R. v. G.P.

2009 BCSC 640err2 R. v. G.P.

IN THE SUPREME COURT OF BRITISH COLUMBIA Citation: R. v. G.P., 2009 BCSC 640 Date: 20090512 Docket: 24239 Registry: Vancouver Regina v. G.P. Restrictions on publication: 1. Pursuant to s. 486.4 of the Criminal Code, there is a ban on publication of any information that could identify the complainant J.I. and the witness M.R.

2. Pursuant to the inherent jurisdiction of the Court, there is a ban on the publication of any information that could identify the accused G.P. Before: The Honourable Madam Justice Wedge Reasons for Judgment Counsel for the Crown L. Smith Counsel for the Accused B. Coleman, Q.C. Date and Place of Trial/Hearing: February 9, 10, 12, 16, 17, 18, 19 March 26, 27 April 9, 2009 Vancouver, B.C. I. INTRODUCTION [1] The accused, G.P., is charged with one count of sexual exploitation contrary to s. 153(1)(a) of the Criminal Code, R.S.C. 1985, c. C-46. The complainant, to whom I will refer as J.I., was 14 years of age at the time of the alleged offence. The indictment reads, in part, that the accused: At or near New Westminster, in the Province of British Columbia, between the 30th day of May, 2004 and the 7th day of September, 2004, being a person in a position of trust or authority towards a young person, J.R.I., ... did, for a sexual purpose, touch directly or indirectly, with a part of his body or with an object of that young person... [2] Identity was not in issue. The accused and J.I. knew each other and had occasional contact over a period of about two years. The accused, who is a lawyer, acted as J.I.'s legal counsel from time to time between 2004 and 2006. [3] In 2006, J.I. gave a statement to police about sexual activity that had occurred between him and the accused in 2004.

J.I. alleged that one evening in the summer of 2004, the accused took J.I. to his apartment and initiated sexual contact. [4] The accused acknowledged that J.I. had visited his apartment on one occasion in 2004, but denied that he had sexual contact with J.I. on that or any other occasion. [5] The Crown must prove beyond a reasonable doubt that: i. J.I. was a "young person" within the meaning of s. 153(1)(a) at the relevant time; ii. the accused was a person "in a position of trust or authority" towards J.I., and iii. the accused touched J.I. for a sexual purpose. [6] It is common ground that J.I. was a "young person" at the relevant time. In 2004, when the offence is alleged to have occurred, s. 153 defined "young person" as a person between the ages of 14 and 18 years. II. ISSUES [7] The two central issues are the following: i. Did the Crown prove beyond a reasonable doubt that the accused touched J.I. for a sexual purpose? ii. If so, did the sexual touching occur at a time when the accused was in a position of trust or authority in relation to J.I.? III. BACKGROUND (a) The evidence of J.I. [8] J.I. is Aboriginal in origin. He is now 19 years of age and is employed by a large grocery store chain as a forklift driver. [9] J.I. testified that he met the accused in March 2004. He was in custody for the theft of a car. He had just turned 14, and was living with his mother in New

Westminster. The theft charge was his first encounter with the criminal justice system. J.I. called Legal Aid for assistance. The accused was duty counsel at the courthouse that day, and represented him on the charge. Following his release, J.I. contacted the accused when he needed legal counsel to represent him. [10] In August 2004, J.I. breached his curfew (a condition of his release); a warrant was issued for his arrest. His mother, exasperated by the frequent attendance of the police at her house, told J.I. he must leave the house until the matter was sorted out. J.I.'s girlfriend, who he had been dating for approximately 8 months, had been visiting relatives in Nanaimo for the summer, but she made a surprise visit to New Westminster in about mid-August. Her visit coincided with the outstanding warrant. [11] On the afternoon before the alleged encounter between J.I. and the accused, J.I. and his girlfriend were visiting a friend who lived in an apartment on 12th Street in New Westminster with his father. The three youths shared a couple of marihuana joints in the early afternoon and played some games. At about 10:00 or 11:00 p.m., J.I.'s friend informed J.I. and his girlfriend that his father was permitting him to have only one extra person stay overnight in the apartment. J.I. told his girlfriend she should be the one to stay. As J.I. was not welcome at his mother's house,

he went to a school ground across the street from the apartment. The school is St. Thomas More, which borders 12th Street on one side. There are large playing fields, a running track and bleachers adjacent to the school. [12] J.I. settled himself on the middle set of bleachers in front of the running track. The area was somewhat lit. J.I. was wearing a white T-shirt and black soccer pants. He had been sitting there for a couple of hours when a man walked over to him and asked if he was "J--" (using his first name). J.I. did not immediately recognize the man, who was wearing a jean jacket and baseball cap. J.I. thought the man might be a police officer, so he gave a false name. The man then said, "Don't worry J--, I'm not a cop". He then identified himself as J.I.'s lawyer, G.P. [13] J.I. had never met the accused outside the courthouse and had never seen him dressed casually. [14] The accused asked J.I. why he was sitting on the bleachers at that time of the night. J.I. told the accused he could not go back to his mother's house because he was in trouble, and was not supposed to be anywhere else after 11 p.m. The accused asked J.I. if he would like to drive around in his car to pass the time. J.I. accepted the invitation. [15] According to J.I., the accused's car was parked on a side street off 12th Street, directly in front of the school building. The car was a beige Impala

with four doors. The interior of the car was leather. During the drive, the accused told J.I. that he could stay the night at the accused's apartment if he wished. J.I. agreed. Within a brief period of time, they arrived at the accused's apartment complex, which was beside the courthouse. J.I. noted that the accused had not taken a direct route on the main streets to get to the apartment building, instead driving through some back streets. [16] The parking garage was secure, and the accused used a key or card to access it. The accused parked below the building and the two of them walked to the elevator, which took them to the 19th floor of the building. From there, they had to walk up two flights of stairs to the top floor. It appeared to J.I. that there were only two apartments on the top floor. They approached the door to the accused's apartment, which had a sign on it stating: "G---P---, Barrister and Solicitor". [17] Once inside the front door of the apartment, J.I. encountered a hallway of some length that led to a large, open living room with a pool table to one side of it. From the entrance he could see, toward the end of the hallway, a shoe rack with many pairs of shoes piled on it. He had to go a little farther along the hallway to see the pool table and the living room. Along the length of the hallway, on the right side, was a bathroom and, beyond it, a galley-type

kitchen. On the left side of the hallway, close to the entrance to the suite, there was a door leading into the bedroom. [18] The living room stretched lengthwise from one side of the apartment to the other. The pool table was situated toward the right side of the living room area. Beyond the pool table, against the right wall, was a mini fridge, which he recalled being white in colour. He had never known anyone who owned a mini fridge. On the left side of the living room area, he saw a pair of couches, a coffee table and a large screen television. J.I. did not sit on either couch, but they looked like black leather. A balcony ran along the entire front and left side of the living room, and continued along the length of the bedroom. J.I. assumed (because it was dark when he entered) that the balcony along the front of the apartment looked out over the Fraser River, above which the apartment complex was situated. [19] When J.I. first spoke to police in 2006, he drew a sketch of the apartment as he recalled it two years after the incident. In his evidence at trial, he described the apartment from memory and with the assistance of his sketch. [20] J.I.'s evidence was that when they arrived at the apartment, he was invited to play pool. At the outset, the accused opened the mini fridge by the pool table and asked J.I. if he wanted a drink. J.I. said, "Yes." He accepted a cooler. He

noticed that the bottom part of the mini fridge contained beer and the upper part contained bottles of cooler. This was the first time J.I. had consumed alcohol. [21] J.I. drank the cooler and then accepted a second one, which he finished. He attempted playing pool, but found that the alcohol was affecting him. He and the accused were standing around the pool table, playing. They did not sit down. J.I. did not notice stools or chairs situated on either side of the mini fridge. [22] J.I. thought that, by this time, it must have been about 2 a.m. The accused told J.I. he would have offered the couch for sleeping, but that because his brother was visiting, J.I. would have to sleep in the accused's bedroom. J.I. thought that would be alright. [23] The two made their way to the bedroom. J.I. recalled there was a large bed; it may have been a king-sized bed. There was another large screen television situated toward the left side of the bedroom, opposite the bed, by the balcony. He did not notice anything else in the bedroom. [24] J.I. lay down on the bed, but did not get undressed. After he was lying down, the accused told J.I. he liked to sleep naked, and would sleep under the covers. He undressed and got into bed. The accused then asked J.I. if he liked "porn". J.I. said, "Not really." He had never watched pornographic movies. The accused turned on the television. There was

pornography playing, which involved a man and a woman. The accused said he wanted to watch his favourite part, which involved oral sex. [25] As they watched the television, the accused asked J.I. if he would masturbate while they were watching. J.I. felt uncomfortable, and declined. The accused continued asking J.I. questions, which J.I. understood had to do with the accused's request that he masturbate. [26] Eventually, the accused put his hand inside J.I.'s soccer pants and then gave him oral sex. J.I. was too shocked to say anything. He ejaculated in the accused's mouth. J.I. then fell asleep ("I blacked out, basically"). When he awoke, it was daylight. The accused was getting out of bed and putting on a robe. He told J.I. that his brother was out for a walk and that J.I. had to leave. J.I. got up and prepared to leave. The accused said he would have made J.I. some breakfast, but he was concerned that his brother might come back from his walk. He gave J.I. $40 to buy himself some breakfast. [27] J.I. did not see the accused's brother. He was only told by the accused that his brother was staying with him. J.I. saw only one bedroom. He did not ask if there was a second bedroom. He did not use the bathroom or the kitchen while he was there. [28] J.I. left the accused's apartment and bought packages of cigarettes for himself and a friend named "Cheyenne". He then went to visit

Cheyenne, who lived only a few blocks away. He said nothing to her, or anyone else, about what had happened with the accused. He said he "felt awkward and weird" about what had happened. He had never had a sexual experience with another person before his encounter with the accused. He did not become sexually active with his girlfriend until some period of time after the incident. [29] Neither J.I. nor the accused ever spoke of the incident. The accused continued to represent J.I. until early 2006. [30] In February 2006, J.I. told his girlfriend about the incident with the accused. J.I.'s girlfriend had told J.I. she had been sexually abused. They were arguing, and she made a comment to the effect that J.I. could not understand how she felt. J.I.'s response was that he did understand because he, too, had been sexually abused. He then told his girlfriend about his encounter with the accused. [31] J.I.'s girlfriend related the incident to her parents. They approached J.I. and asked him to speak to a counsellor. J.I. saw a counsellor on two occasions. On the second occasion, J.I. and his girlfriend, along with the counsellor, attended the police station in New Westminster. J.I. gave a statement to the police about the incident with the accused in 2004. [32] It was put to J.I. in cross-examination that he was angry with the accused in February 2006 because the accused had threatened

to stop acting for J.I. as a result of all of the breaches of condition he was incurring. J.I. denied that the accused ever threatened to stop acting for him. He said he was happy with the representation the accused provided him, and was never angry with him for any reason. [33] It was also put to J.I. that on one occasion when he was scheduled to appear in court, the accused took him to the apartment for the purpose of retrieving his file for court. J.I. denied this. He said that he had only ever interacted with the accused at the courthouse, either in the holding cells or in interview rooms. J.I. said that he had only once seen the accused outside the courthouse when J.I. and a friend went to the public library to use the computers there. They encountered the accused at the doorway to the library and exchanged "hellos" in passing. [34] Counsel for the accused put to J.I. a portion of his statement to police in which he described the accused wearing glasses the night he encountered J.I. in the school yard. J.I. said he did not recall the accused ever wearing glasses and did not know why the statement included a reference to glasses. [35] J.I. also denied ever seeing the accused entering or leaving his apartment building. [36] J.I. was shown a photograph of a teal coloured car belonging to the accused. J.I. said that it was not the car the accused was driving the night of the

incident. [37] Counsel for the accused suggested to J.I. that he knew the accused was gay. J.I.'s response was that he did not know the accused was gay, and had heard that suggestion for the first time at trial the previous day. [38] J.I. was shown pictures of a tanning bed, which counsel for the accused suggested to J.I. was in the bedroom. J.I. said he had never seen a tanning bed and did not recall one in the accused's bedroom. J.I. was also shown pictures of the accused's mini fridge, which is black. J.I. recognized the mini fridge as the one he saw by the pool table, and agreed he had been mistaken about the colour. [39] In early 2006, after giving his statement to the police about the accused, J.I. encountered further trouble with the criminal justice system. He was charged with assaulting his girlfriend. He was also charged with robbery and assault, having punched an individual and stolen his gold neck chain and jacket. On the latter charge, he called his mother and asked her to find him a lawyer. She contacted another lawyer through Legal Aid, who acted for J.I. A conviction was entered on those charges. [40] A Presentence Report (PSR) was prepared with respect to the robbery charge. In the course of examining J.I. for purposes of the PSR, a psychiatrist asked J.I. whether he had ever been sexually abused. J.I. replied that he had not. When asked about his response,

J.I. testified that he thought the PSR would be used in court for his sentencing. He never told his mother about the incident with the accused or that he had made a complaint to the police about it. He said he was worried that his mother, who he knew would be present in court for his sentencing hearing on the robbery charge, would discover that he had been sexually abused when the PSR was presented in court. To this day, he has never told his mother about the incident. (b) The evidence of Crown witness Charles Parnell [41] Charles Parnell was the resident manager of the apartment complex at 737 Carnarvon Street in New Westminster during the time the accused occupied one of the two penthouse suites. He went into the accused's suite on five or six occasions between 2001 and 2005 to perform repairs. [42] Mr. Parnell testified that the accused had a parking stall on the first of the four underground levels. The entrance to the parking area was secured by a gate that was accessible by a remote. To access the elevator, one proceeded through a keyed door, then another unlocked door and up three steps to the lobby, which contained the elevator banks to the 19th floor. [43] Once on the 19th floor, there was a "looped" stairwell to the floor above containing the penthouse suites. The stairwell leads to a landing with a locked door. Through that door and directly ahead was the entrance

door to the accused's suite. [44] Once through the door to the suite, there was a hallway running the length of the suite. When proceeding directly ahead along the hallway toward the living room area, to the right there was a closet with a washer and dryer and, beyond that, a bathroom. Beyond that, there was a large open living room area. There was a galley kitchen directly across from the bathroom on the left side of the hallway as one proceeded toward the living room. [45] The bedroom area was accessed by turning left immediately after entering the door to the suite. The hallway proceeded in that direction and then turned sharply right into a shorter hallway leading to a small office area. To the left of the office was the master bedroom. [46] The main piece of furniture in the living room was a pool table. Mr. Parnell recalled that to the right of the pool table, against the wall, was a black object between two chairs but did not recognize the object as a mini fridge. He thought it was a counter of some kind. [47] To the left of the pool table was some furniture, which was arranged along the perimeter of the room. Some of the furniture was brown leather, some was upholstered, including a large blue upholstered ottoman chair. In the far left corner of the living room was a large 46 or 54 inch projection television. [48] The master bedroom contained a large bed, perhaps

queen-sized, and a second washroom. There was also a smaller television opposite the bed. Mr. Parnell said that he "vaguely remembered a heat lamp bed" but could not say whether it was in the bedroom all the time. He said he may have seen it sitting between the bed and the balcony doors, on the right of the bedroom. [49] Mr. Parnell recalled that the accused drove an Oldsmobile or Buick. He said the accused had a second car for a short period of time--in 2004, he believed--that he stored on the 4th level of the parking area. It was grey in colour, a larger car, and it may have been a Buick. At one point, Mr. Parnell attended in the parking area because someone was trying to break into the car. [50] Mr. Parnell agreed with the suggestion of counsel for the accused that the grey car might have been removed in 2003. [51] In cross-examination, Mr. Parnell said that the only person he ever saw in the accused's suite was his brother, who came to visit for a few weeks each year. (c) Similar fact evidence tendered by the Crown [52] The Crown sought to tender evidence of similar fact at trial. A voir dire was held to determine the admissibility of the evidence of an individual to whom I will refer to as M.R. At the conclusion of the voir dire, I ruled the evidence admissible as similar fact against the accused. [53] Following the ruling on the voir dire, the accused made certain

admissions concerning M.R.'s evidence. Those admissions dispensed with the need for the Crown to call M.R. A synopsis of the admitted evidence is as follows. The evidence of M.R. [54] In 1992, the accused initiated sexual relations with a 14-year old youth by the name of M.R. The accused was 35 years of age at the time and living in London, Ontario. [55] At the time the sexual contact was initiated, M.R. was a ward of Children's Aid in London, and lived in a group home. He and a friend, A.M., were introduced to the accused by a third person, J.L., who was a few years older than M.R. and A.M. J.L. invited M.R. and his friend, who had run away from the group home at the time, to the accused's apartment to play pool and drink beer. [56] The accused had a pool table in his apartment. When M.R. and the other youths arrived, the accused offered them beer. M.R. drank two beers. After a couple of hours, J.L. left. M.R. told the accused he needed a place to stay because he and his friend, A.M., were "on the run". The accused then began touching M.R.'s buttocks in a way that made him uncomfortable. He and his friend left the accused's apartment and returned to the group home. [57] Some time later, M.R. returned to the accused's apartment, alone and on his own accord. He told the accused he was again on the run. The accused invited M.R. to watch a pornographic movie. The two sat on the

couch and watched the movie. At some point, the accused made M.R. a drink of vodka and orange juice. M.R. consumed two such drinks. [58] While watching the pornographic movie, the accused said to M.R. words to the effect that M.R. could masturbate if he wanted to. He then asked if M.R. would "like a blow job". M.R. said "yes," and the accused performed oral sex on him. M.R. thinks he returned to the group home that night. [59] Subsequently, M.R. went to the accused's apartment approximately 15 to 20 times over a period of several months. On most occasions, the accused would play a pornographic movie and some sexual contact occurred. At times when the accused gave M.R. alcohol, he drank to the point that he was intoxicated. However, on one or two occasions, M.R. simply went to talk to the accused and the accused did not offer him alcohol. [60] M.R. recalled that on one or two occasions, the accused asked M.R. to perform oral sex on the accused. On one or two occasions, M.R. indicated he did not want sexual contact, and on those occasions none occurred. The charges involving M.R. [61] In 1994, the accused was charged under s. 212(4) of the Criminal Code with procuring sex from M.R. and A.M. knowing they were under the age of 18 at the time. He was charged under the name of Gary McGory. As it was explained by the accused in his evidence in this trial, "McGory" was the name of his

adoptive parents. He was an adult before he discovered that he had been adopted and that McGory was not his birth name. Upon discovering this, he took steps to change his name to that of his natural parents. More will be said about the accused's name change in due course. [62] A preliminary inquiry was held in 1995, following which the accused was committed to trial. The matter went to trial in April 1998 in London, Ontario. The accused admitted that he had sex with both complainants, but denied he offered them money or other valuable consideration in exchange for the sexual activity. [63] The trial judge, in reasons given on April 24, 1998 (R. v. McGory (24 April 1998), London SC3590 (Ont. Sup. Ct.) noted the following at 1-2 of his transcribed reasons on the issue of whether the sexual activity had occurred as alleged: There is no issue here with respect to the performance or occurrence of sex between the complainants and the accused. The complainants said it occurred and the accused said it occurred. I find as a fact that it did occur and in fairness, [counsel for the accused] indicated that identification was not in dispute. [64] However, observed the trial judge, an essential element of the offence was procurement of sex by the offer of money or other consideration. The trial judge was not satisfied beyond a reasonable doubt that the small amounts of money given to the

complainants by the accused were the quid pro quo for the sexual activity that occurred. The trial judge acquitted the accused on that basis. The ruling on the voir dire [65] I gave detailed reasons following the conclusion of the voir dire for my ruling that the evidence of M.R. was admissible as similar fact evidence against the accused. I will give only a synopsis of that ruling here. [66] There were two issues that arose on the voir dire with respect to the admissibility of M.R.'s evidence. First, in light of the acquittal of the accused in the 1998 trial, was the Crown permitted to tender M.R.'s evidence concerning his sexual activity with the accused? Second, if the acquittal is not a bar, does the evidence of M.R. meet the threshold test for admissibility? Effect of the prior acquittal [67] Turning to the first issue, the general rule is that it is not permissible to reach behind an acquittal by relying in subsequent proceedings on facts decided in favour of the accused. However, I ruled that the evidence of M.R. was admissible despite the acquittal of the accused in the earlier proceedings because the fact of the sexual activity between the accused and M.R., an essential ingredient of the offence of procuring, was both admitted and found as fact by the trial judge. The accused's acquittal was not a bar to the admission of the evidence because the fact of the sexual

activity with the complainants was a central element of the offence and proven beyond a reasonable doubt. As was noted by the Supreme Court of Canada in R. v. Mahalingan, 2008 SCC 63 at para. 52, 300 D.L.R. (4th) 1: It is not enough to show that the evidence was led in the earlier proceeding and an acquittal entered. It must be a necessary inference from the trial judge's findings or from the fact of the acquittal that the issue was in fact resolved in the accused's favour. [68] The Court in Mahalingan concluded that the Crown is permitted (absent the operation of other rules of evidence) to lead evidence relating to issues litigated in a prior proceeding so long as the particular issue was not decided in the accused's favour in the prior proceeding, or, if the issue was decided in the earlier proceeding, the Crown is not seeking to use the evidence to contradict the factual finding on that issue. [69] A similar analysis was undertaken by the Supreme Court of Canada in an earlier decision: R. v. Arp, [1998] 3 S.C.R. 339 at 78, 129 C.C.C. (3d) 321. Our Court of Appeal in the case of R. v. Singh (1996), 77 B.C.A.C. 185, 108 C.C.C. (3d) 244, a decision which pre-dated both Arp and Mahalingan, admitted on analogous grounds certain evidence as similar fact that had been led in earlier proceedings by the Crown. Threshold admissibility of the similar fact evidence [70] The second

issue was whether M.R.'s evidence met the threshold test for admission as similar fact evidence. [71] The general principle is that evidence adduced solely to show propensity or disposition is, as a rule, inadmissible. Whether the evidence in question constitutes an exception to the general rule depends on whether the probative value of the evidence significantly outweighs its prejudicial effect. When resolving that question, the trial judge must clearly indicate the issue to which the evidence is directed. [72] In R. v. Handy, 2002 SCC 56 at para. 69, [2002] 2 S.C.R. 908, the Court observed that identification of the issue to which the evidence is directed is critical to the analysis because whether or not the probative value of similar fact evidence exceeds its prejudicial effect can only be determined in light of the purpose for which the evidence is proffered. [73] In the current proceedings against the accused, identity is not in issue. The evidence sought to be adduced by the Crown did not go to the issue of who committed the offence. It was proffered to address the issue of whether the actus reus of the offence was committed at all, which was, in turn, inextricably tied to J.I.'s credibility. [74] In Handy, the Court was careful to distinguish between a case in which similar fact evidence is proffered to prove identity and a case in which it is proffered as proof of the

actus reus of the offence. At para. 78, the Court said the following: The point is not that the degree of similarity in such a case must be higher or lower than in an identification case. The point is that the issue is different, and the drivers of cogency in relation to the desired inferences will therefore not be the same. [emphasis in original] [75] In Arp, the issue was the identity of the accused. In that case, said the Court, where the purpose of tendering the evidence is to establish identity, the trier of fact is asked to infer from the degree of distinctiveness or uniqueness that exists between the criminal offence and the similar act, that the accused is the very person who committed the crime. As the Court noted, that inference is only possible if "the high degree of similarity between the acts renders the likelihood of coincidence objectively improbable". However, where the purpose of the evidence is to establish that the offence was in fact committed, the requirement of "striking similarity" should be qualified (Arp at paras. 43-44). [76] The Supreme Court of Canada has made clear that similar fact evidence is admissible on the issue of whether the complainant should be believed: R. v. B.(C.R.), [1990] 1 S.C.R. 717, [1990] 3 W.W.R. 385. [77] Our Court of Appeal in R. v. Wells, 2003 BCCA 242, 174 C.C.C. (3d) 301, citing both B.(C.R.) and Handy, confirmed that

similar fact evidence is admissible for purposes of establishing the credibility of the complainant. [78] The onus was on the Crown to establish on a balance of probabilities that the threshold for admissibility of J.I.'s evidence has been met. The Crown accepted for the purposes of the voir dire that the test for threshold admissibility was whether the likelihood of coincidence was objectively improbable. [79] I concluded that the Crown had established threshold admissibility of the evidence. Both J.I. and M.R. were 14 years of age at the time of the alleged offences. Both were troubled youths in conflict with the law and their families. They did not have the support of family and were unlikely to seek the assistance of police or other authorities. In that respect, quite aside from their young age, both boys were similarly vulnerable. The facts as alleged were that the accused offered both J.I. and M.R. alcohol, played pornographic videos, invited them to masturbate in front of him and, ultimately, performed oral sex on them. [80] Counsel for the accused argued that the modus operandi alleged by J.I. was "standard fare" as foreplay to sexual activity and, thus, was not sufficiently distinctive to meet the threshold test. My response to that argument was that while it might be considered standard fare to some (which I do not accept, particularly where the sexual activity is

between an adult and a 14-year old), the issue in this case is not identity. If it was, there might be an argument that the alleged modus was not sufficiently unique or distinctive to be highly probative of the issue. However, as noted earlier, the issue is whether J.I.'s evidence as to the actus reus of the offence should be believed. [81] On the test for threshold admissibility, the Court was required to ask whether it was likely coincidental that this 14-year old, sexually inexperienced boy in New Westminster, B.C., could describe in detail the same kind of sexual contact with the accused as that in which the accused admittedly engaged with M.R. I concluded that the likelihood of such coincidence was objectively improbable. [82] I was satisfied that that the probative value of the evidence significantly outweighed its prejudicial effect. M.R.'s evidence was, therefore, admitted at trial. (d) The evidence of defence witness Linda Volkwyn [83] Linda Volkwyn was called by the accused. She is the property manager of 737 Carnarvon Street, and has been for 25 years. She lives in the penthouse suite across from the one that was occupied by the accused. Ms. Volkwyn manages several properties in the area. [84] Ms. Volkwyn recalled that the accused was a friendly, courteous and professional individual. She did not notice many visitors to his apartment. Most notable was the accused's

brother, who visited approximately a dozen times from Newfoundland. [85] Ms. Volkwyn produced a hand-drawn schematic of the accused's suite, which was created in the mid-1990s when the carpets in the suite were being replaced. She said the drawing was not to scale, but all measurements were accurate. It disclosed that the hallway running from the master bedroom at the back of the suite to the living room entrance was 15 feet 6 inches in length. The length of living area, wall to wall, measured 31 feet, 6 inches. According to the drawing, the layout of the suite was accurately described by Mr. Parnell. That is, access to the office and master bedroom required a left-hand turn from the entrance door (in the opposite direction from the living room) and then a sharp right-hand turn to a short hallway leading to the office door directly ahead. The bedroom door was located to the right of the office door. [86] Ms. Volkwyn recalled a pool table in the living room, with a mini fridge between two tall stool-like chairs along the right-hand wall. To the far left of the living room was a big screen television. She recalled a couch and chair in the living room. They were covered with a forest green coloured fabric and were "nondescript". She could not say whether there were several chairs, or chairs and a sofa. In the bedroom there was a large bed, a small television, and a tanning

bed. [87] The accused had one parking stall. He owned a grey Buick for a period of time. He also purchased a new car in late 2002, which was teal blue in colour. He paid for an extra parking stall for the grey Buick until March 2003. After that time, when Ms. Volkwyn checked the parking area, the Buick was gone. She did not know what the accused did with the car after that time. (e) The evidence of the Accused [88] The accused testified that he is now 52 years of age. He was born in St. John's, Newfoundland in 1957. He grew up and attended school in St. John's, graduating from high school there in 1973. [89] In 1980, the accused moved to British Columbia, where he lived for approximately 10 years. He then moved to London, Ontario. He attended the University of Western Ontario as an undergraduate from 1992 to 1994. He then attended law school at the University of Toronto, graduating with his law degree in 1997. [90] In September 1998, the accused applied for enrolment in the Law Society of British Columbia Admission Program. Following his acceptance, he articled with a small law firm in Vancouver and was called to the Bar in British Columbia in 1999. He has, since that time, been a member of the Law Society, practicing primarily in the area of criminal law. [91] Shortly after his birth, the accused was put up for adoption by his mother, who was unmarried at the time; she placed

him in the care of a Catholic parish in St. John's. At the age of approximately 18 months, an uncle and aunt of the accused decided to take him into their care. According to the accused, his aunt and uncle just walked away with him. They did not formally adopt the accused; there was no documentation reflecting the arrangement. The uncle was a brother of the individual the accused believes is his biological father. The uncle, Harold McGory, gave his last name to the accused. [92] The accused grew up believing his aunt and uncle were his biological parents. In his direct evidence, the accused said it was not until he was approximately 31 years of age that he discovered the truth. At that time, he was planning a trip to the United States and discovered he required a birth certificate. He contacted Mrs. McGory, who, after some hesitation, told him that his real surname was not McGory. She disclosed that he was adopted and revealed the name of his birth mother. [93] Mrs. McGory told the accused she did not have a birth certificate for the accused. The accused decided to obtain a birth certificate with the surname of his birth mother. In approximately 1987 or 1988, the accused obtained a birth certificate in the name of G.P. He also obtained a driver's licence in that name. At the same time, he obtained other documents, such as credit cards, under the name of G.P. In his

evidence-in-chief, the accused said that once he had secured his birth certificate and driver's licence under the name of G.P., he destroyed all documentation in his possession that had been obtained under the name McGory. He did so, he said, because he believed he did not have the right to use those documents any longer. [94] The evidence of the accused in cross-examination concerning the use of the name McGory was less clear. He explained that he continued to use the name McGory for some purposes after obtaining his birth certificate under the name G.P. because he did not have a credit rating under the name G.P. When attending the University of Western Ontario between 1992 and 1994, he did so under the name G.P. However, he said he obtained an apartment under the name McGory because of credit rating issues. [95] The accused was using the name G.P. in British Columbia well before he returned to Ontario to attend university. He obtained a declaration of bankruptcy in British Columbia under the name G.P. in April 1990, and acknowledged that he must have been using the name in this province for some period of time before that. [96] When the accused was arrested in Toronto in 1994 and charged with the offences involving M.R., the warrant for his arrest named him as McGory, which was the name he had been using for some purposes in London at the time of the events leading to the

charges. The booking sheet, entered as an exhibit at trial, has a blank space beside "other names". The accused did not tell police about his other name, which he had been using for several years. [97] From May 1994 to April 1998, the proceedings against the accused, which were conducted in London, Ontario, were conducted under the name McGory. Simultaneously, from September 1994 to April 1997, the accused attended law school in Toronto under the name G.P. [98] The accused acknowledged in cross-examination that he did not destroy the documentation connecting him to the name McGory until the criminal proceedings in London, Ontario concluded in 1998. [99] When the accused applied to the Law Society of British Columbia in September 1998, he was required to swear a declaration to certain matters, as are all applicants. One of the questions asked of the applicant was as follows: Have you ever been charged, in Canada or elsewhere, with any crime, offence or delinquency under a statute or ordinance? If yes, please provide full particulars on a separate sheet, including applicable dates, places, nature of acts or offences, penalties and pardons. [100] In response, the accused swore that the only charges he had faced prior to his application were traffic violations. [101] The application also contained the following: State any changes of name, formal or informal, or other surnames or

given names you have used, and when. [102] The accused's response was "N/A". He did not disclose that until five months earlier he had continued to use the name McGory for certain purposes. [103] The accused said he swore his declaration in that manner because he did not want to delay or complicate his admission to the British Columbia Bar. He acknowledged that he understood the difference between a "charge" and a "conviction" at the time. He agreed with the suggestion by counsel for the Crown that by failing to disclose the information sought by the Law Society, and swearing a declaration to the contrary, he knowingly lied. He also agreed that he understood, during the ensuing 10 years, he had committed perjury by swearing the declaration in that manner, but took no steps to rectify it. [104] During those years, the accused practiced criminal law in the Lower Mainland, frequently appearing in Provincial Court, often on behalf of young offenders. He maintained an office from his residence. [105] The accused lived in one of the penthouse suites at 737 Carnarvon Street from 2001 to 2006. He had parking privileges on the east side of the building. Parking was secure, and located underneath the building. [106] In 2004, at the time of the alleged offence, the accused owned an Oldsmobile Intrigue Sedan. He purchased it new in 2002. It had a teal coloured exterior with a grey fabric

or cloth interior. The accused said he hated leather and had never owned a car with leather interior. [107] Before purchasing the Oldsmobile, the accused owned a Buick Skylark which was light grey in colour with a grey fabric interior. He said he kept it for a time after purchasing the Oldsmobile, and considered holding on to it as a second vehicle, but decided in 2003 to sell it. He sold it privately and did not have any documentation reflecting the fact of the sale or the date on which he disposed of the car. [108] The accused described the location and interior of his penthouse suite. The elevators to the penthouse were located in the lobby. To access the lobby from the underground parking area, one had to go up several steps to the lobby where the elevators were located. The elevators went to the 20th floor. There were two staircases, each with 15 stairs, leading to the penthouses on the 21st floor. Access to the accused's penthouse was from the stairwell on the left side of the elevator. Upon reaching the 21st floor there was a locked door. Beyond that was an inner door that accessed the penthouse. [109] Upon entering the suite, there was a foyer with a washer and dryer on the right of the hallway behind a closet door. Beyond that was a bathroom. In order to see into the living room, one had to walk five to ten feet along the hallway directly ahead of the front door. [110]

There were two bedrooms in the suite. Upon entering the front door to the suite, and turning to the left instead of proceeding in a right-handed direction down the hallway to the living room, was the door to a small bedroom which the accused maintained as an office. To the left of the office door was the door to the master bedroom. When standing by the office door, one could see into the bedroom. It contained a queen-sized bed and directly opposite the bed was a dresser on which a small television sat. The accused had a tanning bed that he usually stored between the wall by the doorway and the bed. When he used the tanning bed, which was portable, he moved it to the other side of the bed close to the sliding glass doors accessing the balcony. [111] The balcony ran length-wise along the front of the living room, which faced the Fraser River, and around its side. It continued along the width of the bedroom. [112] The pool table was at the end of the hallway, to the right side of the living room area. Along the right wall, beyond the pool table, were two tall chairs for sitting and holding pool cues. Between the two chairs was a black mini fridge. A stereo system was located near the pool table. On the left side of the living room area was a couch and a large reclining chair positioned in the direction of the large screen projection television, which was located in the far left

corner of the room. Both were covered with a green fabric. The accused said he never owned leather furniture. [113] The accused had drawn a sketch of the layout of the suite. He was shown the drawing of the suite prepared by Ms. Volkwyn, which he recognized as having been faxed to him by Ms. Volkwyn. The accused said Ms. Volkwyn's sketch was the more accurate depiction of the suite. [114] The accused first acted for J.I. in about March 2004, at the request of J.I.'s probation officer. He recalled representing J.I. for approximately two years at bail hearings and sentencing hearings. J.I. often breached his conditions of release. When J.I. was arrested and in custody, he often asked to have the matter put over so that the accused could represent him. [115] The accused knew, from submissions he made on behalf of J.I., that he had just turned 14 in January 2004. He knew about his living situation, his difficulties with his family and the law, and other particulars of his life. [116] The accused described J.I. as both "troubled and troubling". J.I. often failed to report to his probation officer as ordered. The accused said he spoke with J.I.'s mother from time to time when she attended J.I.'s appearances. He also recalled telling J.I., at one point in time, that as a result of J.I.'s breaches, it was getting more difficult to appear in front of a small number of judges and make

the same positive submissions on J.I.'s behalf. [117] The accused almost always met with his clients, including J.I., in the courthouse before appearances. He rarely met with clients at his office. He could recall only one client, other than J.I., with whom he had met in his office apartment. The Crown conceded that the accused had, in fact, met with one client in his office during the years he lived in the penthouse suite and maintained an office there. [118] The accused said he recalled one occasion on which he brought J.I. to his apartment. He thought it might have been some time in May or early June of 2004, but he could not be sure of the timing. It was a day the accused was scheduled to work at the courthouse in New Westminster. He was leaving his apartment building at about 9:00 a.m. that morning for the short walk down Carnarvon Street (about half a block) to the courthouse. He spotted J.I. across the street. The accused had previously been told by Crown counsel that there was either a "s. 524" warrant or a bench warrant for J.I.'s arrest. The accused approached J.I. to tell him about the warrant. He told J.I. he wanted to be sure J.I. knew the date of his next court appearance. He decided to go back to his apartment with J.I. in order to pull J.I.'s file and determine the court date. The accused said J.I. was sometimes difficult to contact and was not very reliable. He

had a contact number for J.I.'s mother, but sometimes she ran out of cell phone minutes and could not be reached. [119] According to the accused, while he decided to take J.I. to his office with him, he was at the same time concerned that J.I. might steal something. The accused had a lot of CDs, a digital camera and other valuable items. For that reason, he did not let J.I. out of his sight. Once they entered the apartment, the accused took J.I. directly to the door of his office. J.I. stood at the door while the accused pulled the file, checked the date and gave the information to J.I. They were not in the apartment for more than 3 or 4 minutes. Even while the accused was looking through the file, he ensured that J.I. did not leave the area. He may have turned his back to J.I. for a few seconds, but J.I. remained at the threshold of the office. They then left the apartment. [120] The accused was certain his brother was not visiting from Newfoundland at the time. His brother customarily visits during his summer vacation. [121] The accused was asked in cross-examination why, if he rarely had clients in his office and was concerned about J.I. stealing something, he did not simply tell J.I. to wait outside the apartment for him. The accused replied that he was focussed on getting to court, and thought it would be most expedient to simply take J.I. with him to the apartment. [122]

The accused was also asked why, if he thought there was a warrant for J.I.'s arrest, he did not simply tell J.I. to surrender himself. The accused responded that he did not have a clear recollection of why he was concerned about J.I.'s next court appearance; he just recalled there was something about a court date. If there was a warrant, he may not have been able to tell J.I. to surrender himself because Youth Court was only scheduled for certain days in New Westminster and that may not have been one of the days. The accused did not recall what he discovered when he looked at J.I.'s file. [123] When asked how J.I. could have known that the accused's brother visited him, the accused explained that he often joked in court about having his brother staying with him. [124] The accused said he did not offer J.I. anything from the mini fridge during their brief visit to the apartment. [125] The accused said he always wore a suit and tie when appearing with clients. He did not wear glasses; he had laser surgery on his eyes in 1997 and has not worn glasses since. When he dressed casually, he wore jeans or other casual pants. He only wore a baseball cap when it was sunny in order to protect his scalp. He said he did not own a blue jean jacket. [126] In his direct evidence, the accused said he knew vaguely about St. Thomas More School. He recalled having driven by it. He thought it was

"somewhere in Burnaby", perhaps on Kingsway. The accused always drove into Vancouver on Canada Way, rather than Kingsway. He said he had never lived close to the school and had never been on the school property. [127] The accused has lived in New Westminster for the past 10 years. Kingsway is a major artery from Vancouver to New Westminster, becoming 12th Street in New Westminster where it intersects with 10th Avenue. St. Thomas More School is located at that intersection; it is on the border between Burnaby and New Westminster. The school is a 3 or 4 minute drive to the accused's apartment building. [128] The accused acknowledged in cross-examination that he had driven on Kingsway during his 10 years in New Westminster. The running track and bleachers behind the school are clearly visible to drivers on Kingsway. [129] The accused produced credit card statements establishing that he was travelling outside of British Columbia for a week or so at the end of June 2004. He did not suggest that he was away at any other time during that summer. He acknowledged that as a result of representing J.I. in 2004, he would have known there were warrants for his arrest issued in August 2004. [130] The accused denied that he ever offered J.I. shelter or engaged in any sexual activity with him. IV. POSITIONS OF DEFENCE AND CROWN (a) Defence [131] Counsel for the accused, observing that the case

turns entirely on credibility, cited the well-known test enunciated in R. v. W.(D.), [1991] 1 S.C.R. 742, 63 C.C.C. (3d) 397. The trier of fact, whether judge or jury, must consider the following. First, if the trier of fact believes the evidence of the accused that he did not commit the offence, then obviously he must be acquitted. Second, if the trier of fact does not believe the evidence of the accused, but it leaves a reasonable doubt as to whether he committed the offence, he must be acquitted. If, after a careful consideration of all of the evidence, the trier of fact is unable to decide who to believe, the accused must be acquitted. Lastly, even if not left in a reasonable doubt by the evidence of the accused, the trier of fact must ask whether, on the basis of the evidence he/she does accept, whether there is a reasonable doubt as to the guilt of the accused. [132] In this case, said counsel for the accused, the third and fourth legs of the instruction are particularly relevant. If, after careful consideration of all the evidence, the Court is unable to decide who to believe, it must acquit the accused. Further, as stipulated in the fourth leg of the instruction, on the basis of the evidence the Court does accept, there must be no reasonable doubt as to the guilt of the accused in order to convict. In the present case, said counsel, there were many pieces of evidence

which, taken together, must leave a reasonable doubt as to the accused's guilt. [133] While the accused lied under oath in his declaration to the Law Society, and lying under oath is always serious, it is not conclusive of the accused's credibility in this case, particularly in light of the numerous inconsistencies in J.I.'s evidence. [134] Counsel for the accused reminded the Court that at the time the offence was alleged to have occurred, and at the time it was reported, J.I. was a very troubled youth with a history of violent offences and breaches of his conditions of release. It was because he was a troubled youth that he met the accused. Although he appeared to have turned his life around by the time he testified at trial, he was a bad person at the material times. [135] It took J.I. over a year and a half to disclose the incident, during which time he continued to have regular contact with the accused. J.I. then told a health professional who was questioning him for the preparation of the PSR in 2006 that he did not recall ever being sexually abused. His explanation for lying about the matter -- that he thought the PSR would be referred to during his sentencing hearing at which his mother would be present -- was not believable. J.I. said his mother always attended his court appearances; the accused acknowledged that she did attend some of them, but he was not aware of her

attending every time. [136] The circumstances of the disclosure were suspect, argued counsel for the accused. J.I. was arguing with his girlfriend. He decided to "one up" her story by saying he, too, had been sexually abused. J.I. may have picked the accused as his abuser because the accused was quite open about his sexual orientation. It is also likely, said counsel, that J.I. decided to describe the sexual contact as oral sex performed on him by the accused because it did not require J.I.'s active participation and therefore would not carry the same stigma as other kinds of sexual activity. [137] The alleged "pick up" at the school was also suspect. Why, asked counsel, would the accused be in the school yard in the middle of the night? [138] J.I. was wrong about the colour and make of the accused's car, wrong about location of the elevator in the underground parking area, and wrong about many of the things he claimed to have seen in the accused's apartment, including the location of the kitchen (on the right instead of left side), the colour of the mini fridge, and the leather couches. He did not notice the pool chairs by the mini fridge. He did not see the tanning bed. J.I. must have guessed there would be a television in the bedroom, but guessed wrongly as to its size and precise location. [139] The only reason J.I. knew anything about the layout and contents of the

apartment was because of his fleeting visit as described by the accused. J.I. likely knew about visits by the accused's brother because the accused sometimes joked in court about his brother and the visits. [140] Counsel for the accused argued that while the similar fact evidence met the threshold for admissibility, its weight is questionable. The accused was not even arguably in any position of authority with respect to M.R. The sexual contact between the accused and M.R. was consensual and took place over a considerable period of time. [141] Finally, the accused was not in a position of trust or authority with respect to J.I. because he was not retained by J.I. concerning a specific offence at the time. (b) Crown [142] The Crown submitted that J.I.'s evidence is corroborated by the similar fact evidence: Wells. The value and effect of the evidence of M.R. is that it makes less probable than not that J.I. concocted the events concerning the sexual contact initiated by the accused. [143] While J.I. obviously has a criminal record, he has faced no charges since 2006. The Court had an opportunity to watch J.I. in the witness box. He testified in an open and candid manner. He had nothing to gain by the prosecution of the accused. As a result of his report to police, he lost the services of his lawyer. [144] The unexpected evidence of Mr. Parnell in cross-examination was also

corroborative of J.I.'s evidence. First, it emerged that the accused had a second car, which was a light grey Buick. J.I. was emphatic that the car he got into that night was not teal blue; he recalled a beige Impala. Mr. Parnell thought the accused had the second car in 2004, but agreed with the suggestion of the accused that it might have been 2003. The significance is that the accused had access to a car other than the teal blue one. [145] Second, when Mr. Parnell was asked whether he saw many visitors at the accused's apartment, he responded, "None other than his brother." J.I. testified that the reason the accused gave for having J.I. sleep in his bed was that his brother was visiting. How could J.I. have known about visits from the brother? The accused's attempt to explain away this harmful evidence was disingenuous, at best. [146] Even more problematic for the accused was J.I.'s unique knowledge about the penthouse suite. Even after the passage of one and half years, J.I. was able to produce a sketch which depicted quite accurately the layout and contents of the suite. He depicted the kitchen on the wrong side of the hallway, but he was never in the kitchen. He was only in the living room, on the side of the room with the pool table, and in the master bedroom. If he knew of the existence of the office, why did he not say so? Given the passage of time, the time of night,

the activities in which he engaged, it is not at all surprising that there were some discrepancies. [147] J.I. had never seen a mini fridge. Even Mr. Parnell, who attended the suite numerous times to effect repairs, did not realize the "black object" between the two chairs was a mini fridge; he thought it was a counter. The only reason J.I. knew the object was a mini fridge was because the accused opened it and produced alcohol from it for J.I.'s consumption. [148] J.I. could not have known that the bedroom contained a television unless he had been inside the room. He did not see the tanning bed, but he did not know what a tanning bed was. It is clear the tanning bed was very portable. The accused moved it around his bedroom. In the photograph produced by the accused, the tanning bed was situated next to a fax machine in what appeared to be an office. [149] The effort of the accused to explain away J.I.'s knowledge of the suite was equally disingenuous. It was put to J.I. in cross-examination that he attended the suite with the accused one morning when he was scheduled to appear in court and the accused wanted to retrieve his file. Yet, the accused testified that he was on his way to court on other matters, saw J.I. on the street, knew there was a warrant for his arrest, and told J.I. he wanted to determine when he was next scheduled to appear in court. Why, asked the Crown,

did the accused not simply take J.I. to the courthouse to surrender himself? [150] The Crown submitted that while the accused denied the sexual contact with J.I., he is an admitted liar. He lied under oath to the Law Society and failed to correct that lie for almost 10 years, despite knowing that he had committed perjury. He failed to disclose the name McGory and failed to disclose the existence of the Ontario charges. He deceived the police in London, Ontario, by failing to disclose the other name he was already using. He deceived the police in New Westminster by failing to disclose the name "McGory". He provided conflicting explanations as to when and why he destroyed the documents connecting him with the name McGory. [151] The Crown submitted that the accused held both positions of authority and trust with respect to J.I. at the time of the alleged offence. J.I. recognized the accused as the lawyer who represented him when he was in trouble. In August 2004, J.I. was 14 years of age with nowhere to sleep. He was offered a safe and warm place to spend the night by the person who had been representing him in court for several months. He trusted the accused because of their professional relationship. He was sexually inexperienced and had never used alcohol. He may have been a troubled child, but he was still a child. [152] Given the disparity in age, the vulnerability of J.I.,

and the evolution of the relationship that night, the Crown submitted that the accused was in a position of trust in relation to J.I. Similarly, given the solicitor-client relationship, the accused was also in a position of authority in relation to J.I. at the time in question, and within the meaning of s. 153 of the Criminal Code. V. DISCUSSION (a) Has the Crown proven beyond a reasonable doubt that the sexual contact occurred? [153] J.I. had obviously spent some time in the accused's penthouse suite. He had been in the living room area and the bedroom. There is no other explanation for his familiarity with the furnishings and layout of the bedroom and living room. The sketch of the suite provided by Ms. Volkwyn, which the accused acknowledged was more accurate than his (and which sets out the measurements of the suite), depicts a layout that corroborates J.I.'s evidence in many respects. J.I. did not use either of the bathrooms or go into the kitchen. He described the shape and layout of the kitchen accurately but placed it on the opposite side of the hallway. He accurately described the location of both bathrooms, including the one attached to the master bedroom. [154] The accused sought to explain J.I.'s familiarity with the suite. He testified that he took J.I. to his suite on one occasion only. On that occasion, he said, he and J.I. proceeded immediately to the office at

the back of the suite. [155] Proceeding immediately to the office from the front door of the suite would have involved turning left toward the back of the suite, rather than proceeding directly ahead along the hallway to the front of the suite where the living room is located. The entrance to the office is to the left off the main hallway and down another short hallway to the right, as described by Mr. Parnell and as depicted in Ms. Volkwyn's sketch. [156] According to the accused, J.I. stood at the threshold of the office the entire time that he was in the suite. The accused kept close watch on J.I., he said, because he was worried J.I. might steal something. He said J.I. never left the office threshold. That evidence raises several questions. [157] First, why would the accused, who had on only one other occasion in the years he occupied the suite taken a client to his office, take J.I. to his office when he was so concerned about his propensity to steal? There was no reason to do so. On the accused's evidence, he was on his way to the courthouse when he accidentally encountered J.I. If, as the accused said, there was a warrant for J.I.'s arrest, why not simply have J.I. accompany him to the courthouse? There was simply no need to go back to the suite to check J.I.'s file for a future court appearance. At the very least, if the accused was concerned about J.I. stealing

something, he could have asked J.I. to wait outside the apartment while he checked J.I.'s file. The accused's explanation as to why he took J.I. to his suite is not believable. [158] Further, if Ms. Volkwyn's diagram and Mr. Parnell's description of the suite are accurate -- and the accused did not suggest otherwise -- J.I. could not have seen the mini fridge against the right hand wall of the living room. The pool table was positioned length-wise in the room. It may have been possible to see part of the pool table from the hallway, but not the mini fridge. The mini fridge was an unusual black colour. Mr. Parnell thought it was a counter. Not only would J.I. have to be in the living room to see the mini fridge, he would have to identify it as such when he had never seen one before. He identified it as a fridge, in my view, because the accused opened it and revealed its contents to J.I. [159] J.I. said he did not know the apartment had a second bedroom. However, if he was standing at the threshold of the office, which was adjacent to the door of the master bedroom, he would have known there was a second room. It would have served J.I.'s interests to testify that there was both a bedroom and an office, had he known of the latter, but he did not. That, I am satisfied, is because the accused did not take J.I. to his office. He took J.I. only into his bedroom. [160] J.I. knew there

was a large screen television on the far left side of the living room and furniture arranged in a manner to facilitate viewing of the television. Had J.I. entered the suite and immediately gone to the office, without entering the living room area, his opportunity to view the left side of the living room would have been fleeting at best. He accurately described the arrangement of the furniture in relation to the television. J.I. did not sit on the furniture, but recalled that it looked like black leather. Ms. Volkwyn did not recall leather furniture. The accused denied ever owning leather furniture. However, Mr. Parnell recalled both fabric-covered and brown leather furniture. [161] The accused's explanation for J.I.'s knowledge of the interior of the suite based on a 3 or 4 minute visit to his office at the back of the suite was, quite simply, not believable. [162] As troubling as the accused's explanation for J.I.'s familiarity with the suite was his attempt to explain J.I.'s knowledge of the brother and his visits. The brother may or may not have been visiting at the time. What is significant is that J.I. recalled the accused using the brother's visit as the excuse for having J.I. sleep in the master bedroom. One must ask how J.I. would have known otherwise of the brother and his visits. The accused's story about mentioning his brother's visits in court had not the slightest

ring of truth to it. Further, it would be remarkable, indeed, for a youth such as J.I. to cobble together all of the elements of the late-night encounter with the accused, complete with knowledge of a visiting brother -- which, according to the accused, J.I. may have overheard as a result of comments made in passing to others. [163] I do not accept that J.I. made a "lucky guess" about the television in the bedroom. He could not have seen the television from the office doorway. He knew it was there because he had been inside the bedroom. Further, from the sketch J.I. drew, he knew the balcony extended beyond the living room to the length of the bedroom. He could not have known that fact unless he had been inside the bedroom. [164] I am not troubled by the fact that J.I. did not see a tanning bed in the bedroom. He did not know what a tanning bed was. Mr. Parnell, who had been in the suite on numerous occasions, had a "vague recollection" of a "heat lamp bed". The bed was clearly portable. The accused moved it frequently from one side of the bedroom to the other. The incident is alleged to have occurred in August, not a time when a tanning bed would be particularly useful. It could well have been in the office at the time. [165] J.I. was adamant that the teal blue Oldsmobile was not the car driven by the accused on the night of the incident. In light of the other evidence of

J.I., that inconsistency is not sufficient to cast doubt on his evidence. The accused had access to more than one car. He previously owned a second car, which was a light grey Buick. While he said he sold it in 2003, he provided no proof of its transfer to the new owner. Mr. Parnell testified that the accused had the Buick in 2004; he agreed in cross-examination that it might have been 2003. [166] The accused initially represented that he was only vaguely aware of St. Thomas More School and its location. In his direct evidence, he said he thought the school was "somewhere in Burnaby", and had never lived near the school. In fact, the school was located five or six blocks from his residence. The accused acknowledged in cross-examination that he knew precisely where the school was located. [167] As photographs of the school taken from Kingsway disclose, the bleachers on which J.I. said he was sitting are in clear view to drivers on Kingsway. [168] J.I. said the encounter with the accused occurred in August of 2004. His recollection was assisted by the surprise visit of his girlfriend from Nanaimo in August. There was a warrant for his arrest at the time, which is why his mother would not let him return to the house. In fact, as noted by the Crown, there were two warrants issued for the arrest of J.I. in August 2004. The accused did not suggest that he was away from New

Westminster at that time. [169] The accused has given false evidence under oath before. In his declaration to the Law Society, he stated that he did not have any other names. He failed to disclose the existence of the London, Ontario charges. Despite knowing that his false declaration was perjury, he took no steps to rectify it in the ensuing years. [170] The evidence of the accused about the use of the name McGory, and the circumstances under which he changed his name to G.P., was confusing and contradictory. In direct evidence, he sought to leave the impression that he destroyed all documentation connecting him to the name McGory when, in about 1988, he obtained a birth certificate under the name G.P. In cross-examination, it emerged that he did not destroy the documentation until after his acquittal on the London, Ontario charges in 1998. [171] For many years, the accused used two names. Particularly in light of the London, Ontario charges, it suited his purposes to use McGory long after he had changed his name to G.P. At the same time, he used the name G.P. when attending law school, when applying for bankruptcy in British Columbia, and when applying for admission to the Law Society. [172] The accused was not a credible witness on any of the key factual issues. [173] J.I. is now 19 years of age. He has limited education. His opportunities in life have been few. He is now

employed, on a full-time basis, as a forklift driver. [174] J.I. was in the witness box for two days. For one and a half of those days he was vigorously cross-examined. As trial judges caution juries, one must be careful when assessing credibility on the basis of a witness's demeanour. Nevertheless, demeanour can be a factor. I had the advantage of observing J.I. in the witness box over those two days. He gave his evidence in an open, forthright and candid manner. He readily accepted some suggestions put to him by counsel for the accused, and rejected others. J.I. is a young man of few words; while his responses to questions were economical, they were always considered. [175] There was nothing to suggest that J.I. had any axe to grind with the accused. I accept J.I.'s evidence that he was always happy with the representation he received from the accused. I also accept his evidence that the accused never threatened to stop representing him. It is notable that while it was suggested to J.I. in cross-examination that he was angry with the accused because he threatened to stop acting for J.I., the accused did not suggest in his evidence that he had ever given J.I. such an ultimatum. [176] I also accept J.I.'s evidence that he did not know about the accused's sexual orientation. The accused did not suggest otherwise in his evidence. [177] J.I. did not disclose the August 2004

incident with the accused until it surfaced in an argument with his girlfriend. That is not surprising. Common sense and life experience would suggest that a 14-year old Aboriginal youth, self-identified as "tough", would be extremely reluctant to tell anyone that he had submitted to oral sex with another male. The circumstances of the disclosure and, in particular, its spontaneous nature, are quite consistent with the person J.I. was at the time. It was apparent, even as a 19-year old giving evidence at trial, that J.I. was self-conscious and uncomfortable about the sexual contact he described occurring between himself and the accused. [178] There is nothing remarkable about the fact that this 14-year old boy would continue to accept the accused, who had been assisting J.I. from the outset of his difficulties with the criminal justice system, as his legal counsel. J.I. had few moorings in his life. The accused was one. [179] Returning to the process of reasoning described in W.(D.), I do not believe the denial of the accused. Nor does his evidence leave me with a reasonable doubt as to whether he had sexual contact with J.I. On the basis of the evidence I accept, including the evidence of J.I., I am satisfied beyond a reasonable doubt that the sexual contact described by J.I. did occur. [180] Counsel for the Crown submitted that the value and effect of the similar fact

evidence of M.R. is that it makes it less probable than not that J.I. concocted the version of events to which he testified. I agree with that submission. M.R.'s evidence adds to the strength of the Crown's case against the accused. However, I have concluded that reliance on M.R.'s evidence is not necessary. I am satisfied beyond a reasonable doubt, without consideration of the evidence of M.R., that the accused engaged in the conduct to which J.I. testified. (b) Was the accused in a position of trust or authority? [181] The accused is charged under s. 153(1)(a) of the Criminal Code. The Crown must prove beyond a reasonable doubt not only that the alleged sexual contact with the young person occurred, but also that the accused was in either a position of trust or a position of authority in relation to the young person at the time. [182] In this case, the Crown submitted that the accused was in both a position of trust and a position of authority. R. v. Audet, [1996] 2 S.C.R. 171, 135 D.L.R. (4th) 120, is the leading authority on the issue. At para. 33 of Audet, La Forest J., writing for the majority, cited the comments of Blair J. in R. v. P.S., [1993] O.J. No. 704 (Gen. Div.) concerning the scope of the term "position of trust"" Finally, Blair J., also in P.S., wrote the following about the term "position of trust": One needs to keep in mind that what is in question is not the

specialized concept of the law of equity, called a "trust". What is in question is a broader social or societal relationship between two people, an adult and a young person. "Trust", according to the Concise Oxford Dictionary (8th ed.), is simply "a firm belief in the reliability or truth or strength of a person". Where the nature of the relationship between an adult and a young person is such that it creates an opportunity for all of the persuasive and influencing factors which adults hold over children and young persons to come into play, and the child or young person is particularly vulnerable to the sway of these factors, the adult is in a position where those concepts of reliability and truth and strength are put to the test. Taken together, all of these factors combine to create a "position of trust" towards the young person. [emphasis in original] And, at para. 36: I would add that the definition of the words 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 account the purpose and objective pursued by Parliament of protecting the interests of young persons who, due to the nature of their relationships with certain persons, are in a position of vulnerability and weakness in relation to those persons. [emphasis in original] [183] La Forest J. observed that the concept of a

position of trust is difficult to define in the absence of a factual context. He concluded as follows at para. 38: It will be up to the trial judge to determine, on the basis of all the factual circumstances relevant to the characterization of the relationship between a young person and an accused, whether the accused was in a position of trust or authority towards the young person ... One of the difficulties that will undoubtedly arise in some cases concerns the determination of the times when the "position" or "relationship" in question begins and ends. It would be inappropriate to try to set out an exhaustive list of the factors to be considered by the trier of fact. The age difference between the accused and the young person, the evolution of their relationship, and above all the status of the accused in relation to the young person will of course be relevant in many cases. [184] The relevant facts concerning the nature of the relationship between the accused and J.I. in this case are the following. [185] J.I. met the accused in March 2004, just after he had turned 14 years of age. The accused was 47 years of age. [186] The accused represented J.I. on his first criminal charge. J.I. contacted the accused each time he was in trouble after March 2004, and J.I. continued to represent him. Often J.I. waited until the accused was available to represent him. He left messages on

the accused's answering machine, and the accused would attend to represent J.I. The accused spoke for J.I. at bail hearings and sentencing hearings. He performed professional services for J.I. that J.I. could not perform for himself. [187] The accused was not retained by J.I. on a particular matter in August 2004, but by that time he was familiar with J.I.'s family background and his living arrangements. He knew J.I. was persistently in trouble with the law. The accused acknowledged that he was the adult on whom J.I. relied to get him out of trouble, as best he could. [188] In August 2004, when he was still 14 years of age, J.I. found himself without a place to spend the night. After several hours, he was approached by the accused. J.I. told him he could not go home and was not allowed to stay at his friend's house. When the accused offered to drive him around, J.I. accepted. He said he thought he could trust the accused. He thought he would have a safe place to stay, and it would be better than staying outside for the night. [189] When the accused took J.I. to his suite, he gave him alcohol. He told J.I. he would have to sleep in his bedroom because of the visiting brother. After showing J.I. a pornographic video, the accused performed oral sex on J.I. [190] In light of the disparity in the ages of J.I. and the accused, the vulnerability of J.I., both generally and on the

night of the encounter, and the relationship that had evolved between J.I. and the accused since March 2004 and that evolved on the night of the encounter, I am satisfied beyond a reasonable doubt that the accused was in a position of trust in relation to J.I. within the meaning of s. 153(1) of the Criminal Code. [191] The Crown was not required to prove that the accused was also in a position of authority. However, particularly in light of the previous solicitor-client relationship between the accused and J.I., and the expectation of J.I. that the accused would continue to represent him when he encountered difficulties with the law, I am equally satisfied that the accused was in a position of authority in relation to J.I. VI. CONCLUSION [192] For the reasons stated, I find the accused guilty of sexual exploitation contrary to s. 153(1)(a) of the Criminal Code. The Honourable Madam Justice C. A. Wedge May 13, 2009 - Revised Judgment [1] The descriptive "left" and "right" are corrected as follows. [2] The last sentence of para. 45 should read: To the left of the office was the master bedroom. [3] Paragraph 112 should read: The pool table was at the end of the hallway, to the right side of the living room area. Along the right wall, beyond the pool table, were two tall chairs for sitting and holding pool cues. Between the two chairs was a black mini fridge. A stereo system was

located near the pool table. On the left side of the living room area was a couch and a large reclining chair positioned in the direction of the large screen projection television, which was located in the far left corner of the room. Both were covered with a green fabric. The accused said he never owned leather furniture. [4] The reasons for judgment are amended accordingly. In all other respects the reasons stand. May 20, 2009 - Revised Judgment Please be advised that the attached Reasons for Judgment of Madam Justice C.A. Wedge dated May 12, 009 have been edited. · On the front page under the heading of Date and Place of Trial/Hearing, the date '29" has been replaced with "19".