Law Times

LAW TIMES / APRIL 7, 2008 NEWS SCC upholds conviction Budd fails in appeal of sex exploitation conviction L BY ROBERT TODD Law Times awyers for Toronto energy and environment lawyer Peter Budd have lost their bid to have his sexual exploitation case heard at the Supreme Court of Canada. "We suggested this was an op- portunity for the court to resolve the apparent differences between the courts in several provinces, and they didn't take up the invitation," says Sack Goldblatt Mitchell LLP lawyer Frank Addario, who was part of the team of lawyers who filed for leave to appeal. The ap- plication was dismissed March 27 without reasons. Budd was convicted in May 2006 in Ontario Superior Court of sexual exploitation involving a pair of London-area sisters when they were under the age of 18. The Ontario Court of Appeal up- held that ruling in October 2007, at which time Budd began serving his nine-month sentence. The case in- volves Budd — who is a 46-year- old separated father with three sons — and a family he met in the late 1990s af- ter buying a hobby farm in western Ontario. In his rul- ing, Superior Court Justice David Little noted, "The D women, mother DD and daugh- ters MD, AD, and KD, were wowed by this charismatic, exuberant, high- energy, generous, Thompson, and Addario filed leave to appeal Budd's conviction to the Supreme Court. In documents obtained by Law Times, the lawyers argued to the SCC justices that the case was of public importance for several reasons. "The s. 153 'sexual exploita- tion' offence is serious and carries a high degree of stigma," says the applicant's memorandum of ar- gument. The lawyers noted that the offence has been paired with a mandatory minimum sentence from five to 10 years. "These amendments signifi- cantly increase both the stigma of a conviction and its potential impact on defendants' liberty and livelihood, and make it especially important that citizens receive fair notice of the circumstances where s. 153 applies, particularly since the prohibited activity — consen- sual sexual contact with a person over the ordinary 'age of consent' — is generally lawful, and be- comes criminal big-city lawyer, his financial and career success, and his partying lifestyle." Little wrote that Budd be- It is obvious on the facts looked at overall that MD and KD were vulnerable in the circumstances. They were young and impressionable and easily swayed by this debonair, dynamic individual. came "a confidant and friend" to the family and made his Toronto home available to them, eventu- ally sleeping with all of the daugh- ters when they were over age 14 and not yet 18. Sexual assault charges in the case were dismissed after the judge found the girls had consented, while sexual exploitation charges involving the eldest daughter also were dismissed. Budd admitted to sleeping with all three daughters following an emotional exchange between a pair of the daughters and the mother one night in February 2004. Before that, the sisters didn't know he'd been with all three of them. That exchange came after Budd told the mother that he and the eldest daughter were falling in love. The Court of Appeal agreed that a "position of trust existed as between the appellant and AD and KD." The appeal court's endorse- ment also reads, "It is obvious on the facts looked at overall that MD and KD were vulnerable in the cir- cumstances. They were young and impressionable and easily swayed by this debonair, dynamic indi- vidual." Sack Goldblatt Mitchell law- yers Jonathan Dawe, William only in circum- stances." The lawyers go on to argue that Parliament has attached the con- cept of "position of trust" in assign- ing liability in a number of sexual offences, and is considering its ap- plication to new ones. "It is thus es- sential that this imprecise term be fleshed out and given content by the courts," wrote the lawyers. They also re- ferred to the 1996 Supreme Court case R. v. Audet, which, the lawyers said, "clarifies the application of s. 153 to per- sons in formal positions of author- ity, and puts teachers and similar authority figures on notice that they must avoid sexual contact with their young students." But, the lawyers argued, "for people not in a formal position of authority great uncertainty exists as to exactly when s. 153 applies." The lawyers said that courts in different jurisdictions have applied various approaches to the issue "and reached inconsistent conclu- sions on seemingly indistinguish- able sets of facts." They argued "the need for clarity on this issue, and the need to avoid inconsistent ap- plication of the law in different provinces, are both compelling reasons for this court to hear the proposed appeal." Crown lawyer John McInnes, who represented the attorney gen- eral of Ontario in the case at the Supreme Court, says, "It's hard to read the tea leaves when it comes to dismissals of leave applications be- cause the court doesn't give reasons, but one possible interpretation of it is that the court is satisfied that their earlier decision in Audet is comprehensive and readily under- stood by lower courts." Budd was a partner at the bou- tique energy law firm Power Budd We carry a complete line of Corporate Promotional Products Damage Control: An Employer's Guide to Just Cause Termination Second Edition An Employer's Guide to Disability Management Ontario Labour & Employment Legislation, 2007-2008 Edition LLP when the criminal charges were laid in 2004. He currently is listed in the Law Society of Up- per Canada's member directory as being in private practice. A law society spokeswoman LT 1-4x3•Web Discount 4/2/08 2:17 PM Page 1 told Law Times that the licens- ing body keeps abreast of cases in which a lawyer is charged with an offence, and usually investigates. But such investigations remain confidential until LSUC informs April Specials Visit our Web site and Save 20% www.canadalawbook.ca Pregnancy, the Workplace and the Law the lawyer that a discipline hear- ing is pending, as per the Law Society Act. Addario wouldn't comment on what Budd's plans are when he completes his jail term. LT PAGE 5 DD LT RXQTC-06 Promo ad 3/26/08 3:23 PM Page 1 C NOW AVAILABLE 2008 G LF IDEAS B R O C H U R E There are over 1,000 golf accessories available, let us find the ideal item for you. 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