) ) HIS MAJESTY THE KING – v. –, 2023 ONSC 2360

CITATION : R. v. J.J. and J.M., 2023 ONSC2360 COURT FILE NO.: 170/18 DATE: 2023/04/13 ONTARIO SUPERIOR COURT OF JUSTICE BETWEEN: ) ) HIS MAJESTY THE KING – and – J.J. and J.K.M. Defendants ) ) ) ) ) ) ) ) ) ) James Spangenberg, for the Crown The defendant J.J. self-representing, but assisted with cross-examination by Ryan M.

Fritze Elizabeth Ferris, for the defendant J.K.M. ) ) ) HEARD: January 6, 7, 8, 9, 10, 2020, and December 14, 2022 RESTRICTION ON PUBLICATION 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of the Criminal Code , information that may identify the person described in this judgment as the complainant may not be published, broadcasted or transmitted in any manner. This judgment complies with this restriction so that it can be published. 486.4(1)(a)(i) 486.4

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judge or justice may make an order directing that any information that could identify the victim or a witness shall not be published in any document or broadcast or transmitted in any way, in proceedings in respect of • (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

i) an offence under

section 151, 152, 153, 153.1, 155, 160, 162, 163.1, 170, 171, 171.1, 172, 172.1, 172.2, 173, 213, 271, 272, 273, 279.01, 279.011, 279.02, 279.03, 280, 281, 286.1, 286.2, 286.3, 346 or 347, Justice I.F. LEACH [ 1 ] J.J. and J.K.M., the two co-accused defendants in this proceeding, are each charged with one count of sexual assault, contrary to

section 271 of the Criminal Code of Canada , (“the Code ”), and one count of sexual exploitation, contrary to

section 153 of the Code .

[ 2 ] The charges stem from events that are alleged to have taken place between January 1, 2004, and [a specified date], 2008, here in the City of London. In that regard, and only by way of an initially broad overview of the Crown’s allegations: a.

It is said that, over the relevant time period, the complainant, (then identifying as a young male named J.W. also known as J.C., but by the time of trial self-identifying as a female known as J.L.C.), was a troubled young person, without a stable family or home, and without resources to live independently in a safe manner, who was invited into the adult defendants’ London home from time to time, and was there provided with shelter, food and other items on an intermittent basis. b.

It is also said that, during the said time period, the defendants – acting together and/or separately – engaged in sexual activity with that young person in circumstances constituting the offences of sexual assault and sexual exploitation. [ 3 ] Specifically, the two counts of the indictment, as amended, read as follows: Count #1: J.J. AND J.K.M. STAND CHARGED THAT they, between the 1 st day of January in the year 2004 and [a specified date] in the year 2008 at the City of London, in the said region, did commit a sexual assault on J.W., also known as J.C., contrary to

section 271 , subsection (1) of the Criminal Code of Canada . Count #2: AND FURTHER J.J. AND J.K.M. STAND CHARGED THAT they, between the 1 st day of January in the year 2004 and [a specified date] in the year 2008 at the City of London, in the said region did, being a person who in a position of trust or authority towards a young person, with a part of his body, for a sexual purpose, directly or indirectly touch the body of that young person, namely J.W., also known as J.C., contrary to

Section 153 , subsection (1.1) , clause (

a) of the Criminal Code of Canada . [ 4 ] Both defendants originally elected to be tried in this court by a judge and jury, but subsequently re-elected, with the consent of the Crown, to trial in this court by judge alone. [ 5 ] By way of some further preliminary comments on the proceedings: a.

Although the defendant Mr M. has been represented in these proceedings almost from the outset by his counsel Ms Ferris, the defendant Mr J.’s efforts to retain a lawyer were unsuccessful, (e.g., including denial of his application for legal aid, and a dismissal of his formal application for assistance pursuant to what is known in the vernacular as a “Rowbotham application”), and he accordingly has remained formally self-representing for most of these proceedings. b.

At the request of the Crown, an order nevertheless was made pursuant to s.486.3(2) of the Code , directing that Mr J. not personally cross-examine the complainant, (when called as a Crown witness), and appointing Mr Fritze to assist Mr J. for that limited purpose. Although Mr Fritze then attended and participated in the trial on that limited basis, Mr Fritze withdrew from further participation in the proceeding once that role had been fulfilled. c.

Following an abortive attempt to commence the trial herein on January 6, 2020, (when unexpected complications prevented the timely attendance of the complainant as the Crown’s first and principal witness), the trial proper began with arraignment of the defendants on the morning of January 7, 2020, at which time each defendant was arraigned and entered pleas of “not guilty” in relation to each of the two counts set forth in the indictment. The trial thereafter continued without interruption until January 10, 2020, with presentation of the Crown’s case.

Evidence tendered in that regard included: i. the completion of testimony from two witnesses called by the Crown, namely the complainant Ms C. and a friend of hers named J.G.; ii. the Crown’s filing of exhibits that included video-recorded statements made to the police by each defendant after being arrested, (which were found to be voluntary pursuant to my earlier ruling on the Crown’s pretrial application in that regard), together with transcripts corresponding to each video-recording, (which I had confirmed to be accurate, subject to required corrections indicated in schedules appended to my pre-trial ruling on the Crown’s aforesaid voluntariness application), and copies of the schedules that had been appended to my ruling on the Crown’s voluntariness application; and iii. the Crown’s filing, as a further exhibit, an Agreed Statement of Facts for purposes of the trial. d.

On January 10, 2020, further progress of the trial nevertheless had to be postponed owing to the sudden illness of the self- representing Mr J.. That happened prior to completion of the Crown’s case, (in respect of which a further witness was contemplated), and the defendants being put to their formal election concerning their possible presentation of evidence. e. Unfortunately, continuation and completion of the trial thereafter were delayed by numerous events documented on the record, including onset of the COVID-19 pandemic, health concerns of the defendants and further complications.

In the result, the matter did not come back before me until December 14, 2022. On that date: i. Mr Spangenberg indicated on behalf of the Crown that no more Crown witnesses would be called, or further Crown evidence would be led, and the case for the Crown was formally closed. ii. Each defendant was put to his formal election as to whether he would present evidence, and each defendant elected not to do so, bringing the evidentiary portion of the trial to a close. iii.

I then received closing submissions from Mr Spangenberg for the Crown, from Ms Ferris for the defendant Mr M., and from the defendant Mr J. personally. In that regard, Mr J. provided his comments last by agreement of the parties, (i.e., after hearing the closing submissions made by Ms Ferris), despite the order that might otherwise have been dictated by the order in which the defendants were named in the indictment. In that way, the self-representing Mr J. was able to adopt, (at least to the extent he legally was able to do so), the submissions made by Ms Ferris.

iv. During the course of closing submissions, Mr Spangenberg indicated and confirmed that, in relation to Count 1 of the indictment, the Crown only was seeking verdicts finding the defendants guilty of sexual assault, and not alternative guilty verdicts in relation to the lesser and included offence of assault simpliciter contrary to

section 265 of the Code . In the result, it was common ground that, in relation to Count 1 of the indictment, the two possible verdicts for the court’s consideration should be “not guilty” or “guilty of sexual assault”. [ 6 ] Following completion of the trial herein, I formally reserved my decision, and the matter was adjourned to February 27, 2023, for contemplated oral delivery of my decision. When that day arrived, I nevertheless was called upon to hear another matter, on an emergency basis. In the result, oral delivery of my trial decision was postponed until March 29, 2023.

Illness unfortunately prevented my attendance that day, and oral delivery of my trial decision was put over to today.

The legislative framework: relevant provisions of the Criminal Code [ 7 ] Before proceeding further, I think it helpful to clarify and confirm my view as to the relevant and applicable legislative provisions of the Code , which provide the primary governing framework for consideration of the formal charges brought against the defendants. [ 8 ] The advisability of doing so seems particularly important in this case, insofar as the charges relate to events that are said to have happened not only many years ago, but also over the course of a somewhat extended period of many years, in turn giving rise to a reality that: a. a number of Code provisions relating to the matter have been amended since the period in question; and b. a number of those Code provisions were amended even during the course of the relevant time period specified in the indictment. [ 9 ] As noted above, that relevant time period specified in the indictment extends from January 1, 2004, to [a specified date], 2008. [ 10 ] Turning first to provisions of the Code relating to sexual assault: a.

From 1985 onwards, the offence of sexual assault has been addressed by

section 271 of the Code . From 1994 to 2012, (covering the entire period specified in the indictment), the relevant substantive portions of

section 271 not related to sentencing and

summary proceedings read as follows: 271.

(1) Every one who commits a sexual assault is guilty of: (

a) an indictable offence … b. Subsequent amendments to

section 271 of the Code have not altered that substantive text, although changes were made to the relevant paragraph and sub-paragraph numbering and lettering, such that the provisions currently are found in what is now s.271 (

a) of the Code . Count 1 of the indictment in this case nevertheless quite properly refers to s.271(1) of the Code , reflecting how the Code stood at the time of the alleged sexual assault offence. c. As addressed in more detail below, the absence of complainant consent and an accused’s knowledge in that regard have remained essential elements of “sexual assault” at all material times. For present purposes, that reality also engages, inter alia , the provisions of s.273.1 (1) and s.273.1(2) (

c) of the Code , which have remained unchanged since their addition to the Code in 1992 and read in part as follows: 273.1

(1) Subject to subsection (2) …, “consent” means, for the purposes of

section … 271, … the voluntary agreement of the complainant to engage in the sexual activity in question.

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

c) the accused induces the complainant to engage in the activity by abusing a position of trust, power or authority. d. As Ms Ferris raised the possibility of an “honest but mistaken belief in consent” in her closing submissions, I also have regard to s.273.2 of the Code which, despite its current incarnation, read in part as follows from 2003 to 2018, and therefore over the entire period specified in the indictment: 273.2. It is not a defence to a charge under

section 271 … that the accused believed that the complainant consented to the activity that forms the subject-matter of the charge, where: a. the accused’s belief arose from the accused’s i. self-induced intoxication, or ii. recklessness or wilful blindness; or b. the accused did not take reasonable steps, in the circumstances known to the accused at the time, to ascertain that the complainant was consenting. [ 11 ] As for the offence which commonly has been referred to as “sexual exploitation”, (although express reference to “exploitation” has not always been included in the wording of the relevant Code provisions), I note the following:

a. The offence has always been addressed by

section 153 of the Code . b. From 1985 to November 1, 2005, (and therefore between January 1, 2004, and November 1, 2005, during what I will call “the initial portion” of the relevant time period specified in the indictment in this case), the substantive provisions of

section 153 not related to sentencing and

summary proceedings read as follows: 153.

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

(2) In this section, “young person” means a person fourteen years of age or more but under the age of eighteen years. c. Between November 1, 2005, and May 1, 2008, (and therefore during what I will call “the middle portion” of the relevant time period specified in the indictment in this case), the substantive provisions of

section 153 of the Code not related to sentencing were amended and restructured to read 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 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. …

(1.2) 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; 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 fourteen years of age or more but under the age of eighteen years. d. From May 1, 2008, into 2012, (and therefore during what I will call “the final portion”, or last nine weeks or so, of the relevant time period specified in the indictment in this case), the substantive provisions of

section 153 of the Code not related to sentencing and

summary proceedings read precisely as they had between November 1, 2005, and May 1, 2008, except that s.153(2) of the Code had been amended to read 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. e. Finally, I note the changing nature of s.150.1(1) of the Code , which effectively addresses the age at which complainants are able to provide valid consent to sexual activity, subject to other applicable provisions of the Code . In that regard: i. Between January 1, 2004, and May 1, 2008, (i.e., all but approximately the last nine weeks of the relevant time period specified in the indictment in this case), s.150.1(1) apparently read in part as follows: 150.1 (1) … [W]hen an accused is charged with an offence under … subsection 153(1) … or is charged with an offence under

section 271, … in respect of a complainant under the age of fourteen years, it is not a defence that the complainant consented to the activity that forms the subject-matter of the charge. [Emphasis added.] ii. From May 1, 2008, to date, (and therefore during approximately the last nine weeks of the relevant time period specified in the indictment in this case), s.150.1(1) has read in part as follows: 150.1 (1) … [W]hen an accused is charged with an offence under … subsection 153(1) … or is charged with an offence under

section 271, … 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. [Emphasis added.] iii. In short, what is sometimes referred to informally as the “legal age of consent” to sexual activity in Canada generally was raised from 14 to 16 as of May 1, 2008, leaving aside age proximity qualifications that have no application to this case. [ 12 ] With those legislative provisions of the Code in mind, I turn next to an overview of general principles relevant to their proper

interpretation and application. General substantive principles – sexual assault and sexual exploitation [13] Turning first to the offence of sexual assault: a. Pursuant to authorities such as R. v. Daigle, (SCC), [1998] 1 S.C.R. 1220, and R. v. Ewanchuk, (SCC), [1999] 1 S.C.R. 330, the essential elements of the offence of “sexual assault” – effectively an assault within the meaning ofsection 265 of the Code committed in circumstances of a sexual nature -- are well-established.

As we routinely indicate to our criminaljuries in the course of standard jury instructions, (see David Watt, Watt’s Manual of Criminal Jury Instructions, 2d. ed., at pp.598-602),the four essential elements of a “sexual assault” offence, which the Crown must prove beyond a reasonable doubt for a finding of guilt,are: i. an intentional (as opposed to accidental) application of force by the accused to thecomplainant, whether direct or indirect, and regardless of how violent or gentle that application of force may have been; ii. the complainant’s lack of consent to that intentional application of force, predicated on thecomplainant’s knowledge of what was going to happen and a decision by the complainant, (via an exercise of his or her free will, withoutthe influence of force, threats, fear or abuse of authority), to let that intentional application of force occur; iii. the accused’s knowledge, (whether actual knowledge, or knowledge based on recklessness orwilful blindness), that the complainant did not consent to the force which the accused intentionally applied; and iv. that the intentional application of force took place in circumstances of a sexual nature. b.

As emphasized by authorities such as R. v. Cook (1985), (BC CA), 20 C.C.C. (3d) 18 (B.C.C.A.), R. v. Chase, (SCC), [1987] 2 S.C.R. 293, R. v. Litchfield, (SCC), [1993] 4 S.C.R. 333, R. v. K.B.V., (SCC), [1993] 2 S.C.R. 857, and R. v. Higginbottom (2001), (ON CA), 156 C.C.C. (3d) 178 (Ont.C.A.), the test fordetermining whether an assault took place in circumstances of a sexual nature is an objective one, and does not focus merely on mattersof anatomy.

All circumstances surrounding the relevant conduct are relevant to the issue of whether the conduct was of a sexual natureand violated the complainant’s sexual integrity and/or dignity. In that regard, a trier should consider numerous factors, including thebody part touched, the nature of the contact, any words or gestures (including possible threats) accompanying the conduct, the accused’sintent or purpose, including the presence or absence of sexual gratification, (although sexual assault does not require sexuality or sexualgratification), and all the surrounding circumstances. c.

As they have particular suggested relevance to this case, I will note again that the provisions of s.273.1(2)(

c) of the Code willvitiate any ostensible consent of a complainant, in the context of an alleged sexual assault, if an accused “induces the complainant toengage in the [relevant] activity by abusing a position of trust, power or authority”. In that regard: i. If the Crown relies upon s.273.1(2)(

c) to vitiate a complainant’s ostensible consent to analleged sexual assault under

section 271 of the Code, the onus is on the Crown to establish the requisite factual underpinning forapplication of s.273.1(2)(c). See R. v. A.H., [2000] O.J. No. 3258 (C.A.), at paragraph 12. ii. Appellate authority has emphasized that the clear aim of s.273.1(2)(

c) of the Code is theprotection of the vulnerable and the weak, and the preservation of the right to freely choose to consent to sexual activity. See R. v. A.H.,supra, at paragraph 17, and the authorities cited therein, as well as R. v. Snelgrove, 2019 SCC 16 , [2019] 2 S.C.R. 98, atparagraph 3. iii. In applying s.273.1(2)(

c) of the Code, courts have turned to authorities addressing

section 153of the Code for guidance as to the meaning of a “position of trust” and/or a “position of authority”. See, for example, R. v. T.R., [1996]O.J. No. 4945 (Gen.Div.), at paragraphs 15-17. I therefore will return in more detail, when addressing general principles relevant to theoffence of “sexual exploitation”, to authorities discussing the nature of relationships involving positions of “trust” or “authority”. iv. At the same time, appellate authority has noted that there is “little direct authority” on themeaning of “position of power” referred to in s.273.1(2)(

c) of the Code, except to say that it is probably a broader term, and thereforeless formalized or structured, when contrasted to positions of “trust” or authority”, and apparently connotes an “imbalance of power”. Again, see R. v. A.H., supra, at paragraph 17. v. For now, I note that inducing consent by abusing the relationships set out in s.273.1(2)(c)does not imply the same degree of coercion contemplated by s.265(3)(

d) of the Code, which speaks to consent obtained where acomplainant submits or does not resist by reason of the “exercise of authority”. It nevertheless does include circumstances in which aperson in a position of trust over another used the personal feelings and confidence engendered by that relationship to secure an apparentconsent to sexual activity. See, for example: R. v. Lutoslawski (2010), 2010 ONCA 207 , 258 C.C.C. (3d) 1 (Ont.C.A.),affirmed 2010 SCC 49 , [2010] 3 S.C.R. 60; and R. v. Snelgrove, supra. vi. I also note that operation of s.273.1(2)(

c) of the Code, so as to vitiate the ostensible consent ofa complainant to sexual activity, expressly requires not merely the existence of a relationship involving a position of trust, power orauthority, but also proof beyond a reasonable doubt that the accused induced the complainant to engage in the relevant activity byactually abusing or misusing that position; an added requirement not needed to make out the offence of “sexual exploitation” addressedby

section 153 of the Code. See R. v. A.H., supra, at paragraph 13, and R. v. Audet, (SCC), [1996] 2 S.C.R. 171, atparagraphs 13, 22 and 23. [14] Turning next to the comparatively less common offence of “sexual exploitation”, general principles in that regard include thefollowing:

a. While consent generally is a defence to a charge of sexual assault, Parliament has recognized that consent is a frail and unreliableconcept in cases involving young persons. In particular, young persons may consent or appear to consent in relationships with certainclasses of people when such consent is not true consent, or at least not a consent which, for policy purposes, the state is prepared toaccept as true consent.

As a matter of principle, adults with positions of influence or example should not be permitted to take advantageof that influence or power for self-gratification, and young people who are unable by reason of immaturity to make appropriate choicesfor their own behaviour should be protected from those who may be inclined to take advantage of them. See R. v. P.S., [1993] O.J. No.704 (Gen.Div.), at paragraph 21, affirmed [1994] O.J. No. 3775 (C.A.); and R. v. Ogden, [1993] N.S.J. No. 346 (S.C.), at paragraph 20. b. Parliament responded to such concerns by the passage of

section 153 of the Code; i.e., to protect young persons who are in avulnerable position towards certain persons because of an imbalance inherent in the nature of the relationship between them. See R. v.Audet, supra, at paragraphs 14 and 20. c. In doing so, Parliament has focused on prohibiting sexual relations between young persons and persons with whom they share aspecial type of relationship; i.e., the purpose of

section 153 of the Code is to make it clear that persons in specified types of relationshipswith a young person are not to engage in sexual activity with that young person, even though there is apparent consent. In particular, thesection commands citizens dealing with children in a relationship of trust, authority, dependency or exploitation not to act on apparentconsent of that child to any of the sexual activities described in s.153(1)(

a) and (

b) of the Code. Total responsibility is placed upon theadult to avoid the forbidden activity. See R. v. Hann, [1992] N.J. No. 203 (C.A.). at paragraph 15; R. v. T.F.G., [1992] O.J. No. 264(C.A.), at paragraph 6; R. v. P.S., supra, at paragraph 29; R. v. Ogden, supra, at paragraph 16; R. v. Galbraith, (ONCA), [1994] O.J. No. 808 (C.A.), at paragraph 13; R. v. Audet, supra, at paragraph 16; R. v. V.R., [2001] O.J. No. 2317 (S.C.J.), atparagraph 8; and R. v. Anderson, 2009 PECA 4 , [2009] P.E.I.J. No. 7 (C.A.), at paragraphs 49 and 52-53. d. As noted in passing above, the duty imposed by

section 153 of the Code is not limited to cases where the Crown can show someconnection between the type of relationship between an accused and the young person addressed by

section 153 of the Code, on the onehand, and the young person’s apparent consent to sexual activity on the other. In particular,

section 153 of the Code does not requireproof of any nexus between the relationship position held by the accused vis-à-vis the young person and the giving of consent by theyoung person to the sexual activity; i.e., the Crown need not prove, as a constituent element of the

section 153 offence of sexualexploitation, that an accused actually exploited his or her position of trust, position of authority, relationship of dependency orexploitative relationship vis-à-vis a young person. See R. v. T.F.G., supra, at paragraphs 5-6; R. v. Audet, supra, at paragraphs 13, 17-19,and 22-26; R. v. L.R.L., [2000] N.S.J. No. 251 (C.A.), at paragraph 67; and R. v. V.R., supra, at paragraph 8. Again, that represents anobvious distinction between

section 153 and s.273.1(2)(

c) of the Code; i.e., insofar as s.273.1(2)(

c) negates or vitiates apparent consentto sexual activity, in relation to specified forms of sexual assault, only where it is established that an accused abused his or her positionof trust, power or authority to induce the complainant’s ostensible consent to sexual activity. Subsection 273.1(2)(

c) therefore requiresproof of a nexus between an accused’s position of trust, power or authority and a complainant’s consent, whereas

section 153 of the Codedoes not. e. Nor is lack of consent an essential element of the “sexual exploitation” offence created by

section 153 of the Code. Were itotherwise, the entire purpose of the provisions contained therein would be frustrated. See R. v. P.S., supra, at paragraphs 26-30, and theadditional authorities cited therein. f. In cases where an accused is charged with “sexual exploitation” contrary to

section 153 of the Code, and the Crown relies onalleged sexual touching of a young person by the accused, as addressed by s.153(1)(

a) of the Code, Crown counsel must prove each ofthe following essential elements beyond a reasonable doubt to secure a conviction: i. that the complainant was a “young person” at the relevant time; ii. that the accused touched the complainant; iii. that the touching was for a sexual purpose; and iv. that, at the time the acts in question were committed, the accused was in a position of trusttowards the complainant, a position of authority towards the complainant, a relationship of dependency vis-à-vis the complainant, or arelationship of exploitation vis-à-vis the complainant. See R. v.

Audet, supra, at paragraph 16; R. v. L.R.L., supra, at paragraph 67; and David Watt, Watt’s Manual of Criminal JuryInstructions, 2d ed. (Toronto: Thompson Reuters Canada Limited, 2015), at pp.579-580. g. In cases where an accused is charged with “sexual exploitation” contrary to

section 153 of the Code, and the Crown relies on anaccused’s invitation to sexual touching by the young person, as addressed by s.153(1)(

b) of the Code, Crown counsel must prove each ofthe following essential elements (including their requisite mens rea) beyond a reasonable doubt to secure a conviction: i. that the complainant was a “young person” at the relevant time; ii. that the accused invited, counselled or incited the complainant to touch the body of thecomplainant, the accused or any other person; iii. that the touching that the accused invited, counselled or incited was for a sexual purpose; and iv. that, at the time the acts in question were committed, the accused was in a position of trusttowards the complainant, a position of authority towards the complainant, a relationship of dependency vis-à-vis the complainant, or arelationship of exploitation vis-à-vis the complainant.

See R. v. Audet, supra, at paragraph 16, and David Watt, Watt’s Manual of Criminal Jury Instructions, (2d ed.), supra, at pp.587-588.

h. While inherent in the above framing of the essential elements to be proven by the Crown beyond a reasonable doubt in order tosecure a conviction in relation to

section 153 of the Code, the inherent importance and necessity of Crown counsel proving a literalcoincidence of all essential elements of the offence should be noted and emphasized. In other words, to secure a conviction, the Crowneffectively must not only prove beyond a reasonable doubt that the complainant was a young person, that the accused intentionallyengaged in one of the sexual activities described in s.153(1)(

a) or (

b) with the young person, and that the accused was in a relationship oftrust, power, dependency or exploitation vis-à-vis the young person, but also prove beyond a reasonable doubt that all those essentialelements of the offence existed or occurred at the same time. For example: i. To secure a

section 153 conviction, it would not suffice for the Crown to prove beyond areasonable doubt that the accused intentionally touched a complainant for a sexual purpose while in a relationship of trust, authority,dependency or exploitation with the complainant, unless the Crown also was able to prove beyond a reasonable doubt that thecomplainant also was a “young person” at the relevant time. ii. Similarly, to secure a

section 153 conviction, it would not suffice for the Crown to provebeyond a reasonable doubt that the accused intentionally touched a young person for a sexual purpose unless the Crown also was able toprove beyond a reasonable doubt that the accused’s sexual touching of the young person occurred at a time when the requisiterelationship of trust, authority, dependency or exploitation existed. In that regard, it should be recognized that relationships are not staticbut evolve and change over time. Again, see R. v. Ogden, supra, at paragraph 13. See also s.153(1.2)(

c) of the Code, whereinParliament expressly noted the importance of considering evolution of a relationship; e.g., as a factor in determining the existence of arelationship with a young person that is exploitative of the young person. A position of trust, position of authority, relationship ofdependency, or relationship that is exploitative therefore may exist between an accused and a young person at some points in time but notat others, including the time of an alleged offence.

Indeed, the Supreme Court of Canada has emphasized that one of the difficulties thatundoubtedly will arise in some cases concerns the determination of the times when the “position” or “relationship” in question beginsand ends. See R. v. Audet, supra, at paragraph 38. For examples of cases and situations highlighting that necessary temporal focus, see R.v. J.B.M., (MB CA), [2000] M.J. No. 113 (C.A.), at paragraphs 10, 12 and 15; R. v. V.R., supra, at paragraphs 5 and25; R. v. Anderson, supra, at paragraphs 6, 8, 52, 65 and 78-81; and R. v. Martin, 2011 ONCJ 401, at paragraphs 5-6. i.

Parliament chose not to define the terms “position of trust”, “position of authority”, “relationship of dependency” and “relationshipwith a young person that is exploitative of the young person” used in

section 153 of the Code. See R. v. Anderson, supra, at paragraphs55 and 67. j. When determining whether the requisite relationship of trust, authority, dependency or exploitation existed for the purposes ofsection 153 of the Code, it also should be remembered that Parliament deliberately refrained from adopting an approach, (recommendedby “The Report of the Committee on Sexual Offences Against Children and Youths”, also known as “the Badgley Report”, which wasreleased in 1986 and prompted the enactment of

section 153 and other Code amendments addressing sexual offences), whereby certaintypes of relationships would be “conclusively deemed” to constitute such categories of relationship. The question of whether an accusedperson stands in such a relationship towards a young person complainant is instead a mixed question of law and fact to be approached asa very case specific inquiry; i.e., one to be determined based on the particular context and circumstances of each case, with no one factorbeing decisive.

It will be up to the trier to determine, on the basis of all the relevant factual circumstances, the characterization of therelationship between a young person and an accused. See R. v. P.S., supra, at paragraphs 32 and 34; R. v. Chisholm, [1995] O.J. No.3301 (Gen.Div.), at paragraphs 9 and 10; and R. v. Audet, supra, at paragraph 38. k. It must also be remembered that the appropriate focus is the accused person’s position towards, or relationship with, the youngperson. How that position or relationship is viewed by others may be relevant, but not determinative. See R. v.

D.B.L. (1995), (ON CA), 25 O.R. (3d) 649 (C.A.), at paragraph 7. l. Moreover, the relevant “disentitling condition”, (i.e., the special position or relationship of trust, authority, dependency orexploitation that disentitles an accused from relying upon the ostensible consent of a young person to sexual activity, and effectivelyprohibits the accused from engaging in sexual activity with such a young person despite ostensible consent), must exist independently ofthe sexual relationship. In other words, the disentitling conditions must be proven in a manner independent of the alleged sexualconduct. See R. v.

Galbraith, supra, at paragraph 14; R. v. Chisholm, supra, at paragraph 7; and R. v. Anderson, supra, at paragraphs 53and 64. For example, it is a material error of law to reason that proof beyond reasonable doubt of sexual conduct between an accused anda young person is proof that the relationship was exploitative. See R. v. Anderson, supra, at paragraph 94. m. It nevertheless should be borne in mind that the Crown need only prove beyond a reasonable doubt that the accused was, at therelevant time, in at least one of the four separate categories of relationship giving rise to the prohibition created by

section 153 of theCode; i.e., that the accused was, vis-à-vis the relevant young person, in a position of trust, or a position of authority, or a relationship ofdependency, or a relationship that was exploitative. In other words, each type or category of relationship specified by

section 153 of theCode constitutes a different and separate circumstance in which the offence may be committed, and only one of those circumstances needbe proved to constitute the offence. If the evidence supports the placement of an accused in any one of the categories, at the relevanttime, that will suffice to prove that essential element of the offence despite excessive averments in the indictment making reference tomore than one of the categories. See R. v. Audet, supra, at paragraph 16; and R. v. J.B.M., supra, at paragraphs 27-28. n.

As to what kind of situations fall within the category of a “position of trust”: i. In this context, what is in question is not the specialized concept of the law of equity called a“trust”. See R. v. P.S., supra, at paragraph 36, and R. v. Audet, supra, at paragraph 35. ii. Nor are sentencing decisions referring to “trust” necessarily concerned with the concept oftrust to which

section 153 of the Code refers. See R. v. D.B.L., supra, at paragraph 15. iii. Recognizing that the concept of a “position of trust” is difficult to define in the absence of afactual context, and that it would be inappropriate to attempt a precise delineation of its limits in a factual vacuum, (See R. v. Audet,

supra, at paragraph 37), our courts instead have provided more general descriptions and indications of the type of relationshipcontemplated by reference to a “position of trust” in this particular context. For example: 1. It has been said that the question of whether an accused was in a “position of trust” vis-à-vis a young person focuses on a broadsocial or societal relationship between two people. In such a context, appropriate

definitions of “trust” include “a firm belief in thereliability or truth or strength of a person”, and “confidence in or reliance on some quality or attribute of a person”.

In particular, wherethe nature of a relationship between an adult and a young person is such that it creates an opportunity for all of the persuasive andinfluencing factors which adults hold over children and young persons to come into play, and the child or young person is particularlyvulnerable to the sway of these factors, the adult may assume a position vis-à-vis the young person where those concepts of reliabilityand truth and strength are put to the test. Taken together, all of those factors may combine to create a “position of trust” towards theyoung person.

Primarily, a “position of trust” is founded on notions of safety and confidence and reliability that the special nature of therelationship will not be breached. See R. v. P.S., supra, at paragraphs 36 and 37; and R. v. Audet, supra, at paragraph 35. 2. It also has been said that, in this context, “trust” is a value that the young person is entitled to put on a relationship; a relationshipthat develops by natural evolution over a period of time, (i.e., as opposed to a “new” relationship), and one which involves the trust heldby a young person in the good judgment and good intentions of the recipient of that trust.

See R. v. Ogden, supra, at paragraphs 13 and17. iv. It would be excessively formalistic to refuse to recognize that certain persons, (e.g., teachers),by reason of the role entrusted to them by society, will in fact and in the vast majority of cases come within the ambit of

section 153 byreason of their status vis-à-vis the young person and, in particular, the relationship they are engaged in with that young person as aconsequence of that status. See R. v. Audet, supra, at paragraph 40. However, Parliament did not elect to prohibit sexual contact with ayoung person by referring to the status of the accused in relation to the young person, so that factor cannot be decisive in itself. See R. v.Audet, supra, at paragraph 39. The issue of whether an accused is in a position of trust therefore must remain fact-dependent, and nofixed definition of “position of trust” will fit all cases.

See R. v. D.B.L., supra, at paragraph 11. v. It similarly would be inappropriate to try to set out an exhaustive list of the factors to beconsidered by the trier of fact in that regard. However, the age difference between the accused and the young person, the evolution oftheir relationship, the circumstances in which the alleged offence was committed, and above all the status of the accused in relation to theyoung person will be relevant in many cases. See R. v. Audet, supra, at paragraphs 38; and R. v. J.B.M., supra, at paragraph 16. vi.

A large age gap between an accused and a complainant may go to support a conclusion that theaccused was in a “position of trust” towards the complainant, and the fact of a relatively small age gap between an accused and acomplainant, (e.g., of less than two years), may work to support the opposite conclusion. The closer in ages of the accused and thecomplainant, the more ambiguous their relationship may be; i.e., in situations where there is a closeness in age, the relevance andapplication of exploitation by the accused and the vulnerability of the complainant may be somewhat blurred.

In practical terms, caseswhere a young person close in age to the complainant has been entrusted with sufficient responsibility to be considered as having been ina “position of trust” toward the complainant are possible but infrequent. However, a difference in age between the accused and a youngperson, whether large or small, is not alone sufficient to create or negate a position of trust. See R. v. D.B.L., supra, at paragraphs 9 and13-14. vii.

It should also be remembered that, while the existence of a trust relationship and corresponding“position of trust” often will be accompanied by indicia of a “position of authority”, (e.g., an authority by the dominant person over theother), and/or a “relationship of dependency”, that is not essential to the existence of a “position of trust” for the purposes of

section 153of the Code. In other words, there may be cases where there is a trust relationship and corresponding “position of trust”, but no “positionof authority” or “relationship of dependency”. In particular, while there may be some similarities between a position of “trust” and aposition of “authority”, the terms “trust” and “authority” are not interchangeable. To the contrary, a “position of trust” may be“somewhat different” or “significantly” different from a “position of authority”. See R. v. L.R.L., supra, at paragraphs 101 and 103; R.v. D.B.L., supra, at paragraph 11; R. v.

P.S., supra, at paragraph 37; and R. v. Ogden, supra, at paragraph 13. o. As to what kind of situations fall within the category of a “position of authority”: i. In the absence of a statutory definition, interpreting what constitutes a position of “authority”begins with consideration of the ordinary meaning of the words Parliament has used. In that sense, “authority” has been defined as the“right to command”, a “power or right to enforce obedience”, a “power to influence the conduct and actions of others”, and “superiorityof merit or seductiveness that compels unconstrained obedience, respect and trust”.

See R. v. Audet, supra, at paragraph 34. ii. A “position of authority” also invokes notions of power, and the ability to hold in one’s handsthe future or destiny of the person who is the object of the exercise of the authority. See R. v. Kyle (1991), (ONCA), 68 C.C.C. (3d) 286 (Ont.C.A.), at paragraphs 3-4; and R. v. P.S., supra, at paragraph 37. iii.

In some situations, persons in a “position of authority” may be distinguished from persons in a“position of trust” by the manner in which the relationship is created; e.g., with “persons in authority” being the recipients of authority orpower transferred to them by the parents or guardians of a child. See R. v. Ogden, supra, at paragraph 14. iv. However, in the context of

section 153 of the Code, to be in a “position of authority” does notnecessarily entail just the exercise of a legal right over the young person, but also a lawful or unlawful “power to command” which theadult may acquire in the circumstances. In other words, the term “position of authority” is not restricted to cases in which therelationship of authority stems from a role of the accused, but extends to any relationship in which the accused actually exercises such apower.

Parliament intended to direct the analysis to the nature of the relationship between the young person and the accused, rather thantheir status in relation to each other. See Léon v. La Reine, (QC CA), [1992] R.L. 478 (Que.C.A.), at p.483, and R. v.Audet, supra, at paragraphs 33 and 34. v. As in relation to determining the existence of a “position of trust”, a large age gap between an

accused and a complainant may go to support a conclusion that the accused was in a “position of authority” towards the complainant, and the fact of a relatively small age gap between an accused and a complainant, (e.g., of less than two years), may work to support the opposite conclusion. However, a difference in age between the accused and a young person, whether large or small, is not alone sufficient to create or negate a position of authority. See R. v. D.B.L. , supra , at paragraph 9 . p. As to what kind of situations constitute a “relationship of dependency”: i.

Mere economic dependency of a young person on an accused, (e.g., through a young person receiving necessities of life such as food and/or a place to stay from an accused), will not suffice to create a “relationship of dependency” contemplated by

section 153 of the Code . What the

section contemplates is a relationship in which there is a de facto reliance by a young person on a figure who has assumed a position of power over the young person along non-traditional lines; e.g., a relationship making the young person particularly vulnerable to the influence of the other person.

Hallmarks of such a relationship might include economic dependency coupled with an obvious power imbalance in favour of the accused, exhibited by indications such as violence or coercion, the exercise of physical or psychological control or domination over the young person through other means, (e.g., through an authoritative personality, taking advantage of a young person’s addiction to drugs or alcohol, or a situation where the young person had no reasonable alternatives available to him or her), and/or a demonstrable “quid pro quo” between the provision of economic support and the sexual relationship. See R. v.

Galbraith , supra , at paragraphs 14-18 . ii. A relationship of “dependency” in the sense required will not exist where an accused exercised no control over the young person, in the sense that the young person at all material times retained the ability to choose his or her future freely without the influence or control of the accused.

In that regard, a limited degree of control or influence over the young person resulting from compatible personalities and/or respect for an accused’s knowledge or understanding will not suffice to establish the sort of power imbalance giving rise to a “relationship of dependency” contemplated by

section 153 of the Code ; e.g., wherein an accused compels the young person to make decisions contrary to his or her freely expressed will. See R. v. Martin, supra , at paragraphs 1, 20, 26 and 38-40. iii. A large age gap between an accused and a complainant may go to support a conclusion that a complainant was in a position of “dependency” towards an accused, and the fact of a relatively small age gap between an accused and a complainant, (e.g., of less than two years), may work to support the opposite conclusion.

However, a difference in age between the accused and a young person, whether large or small, is not alone sufficient to create or negate a relationship of dependency. See R. v. D.B.L. , supra , at paragraph 9 . iv. Because a “relationship of dependency” for the purposes of

section 153 is a de facto one which can only be determined after due consideration of all relevant circumstances, the jurisprudence in relation to such matters must develop on a case-by-case basis; i.e., to retain the flexibility that the phrase “relationship of dependency” was intended to provide. See R. v. Galbraith , supra , at paragraph 18 . q. As to what kind of situations constitute a “relationship with a young person that is exploitative of the young person”: i. As noted above, Parliament did not add express reference to this fourth type of relationship to

section 153 of the Code until November 1, 2005. However, as noted above, even before a relationship involving exploitation was treated as an express “stand alone” condition disentitling an accused person from engaging in sexual relations with an ostensibly consenting young person, the offence created by

section 153 was referred to as “sexual exploitation”; i.e., suggesting that exploitation of a power imbalance and/or influence vis-à-vis a young person was the common denominator underlying the relationships, identified by

section 153, in which Parliament considered sexual relations with a young person to be impermissible. See R. v. Anderson , supra , at paragraphs 63, 69, 71 and 73 . Not surprisingly, there accordingly were indications in the authorities that evidence of exploitation of a young person by an accused, in their relationship, would suffice to bring that relationship between an accused and a young person within the ambit of

section 153; e.g., as a “relationship of dependency”. See R. v. Chisholm, supra , at paragraph 7. ii. However, principles of statutory

interpretation direct that, by expressly adding a fourth type of specified relationship to

section 153 of the Code in 2005, Parliament intended to include a relationship which was not previously included within those that came before; i.e., those involving a “position of trust”, “position of authority” or “relationship of dependency”. In other words, the rules of statutory

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

section 153, but only in different words. To the contrary, the court is entitled to assume that Parliament had some specific purpose in mind when it expanded the special types of relationships where sexual contact with a young person is prohibited. See R. v. Anderson , supra , at paragraphs 69-70 . In particular, in adding “a relationship with a young person that is exploitative of the young person” to

section 153, Parliament intended to address relationships involving a power imbalance in favour of the accused person, but not one arising from a relationship where the accused was in a position of trust, a position of authority, or a relationship where the young person was in a position of dependency. Whether or not there was such a power balance is to be determined from all the circumstances of the relationship between the accused and the young person, although the trier may infer it from the particular circumstances set forth in s.152(1.2) of the Code . See R. v. Anderson , supra , at paragraph 71 . iii.

In that regard, it is worth noting again that, of the four types of relationships specified by

section 153 , in the course of which sexual activity with a young person has been criminalized, “a relationship with a young person that is exploitative of the young person” is the only one in respect of which Parliament has expressly indicated specific considerations that should be included in the court’s assessment of the nature and circumstances of the relationship.

In particular, as also noted above, s.153(1.2) of the Code specifies that 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: 1. the age of the young person; 2. the age difference between the person and the young person; 3. the evolution of the relationship; and

4. the degree of control or influence by the person over the young person. r. More generally, the Supreme Court of Canada has emphasized that the

definitions of the

section 153 terms used by Parliament,like the determination in each case of the nature of the relationship between the young person and the accused, must take into accountthe purpose and objective pursued by Parliament of protecting the interests of young persons who, due to the nature of their relationshipswith certain persons, are in a position of vulnerability and weakness in relation to those persons. See R. v. Audet, supra, at paragraph 36. s.

Finally, in what is perhaps more of a salutary reminder or caution than a principle, numerous courts approaching the application ofsection 153, (including our Court of Appeal), have thought it appropriate to emphasize that, however inappropriate, unethical or immorala relationship may appear to those with a more traditional view of the company a young person should keep, Parliament has seen fit togive more sexual freedom to young persons than the Code previously permitted, and a sexual association between a young person and amuch older adult does not become criminal pursuant to

section 153 without the “added ingredient” of a position or relationship of trust,authority, dependency or exploitation contemplated by the Code. Prima facie, a significantly older adult was entitled to have sexualrelations with a consenting 14-year-old prior to May 1, 2008, in the absence of one of those indicated “disentitling” conditions. Sincethat date, a significantly older adult has been prima facie entitled to have sexual relations with a consenting 16-year-old, in the absence ofone of those indicated “disentitling” conditions.

According to our law, age disparity between an accused person and young person doesnot suffice to make the relationship “unnatural” or criminal. See R. v. Galbraith, supra, at paragraphs 13, 15 and 19; R. v. V.R., supra, atparagraph 9; and R. v. Martin, supra, at paragraphs 4 and 32. [15] While on the subject of general principles, I turn next to an indication that I have been and am mindful, throughout thisproceeding, of fundamental principles applicable to all criminal cases, as well as principles of evidence that include some worthy ofexpress mention and emphasis in a case such as this.

Fundamental principles, and principles of evidence [16] In that regard, I begin by noting that, although all the evidence in the trial before me was led by the Crown, with Mr J. and MrM. electing not to lead or present evidence, I have in mind throughout my reasons and analysis the presumption of innocence and theburden of proof upon the Crown. [17] In particular, according to the constitutional guarantee in s.11(

d) of the Charter, Mr J. and Mr M. are each presumed to beinnocent, and that presumption of innocence remains with each of them throughout this matter, from beginning to end, in relation to anyalleged offence, unless and until the Crown establishes that defendant’s guilt with respect to that alleged offence beyond a reasonabledoubt.

That is a heavy burden and, in relation to the essential elements of each charge against each accused, never shifts. [18] Each defendant accordingly had and has no obligation whatsoever to establish his innocence and, in relation to eachdefendant, I accordingly attach no significance to the fact that he gave or led no evidence at trial. [19] Having said that, I nevertheless also am mindful that this is a situation where I effectively have been presented with anaccount provided by each accused, (i.e., through the admissible video-recorded statements made by the defendant Mr M. to Officer JohnMatthews of the London City Police Service on December 22, 2016, and through the admissible video-recorded statements made by thedefendant Mr J. to Officer Dale Howe of the London City Police Service on December 27, 2016), to consider along with accountsprovided by the complainant in her testimony, and the testimony provided by the complainant’s friend J.G.. [20] Although each defendant chose not to testify on his own behalf, I nevertheless therefore am mindful of the principlesunderscored by R. v.

W.(D.), (SCC), [1991] 1 S.C.R. 742, wherein the Supreme Court of Canada emphasized thatreasonable doubt may arise in various ways; ways that are not restricted to acceptance of exculpatory testimony or an exculpatory accountgiven by an accused. In particular: a.

It is not appropriate for a trier to decide a case by simply determining whether the trier accepts or rejects allegations of misconductby an accused made by a complainant and/or others, or to reduce the matter to an effective “credibility contest” between accusers and anaccused in that regard; i.e., by determining that the complainant and/or others alleging misconduct on the part of a defendant presented acomparatively more credible account than the account presented by the accused person, and deciding the case against the accusedperson on that basis.

It is not the task of a trier of fact to determine which of two competing versions of an event is true. b. The trier instead has to consider all the evidence, and decide whether the trier has been satisfied beyond a reasonable doubt that allthe essential elements of a particular crime charged against the accused have been established. In other words, the trier’s task is todetermine whether the Crown has met its burden of proving the elements of an offence beyond a reasonable doubt. c.

Certainly, if the trier believes and accepts the exculpatory testimony or account of an accused person, in relation to a chargedoffence, then the trier obviously must acquit that accused in relation to that charge. d. However, even if the trier does not believe and accept an accused’s exculpatory testimony or account, in relation to a chargedoffence, the trier must still acquit the accused of the crime charged if that testimony or account raises a reasonable doubt in the trier’smind; e.g., as to whether the essential elements of that particular offence have been established. e.

Moreover, even if the trier does not believe the exculpatory testimony or account of an accused in relation to a charged offence, andthat testimony does not leave the trier with a reasonable doubt as to whether the essential elements of that particular offence have beenestablished, the trier must still ask whether, having regard to the evidence the trier does accept, and looking at the case in its totality, thetrier is convinced that the accused is guilty beyond a reasonable doubt of that charged offence; i.e., because the essential elements of thatoffence have been established beyond a reasonable doubt. [21] I am mindful that a reasonable doubt is not an imaginary or frivolous doubt.

Nor is it a doubt based upon sympathy orprejudice. Rather, it is a doubt based on reason and common sense, logically derived from the evidence or from the absence of evidence;i.e., from what the Crown has failed to prove. See R. v. Lifchus, (SCC), [1997] 3 S.C.R. 320. Moreover, as

emphasized by our Court of Appeal in R. v.

Darnley, 2020 ONCA 179: a. an inference giving rise to reasonable doubt need not arise from “proven facts”, (a standard never applicable to an accused), becausethat would suggest an obligation to establish such facts to a standard of proof, whereas a reasonable doubt can arise from evidence that,while not proven to be true to any standard of proof, has not been rejected; b. it is also incorrect to link a reasonable doubt to a “conclusion” drawn from the facts, as an acquittal need not be based on aconclusion about innocence but may rest on an inability to conclude guilt; and c. it is also an error to suggest that an exculpatory inference must be a much stronger conclusion than a speculation or a guess, as suchlanguage imports the need for a strong inference, when an exculpatory inference relating to a required element of the offence needmerely raise a reasonable doubt. [22] In a case such as this, involving a joint trial where two defendants are charged with two offences, without any similar factevidence application, I am also mindful of the following: a.

Although two defendants are charged and are being tried together, each person charged is entitled to be treated separately on eachcharge. Each is entitled to have his case decided on the basis of evidence and legal principles that apply to him. b. Moreover, in reaching my separate verdict for each accused on each charge, I must not use the evidence on any charge to reach myverdict on any other charge, unless such evidence independently relates to that other charge.

I also must not use the evidence that appliesto only one accused to decide the case of any other accused on the same charge or any other charge. [23] Of course, any trial held to determine whether or not the Crown has proven the essential elements of a charged offencebeyond a reasonable doubt must be conducted in accordance with the laws of evidence.

I will not attempt any sort of exhaustiverecitation of the many applicable principles of evidence I accordingly have kept in mind throughout this proceeding but think it advisableto expressly note some in particular. [24] For example, as this is a joint trial of two defendants, in which each accused has not testified but has made “out of court”statements admitted into evidence, I am mindful in particular of the following: a.

The “out of court” statements made by Mr M. to Officer Matthews were admitted as evidence to be considered in relation to thecharges against Mr M., without their maker being called as a witness, pursuant to a principled exception to the hearsay rule; i.e., asalleged admissions made by Mr M. in relation to the charges against him, admissible for the truth of their content in that regard. b.

Similarly, “out of court” statements made by Mr J. to Officer Howe were admitted as evidence to be considered in relation to thecharges against Mr J., without their maker being called as a witness, pursuant to the same principled exception to the hearsay rule,applied in relation to Mr J.; i.e., as alleged admissions made by Mr J. in relation to the charges against him, admissible for the truth oftheir content in that regard. c.

However, this was not a case where any formal request or effort was made to have evidence of one defendant’s “out of court”statements made admissible in relation to charges against the other defendant; e.g., on the basis that any such statements were made infurtherance of any common design, that any such statements were adopted by the other accused, or that any such statements should bemade admissible in relation to the charges against the other defendant having regard to any other recognized and/or principled exceptionto the hearsay rule. d.

In such circumstances, I am mindful of numerous authorities, including R. v. Martin (1905), (ON CA), 9 C.C.C.371 (Ont.C.A.), R. v. Prosko (1921), (QC CS), 40 C.C.C. 109 (Que.K.B.), affirmed (1922), (SCC),63 S.C.R. 226, R. v. Schmidt, (SCC), [1945] S.C.R. 438, R. v. Simmons (1955), (ON CA), 110 C.C.C.309 (Ont.C.A.), R. v. Unger (1993), (MB CA), 83 C.C.C. (3d) 228 (Man.C.A.), R. v. B.C. (1993), (ON CA), 80 C.C.C. (3d) 467 (Ont.C.A.), leave to appeal refused (1993), 83 C.C.C. (3d) vi (S.C.C.), R. v. Parberry (2005), (ON CA), 202 C.C.C. (3d) 337 (Ont.C.A.), R. v.

Dooley (2009), 2009 ONCA 910 , 249 C.C.C. (3D) 449 (Ont.C.A.), andR. v. Largie (2010), 2010 ONCA 548 , 258 C.C.C. (3d) 297 (Ont.C.A.), leave to appeal refused (2011), 424 N.R. 400n, 425N.R. 395n (S.C.C.), indicating and confirming that: i. An “out of court” utterance or statement by a non-testifying accused, admitted pursuant to arecognized and/or principled exception to the hearsay rule, may be used as evidence both for and against that accused; i.e., the maker ofthe relevant “out of court” utterance or statement. ii.

In a “joint trial” of more than one defendant, such an “out of court” utterance or statement byone accused nevertheless is admissible evidence only in relation to its maker, and must not be considered in determining the culpabilityof any other co-accused, in respect of whom it remains inadmissible hearsay even if the utterance or statement describes something saidor done by that co-accused.

Without limiting the generality of the foregoing: 1. an “out of court” utterance or statement made by one accused which implicates a co-accused is evidence admissible only in respectof its maker, and not in relation to that co-accused; 2. an “out of court utterance or statement made by one accused which is exculpatory of a co-accused is evidence admissible only inrespect of its maker, and not in relation to that co-accused; 3. a version of events given by one accused in his or her “out of court” statements cannot be used in assessing the reliability of adifferent version of those events given in a co-accused’s “out of court” statements; and 4. an “out of court” utterance or statement made by one accused also cannot be used to confirm the evidence of a witness in relation to

an accused person who is not its maker. [25] I also have been mindful, in particular, of other principles of evidence concerning the conduct and testimony of complainantsin a case such as this; i.e., a case concerning allegations of trauma experienced through sexual abuse, and sexual abuse that is said to havetaken place many years ago. For example: a.

In relation to such cases, triers must be careful to avoid now thoroughly debunked stereotypes concerning the supposed behaviourto be expected of those who have experienced such abuse; e.g., in terms of avoiding an alleged perpetrator of such abuse, or reportingsuch abuse immediately. There is in fact no inviolable rule as to how people who are the victims of trauma like a sexual assault willbehave. In particular, some will make an immediate complaint, some will delay in disclosing such abuse, while some will never disclosesuch abuse.

Possible reasons for delay in that regard are many, and include but are not limited to embarrassment, fear, guilt and/or a lackof understanding and knowledge. In assessing the credibility of a complainant alleging sexual abuse, the timing of a complaint is simplyone circumstance to consider in the factual mosaic of a particular case. A delay in disclosure, standing alone, will never give rise to anadverse inference against the credibility of the complainant. See R. v. D.D., 2000 SCC 43 , [2000] 2 S.C.R. 275. b.

Moreover, a case like this, involving allegations of sexual abuse said to have taken place many years ago, before the complainantbecame an adult, gives rise to additional considerations when it comes assessing the testimony of such a complainant. In that regard: i. Our law now recognizes that children experience the world differently from adults, and thatthe peculiar perspectives of children are such that it is not surprising that details important to adults, like time and place, may be missingfrom their recollections. See R. v. B.(G.), [1990] 2. S.C.R. 30, and R. v. W.(R.), (SCC), [1992] 2 S.C.R. 122. ii.

That recognition in turn has implications for how a trier should approach the testimony of anadult testifying about events which occurred when he or she was a child. In particular, as emphasized by the Supreme Court of Canada inR. v. W.(R.), supra: 1. Every person giving testimony in court, of whatever age is an individual whose credibility and evidence must be assessed byreference to criteria appropriate to his or her mental development, understanding and ability to communicate. 2.

In general, where an adult is testifying as to events which occurred when he or she was a child, his or her credibility thereforeshould be assessed according to criteria applicable to him or her as an adult witness. 3. However, with regard to his or her evidence pertaining to events which occurred in childhood, the presence of inconsistencies,particularly as to peripheral matters such as time and location, should be considered in the context of the age of the witness at the time ofthe events to which he or she is testifying. iii.

Notwithstanding the above, while an inability to recall the sequence of traumatic eventsoccurring many years before generally will not be very surprising, (as memories tend to fade and time tends to erode the quality andavailability of evidence), and in most instances such an inability therefore may be of little concern, it will be troubling if the evidence ofa witness shifts from one telling of an incident or incidents to the next, with each differing version of such events being put forward as asincere and accurate recollection.

Probably the most valuable means of assessing the credibility of a crucial witness is to examine theconsistency between what the witness said in the witness-box and what the witness has said on other occasions, whether under oath oraffirmation or not. Inconsistencies on minor matters or matters of detail are also normal, and to be expected, and generally do not affectthe credibility of a witness, particularly in the case of young persons.

However, where an inconsistency involves a material matter aboutwhich an honest witness is unlikely to be mistaken, the inconsistency can be significant and demonstrate a carelessness with the truth. Inparticular, when a witness is comfortable with giving different versions of the same event or events, it suggests a degree of carelessnesswith the truth that diminishes the general reliability of the witness. Similarly, once a witness has been shown to be deceptive and/ormanipulative in giving his or her evidence, that witness can no longer expect a trier to regard him or her as a trusted source of the truth.

See R. v. M.(G.), (ON CA), [1994] O.J. No. 2086 (C.A.), at paragraphs 27-30; and R. v. Ghomeshi, 2016 ONCJ 155,at paragraphs 64-65 and 139. c. Finally, as the Crown relies in this case primarily on the testimony of the complainant, (albeit testimony said to be buttressed tosome extent by the testimony of Ms G., and by the statements given by each defendant to the police), I also bear in mind the following: i.

As we routinely indicate to juries during the course of their final instructions, how much orhow little a trier relies on the evidence of witnesses does not necessarily depend on the number of witnesses who testify one way or theother. A trier’s duty is to consider all the evidence, and may decide that the testimony of fewer witnesses, or even just one witness, ismore reliable than other evidence.

In particular, there is no legal bar to convicting on the uncorroborated evidence of a single witness,although that in turn highlights the importance of assessing the credibility, reliability and overall quality of such evidence. It is up to thetrier to decide such matters. See David Watt, Watt’s Manual of Criminal Jury Instructions, (2d ed.), at p.270, and R. v. Ghomeshi, supra,at paragraph 131. ii.

As noted above, triers must be very cautious, in assessing the evidence of complainants insexual assault and abuse cases, to guard against application of false stereotypes concerning the expected conduct of complainants,bearing in mind the reality that the reasonableness of reactive human behaviour in the dynamics of a relationship can be variable andunpredictable. However, a trier must also be vigilant in avoiding the equally dangerous false assumption that sexual assault and abusecomplainants are always truthful.

Each individual and unique factual scenario must be assessed according to its own particularcircumstances. See R. v. Ghomeshi, supra, at paragraph 153. iii. Moreover, it also should be remembered that a finding that a complainant is both credible andreliable is not necessarily sufficient to satisfy the burden of proof beyond a reasonable doubt. In particular, a reasonable doubt cansurvive a finding that the complainant is credible. See, for example: R. v.

J.W., 2014 ONCA 322, and R. v T.A., 2020 ONCA 783. [26] With all of the above principles in mind, I turn to an assessment of the evidence presented in this case, and whether the Crown

has proven the essential elements of the sexual assault and sexual exploitation offences charged in the indictment.

Evidence and analysis – General comments [ 27 ] As noted above, the evidence presented for my consideration was presented solely by the Crown, and included the following: a. testimony from two witnesses called by the Crown, namely the complainant Ms C. and a friend of hers named J.G.; b. video-recorded statements made to the police by each defendant after being arrested; c. transcripts corresponding to each of those video-recordings, which I had confirmed to be accurate subject to required corrections indicated in schedules appended to my pre-trial ruling on the Crown’s aforesaid voluntariness application; d. copies of those schedules that had been appended to my ruling on the Crown’s voluntariness application; and e. an Agreed Statement of Facts for purposes of the trial. [ 28 ] I have reviewed and carefully considered all of that evidence, and my failure to refer to any particular aspects of that evidence should not suggest otherwise.

In that regard, I will note in particular that, in an effort to address and hopefully eliminate any possible negative impact on my memory of the presented evidence, owing to the passage of time associated with the repeated delays outlined above, I supplemented my review of the trial notes made in my bench book with a complete and detailed review of ordered transcripts of the trial proceedings, as well as a complete replaying of the digital recordings made of the trial proceedings.

From an audio perspective, at least, I therefore effectively sat through the trial twice. [ 29 ] However, beyond outlining certain aspects of the underlying factual matrix applicable to both defendants which seemed undisputed, and my general assessments concerning the credibility and reliability of those from whom the underlying evidence emanated, (and I use that description only to make it clear that I had regard to the evidence of the witnesses called at trial and the statements provided by the defendants to the police), I intend to focus, in these reasons, on the evidence which has a bearing on the essential elements of each charge faced by each defendant. [ 30 ] Moreover, although the ordering of the defendants’ names and charges in the indictment might suggest a different structure to my consideration of the evidence and analysis, in my view: a. it makes more sense to deal first with the charges against Mr M. before turning to those against Mr J., insofar as interactions between each defendant and Ms C. initially progressed in that manner; and b. for the reasons outlined above, the offence of sexual exploitation is more straightforward than the offence of sexual assault in some respects, (e.g., insofar as consent is always irrelevant to the offence of sexual exploitation), and aspects of the analysis required in relation to the offence of sexual exploitation, (e.g., determination of whether an accused was in a “position of trust” or “position of authority”), have a bearing on whether the existence of any ostensible consent to sexual activity underlying a charge of sexual assault might be vitiated by the application of s.273.1(2) (

c) of the Code . Broad parameters of underlying factual matrix [ 31 ] As I mentioned a short time ago, certain aspects of the underlying factual matrix applicable to both defendants seemed undisputed, or otherwise clearly established by the evidence presented for my consideration. In my view, such matters included the following considerations: a. Mr J. and Mr M. are long-term partners, who have been together since 1990 or so; i.e., approximately 26 years prior to their police interviews in late 2016. They moved from Toronto to the city of London sometime in the 1990s.

Since 2001-2002 or so, (i.e., approximately 14-15 years prior to their police interviews in late 2016), they have lived together at a specified address on Noel Avenue, here in the city of London. b. Both defendants are professionally employed, with Mr J. working as a sales support person in the telecommunication sector throughout the time period specified in the indictment, and Mr M., (who is more commonly known by his middle name “K.” than his first name J.), working – at least after the period specified in the indictment - as a florist; e.g., with a flower shop located in London’s Covent Garden Market. c.

Throughout this proceeding, I was never provided with any evidence establishing precise birth dates or ages for Mr J. and Mr M.. However, based on the evidence I received concerning their personal movements, professional work and relationship history, and my observations of both gentlemen during their police interviews and at trial, I think it reasonable to infer that both were nearing or into their fifties when the charges against them were brought and tried. d.

The complainant, Ms C., was born here in London on [a specified date], 1990, to parents who either were separated when she was born, or separated shortly thereafter. Her father thereafter began a new relationship with a partner Ms C. regards as her step-mother. However, at some point, Ms C.’s father and step-mother also separated, and Ms C. resided back and forth with both of those parents as she was growing up; a child with a number of siblings or half-siblings.

Her upbringing and homelife involved allegations of neglect and/or violence; e.g., involving removal of Ms C.’s sister and sister’s child from the home of Ms C.’s father by the Children’s Aid Society, and Ms C. asking to be removed from her father’s home for similar reasons. Ms C. also has ADHD, has difficulty reading, and has always struggled in school.

She nevertheless continued her formal education into high school, attending what was formerly known as the Sir George Ross Secondary School here in the city of London; the same high school attended by her slightly older (by two years) friend and sometime dating partner, J.G.. When she entered high school, Ms C. was residing in the home of her father. e. There was no dispute that Ms C. thereafter stayed at the defendants’ Noel Avenue residence in London from time to time during her

mid-to-late teens or early twenties, (e.g., from approximately 2004 or 2005 to 2011), although there are uncertainties and/or disputes concerning when and how that came to pass, the timing and duration of such stays, and what transpired during those stays.

General credibility and reliability assessments [ 32 ] Before proceeding to a more detailed discussion of the particular evidence bearing on the essential elements the Crown was required to prove beyond a reasonable doubt, in relation to each charge faced by each defendant, I think it advisable to indicate my general credibility and reliability assessments of the persons who provided, either through oral testimony, (in the case of Ms C. and Ms G.), or through recorded statements made to the police, (in the case of Mr M. and Mr J.), most of the evidence presented for my consideration. [ 33 ] I do so because those assessments played a substantial role in my approach to determining whether or not the Crown had established various essential elements of the charged offences beyond a reasonable doubt. [ 34 ] In relation to Ms C.: a.

In my view, Ms C.

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