In R. v. M.S., 2022 BCCA 390, November 22, 2022, the accused was convicted of the offence of sexual assault. The offence involved the accused having sexual intercourse with his eighteen year-old step daughter (TS). The accused appealed from conviction, arguing that the T.S. had “consented” to the sexual activity and that the trial judge erred in in applying section 273.1(2)(c) of the Criminal Code. This section states as follows:
For the purpose of subsection (1), no consent is obtained if
(c) the accused induces the complainant to engage in the activity by abusing a position of trust, power or authority.
The appeal was dismissed. The British Columbia Court of Appeal concluded that the trial judge had not erred in applying section 273.1(2)(c) of the Criminal Code.
Section 273.1(2)(c) of the Criminal Code:
The Court of Appeal indicated that section 273.1(2)(c) “recognizes that there may be circumstances where a complainant apparently consents by going along with and participating in sexual activity without objection, but the overall circumstances are such that it cannot be said the complainant truly agreed to it”. The Court of Appeal also indicated that the “jurisprudence is clear that s. 273.1(2)(c) requires that these elements be met: (a) first, a finding that objectively, there is a relationship of trust, power or authority between the accused and the complainant; and, (b) second, a finding that subjectively, the complainant was induced to engage in the sexual activity because of the accused’s abuse of that relationship…The Crown must prove that the complainant entered into the sexual activity as a result of the accused’s exploitation (or, to put it another way, abuse) of their relationship of trust” (at paragraphs 37 and 38).
The Element of Inducement:
The Court of Appeal held that the “element of inducement in s. 273.1(2)(c) is focused on the question of why the complainant engaged in the sexual activity…the proper question [is] why the complainant entered into the sexual relationship, and whether it was because the accused induced or incited her to participate by abusing his position of trust. The question is not the extent to which the complainant participated once there; that is the wrong perspective to approach the issue…nothing coercive is required to prove the element of lack of consent pursuant to s. 273.1(2)(c). Inducement can be inferred from the circumstances” (at paragraphs 39 to 40, and 42).
The Court of Appeal concluded that “the ‘inducement’ requirement in s. 273.1(2)(c) is focused on why the complainant engaged in the sexual activity. If the Crown proves, based on all of the circumstances, that the complainant did so because she was induced by the accused’s abuse of his position of trust, then that proves there was a lack of consent. This can be inferred; it is not a requirement that the Crown point to a specific action of ‘inducement’ by the accused, such as using persuading words” (at paragraph 49).
In dismissing the appeal, the Court of Appeal noted that “the judge made findings of fact that supported the conclusion that T.S. was induced to engage in the sexual activity” (at paragraph 55). It concluded that the verdict was supported by the evidence (at paragraphs 56 to 60):
The judge found that T.S. had no job, had a fraught relationship with her mother, and she suffered from anxiety to such an extent she required medication. She was young and at times even younger in terms of her ability to function. She had not been able to retain a job at a fast-food restaurant. In those circumstances, the appellant offered her shelter and food. There was a power imbalance in the relationship. The appellant created an environment where he was physically close to her, lying together on the bed while watching television, and making it easy for him to initiate and pursue the sexual contact. He then initiated the sexual contact.
The judge considered T.S.’s subjective state of mind in not resisting and instead going along with the appellant’s sexual overtures. He found that she did so because of the appellant’s abuse of the relationship of trust. This was an inference of fact, supported by the whole of the evidence. The answer to why she went along with the sexual activity was clear: T.S. was an extremely vulnerable person who was living as a dependant on her father; she did not want to resist him but instead wanted to make him happy due to her dependence and vulnerabilities.
The judge also emphasized that it was the appellant who initiated the sexual activity. I disagree with the appellant’s argument that this fact was irrelevant. The question of who initiates the activity can be a relevant factor, as noted in cases such as Makayak and Snelgrove. In all of the circumstances of this case, especially given the power imbalance and father-daughter relationship, the fact that the appellant initiated the sexual activity is relevant to the question of whether the sexual activity (and lack of resistance to it) was induced by an abuse of trust. The judge made no error in considering it.
For those reasons, I see no basis for this Court to intervene in the conviction. The verdict was supported by the evidence and is logical; it cannot be said that it was unreasonable.
I would dismiss the appeal.