HIS MAJESTY THE KING - v. -, 2022 SKKB 225

REDACTED VERSION KING’S BENCH FOR SASKATCHEWAN Citation: 2022 SKKB 225 Date: 2022 10 14 Docket: CRM-PA-00004-2022 Judicial Centre: Prince Albert ___________________________________________________________________________ BETWEEN: HIS MAJESTY THE KING - and - C.B.L. PUBLICATION RESTRICTION: By court order made under s. 486.4(1) of the Criminal Code , information that may identify the person described in this judgment as the complainant may not be published, broadcasted or transmitted in any manner. Counsel: Kristen L.

Hubbard for the Crown Angus McLean for the accused ___________________________________________________________________________ JUDGMENT ELSON J. October 14, 2022 ___________________________________________________________________________

Preamble [ 1 ] On October 6, 2022, the Court pronounced its verdict in this matter. At that time, I set out the reasons for the verdict by reading several passages from a draft of this judgment. In doing so, I advised counsel and the accused that the verdict would be more completely reflected in a published judgment that still required formatting, editing and redactions. This is that published judgment. Introduction [ 2 ] On June 17, 2020, the accused, then 52 years of age, engaged in multiple acts of sexual intercourse with the complainant, his then 16-year-old niece.

This is not disputed. [ 3 ] In the indictment before the Court, the accused faces two charges arising from the interaction with the complainant. In Count 1, the Crown alleges that the accused committed a sexual assault on the complainant, contrary to s. 271 of the Criminal Code , RSC 1985, c C-46 . In Count 2, the Crown alleges that the accused, being in a position of trust or authority towards the complainant, touched her for a sexual purpose, thereby committing the offence of sexual exploitation, contrary to s. 153(1) (

a) of the Criminal Code . [ 4 ] While the sexual activity between the accused and the complainant is not disputed, there are issues surrounding the activity that are disputed. For the sexual assault charge, there is first the question whether the Crown has proved beyond a reasonable doubt that the complainant did not consent to the sexual activity.

If she did not consent, there is the related question whether the Crown has proved, again beyond a reasonable doubt, that the accused was aware, as defined by law, that the complainant did not consent. [ 5 ] For the sexual exploitation charge, the presence or absence of consent is irrelevant. The central question is whether the Crown has proved beyond a reasonable doubt that the accused’s relationship with the young complainant was such that the undisputed sexual activity amounted to sexual exploitation.

Given the wording of the indictment for the second count, the Crown’s burden is to prove that the accused was in a position of trust or authority towards the complainant when the sexual activity occurred. The Indictment [ 6 ] The formal counts in the indictment, slightly amended at the outset of trial, allege that on or about June 17, 2020, at Ahtahkakoop Cree Nation [Ahtahkakoop], the accused did:

COUNT 1: Commit a sexual assault on [the complainant] contrary to

Section 271 of the Criminal Code. COUNT 2: Being in a position of trust or authority towards [the complainant] did for a sexual purpose, touch directly the body of [thecomplainant], a young person with a part of his body to wit: his penis and hands contrary to Section 153(1)(

a) of the Criminal Code. It should be noted that the amendment to the indictment pertained to Count 2 after I raised an issue relating to the relevant provision ofthe Criminal Code. At the end of that discussion, Crown counsel agreed that the count should be amended to reflect s. 153(1)(

a) of theCriminal Code. In this way, the charge is distinguished from an offence under s. 153(1)(

b) of the Criminal Code. The Law [7] In the circumstances of this case, I think it is advisable for me to depart from my usual practice of referencingthe evidence at trial before discussing the applicable law. In my view, a discussion of the law at the outset will better assist inunderstanding its application to this case. Proof Beyond a Reasonable Doubt [8] In the introduction to this judgment, I referenced the Crown’s burden to prove its case beyond a reasonabledoubt. This is a high standard of proof, undeniably greater than that expected in civil actions.

In civil proceedings, where one or other ofthe parties bears the burden of proof, the standard by which that burden is met is known as the preponderance of the evidence or thebalance of probabilities. By this standard, the burden is met where a court is satisfied that a particular event or circumstance is morelikely than not to have occurred. [9] The standard of proof in criminal proceedings engages a higher threshold.

It requires the Crown to provebeyond a reasonable doubt each essential element of a charged offence. [10] The requirement of proof beyond a reasonable doubt is closely tied to the presumption of innocence, a conceptthat is fundamental to common law systems of criminal justice. This concept, and the corresponding standard of proof, demands that anaccused person shall have the benefit of any reasonable doubt in proving the essential elements of a charge in an information orindictment.

Whether such a doubt exists in a particular case may arise from the absence of evidence on a point, or from the presence ofadmissible evidence, including any defence evidence that may be presented. [11] To understand the concept of reasonable doubt as it is applied in Canadian law, it is helpful to review the twoprincipal authorities on the subject from the Supreme Court of Canada. The first authority is R v Lifchus, (SCC), [1997]3 SCR 320 [Lifchus].

At paragraph 39 of Lifchus, the Court set out the following definition, expressed in the form of a draft instructionfor trial judges to give to a jury: [39] … A reasonable doubt is not an imaginary or frivolous doubt. It must not be based upon sympathy or prejudice. Rather, it is based on reasonand common sense. It is logically derived from the evidence or absence of evidence. Even if you believe the accused is probably guilty or likely guilty, that is not sufficient.

In those circumstances you must give the benefitof the doubt to the accused and acquit because the Crown has failed to satisfy you of the guilt of the accused beyond a reasonable doubt. On the other hand you must remember that it is virtually impossible to prove anything to an absolute certainty and the Crown is notrequired to do so. Such a standard of proof is impossibly high.

In short if, based upon the evidence before the court, you are sure that the accused committed the offence you should convict since thisdemonstrates that you are satisfied of his guilt beyond a reasonable doubt. [12] The second authority is R v Starr, 2000 SCC 40, [2000] 2 SCR 144 [Starr]. In Starr, the majority of the Courtconcluded that the trier of fact must be instructed on the distinction between the criminal standard of proof beyond a reasonable doubtand the civil standard of proof on a balance of probabilities or the preponderance of the evidence.

In this regard, Iacobucci J. wrote thefollowing at paragraph 242: [242] In my view, an effective way to define the reasonable doubt standard for a jury is to explain that it falls much closer to absolutecertainty than to proof on a balance of probabilities. As stated in Lifchus, a trial judge is required to explain that something less thanabsolute certainty is required, and that something more than probable guilt is required, in order for the jury to convict. Both of thesealternative standards are fairly and easily comprehensible.

It will be of great assistance for a jury if the trial judge situates the reasonabledoubt standard appropriately between these two standards. The additional instructions to the jury set out in Lifchus as to the meaning andappropriate manner of determining the existence of a reasonable doubt serve to define the space between absolute certainty and proofbeyond a reasonable doubt. Sexual Exploitation – Elements of the Offence [13] The second count in the indictment alleges that the accused sexually exploited the complainant.

In the context ofthe allegations and evidence in this case, the relevant provision of the Criminal Code is s. 153(1)(a), which reads as follows: 153(1) Every person commits an offence who is in a position of trust or authority towards a young person, who is a person with whomthe young person is in a relationship of dependency or who is in a relationship with a young person that is exploitative of the youngperson, and who (

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

person; or … [Emphasis added] [14] The definition of a “young person” for the purpose of s. 153(1) is set out in s. 153(2), which reads as follows: 153(2) In this section, “young person” means a person 16 years of age or more but under the age of eighteen years. [15] The Criminal Code does not include specific

definitions of the phrases “a position of trust or authority”, “arelationship of dependency” or “a relationship with a young person that is exploitative of the young person”. That said, s. 153(1.2)identifies circumstances where a judge may infer the existence of an exploitative relationship with a young person. In this respect, s.153(1.2) reads as follows: 153(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 thenature and circumstances 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. [16] As described in the applicable provisions, the offence of sexual exploitation, under s. 153(1)(

a) involves fouressential elements.

For a court to find an accused guilty of the offence, the Crown counsel must prove each of the following essentialelements beyond a reasonable doubt: 1. that the complainant was a “young person” at the relevant time; 2. that the accused touched the complainant/young person; 3. that the touching was for a sexual purpose; and 4. that the relationship between the accused and the complainant/young person was such that it fell within one or more of three of thefollowing categories: i. the accused was in a position of trust or authority towards the complainant/young person; or ii. the complainant/young person was in a relationship of dependency with the accused; or iii. the accused was in a relationship with the complainant/young person that was exploitative of the complainant/young person. [17] In the present case, the fourth essential element, touching upon the connection between an adult and a youngperson, is clearly the most contentious.

Although the indictment asserts that the accused was connected to the complainant by virtue onlyof a position of trust or authority, I will reference all three connections in my review of the law. [18] Position of trust or authority: Although there is obvious overlap between positions of trust and authority, theyare conceptually distinct. The central feature of a position of trust is a connection between an adult and a young person that creates onobligation or responsibility owed by the adult to the young person.

Conversely, a position of authority arises where the position affordsthe adult with the ability to enforce obedience by the young person. In either circumstance, the young person is especially vulnerable tothe influence of the adult. [19] Although positions of trust or authority frequently take the form of formal connections, such as parents, teachers,caregivers or employers, they can also arise in less formal settings.

The important thing is the nature of the relationship or connectionwith the young person, and whether it: (1) creates for the adult an obligation or responsibility; or (2) provides the adult with an ability toenforce obedience. The nature of the relationship or connection will be informed by the status of the adult relative to the young person aswell as the age difference between the two. [20] A helpful reference on the characteristic of a position of trust appears in R v Audet, (SCC),[1996] 2 SCR 171 [Audet], still a leading authority on the offence of sexual exploitation.

Three years before Audet, Blair J. had penned adefinition of the kind of trust relationship contemplated by the sexual exploitation offence in R v S.(P.), [1993] OJ No 704 (Ont Ct J),aff’d (17 February 1994) Doc CA C 15436 (Ont CA). This definition was favourably considered by the majority in Audet. Writing forthe majority in that case, La Forest J., recited the definition within paragraph 33: [33] … One needs to keep in mind that what is in question is not the specialized concept of the law of equity, called a “trust”.

What is inquestion is a broader social or societal relationship between two people, an adult and a young person. “Trust”, according to the ConciseOxford Dictionary (8th ed.), is simply “a firm belief in the reliability or truth or strength of a person”.

Where the nature of therelationship between an adult and a young person is such that it creates an opportunity for all of the persuasive and influencing factorswhich adults hold over children and young persons to come into play, and the child or young person is particularly vulnerable to thesway of these factors, the adult is in a position where those concepts of reliability and truth and strength are put to the test.

Takentogether, all of these factors combine to create a “position of trust” towards the young person. [Emphasis in Audet] [21] Relationship of dependency: A relationship of dependency is one in which the young person relies anddepends on the support that the adult is expected to provide. This allows the adult to assume a position of power or influence over the

young person, with corresponding vulnerability by the young person to that power or influence. [22] Exploitative relationship: An adult is in a relationship with a young person that is exploitative of the youngperson where there is a power imbalance between the adult and the young person in circumstances other than a position of trust orauthority, or a relationship of dependency. As a result of this power imbalance, the young person is vulnerable to the actions and conductof the individual who is taking advantage of the young person for his/her own benefit.

To determine whether such a relationship exists,the trier of fact must consider all the circumstances, but can also draw inferences from the circumstances or factors identified ins. 153(1.2). [23] As a final observation about the fourth element, La Forest J., in Audet, addressed the approach to be taken incharacterizing the relevant relationships between a young person and an adult accused. At that time, the only two relevant connectionsfor the offence were a position of trust or authority and a relationship of dependency.

In describing the appropriate approach, La Forest J.wrote the following, at paragraphs 38 to 40: [38] It will be up to the trial judge to determine, on the basis of all the factual circumstances relevant to the characterization of therelationship between a young person and an accused, whether the accused was in a position of trust or authority towards the youngperson or whether the young person was in a relationship of dependency with the accused at the time of the alleged offence.

One of thedifficulties that will undoubtedly arise in some cases concerns the determination of the times when the “position” or “relationship” inquestion begins and ends.

It would be inappropriate to try to set out an exhaustive list of the factors to be considered by the trier of fact.The age difference between the accused and the young person, the evolution of their relationship, and above all the status of the accusedin relation to the young person will of course be relevant in many cases. [39] In this context, it should, as I have mentioned, be noted that Parliament did not elect to prohibit sexual contact with a youngperson by referring to the status of the accused in relation to the young person, so this factor cannot be decisive in itself.

For example, asAyles J.A. concluded in the case at bar, a teacher is not in a de jure position of trust or authority towards his or her students. [40] However, it would be excessively formalistic to refuse to recognize that certain persons, by reason of the role entrusted to themby society, will in fact and in the vast majority of cases come within the ambit of s. 153(1) by reason of their status vis-à-vis the youngperson and, in particular, the relationship they are engaged in with that young person as a consequence of such status. [Emphasis inoriginal] Sexual Assault – Elements of the Offence [24] The essential elements for sexual assault are now generally well known.

They are principally derived from thejudgment of the Supreme Court of Canada in R v Ewanchuk, (SCC), [1999] 1 SCR 330 [Ewanchuk].

To establish theguilt of an accused on a charge of sexual assault, the Crown must prove, beyond a reasonable doubt, each of the following: a. that the accused intentionally applied force to the complainant; b. that the complainant did not consent to the force that the accused intentionally applied; c. that the accused knew that the complainant did not consent to the force that he intentionally applied; and d. that the force the accused intentionally applied took place in circumstances of a sexual nature. [25] As described above, the actus reus components of the offence are reflected in the first, second and fourthessential elements.

They are: (1) application of force; (2) the sexual nature of the force applied; and (3) the absence of consent. SeeEwanchuk, at para 25. The mental element of the offence, the mens rea, is reflected in the first and third essential elements. They are:(1) the intention to touch; and (2) the knowledge or awareness that the complainant did not consent to the sexual touching. As will bediscussed later in this judgment, the mental element on the absence of consent can be established by proof of actual knowledge,recklessness and/or wilful blindness.

See Ewanchuk, at para 42. [26] Of the three components that make up the actus reus of sexual assault, there is no dispute in this case abouteither the application of force (including the simple act of touching) or the sexual nature of the force applied.

As between the Crown andthe defence, the disputed essential elements in this case are: (1) the absence of consent; and (2) if absence of consent is proved, whetherthe accused was aware, as defined by the law, that the complainant did not consent. [27] It is important to emphasize a fundamental principle of law that informs the absence of consent component ofthe actus reus. The inquiry as to whether a complainant consented to sexual activity is confined solely to that complainant’s state ofmind. Subject to the burden and standard of proof beyond a reasonable doubt, the complainant either did or did not consent.

There isnothing in between. Canadian law does not recognize any concept that resembles a notion of “implied consent”. The subjective nature ofthis essential element is explained in Ewanchuk, where the Court, speaking through Major J., addressed the concept, at paragraphs 26and 27, as follows: [26] The absence of consent, however, is subjective and determined by reference to the complainant’s subjective internal state ofmind towards the touching, at the time it occurred: see R. v. Jensen (1996), (ON CA), 106 C.C.C. (3d) 430 (Ont.C.A.), at pp. 437-38; aff’d (SCC), [1997] 1 S.C.R. 304, R. v.

Park, (SCC), [1995] 2 S.C.R. 836, at p.850, per L’Heureux-Dubé J., and D. Stuart, Canadian Criminal Law (3rd ed. 1995), at p. 513. [27] Confusion has arisen from time to time on the meaning of consent as an element of the actus reus of sexual assault. Some of thisconfusion has been caused by the word “consent” itself. A number of commentators have observed that the notion of consent connotesactive behaviour: see, for example, N. Brett, “Sexual Offenses and Consent” (1998), 11 Can. J. Law & Jur. 69, at p. 73.

While this maybe true in the general use of the word, for the purposes of determining the absence of consent as an element of the actus reus, the actualstate of mind of the complainant is determinative. At this point, the trier of fact is only concerned with the complainant’s perspective.

The approach is purely subjective. [ 28 ] Major J. also addressed, albeit in a general way, the nature and quality of the evidence to be considered in determining whether absence of consent has been established. In this respect, he wrote the following at paragraphs 29 and 30: [29] While the complainant’s testimony is the only source of direct evidence as to her state of mind, credibility must still be assessed by the trial judge, or jury, in light of all the evidence.

It is open to the accused to claim that the complainant’s words and actions, before and during the incident, raise a reasonable doubt against her assertion that she, in her mind, did not want the sexual touching to take place. If, however, as occurred in this case, the trial judge believes the complainant that she subjectively did not consent, the Crown has discharged its obligation to prove the absence of consent. [30] The complainant’s statement that she did not consent is a matter of credibility to be weighed in light of all the evidence including any ambiguous conduct.

The question at this stage is purely one of credibility, and whether the totality of the complainant’s conduct is consistent with her claim of non-consent. The accused’s perception of the complainant’s state of mind is not relevant. That perception only arises when a defence of honest but mistaken belief in consent is raised in the mens rea stage of the inquiry. [ 29 ] With this understanding from Ewanchuk , it is important, at this stage, to note the statutory provisions relating to the nature of consent for the purpose of the actus reus .

They are set out in ss. 265(3) , 265(4) and 273.1 of the Criminal Code , and read as follows: 265 …

(3) For the purposes of this section, no consent is obtained where the complainant submits or does not resist by reason of (

a) the application of force to the complainant or to a person other than the complainant; (

b) threats or fear of the application of force to the complainant or to a person other than the complainant; (

c) fraud; or (

d) the exercise of authority.

(4) Where an accused alleges that he believed that the complainant consent ed to the conduct that is the subject-matter of the charge, a judge, if satisfied that there is sufficient evidence and that, if believed by the jury, the evidence would constitute a defence, shall instruct the jury, when reviewing all the evidence relating to the determination of the honesty of the accused’s belief, to consider the presence or absence of reasonable grounds for that belief. … 273.1

(1) Subject to subsection (2) and subsection 265(3) , consent means, for the purposes of sections 271 , 272 and 273, the voluntary agreement of the complainant to engage in the sexual activity in question.

(1.1) Consent must be present at the time the sexual activity in question takes place.

(1.2) The question of whether no consent is obtained under subsection 265(3) or subsection (2) or (3) is a question of law.

(2) For the purpose of subsection (1), no consent is obtained if (

a) the agreement is expressed by the words or conduct of a person other than the complainant; (a.1) the complainant is unconscious; (

b) the complainant is incapable of consenting to the activity for any reason other than the one referred to in paragraph (a.1); (

c) the accused induces the complainant to engage in the activity by abusing a position of trust, power or authority; (

d) the complainant expresses, by words or conduct, a lack of agreement to engage in the activity; or (

e) the complainant, having consented to engage in sexual activity, expresses, by words or conduct, a lack of agreement to continue to engage in the activity.

(3) Nothing in subsection (2) shall be construed as limiting the circumstances in which no consent is obtained . [Emphasis added] [ 30 ] The Court is mindful that ss. 265(3) and (4) apply to the offence of assault, generally. While their application cannot be disregarded in sexual assault prosecutions, s. 273.1(1) specifically applies to all prosecutions for offences under ss. 271 , 272 and 273. [ 31 ] As noted from s. 273.1(1), “consent” means there must be a “voluntary agreement” to engage in the sexual activity in question.

The Supreme Court of Canada addressed this definition in R v Hutchinson , 2014 SCC 19 , [2014] 1 SCR 346 . In that decision, the Court made it clear that such a voluntary agreement must be to each and every act that occurred. Moreover, a complainant is not obliged to express a lack of consent either by words or conduct. In keeping with the analysis in Ewanchuk , there is no consent unless a complainant has agreed in his/her mind to the sexual activity in question at the time it was occurring.

External action or inaction on the part of the complainant, such as silence, submission or the lack of resistance, does not amount to consent if the complainant has not subjectively and voluntarily agreed to the activity.

[32] Of course, and as noted in Ewanchuk, a complainant’s state of mind may not be conclusively determined bywhat she/he describes in oral testimony. While obviously an important consideration, it is only a part of the total evidence the trier of factmust consider. In the context of a sexual assault trial, this necessarily includes all the circumstances surrounding the physical contactbetween a complainant and an accused person.

The trier of fact is required to consider any words or gestures, including evidence of anyambiguous or contradictory conduct or any other indication of the complainant’s state of mind at the time of the events in question. [33] Where the Crown proves beyond a reasonable doubt all the essential elements of the actus reus, including thesubjective absence of consent, the trier of fact’s inquiry turns to the essential elements of the mens rea.

As already mentioned, thisrequires the trier of fact to determine whether the Crown has also proved the accused’s intention to touch and the accused’s knowledgeor awareness of the absence of consent.

For proof of the latter of these two mental elements, the Crown must prove beyond a reasonabledoubt one of the following circumstances: a. that the accused person subjectively knew the complainant did not consent to the sexual activity; or b. that the accused was wilfully blind to the absence of consent, meaning that the accused person was aware of indications thecomplainant did not consent to the sexual activity but deliberately ignored those indications because of a desire not to know the truth (seeR v Briscoe, 2010 SCC 13 at paras 21 and 23, [2010] 1 SCR 411); or c. that the accused person was reckless to the absence of consent, meaning that the accused person knew there was a risk thecomplainant did not consent to the sexual activity and proceeded despite the knowledge of that risk (see R v Morrison, 2019 SCC 15 atpara 101, [2019] 2 SCR 3). [34] At this stage in the analysis, I think it is also important for the Court to address the concept of “communicatedconsent”.

This is an important concept when the Court is addressing the mens rea after all the essential elements of the actus reus havebeen established. The meaning of consent, when assessed for the purpose of the mens rea focuses on a complainant’s communication ofconsent.

This means that where the two elements of the actus reus have been proved, including the absence of consent, the onlymeaningful defence an accused can advance is that of an “honest but mistaken belief in communicated consent”. [35] The importance of communicated consent was stressed in Ewanchuk, and then later reaffirmed in R v Barton,2019 SCC 33, [2019] 2 SCR 579 [Barton]. In Barton, the majority, speaking through the judgment of Moldaver J., recognized thatconsent can exist only where it is communicated to the interested party.

Where an accused professes an honest but mistaken belief inconsent, it can only be based on the communication of that consent. In this respect, Moldaver J. wrote the following at paragraph 90: [90] For the purposes of the mens rea, and specifically for the purposes of the defence of honest but mistaken belief in communicatedconsent, “consent” means “that the complainant had affirmatively communicated by words or conduct her agreement to engage in [the]sexual activity with the accused” (Ewanchuk at para. 49).

Hence, the focus at this stage shifts to the mental state of the accused, and thequestion becomes whether the accused honestly believed “the complainant effectively said ‘yes’ through her words and/or actions” (ibid,at para. 47). [36] The assertion of an honest but mistaken belief in communicated consent is not formally regarded as a positivedefence in the sense that it imposes a burden of proof on an accused.

Even so, it requires evidence to give the assertion an air of reality.The test for an air of reality is whether there is evidence upon which a properly instructed jury, acting reasonably, could acquit if itbelieved the evidence or found that it generates a reasonable doubt. See R v Cinous, 2002 SCC 29 at para 65, [2002] 2 SCR 3. A bareassertion of an honest but mistaken belief in communicated consent, without more, will not support an air of reality. See R v Esau, (SCC), [1997] 2 SCR 777. Evidence at Trial [37] Two witnesses testified in this trial.

They were the complainant and one of the investigating police officers. Aswas his right, the accused elected not to call any evidence. [38] The trial evidence disclosed that at the relevant time, both the complainant and the accused lived atAhtahkakoop. The complainant grew up at Ahtahkakoop and, in 2020, was living in the family home with her mother and brother. Herfather had passed away some time before. The Court heard no evidence as to when the father had died. [39] As mentioned in the introduction to this judgment, the accused is the complainant’s uncle. He is the brother ofher late father.

There is a considerable age disparity between the complainant and the accused. As again referenced in the introduction,the complainant was 16 years old as of the date in the indictment, and the accused was 52 years of age, roughly 35½ years older. [40] Despite the family relationship between the complainant and the accused, the evidence at trial suggests that therelationship was neither typical of an uncle/niece relationship nor particularly close in any other regard.

In direct examination, thecomplainant told the Court that she thought the accused was a kind and friendly person but that he was not around very much while shewas growing up. The complainant testified that the accused spent very little time at her family’s home, typically staying for no longerthan ten minutes or so at a time. She also told the Court that she rarely attended the accused’s home. Although the complainantacknowledged using marijuana at the accused’s home on the date in question, she also told the Court that this was not something shetypically did before that day.

As for other times spent together, the complainant said there were rare occasions when she would spend anentire day fishing with a group of people that included the accused. She also told the Court that he once gave her a guitar lesson. [41] The lack of a close-knit relationship between the complainant and the accused was more assertively addressed incross-examination. Defence counsel specifically asked the complainant about activities she may have had involving the accused, such assports, playing video games, attending church, attending Indigenous ceremonies, camping or travel.

She said she had never reallyparticipated in such activities with him. She also agreed with defence counsel that she had never discussed any personal problems withthe accused and that he had never done anything to make her feel special or to earn her trust.

[ 42 ] Turning to the events of June 17, 2020, the complainant testified she had gone to a nearby lake with her sister and two friends. The accused and two other women were also at the lake, but I understood they had arrived separately from the other group and later joined them. After spending part of the day at the lake, the complainant agreed to go back to the accused’s home with him and another woman whom I will identify as “C.” The complainant testified that her main reason for attending the accused’s home was to get high on marijuana which she believed the accused could provide.

During cross-examination, the complainant said she could not recall if there was any prior conversation with the accused about her wanting to get high or him having any marijuana in his possession. [ 43 ] The complainant said that at the accused’s house, she smoked some marijuana and had a few gulps from a cooler, both supplied by the accused. When asked about her sobriety after smoking marijuana and consuming alcohol, she measured it as 3 out of 10.

She also said that the accused drank considerably more and that his sobriety level was closer to 6 out of 10. [ 44 ] At some point in the day, and for reasons not disclosed at trial, RCMP officers attended at the accused’s home and placed C. under arrest. As I heard the complainant’s testimony on this point, she had no idea why this had occurred. What is clear is that after C.’s arrest, the complainant and the accused remained alone in the home. [ 45 ] The complainant testified that after the RCMP removed C. from the home, the accused engaged in three separate episodes of non-consensual sexual activity with her.

All three episodes included acts of sexual intercourse. [ 46 ] The first episode occurred in the accused’s bedroom. According to the complainant, the lead-up to this activity began in the living room of the house when the accused began touching her and said something to the effect that he was “getting hard” and wanted to “cuddle” with her. In cross-examination, she acknowledged that during this conversation, the accused was texting sex-related messages with someone.

She testified that she then followed the accused into his bedroom. [ 47 ] Once in the bedroom, the accused went to the other side of the bed, opposite from the bedroom door, and started to remove his clothes. The complainant said that at first she just stood at the side of the bed closest to the door for a short time before she also began removing her clothes. In answering questions from both counsel about her actions, she said she simply “went along with it”, a phrase she used more than once during her testimony.

After removing their clothes and lying down on the bed, the accused climbed on top of the complainant and inserted his penis into her vagina. [ 48 ] In answer to specific questions from Crown counsel, the complainant testified that she did not consent to have sex with the accused at any time on the date in question, but again said that she simply “went along with it”. When asked why she did so, the complainant said she believed the accused might hurt her if she did not cooperate.

Having said this, the complainant also told the Court that the accused neither did nor said anything to give her any specific reason to hold this belief. [ 49 ] The second episode of sexual activity occurred in the bathroom of the house. According to the complainant, the first episode ended after approximately 15 minutes when the accused climbed off her. The complainant then went into the bathroom where she began to cry. After a few minutes, the accused came into the bathroom and initiated further sexual activity.

This culminated in a second act of sexual intercourse just above the bathroom sink. [ 50 ] In answer to specific questions from Crown counsel, the complainant again testified that she did not consent to the second episode of sexual activity. She also told the Court that she did not recall the accused saying anything immediately before the episode in the bathroom. During her cross-examination about this episode, the complainant agreed with defence counsel that she had wiped away her tears before the accused entered the bathroom.

She also agreed with defence counsel that she did this because she did not want the accused to have any “bad feelings” about what was happening. [ 51 ] The third episode of sexual activity occurred back in the bedroom. Specifically, the complainant testified that after approximately ten minutes in the bathroom, the accused picked her up and carried her back to the bedroom where he placed her back on the bed. After attempting to stimulate the complainant orally, the accused again inserted his penis in her vagina. The complainant could not recall how long the third episode took.

She did recall that the accused did not wear a condom but could not recall if he had ejaculated during any of the interactions with her. Again, the complainant told the Court that she did not consent to this or any other episode of sexual activity with the accused. [ 52 ] I digress from the narrative of events at this point to note certain other aspects of the complainant’s testimony that came out in cross-examination.

Aside from her multiple references to going along with the sexual activity with the accused, the complainant agreed that she neither voiced nor demonstrated any objection to the sexual activity on the day in question. She further told the Court that, except for the sexual contact, the accused had not applied any physical force against her. [ 53 ] The complainant testified that after the third episode, she and the accused returned to the living room where the accused eventually fell asleep on the couch. After that, the complainant walked home.

In answer to a specific question, she told the Court that she probably spent roughly an hour at the accused’s home that day. She also told the Court that the day after these events, she told both her sister and the police about what had occurred. [ 54 ] Before leaving the evidence received at trial, I should note that the complainant was cross-examined about a dispute between the accused and her sister. Specifically, the Court was told that the complainant’s sister had been living in the accused’s home while he was away. When he returned, he resumed possession of the house.

Although the complainant could not recall whether her sister and the accused had argued over the house, she did acknowledge that her sister wanted to get the house back. [ 55 ] As a final observation about the complainant’s testimony, I feel compelled to describe her demeanour while testifying. I do so with caution, bearing in mind the well recognized admonition that demeanour of a witness cannot be regarded as the “exclusive determinant” of credibility or reliability. See R v A.A. , 2015 ONCA 558 at para 132 , 327 CCC (3d) 377 .

With this caution in mind, I must still say that I was struck by how detached and completely unemotional the complainant was in giving her evidence. Analysis

Count 2 - Sexual Exploitation [ 56 ] I will begin my analysis by addressing the sexual exploitation charge, which is the second count in the indictment. At the outset, it is noteworthy that the charge in this count is premised on the accused being in a position of trust or authority towards the complainant. It does not assert either of the other two connections, namely, a relationship of dependency or an exploitative relationship. In my view, it was open to the Crown, when drafting the indictment, to assert more than one connection in pursuing the charge of sexual exploitation.

Having said that, the Court must deal with the count as it reads. [ 57 ] Considering the evidence in this case, the only issue to be determined on the sexual exploitation charge is the nature of the connection between the accused and the complainant. It is the Crown’s contention that the accused’s status as the complainant’s uncle, combined with the age disparity between the two, is at least sufficient to place the accused in a position of trust. In advancing this argument, the Crown acknowledges that the relationship between the two parties is not a classic or typical uncle/niece relationship.

Despite this acknowledgement, the Crown maintains that the family relationship and the wide age disparity are significant enough to create a position of trust even in the absence of a close-knit family relationship. [ 58 ] Not surprisingly, the accused’s contention is the exact opposite. He posits that the history of infrequent contact between the accused and the complainant, coupled with the absence of a close-knit familial connection, outweighs both the age disparity and the accused’s connection as the complainant’s uncle.

In the view of the accused’s counsel, his client’s status as the complainant’s uncle is purely biological and has no other significance. [ 59 ] I begin my own analysis by observing that the Crown’s case might have been easier to make if it had asserted that the accused was in an exploitative relationship to the complainant.

Aside from features already referenced, I think the evidence of the accused supplying the complainant with marijuana at the time in question might have strengthened the case against him. [ 60 ] Even so, I have come to view that when assessing a position of trust, the accused’s familial relationship with the complainant cannot easily be ignored. In short, I am persuaded that the accused’s status as the 52-year-old brother of this teenage girl’s late father placed him in a position of trust to her.

While this position of trust may not have created an obligation or responsibility to look out for all aspects of the complainant’s welfare, I find, at the very least, that his status as her older uncle created an expectation that he would not expose her to harm or, more importantly, cause harm to her. [ 61 ] In saying this, I recognize that not all positions of trust are the same. Some positions of trust are closer than others. It is entirely conceivable that more distant positions of trust will involve less obligation and responsibility than would be the case in more close-knit trust relationships.

However, my reading of s. 153(1) (

a) is that it does not distinguish between close-knit and more distant positions of trust when characterizing such a relationship between a young person and an adult accused. While it is reasonably clear that the position of trust between the accused and the complainant is not particularly close-knit, that does not mean that a position of trust does not exist.

In short, I am satisfied that the familial relationship and the age disparity are, by themselves, sufficient for the Court to characterize the relationship as one based on at least a reasonable, but perhaps modest, expectation of trust. [ 62 ] It necessarily follows that the Crown has proved beyond a reasonable doubt all the essential elements of the second count in the indictment. Count 1 - Sexual Assault [ 63 ] The Crown contends that it has also proved beyond a reasonable doubt all the essential elements of the offence charged as the first count in the indictment.

In particular, it asserts that it has proved the actus reus element pertaining to the absence of consent as well as the mens rea related to the accused’s awareness about the absence of consent. On the actus reus element, the Crown suggests that the court should accept the complainant’s testimony about her subjective state of mind at the time the sexual activity in question took place. As for the accused’s knowledge of the absence of consent, the Crown maintains that the accused did not take appropriate steps to receive a communicated consent.

In this regard, the Crown argues that at the very least, the accused was reckless to the absence of consent for one or more of the three episodes of sexual activity that took place. [ 64 ] Again, it is not surprising that the accused’s position is the exact opposite. He maintains that despite her denial of consent, the complainant’s actions demonstrated actual subjective consent. Further, the accused relies heavily on other aspects of the complainant’s evidence, where she said that she “went along with” the sexual activity with the accused.

Alternatively, if the Court should find that absence of consent has been proved beyond a reasonable doubt, the accused argues that the complainant’s actions, particularly those in the accused’s bedroom, are sufficient to support his contention that there was an honest but mistaken belief in consent. [ 65 ] I will begin my analysis by addressing the question whether the complainant consented to the sexual activity in question. At the outset of this part of the analysis, there is an obvious conflict within the complainant’s testimony.

Her denial of consent stands in contrast to her evidence that she “went along with it” when responding to the accused’s advances. The conflict begs the question as to whether a complainant could truthfully deny subjective consent and simultaneously acknowledge submission to sexual activity. [ 66 ] In my view and having regard to all the facts of this case, I am persuaded that the complainant testified truthfully when she told the Court that she did not subjectively consent to have sex with the accused.

As I observed the complainant testify from the soft room at the courthouse, I gained the distinct impression that, aside from the conflict within her testimony, there was also a personal conflict within her – one that impacted her actions on the date in question. [ 67 ] In assessing the complainant’s testimony, I am satisfied beyond a reasonable doubt that she had no desire to engage in sexual activity with the accused. This, I believe, was the basis on which she denied consent. Even so, the evidence also satisfies me that she felt the need to go “along with it”. Her reasons for going along with it are not clear.

In her testimony, the complainant told the Court that she feared the accused would hurt her if she did not submit. At the same time, she candidly acknowledged that the accused had not done or said anything to inform that fear. Aside from this fear, she testified to no other reason for

her submission to the sexual activity. [68] Even so, I find that the circumstances shown in the evidence, including the complainant’s relationship with theaccused, overwhelmed, but did not change, her subjective state of mind. Although she did not testify to feeling any pressure from theaccused, as her uncle, I am compelled to the view that this was a significant factor in causing her to behave as she did. I am also satisfiedthat it does not diminish or detract from her subjective state of mind, which was that she did not consent to sexual activity with theaccused.

Accordingly, I am satisfied, beyond a reasonable doubt, that the actus reus element of absent consent has been established. [69] Turning to the accused’s awareness of the absence of consent, the only defence that can be advanced is that ofan honest but mistaken belief in communicated consent. Typically, where such a defence is asserted, an accused will call evidence togive the assertion the necessary air of reality. It is also not unusual for an accused in this situation to testify to the “honest belief” aspectof the defence.

Having said all this, it is entirely conceivable that evidence presenting an air of reality, and the inference of an honestbelief, can come through the evidence of Crown witnesses, including the complainant. [70] In the present case, the accused relies heavily on the actions of the complainant in the accused’s bedroomimmediately before the first episode of sexual activity. This was when the complainant removed her clothes, climbed on the bed andappeared to permit the accused to have sexual intercourse with her.

The accused extends the message, said to be reflected in thecomplainant’s actions, to the other two episodes of sexual activity, in the bathroom and then back in the bedroom. [71] In viewing the evidence surrounding these three episodes, I accept that there is some arguable merit to theaccused’s contention of a possible air of reality for an honest but mistaken belief for the first episode. I am not, however, persuaded thatany such air of reality extends to the other two.

In this regard, it must be remembered that communicated consent for one act of sexualactivity does not extend to subsequent acts unless communicated consent is again provided. [72] With respect to the second and third episodes of sexual activity, there is no evidence of the complainant havingacted in any way that would communicate a mistaken understanding of her absent consent.

As such, if there was an air of reality for thefirst episode, there is no similar circumstance for either the second or the third. [73] Moreover, the evidence of all the related circumstances, including the nature of the relationship between theaccused and the complainant, satisfies me that the accused knew, or ought to have known, that there was a risk the complainant was notconsenting to the second and third episodes. Despite such awareness, the accused proceeded to engage in two more acts of sexualintercourse.

In this regard, I am satisfied beyond a reasonable doubt that the accused’s actions signified a recklessness to the absence ofconsent, thereby establishing the mental element of the offence that is at issue in this trial. Conclusion [74] In the result, the Court finds the accused guilty as charged of both counts in the indictment. [75] Given the Court’s finding, there is a question as to whether one or other of the two counts for which the accusedhas been found guilty should be stayed based on the principle reflected in R v Kienapple, (SCC), [1975] 1 SCR 729.

Forthis to occur, there must be both a factual nexus and a legal nexus between the two charges. While there is arguably a factual nexus in thiscase, I am satisfied that there is no legal nexus. As a result, the lesser of the two charges cannot be stayed. J. R.W. ELSON