R. v. E.P., 2011 ONCJ 179

Information No. 09 – F3912 Citation: R. v. E.P. , 2011 ONCJ 179 ONTARIO COURT OF JUSTICE (at St. Catharines, Ontario) B E T W E E N: HER MAJESTY THE QUEEN - and - E.P. Mr. M. Eshuis for the Crown Mr. D. Wolfe for the Defendant An order has been made under s. 486.4 directing that any information that could identify the complainant, C.G., shall not be published in any document or broadcast or transmitted in any way.

JUDGMENT A word is not a crystal, transparent and unchanged, it is the skin of a living thought and may vary greatly in color and content according to the circumstances and the time in which it is used. - Oliver Wendell Holmes, Jr . NADEL, J.: Introduction [ 1 ] Late in the evening of July 20, 2009, E.P. decided to have a heart to heart talk with C.G., the 14-year-old daughter of his girlfriend, C. The last item of their conversation dealt with shaving E.P.’s pubic hair. The Crown alleges that E.P. counselled C.G. to shave his pubic hair and that doing so contravened s. 152 of the Code .

The Crown contends that he raised the subject and counselled, i.e. asked, her to do it and that he did so seriously and not as a joke. The Crown’s position is that this counselling was to be the penultimate act that would lead to her touching him carnally. The defence demurs and submits that she raised the subject or that she cannot be excluded as having done so. The defence contends that since she raised the subject no offence was committed and alternatively, in the second case, that no offence was proved.

Third, regardless of who initiated the discussion, E.P. was merely joking and it is no crime to joke about matters prohibited by s. 152. Fourth, even if the defendant instigated the suggestion seriously still no crime was committed since his purpose was not sexual but rather was aesthetic. Fifth, even if it was sexual, it was not for a sexual purpose vis -à- vis her. Rather, it was to please C.G.’s mother.

Sixth, the alleged crime was particularized as a “direct” touching but the invited act amounts only to an indirect touching – one mediated by a razor – and hence the evidence offered does not prove the crime alleged. [1] An overview of the household and family situation [ 2 ] C.G. lived with her mother, C., her five-year-old sister, G., and E.P., who was 39, in a triplex at [ municipal address suppressed ], Ontario.

C. had become a surety for her 18-year-old nephew, T.T., so he was also living with them, along with his 16-year-old girlfriend, J.D., E.P. had dated C. intermittently over the past two years and was currently living with her. He was in a position of trust towards C.G. on July 20, 2009, since his girlfriend had left him in charge of the household and its occupants, while she went on a camping trip.

In any event, C.G. saw him as a father figure. C. was due back on July 21, 2009. [2] The youngest child, G., was not present in the home during the events in question. [ 3 ] I infer that C.G.’s mother did not impose any routine or discipline over C.G. It was normal in that home for T.T. to share a bedroom with his girlfriend. C.G.’s mother allowed C.G. to “sleep” with boyfriends in her bedroom overnight. This form of parenting had already resulted in C.G. suffering a miscarriage.

In addition to permitting C.G. to engage in precocious sexual activity, C. allowed her daughter and the other young persons in her charge to drink alcohol and smoke tobacco and marijuana. C.G. and C. related more as friends than child and parent. According to C.G., she and her mother would joke about her mother having pubic hair. C.G. testified that she considered having pubic hair to be unusual and “gross”. She said that she and her mother would joke about it and she urged her mother to shave herself.

Uncontested evidence [ 4 ] In the days prior to C.’s return from her camping trip a number of C.G.’s friends had been at the house including J., her current boyfriend, and B., one of her girlfriends. C.G. had become distressed and upset when she learned that J. had “cheated” on her with B., by kissing B. Additionally, earlier on July 20, 2009, R., an ex-boyfriend of C.G.’s, had been hanging around the house and C.G. was considering trying to rekindle that relationship. Both C.G. and E.P. agreed that there was a lot of “girl drama” (sic) going on, so far as C.G. was concerned.

In addition, during the weeks prior to July 20, 2009, C.G. had lost a substantial and visible amount of weight. [ 5 ] C.G., T.T. and J.D. all had access to beer on that night and in the preceding days. Some of it was provided by E.P. and some came from T.T.’s brother. Both C.G. and E.P. had some amount of alcohol to drink before their conversation, which took place in the living room of [ municipal address suppressed ] during the night prior to C.’s return. E.P., C.G., T.T. and J.D. had been together watching a movie when C.G. went to the bathroom.

While she was away E.P. told T.T. and J.D. to leave and go to their bedroom if C.G. returned because he wanted to have a private talk with her. C.G. returned to the living room and the other two left, leaving E.P. alone with C.G. [ 6 ] Both C.G. and E.P. agree that during their conversation he asked her to lift her top up to expose her torso. At his urging she lifted her top higher than she did initially and as a result she briefly exposed her breasts to him. In addition, E.P. asked C.G. about her sexual experiences and whether she masturbated and found pleasure in sex.

He also asked her to touch a spot on his body that was located to the left of his navel and several inches above his pants’ waistband line. She did so momentarily and he identified that spot as being his undescended testicle. Their last topic of conversation, before C.G. got up and left the living room, was the shaving of his pubic hair. When C.G. returned to her room she told T.T. and J.D. about what had just occurred. As a result, J.D. retrieved a kitchen knife and slept with it. The Position of the Crown [ 7 ] On behalf of the Crown, Mr.

Eshuis submits that E.P. took advantage of the opportunity presented by C.’s absence from the home. He plied C.G. with beer to reduce her inhibitions, contrived to get her alone and then proceeded to guide or direct their conversation towards sexual topics with the intention of moving her to progressively greater intimacy. His plan culminated in his request to have her shave his pubic hair. The Crown’s position is that E.P. initiated that request and that it was uttered seriously and not as a joke.

His invitation was the last act in a sequence that included discussing whether C.G. masturbated and how much sexual experience she had. The sequence also included testing the waters by getting C.G. to do increasingly overt sexual acts. Those acts consisted of convincing her to expose her body to him, having her touch his body and finally counselling her to touch his pubic area under the guise of a request to groom him. In the Crown’s submission, E.P. was preying upon an insecure young woman who was in emotional distress. Further, Mr.

Eshuis submits that for a variety of reasons, E.P.’s denials should be rejected and that the offence has been proved to the exclusion of any reasonable doubt. [ 8 ] The Crown submits E.P.’s intention is shown to be serious and sinister because, by his own admission, he was an old school (sic) parent. E.P. described himself as being substantially more conservative about child rearing than his girlfriend. That self-assessment was supported by C.G.’s testimony. E.P. disapproved of his girlfriend’s lax parenting.

For example, he said, and C.G. agreed, that he would refuse to let her leave the house when she displayed excessive décolletage. He would say, “If they’re showing you’re not going.” [ 9 ] In describing her relationship with E.P., C.G. said all of the following: (

i) they had a good relationship and got along but he was more responsible and strict than her mother; (ii) E.P. was a “by the rules” parent; (iv) he was “awkward” (sic) when it came to disciplining her; (

v) he was “there for [her]” and she could talk to him; (vi) he gave her advice and she considered him her stepfather. [ 10 ] Yet, despite these professed views, he allowed C.G. to drink and he actively engaged her in a discussion of intimate topics. This blatant inconsistency between what he professed to espouse and how he acted demonstrates his serious and sinister intent. Further, he testified that he had to “walk on egg-shells” around C.G.

Once again, the Crown submits that his behaviour towards C.G. on the night in question could hardly be called treading lightly around a sensitive person about sensitive topics. Once again, his actions belie his words. One telling example of the inconsistency between his professed concern for C.G.’s well-being and his conservative view of parenting is demonstrated by his request of C.G. to bare herself to him. Since C.G.’s loss of weight was self-evident there was no need to ask her to expose her body to him.

In the Crown’s submission, if E.P. wanted to make a point about her weight loss for an innocent purpose, he would have told her to look in a mirror. But he did not. He told her to lift her shirt and when he couldn’t see her breasts he told her to lift it higher. [ 11 ] Mr. Eshuis submits that it is significant that E.P. led the discussion to where he wanted it to go, constantly returning to sensitive and sexual subjects after setting up the opportunity to be alone with her.

According to the Crown, E.P.’s actions were simply an example of his self-confessed ability to “talk a girl into anything.” [ 12 ] Beyond the inconsistency between his self-description and his actions, the Crown submits E.P. lied to the police and as a result his testimony should be rejected so that no reasonable doubt arises on the second prong of R. v. W. (D .).

For example, early on during his extensive police interview E.P. said, “You know, I’m sitting here, I’m not here trying to bullshit my way or try to make my story sound better than hers”. [3] Subsequently E.P. told the officer-in-charge that while he bought a case of beer he “told [C.G., T.T. and J.D.] not to touch it of course”. [4] Later in his police interview he concedes that “the reasons why [he] didn’t bring up the booze and stuff at first of

all well yeah, cuz make it look better and sound better”. [5] In light of this lie and contradiction, the Crown urges that I should reject E.P.’s denial that he raised the subject of having C.G. shave his pubic area. [ 13 ] The Crown contends that E.P.’s testimony (that he made a joking response to C.G.’s suggestion that she shave him) does not merit credit. The Crown submits that this testimony is internally inconsistent.

After discussing all of the intimate and sexually charged topics that he raised with C.G., E.P.’s testimony that he became uncomfortable and felt awkward when she raised the issue of shaving his pubic hair for her mother, is incredible. It is completely at odds with and contradicts his earlier behaviour during the discussions that he initiated. [ 14 ] The Crown makes two final points. First, C.G.’s reaction to what transpired demonstrates that E.P. raised the topic and asked her to shave him. C.G. reacted by ending their conversation and leaving the living room as soon as E.P. asked her to shave his pubic area.

Further, she immediately went into her bedroom and complained to T.T. and J.D. about what E.P. had asked her to do. The fact that Jamie then went into the kitchen to obtain a knife after C.G. complained about E.P.’s request is cogent evidence that C.G. detected no humour in E.P.’s request. [ 15 ] The second and final point made by Mr. Eshuis is that the charge, as particularized, is proved by E.P.’s admission that he invited C.G. to touch his undescended testicle and that she did so. Given all of the surrounding circumstances, the Crown submits that E.P. made that request for a sexual purpose.

In any event, of necessity, E.P.’s request of C.G. to shave his pubic hair would require her to touch him directly with a part of her body. The Position of the Defence [16] In brief compass, Mr. Wolfe submits that nothing sinister occurred during the conversation. E.P. was trying to raise C.G.’s level of consciousness. He was urging her to make positive choices in her life. He was attempting to show her that she was not merely a sexual object. Given E.P.’s prior relationship with C.G. and some recent events in her life, the innocent nature of E.P.’s intentions is apparent.

He was a concerned guardian looking out for a troubled and distressed teenager. While E.P. could have voiced and demonstrated his concerns more effectively, he should not be found guilty of an offence that he neither intended nor committed. He may be guilty of bad judgment, but he is guilty of nothing else. It is the position of the defence that E.P. floundered when at a point in their talk, despite all of his prior advice, C.G. suggested that he ought to shave his pubic hair as a homecoming present for her mother.

He tried to parry and deflect her suggestion by awkwardly joking that C.G. should help him to do so. [17] More specifically, Mr. Wolfe submits that the conversation developed naturally. This is consistent with the admissions made by C.G. respecting her relationship with E.P. (set out at [8] and [9], supra ). [6] Given their prior relationship, her precipitous weight loss and the emotional drama of the preceding days, E.P. felt that he should have a talk with C.G., in private, so that she would not feel embarrassed. While the defendant did make personal inquiries, he did not do so for prurient reasons.

He was trying to determine if C.G. enjoyed sexual activity or whether she was allowing herself to be used and objectified by the boys she was dating. While C.G. recalled a number of the topics discussed her memory of the whole conversation was poor. For example, it was not until C.G. volunteered her tale of kicking a man in the testes that E.P. invited her to touch a small bulge on his stomach. She did so for a second and then he identified the bulge as his undescended testicle. He then admonished her about the dangers of applying force to a man’s testes. The defence says that this was a completely asexual act.

It arose as a teaching moment. Likewise, although E.P.’s attempt to bring home the physical costs of C.G.’s emotional turmoil was not well thought out, it was not intended to be a sexually charged demonstration. He was merely trying to demonstrate that her troubles with boys had nothing to do with her weight, since despite “wasting” away she was still having boy trouble. The innocent nature of his object lesson is demonstrated by C.G.’s reaction to this aspect of their conversation.

She testified that it meant nothing and was not troubling for her at the time. [18] The defence contends the conversation that E.P. and C.G. engaged in was extensive and that C.G.’s memory of it at trial was faulty. Much more was discussed than the few seemingly charged items that the Crown alleges. That fulsome review provided by E.P. in his police statement, Exhibit “1” makes his innocent intent patent.

The lapses and lacunae in C.G.’s memory include all of the following matters: • she was uncertain of the number of beers that she drank; • she was uncertain about the details, timing and advice given to her in their discussion of “girl drama” involving B. and J. prior to the movie; • she equivocated and could not speak with assurance about whether E.P. told R. to leave; • she agreed E.P. was worried she was being taken advantage of by boys but she could not recall what was said; • she could not recall the context of their discussion about masturbation and could not recall any of the words used by her or E.P. in that discussion; • she agreed it was possible that E.P.’s discussed her weight loss and the troubles she felt she was having with boys as a result of her weight; • she could not recall who initiated their discussion about weight loss; • she admitted that she and E.P. talked about a lot of topics that she no longer recalls as well as details of things that happened or were discussed with E.P.; • she did not recall the discussion with E.P. but conceded it was possible she discussed being angry at a boy and kicking him in the testicles; • she agreed that E.P. may have commented to her about how easy it would be for someone to get her to take her clothes off although she could not presently recall that discussion;

• she agreed that while she could not recall a discussion with E.P. about what he might get for her mother as a surprise gift, she agreedthat conversation may have occurred; • she could not recall the words E.P. used when he asked her to shave his pubic hair nor her exact response to him; • she could not recall with exactitude what she said to her mother about the event in a text that she sent the next day [19] Beyond her unreliable memory the defence contends that C.G. lied by testifying that E.P. fed her three or four bottles of beerwhile watching the movie.

In fact, as confirmed by T.T., C.G. served herself beer. If she was testifying honestly, she was an unreliablewitness. In sum, she often said that she did not know, could not remember, and could not be sure. Whether her unreliability as a witnessis due merely to the passage of time or not, the court is left with E.P.’s testimony as the best source of evidence. Significantly, thedefendant never denied to anyone at any time that he asked her to help him shave. But he maintains he did so as a joke and never with asexual purpose.

What the Crown Must Prove [20] The charge against E.P. was particularized to allege that he, for a sexual purpose, counselled C.G. to directly touch his body witha part of her body. Both the prosecution and defence agree that no extensive statutory

interpretation of the word “counselled” isrequired. They have agreed that it simply means “asked”. So, the Crown must prove that E.P. asked C.G. to directly touch his body witha part of her body. Equally, both sides agree that “directly” needs no special

interpretation. The Crown must prove that E.P. asked C.G.to touch his body directly with a part of her body. [21] Since there is no dispute that he did ask her to directly touch his undescended testicle with her finger, the charge is made out if hemade that request for a sexual purpose. As this admitted act occurred first in time it might seen convenient and efficient to deal with thecase on that basis and only go further should the need arise. Nonetheless, I propose to deal with this case on the basis of the allegationthat the defendant requested C.G. to shave his pubic hair.

I do so because the defence does not allege that the shaving request was a non-culpable act of sex-education and so an analysis in that vein is avoided. Further, in my view that incident was not the basis of thisprosecution. The issue joined is who said what to whom and with what purpose regarding the shaving of the defendant’s pubic hair. Before embarking on an analysis of the evidence a review of the controlling law is apposite.

Section 152 [22] The words “for a sexual purpose” are not defined. They should be interpreted in a manner consistent with the approachmandated by the Supreme Court in R. v. Chase, (SCC), [1987] S.C.J. No. 57 at [11], which dealt with what were thennew sexual assault provisions. The test to be applied in determining whether the impugned conduct has the requisite sexual nature is an objective one: “Viewedin the light of all the circumstances, is the sexual or carnal context ... visible to a reasonable observer”.

Adapting the criteria identified in Chase one can look to the part of the body that was to be touched, the nature of the contact requested,the situation in which the invitation occurred, including the words used, together with any accompanying gestures and all othercircumstances surrounding the conduct. [23] Following and adapting Chase further at [11], the intent or purpose of the person committing the act is also a factor, to the extentthat this may appear from the evidence.

The motive of the accused may also be a factor in determining whether his purpose is sexual, ifthat motive can be found in or inferred from the evidence. The existence of such a motive is simply one of many factors to be consideredand its importance will vary depending on the circumstances. (Chase at [11]) [24] The Manitoba Court of Appeal in R. v. Sears, (MB CA), [1990] M.J. No. 296[7] determined that s. 151criminalized the conduct of an adult which ensued despite it being instigated by a young person. I see no reason why that

interpretationshould not also apply to s. 152. Contrary to the defence submission, even if C.G. first raised the subject of the defendant shaving hispubic area that would not necessarily preclude the defendant from being found guilty of an offence under s. 152. The question ofwhether the defendant counselled her to do so and the purpose of his request would still need to be answered, together with whether adirect touch was counselled. [25] In R. v. Fong, [1994] A.J. No. 593, the Alberta Court of Appeal upheld a conviction under s. 152 where the accused asked ayoung child to hold a tissue while he ejaculated onto it. The Court, at [10], ruled that the

section was designed to prevent the sexualexploitation and interference with children and must be interpreted in accordance those objectives. Hence, despite being mediated by thetissue and the fact of ejaculation, the accused’s conduct amounted to an invitation to an indirect touching prohibited by the section. [26] Similarly, in R. v. Gray, (ON CA), [2004] O.J.

No. 4100 at [7], the Ontario Court of Appeal held that,despite an accused being the initiator of any touching, s. 152 is transgressed when an accused seeks to touch a complainant’s genitaliasince that amounts to an invitation to have the complainant’s body touch his for a sexual purpose. [27] In R. v. Legare, 2008 ABCA 138 , [2008] A.J. No. 373, the Alberta Court of Appeal engaged in an exegesis of s. 152. One aspect of that analysis is especially pertinent to E.P.’s defence. He submits that whatever he said was said in a joking manner andnot intended to be taken seriously.

In Legare, at [42] the Court ruled that a lack of intent to be taken seriously is not a defence to acharge under s. 152. That court held that the reasoning in R. v. Clemente, (SCC), [1994] 2 S.C.R. 758, dealing withthreatening conduct, does not apply to a charge under s. 152.

The Court in Legare held that, unlike threatening charges, where a defenceof lack of intent to be taken seriously prevents an overbroad proscription of conduct, there is nothing ordinary and therefore nothingoverbroad in criminalizing an adult’s communication with a child that counsels sexual conduct with a child. [28] With respect, that position cannot be correct. It is not binding upon me in any event. While it may be vulgar, crude and illadvised to make sexual jokes to young persons less than 16 years of age, it is not a crime to do so. Equally, there are numerous vulgar

imprecations that would be criminalized when directed to anyone under 16 years of age, if Legare was correctly decided on that point.Contrary to Legare I find that while “it is the meaning conveyed by the words that is important ... it cannot be that words spoken in jestwere were meant to be caught by the section.” (Lang J.A. in R. v. Batista, 2008 ONCA 804 , [2008] O.J. No. 4788 at [17],quoting Cory J. in Clemente at p. 762) Reasons [29] The Crown’s evidential burden is outlined at paragraph [20] above.

Has it proved to the exclusion of any reasonable doubt thatE.P. asked C.G. to directly touch his body with a part of her body for a sexual purpose? Bearing Chase in mind, along with the purposeof the legislation as discussed in Sears, Fong and Gray, the answer is yes. I find the defendant guilty as charged. I do so for thefollowing reasons. [30] I am satisfied to the exclusion of any reasonable doubt that the defendant asked the complainant to shave his pubic hair. He hasnever denied making that request. He says the complainant initiated the discussion and he merely responded by asking her to do so as ajoke.

I will deal with that aspect of his evidence in due course. For now I simply want to note that no reasonable doubt about what wassaid arises in my mind as a result of the complainant’s concession in cross-examination that she could not recall the exact words ofrequest used by E.P.. E.P.’s concession that he asked her to shave himself precludes any reasonable doubt about the request having beenmade.

C.G.’s best evidence on the point was that at the end of their conversation E.P. said that he had an awkward request to make ofher; that he asked her if she would shave his pubic hair because he wanted to surprise her mother. That passage of testimony is quoted atparagraph [35] below. [31] There are several reasons why I find that the request for pubic hair shaving was initiated by E.P. and made to C.G. I find thatC.G. did not, as E.P. alleges, first raise the issue. To begin with, and contrary to Mr.

Wolfe’s submission that this was a free-flowing andevolving conversation, I find that everything about the incident points to E.P. being in charge of and in control of the agenda. Despitetheir prior relationship, C.G. testified to the fact that she had never discussed sexual matters with E.P. previously. He did not deny that tobe the case.

When asked what prior discussions about sexual matters he had engaged in with her other than the one on the night inquestion he did not testify that there had been any.[8] He chose the occasion and the timing for their talk and he directed the other youngpersons to leave him alone with C.G. He chose the subject matters for discussion. The subject matters he chose to talk to C.G. aboutwere her sexual practices and experiences. He directed her to bare her body to him and he directed her to touch his body. It is simplynot credible that she would be the one to raise the issue of the shaving of his pubic hair.

She denies doing so and I accept that evidenceas true. It is consistent with E.P. being the instigator of all of the topics of discussion. [32] In addition, E.P. told the police that shortly before that night he had begun to trim his public hair. That admission demonstratesthat pubic hair grooming was something he had an interest in and had in fact begun in the days before his conversation with C.G. [33] Further, C.G.’s actions after the conversation are consistent with her being taken aback by his suggestion that she should shavehim. She got up and left the conversation when he made the suggestion.

She then went into her bedroom and disclosed to T.T. and J.D.what E.P. had suggested to her. I appreciate that her repetition to them of what E.P. said to her is merely a prior consistent statement ofno evidentiary worth per se, but leaving the content aside, her actions are evidence of a recent complaint, which, while not a necessarymatter, remains a piece of admissible circumstantial evidence. In my view, C.G. would not have made a complaint if she had been theinstigator of the conversation.

While J.D. conceded that she may have over-reacted to C.G.’s complaint by getting a knife to protectherself, the fact that C.G. complained about E.P.’s request to her tends to demonstrate that he was the instigator of the request. C.G.’sreaction to E.P.’s suggestion is telling. C.G., according to J.D., upon first entering the bedroom exclaimed, “Oh my God!” and thenbegan to disclose what E.P. had asked of her. [34] In concluding that the defendant asked the complainant to shave his pubic hair I have not neglected the challenges made toC.G.’s credibility during the trial.

One major aspect of that challenge was her testimony that defendant gave her all of the beers that sheconsumed on the night of the conversation. She expressly or impliedly testified that E.P. obtained each bottle of beer that she consumedand that he handed each bottle to her. That evidence is contradicted by the evidence of T.T., who said that C.G. fetched beers for herself. At one point in her testimony C.G. said the same thing although she subsequently resiled from that evidence by suggesting she wasreferring to a prior occasion. I reject that portion of her evidence.

It is clear to me, from the passage footnoted that she was referring tothe night of the conversation with E.P..[9] [35] There are other frailties or inconsistencies in the complainant’s evidence. For example, initially, the complainant said that shevoiced the comment “that’s kind of gross” after E.P. explained that she had just touched his undescended testicle. Moments later in hertestimony she denied conveying that that invitation made her feel awkward and uncomfortable. Likewise, she initially described E.P.’sinvitation to have her shave his pubic hair in these terms: “A.

And I said that I was going to bed and then he said, “I have to ask you an awkward question”, and I said, “What”, and he said,“Oh never mind”. Like he was hesitant about it. And then he asked me if I would shave his pubic hair. And his reasoning for that wasbecause he had done something to his wrist and there was something wrong with his wrist and he said he couldn’t do it himself. So Itold him that not, that’s gross and that not to ask me to do something like that, like he should ask my mom. And he said my mom, hewanted to surprise her because she always tells him he should.

And I said well that’s gross, I’m not doing that and went into thebedroom.” Despite that clear and complete review of this conversation, in cross-examination the complainant said that she could neither rememberexactly what she was asked by E.P. nor her response to him. Because of these frailties and the complainant’s memory lapses, identifiedby Mr. Wolfe in his submissions, C.G. is not the kind of compelling witness described in R. v. Jaura, [2006] O.J. No. 4157.

Notwithstanding, C.G.’s testimony is corroborated in large measure by the evidence of T.T. and J.D. and, importantly, by the evidenceof the defendant himself, in many material particulars. [36] Further, I have not ignored the fact that C.G. thought pubic hair on a woman “gross” (sic). But, as E.P. admitted, C.G. could talkto her mother about intimate matters. He did not suggest that he and she would engage in that kind of talk. Indeed, C.G.’s evidence was

that she did not feel comfortable talking to E.P. or anyone else about her sexual life and she testified that she had never talked to E.P. about the topic of pubic hair shaving on any prior occasion. She was adamant that she did not raise that topic with E.P.. My conclusion on the factual item in contest – who raised the issue of the shaving of E.P.’s pubic hair – is the result of the application of the onus and burden of proof to the evidence.

I reject the defendant’s evidence on that point because it is inconsistent with the preponderance of probabilities disclosed by the facts and circumstances of this case; it is not in harmony with the balance of the evidence. Moreover, I reject the defendant’s evidence on that point and, by way of anticipation, I reject his evidence that his request to have his pubic hair shaved by the complainant was devoid of any sexual purpose. The defendant’s evidence [37] I found the defendant’s testimony and police statement, (tendered as part of the Crown’s case-in-chief,) to be rife with inconsistencies.

Worse, during his police interview, he intentionally misrepresented some of the events that occurred despite being admonished by Officer Atamanyk to say nothing unless he was going to be completely truthful. Finally, in cross-examination the defendant was forced to admit that he lied to Atamanyk. [38] Examples of the defendant’s inconsistencies include his description of the complainant as being smart and manipulative but also being without “street smarts” and being naive. The defendant knew that the complainant was barely into her teens and yet had already suffered a miscarriage.

In my view, his descriptions of her are inconsistent. In addition, the defendant’s versions of the order of events or topics discussed during his conversation with C.G. were also not consistent. For example, during his direct examination he testified that after C.G. touched his undescended testicle the next item of their discussion was her suggestion that they ought to do something nice for her mother when she came home. In his police interview the defendant said that after the testicle touching incident the complainant went back to rambling all over the place on the topic of sex.

By themselves, these matters are of limited impact on the question of the defendant’s credibility but they are far from being the only matters of concern on that issue. [39] E.P. intentionally misled Officer Atamanyk when he discussed the extent to which he supplied beer to the youths in his charge. He was also not candid at trial about his evasions to Atamanyk. During his police interview, the defendant did not volunteer the fact that he had purchased a case of beer and allowed the young persons in his charge to drink it.

When confronted by Atamanyk with the suggestion that he had purchased a case of beer for them the defendant’s second evasion was that he told the young persons not to touch it. Subsequently he admitted to Atamanyk that the reason he did not admit to buying them beer was to make himself look and sound better since he realized that he ought not to have provided alcohol to the complainant and her friends. [40] In-chief, E.P. testified that he did buy C.G. and her friends a case of beer but testified that he rationed it to them.

He then testified that he did not allow the young persons to drink any on the day in issue yet, inconsistently, he conceded he gave C.G. two beers during their talk. Equally inconsistently, he testified that he did not give C.G. alcohol during their talk to “soften her up” to engage her in sexuality. Rather, he said that he fed her the beer to relax her to allow her to talk about sexuality. It strikes me that the defendant’s distinctions lack any substantial difference. In cross-examination the defendant resisted Mr.

Eshuis’ suggestion that he had admitted to failing to “bring up the booze and stuff at first” to “make it look and sound better”. E.P. resiled from the admission he had made to Atamanyk by denying the accuracy of that portion of the transcript of his police interview. Further, he suggested that whatever he said was not a failure to be candid about himself with the officer but rather that he failed to be candid in order to protect C.G. and her mother. In fact, the transcript portion put to him by the Crown, which he refused to adopt, is an accurate transcription of the admission that he made to Atamanyk.

The only reasonable

interpretation of that admission was that he misled Atamanyk to make his situation look better to the officer. Indeed, he admitted that to Atamanyk when he said that he realized that he ought not to have provided alcohol to C.G. and her friends. Finally, Mr.

Eshuis had the defendant admit that he lied to Atamanyk when he told the officer, “No, I didn’t buy a case for them.” In my view, these matters substantially compromised the defendant’s credibility. [41] Another area that undercuts the defendant’s credibility was his insistence that he was not controlling the conversation that he initiated with the complainant.

The defendant took that position despite the fact that he decided to engage C.G. in a conversation, despite the fact that his intention was to speak to her specifically about her sexual behaviour with boys, and despite the fact that he arranged to be left alone with her for that purpose by directing her friends to absent themselves.

Given those circumstances I reject those aspects of his testimony and police statement where through implication or circumlocution he tried to leave the impression that the complainant initiated or brought up the subject of sex, contrary to his wishes and contrary to his interest in that subject. So, for example, the defendant said “the conversation got on to sex” or “she proceeded to talk about her sexual history”.

Further, both to Atamanyk and at trial E.P. said that he tried to “tune her out” when she spoke of sexual matters or that he “didn’t want to hear it from her.” This testimony notwithstanding, during cross-examination, the defendant admitted not only that he was not “tuning her out” but that he was asking her about her sexual experiences including whether she masturbated and whether she enjoyed sex.

In sum, I find that, both to Atamanyk and at trial, E.P. attempted to leave the misleading impression that it was the complainant who was initiating a discussion of sexual matters when, in fact, he was guiding the conversation into these areas. Moreover, as noted earlier in this paragraph, that was his specific reason for engaging her in the conversation.

He admitted as much in-chief when he said that his intention in speaking to her was to discuss his view that she was being promiscuous. [42] E.P.’s credibility sustained an ever greater and more significant blow from his attempt to hide the fact that he asked C.G. to bare her breasts to him. That incident occurred during a discussion of C.G.’s recent loss of weight. While he admitted to Atamanyk that he directed C.G. to stand up he did not truthfully and candidly admit that he directed her to pull her top up high enough to not only expose her stomach but high enough to expose her breasts.

Initially he implied that she did that of her own volition and he said that he did not need to see that. That is, he said, in effect, that he did not ask to nor did he want to see her breasts. Rather, she flashed him of her own accord. That was not true and he ultimately admitted to Atamanyk that he had lied earlier in his interview; however, even then he equivocated. First, E.P. admitted that he did ask C.G. to lift up her shirt but he said that he did not mean for her to pull her shirt up above her breasts.

When Atamanyk challenged the defendant on that point and suggested that he directed C.G. to lift her shirt up higher so that more than merely her stomach was bared he eventually agreed that he did do so.

Ultimately E.P. admitted to Atamanyk that he asked C.G. to bare her stomach to him and then he told her to pull her shirt up higher and show her breasts to him. [43] Despite having been brought to these admissions, and despite those admissions having been documented on the CD of his interview with Atamanyk, E.P. resiled from these admissions during his direct examination where he denied specifically asking C.G. to

expose her breasts to him. In my view, based upon the documented admissions that he made to Officer Atamanyk, the defendant lied at that portion of his evidence in-chief. When challenged on this portion of his testimony in cross-examination, the defendant prevaricated and said that he did not remember but then conceded that he might have asked C.G. to lift up her top and show him her breasts. What was the defendant’s purpose? [44] The next issue to determine is whether, when the defendant asked for his shave, he did so for a sexual purpose.

This analysis requires the application of the principles outlined in paragraph [11] of Chase , set out at [22] and [23] above. In looking at the matter objectively, I observe that the request was made by a mature and adult male of a young teen-aged female, after an extensive discussion of sexually explicit subjects. Mr. Wolfe’s submission was that the purpose of the request was merely for aesthetics or grooming. I do not accept that submission.

If aesthetics or grooming was truly E.P.’s purpose, he would have gone to a spa serviced by adult and qualified aestheticians or he would have asked his adult spouse to assist him in that endeavour. Instead, he asked his 14-year-old stepdaughter to shave his pubic area. The body part to be touched – his pubic area – and the manner of touching – shaving, and the situation in which the invitation occurred - after an extensive inquiry into C.G.’s sexual experiences – all point unequivocally to the sexual purpose of the request.

Moreover, in cross-examination the defendant admitted that part of his purpose in pursuing pubic hair grooming was to excite a sexual partner. In my view, that answer amounts to an admission that he had a sexual purpose in requesting the complainant’s assistance to shave his pubic hair. [45] The defence argues that even if the defendant had a sexual purpose, that purpose was not directed toward the complainant but rather applied to her mother. Even if that was the case, the purposive aspect of the offence is still made out.

To be clear, my finding is that E.P.’s purpose in asking C.G. to shave his pubic area was sexual with respect to her. Nonetheless, while the cases are clear that the purpose of the

section is to prevent the sexual exploitation and interference with children, the

section does not require that the prohibited sexual purpose must be directed to or achieved by the touching of a person less than 16 years of age.

Section 152 prohibits the tactile use of persons under the age of 16 years for any sexual purpose. Any importuning of a person under 16 years of age for such a purpose is criminal. Even if E.P.’s purpose was wholly asexual so far as C.G. was concerned, the

section precludes him from using her touch as a medium through which some ulterior sexual purpose of his could lawfully be achieved. Was it a joke? [46] R. v. Batista , [2008] O.J. No. 4799 (C.A.) , dealt with an allegation of conveying a death threat to a city counsellor via a poem written by one of the counsellor’s constituents. Watt J.A. ruled that after first establishing whether a threat was made, the Crown must also establish that it was made knowing that it would be taken seriously.

As noted previously, one of the lines of defence raised is that E.P.’s request that C.G. help him shave his pubic area was merely made as a joke to allay his discomfort when she brought up the subject. The position of the defendant is that he did not seriously ask C.G. to shave his pubic area. He maintains that she raised the subject in a fashion that surprised and embarrassed him. He covered his discomfort by jokingly suggesting that she could shave him. [47] I have previously rejected his position and found that he raised the subject.

I agree with the Crown’s submission, set out at paragraph [13] above, that E.P.’s testimony that he made a joking response to C.G.’s suggestion that she shave him is incredible. It is at odds with his behaviour up to that point in their conversation and that position is inconsistent with his behaviour in discussing intimate and sexually charged topics that he raised with C.G.

I reject his testimony that he became uncomfortable and felt awkward and therefore made a joke that she should help him when she suggested that he ought to have his pubic hair for her mother as a homecoming gift to her mother. [48] C.G.’s reaction is not determinative of whether E.P.’s purpose was sexual, as I have found that purpose to be. Still her reaction is admissible and relevant evidence on that point.

Equally, while her reaction is not determinative, per se, of whether the defendant’s comments were seriously uttered or whether they were a joke, her response to those comments is, nonetheless, admissible and relevant evidence on the point. In that regard, as noted above, C.G. felt E.P. was in being serious and she responded to him in that way. Further, I find there was nothing in the events up to that point which demonstrated any joking or jocularity.

On at least two occasions during his interview with Atamanyk, E.P. told the officer that after C.G. displayed her breasts to him he something like ‘see how easily a boy can talk you out of your clothes’. On neither occasion when he recalled that comment to the officer did he suggest that he was joking when he said it. At trial however, he referred to that comment as a joke. That evidence notwithstanding, I am satisfied to the exclusion of any reasonable doubt that when the defendant asked the complainant to shave his pubic hair he was in earnest and that he did not make the request as a joke.

Did the defendant counsel a direct touching? [49] The last submission made by the defence is that the Crown particularized the requested touching as a “direct” touch. The defence says that one can be shaved by another without any direct touching of the body of the person being shaved by the person wielding the shaving device. That submission is only “theoretically” correct.

In my view, in carrying out his request C.G. would inevitably have been required to directly touch E.P.’s body with a part of her body in order to shave his pubic hair so that E.P.’s request was for C.G. to touch him directly. [50] I also observe that my decision would have been the same even if I had found that C.G. raised the issue of the shaving of E.P.’s pubic hair. That is the defendant’s version of the events but it does not change the criminal nature of his request.

While he testified that he was merely joking by asking the complainant to assist him in shaving his pubic hair, I have previously rejected that testimony. There was nothing jocular in his manner, according to C.G., prior to that point. Further, I have accepted the submissions of the Crown that E.P.’s testimony that he was embarrassed by that topic makes no sense and is incredible when one considers the intimate nature of the discussion into which he led the complainant.

In short, he is guilty of the offence on his version of the events, given that I am satisfied to the exclusion of any reasonable doubt that he was not joking when he asked the complainant to shave his pubic hair. [51] Finally, out of an abundance of caution, I formally note that for the reasons discussed above I do not believe the defendant’s denial of culpability and his purported explanations. Indeed, I reject his evidence that the complainant raised the suggestion that he shave his pubic hair and that he merely responded to her suggestion with a joke that she should do it for him because of his wrist injury.

Further, I am satisfied to the exclusion of any reasonable doubt on the evidence that I have accepted that E.P. is guilty as charged. [52] For all the foregoing reasons, I find the defendant guilty. Dated at St. Catharines, this 31 day of March, 2011 _____________________ J.S. Nadel, O.C.J.