WARNING
The court hearing this matter directs that the following notice should be attached to the file:
A non-publication and non-broadcast order in this proceeding has been issued under subsection 486.4(1) of the Criminal Code. This subsection and subsection 486.6(1) of the Criminal Code, which is concerned with the consequence of failure to comply with an order made under subsection 486.4(1), read as follows:
486.4 Order restricting publication — sexual offences. —(1) Subject to subsection (2), the presiding judge or justice may make an order directing that any information that could identify the complainant or a witness shall not be published in any document or broadcast or transmitted in any way, in proceedings in respect of
(a) any of the following offences:
(i) an offence under section 151, 152, 153, 153.1, 155, 159, 160, 162, 163.1, 170, 171, 172, 172.1, 173, 210, 211, 212, 213, 271, 272, 273, 279.01, 279.02, 279.03, 346 or 347,
(ii) an offence under section 144 (rape), 145 (attempt to commit rape), 149 (indecent assault on female), 156 (indecent assault on male) or 245 (common assault) or subsection 246(1) (assault with intent) of the Criminal Code, chapter C-34 of the Revised Statutes of Canada, 1970, as it read immediately before January 4, 1983, or
(iii) an offence under subsection 146(1) (sexual intercourse with a female under 14) or (2) (sexual intercourse with a female between 14 and 16) or section 151 (seduction of a female between 16 and 18), 153 (sexual intercourse with step-daughter), 155 (buggery or bestiality), 157 (gross indecency), 166 (parent or guardian procuring defilement) or 167 (householder permitting defilement) of the Criminal Code, chapter C-34 of the Revised Statutes of Canada, 1970, as it read immediately before January 1, 1988; or
(b) two or more offences being dealt with in the same proceeding, at least one of which is an offence referred to in any of subparagraphs (a)(i) to (iii).
(2) Mandatory order on application. — In proceedings in respect of the offences referred to in paragraph (1)(a) or (b), the presiding judge or justice shall
(a) at the first reasonable opportunity, inform any witness under the age of eighteen years and the complainant of the right to make an application for the order; and
(b) on application made by the complainant, the prosecutor or any such witness, make the order.
486.6 Offence. —(1) Every person who fails to comply with an order made under subsection 486.4(1), (2) or (3) or 486.5(1) or (2) is guilty of an offence punishable on summary conviction.
Court Information
Ontario Court of Justice
Between:
Her Majesty the Queen
— and —
Christian May
Before: Justice M.S. Block
Heard on: December 14, 2015, September 9 and 22, 2016
Judgment given: February 13, 2017
Reasons for Judgment released: March 3, 2017
Counsel:
- N. Trbojevic, Counsel for the Crown
- B. Petrouchinova, Counsel for the defendant C. May
Judgment
OVERVIEW
1Christian May was charged with sexual assault, sexual interference and invitation to sexual touching in relation to C.S. between July 1 and August 31, 2011. At that time Mr. May was 18. C.S. was 13. Mr. May argues that the sexual activity was consensual, that he believed C.S. to be 16 years of age and that he took all reasonable steps to determine her age. On February 13, 2017, I acquitted Mr. May of all charges. The following are my reasons for so doing.
EVIDENCE OF C.S.
2C.S. testified that she met the defendant when she snuck out of her house one night to meet L.H., who was already friends with Mr. May. L.H. told her he was 18. The two girls then met up with Mr. May and another boy named Cody. She testified that she did not recall ever directly telling the defendant her age nor did he ask. She did not misrepresent her age to the defendant. She was aware that L.H. had inflated her own age to the defendant, but only by one year. Mr. May told the complainant that he lived at a friend's house and that his parents paid his rent. The four consumed some alcohol and played 'truth or dare'.
3C.S. and the defendant kissed. She felt that there was a mutual romantic interest.
4They met several times over the next one or two weeks. She told the court she couldn't recall whether her age was discussed but that she did discuss going into high school with him.
5One or two weeks later she went to his home. C.S. initially testified that Mr. May answered the door clad in boxer shorts only. She said she had seen Mr. May dressed that way when visiting previously with L.H. Under cross-examination she admitted telling police that he was clad in boxers and a shirt. They went to his room and sat on a bed. They chatted and kissed. She was comfortable with kissing Mr. May. He then said that he had never gotten a blow job. She refused but, after he persisted, she agreed to give him a hand job. As this was going on he pushed her head towards his penis several times. Eventually he stood up, put his penis in her face and she performed oral sex on him. She testified she did this because she felt he "would have made her anyways." He kept directing her head by pushing it. He ultimately ejaculated onto another bed. She did not recall whether she insisted he ejaculate elsewhere or he just decided to do that on his own.
6At the time C.S. thought the act was normal and "what was to be expected." She told the court that she felt confused afterward. Mr. May communicated through Facebook with C.S. several times over the next few days with the salutation "hey cocksucker". She had the opportunity to consider Mr. May and these communications and "started to feel uncomfortable about it". She broke off contact with the defendant shortly afterwards but not because she had come to any determination that what had transpired with the defendant was wrong.
7C.S. was very close to her mother at that time. Nevertheless, when asked by crown counsel whether she told her mother about the incident C.S. stated, quite understandably, that she didn't want to add this matter to other things that were going on in her relationship with her mother. She also testified that she felt uncomfortable but didn't think that "it was necessarily bad what happened so I just chose not to let her know".
8C.S. presented throughout as a highly intelligent, resolute, articulate and sophisticated witness.
9Under cross-examination by Ms. Petrouchinova, C.S. told the court that her physical development at the time of the incident was similar to her state at the time of trial. Her development appeared to be that of a mature young woman.
10She told L.H. about the sexual act afterwards and expressed her discomfort. Though a close friend with L.H. at the time, and in irregular contact with her since, she did not tell her about any coercive conduct by Mr. May until she brought matters to the attention of the police in April 2015.
11After C.S. contacted the police with this complaint she also contacted L.H. The two had drifted apart but the complainant felt that L.H. had valuable evidence to contribute about the encounters with Mr. May. She initially denied that she alerted L.H. to the legal significance of the difference in ages between Mr. May and herself. She testified that she called to remind L.H. to speak with the investigating officer. Under cross-examination she ultimately agreed that she had explained to L.H. what she understood to be the most significant issue in the investigation, the age discrepancy between C.S. and the defendant.
12Under cross-examination she testified that she enjoyed Mr. May's attention and was interested in him "as a crush", someone with whom to hold hands, hang out and "make out". Until the sexual incident in question the defendant was very polite and did not push her boundaries. After the sexual contact she found his preoccupation with sexual matters disappointing.
13In the days that followed the sexual episode C.S. asked L.H. if Mr. May had asked after her. He had not. She soon found out Mr. May had developed a relationship with another young woman. This knowledge made her feel that he was only interested in her for sexual gratification.
EVIDENCE OF CHRISTIAN MAY
14Mr. May was 23 years old when he testified. He is unemployed and subsists on disability payments. He suffers from Attention Deficit Hyperactivity Disorder (ADHD), Attention Deficit Disorder Variant (ARND), Fetal Alcohol Syndrome Disorder (FASD) and Alcohol Related Neuro-developmental Disorder (ARND). He takes a variety of medications for his conditions. He has completed grade eight. He was always in assisted learning classes at school. He lives at an adult group home for persons with mental health issues. He has a mental health worker assigned to him by the Durham Mental Health Association. He has had few jobs, far between. He told the court that his last job was at a pool supply company in Ajax before the alleged offence. He seems to have been dismissed from that job because of his difficulty counting. He has not had a driver's license.
15Mr. May tried to provide the court with an example of his stated inability to comprehend social clues. His attempt was incomprehensible. He was more successful in describing the role his mother plays in his life. Over the years his mother has tried to encourage him to associate with people his own age. In his evidence, she has trained him from grade six, or age eleven or twelve, to ask someone's age on first meeting them. He described this as a "life lesson", the product of his mother's direction and his own experience. He said he treats this instruction like her other rules, such as brushing his teeth, making his bed on arising in the morning and taking a shower every day or other day. Mr. May's evidence reflected an upbringing in which his profound intellectual limitations required a system of straightforward rules of conduct. The rules were communicated with great repetition by his parents and ultimately learned by rote in order to deal with the tasks of daily life and social interaction.
16He told the court that he wasn't able to tell a person's age through observation. He attributed this deficiency to his "challenges".
17In the summer of 2011 he met L.H. while playing basketball at the Ajax Community Centre. He met her in the company of other people he believed to be his age, 18, or a little older. He had asked them their ages. He also asked L.H. her age. She told him she was 16. As far as he was able to tell she looked 16. She was taller than the defendant. She wore highly-coloured tightly-fitted garments and used makeup. They smoked cigarettes and marijuana.
18One night he and a friend, Cody Harris, were outside a local school when they were introduced to C.S. by L.H. The introduction was not a surprise as he had spoken to L.H. prior to the meeting. He had asked L.H. the age of C.S. and was told she was 16. He told counsel that he had no doubt that this was true. She seemed nice and intelligent to him. He asked her age. According to Mr. May she replied "16". She wore a dress, which seemed atypical of young teenagers to the defendant. She seemed articulate and mature. She had large breasts, which indicated maturity to the defendant. Mr. May testified that her physique at the time of the trial was similar to her appearance in 2011. They didn't exchange telephone numbers. He didn't think she drank alcohol or smoked that night.
19During the hour and fifteen minutes or so that the four spent together that night they played "truth or dare". On a dare Mr. May kissed C.S. She seemed willing beforehand and both comfortable and pleased afterward.
20A week or so after their initial meeting C.S. attended at his rooming house. He was not expecting her. She said that she had come from an older relative's house nearby. She said she was looking for L.H. He recalled that he had been cleaning up when she arrived. She was wearing a dark cardigan, a dress with leggings and makeup. He had a little to drink earlier in the afternoon. There was no other place available to socialize so they went to his room. They made small talk, she declined food or drink and the offer to play "Zombie Nazis" on his PS3. He asked if she wanted to "make out". She agreed.
21They started kissing and touching each other while seated on the bed. He asked for a blow job. She said "yes". He had not experienced one before. He started to undo his pants. He then stood up and she made a gesture for him to take down his pants. He did. Then C.S. started to give him oral sex. The act continued for what the defendant believed was 8-10 minutes. Then C.S. said she needed to go to the washroom. When she returned she said that she had to go home and left. Mr. May denied holding, pulling or pushing the complainant's head in any way. At no time did she indicate that she had changed her mind or did not wish to continue.
22The defendant then walked C.S. partway home. He communicated with her in the days that followed via social media. He came to regret the "hey cocksucker" salutation he used, though at the time it seemed amusing and friendly.
23When giving his testimony, the defendant was exceedingly polite, responsive, unguarded, eager to please, eager to adopt apparent suggestions and childlike in demeanor. He confessed to a poor memory.
24Under cross examination Mr. May maintained his assertion that he asked the complainant her age and received "16" as the answer. This evidence might reflect the application of the defendant's training before that time. It may reflect what he has come to know of the legal issues in the case. I viewed his evidence on this issue with caution.
25The defendant readily agreed that there were a series of steps he did not take in determining the age of the complainant. He didn't ask her about her home life or school. He testified that he had drunk a quarter of a bottle of wine before she showed up at his rooming house. He told crown counsel that this "liquid courage" was the reason he asked none of those questions. Given Mr. May's obvious intellectual limitations and patent pliability under cross-examination, it would be dangerous to take these "admissions" at face value. I have considered his acceptance of the age-related suggestions put to him in cross-examination in the context of all the evidence that qualified this testimony and nullified its effect. The defendant's response to these questions should be seen in the light of his very limited social reasoning and intellectual limitations as described by his adoptive mother. His malleability was referenced by his mother in her testimony and obvious on the stand. In addition to those factors, the complainant described no signs of impairment or even alcohol consumption by Mr. May.
26These steps suggested by crown counsel may well have been reasonable conduct by an 18 year old male who lacked the defendant's disabilities. They appear to me to be well beyond the inquisitorial capacities of the 18 year old Christian May.
EVIDENCE OF PATRICIA MAY
27This view of Mr. May's intellectual limitations was supported by the evidence of Patricia May, his adoptive mother. She was a most impressive witness. She was 61 at the time of her testimony. She and her husband have fostered approximately 100 children over the last 30 years and are currently fostering two infants. They have four children of their own including the defendant.
28Christian May has been in their care since birth. He was formally adopted at age two. He was diagnosed with ADHD as a child and with ARND at 13. A diagnosis of FASD was inexact as Mr. May did not have all of the facial features associated with that condition. He required an individual education plan at school because of his many deficits. He has short-term memory difficulties. Significantly, his verbal skills far outmatched his intellectual processing abilities. When asked to describe her observations of the defendant's personality in the summer of 2011, Ms. May summarized: "naïve, emotionally immature, vulnerable, impulsive, lacking social cues." She further described him as being unconscious of sarcasm and vulnerable to manipulation. When asked for examples, Ms. May spoke of instances when the defendant handed his mobile phone or bicycle to strangers, sanguine in their assurances that these items would be returned. He lived independently at the time of the events before the court but was incapable of managing his finances or any form of food budgeting. He frequently bought food for others when in funds and had nothing left over to feed himself afterwards. His room became a drop-in centre for persons with mental health issues who wouldn't leave until Christian's father evicted them. He has often described persons as "friends" when they were mere friendly strangers. Under cross-examination Ms. May told the court that she did not believe Mr. May would ever be able to live on his own unassisted.
29Ms. May said that the defendant functioned at the level of people several years younger than himself. She described his maturity as that of a fourteen year old at the time of the alleged offence. He had few friends his own age during adolescence because boys his own age had more advanced interests. While other boys were starting to date at fourteen or fifteen, the defendant had no interest in girls at that age. When boys wanted to "hang out" with him at age 16, he wanted them to come for a sleepover.
30Ms. May told the court that the defendant has no concept of age. He continues to demonstrate confusion regarding the ages of close family members. According to the witness her son attracts younger people because of his emotional immaturity coupled with his attractive appearance. This issue became a particular concern for Ms. May when Christian developed an interest in girls at approximately sixteen years of age. She and her husband continually reinforced the necessity of asking the ages of female acquaintances. This step became particularly important when friends of Mr. May's younger niece began to show interest in him. As a result, his mother firmly instructed him to avoid friendships with these younger teenagers. In his discussions of his social life with his mother, Christian learned to report the age of new acquaintances. In the one romantic attachment reported by Ms. May, Christian, at the age of approximately sixteen to eighteen, demonstrated a marked vulnerability to callous manipulation.
31In addition to his profound limitations and inability to navigate the adult world, Ms. May conceded with candour the defendant's behavioural and conduct weaknesses. She told crown counsel that in retrospect she should have told him to ask for identification from acquaintances in social situations. I took this comment as a mother's rueful hindsight. As with the steps suggested to Mr. May by crown counsel, the defendant would not have been able to conceive of this rudimentary potential investigative step at the time of the alleged offence. On the evidence before me, the defendant would not have been able to use any of these measures without first being continually drilled in their application by his parents.
EVIDENCE OF L.H.
32L.H. was 12 when the defendant met her at the Ajax Community Centre. She was 5'8" or 5'9", wore makeup and tight, skimpy clothing designed to facilitate hanging out with the "older crowd" of 16 to 20 year old boys at the centre. She told these boys she was 16 when they asked her age. She didn't tell them her real age because they wouldn't want her around if they knew she was 12. She met Mr. May at the centre. He asked her age and she told him that she was 16.
33C.S. was a friend of the witness. One night the two girls snuck out and met the defendant and his friend Cody at a local school. In a phone call prior to meeting the two girls, Mr. May asked the age of C.S. L.H. told Mr. May that C.S. was 16. She told him that in order not to "blow her own cover". C.S. was present with L.H. during the phone call when the defendant was told C.S. was 16. The two girls had previously collaborated in exaggerating their ages to facilitate social interaction with older boys.
34When they met at the school the four played "truth or dare". The defendant and C.S. kissed. They appeared to be comfortable together. Christian and Cody and the witness drank some alcohol. L.H. was not sure if C.S. drank that night. L.H. recalled that she was not present for any conversation between C.S. and Mr. May about her home, school life or her plans for Montreal. She never heard C.S. discuss her age with Mr. May. Much of her time was spent interacting with Cody. She also recalled that C.S. wore a lot of make-up and tight clothing. L.H. testified that C.S. had a bigger chest and appeared older than most girls. C.S. liked Mr. May and sought help from L.H. in pursuing a connection with the defendant.
35Sometime after this occasion, C.S. texted L.H. that the two "did stuff at Chris' place". L.H. took this to mean sexual contact of some sort. C.S seemed excited about what happened. She expressed nothing negative to L.H. about the sexual contact with Mr. May at any time afterwards.
36L.H. had little contact with C.S. after the summer of 2011 when the latter moved to Montreal. She agreed with the suggestion that in April 2015 C.S. contacted her in relation to potential testimony regarding this complaint. C.S. asked her to make sure that she told the police investigator the age that the two girls were at the time of the assignation between Mr. May and C.S.
37L.H. was angered by this request. L.H. told the court that it seemed "very unfair to be saying something like that. It almost felt like a lie. It was a lie." The witness's anger was obvious. L.H. apparently felt that, since Mr. May had been deceived about the girls' ages in 2011, it would be misleading to merely report their genuine ages at that time to police.
38The communications between the complainant and L.H. in 2015 after the disclosure to the police by C.S. were the core of an aggressive cross-examination of this witness.
39Crown counsel submitted that the witness' narrative of the content and order of the discussions was unworthy of belief. Under cross-examination, she came to agree with the following account of these discussions: A very hostile initial discussion in May 2011, in which the complainant told L.H. to lie to the investigators, was followed by an innocuous, friendly discussion between the two girls. That second conversation was followed by a third and final discussion which featured the vehement reaction of L.H. to the defendant's arrest. Crown counsel also argued that the witness concocted her revelation that C.S. told her to lie to the police. He found support for this submission in the speculation that the alleged request to lie was not put to the complainant under cross-examination because L.H. withheld it from defence counsel.
40I thought that L.H. displayed hesitancy and confusion with respect to the timing and content of the 2015 discussions with C.S. This seventeen year old witness attempted to recount, after an 18 month gap, conversations about events that had taken place five years before her testimony. It was apparent to the court that the aggressive, fast-paced cross examination tended to obscure, rather than illuminate, the issues under discussion. The testimony that C.S. told her to lie to the investigators about the age information supplied to the defendant was first suggested by crown counsel during cross-examination. The adoption of that suggestion was neither considered nor reliable, but I do not accept that it was a deliberate concoction.
41There were indicia that L.H. sought to be fair in her testimony. She readily agreed that the defendant was a closer friend to her than to C.S. She told the court that she didn't hear any discussion of age between Mr. May and the complainant. It would have been easy for her to fabricate evidence favourable to the defendant on the latter issue.
ANALYSIS OF THE EVIDENCE
42There were impressive aspects to the testimony of C.S. She is intelligent and articulate beyond her years. The contrast between her intellectual abilities and communication skills and those of Christian May could not have been more marked. There were features of her evidence that caused me serious concern. She came to the conclusion that the sexual contact with Mr. May was coercive after several year's reflection. It seemed to me that her view of the act itself shifted over time. At first she said she experienced confusion, later a sense that the act was the result of bad judgment and finally, an assessment that the act was involuntary. That progression may well reflect a maturation process in other circumstances with other complainants. In my view this young person would have had no difficulty contemporaneously concluding that the sexual act was assaultive were her narrative accurate. I was troubled by her inability to recall whether the defendant ejaculated on another bed because of her direction. That is a significant narrative detail. If this act had been at her insistence it would be some evidence of consensual participation.
43C.S. involved herself in the police investigation of the case to a significant degree. I was concerned that the complainant not only contacted L.H. to provide evidence but also suggested to her that the age discrepancy issue was the most significant portion of her anticipated participation. I was troubled that C.S. seemed reluctant to admit this suggestion under cross-examination. In her testimony she volunteered that she had discussed potential high schools with Mr. May. The complainant's lengthy interview with the police lacked this information. It was clear to me that the complainant understood the significance of this issue. I was also concerned that she seemed to minimize both the attraction she felt to Mr. May and the disappointment she experienced when it became apparent that he was interested in her primarily for sexual gratification.
44There is evidence that the initial reaction of C.S. to the sexual activity with the defendant was positive. L.H. testified that C.S. was excited when she reported the sexual experience to her. This evidence was unchallenged in cross examination. It strengthens my concern that the complainant's determination that the sexual interlude with Mr. May was coercive reflected a re-interpretation of a consensual event in hindsight.
45I have already indicated concern regarding the accuracy of the evidence of L.H. regarding the number, content and timing of the discussions with C.S. in the spring of 2015. However, the content of two of those discussions is clear from an analysis of all of the available evidence. We know from the testimony of both girls that the complainant raised the age discrepancy issue of with L.H. in one of their 2015 contacts. L.H. clearly felt that that it would be dishonest to simply report the age discrepancy between Mr. May and C.S. to the investigators. It is clear from her evidence that this perceived deception made her furious. The last discussion between the two young women is recorded in text. The enraged and surprised response by L.H. to the charges against the defendant are clear to read. The reason for the fury is also evident. In her evidence, both L.H. and C.S. made a practice of exaggerating their ages in order to associate with older boys. I accept the evidence of L.H. that this practice was employed with Mr. May. Her unguarded reaction to the news of the charges supports her view that the defendant had become the victim of this deception.
46I reject the evidence of C.S. that L.H. inflated her age by only one year when misleading Mr. May, as that would have been a completely pointless exercise in these circumstances and is contradicted by the evidence of L.H.
47Mr. May was a poor witness in most respects, but I do not disbelieve his evidence that the act complained of was consensual. He is clearly a passive person who evinces a debilitating instinct to please almost any seemingly friendly person. Based on his testimony I would have a reasonable doubt that the sexual contact with C.S. was coercive even if the rest of the evidence did not require that conclusion.
48Mr. May cannot escape his poor memory, his pliability as a witness, his unguarded nature and his deficient intellectual processing. These would be issues of great concern even absent crown counsel's skillful cross-examination. Without corroboration, I would have difficulty accepting both the accuracy of his assertion that his unfailing general practice is to ask the age of acquaintances and his testimony that he asked the complainant her age. However, I find support for his testimony in the evidence of his adoptive mother, Patricia May. Neither her memory nor her perception or credibility were challenged. The evidence of Mr. May's profound intellectual challenges was also unchallenged. He cannot navigate the adult world without continuing parental advise, organization and support. Ms. May testified at persuasive length regarding her son's susceptibility to manipulation, his gullibility and his inability to understand non-verbal social signals.
49Ms. May recounted the effects of these disabilities to great effect. As Mr. May was unable to discern the age of a person from appearance or social cues, he must rely on questions to establish age. As a result, Ms. May established rules that had to be followed. Her son had to ask prospective acquaintances ages, and was required to tell them his own age. There was evidence before the court that the defendant learned to adhere to this practice. Neither the practice in general, nor the evidence from Ms. May that the defendant learned to apply it were challenged. I accept her evidence. I cannot reject Mr. May's testimony that he discussed with C.S. her age, even though there is no direct corroboration of that exchange.
50It is also clear from all of the evidence that the defendant was intellectually incapable of developing his own methods of dealing with social challenges, whether they be manipulation by acquaintances for material gain or navigating sexual relationships. Appropriate conduct in all social aspects of his life required that a protocol of behaviour be developed by Mr. May's parents and then arduously drilled into him by extensive repetition.
51In addition to asking C.S. her age, the defendant also asked his friend L.H. how old C.S. was. He also considered other factors when determining the age of the complainant. He noted her attire, her makeup, her mature demeanor and her physique. All of these factors suggested to him that she was 16 years of age.
LEGAL ANALYSIS
52Criminal Code Section 150.1(4) provides that the mistaken belief that the complainant was 16 or older cannot be a defence to the charges before this court "unless the accused took all reasonable steps to ascertain the age of the complainant."
53I have already indicated concern regarding the accuracy of the evidence of L.H. regarding the number, content and timing of the discussions with C.S. in the spring of 2015. However, the content of two of those discussions is clear from an analysis of all of the available evidence. We know from the testimony of both girls that the complainant raised the age discrepancy issue of with L.H. in one of their 2015 contacts. L.H. clearly felt that that it would be dishonest to simply report the age discrepancy between Mr. May and C.S. to the investigators. It is clear from her evidence that this perceived deception made her furious. The last discussion between the two young women is recorded in text. The enraged and surprised response by L.H. to the charges against the defendant are clear to read. The reason for the fury is also evident. In her evidence, both L.H. and C.S. made a practice of exaggerating their ages in order to associate with older boys. I accept the evidence of L.H. that this practice was employed with Mr. May. Her unguarded reaction to the news of the charges supports her view that the defendant had become the victim of this deception.
54I have already articulated my reasons for finding that the sexual contact in this matter was not coerced. To determine whether that the crown has proven beyond reasonable doubt that Mr. May did not take "all reasonable steps" to determine the age of C.S., it is necessary to review the applicable case law.
55R. v. Sinclair, [2013] A.J. No. 1433 (Q.B.) involved an accused with fetal alcohol syndrome. The issue in Sinclair was the admissibility of expert evidence in relation to whether "all reasonable steps" had been taken. The court concluded that a factor personal to the accused such as fetal alcohol syndrome can be a consideration in the analysis of whether "all reasonable steps" had been taken.
The court in Sinclair stated:
Given the similarities, s. 150.1(4) can also properly be characterized as a "quasi-objective" test or standard. The accused is held up to a standard of reasonable conduct, but this conduct is assessed on the basis of the circumstances subjectively known to the accused at the time. The accused's subjective belief is relevant, although not determinative.
"Reasonable steps", then must take into account factors personal to the accused, such as any personal knowledge the accused had of the complainant, the nature of the relationship between the accused and the complainant, and the accused's observation of the complainant. The trier of fact must ask what steps would have been reasonable for the accused to take in the circumstances.
Therefore, if the expert evidence is directed toward the personal circumstances of the accused which may impact on the reasonableness of his conduct or his subjective belief, and meets the other three Mohan criteria, it is admissible: R. v. Mohan, [1994] 2 SCR 9.
Reasonableness in this context, of course, has been characterized as an objective test. As discussed above, it is actually a quasi-objective test as it takes into account subjective considerations. In this case, the jury might take Mr. Sinclair's FASD into account in determining the reasonableness of the actions he took to determine the age of the complainant. His FASD is personal to him. David Sinclair's state of mind is relevant, although not conclusive.
The law establishes that the circumstances known to Mr. Sinclair at the time of the alleged offence are relevant to a determination of "all reasonable steps". Therefore, factors in this case that may be taken into account include any personal knowledge that Mr. Sinclair had of the complainant; the complainant's appearance, the nature of the relationship between him and the complainant; Mr. Sinclair's observations of the complainant and other circumstances particular to the offence.
This is not to say that such evidence would necessarily be admissible in other s.150.1 cases. I am cognizant of the case law to the effect that as the difference between the ages of the accused and the complainant increases, so must the reasonable steps required increase. In this case, the evidence establishes that Mr. Sinclair was 5 years and 57 days older than the complainant. This is not a situation where there was a considerable age gap, or other evidence of circumstances which could diminish the usefulness of such evidence. Admissibility of expert evidence is, in any event, always considered on a case by case basis.
The evidence of Dr. Moore may assist the jurors in understanding the accused's subjective state of mind and circumstances at the time of the offence. It is therefore relevant to the element of the offence concerning whether the accused made all reasonable efforts to ascertain the age of the complainant.
56In R. v. L.F.M., [2015] B.C.J. No. 3078 (B.C.P.C.), the court applied Sinclair, supra, in circumstances where the accused was cognitively disabled:
Like Mr. Sinclair's FASD, L.F.M.'s significant intellectual disability is personal to him, and might be taken into account in determining the reasonableness of the actions he took to ascertain the complainant's age, and to determine that the complainant was consenting to touch him. Personal factors are relevant, but not determinative.
The degree of attention that the law requires is that the accused take all reasonable steps to ascertain the age of the complainant. If I were considering that test and these circumstances in the context of a 54-year-old man of normal intelligence and normal life experience, I would find that the Crown had proven beyond a reasonable doubt that the accused had failed to take all reasonable steps to ascertain the age of the complainant.
However, I must include factors personal to L.F.M., which are his significant intellectual disability and very limited life experience. Those factors are relevant, although not determinative. Did he give to the question of D.S.'s age that degree of attention which the law requires, and which he was capable of giving? He heard someone say that D.S. was 17, and he relied on that statement. Given his significant intellectual disability and limited life experience, I have a reasonable doubt that more was required of him. I find L.F.M. not guilty of sexual interference, and not guilty of invitation to sexual touching.
57I have applied the evidence of the defendant's profound intellectual deficits in determining whether he took all reasonable steps to determine the age of the complainant. In the summer of 2011 he told C.S. his age and relied on the advice of L.H. regarding her age. I think it likely he also relied on the advice of C.S. regarding her age. Mr. May turned his mind to her clothing, makeup, intelligent demeanor and mature physique. I do not accept that the crown has proven beyond reasonable doubt that the defendant was intellectually capable of doing more than he did to ascertain the age of C.S. in the summer of 2011.
Released: March 3, 2017
Signed: Justice M.S. Block