WARNING

The court hearing this matter directs that the following notice 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judge or justice may make an order directing that any information that could identify the victim or a witness shall not be published in any document or broadcast or transmitted in any way, in proceedings in respect of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, 171.1, 172, 172.1, 172.2, 173, 210, 211, 212, 213, 271, 272, 273, 279.01, 279.011, 279.02, 279.03, 280, 281, 286.1, 286.2, 286.3, 346 or 347, or

(ii) any offence under this Act, as it read at any time before the day on which this subparagraph comes into force, if the conduct alleged involves a violation of the complainant's sexual integrity and that conduct would be an offence referred to in subparagraph (i) if it occurred on or after that day; or

(b) two or more offences being dealt with in the same proceeding, at least one of which is an offence referred to in paragraph (a).

(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.

Ontario Court of Justice

Date: June 7, 2018

Between

Her Majesty the Queen

— and —

Ahmad Sohail

Judgement at Trial

Counsel for the Crown: L. Crawford

Counsel for the Defendant: S. Hebscher

Judge: Felix J.

Table of Contents

I. Introduction

II. Issues

III. Organization

IV. Credibility, Reliability, and the Criminal Burden of Proof

V. Factual Findings

VI. Mistake of Age Defence

VII. Mistake of Age Defence: Finding

I. Introduction

1The defendant is charged with three offences contrary to the Criminal Code of Canada: Sexual Assault contrary to s. 271, Invitation to Sexual Touching contrary to s. 152, and Sexual Interference contrary to s. 151.

2In May 2016 the defendant, employed as an Uber driver, was dispatched to pick up a customer at the Jubilee Pavilion in Oshawa. The complainant and his two friends (N.S. and C.F.) had attended a gala to celebrate the end of a competitive dance season involving the dance faculty, parents, and children who were involved in dance season. After sitting with the parents the three friends created a group chat on their phones. The friends resolved to go to the complainant's house via Uber. N.S. had the app on her phone. The complainant used his credit card to pay for the Uber. At around 11:45 PM the three friends went outside and the defendant was already present. The complainant got into the front passenger seat. N.S. got in to the rear passenger side seat. C.F. was hesitant to leave because his mother was inside looking for him. Ultimately the defendant commenced the trip with just the complainant and N.S. Shortly thereafter, the defendant returned to the pick-up stop and dropped off N.S. leaving only the defendant driving and the complainant seated next to him in the front passenger seat. They then proceeded on a trip to the complainant's residence.

3During the ensuing drive to the complainant's residence the defendant and complainant engaged in conversation. Ultimately, there was intimate sexual contact between the defendant and the complainant.

II. Issues

4There is no question that the physical contact between the complainant (who had just turned 15 years of age) and the defendant (who was 29 years old) was sexual. Both the complainant and the defendant testified to sexual contact. The parties did not litigate nor did they provide submissions concerning the fact of sexual contact nor the legal element of the actus reus of the three offences before the court. That being said, there were factual differences concerning the extent of the sexual contact.

5There is no dispute that the complainant had just turned 15 at the time of the incident and as such was incapable of giving legal consent in law by operation of s. 150.1(1) of the Criminal Code. There is also no dispute that the defendant could not resort to an age proximity defence.

6The focus of counsel at trial concerned a multitude of credibility-related issues and litigation around the defence of mistake of age. The prosecution and the defence filed voluminous detailed written submissions addressing these issues which were of critical assistance to the Court.

7The defence position was that the mistake of age defence was available to the defendant per s. 150.1(4) of the Criminal Code. To summarize, the defendant subjectively believed that the complainant was at least 18 years old because of his height, his voice, his comfort with sexuality, the terms and conditions governing users of Uber, and his experience that no one under the age of 18 had been alone in his Uber vehicle before. In addition, the defendant asserted that he had taken "all reasonable steps".

8For the reasons that follow, the defendant is found guilty of all three counts. I will hear submissions prior to sentencing in this matter with respect to the application of the rule in Kienapple.

III. Organization

9The Court's duty to provide a roadmap to the reasoning behind a decision will be addressed through analysis of the following issues:

1. Credibility, reliability, and the criminal burden of proof;
2. The explanation of factual findings; and
3. Analysis of the mistake of age defence.

IV. Credibility, Reliability, and the Criminal Burden of Proof

10The criminal law has developed rules and case law to help trial judges sort out the issue of credibility and address how credibility is interwoven with the over-arching criminal burden of proof.

11I am guided by the instruction in W.(D). v. The Queen (1991), 63 C.C.C. (3d) 77 (S.C.C.) [W.D.] in analyzing whether the prosecution has proven any of the allegations beyond a reasonable doubt:

1. First, if I believe the evidence of the defendant I must acquit him of all of the charges. He denies he committed any crime. If I believe the defendant, by definition, the Crown has not proven the case beyond a reasonable doubt.

2. Second, if I do not believe the testimony of the defendant, but I have a reasonable doubt because of it, I must acquit him of the charge or charges.

3. Third, even if I am not left in doubt by the evidence of the accused, I must still ask myself whether, on the evidence presented at trial, I am convinced beyond a reasonable doubt of his guilt.

12In cases such as this I believe that a fourth instruction is appropriate: "If, after a careful consideration of all the evidence, you are unable to decide whom to believe, you must acquit": R. v. S. (J.H.), 2008 SCC 30

13In this way, W.D. helps trial judges keep the proper focus – there is no such thing as a pure credibility contest. The focus must remained fixed on the criminal burden of proof.

14When assessing credibility a trial judge may believe and accept all, none or some of a witness's evidence: R. v. Francois, 1994 CanLII 52 (SCC), [1994] 2 S.C.R. 827, at para. 14. The trial judge is entitled to accept part of a witness' evidence, reject other parts, and determine the weight to be accorded to individual parts of evidence: R. v. Howe, 2005 CanLII 253 (ON CA), [2005] O.J. No. 39, at para. 44 (C.A.). The trial judge need not believe or accept the defendant's evidence completely or comprehensively in order to have a reasonable doubt: R. v. Minuskin, 2003 CanLII 11604 (ON CA), [2003] O.J. No. 5253, at para. 22 (C.A.). A determination of guilt or innocence must not devolve into a mere credibility contest amongst witnesses or a choice between competing prosecution and defence evidence. This approach would negatively impact the presumption of innocence and the criminal standard of proof beyond a reasonable doubt: W.D., at p. 409; Avetsyan v. The Queen (2000), 2000 SCC 56 (CanLII), 149 C.C.C. (3d) 77 (S.C.C.), at pp. 85-87.

15Having regard to the principles in W.D., mere disbelief of the accused's evidence does not equate to criminal liability. It is an error to move directly from mere disbelief of the accused's evidence to positive proof of guilt: R. v. Dore (2004), 2004 CanLII 32078 (ON CA), 189 C.C.C. (3d) 526 (Ont. C.A.), at p. 527, leave to appeal to S.C.C. refused, [2004] S.C.C.A. No. 517; R. v. H.(S.), [2001] O.J. No. 118 (C.A.), at paras. 4-6.

16In addition to the general approach to credibility there are two relevant credibility-related issues to keep in mind given the evidence at this trial: the evidence of children and stereotypical reasoning.

17I have considered the fact that the complainant had just turned 15 a few weeks prior to the date of the offence and I have absorbed the cautionary submissions provided by the prosecutor concerning the proper approach to the evidence of children: See R. v. W.R., 1992 CanLII 56 (SCC), [1992] S.C.J. No 56 (S.C.C.). In my view this issue is somewhat muted in this case. I had hours of time to evaluate the demeanor of the complainant as he testified and was cross-examined during this trial. I found the complainant to be an intelligent, clear, articulate, credible 15 year-old. He provided clear responses to questions and appeared to understand the dynamic of the trial. While I accept the premise of this cautionary submission it was not a significant concern in this case. I did not find the complainant to have difficulty describing the events nor did I find his approach to be akin to a small child. There were no deficiencies in his ability to articulate his evidence.

18I have also considered the specter of stereotypical reasoning given the prominent place sexual orientation played in this trial. The court has a duty to guard against making assumptions or drawing inferences based on stereotypical premises.

19A significant portion of this trial revolved around whether or not the complainant was a willing participant in sexual activity notwithstanding the fact that he could not legally consent. For reasons that I will detail exhaustively in this judgment, I have found that the complainant was not an unwilling participant in the sexual activity that occurred in the back seat of the defendant's vehicle.

20To the extent the complainant's willingness is a relevant issue, it is not completely irrelevant that the complainant self-identified as "gay"[1] in evaluating the issues. But I must be clear. This finding does not rest on stereotypical reasoning that concludes the complainant must have willingly participated because he identifies as gay. Just because the complainant identifies as a gay person does not lead to the conclusion that sexual contact with the defendant was factually consensual. My conclusion rests on an analysis of the evidence, not stereotypical assumptions.

V. Factual Findings

21My aim is to address the relevant arguments founded on the evidence and the submissions of counsel for the purpose of showing the path of my reasoning by referring to the following subjects:

1. Picking up the complainant;
2. Conversation in the vehicle;
3. The apparent age of the complainant's friends;
4. The relevance of beliefs held by N.S.;
5. Admissibility of electronic communications;
6. First sexual contact – touching the complainant's penis;
7. The plaza;
8. The vehicle stop on the complainant's street;
9. Sexual contact – the back seat of the vehicle; and
10. The post-offence conduct of the complainant – willingness and later ambivalence.

A. Picking up the Complainant

22There is no evidence that the defendant had prior knowledge about the particulars of the event at the Jubilee Pavilion that night before he picked up the complainant. The defendant testified that he had lived in Oshawa since November 2014 but only started driving an Uber in Oshawa a few months prior to the date of the incident.

23The objective circumstances disclose that the defendant did not pick up the complainant and N.S. at a nightclub, bar, or other commercial establishment that would objectively convey adulthood. The event was a competitive dance gala involving: parents; children between the ages of 3 and 18 years old; and the dance faculty. Prior to getting into the car the complainant and N.S. interacted with other peers who were out in front of the venue to discuss further plans for the evening.

24A reasonable person would have generally taken note of these surrounding circumstances. Indeed the defendant must have been observant as he questioned the complainant about what sort of event he had been attending.

B. Conversation in the Vehicle

25Both the complainant and N.S. testified that during the vehicle ride there was conversation about subjects that I find should have alerted the defendant to the age of his passengers.

1. Exams / School

26The complainant testified that he and N.S. discussed school exams when they were both in the defendant's vehicle. N.S. testified that there could have been a discussion but she had no memory of that occurring. The defendant testified that he could not recall a discussion about school or exams.

2. Parents

27I accept N.S.'s evidence that both she and C.F. were waiting (prior to getting in the vehicle) to see if their respective mothers would permit them to leave. I also accept her testimony that N.S. specifically asked the defendant to wait while she checked with her mother and the defendant specifically inquired as to whether her mother was permitting her to leave. After the vehicle left, it was still in the parking lot when the defendant was told that he had to turn back. N.S. indicated to him that her mother had said "No" and she did not want to get in trouble. The defendant was specifically made aware from his conversation with N.S. that her mother was a factor that night and she had to return specifically because her mother would not let her leave in the vehicle. The defendant testified that he had no recall of these circumstances. He said that he was simply asked to return to the pick-up point.

3. Drinking Alcohol

28Both N.S. and the complainant testified that the defendant asked questions about alcohol consumption. N.S. told the defendant that the adults were drinking but they were not drinking because there were kids and parents at the party. She did not tell the defendant that there was no drinking because she was underage. The complainant told the defendant that they were not drinking because they were underage and it was not "that kind of party".

29I accept the evidence of the complainant and N.S.

30The defendant testified that he is used to picking up people leaving night clubs late at night and that it is often a feature that they have been drinking – thus the reason to call for an Uber. In this case he evidenced little recall of any conversation about alcohol. He was vague about whether he even asked about alcohol. Yet the defendant testified that he asked N.S. and the complainant whether they had come from a nightclub. He says he was told it was a private party and no further details.

31The defendant testified that he could not remember asking about drinking. Given the defendant's testimonial experience about picking up passengers from night clubs who have been drinking I believe that his memory is unreliable on this point. I find that the defendant asked the complainant and N.S. if they were drinking alcohol at the gala dance and N.S. responded to him directly.

32On the subject of school or exams, alcohol, or parents the defendant's general approach was to claim he did not recall or hear the conversation topics. The defendant is unreliable, incredible, or both. He evidenced an attention to detail in most other areas of his testimony.

33I agree with the prosecution submission that these areas of failed memory or selective memory coincide neatly with the areas of evidence that would have objectively alerted the defendant to the age range of his passengers. Any review of the record of this trial will disclose precision and specificity in other areas of the defendant's testimony. Later on in this judgment I will explain why I found that the complainant was willing to engage in some aspects of the sexual contact with the defendant. It is that very precision and specificity demonstrated at large by the defendant that led me to that conclusion. That specificity was lacking in these areas that would have put him on notice concerning age.

4. Conversation about Age

34The complainant testified that he told the defendant that he had just turned 15 a few weeks prior. This is obviously a critical factual determination in this trial. There is no objective evidence for or against this point. The determination depends on the overall credibility of the defendant and the complainant.

35I find, definitively, that the complainant told the defendant his age. I also accept that the defendant was told that N.S. was 16 years old.

36I find that this conclusion rests firstly on the evidence of the defendant. The defendant testified that the complainant never told him he was fifteen and that there was no discussion about age. He also testified that he never asked the complainant how old he was. Finally, the defendant specifically testified that he was not focused on the age of any of the passengers in his vehicle.

37The complainant's evidence was supported by context. He testified that the subject of age came up in the context of the defendant asking questions about N.S. and the complainant's relationship with N.S., and then C.F. The complainant testified that the defendant also asked questions about what N.S.'s ethnic background was and what the complainant's background was. Finally, the defendant commented that N.S. was "hot" and it was in this context that the complainant told him that she was 16 years old. The complainant remembered this stage of the conversation because it was at this point, or shortly thereafter, that he felt the defendant's conversation was becoming more personal. Shortly thereafter the complainant asked the defendant how old he was. The defendant said he was 24 years old. The defendant did ask how old the complainant was. The complainant told him he had "just turned 15 a few weeks before that".

38The defendant's testimony amounted to a denial without context to assist me with assessing the evidence. The complainant's evidence organically described how information was disseminated. I do not believe the defendant on this point.

C. The Apparent Age of the Complainant's Friends

39N.S. testified at trial. Objectively speaking a reasonable person would easily conclude that she is a young teenager. In my opinion there would be an open question based on her demeanor and presentation as to her age.

40The defendant testified that he did not have a real opportunity to observe N.S. I think this is probably partly true because he was driving for a portion of the time that she was in his presence. But he observed her when he picked her up. He observed her when he dropped her off. He certainly observed enough of N.S. to ask the complainant whether she was his girlfriend. This is an odd question for someone who took no notice. I believe that the defendant had sufficient opportunity to see N.S. contrary to his evidence at trial even during the short time frame she was outside his vehicle and the short time she was within his vehicle.

41I accept the complainant's evidence that the defendant referred to N.S. as being attractive and "hot" and the complainant told the defendant that she was in fact 16 years old.

42N.S. and the complainant were with another male person named C.F. C.F. was not called as a witness so I have no appreciation of how he presents. There was no description of him elicited at trial. I know that C.F. was 16 years of age and a peer of N.S. and the complainant. I do not know what if anything the defendant concluded about the age of C.F. or if he considered the issue at all. I do know that he spoke with the complainant during the drive about C.F. and his relationship with the complainant.

D. The Relevance of Beliefs Held by N.S.

43Some of the defence submissions in this case concern the views and perceptions of N.S. as a friend of the complainant. For example it is suggested that N.S. did not react quickly to the complainant's messages conveyed via text. Further, it is noted that she did not call 911 or call her mother. The connotation being that if the complainant's friend did not appear to believe the complainant, the Court should find the complainant unworthy of belief.

44This is a dangerous proposition. Would I be more inclined to find the defendant guilty based on a factual finding that N.S. believed the complainant?

45It is important to note that N.S. was obviously not a witness to the sexual acts and could not assist the Court with the circumstances. In any event, N.S. testified during cross-examination that that it was not correct to perceive her inaction as an expression of disbelief. She was dealing with her mother and trying to process what was going on at the time. She expressly testified that her inaction did not convey disbelief twice during cross-examination. She also indicated that she might have perceived that something bad was happening short of a rape. Finally, she explained that she did not have the details of what had occurred between the complainant and the Uber driver so she did not call 911 or tell her mother. In sum, N.S. rationalized at this juncture that she must have believed the complainant to some degree, but she was not processing or acknowledging what he was saying. She had not concluded, at the time, that she either believed him or disbelieved him.

46I appreciate that much was made of this issue during the trial. But, ultimately, N.S.'s views as to whether or not she was inclined to believe the complainant was of little assistance to me. I would not find the defendant guilty in part on the basis that N.S. believed the complainant. I would not disbelieve the complainant either, simply on the suggested basis that N.S. disbelieved him.

E. Admissibility of Electronic Communications

47The complainant was a participant in a group chat iMessage conversation including N.S. and C.F. He testified that after the defendant touched his penis he sent a message to the group chat. The messages read:

Sun, May 29, 12:11 AM

Guys this guy might rape me

I'm not lying

[Response from N.S.] We r gonna try and sneak out

N.S. I'm not lying

48During the trial there was a dispute about the admissibility of the text messages. The evidence was received on a voir dire with the understanding that the parties would be permitted to provide submissions on the issue.

49The prosecution argued that the text messages were admissible to show the state of mind of the complainant and relied upon the res gestae doctrine because the messages were sent right after the defendant initiated sexual contact with the complainant by fondling his penis.

50The defence position was that no proper foundation was laid for the admissibility of the text messages and no cogent argument was presented by the Crown concerning admissibility. Further, the defence argued the risk of error had not been addressed which I interpreted as a concern about authentication.

1. Authentication

51The possibility of error cited by defence counsel relying on R. v. Slugoski, [1985] B.C.J. No. 1835 (C.A) does not arise on the record before me.

52I find that the text messages have been authenticated.

53As explained by Justice David Paciocco in Proof and Progress: Coping with the Law of Evidence in a Technological Age, (2013) 11 Canadian Journal of Law and Technology, pp. 181-228, at p. 192 [Proof and Progress]. The statutory rules in the Canada Evidence Act and the common law rules governing authentication are the same:

As for the "best evidence" rules, their name is misleading. At common law "best evidence" rules are designed to promote the use of original documents. The best evidence rules applicable to electronic documents from computer and similar devices are not concerned with requiring original documents to be proved, but instead seek to ensure that an electronic document offered in court accurately reflects the original information that was input into a document. To be clear, these best evidence rules are not concerned with whether the original information that was input was accurate information. Documents containing inaccurate information, even a completely forged document offered as a genuine document, can satisfy the best evidence rules. The electronic best evidence rules are concerned with what might happen after the information has been input.

As indicated, each provision is facially intricate but they are not difficult to satisfy. Two of the best evidence avenues are particularly simple, and widely available. First, if someone familiar with the information originally input testifies that the document being offered accurately records that information, authenticity and best evidence standards will have been met, for this is evidence that the computer system, having faithfully reproduced the information, must have been functioning as it should.

Alternatively, if a document appears on its face to be what it is claimed — for example, an email or a text — testimony that it is the document that was received or sent by email or text will be presumed to satisfy the authenticity and "best evidence" requirements, unless the opposing party raises a doubt about whether the computer system was operating properly. Again, the apparent coherence of the document coupled with the fact that it was produced or retrieved in the fashion that a functioning computer would produce or retrieve documents is evidence that the electronic document system was functioning as it should.

54Both the complainant and N.S. testified to the content of the messages. The complainant adopted the content of the messages he sent. N.S. adopted the content of the messages she received. There is no suggestion in the evidence that the content of the messages typed by the complainant were erroneously interpreted by the complainant's Apple iPhone. The complainant testified that he conveyed this text message to the police at their request after his police interview. The screen-print of the text message was filed. The complainant explained features of the messages including the fact that since the communication of this message the format of iMessage had changed.

55At the request of the investigating police officer the complainant forwarded the iMessage communications to the police. The communications were disclosed. The communications have been filed in print-out form in this trial.

56The test for authentication is low: "At common law authenticity is established for the purposes of admissibility if the trial judge is satisfied that there is some evidence to support the conclusion that the thing is what the party presenting it claims it to be.": Proof and Progress, p. 196.

2. Res Gestae and State of Mind

57The prosecution sought to adduce the text evidence to prove that the complainant communicated the words as corroborative of the complainant's expressed state of mind at the time when he was first touched sexually by the defendant. Thus, in my view, the prosecution relies on the sentiments expressed in the text evidence as a true reflection of the state of mind of the complainant. Not in the sense that the defendant was actually "raping" the complainant, but in the sense that what was communicated depicts an accurate state of mind held by the complainant precisely at the time he was first touched by the defendant.

58In my view this involves a hearsay use of the evidence and a need to examine the asserted exceptions to the hearsay rule. I am satisfied, based on the viva voce evidence of the complainant, that he sent the messages immediately proximate to the time the defendant touched his penis. The circumstances are not clouded with suspicion. Relying again on Proof and Progress at page 215:

There are three key hearsay exceptions linked to the res gestae concept, "statements of present physical condition," "statements of present mental state," and "excited utterances." The last two of these exceptions are the most apt to arise where information technology is being used.

The "statements of present mental state" exception permits hearsay use to be made of statements made by any person — charged or not — that describe that person's relevant, present mental state of mind (such as emotion, intent, motive, plan), provided those statements are not made in circumstances of suspicion. In R. v. P. (R.) the Ontario Court of Appeal held that this exception is useful where statements expressly describe a present state of mind. For example, the statement "I am feeling depressed" is admissible as direct evidence of the speaker's depression.

59And continuing on page 216:

The "excited utterances" exception will often be encountered with electronic evidence. It is particularly useful where 9-1-1 and other electronically recorded emergency calls are recorded. So long as the communication is made by a person who is still under the stress or excitement of a startling event or condition — even if some time has passed — that communication may be admitted as hearsay if it describes or comments upon the startling event. In order to be admitted the declarant must be so caught up in the pressure of the event at the time the statement is made that they would not have time for reflection. Often where 9-1-1 calls are made, this is the case, although this will not invariably be so.

60In addition, I have been influenced by the guidance of the SCC in R. v. Starr, 2000 SCC 40, at para. 168:

168 The Crown argued that the "state of mind" or "present intentions" exception to the hearsay rule applied to render Cook's statement to Giesbrecht admissible. This exception was most recently discussed in detail by this Court in Smith, supra, where it was recognized that an "exception to the hearsay rule arises when the declarant's statement is adduced in order to demonstrate the intentions, or state of mind, of the declarant at the time when the statement was made" (p. 925). Wigmore has argued that the present intentions exception also includes a requirement that a statement "be of a present existing state of mind, and must appear to have been made in a natural manner and not under circumstances of suspicion": Wigmore on Evidence, vol. 6 (Chadbourn rev. 1976), at para. 1725, p. 129 (emphasis in original). L'Heureux-Dubé J., at para. 63 of her reasons, denies that Wigmore's suggestion has ever been adopted in our jurisprudence. As I will discuss below, regardless of whether the present intentions requirement ever had such a requirement, the principled approach demands that it must have it now. I will therefore examine the admissibility of Cook's statement under the present intentions exception in light of that understanding.

61The messages are admissible both as "statements of present intent" articulated by counsel in their submissions as "state of mind". I accept the evidence of the complainant and N.S. that he communicated these messages right after the defendant touched his penis. I find that the messages were communicated when the complainant was still under the stress of the startling event or condition – the defendant grasping his penis in the front seat of the vehicle. I am satisfied that there are no circumstances of suspicion.

F. First Sexual Contact – Touching the Complainant's Penis

62The complainant testified that the defendant initiated sexual contact by reaching out and touching his penis overtop of his clothing while they were still in the front seat of the vehicle for approximately 5 seconds. The defendant denies this occurred. I accept the evidence of the complainant that the defendant did in fact touch his penis in this manner.

63I accept that the defendant initiated the sexual contact by touching his penis. In addition, consent is viewed from the subjective perspective of the complainant at the time the sexual act occurred: see R. v. Ewanchuk, 1999 CanLII 711 (SCC), [1999] S.C.J. No 10 (S.C.C.), at para. 26. The defendant did not inquire into the complainant's willingness for this sexual touching to occur. Separate and apart from the sexual contact that occurred in the back seat of the vehicle, the defendant did not have the complainant's consent to initiate sexual contact in this manner.

64The admissible text messages do not prove that the defendant touched the complainant, but they corroborate the complainant's expressed state of mind in the moments after being touched. The complainant refers to the defendant possibly raping him. Whether this comment is taken as provocative drama or cold truth – the fact is the sentiment was expressed. During cross-examination the complainant testified that he communicated, "I am not lying" because he perceived that his friends would be shocked by the message. Not because he believed he had to bolster his credibility with his friends. The cross-examination wherein the complainant was asked to speculate about the perceptions of N.S. and C.F. was not important to this analysis.

65Second, prior to touching the complainant's penis, the defendant had turned the conversation in the direction of sexuality by asking the complainant about his relationship with N.S. and C.F. The complainant perceived that the defendant was fishing around to determine whether or not he was gay. He told the defendant he was gay.

66It was at this juncture that a spectacularly bizarre piece of evidence was provided by the defendant. The defendant in examination-in-chief testified that he perceived that the complainant was concerned about him being against homosexuality. He testified that he told the complainant that he was open-minded, well-travelled, and not against gay persons. The defendant then testified that he told the complainant that he was in fact gay as well. The defendant went on to testify that this was not in fact true – he was not in fact gay. The defendant claimed that he made these statements purely for the purpose of making the complainant feel at ease and comfortable in his Uber vehicle!

67I find the defendant lied about his purpose in saying this to the complainant. The idea that he falsely said he was gay for the purpose of comfort and customer service is absurd and ridiculous. It is preposterous to suggest that an Uber driver, spending minutes with a stranger during a short commute, would commit to such a customer service approach. Furthermore, when asked directly several times during cross-examination why he would be interested in "making out" with the complainant if he was not gay the defendant simply could not explain his state of mind.

68The defendant, during direct-examination, denied that he was sexually attracted to the complainant during the discussion around sexuality. Then, he testified moments later that when he went into the back seat he was in fact sexually attracted to the complainant. According to the defendant, the movement to the backseat occurred minutes after the sexualized conversation occurred in the vicinity of Rossland Road (and Ritson). It is notable that the defendant fixed this discussion as having happened as the vehicle passed Rossland Road. This is where the complainant described the defendant reaching out and touching his penis -- near the Calvary Baptist Church.

69In a re-examination that I gave little weight to, the defendant testified that he was bi-sexual. This was not brought out in a comprehensive direct-examination nor was it illuminated during a cross-examination with several relevant opportunities to provide this evidence. I think it unlikely that this apparent life-change revelation occurred on the stand during re-examination.

70At core, the defendant turned the conversation to the issue of sexuality because he was interested in sexual contact with the complainant. These fantastical contorted explanations were manufactured by the defendant to try to distance himself from the fact that he was sexually interested in the complainant. Finally, this approach was concerned with the resultant impact on the twin pillars of the mistake of age defence -- that the complainant was a willing participant in sexual contact, and that the complainant was the initiator. Notwithstanding the impact this area of evidence had on the defendant's credibility, I still accepted his view that the complainant willingly participated in the sexual activity in the rear of his vehicle.

G. The Plaza

71I am satisfied that the defendant and the complainant had a conversation about having sexual contact after the defendant touched the complainant's penis. While I acknowledge the complainant's evidence about being on the cellphone for a portion of time, and I acknowledge the impact of the text messages he sent, I accept the defendant's evidence that a discussion occurred.

72Part of this finding rests on the GPS evidence about the movement of the defendant's vehicle near the plaza. The complainant describes a turn into the plaza and then the defendant backing out. The defendant testified that he tapped the brakes momentarily. I accept the evidence of the defendant bolstered by the extensive objective record produced by defence counsel.

73But the resulting impact on this point is relevant to the reliability of the complainant's evidence not his credibility. The important point is that I am satisfied that both parties were looking for a suitable location. That they differ on turning into the plaza or tapping the brakes in front of the plaza is not that important. The complainant's evidence on this point is less reliable than the defendant's evidence.

74What is important is that this finding supports one of the core defence arguments around the willingness of the complainant to engage in sexual contact. For reasons I will detail in a moment, I am satisfied that even though the complainant did not consent to the defendant touching his penis in the front seat of the vehicle, the complainant was not an unwilling participant in the sexual contact in the rear of the vehicle.

H. The Vehicle Stop on the Complainant's Street

75The defence submits that the complainant was not being truthful about being able to see the driveway in front of his residence. It is also submitted that the complainant was not truthful about access to his residence given the unchallenged admitted evidence from his father on point.

76The crux of this credibility attack is that the complainant's stated explanations for not fleeing the defendant were not true. The assertion is that the complainant testified in this manner to address concerns that he would be perceived as a willing participant in the sexual activity (see defence submissions paragraphs 36 – 45). The defence submissions move further and assert that the complainant was the initiator with respect to sexual contact.

77I partly accept the defence submissions in this regard. For reasons I will detail in a moment I accept the submissions of defence counsel that the complainant had the opportunity to leave the defendant's vehicle, could have accessed his residence, and could have accessed help if he wanted to. I agree with the defence position in this regard.

I. Sexual Contact – The Back Seat of the Vehicle

78The complainant and the defendant got into the back seat of the vehicle. Sexual contact occurred there. The complainant performed fellatio on the defendant. There were preparatory attempts to engage in sexual intercourse that were stymied by the defendant's premature ejaculation. Defence counsel's aim in cross-examination generally was to bring forward to the court credibility concerns with the complainant's evidence enroute to two findings (1) that the complainant was a willing participant; and (2) that the complainant was the initiator of the sexual conduct.

1. The Complainant was Willing to Engage in Sexual Contact

79Notwithstanding my credibility findings against the defendant concerning the touching of the complainant's penis, I accept the evidence of the defendant that he did not use any compelling words, gestures, or the application of physical force to cause the complainant to attend the rear of the vehicle. Notwithstanding my finding that the complainant did not factually consent to the fondling of his penis, I find that the complainant was a willing participant in the activity in the back seat shortly thereafter.

80I believe the defendant's evidence that the complainant willingly entered the backseat of the vehicle. I accept the evidence of the defendant that he did not force the complainant to perform fellatio on his person. I cannot resolve the positioning (who was on top) during the failed intercourse attempt but in my view this is not important.

81A significant portion of the trial and the focus of counsel involved the factual issue of whether or not the complainant was a willing participant in the sexual activity. I did not find this finding to be the watershed credibility event urged upon me by defence counsel for many reasons. First of all, there are several cases dealing with the mistake of age defence where the complainant is found to have been a willing participant. Several cases deal with the phenomenon of factual consent in circumstances where legal consent is not available. Second, I recognize that developing children and teenagers may at times have an emotional and physical reaction to sexual contact just like adults.

82The central reason concerns my finding that while the complainant was ambivalent or ashamed of what happened with the defendant after the event, he nonetheless was a willing participant. The complainant's emotional reaction to what he participated in informed some ambiguity in his evidence at large and the approach he took to explaining his involvement to his friend N.S. I had a lengthy period of time to evaluate the complainant over more than a day of direct and cross-examination. I have had the benefit of evaluating his reaction and evidence during a thorough and skilled cross-examination. The most prominent feature of the complainant's evidence is mixed emotions about what happened. There is, in fact, a gulf between his actions on the day, his considered views about his actions shortly after the event, and his testimony about that day over a year and a half later.

83My finding that the complainant willingly entered the back seat of the defendant's vehicle does not mean that the complainant was clear-headed and resolved about sexual contact with the defendant. I accept the complainant's evidence about mentioning his father might be home, lying about his father being a police officer, and the fact that he did not have contraceptive protection as being mechanisms associated with trying to dissuade the defendant from further sexual contact. The defendant himself corroborates the fact that these subjects were discussed. He corroborates in particular the false statement about the complainant's father being a police officer. The complainant's purpose was to try to dissuade the defendant – not encourage him to come back to the complainant's residence for a "good time in bed" as submitted by defence counsel.

84But it is also true that many features of the evidence suggest the complainant's willingness. I adopt and accept the lion share of the defendant's evidence and defence submissions on this point. The complainant did not protest when the defendant touched his penis. He simply sent a text message to N.S. and C.F. The complainant did not take any steps to leave the vehicle. Shortly thereafter, perhaps a minute or two later, the vehicle was in the vicinity of the plaza. I accept that the complainant and the defendant mutually considered the plaza as a location even if I cannot resolve definitively who suggested it first. I agree with defence counsel's submissions that the defendant and the complainant had a discussion about contraception. Finally, minutes later, the complainant and the defendant are engaged in sexual contact parked on the complainant's residential street. The complainant was cross-examined on this issue using a summary of the complainant's position provided to the first attending police officers the day after the incident. He told the police that: the groping by the defendant triggered the discussion about protection; that he did not say "No" or "Leave me alone"; that he went into the backseat with the defendant; that he was not threatened or detained; that he performed oral sex on the defendant; that the male manually stimulated him; and he felt dirty. I accept the defence evidence about the positioning of the defendant's vehicle on the street, the maneuvers at the plaza, and the testimony of the complainant's father. The complainant could have walked away, called for help, or accessed his residence.

85Finally, I rest this conclusion on the complainant's evidence. During the trial the complainant explained that he felt gross or dirty after the event. But when pressed on the issue of why he entered the back seat he ultimately testified that it was a function of biology. The manual stimulation of his penis by the defendant aroused him. He was driven by this state of arousal. The complainant's actions on the day of the incident and his testimony at trial, a year and a half later, demands some common sense and context. With the benefit of hindsight (I find) he described a climate of compulsion surrounding his willingness to engage in sexual acts with the defendant. But I nevertheless find that on the day in question he was not unwilling to participate in the sexual contact in the back seat.

2. The Complainant was not the Initiator of Sexual Contact

86I do not find that the complainant was the initiator of the sexual contact. To the extent that this is relevant to his credibility or the overarching defence position concerning the mistake of age defence, I do not endorse this defence position. The defendant initiated contact by touching his penis. Thereafter, the events do not lend themselves to a black and white characterization as to who initiated what act.

87I did not find the defendant credible on this issue. The defendant's testimony leading up to the sexual contact in the back seat was a web of detail designed to demonstrate the promiscuity of the complainant. He sought to present the complainant as romantically involved with C.F. and sexually spurned. He sought to present the complainant as sexually frustrated by the turn of events that night. Notwithstanding his evidence that he was also willing to find a location to sexually interact with the complainant, he maintained that the complainant was directing the location and pace of the sexual events.

88In one notable graphic area of evidence – the defendant testified that after ejaculation the complainant asked him for permission to use his tongue and mouth to clean up the ejaculate. This spectacularly explicit recount was not put to the complainant in cross-examination.

89Both counsel have addressed the rule in Brown and Dunn in their submissions. The prosecution submits that there are many examples of a failure to comply with the rule. It is my role to determine factually whether failures occurred, and what, if any, effect the failures have given the issues at trial. I adopt the submissions of defence counsel on all of the purported failures and find all of the submitted examples to be of little consequence save and except for the defendant's evidence about the complainant cleaning up his ejaculate with his tongue.

90This was a graphic and visceral example of the defendant seeking to portray the complainant as the sexually experienced initiator, the director, and the person in control. The defendant exaggerated and fabricated this piece of evidence. I don't believe that this happened for even one moment. I do not need to engage in false compliments. But anyone reviewing the record at trial would note the effort, preparation, and thoroughness of defence counsel in presenting the case. The failure to put this point to the complainant does not rest on defence counsel's shoulders. The defendant made it up.

J. The Post Offence Conduct of the Complainant - Willingness and Later Ambivalence

91I do not find that the complainant initiated the sexual contact in this case. I have found that the defendant touched the complainant sexually first and explained that finding elsewhere in this judgment.

92I do not accept the complainant's evidence that he was compelled into the backseat of the defendant's vehicle. I agree with the defence argument that factually the complainant was a willing participant in the activity in the backseat.

93I am permitted to use common sense and life experience when assessing the evidence of witnesses. My honest assessment of the complainant is that he was startled by the initial touching of his penis by the defendant. He did not have foreknowledge of that action. He did not consent to that action. There was an important explanation provided by the complainant during his testimony about the driving force of biology. I found that explanation insightful for a 15 year old. I found it to be true. And I believe that that explanation best explains the complainant's willingness to factually consent to sexual contact in the rear seat of the vehicle notwithstanding his ambivalent stance at trial.

94The complainant's testimony in court, his considered views about the event many, many months later have been impacted by the forces of regret and shame. He described himself as feeling dirty for having participated. The complainant could have walked away rather than get into the backseat. His contorted explanations about access to the residence, grandparents, and seeing the driveway of his residence are a manifestation of his rationalization at trial for his involvement and are not a true reflection of what he felt on the day in question.

95Subsequent to the incident the complainant was unable to explain to his friend N.S. simple answers to questions around his willful participation. I accept the defence submission that the complainant told N.S. that he was forced to perform oral sex, forced into the back seat, he could not run, and could not call 911. The fact that the complainant claimed not to remember these details in my view impacted his credibility rather than his reliability. I do not believe that he had a memory lapse on this issue. He was consumed with trying to explain his conduct to N.S. But the context of this discussion is key – the complainant was defensively addressing the implied assertion of N.S. that he was a willing participant. The defence submissions on this issue were accurate in my view. The complainant was coming up with explanations consistent with his position that he was not a willing participant in the sexual acts.

96The crux of the matter is that one must consider the dynamic between the complainant and his friend N.S. The complainant perceived a lack of support or criticism from N.S. It is not unusual for sexual assault complainants to provide explanations to those who are close to them. For example, imagine a sexual assault complainant, a daughter, explaining to her strict father the circumstances that took her to be alone with an accused party in the basement prior a sexual assault. This hypothetical daughter's explanation to her father may not be precisely what happened. It may not mean that the daughter has fabricated the event. It is not unusual that there are inconsistencies. The core of the issue is why. I think that the complainant misrepresented the facts with N.S. I think he was seeking to justify and explain what happened. At the time the complainant participated in the sexual contact willingly. Shortly thereafter he could not explain his conduct to his friend. At trial, his considered view was more ambivalent.

97The complainant's testimony on these subjects was designed to address his perceived willingness to participate in sexual activity. I am to consider context, common sense, and life experience when evaluating evidence. This testimony was obtained from a 15 year old self-identified gay male, growing up in Oshawa, dealing with life's challenges as a teenager and all that this entails. His after-the-fact efforts to distance himself from being a willingly participant in the sexual acts in the backseat is fully understandable. In the end, I recognize that the complainant might take great issue with my conclusions. But I am obliged to explain my findings notwithstanding such sensitivities.

98This then leaves the remaining issue in the trial. Notwithstanding the complainant's participation in the sexual activity in the rear of the vehicle, the defendant claims that he honestly believed the complainant to be 18 or older and that he took all reasonable steps in the circumstances to ascertain the age of the complainant.

VI. Mistake of Age Defence

99Sections 150.1(1) and 150.1(4) of the Criminal Code reads as follows:

Consent no defence

150.1 (1) Subject to subsections (2) to (2.2), when an accused is charged with an offence under section 151 or 152 or subsection 153(1), 160(3) or 173(2) or is charged with an offence under section 271, 272 or 273 in respect of a complainant under the age of 16 years, it is not a defence that the complainant consented to the activity that forms the subject-matter of the charge.

Mistake of age

(4) It is not a defence to a charge under section 151 or 152, subsection 160(3) or 173(2), or section 271, 272 or 273 that the accused believed that the complainant was 16 years of age or more at the time the offence is alleged to have been committed unless the accused took all reasonable steps to ascertain the age of the complainant.

100The defendant does not qualify for any of the age-related exceptions in the subsections of this provision. As such, the complainant was legally incapable of consenting in this case. Notwithstanding this finding, I agree with the position of defence counsel that the complainant's willingness or unwillingness to participate in sexual acts may have an impact on credibility assessments. Furthermore, it is important to the mistake of age Defence because the successful invocation of that defence presumes that the complainant was not factually coerced or forced to participate in the sexual acts.

101I have considered the following guidance on the mistaken belief in age defence:

1. It is a criminal offence to touch a child between the age of 14 and 16 if you are 5 years senior, even if you honestly believe the child to be over age 16, unless you have taken "all reasonable steps": R. v. George, 2017 SCC 38, at para. 26 [George].

2. The purpose of the "reasonable steps" requirement is to protect young people from sexual crimes by placing the responsibility with adults: George, at para 2.

3. Parliament's purpose was to prevent the potential sexual exploitation of children, the actual sexual exploitation of children, and to generally protect children from having sexual contact with adults given the inherent power imbalance vitiates consensual sexual contact between them: R. v. A.B. 2015 ONCA 803, at para. 38.

4. The evidential but not persuasive burden is on the defendant. If there is an evidentiary basis (i.e. an air of reality) for the "mistaken belief in age" defence the onus is on the prosecution to establish beyond a reasonable doubt that the defendant did not take all reasonable steps to determine the age of the complainant: R. v. Chapman, 2016 ONCA 310, at paras. 28-29; leave to appeal dismissed, [2016] S.C.C.A. No. 244. [Chapman].

5. The first step is to assess the objective reasonableness of the defendant's assertion that he honestly believed the complainant was over 16 years of age: R. v. Duran 2013 ONCA 343, at para. 51 [Duran].

6. Since the subjective belief of the defendant does not conclusively determine the issue, the next step is to analyze whether the defendant took all reasonable steps to ascertain the complainant's age which is dependent on context and the circumstances: Duran, at para 52.

7. Per Duran, at paragraph 53 the Court should:

53 . . . determine whether what the appellant knew and observed about the complainant were all the steps a reasonable person needed to take or whether a reasonable person ought to have made further inquiries. In making that determination, the jury should have been told to take account of the following considerations and the evidence on them: the accused's observation of the complainant; the complainant's appearance and behaviour; the information the complainant told the appellant about herself, including any information about her age; and the age differential between the appellant and the complainant.

8. Per R. v. Dragos, 2012 ONCA 538, at paragraph 33 [Dragos]:

33 The Supreme Court of Canada has described the s. 150.1(4) "all reasonable steps" requirement as a "due diligence defence": R. v. Hess; R. v. Nguyen, 1990 CanLII 89 (SCC), [1990] 2 S.C.R. 906. Similarly, the British Columbia Court of Appeal has interpreted the applicable test under s. 150.1(4) as asking what steps "a reasonable person would take in the circumstances" to ascertain a complainant's age: R. v. L.T.P. (1997), 1997 CanLII 12464 (BC CA), 113 C.C.C. (3d) 42, at para. 20. See also R. v. Hayes, [1991] A.J. No. 1232 (Alta. Q.B.).

9. The analysis requires a contextual fact-specific analysis based on an objective reasonable person: Dragos, at para. 32.

10. Per Chapman, at paragraph 40:

40 Section 150.1(4) mandates an inquiry akin to a due diligence inquiry. The analysis involves comparing the steps, if any, taken by an accused to determine the complainant's age with the steps that a reasonable person would have taken in those circumstances: R. v. Saliba, 2013 ONCA 661, 304 C.C.C. (3d) 133, at para. 28; R. v. Dragos, 2012 ONCA 538, 111 O.R. (3d) 481, at paras. 29-33.

11. Per Chapman, at paragraph 41:

41 In R. v. L.T.P., the British Columbia Court of Appeal considered those steps that might be reasonable for an accused to take in order to ascertain a complainant's age. The court stated, at para. 20:

In considering whether the Crown has proven beyond a reasonable doubt that the accused has not taken all reasonable steps to ascertain the complainant's age, the Court must ask what steps would have been reasonable for the accused to take in the circumstances. As suggested in R. v. Hayes, [1991] A.J. No. 1232 supra, sometimes a visual observation alone may suffice. Whether further steps would be reasonable would depend upon the apparent indicia of the complainant's age, and the accused's knowledge of same, including: the accused's knowledge of the complainant's physical appearance and behaviour; the ages and appearance of others in whose company the complainant is found; the activities engaged in either by the complainant individually, or as part of a group; and the times, places, and other circumstances in which the complainant and her conduct are observed by the accused. ... Evidence as to the accused's subjective state of mind is relevant but not conclusive because, as pointed out in R. v. Hayes at p. 11, "[a]n accused may believe that he or she has taken all reasonable steps only to find that the trial judge or jury may find differently". [Emphasis in original]

12. The greater the disparity in age between the accused and the complainant, the more inquiry will be expected. Where the accused is older and more sophisticated than the complainant, more inquiry will be required than if the accused were merely a youth: R. v. C. (H.H.), [1996] O.J. No. 4306 (Ont. Gen. Div.), aff'd [1997] O.J. No. 4567 (C.A.)

13. Per R. v. H.L., 2017 ONSC 6205, at paragraphs 104-105:

104 The case law directs a finder of fact to take into account the full context and circumstances. The inquiry is highly fact specific: R. v. George 2017 SCC 38, R. v. Duran, 2013 ONCA 343, 3 C.R. (7th) 274 (Ont. C.A.), at para. 52; R. v. K. (R.A.) (1996), 1996 CanLII 7277 (NB CA), 106 C.C.C. (3d) 93 (N.B. C.A.), at p. 96, R. v. Saliba 2013 CarswellOnt 18359, 2013 ONCA 661, [2013] O.J. No. 5887 at paras. 25-32, R. v. Dragos (2012), 2012 ONCA 538 (CanLII), 291 C.C.C. (3d) 350 (Ont. C.A.), at paras. 29-33, R. v. P. (L.T.), 1997 CanLII 12464 (BC CA), [1997] B.C.J. No. 24, 113 C.C.C. (3d) 42 (B.C.C.A.) at paras. 12-20, R. v. Chapman 2016 CarswellOnt 6578, 2016 ONCA 310.

105 A few points of importance to this case emerge from these authorities:

a. The subsection focuses on the steps taken to ascertain age as opposed to the belief subjectively held by the accused. After assuming there is an honestly held belief in age the provision goes on to ask whether a sufficient due diligence investigation was undertaken by the accused. "All reasonable steps" suggests a higher responsibility than "reasonable steps" from Section 273.2(b) but the difference is too subtle and difficult to articulate or for it to amount to much.

b. For a trial judge to focus on the accused's belief with respect to age instead and to the exclusion of steps taken to ascertain age is a fundamental error in law: see Saliba, supra at paras. 25-26, 30.

c. "The trier of fact must compare the steps...taken by an accused to determine the true age of a complainant with the steps that a reasonable person would have taken in those circumstances:" Saliba, supra at para. 28. Generally speaking the more objectively reasonable a belief as to age, the less onerous will be the reasonable steps expected of an accused.

d. It would be wrong to conclude that asking age is, in every case, necessarily sufficient in light of a young person's well-recognized motivation to mislead about their age: George, supra at para. 9. Again, it will depend on the circumstances.

e. The defence cannot rely on the sexual activity itself; it is only evidence predating the activity which can be considered: George, supra at para. 18.

14. "The requirement that an accused ascertain all reasonable steps is more than casual. There must be an earnest inquiry or some other compelling factor which negates the need for an inquiry": R. v. Ayer, [2008] O.J. No. 3611 (C.A.), at para. 37; Dragos, at para. 51; R. v. D.O., 2017 ONSC 2027, at para. 34

15. Evidence of exploitive conduct may be relevant to the defendant's asserted mistaken belief or reasonable steps analysis but the prosecution need not prove exploitation: George, at para. 26.

16. The defendant may not ". . . rely upon the impugned activity itself as a reasonable step in ascertaining the complainant's age . . .": George, at para. 18.

17. The defendant's reasonable steps must precede the sexual activity but the defendant may have resort to a wider record of evidence even after the sexual activity for the purpose of demonstrating the reasonableness of the steps taken: George, at paras. 21-22.

18. There are no particular steps that must be taken and the defendant need not take all possible steps: R v. Dunchie, 2007 ONCA 887, at para. 14.

19. The defendant need not always question a complainant or otherwise seek to obtain conclusive proof of age. What constitutes "all reasonable steps" will vary depending on the circumstances: Chapman, at para. 50.

VII. Mistake of Age Defence: Finding

102The defendant has established an "air of reality" such that I must consider and address the mistake of age defence. The prosecution has proven that the defendant did not hold an honest subjective belief that the complainant was over the age of 16 (or 18). Furthermore, I find that the asserted subjective belief is not objectively reasonable.

103The prosecution has proven beyond a reasonable doubt that the defendant did not take all reasonable steps to ascertain the age of the complainant.

104I reject the defence of mistake of age.

A. Analysis

105I adopt the factual findings made earlier in this judgment when explaining why the mistake of age defence fails. There are many reasons why the mistake of age defence fails. I will classify these reasons as objective circumstances and specific circumstances.

1. Objective Circumstances

106I have addressed some of the relevant objective circumstances in my factual findings earlier in this judgment. I adopt the factual findings as relevant to my analysis of the objective circumstances surrounding the assertion of the mistake of age defence. The most significant objective circumstance is the very short timeframe involved between picking up the complainant and the first sexual contact.

107The defendant arrived to pick up the complainant at approximately 11:50 PM. Approximately two minutes after leaving the defendant returned to drop off N.S. The complainant testified that the defendant touched his penis proximate to the Calvary church on Ritson Road. As a judge sitting in this jurisdiction I know and can take judicial notice that is perhaps a ten minute drive from the Jubilee Pavilion to the Calvary Baptist Church on Ritson road. From the area of the Calvary Baptist church to the residential address of the complainant would take a few minutes further. All told, the defendant spent perhaps 10 minutes with the complainant before he initiated sexual contact by grasping the complainant's penis in the front seat of the vehicle. Perhaps five minutes later, intimate sexual activity was occurring in the backseat of the vehicle parked on complainant's residential street.

108This is not a moralistic observation. It is simply a factual observation that the overall timeframe available for the defendant to assess and evaluate the circumstances was very short. This short time frame informs the timespan that the defendant had to undertake reasonable steps to ascertain the age of the complainant. Part of the time the defendant was no doubt focused on driving the complainant home. Part of the time the complainant was on his phone. The defendant's ability to ascertain the age of the complainant was impaired by this short time frame.

109Another important objective circumstance when assessing what a reasonable person would or would not do involves the defendant's employment. The defendant was employed as an Uber driver picking up members of the general public. When analyzing the actions of the defendant objectively, it is unreasonable that as a person employed picking up members of the general public he would initiate sexual contact with a perfect stranger within minutes of first contact without asking for consent. The defendant, objectively speaking, risked initiating sexual contact with an unknown young male passenger in his vehicle within minutes of meeting. The proverbial objective reasonable person would not have taken such a risk.

2. Specific Circumstances

a) Circumstances surrounding meeting the complainant

110Earlier in this judgment I outlined a number of factual findings that are relevant to the mistake of age defence analysis. The defendant did not pick the complainant up at a nightclub or bar. He picked him up in the company of two other teenagers at Jubilee Pavilion in Oshawa in circumstances where there were parents and children present. There was conversation in the vehicle wherein the defendant was alerted to the issues of parental permission, the lack of alcohol consumption, and the stress of school life. The defendant could observe the apparent age of N.S., C.F, and the complainant. Finally, I have found that the complainant told the defendant he had just turned 15 years of age. A reasonable person fixed with this information would not have engaged in sexual contact with the complainant.

b) Height

111I agree with the defendant's testimony that the complainant was tall – 6"3.

c) Deep voice

112I do not agree, even at the time of trial, that the complainant had a deep voice. The defendant had mere minutes to assess the deepness of the complainant's voice on the night in question. I had a day and a half of testimony to perform the same assessment. The limited opportunity the defendant had to ascertain the deepness of the complainant's voice does not assist him. No reasonable person could conclude that the complainant had a deep voice at trial. I think it unlikely that his voice was deeper on the night of the incident given the normal progression of human adolescent development.

d) General appearance

113Height is not the only measure of maturity or age. I had the opportunity to observe the complainant. The complainant was very slim in stature. If the complainant shaved it was not apparent looking at him as his features were soft. Overall the complainant had an immature presentation in his face as compared to his overall height. He had a long, gangly, presentation consistent with someone who was still developing in my respectful view. I have also recognized that I had many hours to observe the complainant in a well-lit courtroom. The defendant had minutes to assess the complainant, he was driving, and engaging in conversation with the complainant. Certainly the defendant did not have the same opportunity as the Court to closely observe the complainant. But in the end this is the rationale for making careful inquires and taking all reasonable steps before venturing further into sexual contact.

114Objectively speaking, the only feature of the complainant detracting from a conclusion that he was a young teenager was height. Certainly the complainant did not present as a toddler or a very young immature boy. But my evaluation of him at trial supports a finding that the average person would inquire further as to his age. Apart from taking a picture of the complainant and filing it with my judgment this is the best I can do to articulate my observations of the complainant's general appearance.

e) Three teenagers

115I have already explained my views on how a reasonable person would view the physical appearance of N.S. and the complainant. In addition to that there is a neutral fact in that C.F. was also present at the beginning. He was not called as a witness. I cannot evaluate how a reasonable person would have perceived his physical appearance. Neither counsel addressed this issue in the trial or attempted to elicit evidence from the other witnesses about C.F.'s appearance. I am left with the neutral information that C.F. was present, he was a peer of N.S. and the complainant, and he was aged 16 years of age.

f) Gala dance

116The defendant did not pick the complainant up at a nightclub or bar. He picked him up in the company of two other teenagers at Jubilee Pavilion in Oshawa in circumstances where there were parents and children present. There was a gala dance that night for parents, faculty, and the children involved in the competitive dance scene. The age range of those associated to the event was between 3 years and 18 years of age. There is no evidence that the defendant was closely observing persons or that it was crowded. That being said there was evidence that the complainant and N.S. interacted with other peers who were outside the venue prior to getting in the defendant's vehicle. Objectively speaking the defendant must have generally perceived that this was not a nightclub with drunk adult patrons looking for transportation – something that is an every night occurrence for him.

117Furthermore, I have explained earlier my findings that the defendant was alerted to the issues of parental permission, the lack of alcohol consumption, and the stress of school life.

g) Uber App access

118The defendant relied on the age limitation associated with the Uber app and his training and experience in that regard. Lest members of the public think the Court is out of touch with reality there may be some notorious notion that many, many teenagers under the age of eighteen are using the Uber App but I cannot rely upon that record. Even though I hear of young persons using Uber in trials and in my everyday life, defence counsel cannot cross-examine on that record so it is unavailable. For the same reason I am not entitled to take judicial notice of the Uber App and how it functions even if I am personally aware. I am limited to the record placed before me. Within the four corners of this trial I heard evidence that persons may access the App and bypass the age restriction without verification. During cross-examination I heard from the complainant in particular that everyone his age in high school uses Uber to get home from parties because it's so cheap. This includes persons aged 15, 16, 17, and 18.

119I simply rely on this record to find that it is unreasonable to rely on an easily bypassed step. I doubt very much that the defendant or any other Uber drivers are zealously checking identification when passengers get in the vehicle. I have not heard evidence that this is so. I heard evidence from the defendant that he has never knowingly transported someone under 18 alone. If that is true the incident in this trial would have been his first time transporting persons under the age of 18 years of age. I doubt that this is the truth. If it was the truth the incident in this case would have been the very first time the defendant transported someone underage. A peculiar and unusual event.

h) The complainant was the initiator of sexual activity

120I simply adopt my findings set out earlier in this judgment. I have found that the defendant initiated the sexual encounter by touching the complainant's penis while he sat beside the defendant in the passenger seat.

i) The complainant's comfort level with sex

121I have already found that the complainant was not the initiator. Furthermore, I have found that the defendant initiated sexual contact by fondling the complainant's penis prior to them moving into the backseat for further sexual activity. The defendant cannot rely on the sexual activity itself as a reasonable step: George, at paras. 18, 21-22

j) The complainant's comfort level with sexual orientation

122I similarly reject this thought process asserted by the defendant. It risks the stereotypical approach regarding sexual orientation I highlighted earlier in this judgment. Just because the complainant identifies as gay does not make him more available to an adult intent on sexual contact. Nor does it permit an inference of promiscuity. That the complainant is maturing in a society where traditional conservative views about sexual orientation are diminishing does not support, reasonably, the foundational suggestion that this is a reasonable step or circumstance relevant to ascertaining his age.

123In any event, the defendant did not testify about his comfort level or experience so I cannot assess his comfort level as it related to the comfort level of the complainant.

k) The complainant told the defendant his age

124As outlined in this judgment I find that the defendant was specifically told that the complainant had just turned 15 years of age. He was also told the age of N.S. The defendant specifically testified that "he was not focused on age". He also testified that he never affirmatively inquired as to the complainant's age.

B. Conclusion: Mistake of Age Defence

125The complainant did not consent to the first sexual contact initiated by the defendant when he grasped the complainant's penis. The complainant was a willing participant in the second of two sexual contacts with the defendant. Since he had just turned 15 he could not legally consent to any sexual activity.

126The defendant claimed that he believed the complainant was over the age of 18 years let alone over the age of 16 years. If I believed the defendant in this regard, or had a reasonable doubt about that asserted belief, that doubt, in combination with the willing participation of the complainant in the sexual activity in the rear of the vehicle could support the defence of mistake of age only if the defendant took "all reasonable steps"

127While the defence had an air of reality, my final conclusion is that the defendant did not honestly subjectively believe that the complainant was over the age of 18 years (or less), and, he failed to take "all reasonable steps".

128In R. v. Levigne, 2010 SCC 25, at paragraphs 41 to 44 the Supreme Court of Canada considered the less stringent standard of the "reasonable steps" requirement in s. 172.1(4) of the Criminal Code and held:

41 The "reasonable steps" invoked by the appellant were in fact neither "reasonable" nor "steps to ascertain the age" of the person with whom he was communicating by computer for the avowed purpose of his own sexual gratification. Rather, they were circumstances which in the appellant's submission explain why, as he admitted in cross-examination, he in fact took no steps to ascertain the actual age of "Jessy G.". And this despite the latter's repeated assertion that he was only 13.

42 Thus, for example, Mr. Levigne maintained at trial that there were moderators in the public chat rooms who would remove children. But this is of little comfort to him, since his relevant communications with "Jessy G" occurred in a private chat room.

43 Likewise, Mr. Levigne's purported reliance on the fact that the profile of "Jessy G" listed his age as 18. But as we have already seen (at para. 10), "Jessy G" explained to Mr. Levigne that he was in fact only 13, and had indicated on his profile that he was 18 only because he would not otherwise have been permitted to post a profile.

44 In short, I agree with Berger J.A. (at para. 17) that Mr. Levigne relies upon indicia of adulthood, ... [that] support neither the reasonableness of [his] belief nor satisfy the requirements of subsection (4) that for such a defence to carry the day [Mr. Levigne] must have taken reasonable steps to ascertain the age of the person with whom he was communicating. The record here is silent in that regard.

129This is very close to the situation presented by the defendant's evidence in this case. The defendant seeks to rely on a retrospective review of the environmental information available to him in support of his subjective belief. His reliance on the physical appearance of the complainant, the Uber terms and conditions, and the circumstances of the sexual contact are not irrelevant considerations. Similar to Levigne, his reliance on the age restrictions in Uber do not provide a foundation for mistake of age. But much of the defence evidence at trial focused on the subjective belief of the defendant rather than on reasonable steps.

130To restate again for emphasis the analysis of Justice Harris in H.L., at paragraph 105:

105 A few points of importance to this case emerge from these authorities:

a. The subsection focuses on the steps taken to ascertain age as opposed to the belief subjectively held by the accused. After assuming there is an honestly held belief in age the provision goes on to ask whether a sufficient due diligence investigation was undertaken by the accused. "All reasonable steps" suggests a higher responsibility than "reasonable steps" from Section 273.2(b) but the difference is too subtle. [Emphasis in the original]

131For the reasons outlined in this judgment I find that the defendant did not even possess the subjective belief he claimed. He certainly did not conduct a sufficient due diligence investigation. The circumstances did not support a body of reasonable steps. The defendant did not take a single affirmative step for the purpose of determining the age of the complainant.

132On his evidence, the subject of age did not come up. He did not even ask how old the complainant was before engaging in sexual contact. As he explained, he was not focused on age.

133The criminal law requires adults to take greater care when seeking sexual contact with children.

Released: June 7, 2018

Signed: "Justice M.S. Felix"

1The complainant self-identified using this term so I will use it in this judgment.