehouse where the complainant’s brother had resided. 4. Although Mr.

Olson was not directly involved with the complainant as her teacher or coach, had no input into her grades, and did notactually discipline her, he did attend staff meetings where her academic performance was discussed, was the recipient of e-mails aboutdiscipline matters affecting her, had the ability to enforce school rules on all students, including the complainant, and did control whetherthe boys in his house could attend a party that the complainant held off campus. 5. As a teacher and house leader, the societal expectation is that Mr. Olson would behave towards all of the school’s students as a

parent. 6. Mr. Olson was 34. The complainant was 17. 7. Mr. Olson first met the complainant when she was 9 years old. 8. Although Mr. Olson did not have all of the information that his wife had about the complainant and her vulnerabilities, he did have knowledge of her and her family’s circumstances well before the complainant became a student at the school, as a result of Mr. Olson’s wife being involved with the complainant as a teacher and counsellor at a different school when the complainant was young and providing support to the complainant and her family over a number of years. 9.

At the time of the complainant’s attendance at the school, Mr. Olson’s wife was also employed there, as a guidance counsellor. She was the complainant’s school guidance counsellor at the time of the incidents that give rise to this matter and, as a result, was privy to a significant amount of information about the complainant. She did not share the information gained as a result of her role as a guidance counsellor with her husband, although the complainant did attend the on-campus home that she shared with Mr. Olson for school purposes. 10.

As a result of the complainant’s brother’s attendance at the school, as well as Mr. Olson’s wife’s relationship with the family, Mr. Olson knew the complainant’s mother and brother and knew about some of the family’s challenges, such as the fact that the complainant’s mother had been very ill with cancer, that the complainant’s father was not a presence in her life, and that her brother had addiction issues. 11. Throughout the Facebook messages, and in her courtroom testimony, the complainant referred to Mr. Olson as “Mr. Olson” or “Mr. O”. At no time did she use his first name. 12.

The Facebook communication between Mr. Olson and the complainant, which eventually led to the sexual interaction, was initiated by Mr. Olson in his role as a school employee. He communicated with the complainant purportedly to ensure that the boys from his house had behaved at her party and to advise that he would take action if they had not. 13. In his initial conversation with the complainant, Mr. Olson praised her and made reference to looking out for her and her mother. The complainant testified that this made her feel special since an older man and a teacher was paying attention to her.

It also made her feel safe and protected. This conversation, and her testimony about it, demonstrates the power imbalance between them and her vulnerability in their relationship. 14. In a later conversation, the complainant discussed a discipline breach she committed with Mr. Olson. In this conversation the complainant expressed her concern about loss of respect by teachers and faculty members. Mr. Olson replied that she had not lost his respect, clearly placing himself in the category of teachers and faculty members that she was concerned about. 15. The complainant made clear how she saw Mr.

Olson when she was asked to tell him why she wanted a relationship with him and she replied by reference to their age difference and his position at her school. [ 58 ] The Court in Audet noted that the purpose of s. 153 was “to protect young persons who are in a vulnerable position towards certain persons because of an imbalance inherent in the nature of the relationship between them”: para. 14. Defence counsel submitted that the Facebook conversations between the complainant and Mr.

Olson demonstrated that there was no vulnerability on the part of the complainant and, in fact, she held the position of strength in their relationship as a result of the fact that he stood to lose everything - his wife, his job, his liberty – if the relationship were disclosed. While I accept that Mr. Olson had a lot to lose if the relationship was discovered, this is a result of the choices made by Mr. Olson and is not determinative of the nature of their relationship.

If it were, there could never be a position of trust, authority, dependency or exploitation established with a teacher, an employer or anyone who was married as discovery of such a relationship would always carry such risks and make those individuals vulnerable to disclosure and discovery. [ 59 ] I find that the fact that the school where the complainant attended, and Mr.

Olson taught, was a boarding school created a more parent-like role for all of the staff at the school than even that envisioned by the Supreme Court of Canada in Audet , when they spoke of parents delegating their parental authority to teachers. In no type of school is this more the case than a boarding school, and it must apply particularly to those that reside on campus as not only do they take on the role of parent during the school day, but also during out of school hours. [ 60 ] Further, although not necessary to a finding of a position of trust or authority, it is worth noting that it was Mr.

Olson that initiated the sexual discussion between the two, and that he persisted in introducing sexual topics even when, at first, the complainant did not respond in a sexual way to these overtures. There is no doubt that the complainant became a full participant in these sexual communications, and was later a full participant in the sexual interactions, but this is not of assistance to Mr. Olson since consent is not relevant to determination of whether a relationship falls within s. 153.

As emphasized by the Supreme Court of Canada in Audet , “notwithstanding the consent, desire or wishes of the young person, it is the adult in the position of trust who has the responsibility to decline having any sexual contact whatsoever with that young person”: para. 23. [ 61 ] Also, although it too is not determinative, it is worth noting that Mr. Olson himself believed the relationship put him in legal jeopardy. His statements in this regard provide some evidence of his view of his position in relation to the complainant and thus some insight into that relationship. [ 62 ] Defence counsel has argued that Mr.

Olson did not have the requisite degree of control over the complainant to make out a position of trust. But this is just one of the factors set out in Aird , which speaks of “the degree of control, influence or persuasiveness exercised”. While I accept that, as the relationship progressed, the complainant was the more eager party with respect to the sexual acts, an analysis of the entirety of the Facebook communications shows the influence that Mr. Olson had over the complainant, and particularly over her sense of self and well-being.

[ 63 ] Mr. Olson’s entire relationship with the complainant, outside of the sexual one, was steeped in his role at the school: as a teacher, a house leader and as one of the group of teachers and house parents who stood in a parental role for all of the students. There was an inherent power imbalance in their relationship. The age difference between them, the evolution of their relationship, Mr.

Olson’s status in relation to the complainant, and the expectations of, in particular, parents of students who attend boarding schools such as the one that this complainant attended, as well as the expectations of the accused, who believed that his conduct would attract criminal culpability if discovered, all lead inevitably to the conclusion that he was in a position of trust. I conclude that the evidence proves, beyond a reasonable doubt, that Mr.

Olson was in a position of trust with respect to the complainant. [ 64 ] With respect to position of authority, I find that many of the facts that have led to my conclusion that there was a position of trust, are also indicative of a position of authority: Mr.

Olson’s role within the complainant’s boarding school community; as a house leader and teacher; as someone who was part of the group of people expected to stand in as parents to all of the students; as someone who was, by his own admission, looking out for the complainant; as someone privy to information about the complainant’s school performance; as someone with the ability to administer discipline, even though he did not actually do so. In consideration of all of the circumstances and the law, I also conclude that the evidence proves, beyond a reasonable doubt, that Mr.

Olson was in a position of authority with respect to the complainant. Relationship of Dependency [ 65 ] It appears from the law I have been provided, that a relationship of dependency is one where there is some reliance by the complainant on the accused for things such as employment, transportation or a place to stay. I find that this does not describe the relationship between Mr. Olson and the complainant and, accordingly, I find there was no relationship of dependency. Exploitative Relationship [ 66 ] Since I have found that Mr.

Olson was in a position of trust and authority in relation to the complainant, this precludes a finding that the relationship was exploitative. Conclusion on Counts 1, 2, 5 & 6 [ 67 ] On the basis of my finding that Mr. Olson was in a position of trust and authority in relation to the complainant, and my finding that all other elements of these offences have been proven beyond a reasonable doubt, I find Mr. Olson guilty of the offences set out in counts 1, 2, 5 and 6. LURING [ 68 ] Count 4 on the Information alleges a count of luring pursuant to s. 172.1(1)(a). In R. v.

Alicandro , 2009 ONCA 133 , the Ontario Court of Appeal set out the elements of the offence under s. 172.1(1)(c). Adapted to s. 172.1(1)(

a) as it currently reads leads to the following elements: 1. The accused must communicate by means of telecommunication; 2. The communication must be with someone under the age of 18; 3. The purpose of the communication must be to facilitate the commission of an enumerated offence, in this case the offence of sexual exploitation. [ 69 ] In this case, there is no issue with elements 1) and 2). It is clear from all of the evidence that Mr. Olson communicated over his phone or computer, that is by means of telecommunication, with the complainant, who was, at the time, 17 years of age. There is no issue that Mr.

Olson knew her age to be 17. [ 70 ] With respect to the third element, it is clear that virtually all of the communications between the complainant and Mr. Olson took place over Facebook and many of those communications were for the purposes of discussing and planning for, thus facilitating, their sexual encounters. Defense counsel took the position that, if the offence of sexual exploitation was not made out in that Mr.

Olson was not in a position of trust or authority with respect to the complainant, then he could not have intended to commit an enumerated offence since the sexual acts that were planned for during these communications would not fall within

section 153. Since I have found that Mr. Olson was in a position of trust and authority in relation to the complainant, this argument must fail. I find that the Crown has proven all elements of this offence beyond a reasonable doubt and I find Mr. Olson guilty of count 4. ASSAULT CAUSING BODILY HARM [ 71 ] Count 3 on in the Information alleges that, on March 6, 2015, Mr. Olson committed an assault causing bodily harm on the complainant. [ 72 ] The complainant testified that, during their sexual encounter on March 6, Mr.

Olson assaulted her by pushing her against the arm of a chair, causing a bruise to her right buttock and by engaging in oral sex after she had told him to stop, causing pain and swelling

to her vaginal area. [ 73 ] With respect to the bruise to her buttock, the defense argues that the court cannot be satisfied beyond a reasonable doubt that the complainant was pushed against a chair as she described. And, they argue, even if it did occur in this manner, that she either consented or he had a mistaken belief in consent based on her repeated requests that he be rough with her. [ 74 ] With respect to her vaginal injury, the defense argues that the court should have a reasonable doubt with respect to either consent or mistaken belief in consent. [ 75 ] On March 2, Mr.

Olson and the complainant discussed their upcoming sexual encounter. The complainant told him she wanted him to be rough. Mr. Olson expressed concern about making the complainant sore. [ 76 ] On March 11, the complainant told Mr. Olson that the other night had been “amazing” and that she “thoroughly enjoyed” it. On March 15, the following conversation took place over Facebook: The complainant Shit, I still can’t believe 26 orgasms The complainant Within what 20 minutes Olson A few hours but doubled my record - was impressive Olson Pretty sure that won’t happen again - u must have faked some or most of them . . .

The complainant I don’t fake orgasms.. If I wasn’t enjoying myself I would have stopped you Olson U did a few times - then grabbed my head again and shoved it back down! The complainant Because I was thoroughly enjoying myself! [ 77 ] I have been provided with the case of R. v. Zhao , 2013 ONCA 293 , on the issue of the consent requirement for proof of sexual assault causing bodily harm. Although consent is generally not available as a defence to causing bodily harm, in order for consent to be vitiated, bodily harm must be both intended and caused: See R. v. Paice , 2005 SCC 22 .

Zhao addressed the issue of whether the intent to cause bodily harm must be subjective or objective and concluded that it should be construed subjectively. [ 78 ] According to Zhao , the elements of the offence of sexual assault causing bodily harm are: 1. an intentional application of force; 2. that takes place within a sexual context; 3. that causes bodily harm; 4. that the accused intended to cause bodily harm; 5. if no bodily harm was caused or intended, that the complainant did not consent. [ 79 ] With respect to the March 6 incident, it is clear that the first two elements are satisfied.

With respect to the bruise purportedly suffered by the complainant as a result of being pushed onto a chair, I have a reasonable doubt about whether that incident in fact caused bodily harm. This doubt is founded in mixed evidence about whether there were any chairs with arms on them in the hotel room, as described by the complainant. Further, I am troubled by the fact that the bruise that is purportedly the result of these actions was first corroborated on March 26, almost 3 weeks after the incident. But even if a bruise that would constitute bodily harm was the result of the actions of Mr.

Olson on March 6, I am left with a reasonable doubt about his intention to cause bodily harm in that incident, based on the Facebook conversations I have already referred to. [ 80 ] For the same reason, I have a doubt about his intent to cause the bodily harm that resulted to the complainant’s vagina as a result of their sexual activity. [ 81 ] Finally, I find, again based on the Facebook conversations, that the complainant did consent to all of the sexual interaction between herself and Mr.

Olson and, if not, that those same conversations give rise to an honest but mistaken belief in her consent. [ 82 ] I find Mr. Olson not guilty of Count 3. ________________________________ C.J. Rogers Provincial Court Judge