2015 NBCA 10, 2015 NBCA 10

COURT OF APPEAL OF NEW BRUNSWICK COUR D’APPEL DU NOUVEAU-BRUNSWICK 59-13-CA DENNIS MURPHY APPELLANT DENNIS MURPHY APPELANT - and - - et - HER MAJESTY THE QUEEN RESPONDENT SA MAJESTÉ LA REINE INTIMÉE Murphy v. R., 2015 NBCA 10 Murphy c.

R., 2015 NBCA 10 CORAM: The Honourable Justice Richard The Honourable Justice Bell The Honourable Justice Green CORAM : l’honorable juge Richard l’honorable juge Bell l’honorable juge Green Appeal from a decision of the Provincial Court: April 23, 2013 and May 16, 2013 Appel d’une décision de la Cour provinciale : Le 23 avril 2013 et le 16 mai 2013 History of case: Decision under appeal: Unreported Preliminary or incidental proceedings: N.A. Historique de la cause : Décision frappée d’appel : inédite Procédures préliminaires ou accessoires : s.o.

Appeal heard: June 19, 2014 Appel entendu : le 19 juin 2014 Judgment rendered: February 12, 2015 Jugement rendu : le 12 février 2015

Reasons for judgment by: The Honourable Justice Green Concurred in by: The Honourable Justice Richard The Honourable Justice Bell Counsel at hearing: For the appellant: Margaret Gallagher, Q.C. For the respondent: Kathryn Gregory THE COURT The appeal from conviction and the application for leave to appeal sentence are dismissed. Motifs de jugement : l’honorable juge Green Souscrivent aux motifs : l’honorable juge Richard l’honorable juge Bell Avocats à l’audience : Pour l’appelant : Margaret Gallagher, c.r.

Pour l’intimée : Kathryn Gregory LA COUR L’appel de la déclaration de culpabilité et la demande en autorisation d’appel de la peine sont rejetés. The judgment of the Court was delivered by GREEN, J.A. I. Introduction [ 1 ] The present appeal raises the issue of what constitutes an “exploitative relationship” within the context of s. 153(1) (

a) of the Criminal Code . The appellant was convicted of that offence by a judge of the Provincial Court and sentenced to a term of imprisonment of six years. He now appeals his conviction, and, in the alternative, seeks leave to appeal the sentence imposed. For the reasons that follow, I would dismiss both the appeal and the application for leave to appeal. II. Background [ 2 ] It is my intention to outline the factual matrix of this case in some detail, as the main thrust of the appeal is that “there was not sufficient evidence or analysis of the relationship as a whole to establish beyond a reasonable doubt that it was exploitative”.

[ 3 ] At the time the relationship in question began in September of 2011, the victim was sixteen years old and beginning grade eleven. The appellant’s age will be discussed later in these reasons. The victim had recently spent several months in a rehabilitation facility known as Portage for young people with addictions. Her entry into the rehab program was precipitated by drug issues and being suicidal.

There is no more compelling description of her situation than the victim’s own words, when she testified that “if I didn’t go there, I thought that I wasn’t going to make it past sixteen” [transcript, page 7]. [ 4 ] After classes one day, the victim was standing at a bus stop located outside her high school, waiting for a city bus, when she was approached by the appellant. He boarded the bus with her and engaged her in conversation, asking if she worked in a local strip club.

The evidence established that the appellant quickly learned the following points about the victim: she was a high school student; she had drug addiction issues; and, she had recently been in a drug rehabilitation program. Her testimony further indicated that the appellant later admitted he did not need to take that particular bus on the day they met, but did so in order to talk to her.

He would eventually learn she was sixteen years of age, was in grade eleven, and engaged in self-harm by cutting herself on her arms. [ 5 ] An initial attempt by the appellant to secure the victim’s telephone number was unsuccessful, but he then offered her ten dollars for the information, which she accepted. This exchange occurred during their first encounter, while on the bus. There was also a discussion about sex, with the appellant proposing to provide her with money and drugs in exchange for sexual favours.

This proposition the victim rejected. [ 6 ] The progression of the relationship thereafter was incremental and unfolded as follows. Soon after their first meeting, the appellant contacted the victim by telephone. She responded by text. The appellant proposed they meet in an outdoor area approximately a ten minute walk from the victim’s school, and indicated there would be someone else with him.

The victim’s assessment of the situation was that she was being offered “money and drugs just to meet up with him and there was another girl there” [transcript, page 14], and the location was more or less public, so she agreed. At the meeting, the appellant gave the victim money and/or drugs, and requested nothing in return. As promised, another individual was present. [ 7 ] Next, the appellant asked they meet again, without anyone else present. The victim eventually agreed to meet him, which she did.

He requested oral sex, and gave her money, but she testified that she “left because I didn’t want to do it” [transcript, page 19]. To be clear on this point, she left with the money, but no sexual activity took place. [ 8 ] The two continued to meet, in an outdoor area, and money and drugs continued to be offered by the appellant. However, he refused to give either to the victim unless she performed oral sex on him. The victim did as he requested, during which the appellant wore a condom.

He then gave her money and drugs as promised. [ 9 ] The next phase in the progression featured repeated requests for sexual intercourse, in exchange for more money and/or drugs. Initially, the victim refused, but in time relented. At this point, the two were meeting “a couple times a week after school or sometimes before school” [transcript, page 26]. As the weather began to grow colder, and the changing of the seasons meant the treed area in which they had been meeting was no longer well concealed, the appellant proposed they begin meeting in his apartment.

The apartment in question was in view of the victim’s school. Again, the victim relented in order to continue receiving money and drugs. [ 10 ] In December of that year, the victim left her family home. After “couch-hopping” for a few days, the victim was in need of a place to live. At this point in the narrative, I choose to reproduce the victim’s own explanation of what transpired next: And it was really cold outside and I had already spent a couple nights outside and I didn’t know what else to do so I called him up and I was like I need to stay there basically. I have no place else to go.

And he picked me up and he gave me food and he gave me, and we went back to his apartment and he gave me a bunch of drugs and I don’t remember what happened that night but then from then on he wouldn’t allow me to have sex with a condom. […] So that on every time after that if I’m going to get any money at all basically I’d have to have sex without a condom. [transcript, pages 35-37] [ 11 ] The arrangement described above did not last long, perhaps “a day or two”, as the victim next moved in with the

individual who was still her boyfriend at the time of trial. It was made clear to her that life in the house she was entering was much better when marijuana was available. In order to contribute financially to her new living arrangements, the victim told her boyfriend that she was able to steal money for him: I told him that I could steal the money which really I meant I could go over and have sex with somebody else [the appellant] to get the money. [transcript, page 38] [ 12 ] By late December, the victim was considering attempting to disengage from her relationship with the appellant.

I try to stop seeing [the appellant] sometime in the end of December because I developed feelings for [my boyfriend]…So I tell him to […] or whatever and then he keeps pestering me and then because I have told, I have to come home with money and drugs, [my boyfriend] asked me once to steal because he thought that’s what I was doing and so I was put under pressure and I felt like I was, well, indebted to [my boyfriend] because he was giving me like a house and shelter so I felt pressured to continue, go back and have sex for money and so eventually I went. […] I told [my boyfriend] that I was going to go steal but in reality I went the see [the appellant] for sex to get money. [transcript, page 44] [ 13 ] The victim continued her visits to the appellant’s apartment, approximately three or four times each week.

For his part, the appellant began asking the victim to spend more time with him after their sexual encounters “because he didn’t want me to go” [transcript, page 45]. At some point, the victim lost her cellular telephone. It was then that she began initiating contact with the appellant, as opposed to their earlier routine. [ 14 ] In May of 2012, the victim turned seventeen. Around this time, she discovered she was pregnant. The appellant encouraged her to abort the pregnancy, which her family was also advising her to do.

She had an abortion on June 1, 2012. [ 15 ] Eventually, combatting depression, thoughts of suicide, and cutting herself, the victim confided to her boyfriend the details of her relationship with the appellant. Her boyfriend’s immediate inclination was to visit serious harm upon the appellant.

To avoid this, the victim decided upon the following course of action: And I came up with the plan of charging [the appellant] rather than doing what [my boyfriend] wanted to do because I didn’t want [my boyfriend] to [throw] his life away for my stupidity. [transcript, pages 56-57] [ 16 ] The victim’s next step was to speak with a school guidance counsellor, who involved the police. At the conclusion of her first interview with a police officer at the RCMP detachment in Moncton, New Brunswick, the officer concluded no criminal act had been committed, as the sexual relationship had been consensual.

Subsequent interviews, with the victim providing more detailed information, obviously led the authorities to reach a different conclusion.

The appellant was eventually charged, tried, and convicted. [ 17 ] I pause to note the following additional salient points, gleaned from the testimony of the victim on both direct and cross-examination: at no time did the appellant force himself upon her, although there were sexual acts the two engaged in to which the victim was a reluctant participant, including one instance of anal intercourse and at one point the involvement of a third person in their sexual activity; at no time was the appellant violent toward her; and, at no time did the appellant threaten her with physical violence.

However, there was evidence to the effect that the appellant threatened to disclose the existence of their relationship to the victim’s boyfriend if she did not comply with his requests. [ 18 ] The mindset of the victim was perhaps best illuminated near the end of her cross-examination when Crown counsel posed this question:

You were free to do what you wanted to, right? The victim responded with these words: I felt trapped, though. I didn’t feel like I had another option. [transcript, page 98] III. Issues [ 19 ] At the time the appellant filed his Notice of Appeal, he was without counsel and representing himself. The grounds of appeal related to the conviction as outlined in his Notice included the following: 1. Misapprehension of evidence; 2. Misapplied doctrine of reasonable doubt; 3. Refusing to declare a mistrial; 4. Assumed facts not in evidence; 5.

Application for fresh evidence regarding failure of the Crown to make full disclosure; and 6. Lawyer providing ineffective counsel. [ 20 ] Leave to appeal sentence was also sought, on the following grounds: 1. Sentence imposed was unduly long and harsh; 2. Sentence imposed was outside the appropriate range; and 3. Sentence imposed placed too much emphasis on deterrence. [ 21 ] The appellant filed a Supplementary Notice of Appeal, which set out more detailed complaints with respect to the trial judge’s decision, particularly with respect to allegations he had “groomed” the victim.

At the time of this second filing, he remained unrepresented. [ 22 ] Prior to the hearing of his appeal, the appellant was successful in securing a lawyer. The essence of the appeal from conviction actually placed before the Court can be distilled to this central argument: the trial judge erred in finding the appellant and the victim were engaged in an exploitative relationship, as there was insufficient evidence to establish the existence of such a relationship beyond a reasonable doubt.

In the event the Court was not persuaded by the appellant’s arguments in support of this contention, he sought leave to appeal his sentence on the sole ground that it was “excessive considering all of the circumstances”. IV. Law and Analysis

A. Legislative Provisions [ 23 ] As a logical starting point, it is useful to set out the relevant provisions of the Criminal Code : 153.

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

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

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

(1.1) Every person who commits an offence under subsection (1) (

a) is guilty of an indictable offence and is liable to imprisonment for a term of not more than 10 years and to a minimum punishment of imprisonment for a term of one year; or (

b) is guilty of an offence punishable on

summary conviction and is liable to imprisonment for a term of not more than 18 months and to a minimum punishment of imprisonment for a term of 90 days.

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

a) the age of the young person; (

b) the age difference between the person and the young person; 153.

(1) Commet une infraction toute personne qui est en situation d’autorité ou de confiance vis-à-vis d’un adolescent, à l’égard de laquelle l’adolescent est en situation de dépendance ou qui est dans une relation où elle exploite l’adolescent et qui, selon le cas :

a) à des fins d’ordre sexuel, touche, directement ou indirectement, avec une

partie de son corps ou avec un objet, une

partie du corps de l’adolescent;

b) à des fins d’ordre sexuel, invite, engage ou incite un adolescent à la toucher, à se toucher ou à toucher un tiers, directement ou indirectement, avec une

partie du corps ou avec un objet.

(1.1) Quiconque commet l’infraction visée au paragraphe (1) est coupable :

a) soit d’un acte criminel passible d’un emprisonnement maximal de dix ans, la peine minimale étant de un an;

b) soit d’une infraction punissable sur déclaration de culpabilité par procédure

sommaire et passible d’un emprisonnement maximal de dix-huit mois, la peine minimale étant de quatre-vingt-dix jours. 1.2) Le juge peut déduire de la nature de la relation entre la personne et l’adolescent et des circonstances qui l’entourent, notamment des éléments ci-après, que celle-ci est dans une relation où elle exploite l’adolescent :

a) l’âge de l’adolescent;

b) la différence d’âge entre la personne et l’adolescent;

(

c) the evolution of the relationship; and (

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

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

c) l’évolution de leur relation;

d) l’emprise ou l’influence de la personne sur l’adolescent.

(2) Pour l’application du présent article, « adolescent » s’entend d’une personne âgée de seize ans au moins mais de moins de dix-huit ans. B. Credibility [ 24 ] As noted above, the victim testified at some length. The appellant exercised his right not to testify. As such, the victim’s testimony was uncontradicted. The trial judge’s assessment of her testimony was clear and definitive: I have no reason to disbelieve the complainant, as I said, her evidence is uncontradicted. I believe her evidence which is beyond a reasonable doubt.

I have found her to be credible, found her to be truthful and no motive to fabricate or embellish her testimony. So having so found, the only issue […] is whether the accused was in a relationship exploitative of the complainant. C. Live Issues on Appeal [ 25 ] Certain elements of the offence are unchallenged on appeal. The victim was clearly a “young person” within the meaning of s. 153 of the Code . She was sixteen years of age at the time her relationship with the accused began, and seventeen years of age when the relationship ended.

Similarly, there is no issue with respect to the sexual nature of the relationship. The sole element of the offence clearly in issue at the trial, and again on appeal, is whether the relationship was “exploitative”. D. Relevant Jurisprudence – R. v. Anderson [ 26 ] With respect to cases involving s.153 and allegations of exploitative relationships (as opposed to cases involving positions of trust, positions of authority, or relationships of dependency), the jurisprudential landscape at the appellate level is virtually barren. One notable exception, relied upon extensively by the trial judge, is R. v.

Anderson , 2009 PECA 4 , [2009] P.E.I.J. No. 7 (QL) . As this appeal is a matter of first impression for our Court, no cases of precedential significance are available within New Brunswick law. Like the trial judge, I will refer at some length to the decision of McQuaid J.A. in Anderson . [ 27 ] The facts of the Anderson case are markedly different from the present appeal; its importance lies in its thorough analysis of the law on point. I will, therefore, only briefly outline the factual background. [ 28 ] Ms. Anderson served as an assistant coach for the complainant’s soccer team from May to October, 2005.

Anderson’s younger sister was also on the team, and was a close friend of the complainant. As a result, Anderson and the complainant were well acquainted with one another. It was during this time that the complainant’s parents became concerned over the amount of contact Ms. Anderson and their daughter were having, as it seemed inappropriate given their respective ages and roles. Their concerns were heightened when the complainant’s mother discovered a series of e-mails between her daughter and Ms. Anderson.

Complaints were made, and a number of investigations were undertaken: the Recreation Department of the municipality which offered the soccer program, the local police, and two by the Canadian Soccer Association. The essence of the conclusions reached was similar: no real wrongdoing, and certainly nothing warranting criminal charges, had occurred.

[ 29 ] In the aftermath of these events, Ms. Anderson attempted to end contact with the complainant, although the complainant was persistent in her efforts to maintain their friendship. Ms. Anderson changed her cellular telephone number. She made it abundantly clear to the complainant she did not wish to continue to communicate. Ms. Anderson went so far as to retain a lawyer, who sent a letter to the complainant requesting that all attempts at contact cease. [ 30 ] From March to September of 2006, the two had no contact. In September, however, the complainant was successful in reaching Ms. Anderson by phone.

Their relationship resumed at this point, and regular contact continued. Their respective characterizations of the relationship which evolved stand in stark contrast. Ms. Anderson saw it as a friendship, the complainant as romantic. The complainant would eventually state the two had engaged in sexual relations, allegations Ms. Anderson strenuously denied. Again, the police became involved, which led to criminal charges and subsequent convictions.

The allegations of potentially criminal behaviour on the part of Anderson related to a period of time which commenced one full year or more after her tenure as one of the complainant’s soccer coaches ended. [ 31 ] On appeal, the Prince Edward Island Court of Appeal quashed the convictions and entered acquittals.

The Court determined the Crown had not met its burden of proving beyond a reasonable doubt an exploitative relationship existed, nor had it proved beyond a reasonable doubt sexual activity had taken place. [ 32 ] As is readily apparent, Anderson differs dramatically from the case at bar in several material respects. It remains, however, one of the few appellate level decisions in Canada which explores the notion of an “exploitative relationship” involving a young person.

Following an extensive review of the record and the applicable law, McQuaid J.A. stated as follows: Given that the term “exploitative” is not defined in the Criminal Code assistance in determining the meaning may be sought from the dictionary meaning. Black’s Law Dictionary 8 th ed. defines “exploitation” as the act of taking unfair advantage of another for one’s own benefit. Based on this dictionary meaning an exploitative relationship is one where the accused takes unfair advantage of the young person for the accused’s own benefit.

The dictionary meaning of “exploitative” may not be sufficient in itself to ascertain the type of relationship Parliament intended to include when it made the amendment to s. 153 in 2005. The

section sets out certain relationships between an accused and a young person more than 14 years old and less than 18 years old (presently 16 and 18) which have been deemed by Parliament to be special such that sexual conduct with the young person within that relationship is absolutely prohibited. I agree with the reasoning in R. v. Galbraith that the scope of the meaning of an exploitative relationship should be determined to some extent by the scope of the other types of relationships set forth in the section. Additional principles of statutory

interpretation direct, however, that by the addition of this type of relationship Parliament intended to include a relationship which was not previously included within those that came before. The rules of statutory

interpretation also direct the court to assume that Parliament did not intend to repeat what was already in the

section but only in different words. Furthermore, the court or a judge is entitled to assume that Parliament had some specific purpose in mind when it expanded the special types of relationships where sexual contact with the young person is prohibited. In the cases which I have noted, courts have considered the characteristics of the relationships of trust, authority and dependency which preceded that of “exploitative” in this special class of relationships.

In defining or describing these other types of relationships, courts have been consistent in holding there must be a power imbalance in the relationship that places the young person in a vulnerable situation thereby rendering meaningless any consent he or she may give to sexual activity. Therefore, a relationship exploitative of the young person appears to have been included in this special class of relationships with the intention of adding to the

section a relationship where there was a power imbalance in favour of an accused person but not a power imbalance that would arise from a relationship where the accused was in a position of trust or authority or a relationship where the young person was in a position of dependency. Whether or not there was a power imbalance is to be determined from all the circumstances of the relationship and the trial judge may infer it from the particular circumstances set forth in s. [153](1.2) of the Code . The first three of these circumstances were set forth by the Supreme Court of Canada in R. v.

Audet, supra at para. 38 to assist in the determination as to whether an accused was in a position of trust or authority vis-à-vis the young person. Of note is the addition of the fourth factor, “the degree of control or influence by the accused over the young person.” This is a circumstance consistent with the elements the courts have found in the past to have been necessary when the relationship is alleged to have been one based on trust or authority.

The inclusion of this as a circumstance upon which to base an inference that the relationship may have been exploitative of the young person is further indication of the importance of the requirement there be demonstrated a power imbalance between the accused and the young person.

Indeed in all the types of relationship referred to among that special class of relationship set forth in s. 153(1) , the courts have found that the nature of the relationship is such that the young person is the subject to the influence of the accused. This influence may be exerted simply by reason of the accused’s position of authority or trust and, as well, by placing the young person in one’s dependency.

I consider an exploitative relationship to exist where there is a power imbalance between the accused and the younger person in circumstances other than where the accused is in a position of trust or authority or circumstances where the young person has developed a reliance on the accused who has assumed a position of power over the young person.

The evidence must demonstrate or, it must be possible for the court to draw the inference from all the circumstances of the relationship and in particular those factors listed in s. 153(1.2) that the young person is, as a result of this power imbalance, vulnerable to the actions and conduct of the accused who is taking advantage of the young person for his or her own benefit. [paras 68-74] [ 33 ] The final paragraph penned by McQuaid J.A. in the above excerpt is particularly helpful, in that it provides a useful framework for a judicial assessment of whether a given fact situation meets the threshold of “exploitative relationship”.

The trial judge embraced it, and I adopt it as well. [ 34 ] For a more recent appellate level examination of this offence, which also cites Anderson , see R. v. Damaso , 2013 ABCA 79 , [2013] A.J. No. 140 (QL) . E. The Decision of the Trial Judge [ 35 ] The trial judge unquestionably turned his attention to the four factors enumerated in subsection 153(1.2). The first of these, the age of the victim, was easily ascertained, and therefore not an issue. [ 36 ] Second, the Court is invited to consider the age difference between accused and complainant.

On that point, the trial judge simply stated the difference was “significant in the circumstances of this case”. On appeal, counsel for the appellant maintained there was no evidence before the trial judge of her client’s age. Upon review, this piece of information does not appear to be anywhere in the record. How, then, did the trial judge conclude the age difference was significant? [ 37 ] The charges which eventually led to a conviction and subsequently this appeal were not the first faced by the appellant. A published case from the Newfoundland and Labrador Court of Appeal, R. v.

Murphy , 2011 NLCA 16 , [2011] N.J. No. 43 (QL) , discloses that on September 5, 2008, the appellant was forty-seven years old. However, there is nothing to suggest the trial judge in this matter took notice of that earlier decision. It would therefore seem likely the trial judge inferred the difference in age between the appellant and the victim was significant based on the judge’s visual impression of the appellant in the courtroom. [ 38 ] The appellant contends there is danger in allowing inference from appearance. In some situations, I would wholeheartedly agree. This is not one of those situations.

At the time the relationship started in September 2011, the appellant would have been approximately fifty years old, compared to a sixteen year old victim. At the time of trial in 2013, it follows he would have been two years older. I find no fault with a trial judge who sees a fifty-two year old accused person in the courtroom, and concludes he is significantly older than his sixteen or seventeen year old victim.

One may presume that a difference of almost thirty-five years is readily noticeable, without the trial judge engaging in any unreasonable leaps of speculation. [ 39 ] The third and fourth factors the trial judge considered together. I reproduce verbatim that pivotal segment of his decision: The next circumstantial factor is the evolution of the relationship. A complete review and assessment of the evidence that was before me reveals that there is evidence of influence and control exerted by the accused over the complainant.

The only reason for the sexual contact between the accused and the complainant was for the latter to obtain money and drugs from the accused providing a source of drugs to the complainant in the absence of which it is evident that there would have been no sexual contact. It was a relationship fostered by a manipulative action of the […] accused for his own benefit and nothing else. On the totality of the evidence, I am convinced beyond a reasonable doubt that there was such an exploitative relationship.

In the present case, the accused much older than the complainant groomed the relationship with the complainant, a high school student, a relationship that he instigated near her school and after school luring her with illegal drugs, alcohol and money to perform sexual favors for him. The

evidence is clear that he knew her to be trying to cope with a drug addiction. There was a situation that parliament intended to cover when they added this exploitative relationship to-to subsection 153(1) of the Criminal Code , this had to be, otherwise I cannot think of any other. Once he had her under his grip, it is immaterial who and who called who more often. Drugs are illegal for good reason and it is illegal to provide alcoholic beverages to an underage person.

Using a young person within the age contemplated by subsection 153(1) by providing her with drugs, alcohol and money in return for sexual favours, more particularly one suffering from drug addiction, amounts to a relationship which is exploitative to the young person. I have no hesitation and I’m satisfied beyond a reasonable doubt that the accused is guilty as charged on the first count. F. Applying the Law to the Facts of This Case [ 40 ] While the above analysis may not have been extensive, in my opinion the trial judge applied the correct law to the facts of this case and arrived at the proper conclusion.

I will elaborate briefly. [ 41 ] The appellant took notice of his victim as she was waiting for a city bus outside her high school. He approached her. He initiated their first conversation. He boarded a bus he did not need to take for the sole purpose of interacting with his victim. The appellant was able to ascertain quite quickly key facts about his victim’s circumstances and situation. She was a high school student. She was not only a drug user, but an addict. She had recently been in a drug rehabilitation program.

He could see, quite plainly, his victim’s considerable weaknesses. [ 42 ] What did the appellant do with this information? He solicited his victim’s telephone number, for cash. Not long after their first encounter, the appellant contacted his victim and convinced her to meet him in a sheltered yet public outdoor space. He provided her with drugs and/or money, asking for and receiving nothing in return. During their next encounter, again initiated by him, drugs and/or money were again given to the victim, this time with the request (unsuccessful) that she perform oral sex on him.

The appellant, at that point, had a sixteen year old drug addict willing to meet him, on multiple occasions, alone, in a reasonably secluded place. [ 43 ] The next stage in the evolution of the relationship saw the appellant continuing to arrange encounters with his victim, but withholding the drugs/money unless she agreed to provide him with oral sex, while he wore a condom, which she did. After following this pattern for a period of time, the appellant pushed the relationship a step further, and demanded sexual intercourse. His victim relented, and he continued the flow of drugs and/or money.

The appellant further escalated the situation by insisting they meet in his apartment, and later by insisting they discontinue the use of condoms and have unprotected sex. [ 44 ] I think it is clear the appellant systematically built a relationship with the victim which identified her vulnerabilities, cultivated those weaknesses, and allowed him to exploit the victim for his own benefit.

If this scenario does not fit with Parliament’s intent when it added the “exploitative relationship” provision to s. 153 of the Code , it is difficult to comprehend how high the bar is set. [ 45 ] The appellant makes the following arguments in contending these facts do not constitute exploitation: 1. The victim’s addiction should not play a role in the analysis; 2. The appellant didn’t introduce her to drug use; 3. The appellant was forthcoming with respect to his expectations: drugs for sex and sex for drugs, and she was willing to do so; 4. The victim wasn’t pressured into having sex; 5.

The victim continued going back to the appellant; 6. The victim had choices, and wasn’t forced into the relationship;

7. The relationship was contractual in nature, as each had something to gain; 8. There was no power imbalance, these parties were independent and equal; and 9. Any “exploitative relationship” had to exist before sex took place, and had to exist independently. [ 46 ] With respect, I am not persuaded by any of these assertions. Most have been adequately addressed by the points already made, but I will touch upon three of these arguments in particular. G.

Consent – The Willing Participant [ 47 ] The appellant argued the victim was a willing participant in any sexual activities the two had engaged in, and buttressed his position by pointing out the victim had initiated much of their contact. This argument, however, loses any legal relevance when subjected to s. 150.1(1) of the Code , which provides: Subject to subsections (2) to (2.2), when an accused is charged with an offence under

section 151 or 152 or subsection 153(1) , 160(3) or 173(2) or is charged with an offence under

section 271, 272 or 273 in respect of a complainant under the age of 16 years, it is not a defence that the complainant consented to the activity that forms the subject-matter of the charge.

Sous réserve des paragraphes (2) à (2.2), lorsqu’une personne est accusée d’une infraction prévue aux articles 151 ou 152 ou aux paragraphes 153(1) , 160(3) ou 173(2) ou d’une infraction prévue aux articles 271, 272 ou 273 à l’égard d’un plaignant âgé de moins de seize ans, ne constitue pas un moyen de défense le fait que le plaignant a consenti aux actes à l’origine de l’accusation. [ 48 ] Therefore, once there has been a judicial determination of the existence of an exploitative relationship, the victim in this case could not legally consent to any form of sexual contact with the appellant. H.

Power Imbalance [ 49 ] On one side of the scale, we have a man in his fifties with considerable life experience and access to money and drugs, who lives in his own apartment. On the other, we have a sixteen-year-old unemployed high school student who initially lived with her parents, subsequently had no home, and then lived with a boyfriend, is addicted to drugs, has unsuccessfully undergone an intensive drug rehabilitation program, has no meaningful access to money and therefore no access to drugs, and has self-esteem and mental health issues.

Given these parameters, I am comfortable in concluding a power imbalance did exist in this relationship, and that the scales were tipped heavily in favour of the appellant. I. Exploitative Relationship Independent of Sexual Activity [ 50 ] First of all, the relationship began in the absence of sexual activity, although the appellant’s intentions in this regard were abundantly clear, and the relationship quickly evolved to that point. The appellant identified and exploited the victim’s drug addiction and her need to fuel or feed that addiction.

He found a vulnerable person, and aggressively and repeatedly took advantage of that vulnerability for his own purposes. This fact scenario, given the circumstances of the two players, is what constituted an exploitative relationship. The fact that the appellant’s objective was sexual in nature is of no moment.

J. Disposition of the Appeal [51] In my opinion, the appellant has not met the burden of establishing reversible error on the part of the trial judge. Iwould dismiss the appeal. K. Sentence Appeal [52] In the alternative, the appellant seeks leave of the Court to appeal the sentence imposed. The position advanced bythe appellant is straightforward: the sentence of six years was excessive considering all of the circumstances. L. Standard of Review [53] The touchstone for this Court with respect to sentence appeals is reiterated in the decision of Drapeau C.J.N.B.writing in Steeves v.

R., 2010 NBCA 57, 360 N.B.R. (2d) 88: I begin by focusing, once again, on the standard of appellate review in sentencing matters and reiterating the elements of that standardthat point to deference for the outcome in first instance.

I do so principally for the following reasons: (1) to reemphasize that correctiveaction on appeal in such matters is, as a practical matter, quite rare, a state of affairs that flows naturally from the very limited openingfor principled appellate intervention; and (2) to provide guidance in relation to the nature of the complaints that might open the door tosuch intervention. […] In sum, a court of appeal is not at liberty to substitute its view of fitness for that of the sentencing judge unless the sentence imposed isthe product of either an error of law or an error in principle, or unless it is clearly unreasonable (see R. v.

Shropshire, (SCC), [1995] 4 S.C.R. 227, [1995] S.C.J. No. 52 (QL), at paras. 46-48; R. v. Solowan, [2008] 3 S.C.R. 309, [2008] S.C.J. No. 55 (QL),2008 SCC 62, at para. 16; R. v. L.M., [2008] 2 S.C.R. 163, [2008] S.C.J. No. 31 (QL), 2008 SCC 31, at paras. 14-15; and R. v. C.A.C.(2009), 349 N.B.R. (2d) 265, [2009] N.B.J. No. 342 (QL), 2009 NBCA 68 (Bell, J.A. for the Court, at para. 4)).

If the sentence at issueis the result of reversible error, the court of appeal bears the burden of prescribing the punishment that it considers fit in thecircumstances. [paras. 19, 25] [54] In order for an appellant to be successful in a sentence appeal, he or she must establish the presence of one ormore of the above noted criteria: an error of law, an error in principle, or that the sentence is clearly unreasonable. In my opinion, theappellant has not made out an arguable case for any one of these. I would therefore not grant leave to appeal the sentence. V.

Conclusion and Disposition [55] Having found no scope for appellate intervention on either the conviction or the sentence imposed, I woulddismiss both the appeal and the application for leave to appeal. ____________________________

BRADLEY V. GREEN, J.A. I CONCUR ____________________________ J.C. MARC RICHARD, J.A. ____________________________ B. RICHARD BELL, J.A.