R. v. Martin, 2011 ONCJ 401

WARNING The court hearing this matter directs that the following notice should be attached to the file: A non-publication and non-broadcast order in this proceeding has been issued under subsection 486.4(1) of the Criminal Code . This subsection and subsection 486.6(1) of the Criminal Code, which is concerned with the consequence of failure to comply with an order made under subsection 486.4(1) , read as follows: 486.4 Order restricting publication — sexual offences. —

(1) Subject to subsection (2), the presiding judge or justice may make an order directing that any information that could identify the complainant or a witness shall not be published in any document or broadcast or transmitted in any way, in proceedings in respect of (

a) any of the following offences: (

i) an offence under

section 151, 152, 153, 153.1, 155, 159, 160, 162, 163.1, 170, 171, 172, 172.1, 173, 210, 211, 212, 213, 271, 272, 273, 279.01, 279.02, 279.03, 346 or 347, (ii) an offence under

section 144 (rape), 145 (attempt to commit rape), 149 (indecent assault on female), 156 (indecent assault on male) or 245 (common assault) or subsection 246(1) (assault with intent) of the Criminal Code ,

chapter C-34 of the Revised Statutes of Canada, 1970, as it read immediately before January 4, 1983, or (iii) an offence under subsection 146(1) (sexual intercourse with a female under 14) or (2) (sexual intercourse with a female between 14 and 16) or

section 151 (seduction of a female between 16 and 18), 153 (sexual intercourse with step-daughter), 155 (buggery or bestiality), 157 (gross indecency), 166 (parent or guardian procuring defilement) or 167 (householder permitting defilement) of the Criminal Code ,

chapter C-34 of the Revised Statutes of Canada, 1970, as it read immediately before January 1, 1988; or (

b) two or more offences being dealt with in the same proceeding, at least one of which is an offence referred to in any of subparagraphs ( a )(

i) to (iii).

(2) Mandatory order on application. — In proceedings in respect of the offences referred to in paragraph (1)(

a) or ( b ), the presiding judge or justice shall (

a) at the first reasonable opportunity, inform any witness under the age of eighteen years and the complainant of the right to make an application for the order; and (

b) on application made by the complainant, the prosecutor or any such witness, make the order. . . . 486.6 Offence. —

(1) Every person who fails to comply with an order made under subsection 486.4(1) , (2) or (3) or 486.5(1) or (2) is guilty of an offence punishable on

summary conviction. COURT FILE No.: Peel 09 14934 DATE: 2011-06-29 Citation: R. v. Martin , 2011 ONCJ 401 ONTARIO COURT OF JUSTICE BETWEEN: HER MAJESTY THE QUEEN — AND — PETER MARTIN Before Justice Theo Wolder Heard on January 26, 27, March 23, 24, Reasons for Judgment released June 29, 2011 Paul Renwick ........................................................................................................... for the Crown

David Butt ......................................................................................... for the accused Peter Martin WOLDER J.: [ 1 ] Peter Martin stands charged that over an 18 month period last past and ending on June 26, 2009 at the City of Toronto, in the Province of Ontario, unlawfully did, being a person with whom Y.H., a young person, was in a relationship of dependency, did for a sexual purpose touch directly the body of Y.H., a young person, with a part of his body, to wit: his penis, contrary to

section 153 (

a) of the Criminal Code of Canada . [ 2 ] In this case there is no dispute that the accused, who was born on December 12, 1962 and the complainant, who was born on July […], 1991, started to live together shortly after the complainant turned 16. Shortly thereafter their relationship became intimate and they continued to have sexual relations up to June 26, 2009 when this charge arose. [ 3 ] The accused is about 29 ½ years older than the complainant.

There is no dispute that the sexual relationship between the accused and complainant took place while the complainant was 16 and 17 years of age and therefore a young person. [ 4 ] It is not unlawful for an older person to enter into a sexual relationship with a young person unless that relationship between the accused and the young person is one of the prohibited relationships set out in section 153(1) of the Criminal Code , namely: 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 [ 5 ] In this case it is alleged that an offence under section 153(1) has been committed on the grounds that Peter Martin was in a relationship of dependency with Y.H. from July 11, 2007 through to June 26, 2009. [ 6 ] The onus is upon the Crown to prove beyond a reasonable doubt that such a relationship of dependency existed during the time that the accused and complainant cohabited.

If the existence of a relationship of dependency is proven beyond a reasonable doubt then, based upon the admitted facts in this case, the offence pursuant to section 153(1) will have been proven. The Evidence Findings of fact [ 7 ] There is very little dispute in the evidence in this case. The evidence of the complainant is comprised of a video statement given by her on June 26, 2009, shortly after the accused was apprehended, and her viva voce evidence given on January 26, 2011.

In addition, this court heard from: the complainant’s father, G.H.; Linda Tseu, the accused’s estranged wife from whom he had been separated since February 2007; Frank McMonagle, secondary custom’s officer at Pearson International Airport on June 26, 2009; Ronald Martin, the accused’s father; the accused Peter Martin and David Feder, who was allowed to give expert evidence in this case. [ 8 ] Y.H.’s full legal name is Y.W.H.. She was born on July […], 1991. She immigrated to Canada with her family in 2000 at the age of 8.

She was identified as a gifted student and was admitted into a program for gifted students where she met the accused’s son Alexander when she was aged 12. She and Alexander became good friends by the time the complainant turned 13. At the time, Alexander lived with both his parents, the accused Peter Martin and his mother Linda Tseu. [ 9 ] Prior to the complainant turning 16 she visited regularly with Alexander at his parents’ home. As a result of such visits she became acquainted with the accused and shared many conversations with him. [ 10 ] The complainant is very intelligent and academically gifted.

While she enjoyed her friendship with Alexander, she became more interested in the accused because she found him to be a person with whom she could carry on more meaningful conversations. She found that the accused’s general knowledge, as well as the sensitive ways in which he parented his children, to be appealing to her. She therefore ended up spending more time engaging in “intelligent” conversations with the accused.

She found that she could have more profound discussions with Peter Martin than she could with his children. [ 11 ] Throughout this time, before she turned 16, the complainant lived at home with her father and step-mother. However, her relationship with her father and step-mother was strained. She felt that they were not acting like parents and that she was constrained by their attitudes and demeanour that she found to be stifling. [ 12 ] The degree of the complainant’s intelligence is evidenced by her having graduated from high school at the age of 16, at the top of her class.

She was the recipient of many scholarships. She thereafter attended and continues to attend the University of Toronto where she studies molecular biology. She is ambitious, goal driven, and hopes to obtain her master’s degree and then her doctorate degree. She eventually hopes to do research in her chosen field. There is little doubt that she possesses the intelligence and motivation to meet her academic ambitions.

[ 13 ] After the complainant turned 16 she decided that she would leave home. At that point she wanted to establish a relationship with the accused. The accused agreed to allow the complainant to stay with him at his home at that time. [ 14 ] At first the relationship was purely platonic. A few months later the accused and complainant attempted to have a sexual relationship. The attempt was not successful as the complainant found it to be painful and the accused did not persist. Eventually they made further attempts to develop a sexual relationship on a consensual basis and succeeded.

The sexual relationship continued from in or about the fall of 2007 through to June 2009, always on a consensual basis. [ 15 ] Early in 2009 the complainant wanted to travel to China to visit with her extended family members. She persuaded the accused to join her on that trip. They were scheduled to fly to China from Pearson International Airport on June 26, 2009 via Detroit and Tokyo. Since the flight was going through to the USA, the parties had to clear through Homeland Security at Pearson Airport on June 26th.

The customs and immigration officer on duty noted that the complainant was only 17 years of age and that she did not have the written permission of a parent to travel. He also noted the 29 ½ year age difference between the accused and complainant. he then detained the accused and called the Peel Regional Police to investigate. As a result, the complainant was immediately interviewed and provided a lengthy video statement to the Peel Regional Police, entered as Exhibit 1. [ 16 ] Shortly after the complainant left her home, the complainant’s father and step-mother found out that she had moved in with the accused.

They did not approve of this arrangement and as a result stopped talking to the complainant. As of June 26, 2009 the complainant’s relationship with her father and step-mother was still poor. Since that time they have reconciled and she enjoys a harmonious relationship with them. [ 17 ] When interviewed on June 26, 2009, and before she was made aware of the full legal repercussions facing the accused, she was fully aware of, and sensitive to the issues that were being raised as the result of her relationship with the accused who was 29 ½ years her senior.

She understood that with that age difference, the relationship could be questioned. She understood that such a relationship was not always right since someone her age could easily be exploited as a result of such a relationship.

She made it clear in her evidence, however, that while she understood the concept and risk of exploitation in a relationship with such a great difference in age, that she, in fact, was not being exploited in this relationship because she was the one that had chosen to enter into the relationship, she had control of the relationship, she was willing to end the relationship any time she chose, and it was she who wanted this relationship because, in part, it could provide her with future financial security.

Since the accused had been separated from his wife since Valentine’s Day 2007, before she started co-habiting with him, the complainant felt that she was not undermining any existing relationship that the accused then had. [ 18 ] Therefore, the complainant fully understood the risk of exploitation and even counselled the accused’s daughter, Emily, to avoid this type of relationship for that very purpose.

The complainant, however, was adamant that while she understood the concept and danger of exploitation, she was not then and had not ever been exploited in this relationship by the accused. [ 19 ] The accused’s children became aware that their father and the complainant were having an intimate relationship after the complainant and accused had been living together for four months. The relationship was only questioned at the airport because the complainant was under 18 and the customs officer asked to see her parents’ consent for her to travel with the accused.

The complainant was so self-assured at the time that she had not even considered that she would even need the consent of anyone for her to travel with the accused when she was 17 years of age. [ 20 ] At her evidence at trial given a year and a half later, the complainant remained consistent in her evidence that the relationship was of her choosing, was within her control and could and would have been ended by her at anytime she chose.

If she had been accepted to attend Yale or Harvard in the USA and the accused was not able or willing to come with her, the complainant claims that she would have left the relationship. I accept her evidence on this point. [ 21 ] While the complainant is highly intelligent, she did appear to suffer from stress or depression prior to her turning 16. According to the complainant’s evidence, as a result of her unhappiness at home and her perceived lack of family support she had engaged in acts of self-mutilation by cutting herself on her arm. By age 16 she had 500 noticeable scars on her arm.

After the complainant moved in with the accused, the accused became aware of her scarring and then learned about her depression and suicidal ideations. The accused learned that as an adolescent, the complainant had been in a psychiatric ward for five days. As a result, the accused persuaded the complainant to seek professional help to deal with her depression. She accepted his advice and did obtain professional help. As a result, she was placed on antidepressant medication on or about September 2008 which she still continues to take.

She claims to have had no problems with depression or self-mutilation since having been placed on anti-depression medication at age 17. Therefore, the complainant has not engaged in any such self-mutilating conduct since she started living with the accused. [ 22 ] The Crown has filed as Exhibit #3 copies of emails exchanged between the complainant and the accused between January 25, 2008 and June 25, 2009.

The emails disclose that the complainant and accused from time to time participated in BDSM (generally defined as being a continuum of erotic practice and expression involving the consensual use of restraint, intense sensory stimulation, and fantasy power role-play).

In such emails the complainant, at times, referred to the accused as “Daddy” and referred to herself as his “little girl”. [ 23 ] The Crown submits that it can be concluded from the fact that the complainant's psychological issues all stop when the complainant moves in with the accused and from the fact that in some of the e-mails the accused talks about punishing, protecting and rescuing, that complainant was at least emotionally dependent upon the accused.

The crown argues that the evidence demonstrates that the complainant was emotionally insecure, socially awkward and had psychological issues that the accused exploited. [ 24 ] After having reviewed the various emails, I am satisfied that there is no suggestion that the accused treated the complainant as his “daughter”. There is absolutely no evidence of a parent/child type of relationship between the accused and complainant.

In the context of all the emails, it appears that both parties did enjoy and participate in this type of sexual behaviour, usually initiated by the complainant and responded to by the accused, but not to the point of persistence. I am not at all satisfied that the language by the accused in the various e-mails is anything more than a reflection of his participation in the BDSM role-playing.

Therefore I am not satisfied that the language used in the various e-mails suggest that the accused was in any way exploiting thecomplainant in the manner in which they interacted. [25] I am satisfied that the emails, as a whole, clearly demonstrate that the accused was playing along with this type of sexualfantasy initiated by the complainant but did not pursue this type of sexual fantasy persistently. I find that this type of sexual behaviourwas therefore part of the usual sexual lifestyle that the complainant and accused had developed.

I do not find that such sexual behaviourwas at all exploitative of the complainant or intended to be exploitative of the complainant on the part of the accused. [26] Furthermore, I am not satisfied that complainant's following the accused advice to seek professional help to address herprevious self mutilating behaviour, resulting in her being prescribed antidepressant medication, proves that the complainant wasemotionally dependent on Peter Martin.

I find that it was the depth of Peter Martins knowledge and understanding that attracted her inthe first place to him and that it was the level of respect that she had for him that persuaded her to accept and follow his advice. Therefore, I find that the complainant always possessed the ability to either to accept or to reject the accused's advice. I thereforeconclude that her decision to follow his advice did not flow from any power imbalance but rather from the level of respect that she hadfor the accused's judgment on that issue. Analysis of the Law [27] Section 153(1.2) provides:

(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 andcircumstances of the relationship, including (

a) the age of the young person; (

b) the age difference between the person and the young person; (

c) the evolution of the relationship; and (

d) the degree of control or influence by the person over the young person. [28] At the time of the charges against the accused, a “young person” was defined as a person age 16 or more but under theage of 18. The complainant was therefore a young person at the relevant time. [29] R. v. Anderson 2009 PECA 4 , [2009] P.E.I.J. No 7, 241 C.C.C. (3d) 432, a decision of Prince Edward IslandCourt of Appeal, provides an excellent analysis of the law in the context where the relationship between the accused and complainant inthat particular case was alleged to be exploitative of the young person. [30] In R. v.

Galbraith (ON CA), [1994] O.J.

No. 808, 90 C.C.C. (3d) 76, the Ontario Court of Appealconcluded that a relationship of dependency was one where there was de facto reliance by the young person on the accused who hadassumed a position in a relationship to the young person which created a power imbalance in favour of the accused. [31] At paragraph 18 of that judgment, Finlayson J., speaking for the court, stated: In my view, "relationship of dependency", the third prohibited relationship in s.153 of the Code, must be looked at with reference to theother two prohibited relationships, namely positions of trust or authority.

My first thought was that "dependency" was the inverse of theother two relationships and described the position of the person subject to feelings of trust or the object of the authority. On reflection,however, it seems to me that Parliament, by using the word "dependency", must have added a category which is ejusdem generis to thefirst two. That is to say, something that was an extension of the first two categories which have become somewhat circumscribed bytraditional legal definition.

In my view, what is contemplated by a relationship of dependency is a relationship in which there is a defacto reliance by a young person on a figure who has assumed a position of power, such as trust or authority, over the young personalong non-traditional lines. Sexual relations are prohibited in relationships of trust, authority and dependency because the nature of therelationship makes the young person particularly vulnerable to the influence of the other person.

Under these circumstances it has beendetermined that any sexual activity, even where it is consensual, involves taking advantage of a person in need of protection and meritssociety's condemnation.

Because a relationship of dependency is a de facto one which can only be determined after due consideration ofall the circumstances, I believe that the jurisprudence will have to develop on a case-by-case basis to retain the flexibility that the phrase"relationship of dependency" was intended to provide. [32] In applying section 153(1.2) there is no dispute that the age of the young person at the relevant time was 16 and 17 years,and that the age difference between the accused and the young person was 29 ½ years. [33] The two factors that need to be examined in the context of this case are paragraphs (

c) and (d), namely the evolution ofthe relationship and the degree of control or influence of the person over the young person. [34] I have found that, based on the evidence, the relationship evolved from the complainant’s friendship with the accused’sson over an approximately three year period when the complainant was between the age of 12 and 15. During these years, while thecomplainant's friendship with the accused’s son was continuing, the complainant gradually became more interested in the accused,

because she had difficulty relating intellectually with peers her own age. She found that over time, she was able to have deeper, more philosophical and increasingly more meaningful discussions with the accused than with Alexander or with his younger sister Emily.

As a result, she gradually started taking an increasingly greater interest in the accused while she was maintaining her friendship with Alexander during that three year period. [ 35 ] It was only after the complainant turned 16 and that she decided that she could no longer continue to live with her father and step-mother that she decided that she wanted to live with the accused and enter into a domestic type of relationship with him. I find that this is something that the complainant herself decided. She is the one that proposed this arrangement to the accused.

While the accused did not outright reject the complainant's suggestion, he and the complainant discussed the potential problems with such a relationship, including the negative perceptions that would arise in the community from their cohabitation. They went as far as to consider the legal implications of entering into such a relationship. The accused, being a civil employee with the Toronto Police Service, was sensitive to such perceptions and the potential legal consequences.

After having discussed and researched the implications and legal consequences openly, they mutually concluded that it was not unlawful them to enter into such a relationship. [ 36 ] The accused did in fact become physically attracted to the complainant. Shortly after their cohabitation commenced, the accused, with the consent of the complainant, attempted to extend it to a sexual relationship. When he found that his attempt to do so was painful for the complainant, he did not persist. He persuaded the complainant that they should delay further efforts to engage in sexual intercourse.

Several months later, through further efforts, they were able to engage in full sexual intercourse. [ 37 ] The defence has presented the expert testimony of David Feder and his report of January 18, 2011. It is his opinion that the relationship between the accused and complainant evolved as a normal healthy relationship. While I have admitted the report of David Feder, I do not find that it contains anything that this court cannot conclude from having heard all the evidence from the various witnesses.

Therefore, while I have allowed the report to be admitted into evidence, I find that I do not need Mr Feder's expert opinion in order to arrive at my own conclusions in this case. I therefore give his report very little weight. [ 38 ] Having said that, I am satisfied that the relationship between the complainant and the accused evolved in such a way that it was not exploitative of the complainant. I find that in the unique circumstances of this case, there was no power imbalance between the accused and the complainant.

I further find that as a result of circumstances in the complainant’s life and, particularly, the breakdown in her relationship with her parents and her desire to live independent from her parents, combined with the admiration and respect that she had developed for the accused prior to her turning 16, it was the complainant who initiated the suggestion that she be permitted to co-habit with the accused. After considerable discussion and reflection, the accused agreed.

I find however that throughout, the accused exercised no control over the complainant, in the sense that the complainant at all times retained the ability to choose her future freely without the influence or control of the accused. [ 39 ] I therefore find that throughout, the complainant knew exactly what she wanted to accomplish and chose to pursue her career objectives in the context of having a relationship with the accused.

I further find that the complainant was so focused on achieving her career objectives that if she had to make a choice between the accused and advancing her academic and career objectives, she had the ability to and would have chosen her academic and career objectives over her relationship with the accused. In that sense, I find that the accused exercised only a very limited degree of control or influence over the complainant as a result of what might be expected from their apparent compatible personalities and the respect that she had for the accused's knowledge and understanding.

I have concluded, however, that such limited degree of control did not result in a power imbalance between them. [ 40 ] The onus is upon the Crown to prove beyond a reasonable doubt that the complainant at the time was in a relationship of dependency with the accused. Based on all the evidence in this case, I find that this has not been proven beyond a reasonable doubt.

I find that nothing in the relationship between the accused and the complainant suggests in any way that the accused’s relationship was exploitative of the complainant or, in anyway, that the accused compelled the complainant to make decisions contrary to her freely expressed will. [ 41 ] For all these reasons I find the accused not guilty. Released: June 29, 2011 Signed: “Justice T. Wolder”