



WARNING

The President of
    the panel hearing this appeal directs that the following should be attached to
    the file:

An order
    restricting publication in this proceeding under ss. 486(1), (2), or (3)
    of the
Criminal Code
shall continue.  These sections of the
Criminal
    Code
provide:

486.
(1)
Any
    proceedings against an accused shall be held in open court, but the presiding judge
    or justice may order the exclusion of all or any members of the public from the
    court room for all or part of the proceedings if the judge or justice is of the
    opinion that such an order is in the interest of public morals, the maintenance
    of order or the proper administration of justice or is necessary to prevent
    injury to international relations or national defence or national security.

(2)
For the purposes
    of subsection (1), the proper administration of justice includes ensuring
    that
(
a
)
the
    interests of witnesses under the age of eighteen years are safeguarded in all
    proceedings; and>

(
b
)
(3)
If
    an accused is charged with an offence under section 151, 152, 153, 153.1, 155
    or 159, subsection 160(2) or (3) or section 163.1, 170, 171, 171.1, 172, 172.1,
    172.2, 173, 212, 271, 272, 273, 279.01, 279.011, 279.02 or 279.03 and the
    prosecutor or the accused applies for an order under subsection (1), the judge
    or justice shall, if no such order is made, state, by reference to the
    circumstances of the case, the reason for not making an order. R.S., 1985, c.
    C-46, s. 486; R.S., 1985, c. 27 (1st Supp.), s. 203, c. 19 (3rd Supp.), s. 14, c.
    23 (4th Supp.), s. 1; 1992, c. 1, s. 60(F), c. 21, s. 9;1993, c. 45, s. 7;1997,
    c. 16, s. 6;1999, c. 25, s. 2(Preamble); 2001, c. 32, s. 29, c. 41, ss. 16, 34,
    133;2002, c. 13, s. 20;2005, c. 32, s. 15, c. 43, ss. 4, 8;2010, c. 3, s.
    4;2012, c. 1, s. 28.

COURT OF APPEAL FOR ONTARIO

CITATION: R. v. Geddes, 2015 ONCA 292

DATE: 20150430

DOCKET: C57095

Doherty, Rouleau and Watt JJ.A.

BETWEEN

Her Majesty the Queen

Respondent

and

Allan Geddes

Appellant

Philip Campbell, for the appellant

Melissa Adams, for the respondent

Heard: January 8, 2015

On appeal from the conviction entered on January 2, 2013,
    by Justice Elizabeth Quinlan of the Superior Court of Justice.

Doherty J.A.:


I



OVERVIEW

[1]

In the late 1980s, the appellant, who was in his forties, engaged in
    repeated sexual activity with G.C., a young teenaged boy he had befriended. The
    relationship was exploitative and, on any reasonable view, morally repugnant. Counsel
    for the appellant submits, however, that the conduct was not criminal.

[2]

The appellant was convicted of sexual assault on the basis that G.C.s
    apparent consent to the sexual activity was vitiated by the appellants
    exercise of authority over G.C. Counsel submits that on a proper
    understanding of the term exercise of authority in s. 265(3)(d) of the
Criminal
    Code
, the evidence could not reasonably support the trial judges finding
    that G.C.s consent was vitiated. Counsel asks this court to quash the
    conviction and enter an acquittal. For the reasons that follow, I would dismiss
    the appeal.


II



THE EVIDENCE

[3]

The evidence comes primarily from the testimony of G.C. and his mother. The
    appellant did not testify. The other evidence called by the Crown was largely
    peripheral.

[4]

G.C. moved to Barrie with his parents in 1982, when he was nine-years
    old. He first met the appellant at a local arcade, where the appellant worked
    as a cashier. G.C. was about 12 or 13-years old at the time. Over the next
    year, G.C. and the appellant chatted about various things at the arcade. The
    appellant would sometimes let G.C. use the games at the arcade free of charge. Nothing
    improper happened during the first year of their relationship.

[5]

G.C. and the appellant spoke about skiing. The appellant told G.C. that
    he was an instructor and could give him lessons. After about a year, they began
    making frequent trips to a nearby ski hill, on the weekends and during the
    week.

[6]

Early in the relationship, the appellant visited G.C.s parents to ask
    permission to take G.C. skiing. The parents agreed.  After this initial meeting,
    the appellant would often pick G.C. up at his house to go skiing or on trips to
    Toronto. Sometimes, the appellant spoke with G.C.s mother.

[7]

G.C.s mother recalled the first meeting with the appellant. He
    explained to her and her husband that he had met G.C. at the arcade where he
    worked and that he often took children on outings, including skiing and
    bowling. The appellant assured G.C.s parents that he was a good person. G.C.s
    mother testified:

[H]opefully I wasnt a bad parent, but [the appellant] had made
    us feel comfortable enough that Id say good-bye to my son and out the door
    hed go. I could be busy with three other younger children.

[8]

The appellant supplied G.C. with downhill skis, a snowboard, ski-related
    clothing, and paid for his lift tickets. G.C.s family could not afford to buy
    these kinds of things for G.C. The appellant also paid for food, movie tickets
    and other entertainment when he took G.C. to Toronto.

[9]

G.C. was uncertain about his exact age when the sexual activity began.
    The trial judge found that it began after G.C. turned 14. That finding, which
    is not challenged, is significant because at the time of the alleged offences
    (1985-1989) 14 was the age of consent.
[1]
Had G.C. been under 14, consent would not have been a defence to the charge of
    sexual assault.
[2]

[10]

G.C.
    testified that the sexual activity with the appellant occurred mainly in the
    appellants car after the skiing or trips to Toronto. According to G.C., there
    was also sexual activity at the appellants apartment, at the arcade after
    closing time and at the home of one of the appellants friends. G.C. estimated
    that there were between 100 and 500 incidences of sexual activity. The activity
    included fellatio, digital penetration, attempted anal sex and masturbation.

[11]

G.C.
    indicated that the sexual activity continued for about three years until he was
    about 17 or 18-years of age. The activity stopped when G.C. kind of moved on
    and was doing different things.

[12]

G.C.
    did not see the appellant very much for a few years after the sexual activity
    stopped, although they remained friendly. They began to see each other
    regularly again when G.C. was in his early twenties, and then again lost
    contact with each other for a time. A close relationship developed when G.C.
    was about 28. This relationship between G.C. and the appellant ended in a
    dispute over financial matters relating to a house that they had jointly
    purchased for the purposes of renovation and resale. G.C. and the appellant did
    not part on friendly terms. G.C. went to the police about three years later in
    2010.

[13]

There
    was no sexual activity between G.C. and the appellant at any time after G.C.
    was about 18 years of age. Nor did the appellant attempt to initiate any sexual
    activity.

[14]

G.C.,
    testifying as an adult many years after the alleged abuse, described a confused
    and conflicted attitude towards the appellant. G.C. was adamant that he never
    wanted to engage in the sexual activity and that he knew it was wrong. He
    testified that the appellant conned him into the sexual conduct:

I think any adult that has a kid  has sex with a kid is conned.



He  like  the way he did it, it was, it was, like, it was
    always talking about sex and then going on about sex that he had, and then, you
    know, he pretty much talked me into it. And then hed you know, Id show-off from
    the beginning, and then, you know, hed like buy me shit, and make me feel
    better, and talk, like, you know, its not that bad. So many aspects of
    different ways of, you know, how it came about.

[15]

G.C.
    testified that he would often tell the appellant that he did not want to
    perform the sexual activities requested by the appellant. The appellant would
    become angry and throw in [G.C.s] face the things that [the appellant had]
    done for [him], and threaten not to take G.C. skiing or buy him things in the
    future. Eventually, G.C. would give in and do as he was asked.

[16]

G.C.
    tried to describe his feelings toward the appellant:

[A]ll that crap, sex shit and molesting crap it was wrong and
    it felt wrong, but at a certain point you become like numb to it and then if
    you, you know, you feel like its just you know, kind of like you had to do it
    or you wouldnt, you know and its like  I was groomed into being  to do
    these acts to, to do what I wanted. To do what I wanted to do too, you know. And
    at the same time, as fucked up as it is, you actually idolize the guy For
    making me feel, besides the sex part, its like hes got your back, you know and
    he got  the strange way he made you feel good about yourself too.



You know, and then it gets all twisted inside and fucked up.



And you know you dont see it for what it is when youre a kid.
    So its just like  I couldnt get it to  it would ever stop.

[17]

G.C.
    acknowledged that he was never physically forced to do anything and that on
    occasion it was he and not the appellant who set the boundaries of the sexual
    activity. According to G.C., he was talked into the sexual activity by the appellants
    persistent requests. He engaged in the activity because he wanted the material
    benefits that came from his relationship with the appellant.


III



THE TRIAL JUDGES REASONS

[18]

The
    trial judge made the following findings of fact:

·

At the time of the sexual activity, the appellant was 30 years
    older than G.C.;

·

The appellant obtained G.C.s parents permission to take G.C.
    places and was responsible for G.C. on those trips. The appellant persuaded the
    parents to allow him to take G.C. on the trips by indicating he worked with
    youth;

·

There was a clear power imbalance between G.C. and the
    appellant. The appellant offered G.C. many material things that G.C.s parents
    were not in a position to give to him. These included trips to Toronto, ski
    equipment and clothing;

·

G.C. idolized the appellant and believed that the appellant had
    his back; and

·

The appellant exploited G.C. He would constantly talk about and
    request sex from G.C. When G.C. demurred, the appellant would become angry and
    talk about the things he had done for G.C. and threaten to stop doing those
    things. Eventually, G.C. would give into the appellants requests and let the
    sex happen to get it over with.

[19]

The
    trial judge held that the nature of the relationship between the appellant and
    G.C. gave the appellant power to influence the conduct of G.C. In her view,
    this placed the appellant in a position of authority over G.C. The trial judge further
    found that the appellant used that position of authority to gain G.C.s
    submission to the appellants repeated demands for sexual activity:

I find beyond a reasonable doubt that [G.C.], a young,
    vulnerable teen, submitted because of [the appellants] threats to take away
    the activities he could not otherwise do and the things he could not otherwise
    have. I find beyond a reasonable doubt that [G.C.] submitted to the sexual
    activity with [the appellant] because of the exercise of authority.


IV



ARGUMENTS

[20]

Counsel
    for the appellant begins his cogent submissions by reference to the statutory
    framework applicable to these charges. The alleged assaults occurred between
    1985 and 1989, before the enactment of several current
Criminal Code
provisions
    relevant to the issue of consent. At the time of the alleged offences, the
    relevant part of s. 244 (now s. 265) provided:

(1) Assault  A person commits an assault when

(a) without the consent of another
    person, he applies force intentionally to that person, directly or indirectly;



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



(d) the exercise of authority

[21]

Counsel
    correctly submits that s. 273.1, enacted in 1992 (
An Act to amend the
    Criminal Code (sexual assault),
S.C. 1992, c. 38, s. 1), which speaks
    specifically to consent in the sexual assault context and provides further
    limits on the effectiveness of apparent consent, can have no application to
    these charges. Counsel makes the point that while s. 273.1(2)(c) negates the
    effectiveness of any consent induced by abusing a position of trust, power or
    authority, the narrower and applicable provision in s. 265(3)(d) negates only
    consent obtained by the exercise of authority: see
R. v. Lutoslawski
,
    2010 ONCA 207, 258 C.C.C. (3d) 1, at paras. 12-13, affd [2010] 3 S.C.R. 60.

[22]

Counsel
    moves from the statutory framework to the trial judges factual findings. He
    submits that the trial judges finding that the appellant assumed a role of
    responsibility for G.C. when he secured his parents permission to take G.C.
    skiing and on other trips is unsupported by the evidence. Counsel argues that
    the evidence of G.C.s mother goes no further than to indicate that she
    permitted her son to go places with the appellant. There was no transfer of
    parental authority or responsibility.

[23]

Counsels
    submissions next turn to the meaning of the phrase exercise of authority in
    s. 265(3)(d). He submits that apart from the unsustainable finding that the
    appellant took on some form of parental responsibility for G.C., the trial
    judges factual findings support neither a finding that the appellant had any
    of authority over G.C., nor that he exercised any authority to procure G.C.s
    consent to the sexual activity. Counsel submits that apart from the trial
    judges finding of parental responsibility, her other findings come down to a
    determination that G.C., who could in law consent to sexual activity with the
    appellant, chose to give that consent because he wanted the material and
    emotional benefits he gained from his ongoing relationship with the appellant. Counsel
    submits that the transactional nature of the sexual activity between G.C. and
    the appellant cannot render that activity non-consensual.

[24]

Crown
    counsel, in her effective submissions, agrees that s. 265(1)(d) is the only operative
    consent-related provision and that the current
Criminal Code
provisions
    directly applicable to consent in the context of sexual assaults do not apply,
    given the date of the alleged offences. Counsel accepts that on the Crowns
    theory, this was a case of apparent consent to sexual activity vitiated by the
    appellants exercise of authority over G.C. The Crown was required to prove
    beyond a reasonable doubt that G.C.s apparent consent was vitiated: see
R.
    v. Hutchinson
,
2014 SCC
    19, [2014] 1 S.C.R. 346, at paras. 4, 17.

[25]

Crown
    counsel next submits that the trial judges finding that the appellant assumed
    a parental-like responsibility for G.C. when he took him on the various trips
    is fully justified on the evidence. Counsel points to the evidence that the
    appellant attended at G.C.s home specifically to ask his parents for
    permission to take G.C. on skiing trips. In doing so, the appellant assured G.C.s
    parents that he was a good person and that he had experience taking children
    skiing and bowling. Crown counsel submits that the trial judge could reasonably
    infer, based on that evidence, that G.C.s parents allowed him to go with the
    appellant on the understanding that the appellant would assume responsibility
    for the care and protection of G.C. while he was with the appellant. On the
    Crowns argument, this finding flows naturally from the circumstances in which
    G.C.s parents came to give the appellant permission to take their son on these
    trips. It was unnecessary for G.C.s mother to express her specific
    expectations of the appellant when her son was in his care.

[26]

Crown
    counsel contends that the trial judges finding that the appellant was in a
    position of authority over G.C. was not based exclusively on the appellants
    assumption of a parental responsibility role. Crown counsel argues that the
    trial judge properly took into account all of the factors that affected the
    nature of the relationship between the appellant and G.C.

[27]

Crown
    counsel submits that on the trial judges factual findings there was an ample
    basis to conclude that the relationship was one in which the appellant had
    power and influence over G.C. and that he used that power and influence in a
    coercive manner to procure G.C.s participation in the sexual activity. Counsel
    argues that consent to sexual activity obtained by the coercive use of one
    partys power or influence over the other is vitiated by s. 265(3)(d):
R.
    v. Matheson
(1999), 44 O.R. (3d) 557 (C.A.).


V



ANALYSIS

(i)

The trial judges factual findings

[28]

Factual
    findings at trial are entitled to deference in this court. I see no reason to
    interfere with the trial judges finding that the appellant assumed parental
    responsibility when he took G.C. skiing and on other trips. The evidence of
    G.C.s mother was understandably vague, given the passage of time since the
    relevant events. However, she made it clear that the appellant sought her
    permission to take her son skiing and on other trips on the basis that he was a
    good person with experience in taking children on various recreational outings.
    In those circumstances, a reasonable parent would assume that a person in the
    position of the appellant would take responsibility for and protect their 14-year
    old child while he was with him. I do not think the trial judges finding went beyond
    that reasonable inference.

[29]

As
    the Crown argues, the trial judge did not find that the appellant was in a
    position of authority over G.C. based exclusively on any
de facto
parental responsibility the appellant had for G.C. Nor did the trial judge find
    that the appellant gained G.C.s consent to the sexual activity by exercising
    any
de facto
parental authority. The appellants responsibility for
    G.C. when they were on various trips together and the relationship he
    established with G.C.s mother were two factors, among many, that the trial
    judge properly looked to in determining the nature of the relationship between
    the appellant and G.C.

(ii)

The meaning of the exercise of authority in s. 265(3)(d)

[30]

I
    begin with the fundamental principles that underlie the criminalization of
    sexual assaults. First and foremost, the concept of consent is central to the
    distinction between criminal and non-criminal sexual conduct. As explained in
Hutchinson
,
    at para. 17:

The sexual assault offences invoke the criminal law to protect
    sexual autonomy. The
Criminal Code
and jurisprudence establish a high
    level of protection of the right to choose whether to engage in sexual activity
    and with whom. The absence of consent to sexual activity, as part of the
actus
    reus
of the offence, is judged subjectively from the complainants point
    of view.

[31]

Similarly,
    in
R. v. Ewanchuk
, [1999] 1 S.C.R. 330, at para. 28, Major J. recognized:

The rationale underlying the criminalization of assault
    explains this. Society is committed to protecting the personal integrity, both
    physical and psychological, of every individual. Having control over who
    touches ones body, and how, lies at the core of human dignity and autonomy. The
    inclusion of assault and sexual assault in the
Code
expresses
    societys determination to protect the security of the person from any
    non-consensual contact or threats of force. The common law has recognized for
    centuries that the individuals right to physical integrity is a fundamental
    principle It follows that any intentional but unwanted touching is criminal.

[32]

Because
    the complainants consent plays a crucial role in distinguishing criminal from
    non-criminal contact, that consent must be real and reflect the exercise of the
    complainants right to choose who does and does not touch him. Long before the
Criminal
    Code
, the common law rejected as ineffective, consent obtained under a
    coerced and ill-informed will:
R. v. Jobidon
, [1991] 2 S.C.R. 714, at
    p. 740;
Norberg v. Wynrib
, [1992] 2 S.C.R. 226, per La Forest J., at
    pp. 250-52. The circumstances set out in s. 265(3), including the exercise of
    authority, identify situations in which a complainants apparent consent is
    not effective because it is not a true reflection of the exercise of the
    complainants free will.

[33]

Matheson
stands as this courts most thorough and authoritative examination of the
    phrase exercise of authority in s. 265(3)(d). The court rejected a narrow
    meaning of authority as requiring the power to command, in favour of a
    broader definition that captured relationships in which one party had the
    power to influence the conduct and actions of the other:
Matheson
, at
    pp. 587-88; see also
R. v. Audet
, [1996] 2 S.C.R. 171, per La Forest
    J., at para. 34.

[34]

I do not read
Matheson
as holding that the power of one person to influence
    another to any extent establishes authority over the other. Many people who
    are in a relationship may be influenced to engage in sexual activity by their
    partner. Influence, as it relates to true consent, is a question of degree. At
    some point, influence becomes coercion and apparent consent nothing more than submission.
    Consent that is the product of coercive influence does not reflect a true exercise
    of ones right to control ones own body. To treat coerced consent as effective
    consent is to deny the very autonomy which underlies the requirement of
    consent.

[35]

The exercise of
    influence to the point of coercion constitutes the exercise of authority for
    the purposes of s. 265(3)(d):
Lutoslawski
, at para. 12. In
Matheson
, Austin J.A. stated, at p. 588:

I am satisfied that the purpose of s. 265(3)(d) is to
    criminalize coerced sexual relationships rather than to proscribe sexual
    relationships within specific categories of relationships.

[36]

An
    accused stands in a position of authority over a complainant if the accused can
    coerce the complainant into consent by virtue of their relationship. The
    existence of a position of authority does not mean that any sexual activity
    between the accused and the complainant is non-consensual. The Crown must also
    prove beyond a reasonable doubt that the accused secured the complainants
    apparent consent to the sexual activity which is the subject matter of the
    charge by the exercise of that coercive authority over the complainant:
R.
    v. Samkov
, 2008 ONCA 192, [2008] O.J. No. 1005, at para. 7;
R. v.
    Farler
, 2013 NSCA 13, 326 N.S.R. (2d) 255, at paras. 77-78.

[37]

The
    determination of whether apparent consent is vitiated by a coercive exercise of
    authority will require an examination of the nature of the relationship between
    the accused and the complainant, as well as the specific circumstances
    surrounding the apparent consent to the sexual activity in issue. There is no
    closed list of factors relevant to the assessment of the nature of the
    relationship and no one factor is necessarily determinative of the nature of
    the relationship. Certain relationships, such as doctor-patient or
    teacher-student, will go a long way to establishing the kind of relationship in
    which a coercive exercise of authority may occur. Similarly, evidence that
    demonstrates a clear power imbalance between the parties to the relationship
    and the exploitation of that imbalance by one of the parties will be important in
    determining whether apparent consent was obtained through coercion. As La Forest
    J. said in
Audet
, at para. 20:

The relative positions of the parties have always been relevant
    to the validity of consent under Canadian criminal law. The common law has long
    recognized that exploitation by one person of another person`s vulnerability
    towards him or her can have an impact on the validity of consent.

(iii)

Can the trial judges finding stand?

[38]

The
    trial judge did not use the word coercive in describing the nature or extent
    of the appellants influence over the complainant. The trial judges findings
    as a whole, however, describe a thoroughly coercive relationship in which the
    appellant used coercion to secure G.C.s consent to repeated sexual activity. The
    trial judge referred to the clear power imbalance between the appellant and
    G.C. That imbalance arose not only from the age difference  the complainant
    was a young teenager and the appellant was in his forties  but also from the
    appellants ability to provide G.C. with material things that he could not
    otherwise afford.

[39]

On
    the trial judges findings, the appellant used the power imbalance to
    manipulate G.C. By treating G.C. as a buddy rather than a young person under
    his care, the appellant fashioned a strong emotional bond between himself and
    G.C. By giving G.C. many gifts, the appellant established himself as G.C.s
    benefactor. The appellant spent about a year developing the buddy/benefactor
    relationship before he introduced the prospect of sexual activity into the relationship. 
    He did so in a way that would suggest that sex between G.C. and the appellant
    was a normal and accepted part of their relationship.  The appellant persisted
    in his sexual demands even when G.C. declined to engage in that activity. The
    appellants persistence, combined with threats to end the relationship and
    discontinue the benefits flowing from that relationship, manipulated G.C. into sexual
    activity which he did not want.

[40]

The
    trial judge accepted G.C.s evidence. G.C. testified that he repeatedly
    declined to engage in the sexual activity sought by the appellant. The
    appellant, however, would not accept G.C.s refusal. Instead, he persisted, he
    cajoled, he threatened to end their relationship and he threatened to take
    things away from G.C. that he knew G.C. valued. On G.C.s testimony, he would
    ultimately give in and let it happen. G.C.s language speaks to the coerced
    nature of the consent ultimately secured from G.C. by the appellant.

[41]

For
    these reasons, I would dismiss the appeal.

RELEASED:  DD  APR 30 2015

Doherty J.A.

I agree Paul Rouleau
    J.A.

I agree David Watt
    J.A.


[1]
See:
Criminal Code
, R.S.C. 1970, c. C-34, s. 246.1(2) (came into force
    on January 4, 1983); and
Criminal Code
, R.S.C. 1985, c. C-46, s.
    150.1(1) (came into force on January 1, 1988).


[2]
Under the current provisions of the
Criminal Code
, R.S.C. 1985, c.
    C-46, G.C. could not have consented to the sexual activity with the appellant
    until he was 16: ss. 150.1(1), (2.1). Under the current provisions, the appellant
    could have also been charged with sexual exploitation (s. 153) in respect of
    his sexual activity with G.C. when G.C. was between 16 and 18. Consent is
    irrelevant on that charge:
R. v. Audet
, [1996] 2 S.C.R. 171.
