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judge or justice may make an order directing that any information that could identify the victim or a witness shall not be published in any document or broadcast or transmitted in any way, in proceedings in respect of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, 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 from time to time before the day on which this subparagraph comes into force, if the conduct alleged 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 victim of the right to make an application for the

order; and

(b) on application made by the victim, 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

CITATION: R. v. Giscombe, 2021 ONCJ 710

DATE: 2021·11·28

BETWEEN:

Her Majesty the Queen

— and —

Ronnice Giscombe

Judgment

(This judgment has been edited to comply with the applicable Publication Order(s))

J. Flaherty .............................................................................................. Counsel for the Crown

R. Sansanwal.................................................................................... Counsel for the Defendant

Felix J.:

Table of Contents: R. v. Ronnice Giscombe

I. Introduction 7

II. The Offences: Sexual Assault and Sexual Interference 8

A. Introduction 8

B. Sexual Assault 8

C. Sexual Interference 8

III. The Legal Framework 9

A. Introduction 9

B. Burden of Proof 9

C. Credibility and Reliability of Witnesses 10

1. The Test in W.(D.) 10

2. Stereotypical Reasoning 11

3. Credibility and Reliability of Witnesses 11

4. Credibility and Sexual Offence Cases 12

5. Similar Fact 14

6. Adults Testifying about Historical Events 15

7. Credibility and Objective evidence 16

8. Reliability 16

9. Motive to Fabricate 16

10. Summary of Credibility and Reliability Findings 17

IV. Sexual Interference 18

A. Introduction 18

V. The “First Incident” and the “Group Incident” - (Counts 2 & 3) 19

A. Introduction 19

B. Evidence – The “First Incident” 19

1. Complainant O.A. 19

2. The Defendant 21

C. Evidence -- The “Group Incident” 21

1. Evidence: Complainant O.A. 21

2. Evidence: Complainant R.A. 22

3. Evidence: Defendant 22

D. Analysis: The “First Incident” 23

1. Introduction 23

2. Credibility and Reliability of O.A. 24

a) Overall Demeanour and Presentation at Trial 24

b) Credibility 24

c) Reliability 24

d) Irrelevant Considerations 25

e) Motive to Fabricate 25

f) Collusion 25

3. Credibility and Reliability of the Defendant 28

a) Context 28

b) The Defendant’s Background 28

c) Employment as a Promoter 28

d) The Defendant’s Association with Club Haus 28

e) The Lie – Complainant O.A. 30

f) The Lie and Mistake of Age 31

g) The Conversation Prior to leaving Club Haus 32

h) The Rationale for Attending the Defendant’s Apartment – Dirty Shoes 33

i) The Rationale for Attending the Defendant’s Apartment – Clothing 33

j) The Defendant’s True Aim 33

k) After the Sexual Contact 34

l) Demeanour and Performance as a Witness 35

m) Browne & Dunn 36

4. Conclusion 36

E. Analysis: The “Group Incident” and the Mistake of Age Defence. 37

1. Introduction 37

2. Similar Fact 38

3. The Law – Mistake of Age Defence 38

a) Air of Reality 38

b) Reasonable Steps 39

c) Proof of the Offence: Knowledge, Wilful Blindness, and Recklessness 40

d) Proof of “Belief” 41

(1) Knowledge 42

(2) Wilful Blindness 42

(3) Recklessness 42

4. Analysis: Findings - Mistake of Age – Complainant O.A. 43

a) Introduction 43

b) The Relevance of the “First Incident” – Complainant O.A. 43

c) The Presentation of O.A. During the “First Incident” 43

d) Lifestyle 44

e) Air of Reality – Complainant O.A. – “Group Incident” 45

f) The Presentation of O.A. – “First Incident” 46

g) Failure to Gain Entry to Club Haus 48

h) Complainant O.A.’s Fake Identification 48

i) The Defendant’s Approach to the Issue of Age 49

(1) Age and Sexual Partners 49

(2) Indifference 49

(3) General Discussions with O.A. 50

(4) Age Gap Discussions with Complainant O.A. 50

j) Credibility and Reliability of Complainant O.A. 51

k) Credibility and Reliability of the Defendant 52

l) Conclusion – Mistake of Age Defence - O.A. 52

5. Proof of the Offence – Count Two – Complainant OA. 53

6. Analysis: Findings – Mistake of Age -- Complainant R.A. 53

a) Introduction 53

b) Air of Reality - Mistake of Age Defence – Complainant R.A. 54

7. Credibility and Reliability of Complainant R.A. 55

a) Overall presentation 55

b) Credibility 55

c) Reliability 55

d) Collusion 55

e) Motive to Fabricate 56

8. Credibility and Reliability of the Defendant 56

9. Proof of the Offence – Count Three – Complainant R.A. 56

VI. The “Series Incidents” and “After Disclosure” – Count Two 57

A. Introduction 57

B. Evidence – The “Series Incidents” and “After Disclosure” 57

1. Complainant O.A. 57

2. Evidence – Defendant 58

C. Analysis – “After Disclosure”, “The Series Incident” and the Mistake of Age Defence 59

1. The “Series Incidents” 59

2. “After Disclosure” -- Air of Reality 59

3. Conclusion 61

VII. “Slap Fest” – Count Three 62

A. Introduction 62

B. Evidence – “Slap Fest” 62

1. Complainant R.A. 62

2. Complainant O.A. 63

3. Defendant 63

C. Analysis: “Slap Fest” 64

1. Introduction 64

2. Reliability concerns 64

3. Absence of Evidence 65

4. Lack of Corroboration 65

5. The Defendant 65

6. Conclusion 65

VIII. “Bar Incidents” – Count Three 66

A. Introduction 66

A. Evidence – The “Bar Incidents” 66

1. Complainant R.A. 66

2. Defendant’s Position 67

B. Analysis – “Bar Incidents” 67

1. Consent 67

2. Corroboration 67

3. Air of Reality – Mistake of Age Defence 67

a) Complainant R.A.’s Attendance at Clubs 67

4. Mistake of Age Defence 68

a) Introduction 68

b) Age Inquires 68

c) Facilitating Access to Clubs 69

d) Homework 70

e) Conclusion – Mistake of Age 71

5. Conclusion 71

IX. “Crawford Incident” – Count Three 72

A. Introduction 72

B. Evidence 72

1. Complainant R.A. 72

2. The Defendant 72

C. Analysis – “Crawford Incident” 72

1. The Prosecution Case 72

2. Conclusion 73

X. Sexual Assault – Count One 73

A. The Evidence 73

1. Complainant O.A. 73

2. Defendant 74

B. Analysis: Count One – Sexual Assault 76

1. The Case to Meet 76

2. The Invitation Incident 76

3. The Morning Incident 77

4. Honest But Mistaken Belief in Communicated Consent 78

5. Air of Reality – Honest But Mistaken Belief in Communicated Consent 79

6. Analysis: Honest But Mistaken Belief in Communicated Consent 80

a) Air of Reality 80

b) The Defence 81

c) Conclusion 81

7. Credibility and Reliability of O.A. 81

8. Credibility and Reliability of the Defendant 82

9. Conclusion 82

XI. Sexual Assault – Count Four 83

XII. Sexual Assault – Count Five 83

1. Complainant R.A. 83

2. Defendant 84

A. Analysis – Finding of Fact – Count Five 85

1. Honest but Mistaken Belief in Communicated Consent 85

2. Location of the Sexual Contact 86

3. The Debt 86

4. The Car Share 86

5. Credibility and Reliability of Complainant R.A. 88

6. Conclusion 88

XIII. Conclusion 89

I. Introduction

1The defendant was employed as a concert and event promoter. His employment included putting on events in nightclubs.

2This criminal case involves his sexual contact with two complainants aged fourteen and fifteen years old. The sexual contact continued after each complainant turned sixteen years old.

3The Crown has packaged numerous allegations of sexual offences into five discrete criminal counts on the Information. As it concerns sexual contact with the complainants prior to age sixteen, the prosecution alleges the defendant committed multiple offences of sexual interference. As it concerns circumstances of sexual contact after the complainants turned sixteen, the prosecution alleges that the defendant has committed crimes of sexual assault.

4The defendant testified at trial. He denied some of the alleged sexual conduct grounding the sexual interference counts. With respect to other sexual conduct captured by the sexual interference counts, he asserted the mistake of age defence. The defendant denied the allegations of sexual assault. He also relied upon the defence of honest but mistaken belief in communicated consent.

5The central issue at trial revolved around the credibility of the three witnesses – the defendant, and each complainant, as evaluated through the lens of W.(D.) v. The Queen (1991), 63 C.C.C. (3d) 77 (S.C.C.) [W.(D.)]

6On Wednesday November 24th, 2021, I provided my decision a trial in a summary fashion with supplementary written reasons to follow. On Saturday November 27th, 2021 the written reasons were released to Counsel. The defendant is found guilty of each count on the Information.

II. The Offences: Sexual Assault and Sexual Interference

A. Introduction

7Given the submissions of counsel, there is no controversy about the essential elements of the offences before the court. As such, a brief outline will suffice for these reasons.

B. Sexual Assault

8Sexual Assault is a general intent crime requiring the Crown to establish the following beyond a reasonable doubt:

1. That the defendant intentionally applied force;

2. The complainant did not consent to the force that the defendant intentionally applied;

3. That the defendant knew that the complainant did not consent to the force that he intentionally applied; and,

4. That the application of force took place in circumstances of a sexual nature.

(See R. v. Barton, 2019 SCC 33, at paras 87-89; J.A., at para. 23; R. v. Ewanchuk, [1999] 1 S.C.R. 33, at paras. 23-30 [Ewanchuk].)

9The Crown does not have to prove a sexual purpose for the touching: R. v. Trachy, 2019 ONCA 622, at paras. 70-74 [Trachy]. I heed the guidance provided by the Supreme Court of Canada concerning how to evaluate circumstances of a sexual nature and the requisite elements of the offence: R. v. Chase, 1987 23 (SCC), [1987] 2 S.C.R. 293, at para. 11; R. v. Jarvis, 2019 SCC 10, at paras. 50,124-125.

C. Sexual Interference

10Sexual Interference requires the Crown to establish the following beyond a reasonable doubt:

1. That the complainant was under the age of sixteen at the time of the offence;

2. That the defendant intentionally touched the complainant whether directly or indirectly; and,

3. That the touching was for a sexual purpose.

11The purpose of this section is to protect children from sexual contact with adults: R. v. E.C., 2019 ONCA 688, at para. 14.

12Sexual interference is a crime of specific intent: R. v. B.J.T., 2019 ONCA 694, at para. 37 [B.J.T.]; R. v. Bone, 1993 14711 (MB CA), [1993] M.J. No. 222 (C.A.). The Crown must prove that the touching was done for a sexual purpose: Trachy, at para 70. While the defendant may have another reason for the touching, if there is also a sexual purpose, the offence is proven: B.J.T., at para. 37.

III. The Legal Framework

A. Introduction

13There are several principles animating the approach to this criminal trial including the presumption of innocence, the criminal burden of proof, and the analysis of credibility and reliability.

14I have found the defendant guilty of each count on the Information. A trial judge has a duty to explain to the defendant how material issues have been resolved and why there exists no reasonable doubt: R. v. Dinardo, 2008 SCC 24. The written judgment in this case is provided as the best means to explain my findings to the defendant, provide public accountability, and provide for appellate review: (See the authorities cited in R. v. G.F., 2021 SCC 20, at para. 108 [ G.F.]

15The central issue at trial was credibility and reliability as it concerned each witness. The Supreme Court of Canada has recently emphasized strong deference to a trial court’s assessment of credibility, and the presumption that trial judges know and have properly applied the law: G.F., at para. 82. The Court also recognized that trial judges need not provided “detailed maps of well-trod paths”: G.F., at para. 75. Nevertheless, my duty to provide reasons mandates that I explain to the defendant how material issues were resolved and why I found that the prosecution established his guilt beyond a reasonable doubt.

B. Burden of Proof

16The central tenet in our criminal justice system animating the analysis of criminal liability provides that the defendant is presumed innocent. This presumption does not shift. The presumption of innocence is only removed if the prosecution establishes the defendant’s guilt beyond a reasonable doubt: R. v. Lifchus, 1997 319 (SCC), [1997] 3 S.C.R. 320, at para. 27; R. v. Starr, 2000 SCC 40, at para. 242.

17Reasonable doubt is based on “reason and common sense”, is not “imaginary or frivolous”, does not “involve proof to an absolute certainty”, and must be “logically connected to the evidence or absence of evidence”: R. v. Villaroman, 2016 SCC 33, at paras. 28, 36 [Villaroman].

18As it pertains to the evaluation of reasonable doubt, the defendant bears no burden to prove the foundational facts in support of an inference of innocence: Villaroman, at para. 35; R. v. Khela, 2009 SCC 4. Reasonable doubt does not take on the character of an inference or a finding requiring foundational support in the evidence presented at trial: Villaroman, at para. 28.

19A reasonable doubt may not be characterized as speculative, simply because there is no evidence on the issue: Villaroman, at para. 36. The trial judge should consider “other plausible theories” and “other reasonable possibilities” which are inconsistent with guilt: Villaroman, at para. 37-38; R. v. SB.1, 2018 ONCA 807, at para. 124 [SB.1].

C. Credibility and Reliability of Witnesses

20Criminal court trial judges assess the credibility and reliability of witnesses in virtually every trial. In so doing, trial judges apply a mass of caselaw providing guidance and instruction concerning credibility and the criminal burden of proof. These considerations are interwoven with several fundamental principles guiding the approach to a criminal case.

1. The Test in W.(D.)

21The guidance provided by the Supreme Court of Canada in W.(D.) is clear:

1. First, if you believe the evidence of the accused, obviously you must acquit;

2. Second, if you do not believe the testimony of the accused but you are left in reasonable doubt by it, you must acquit; and,

3. Third, even if you are not left in doubt by the evidence of the accused, you must ask yourself whether, on the basis of the evidence which you do accept, you are convinced beyond a reasonable doubt by that evidence of the guilt of the accused.

22I favour an additional “fourth stage” consideration in the W.(D.) analysis. If a trial judge is unable to decide as between the testimony of a complainant and the defendant, this state of mind would mandate an acquittal: R. v. S. (J.H.), 2008 SCC 30, at para. 12 [S.(J.H.)]; R. v. Austin, 2006 39077 (ON CA), [2006] O.J. No. 4660 (C.A.), at para. 20.

23The three-step test in W.(D.) is well known and often repeated by trial judges. The Ontario Court of Appeal has recently provided an excellent refresher in R. v. Smith, 2020 ONCA 782 [Smith]. The Court emphasized the need for trial judges to consider the entire record at trial. While trial judges need not resolve every single issue, material issues relevant to the credibility analysis can not be ignored: Smith, at paras, 26, 30, 32.

24The court must consider any exculpatory evidence and resolve material credibility conflicts using the W.(D.) analysis whether emanating from the case for the defence, or the prosecution. (See the authorities cited in Smith, at para. 12; R. v. M.P., 2018 ONCA 608, at para. 60.)

25Where there are material credibility findings to address concerning conflicting evidence, the source of the record is immaterial, as is whether or not the defendant chose to testify. The concept of reasonable doubt must be addressed in light of the entire record at trial: R. v. Debassige, 2021 ONCA 484, at paras. 128-130; R. v. Marki, 2021 ONCA 83, at paras. 23,25; Smith, at para. 7; R. v. Charlton, 2019 ONCA 400, at para. 45; R. v. Kirlew, 2017 ONCA 171, at para. 17; R. v. Dayes, 2013 ONCA 614, at para. 52; R. v. B.D., 2011 ONCA 51, at para. 114.

26Finally, In addition to the oft-cited three stage consideration applicable to assessing credibility, the central consideration in W.(D.) is that the court remain resolutely focused on the criminal burden of proof when evaluating conflicting evidence, including conflicting witness testimony: Smith, at para. 11.

2. Stereotypical Reasoning

27Trial judges must resist the lure of “common sense” reasoning sourced from outside of the record at trial. It is important to avoid stereotypes or assumptions at all times, particularly where these approaches are not sourced in the evidentiary record. (See generally the guidance in R. v. J.C., 2021 ONCA 131, at paras. 58-70; R. v. Steele, 2021 ONCA 186, at paras. 18, 52- 59 [Steele]).

3. Credibility and Reliability of Witnesses

28There is no such thing as a “credibility contest” in criminal law. A trial judge is not permitted to determine guilt or innocence by simply picking a preferred version of events amongst competing versions. This approach offends the criminal burden proof: R. v. Vuradin, 2013 SCC 38; S.(J.H.), at para. 9; W.(D.), at p. 409. A trial judge can not permit the analysis of credibility to degenerate into a mere choice between competing prosecution and defence witnesses (or competing evidence for that matter).

29A trial judge must endeavour to fairly and evenly evaluate the defendant’s evidence and the complainant’s evidence: R. v. Bartholomew, 2019 ONCA 377, at paras. 30-31 [Bartholomew]; R. v. Radcliffe, 2017 ONCA 176; R. v. Gravesande, 2015 ONCA 774.

30In assessing the testimony provided by the witnesses, a trial judge may believe all, none, or some of the witness evidence: R. v. C.P., 2021 SCC 19, at para. 35; R. v. Le, 2019 SCC 34, at para. 266; R. v. W.H., 2013 SCC 22, at para. 32[W.H.]; R. v. Francois, 1994 52 (SCC), [1994] 2 S.C.R. 827, at para. 14. A trial judge is also free to make decisions as to the weight assigned to specific areas of evidence: W.H., at para 32; R. v. B.H.,2015 ONCA 642, at para 22; R. v. Howe, 2005 253 (ON CA), [2005] O.J. No. 39 (C.A.), at para. 44.

31It is critical to note that acceptance of evidence presented by prosecution witnesses does not mandate automatic conviction. A trial judge could conceivably accept prosecution witness testimony, but still harbour a reasonable doubt. It is also an error to move directly from mere disbelief of the accused's evidence to a positive finding of guilt: R. v. Dore (2004), 2004 32078 (ON CA), 189 C.C.C. (3d) 526 (Ont. C.A.), at p. 527 (leave to appeal refused, [2004] S.C.C.A. No. 517); R. v. H.(S.), [2001] O.J. No. 118 (C.A.), at paras. 4-6.

4. Credibility and Sexual Offence Cases

32Over the past several years there has been tremendous public concern about the treatment of sexual assault cases in the criminal justice system. Parliament has even addressed mandatory training for judicial officers.

33Criminal law has grappled with the analysis of sexual assault, the spectre of stereotypical thinking, and the proper application of the burden of proof and presumption of innocence.

34As it concerns this particular genre of criminal litigation, the recent guidance of the Court of Appeal in Steele at paragraphs 53 to 59 captures important considerations:

53The point of departure is that evidence of the surrounding circumstances, including the complainant's conduct, leading up to, during and after an alleged sexual assault can be relevant to the determination of whether or not a complainant consented. Because consent, which is part of the actus reus of the offence, is subjective, the court must determine the complainant's state of mind at the time of the sexual activity. Although the complainant's testimony is typically the only direct evidence regarding her subjective state of mind, "credibility must still be assessed by the trial judge, or jury, in light of all of the evidence": see R. v. Ewanchuk, 1999 711 (SCC), [1999] 1 S.C.R. 330, [1999] S.C.J. No. 10, at para. 29. As the majority of the Supreme Court observed, in defending a sexual assault allegation, "[i]t is open to the accused to claim that the complainant's words and actions, before and during the incident, raise a reasonable doubt against her assertion that she, in her mind, did not want the sexual touching to take place": at para. 29. The trial judge will consider "whether the totality of the complainant's conduct is consistent with her claim of non-consent": at para. 30.

54Accordingly, it is appropriate and necessary for the trier of fact to consider the circumstances surrounding the alleged sexual assault, which may include an analysis of the nature of the interactions between the accused and the complainant leading up to and following the incident. Circumstantial evidence can assist the defence in raising a reasonable doubt on the issue of consent; it can also assist the Crown in proving non-consent: see Lisa Dufraimont, "Myth, Inference and Evidence in Sexual Assault Trials" (2019), 44:2 Queen's L.J. 316, at pp. 328-29.

55It is, however, an error for the trier of fact to rely on erroneous myths and stereotypes about how a sexual assault complainant is expected to act. "It is impermissible to assess a complainant's credibility by looking at consistencies or inconsistencies grounded in a search for 'expected' post-sexual assault behaviour": R. v. D. (A.R.J.), [2017] A.J. No. 746, 2017 ABCA 237, 422 D.L.R. (4th) 471, at para. 64, affd [2018] 1 S.C.R. 218, [2018] S.C.J. No. 6, 2018 SCC 6. Triers of fact may rely on "reason and common sense", "life experience" and "logic" in making assessments of credibility; however, they fall into error if they rely on prejudicial or stereotypical reasoning in making such assessments: see R. v. Delmas, [2020] A.J. No. 471, 2020 ABCA 152, 452 D.L.R. (4th) 375, at para. 31, affd [2020] S.C.J. No. 39, 2020 SCC 39, 452 D.L.R. (4th) 371. [page735]

56The concern arises when the trier of fact draws inferences based on generalizations about human behaviour; it is in this process that drawing a common sense inference may mask stereotypical or discriminatory reasoning: see D. (A.R.J.), at paras. 6-7; R. v. A. (A.B.) (2019), 145 O.R. (3d) 634, [2019] O.J. No. 833, 2019 ONCA 124, at para. 7; and R. v. Cepic, [2019] O.J. No. 3398, 2019 ONCA 541, 376 C.C.C. (3d) 286, at para. 13. Stereotypical reasoning is a substitute for reasoning that is grounded in the evidence: see R. v. Mann, [2020] B.C.J. No. 2024, 2020 BCCA 353, at paras. 64, 70-72. See also R. v. Quartey, [2018] A.J. No. 55, 2018 ABCA 12, 430 D.L.R. (4th) 381, at para. 21, affd [2018] 3 S.C.R. 687, [2018] S.C.J. No. 59, 2018 SCC 59.

57It is a fact-finder's reliance on myths and stereotypes as part of the credibility assessment that is objectionable, and not the consideration of evidence of the complainant's conduct itself. A trial judge is entitled to draw reasonable inferences which are rooted in the evidence to assess the complainant's conduct as part of the credibility analysis. In R. v. Roth, [2020] B.C.J. No. 1333, 2020 BCCA 240, 66 C.R. (7th) 107, after noting that it is an error for a judge to ground an adverse credibility finding in stereotypes or erroneous "common sense" assumptions about how a sexual assault complainant is expected to act, DeWitt-Van Oosten J.A. observed at para. 130:

The risk of myths and stereotypes distorting a judge's fact-finding or reasoning process does not prohibit use of a complainant's behaviour for all analytical purposes (assuming the evidence surrounding that behaviour is properly before the court). Although a piece of evidence may carry the potential for impermissible reasoning, it may also have a permissible role to play as a circumstance to consider in assessing the evidence as a whole, in the context of the case's particular "factual mosaic". In my view, what A.R.D. and like cases warn against is the improper use of this type of evidence, not any use at all.

(Emphasis added; citations omitted)

58It can be difficult on appeal to determine whether a trial judge crossed the line from drawing legitimate inferences from circumstantial evidence to reliance on stereotypical reasoning. See, for example, the majority and dissenting reasons in the Alberta Court of Appeal and the Supreme Court in Delmas about whether the trial judge relied on myths and stereotypes in his assessment of the evidence of the appellant who was convicted of sexual assault. As Pepall J.A. observed in R. v. Lacombe, [2019] O.J. No. 6023, 2019 ONCA 938, 383 C.C.C. (3d) 114, at para. 55, express identification by the trial judge of the impugned assumptions is unnecessary; a review of the trial judge's reasons may demonstrate that impermissible stereotypical sexual and myth-based reasoning was employed in assessing a complainant's [page736] credibility and reliability. Trial judges may rely on stereotypical reasoning, even where they have instructed themselves appropriately to avoid such reasoning: see, e.g., A. (A.B.), at para. 8. In determining the issue, the trial judge's reasoning must be taken as a whole and viewed in context: see Mann, at para. 72.

59It is helpful in conducting the analysis of whether impermissible reasoning has occurred to specifically identify the myth or stereotype that the trial judge is said to have relied on. A non-exhaustive list of common myths and stereotypes about victims and perpetrators of sexual assault is set out in R. v. Seaboyer; R. v. Gayme (1991), 1991 76 (SCC), 4 O.R. (3d) 383, [1991] 2 S.C.R. 577, [1991] S.C.J. No. 62, at pp. 651-54 S.C.R. The central issue is to determine whether the trier of fact has drawn inferences that are rooted in the particular facts of the case and supported by the evidence or has drawn inferences based on generalizations about human behaviour that on closer examination reveal stereotypical reasoning.

5. Similar Fact

35Similar fact evidence is presumptively inadmissible in a criminal trial. At the outset of submissions the Crown Attorney sought a preliminary ruling concerning the applicability of similar fact reasoning to the evidentiary record. The Crown Attorney submitted that given features of the defendant’s testimony, some resort to similar fact reasoning should be available. The Crown Attorney submitted that at times the defendant testified in a general manner such that his position applied across several of the allegations at once. The Crown Attorney submitted that similar fact analysis should be available to balance the defendant’s approach.

36I invited submissions from Counsel and provided a summary ruling immediately. I ruled that the Crown was not permitted to utilize similar fact reasoning at the submission stage. Brief supplementary reasons are in order.

37The Court specifically canvassed the similar fact application issue at the outset of the trial given the multiple counts and two complainants. The Crown declined to bring an application. The issue was not raised during the defendant’s testimony or at the end of evidence at trial. The manner in which the defendant testified did not permit the Crown to re-open consideration of similar fact reasoning.

38The ordinary rules of criminal evidence must apply to this trial – even having regard to the breadth of the time frame concerning the various counts, the number of counts, and the potential overlap of two complainants. In the absence of a successful similar fact application, each count must be evaluated based only on the admissible evidence adduced in support of each count: R. v. MacCormack, 2009 ONCA 72, at para. 48; R. v. Tsigirlash, 2019 ONCA 650, at para. 23; R. v. A.W.B., 2015 ONCA, at paras. 34-35.

39I must view each incident as a discrete criminal allegation applied to a particular count on the Information. While I may not use the evidence on one count to assist with the determination of guilt or innocence on another count, I may consider the credibility and reliability of witnesses overall (i.e., spanning the counts): R. v. P.E.C., 2005 SCC 19; R. v. D.R., 2021 ONCA 460, at para. 25; R. v. T.C., 2019 ONCA 898, at para. 45. Put another way, the assessment of credibility and reliability of a witness in relation to one count, may inform the assessment of that witnesses’ testimony on other counts, but the substantive evidence on one count is not admissible to support guilt on other counts absent a successful similar fact application: R. v. M.R.S., 2020 ONCA at para. 64.

6. Adults Testifying about Historical Events

40At the time of the allegations the complainants were aged 14,15 and 16. Both complainants were young adults at trial. Each testified to historical events that occurred more than five years prior to trial.

41When assessing the evidence of adults recounting historical events that allegedly occurred when they were children, it is important to recognize the contextual fact that an adult is articulating events that allegedly occurred as a child. In R. v. C.K., 2016 ONCA 66, the Court set out the trial judges’ charge to a jury on this issue at paragraph 11:

Next, in regard to the evidence of children. The Supreme Court has provided some direction as to how evidence regarding events that happened when a witness was a child should be assessed. Every person giving testimony in court of whatever age is an individual whose credibility and evidence must be assessed by reference to criteria appropriate to his or her mental development, understanding and ability to communicate. For example, as a general rule, when an adult is testifying as to events which occurred when she was a child, her credibility should be assessed according to criteria applicable to her as an adult witness. However, with regard to her evidence pertaining to events which occurred in childhood, the presence of inconsistencies, particularly as to peripheral matters such as time, location, and the exact order of events, should be considered in the context of the age that she was at the time of the events to which she was testifying. In this case, A is now 17 years of age. She testified about events that occurred when she was 12 years of age. So in terms of her evidence pertaining to the events, it is the memory of a 12 year old that you are really considering. Since children may experience the world differently from adults, it is hardly surprising that details important to adults like time and place, may be missing from their recollection. For this reason, a flaw such as contradiction in a witnesses testimony regarding events that happened in childhood may not warrant the same effect as a similar flaw in the testimony of an adult witness testifying about events that occurred in adulthood. The credibility of every witness who testifies before the courts, and reliability of their evidence must of course be carefully assessed but assessed using common sense that takes into account the age of the witness when the alleged events occurred and the age of the witness when testifying. This does not change the onus on the Crown to prove all essential elements of an offence beyond a reasonable doubt.

42A majority of the Ontario Court of Appeal held that this charge inappropriately conveyed to the jury that they should assess the adult complainant’s credibility on non-peripheral matters as if she were 12 years old: C.K., at paras. 21-26. The Supreme Court of Canada overturned the Court of Appeal decision in a brief endorsement supporting the trial judges’ approach: R. v. C.K., 2016 SCC 41.

43I instruct myself inline with the above noted charge in the C.K. decision. I find that I must assess each complainant individually based on their adult presentation as young women in their early twenties by the time of trial. I am also aware that while it is important to assess the evidence of the two complainants with these nuanced considerations in mind, it is also important to remember that even when assessing the evidence of children, the criminal burden of proof standard may not be diluted: R. v. W.R., 1992 56 (SCC), [1992] S.C.J. No. 56, at paras. 23-26; R. v. B.(G), 1990 7308 (SCC), [1990] 2 S.C.R. 30, at paras. 47-48 [B.(G.)]; R. v. Markell, [2001] O.J. No 1813 (C.A.); R. v. Stewart, 1994 7208 (ON CA), [1994] O.J. No. 811 (C.A.);

7. Credibility and Objective evidence

44This trial requires a primary focus is the evidence of three witnesses – O.A., R.A., and the defendant. My challenge is to articulate the “complex intermingling of impressions” derived from listening to the witnesses in this case: G.F, at para. 81. At times, credibility findings are impacted by objective evidence. At other times, there may be little more than the competing versions provided by the witnesses: G.F., at para. 81.

45It is worth noting that a significant piece of evidence – photos of O.A. from the day when she first met the defendant – was admitted at trial. I will explain the significance of this objective evidence in this decision.

8. Reliability

46In R. v. C. (H.), 2009 ONCA 56, at paragraph 41, Watt J. explained the difference between credibility and reliability:

41 Credibility and reliability are different. Credibility has to do with a witness's veracity, reliability with the accuracy of the witness's testimony. Accuracy engages consideration of the witness's ability to accurately

i. observe;

ii. recall; and

iii. recount

events in issue. Any witness whose evidence on an issue is not credible cannot give reliable evidence on the same point. Credibility, on the other hand, is not a proxy for reliability: a credible witness may give unreliable evidence: R. v. Morrissey (1995), 1995 3498 (ON CA), 22 O.R. (3d) 514, at 526 (C.A.).

47Throughout this judgment I will explain my conclusion that both the defendant and O.A. were generally reliable witnesses when considered in the context of historical allegations. I will also explain my finding that R.A. exhibited moderate to significant reliability concerns.

9. Motive to Fabricate

48Defence counsel submits that both A.O. and R.A. possessed a motive to fabricate the allegations. Defence counsel did not allege recent fabrication. The submission involved a general concern applicable to the credibility of each complainant. The submission was not limited to any particular count or counts.

49The phrase motive to fabricate, is a nicer way to convey that there exists a reason for why a witness might lie: R. v. K.C., 2021 ONCA 401, at para. 129. The defendant has no onus to establish a motive to fabricate: R. v. L.L., 2009 ONCA 413, at para. 53 [ L.L.]. The defendant is not required to establish that either complainant had a motive to fabricate, that they were consumed by animus, or that they were biased against him: R v. T.M., 2014 ONCA 854, at paras. 38-43; R. v. Lebrocq, 2011 ONCA 405, at paras. 18-21; R. v. M.J., 2011 ONCA 278, at para. 8.

50As a matter of common sense and life experience, a motive to fabricate is an important credibility factor: R. v. Batte, 2000 5751 (ON CA), [2000] O.J. No 2184, (C.A.) at para. 120. Where a motive to fabricate exists, or is proven not to exist, this credibility factor may be considered: R. v. S.S.S., 2021 ONCA 552, at paras. 25-31.

51Where there is no apparent motive to fabricate, but the prosecution fails to prove that that there is no motive to fabricate, it is impermissible to move from the apparent lack of motive to a conclusion that a complainant must be telling the truth: Bartholomew, at paras. 19 – 25. There is a difference between the absence of a proved motive and proved absence of a motive: L.L., at para. 53.

52Each complainant interacted with the defendant for an extended period of time. I am alive to the fact that motives may be hidden. I have no otherworldly skill to discern hidden motives. I note that the Crown Attorney did not submit that the prosecution had proven the absence of motive. I agree. I find that the Crown has not reached the high bar test for proving the absence of motive: R. v. Ignacio, 2021 ONCA 69, at para. 31.

10. Summary of Credibility and Reliability Findings

53By way of high level summary as it concerns my overall credibility findings:

1. I found O.A. to be a credible witness with mild reliability issues;

2. I found R.A. to be a credible witness with moderate to high level reliability issues;

3. I found the defendant to be incredible on several material issues at trial, credible in other areas; and,

4. I found the defendant to exhibit mild reliability issues.

54Throughout this judgment I will address the broader credibility findings concerning each witness. I will also denote specific credibility issues as they arise during the analysis of the evidence on each count. I have addressed a number of considerations around the issue of credibility and reliability. It is one thing to simply list these principles. The greater challenge is to actually apply the principles properly. This judgment contains my best effort to apply these principles and explain the reasons for my findings.

IV. Sexual Interference

A. Introduction

55The Information contains two counts of sexual interference – count two in relation to O.A., and count three in relation to R.A.

56Count two alleges that the defendant committed the offence of sexual interference in relation to O.A. between March 1, 2014 and August 18, 2014. The Crown Attorney articulates the following four circumstances captured by this count:¹

• In March 2014, the first time O.A. met the defendant outside of the club [I term this the “First Incident”];

• A second circumstance where the defendant had sexual intercourse with both O.A. and R.A. [I term this the “Group Incident”];

• A series of four or five incidents where the defendant engaged in kissing and vaginal intercourse with O.A. when she was fifteen years old; [I term this the “Series Incidents”]; and,

• Incidents of sexual intercourse after O.A. disclosed her age (fifteen) to the defendant but prior to her sixteenth birthday on […], 2014. [I term this “After Disclosure”].

57Count three alleges that the defendant committed the offence of sexual interference in relation to R.A. between March 1, 2014 and June 7th, 2015. The Crown Attorney articulates the following four circumstances captured by this count:

• In March or April 2014 (before R.A.’s 15th birthday on […], 2014) the defendant engaged in kissing, sexual touching, and vaginal intercourse;²

• A second circumstance where the defendant engaged in kissing and vaginal intercourse with R.A. at a sexual-themed party when she was 15 years old [ I term this “Slap Fest”];

• A series of incidents that occurred in bars involving sexual contact including the defendant performing oral sex on R.A. in a bar washroom [I term this “Bar Incidents”]; and,

• An incident, after the “Slap Fest” incident, when R.A. was 15 years old, at the defendant’s Crawford Street address where the defendant performed oral sex on her [I term this the “Crawford Incident”].

58There was no motion for particulars or other challenge to the Information at the commencement of the trial. As such, there was no bar to the Crown’s organization of the case in this manner.

59At the conclusion of the trial, I directed the Crown Attorney to furnish the Defence with the prosecution theory in relation to the counts on the Information. I directed the Crown Attorney in this manner given the multitude of allegations and the complexity of the record. I also wished Defence counsel to be aware of the prosecution theory of liability well in advance of submissions.³

V. The “First Incident” and the “Group Incident” - (Counts 2 & 3)

A. Introduction

60I will address the “First Incident” and the “Group Incident” together as circumstances that occurred close in time. This provides important context to the defendant’s evidence and the mistake of age defence asserted by the defendant in relation to the “Group Incident”. I will address the evidentiary record pertaining to the “First Incident” and the “Group Incident”. Then, I will analyse the central defence asserted by the defendant – mistake of age in the context of the required W.(D.) considerations.

B. Evidence – The “First Incident”

1. Complainant O.A.

61Complainant O.A. testified about the day she first met the defendant. She and a female friend (J.E.) went shopping on Queen Street after school one day in March 2014. At a particular retail store, the pair encountered an internationally known and famous rap artist and took pictures with him (later filed as Exhibit 2A and 2B at trial).

62After shopping, the pair were in an alleyway near Peter Street proximate to a club. They saw a man wearing a shirt depicting the same famous rap artist they had just met. The pair called out to this person. This person came to them. It was the defendant. The defendant introduced himself as “Ron” and told them that he was throwing a party inside of the club for the same famous rap artist they had just encountered while shopping. Complainant O.A. testified that she had no prior knowledge of an event being held at the club until so advised by the defendant.

63The girls were interested in attending the party for the famous rap artist. Complainant O.A. testified that both she and J.E. lied to the defendant. Each represented that they were eighteen years old to the defendant for the purpose of getting into the club. Complainant O.A. was actually fifteen years old at this time.

64Complainant O.A. testified that the defendant opined that J.E. looked old enough to get into the club (the age limit was 19) but that she, O.A., did not appear old enough. Complainant O.A. testified that the defendant invited her to attend his residence for the purpose of acquiring clothes to make her look older and potentially assist with gaining entry to the club. At the time these events occurred, O.A. did not consider the potential risks associated with going back to a stranger’s apartment. She explained that she was enamoured by meeting the famous rap artist. She associated the defendant with the famous rap artist. She wanted to meet the rap artist again. She wanted to get into the party and have fun. At the time, she did not perceive anything “weird” about the defendant’s offer. As a result, she voluntarily entered the cab and went with the defendant to his apartment.

65Complainant O.A. testified that the entire timeframe from the conversation with the defendant in front of the club, to their arrival at his apartment, was somewhere between twenty and thirty minutes. The cab ride took only 10 to 15 minutes. She did not recall much conversation during the ride to the defendant apartment. There was no discussion about her background, age, or school.

66When they arrived inside of his apartment, the defendant began to kiss her. There was no conversation prior to this commencing. Shortly thereafter, kissing evolved into vaginal sexual intercourse. There was no discussion about contraception. She did not know if the defendant used contraception.

67After the sexual intercourse was complete, the defendant gave her a long-sleeve shirt and a pair of women’s flats in order to make her look older for the purpose of gaining entry to the club. She put on the clothing.

68The defendant arranged for a cab. He told her that he was going to get dropped off at the club and she was going to be dropped off at a hotel. She understood from the defendant that this was for the purpose of meeting the famous rap artist again. She also understood that a particular DJ would be present as well. When she arrived at the hotel room, only the rap artist DJ was present. Ultimately, she did in fact meet the famous rap artist again in the lobby of the hotel. She was permitted to join his entourage heading to the party at Club Haus. She attempted to enter the club with the famous rap artist’s entourage but was stopped by security. She did not have her fake ID with her. It was then that she remembered that she left her fake ID at the defendant’s apartment.

69Complainant O.A. testified that the defendant came out of the club and told her that he would try to get her in. He was not successful. She tried to walk into the club with the defendant, but once again, security stopped her entry. Ultimately, she simply went home.

2. The Defendant

70The defendant testified that he met O.A. on the occasion of an after-party he was throwing for a famous international rap artist at Club Haus in the summer of 2014. ⁴ He explained that he was responsible for promoting the after-party. As such, he and many others were busy setting up the club in the afternoon. At one point he was heading out to catch a cab and encountered O.A. and her female friend J.E.. The two approached him and asked him what was going on. He explained that there was an event involving a famous rap artist and admission was $20. The girls explained that they could not afford the cost. The defendant told them he would put them on the guest list. He asked them if they possessed identification necessary to enter the club. Both girls assured him they did.

71The defendant explained that during the conversation he noticed that O.A. did not have appropriate shoes – they appeared dirty to him. He advised O.A. that he had promotional shoes back at his apartment. He mentioned that he was heading to his apartment to obtain some things that he needed for the event. According to the defendant, O.A. told him she was going “west” to visit with some friends and requested that she go with him in his cab back to his apartment. She then entered his cab voluntarily.

72The defendant testified that the cab ride back to his apartment was perhaps 5 to 10 minutes. During the cab ride there was no discussion as the defendant was on his cellphone. When they arrived at his apartment, O.A. went through his available shoes and selected a pair. She also asked if she could take a second pair. He agreed. According to the defendant, the complainant was in his apartment for five to seven minutes. They left together. He told her “see you later” and rode his bike to his office to continue preparations for the evening. Complainant O.A. told him she was visiting friends in “the west”, and she went on her way.

C. Evidence -- The “Group Incident”

1. Evidence: Complainant O.A.

73Complainant O.A. testified that she introduced R.A. to the defendant after the “First Incident”. While she could not specify the date, she testified that she was fifteen years old, and R.A. was fourteen years old.

74Complainant O.A. testified that she was walking with R.A. on Queen Street when she invited R.A. to come with her to visit the defendant at his residence. The defendant greeted them and invited them inside. Complainant O.A. testified that after approximately ten minutes, the defendant began kissing her. He then began kissing R.A.. She described the defendant engaging in vaginal sexual intercourse with her, while R.A. was lying beside them. Thereafter, the defendant went back and both between O.A. and R.A. performing sexual intercourse with each. Ultimately the defendant ejaculated, and the sexual contact ceased.

75Complainant O.A. testified that there was no discussion about her age prior to sexual contact. She could not recall any discussion between the defendant and R.A. about age either.

2. Evidence: Complainant R.A.

76Complainant R.A. testified that she was invited by O.A. to attend the defendant’s apartment. She had never met the defendant before. At some point she observed O.A. and the defendant begin to “make out” and engage in sexual foreplay. Thereafter she was invited by both O.A. and the defendant to engage in mutual sexual acts.

77Complainant R.A. testified that it was hard to remember the exact sequence of specific sexual acts. Nevertheless, she specified that the defendant engaged in vaginal intercourse with her and ultimately ejaculated. She also observed the defendant perform vaginal intercourse with O.A. and place his penis in her mouth.

78Complainant R.A. testified that she estimated that they spent perhaps one hour at the defendant’s residence. Prior to sexual contact there was no discussion with the defendant. She could not recall any questions posed by the defendant as to her age, grade in school, or family. She could not recall O.A. and the defendant discussing her age either.

79During cross-examination, R.A. testified that there was a possibility that the defendant spoke to her directly, but she could not recall the details of any conversation nor could she recall the extent of any conversation. She also agreed with the cross-examination suggestion that the defendant did not “force” or “pressure” her to engage in sexual intercourse. She also agreed with the cross-examination suggestion that it was at least possible that O.A. and the defendant discussed her age when she was not present.

3. Evidence: Defendant

80The defendant testified that approximately two weeks after he first met O.A., she contacted him by text in search of her purse and some identification she had lost. He testified that he had provided his text contact to both O.A. and her friend the first day they met outside the club. When he received the text from O.A., he searched his residence and found a small wallet with ID. He looked at it briefly. He testified that he believed it was purple, but it was not a driver’s licence. He remembered seeing the numbers 95. Based upon this examination, he was satisfied that O.A. was either 19 or 20 years old.

81Both complainants attended his residence at sunset. He met R.A. for the first time. Complainant O.A. introduced R.A. as her best friend. They began playing video games on Nintendo game system. They ate a few snacks. They engaged in some “quick banter” when the game finished.

82The defendant testified that all of a sudden, O.A. grabbed his face and began to kiss him. He was surprised by this action. But also testified that it “happens normally” because he generally “does not make the first move”. Thereafter, O.A. invited R.A. to join in intimate contact. He observed O.A. and R.A. begin to kiss each other in front of him. While this was occurring, O.A. pulled his face into a mutual kiss with R.A. Thereafter, O.A. unzipped his pants, performed a hand job, and performed oral sex on him. All the while R.A. was kissing him. Then the girls switched. Ultimately O.A. guided his penis into her vagina and guided his penis into R.A.’s vagina.

83The defendant testified that he is the same age as his best friend, so he assumed that R.A. would be the same age as her best friend – O.A.. He just assumed that they were both “19 plus”.

D. Analysis: The “First Incident”

1. Introduction

84This trial concerns a number of alleged incidents spanning many months. Earlier in this judgment I addressed the issue of broad credibility findings concerning each witness. ⁵ I also explained that credibility findings could span the counts on the Information even in the absence of a similar fact application.

85The “First Incident” and the “Group Incident” provide the first opportunity to address credibility issues as it concerns the three witnesses at trial – O.A., R.A., and the defendant. As such, I will provide a through analysis of credibility including the broader credibility issues at this juncture. Throughout the remainder of this judgment I will explain particular findings on each count without necessarily repeating the entire analysis.

86As it concerns the “First Incident”, O.A. describes sexual contact that establishes the actus reus for sexual interference. The defendant testified that no sexual contact occurred. Given the defendant’s testimonial position, the mistake of age defence is not available. The assertion of the mistake of age defence contemplates that the act occurred, but the mens rea was negated by the mistake: R. v. Davis, 1999 638 (SCC), [1999] S.C.J. No. 67, at paras. 80-81[Davis]; Ewanchuk, at para. 44.

87This allegation housed under count two is resolved by the proper application of W.(D.) and consideration of the criminal burden of proof.

88For the reasons that follow, I believe O.A.’s evidence that sexual intercourse occurred. I reject the defendant’s denial of that sexual contact. I am not in a state of doubt having applied step two in W.(D.). Having regard to the third step in W.(D.), I am satisfied that the prosecution has proven beyond a reasonable doubt that an offence contrary to section 151 of the Criminal Code occurred.

2. Credibility and Reliability of O.A.

a) Overall Demeanour and Presentation at Trial

89I found O.A. to be a careful and measured witness overall. She did not exaggerate the details of her sexual contact with the defendant. Complainant O.A. was cautious with speculative detail and self-regulated her evidence by identifying areas that she could not be sure about given the historical nature of the allegations.

b) Credibility

90Cross-examination did not expose any significant material problem with O.A.’s evidence in support of the criminal allegations at trial. That being said, I accept Defence counsel’s cross-examination challenge to O.A.’s position that she was not positioned outside of the club for the purpose of trying to engage persons associated with the famous rap artist’s after-party. Complainant O.A.’s credibility was impacted by her refusal to admit that she and J.E. were positioned outside the club intentionally. I agree with Defence counsel’s submission that it was no mere coincidence that O.A. took a photograph with a famous rap artist, and within the hour, just happened to be proximate to the location where the after-party was to be held.⁶

91But this was not a significant or material credibility issue and was not relevant to the finding that there was sexual contact at the defendant’s residence. Ultimately, I still accept O.A.’s evidence that sexual intercourse occurred.

c) Reliability

92Complainant O.A. provided a detailed recount of her first meeting with the defendant and the circumstances surrounding her attendance at his residence. I found her recount to be thorough and reliable notwithstanding the historical context.

93I note that the chronology of the incident as described by both O.A. and the defendant is materially the same. While there are minor differences in their respective recounts, the defendant’s testimony corroborates O.A.’s testimony on all material aspects. Only the fact of sexual contact is denied.

d) Irrelevant Considerations

94Defence counsel submits that the simple fact that O.A. was so willing to attend the apartment of a stranger was supportive of the defendant’s subjective perception of the complainant’s age. While there is no mistake of age defence asserted in relation to the “First Incident”, I find that this is an available consideration in relation to the “Group Incident”. That being said, this factor, as a supposed indicia of adulthood, merits little weight. The notion that a teenager would go willingly into a stranger’s residence is not an actionable factor supportive of a mistake of age defence on these facts. In any event, this narrow submission misses the overall context that I have set out in this judgment.

95The cross-examination theme around whether or not O.A. told the police that the sex was “fun” is also irrelevant. Complainant O.A. disputed the use of the word “fun”. In any event, the suggestion that an underage person thought sex with an adult was “fun” is irrelevant to the essential elements of a sexual interference offence.

96The meagre basis for these cross-examination themes was made even more apparent when the defendant testified, denying that any sexual contact occurred.

e) Motive to Fabricate

97I accept Defence counsel’s submission that caution is in order given the circumstances. While there is no apparent motive to fabricate, I must nonetheless consider the allegations carefully. As I have indicated earlier in this judgment, the Crown has not proven the absence of a motive to fabricate.

f) Collusion

98Defence counsel generally submitted that O.A. and R.A. colluded. Issues of collusion and corroboration often arise in the context of accomplices and Vetrovec considerations. Even though there is no similar fact application in this case, I prefer the conservative guidance provided by the law of similar fact as it treats the issue of collusion.

99The criminal law conception of collusion⁷ may encompass inadvertent, innocent, and unintentional contact: R. v. Wilkinson, 2017 ONCA 756, at paras. 36-40; R. v. Dorsey, 2012 ONCA 185 [Dorsey]. It is also clear that collusion may be sourced in external influences on the witnesses including pre-trial publicity: Dorsey; R. v. A.(H.), 2007 ONCA 530. Hearing other experiences may colour one’s interpretation of personal experience and reinforce perceptions, doubts, and concerns: R. v. J. F., 2003 52166 (ON CA), [2003] O.J. No 3241 (C.A.), at para. 77.

100On the other hand, that there is evidence of an opportunity for witnesses to have colluded, communicated, or consulted, does not necessarily mean that prosecution attempts to rebut collusion must fail: R. v. Shearing, (2002), 2002 SCC 58, 165 C.C.C. (3d) 225 (S.C.C.) at paras. 43-44 [Shearing]; R. v. W. (J.), 2013 ONCA 89. Simple awareness that others have made allegations does not necessarily establish collusion. The simple fact that one complainant knows that others have come forward with allegations, without knowledge of the details of the allegations, does not establish collusion: R. v. M. (R.), 2015 ONCA 9. Where the evidence supports mere opportunity to collude, the issue should be left to the trier of fact: Shearing, at para. 44; Dorsey, at paras. 29-31. Finally, I note that in the similar fact application context, the Defence is not required to prove collusion: R. v. Handy, 2002 SCC 56 at para. 113.

101The record at trial supports the following findings:

• The two complainants were aware of each other and communicated as they came forward with their allegations.

• There is no evidence that the complainants spoke about the details of their respective allegations.

• Complainant R.A. testified that:

i. At the time of the incidents she was good friends with O.A.;

ii. If she and O.A. were upset by a particular incident at the time it occurred there may have been discussion about the circumstance at the time it occurred;

iii. They are no longer in touch, and she has not spoken to O.A.;

iv. She was aware that O.A. came forward to the police and made a statement; and,

v. Complainant O.A. asked her for her permission to give her details to the police so that they might contact her.

• Complainant O.A. testified that she and R.A. had wished each other good luck before testifying and expressed support for each other going through the court process.

102While I endorse Defence counsel’s submission that caution is in order, I arrive at several conclusions.

103First, collusion can arise from a deliberate agreement, communication amongst witnesses that consciously or unconsciously colours their description of events and need not have sinister origins: R. v. E.M.M. 2021 ONCA 436, at paras. 17-19; R. v. Clause, 2016 ONCA 859, at para. 81; R. v. B.(C.),2003 32894 (ON CA), [2003] O.J. No 11 (C.A.) at para. 40. I accept that there is at least the risk of unconscious collusion where the complainants have potentially discussed events that troubled them at the time of the incident. The record at trial did not reveal that the complainants had engaged in detailed discussions of their respective allegations.

104Second, I found the complainants to be credible witnesses overall.

105Third, as it pertains to the issue of collusion, I note in particular that R.A. volunteered the testimony about the possibility of discussion if one or the other complainant was upset at the time of an incident. I emphasize that this evidence was volunteered, rather than extracted, on cross-examination.

106Fourth, there is no similar fact application in this case. As such, I am considering the evidentiary record on each count independently without the corroborative force of similar fact reasoning.

107Fifth, the central opportunity for collusive corroborative testimony would be on the “Group Incident”. As it concerns that allegation, O.A. and R.A. did not testify to mirrored experiences, neatly corroborative of each other. Their respective accounts were not completely complementary. In any event, the defendant corroborated the accounts provided by the complainants as I will explain below. All three witnesses at trial testified to sexual contact sufficient to satisfy the actus reus for sexual interference concerning the “Group Incident”. The granular particulars of the acts are less important.

108As it concerns other potential areas where O.A. and R.A. could have corroborated each other (e.g. “Slap Fest”), they did not. Suspected collusion did not provide supportive corroboration.

109As I turn my mind to each count, I can not discern any particular circumstance where collusive circumstances could provide corroborative support for the prosecution witnesses. Thus, while I admit that general vigilance is important, it appears that the opportunity for collusion, whether innocent, unconscious, or conscious, is a minor issue.

3. Credibility and Reliability of the Defendant

a) Context

110Context is an important consideration when assessing the defendant’s perception of the circumstances. There are several background factors providing necessary context to the mental intent of the defendant and his interaction with O.A. (and R.A. on the other counts). These factors are also important to subjective contextual circumstances relied upon by the defendant to assert the mistake of age defence in relation to other sexual interference allegations as well.

b) The Defendant’s Background

111The defendant’s general background is an important contextual factor as it concerns his testimony, perceptions, and his assertion of defences to the criminal allegations. The defendant grew up in the greater Toronto area. He is an English-speaking adult person who is familiar with the social mores, the culture, and the general character of life in Toronto. Byway of contrasting example, he is not a recent arrival to Toronto, lacking familiarity with the language, region, or social environment.

c) Employment as a Promoter

112The defendant testified as to his employment experience as a club or event promoter including his associated with clubs. For example, the defendant boasted that at a particular club on a particular night he might know six hundred of the seven hundred persons in the club. The defendant presented himself as someone who was readily familiar with the club life. The defendant also testified that he was familiar with liquor licencing and age requirements at clubs.

113The defendant’s employment provided him with a peculiar insight into the club and entertainment business, liquor licence establishments, and the clientele. A simple truth about the industry is that promoters assist clubs with obtaining profits from charging admission to access an event and liquor sales. Alcohol sales must be regulated by licenced establishments. Cross-examination in this area was excruciating. The defendant was reluctant to accept the most basic cross-examination conclusion based on his direct examination in these areas. Ultimately, he grudgingly accepted some of these basis conclusions.

d) The Defendant’s Association with Club Haus

114Against the backdrop of the defendant’s involvement in the promotion industry associated with clubs generally, I find that he must have also enjoyed a close relationship with Club Haus. The defendant was inconsistent about his relationship with this particular club and would not readily accept this premise.

115On the afternoon of the “First Incident” , the defendant described how busy he was with his responsibility to prepare the club for the after-party. He described having to direct persons assisting him with the preparations. The defendant also testified that separate and apart from the after-party that night, he was generally responsible for promoting and running a weekly club event. He described how his events catered to university crowds and skewed toward a younger audience.

116During cross-examination, the defendant’s demeanour and evidence changed dramatically.

117At first the defendant resisted any suggestion that he worked closely with the club and club security. He would not acknowledge that his employment as a promoter implied that he had a duty to the club. The defendant had difficulty with the notion that as a promoter, he was trying to attract people to attend the club, to pay the cover charge and promote liquor sales. The defendant also had great difficulty with the suggestion that he streamlined access for some individuals by way of the club guest list.

118The defendant quarrelled with the Crown Attorney’s suggestion that the success of his business involved promoting events and attracting crowds to purchase liqueur in the club and pay the cover charge. The defendant suggested that he was involved in this work because it was his passion (I do not disbelieve that he was passionate about his work) but studiously ignored the financial considerations until thoroughly and minutely confronted during a close cross-examination.

119The Crown Attorney cross-examined the defendant about his promotion of music artists and the connection to parties both at the club and outside of the club. The defendant maintained that he had no idea about parties outside of the club including the concept of “after-parties”. He testified that he was not promoting “after-parties” and it never been to one. Once again, ultimately, he acknowledged that such events existed, and he was aware of their existence. In fact, at a different portion of his evidence, he specifically acknowledged that he was promoting an “after-party” at Club Haus for the famous rap artist when he met O.A. and her friend J.E..

120At times the defendant tried to distance himself from the club and the management of the club including security arrangements. He expressed that he was totally unconcerned with matters of security. But, on all of the evidence at trial, it is patently obvious that he enjoyed an intimate understanding of the club, its management, and the approach of security. He volunteered that the management group was like this in all clubs they own, and the security was “Fort Knox”.

121On these broad themes, the defendant’s credibility was negatively impacted. The defendant was highly sensitive to these seemingly obvious connections. He bristled at these suggested linkages. He was uncooperative and argumentative when responding to these themes. Ultimately, the cross-examiner reached a point with the defendant where these themes were reluctantly acknowledged.

122The simple suggestions presented by the cross-examination in this area were reasonably founded upon the content of the defendant’s direct examination. The notion that a club promoter is interested in attracting clients who will spend money at the club should have been uncontroversial. The suggestion that the defendant worked closely with the club and enjoyed access was readily apparent.

123Clearly, the defendant was trying to create distance between Club Haus and his employment. He perceived some advantage to conveying that a solid wall of security could not be influenced by him. He appeared focused on shoring up the club’s security protocols. All of this, perhaps, in aide of his evidence that he perceived O.A. to be “19 plus”. The defendant clearly wanted to distance himself from an intimate connection with Club Haus and emphasize the “Fort Knox” security protocols as foundational to his asserted mistake of age defence.

e) The Lie – Complainant O.A.

124The defendant testified that when he first met O.A. and J.E. outside of Club Haus they told him that they possessed the necessary identification required to gain entry to the club. Complainant O.A. testified that she in fact told the defendant that she was eighteen, and that she possessed identification to get into the club.

125I find that O.A. told the defendant that she was eighteen years old and possessed identification needed to enter Club Haus. In fact, it is clear that both O.A. and her friend J.E. lied to the defendant. I make this finding even in the face of the defendant’s testimony that he did not recall O.A. disclosing her age.

126Defence counsel cross-examined O.A. suggesting that if she was prepared to lie about her age to the defendant, she could be a liar at large. This goes too far. I did not find O.A.’s willingness to lie about her age to present a significant credibility issue. She explained that she was enamoured of the club life and the excitement such experiences would provide. She perceived the defendant as someone who could facilitate access. She did not try to justify her lie when she testified in court.

127Further, as an adult testifying in court, O.A. must have been aware of the potential ramifications of admitting that she lied about her age. She endorsed the fact that she falsely told the defendant she was eighteen, on a trial where she would be aware that he is being prosecuted for having sexual contact with persons under the age of sixteen. I believe that O.A. was being forthright on this issue despite the potential impact on the prosecution of the case. It was akin to an “admission against interest” on a central issue on a sexual interference allegation – the defendant’s perception of age.

128I presume that O.A. could not know, that ultimately the defendant would testify that no sexual contact occurred.

f) The Lie and Mistake of Age

129The defendant denies any sexual contact with O.A. the night they met. As I have outlined above, the mistake of age defence is not available as it concerns the “First Incident” given the defendant’s position. But the circumstances surrounding the defendant’s interaction with O.A. that first night are still relevant to his assertion of the defence in relation to the “Group Incident”.

130The finding that O.A. lied about her age does not end the analysis. This fact must be analyzed in the context of the defendant’s background and experience outlined in this judgment. When I overlay the defendant’s background and experience, I find that O.A.’s admitted lie provides meagre support for the mistake of age defence.

131The Supreme Court of Canada highlighted the notorious truth that underage persons may misrepresent their age in R. v. George, 2017 SCC 38, at paragraph 9 [ George]:

Conversely, it would be an error to assert that a reasonable person would do no more than ask a partner’s age in every case, given the commonly recognized motivation for young people to misrepresent their age (R. v. Dragos, 2012 ONCA 538, 111 O.R. (3d) 481, at paras. 17, 26, 45 and 51 (“Dragos”); L. Vandervort, “‘Too Young to Sell Me Sex?!’ Mens Rea, Mistake of Fact, Reckless Exploitation, and the Underage Sex Worker” (2012) 58 Crim. L.Q., 355 at pp. 360 and 375; J. Benedet, 2015 SKCA 61, 21 C.R. (7th) 166, at p. 168 (“Benedet”); Stewart, at p. 4-26.1).

132The defendant was a promoter of clubs and bars. He understood this environment. He knew that bars and clubs are subject to provincial liquor licence law and municipal regulation. He knew that the industry expended resources to regulate entry to clubs and bars to prevent underage drinking and potential licence violations.

133I impute to the defendant the common knowledge that young persons could lie about age and use fake identification to facilitate access to movies, cigarettes, alcohol, clubs, and nightclubs. If this is not notorious and accessible byway of the doctrine of judicial notice, it is at least common knowledge to the objectively reasonable adult in our society, let alone the defendant, an adult working in the club promotion industry. The defendant was well positioned to understand this reality.

134In this unique environment, with the defendant’s peculiar background, the simple assertion of age or credentials is not enough. Complainant O.A.’s simple assertion that she was eighteen and possessed ID has to be considered in the context of the circumstances. I find it objectively unreasonable to rely upon the mere assertion of age by O.A.. But this is even more unreasonable when I consider the subjective circumstances of the defendant’s employment and experience in the club promotion industry.

135In addition, I accept O.A.’s testimony that the defendant stated that J.E. looked old enough to get into the club, but O.A. did not. As I will address later in this decision, I also find that the defendant provided O.A. with a shirt and shoes when she attended his apartment. In arriving at this findings, I am keenly focused on the defendant’s actions as well as his words.

136It is important not to miss the nuance in the question posed by the defendant. He did not ask the girls their age. He did not ask if they were old enough to get into the club. The defendant simply asked if they possessed identification that would permit them entry into the club. He was prepared to put O.A. and J.E. on the guest list, streamlining their potential entry into the club, in circumstances where he knew their asserted age of eighteen would not permit entry.

g) The Conversation Prior to leaving Club Haus

137The defendant testified that O.A. was wearing all white air force Nike shoes that were dirty and would not permit her entry into the club. He defendant described a conversation with O.A. where she advised that she had no opportunity to change her shoes as she was not going home, she was going west. He told her that he had sponsorship shoes at his residence and asked her what size she took. Thereafter she basically invited herself to go west, not only to acquire the clothing but also to meet with friends.

138Complainant O.A. testified that the defendant said her friend J.E. looked old enough to get into the club but she did not. She described a conversation where the defendant told her that she needed some clothes so that she could look older and get into the club. Complainant O.A. explained that at the time, she was young and naïve. She did not perceive anything “weird” about going back to the defendant’s apartment to get clothes. She agreed to go with him because she wanted to gain entry to the club. At his apartment, the defendant ultimately gave her a long-sleeved shirt and some flat shoes.

139I accept the evidence of O.A. and reject the defendant’s version of events where it conflicts with hers. In arriving at this finding, I reject the defendant’s evidence that O.A. basically invited herself into his taxi. Even on his testimony, O.A. had just met him. She would not have known where he lived much less that he lived west of the club. So, it is highly unlikely that she spontaneously suggested she was going west, invited herself into his cab, and this just happened to coincide with the direction of his apartment. However, I accept the defendant’s testimony that O.A. went in the cab willingly and attended his apartment without any coercion on his part.

140While I also find that the defendant described O.A. as appearing too young, I must take that evidence in context. The defendant said she appeared too young to get into the club. This does not mandate a finding that he perceived her as being under the age of sixteen where nineteen is the age limit to get into clubs.

h) The Rationale for Attending the Defendant’s Apartment – Dirty Shoes

141The defendant testified that O.A.’s shoes were too dirty to get into the club. I do not believe his testimony in this regard.

142First of all, O.A. was not wearing white Nike shoes as described by the defendant in his testimony. In the photo taken shortly before their meeting in front of Club Haus, O.A. is clearly wearing blue, red, and brown Nike sneakers. It is J.E. who is wearing white Nike shoes. Not O.A. This is a very basic fact to get wrong.

143Second, I am able to zoom in on the PDF photo 2A and see the sneakers clearly. Not only are ’s O.A. sneakers not white, they do not appear any more worn or dirty than her friend’s shoes.

i) The Rationale for Attending the Defendant’s Apartment – Clothing

144Complainant O.A. testified that the defendant told her she needed some clothes to make her look older so she could get into Club Haus. I accept the testimony of O.A. that the defendant distinguished her in this manner as compared to her friend J.E.. The defendant said that J.E. look old enough to get into Club Haus.

145I note that during cross-examination of O.A., Defence counsel suggested to her that the defendant gave her a long-sleeved shirt and shoes back at his apartment. She confirmed that this occurred.

146When the defendant testified, at first, he only referenced the provision of shoes. He testified to a most specific description of the colour, brand, and description of shoes O.A. selected. Yet later on in his direct examination he acknowledged that the complainant received a shirt as well. He described her “taking” another “sponsorship shirt”. So, ultimately, even on his evidence, O.A. did receive a shirt and shoes.

j) The Defendant’s True Aim

147As outlined above, I do not believe the defendant’s evidence that O.A.’s dirty shoes needed changing. He could not even identify her shoes correctly when he testified. Further, her blue, red, and brown shoes did not look dirty in Exhibit 2

148The defendant described his work that night and his responsibilities associated with preparing for the event that night. The idea that he would divert from his employment in aid of a perfect stranger with “dirty shoes” is incredible. The defendant bragged that at any particular club on any particular night he might know hundreds of people in attendance. Why engage in a diversion to assist O.A., a perfect stranger, when he was supposedly so busy? The notion that he would go to such lengths for charitable reasons is simply not the truth.

149The obvious conclusion is that the defendant was interested in O.A.. The discussion around shoes and clothes was an excuse to develop an opportunity to have further contact with O.A.. The defendant manoeuvred O.A. into attending his apartment.

150There is nothing criminal about having consensual sexual relations with a person thirty minutes after meeting that person in front of a club. This is not a court of morality or prudish indictments. But, instead of simply admitting this course of events, the defendant engaged in contorted testimony that did not make sense and conflicted with evidence that I accept. The real truth is that the defendant was clearly attracted to O.A. and wanted her to attend his apartment. Had he simply testified that he was attracted to O.A. and wished an opportunity to connect with her, this would have been understandable and credible evidence.

151It is objectively speaking, notable that within twenty or thirty minutes of meeting O.A., the defendant was engaged in sexual intercourse with her. Rather than simply admit his true aim, cite the fact that O.A. said she was eighteen, and admit the fact that sexual contact occurred, the defendant maintained his testimony about the “dirty shoes” excuse and his charitable goodwill extraordinary efforts to assist a perfect stranger.

k) After the Sexual Contact

152Complainant O.A. provided a detailed explanation of what occurred after the sexual contact at the defendant’s residence. The defendant put her in a cab, and she arrived at a hotel where she had contact with the famous rap artist and his DJ. Later, she attempted to gain entry at Club Haus with the famous rap artist’s entourage. The defendant’s position is he simply said good-bye at the apartment.

153I believe O.A.’s detailed chronology of the event. Her recount of her initial disappointment upon arriving at the hotel room and encountering the famous rap artist’s DJ. Her eventual contact with the famous rap artist for a second time. The thrill of hanging out with his entourage. The air escaping her balloon as she is denied entry to Club Haus. All of this was real and palpable.

154Clearly, the only way O.A. gained access to the famous rap artist is through the person who was wearing a t-shirt depicting the famous artist. It is interesting that the defendant does not endorse this chronology. I need not endorse suspicious motivations.⁸ Given my acceptance of O.A.’s evidence on this issue, it is at a minimum, a reliability concern associated with the defendant’s recall.

l) Demeanour and Performance as a Witness

155The defendant performed well during direct examination by Defence counsel. He was focused, direct, intelligent, and clear when responding to Defence counsel’s questions. He testified in an easy likeable manner. During direct examination there was perhaps only one occasion where the defendant asked his lawyer to repeat a question to clarify it. The defendant should clearly understand my view that Defence counsel provided a solid foundation for the defendant to testify in his own defence.

156It is often the case that a defendant presents well in direct examination, and then, under the pressure of cross-examination by the Crown Attorney, exhibits some resistance or difficulty. I suggest such circumstances are expected and ignored in the credibility assessment by trial judges.

157In this case, there was a marked change in the defendant’s demeanour and presentation during cross-examination. The defendant required constant assistance and direction from the Court concerning cross-examination questions. The defendant argued with the cross-examiner and posed questions to the cross-examiner rather than provide direct and responsive answers. The defendant was unwilling to follow the Court’s guidance designed to assist him with testifying. The defendant was unwilling or unable to follow the Court’s escalation of effort to providing directive assistance. For example, on perhaps no less than a dozen occasions, the Court directed the defendant not to answer a question with his own posed question in retort.

158Defence counsel provided an elegant, economical, but solid platform from which to advance the defendant’s legal defences. During cross-examination, The defendant alternated between highly literal interpretations of questions, literal and highly specific responses to questions, and projecting naivete. At times, it was clear that the defendant was stalling -- seeking time to ask questions in an effort to understand the potential implications of his answers. The record is littered with pauses, questions, and clarifications provoked by the defendant.

159The defendant attended first year at the University of Toronto. I found him to be an intelligent witness. There was no apparent defect impacting his ability to comprehend questions. The defendant’s approach to cross-examination impacted my assessment of his credibility.

m) Browne & Dunn

160There are several Browne v. Dunn, (1893) 1893 65 (FOREP), 6 R. 67 (H.L.) [Brown v. Dunn] considerations given Defence counsel’s cross-examination, and the defendant’s testimony. Notwithstanding an organized approach to the case as exhibited by Defence counsel, the defendant’s testimony burst over the riverbanks of Defence counsel’s direct examination of the complainants at various times.

161I will simply ignore several minor examples. One significant example concerned the cross-examination of O.A. and the “First Incident” . Defence counsel put to O.A. that that sexual intercourse occurred, it was consensual, and that she had described it as “fun” her police statement. Facing a count of sexual interference, the line of questioning was not focused on sexual assault myths or stereotypes. Defence counsel was seeking to develop the theme of how O.A. presented to the defendant, and the defendant’s perception of her age, as foundational to a mistake of age defence. The defendant testified that there was no sexual contact in the “First Incident”. I do not think that Defence counsel gratuitously cross-examined O.A. on irrelevant themes.

162As the trial judge, I have the discretion to decide how to handle Browne v. Dunn, issues and how to analyse the issue. I observe that the Crown Attorney did not seek to rely upon this issue during submissions. I highlight this issue so that a reviewing court is aware that I considered the issue and for the completeness of my reasons. I have determined that the issue deserves minimal weight overall. A notable exception will be addressed later in these reasons as I address count five – sexual assault in relation to R.A..

4. Conclusion

163The prosecution has proven O.A.’s age and the defendant’s age beyond a reasonable doubt byway of formal admission. I have explained why I found O.A. to be credible. Her evidence establishes the actus reus of sexual interference.

164The defendant denied any sexual contact occurred. No conversation preceded the defendant beginning to kiss O.A.. As kissing evolved into vaginal intercourse, the defendant made no inquiry of O.A., including inquiries into contraception. Given the defendant’s testimonial position, there is nothing in his evidence that I may consider in aide of rebutting the mens rea for sexual interference.

165I do not believe the defendant’s testimony denying sexual contact. Nor does his evidence raise a doubt on stage two of W.(D.).

166The prosecution has established the offence of sexual interference in relation to the “First Incident” beyond a reasonable doubt. This incident properly supports a finding of guilt in relation to count two.

E. Analysis: The “Group Incident” and the Mistake of Age Defence.

1. Introduction

167As it concerns the “Group Incident”, each complainant and the defendant described sexual contact that establishes the actus reus for sexual interference. To be clear, the defendant engaged in sexual intercourse with each complainant. Each complainant was under the age of sixteen at the time. This leaves the issue of mens rea.

168The defendant asserts the mens rea defence of mistake of age. The mistake of age defence requires careful consideration of context. Context includes the subjective make-up of the defendant, his interaction with the complainants, and his employment experience as set out earlier in this judgment.

169While the mistake of age defence was not available as it concerned the “First Incident”, I find that the circumstances surrounding the defendant’s interaction with O.A. during the “First Incident” must be factored into the analysis of the “Group Incident” given the temporal proximity between the two incidents.

170During submissions I put Defence counsel on notice that I held a preliminary view that there was simply no air of reality to the mistake of age defence as it concerned the “Group Incident”. I provided this guidance to Defence counsel so that he might thoroughly address the issue. Upon consideration of the submissions, I find that Defence counsel is partially correct. I find that there is an air of reality to the mistake of age defence as it concerned O.A. and the “Group Incident”. However, for the reasons that follow, there is no substance to the mistake of age defence as it pertains to O.A..

171The Crown has not proven beyond a reasonable doubt that the defendant knew O.A. was under the age of sixteen, but the Crown has proven that the defendant did not take any reasonable steps, let alone all reasonable steps, prior to engaging in sexual contact with O.A. during the “Group Incident”. The Crown has proven that the defendant was wilfully blind and/or reckless with respect to O.A.’s age.

172As for R.A. and the “Group Incident”, I find that there is no air of reality to the mistake of age defence. The Crown has proven beyond a reasonable doubt that the defendant was wilfully blind and/or reckless with respect to R.A.’s age.

173The prosecution has proven beyond a reasonable doubt that the defendant committed the offence of sexual interference as it concerns both O.A. and R.A. in relation to the “Group Incident”.

2. Similar Fact

174Earlier in this judgment I explained why I ruled that the Crown could not rely upon similar fact reasoning. The prosecution must establish the guilt of the defendant on each count on the Information without resort to similar fact analysis. This means that the guilt or innocence of the defendant must be assessed only on the evidence directly admissible on each count.

175Despite that ruling, the evidence of O.A. and R.A. was at least potentially corroborative as it concerning counts two and three. Count two alleges that the defendant committed the offence of sexual interference as it concerns O.A. Count three alleges that the defendant committed the offence of sexual interference as it concerns R.A.. But each count is referrable to the same allegation – the “Group Incident”. As it pertains to the “Group Incident”, O.A. and R.A. enjoy the status of being both witnesses and complainants. Complainant R.A. was a witness to the allegations concerning O.A. in count two. Complainant O.A. was a witness to the allegations concerning R.A. in count three.

3. The Law – Mistake of Age Defence

176Section 150.1(4) of the Criminal Code provides structure to the mistake of age defence:

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. [ Emphasis is mine]

a) Air of Reality

177The “air of reality” to a defence involves the following considerations:

• A defence has an air of reality if a properly instructed jury could acquit the defendant based on the defence: R. v. Morrison, 2019 SCC 15 at para. 118 [Morrison]; R. v. Cinous, 2002 SCC 29 [Cinous].

• As it concerns the mistake of age defence, the air of reality threshold requires evidence that the defendant took all reasonable steps to ascertain the age of the complainant and honestly believed the complainant was of legal age: Morrison, at para. 119; R. v. Carbone, 2020 ONCA 394 at para. 129 [Carbone]; R. v. W.G., 2021 ONCA 578, at para. 55 [W.G.].

• The air of reality threshold requires the defendant to point to evidence supporting a finding that (1) the defendant took steps to ascertain the complainant’s age; (2) the steps were reasonable; and (3) the defendant honestly believed the complainant was of legal age: Morrison, at para 119-120.

178It is only where there is an air of reality to the defence, that the defence should be assessed further as a material issue at trial.

b) Reasonable Steps

179The mistake of age defence outlined in s.150.1(4) of the Criminal Code requires the defendant to have taken “all reasonable steps to ascertain the age of the complainant”. The “reasonable steps” criterion is a “subjective-objective” factor directed at the fault element of the offence: Morrison, at para. 210.

180The Ontario Court of Appeal consolidated extensive guidance concerning mistake of age defence and the analysis of “all reasonable steps” pursuant to s.150.1(4) of the Criminal Code in R v. W.G., 2021 ONCA 578. I rely upon the following guidance:

• The mistaken belief in age defence in s.150.1(4) of the Criminal Code requires an objective foundation.

• There is no exhaustive list of reasonable steps.

• The nature of the steps taken, and the information provided by the steps taken should be considered in the context of the circumstances.

• The steps need not always be active.⁹

• The analysis of “all reasonable steps” requires consideration of context and is fact-specific. The more reasonable the defendant’s perception of the complainant’s age, the fewer steps required.

• Reasonable steps are those that a reasonable person would take in the same circumstances known to the defendant at the time.

• Reasonable steps must be objectively reasonable and assessed in light of the subjective circumstances known to the defendant.

• Reasonable steps are meaningful steps designed to provide information that is reasonably capable of supporting the defendant’s belief that the complainant was of legal age.

• The reasonable steps must take place prior to the sexual contact.

• Steps that acquire information that does not reasonably furnish a belief in legal age are not “reasonable steps”.

• Where early steps could reasonably support the defendant’s believe that the complainant is of legal age, but later events raise “red flags”, additional steps may be required.

181The Court concluded at paragraph 62 by encouraging a practical common sense approach to the issue:

62 There is no magic number or exhaustive list of steps that an accused must take to satisfy the "all reasonable steps" requirement in s. 150.1(4). A practical, common sense approach should prevail, informed by the overarching purpose of the provision - to protect vulnerable young people from sexual crimes by assigning responsibility for preventing adult/youth sexual activity on adults. And by an enhanced standard. Not simply "reasonable steps", but "all reasonable steps to ascertain the age" of the complainant.

c) Proof of the Offence: Knowledge, Wilful Blindness, and Recklessness

182Where the mistake of age defence is available, the prosecution must rebut the defence by disproving it beyond a reasonable doubt: Morrison, at para. 123. The Crown may prove beyond a reasonable doubt that the defendant failed to take all reasonable steps or prove beyond a reasonable doubt that the defendant actually knew the complainant was underage: Morrison, at paras. 123 -128.

183I find the guidance in R. v. Carbone, 2020 ONCA 394 at paragraphs 116 assists with resolving the proper parameters of the mistake of age defence in the wake of the analysis provided by the Supreme Court of Canada in both George and Morrison. I find that the analysis in Morrison is not binding as to the mens rea for offences involving sexual activity with children: Carbone, at paras. 92,93,94, 105-115. Nevertheless, post-Morrison, proof that the defendant failed to take all reasonable steps to ascertain the complainant’s age does not automatically establish the requisite mens rea: Carbone, at para. 120. The Crown must prove that the defendant believed that the complainant was underage. This is not established simply by the Crown negating an available defence. If the mistake of age defence is not in play, the trial judge must still examine the entirety of the record and determine whether the Crown has proven the defendant believed the complainant was underage: Morrison, at para. 124; Carbone, at para. 88, W.G., at para. 67.

d) Proof of “Belief”

184Where the mistake of age defence has been rejected, three possible mental states remain. As explained in Carbone at paragraph 122:

122Assuming the defence of mistaken belief the complainant was 16 or over has been rejected, three possible states of mind remain:

-- the accused may have believed or been wilfully blind to the fact that the complainant was under 16;

-- the accused may have appreciated the risk the complainant was under 16 and decided to proceed with the activity; and

-- the accused may never have adverted to the complainant's age and chose to proceed with the activity.

185As explained further in Carbone at paragraph 129:

[129]The reshaping of the mens rea analysis effected by Morrison makes the job of the trial judge (or the jury) somewhat more complicated. I suggest the trial judge will proceed along the following lines:

Step 1: The trial judge will first determine whether there is an air of reality to the s. 150.1(4) defence, that is, is there a basis in the evidence to support the claim the accused believed the complainant was the required age and took all reasonable steps to determine the complainant's age.

Step 2: If the answer to step 1 is no, the s. 150.1(4) defence is not in play, and any claim the accused believed the complainant was the required age is removed from the evidentiary mix. If the answer at step1 is yes, the trial judge will decide whether the Crown has negated the defence by proving beyond a reasonable doubt, either that the accused did not believe the complainant was the required age, or did not take all reasonable steps to determine her age. If the Crown fails to negate the defence, the accused will be acquitted. If the Crown negates the defence, the judge will go on to step 3.

Step 3: The trial juge [sic] will consider, having determined there is no basis for the claim the accused believed the complainant was the required age, whether the Crown has proved the accused believed (or was wilfully blind) the complainant was underage, or was reckless as to her underage status. If the answer is yes, the trial judge will convict. If the answer is no, the trial judge will acquit.

130Although, the additional step in the mens rea inquiry adds some complexity, it will, as I think the court in Morrison acknowledges, have little practical effect on verdicts. If the accused fails to take reasonable steps to determine the complainant's age, he cannot advance the claim that he believed the complainant was the required age. The removal of a positive belief that the complainant was the required age, combined with recklessness as a basis for a finding of the required mens rea, will, I think, leave few situations in which a person who engages in sexual activity with an underaged person and does not take reasonable steps to determine the age of that person, will not be found to have been at least reckless as to the true age of the complainant. [page789]

131In summary, to convict on a charge under s. 152, the Crown must prove the accused believed (or was wilfully blind) the complainant was under 16, or was reckless as to her age. Recklessness includes a failure to advert to the age of the complainant, save in those cases in which the circumstances did not permit the inference that in proceeding without regard to the complainant's age, the accused decided to treat her age as irrelevant to his conduct. While one can imagine circumstances in which the failure to advert to the age of the complainant should not be characterized as a decision to treat the age of the complainant as irrelevant and take the risk, those circumstances will seldom occur in the real world. For practical purposes, those rare circumstances, in which the failure to turn one's mind to the age of the complainant does not reflect the decision to take a risk about the complainant's age, will be the same rare circumstances in which the reasonable steps inquiry in s. 150.1(4) will be satisfied even though the accused took no active steps to determine the complainant's age.

(1) Knowledge

186Thus, the Crown may prove that the defendant knew the complainant was underage. This may be established by positive proof that the defendant subjectively knew the complainant was underage (e.g., an admission against interest, confession, text messages acknowledging age).

(2) Wilful Blindness

187Wilful blindness concerns circumstances where the defendant saw the need for further inquires but deliberated chose not to: (See the fulsome explanation in Morrison at paras. 98-99; R. v. Alekozai, 2021 ONCA 633, at para. 43).

(3) Recklessness

188Recklessness involves a defendant who is aware of the danger associated with particular conduct, but persists despite the risk: Morrison, at para. 100.

189Where it is established that the defendant believed there was a risk that the complainant was under the age of sixteen and chose to take that risk, I find that this reckless state of mind is culpable under s. 151: ( See analysis in Carbone, at paras. 90, 121,123-126,131). The Court of Appeal in Carbone found recklessness was available as a form of culpable mens rea for s.152 of the Criminal Code. There would be no sound reason for excluding s.151 of the Criminal Code from the same consideration: (See also W.G., at paras. 40, 47,69,76).

190As summarized by the Court in Carbone at paragraphs 125-127:

125Recklessness is subjective. It entails the appreciation of some level of risk and the decision to take that risk. In the context of sexual activity with young persons, an accused who chooses to proceed with that activity, having adverted to the possibility the complainant was underage, will inevitably be found to have been reckless with respect to the complainant's age, even if the risk the complainant was underage is low. The potential harm associated with proceeding in the face of a risk is significant. There is no social value to offset the taking of any risk. It is therefore appropriate to characterize that risk taking, even if the risk is seen as low, as blameworthy for the purposes of imposing criminal liability.

126An accused who never turns his mind to the complainant's age can properly be described as reckless with respect to the complainant's age in most circumstances. Indifference to the age of the person targeted by sexual activity is a choice by an accused to treat the complainant's age as irrelevant to his decision to engage in the sexual activity. In most circumstances, the age of the young person will have obvious relevance, bearing in mind the clear responsibility which the law places upon adults who choose to engage in sexual activity with young persons: see George, at para. 2.

127Reckless indifference describes a subjective state of mind. It reflects a choice to treat age as irrelevant and to assume the risk associated with that choice. While this may describe a relatively low level of recklessness, there is nothing in the nature of the conduct engaged in which would warrant any level of risk taking or preclude the imposition of criminal liability based on a reckless indifference to the complainant's age: see Andrew Ashworth, Principles of Criminal Law, 5th ed. (Oxford: Oxford University Press, 2006), at pp. 181-86, 190-91.

4. Analysis: Findings - Mistake of Age – Complainant O.A.

a) Introduction

191Earlier in this judgment I addressed a number of credibility factors in relation to O.A. and the defendant during the analysis of the “First Incident”. I adopt those factors in the analysis of the “Group Incident” which occurred approximately two weeks after O.A. first met the defendant. In addition to these factors, there are a number of other considerations.

b) The Relevance of the “First Incident” – Complainant O.A.

192The defendant testified that no sexual contact occurred with O.A. during the “First Incident”. I have explained above my findings that sexual contact did in fact occur.

193This means that the defendant has not asserted any circumstance around the sexual contact in support of his subjective perception of the circumstances. Had the defendant endorsed sexual contact during the “First Incident”, he potentially would have been in a position to provide such details and perceptions. Given his position that no sexual contact occurred, I may safely infer that the circumstances of the sexual acts themselves are not available to impact his subjective perception of O.A. during the “First Incident” .

c) The Presentation of O.A. During the “First Incident”

194The Crown Attorney’s submissions urge complete rejection of the defendant’s evidence. A trial judge may accept some, none, or all of a witness’ evidence. I find that notwithstanding a critically adverse finding against the defendant as it concerns the fact that there was sexual contact during the “First Incident”, I may evaluate and consider his evidence on other issues. This is particularly so where the defendant’s evidence was corroborated by other evidence.

195For example:

• The photographs of O.A. (and J.E.) corroborate the defendant’s evidence about how O.A. was dressed.

• One of the photographs potentially corroborates the defendant’s evidence that J.E. was wearing a Queens University sweatshirt.

• The photographs show the relative height of OE and J.E. as compared to the height of the defendant thereby corroborating his evidence in this regard.

• The defendant testified that O.A. and J.E. were smoking cigarettes when he first observed them. Complainant O.A. corroborates the defendant’s testimony.

• Complainant O.A. corroborates (to a degree) the premise that both O.A. and J.E. lied to the defendant in representing an age. Complainant O.A. testified that she told the defendant she was eighteen. While the defendant did not testify that this occurred, I accept O.A.’s evidence that she misrepresented her age to the defendant, and this is partially corroborative of his evidence of an age-related inquiry.

196Finally, I accept the defendant’s testimony that the “First Incident” and the “Group Incident” occurred close in time. I accept the defendant’s evidence that the “Group Incident” occurred approximately two weeks after the defendant first met O.A. during the “First Incident”. When the defendant addressed this issue, he provided a foundation supporting the reliability of his timeline premised upon a national music-related event and the attendance of a famous rap artist.

d) Lifestyle

197Earlier in this judgment I addressed the defendant’s testimony about his background and experience. ¹⁰ This is an appropriate juncture to deal with some of the defendant’s testimony about his lifestyle.

198The defendant testified that he engaged in sexual contact with many different persons on a frequent daily basis. He testified that on some days there could be multitude of sexual contact circumstances. It is important to emphasize that this circumstance is not a basis for any moral judgment concerning the defendant’s lifestyle. It is also important to make clear that the Crown did not bring an application to adduce discreditable conduct.¹¹ No negative credibility assessment may be premised solely on the defendant’s choice of lifestyle. Consenting adults in our society engage in a plethora of diverse sexual practices and may engage in sexual contact with whatever frequency or circumstance they wish assuming the overarching applicability of the criminal law.

199Notwithstanding the defendant’s subjective perspective based on his lifestyle that I must consider; I also recognize the applicability of criminal law. Criminal law must apply equally to chaste individuals, and those individuals who choose to engage in frequent intercourse. Adults have a responsibility to ensure that children are not sexual prey. Persons who wish to engage in sexual contact with other persons must canvass wilful participation and circumstances around consent prior to sexual contact. These are just some examples of criminal law strictures that govern sexual contact between parties.

200The defendant volunteered the body of evidence about his lifestyle. His approach to sexual contact with persons in society is a subjective contextual circumstance I must consider when addressing the position of the defendant, any asserted defences, and whether the prosecution has established the criminal burden of proof in relation to any charge. As it pertains to the mistake of age defence, the defendant’s lifestyle choice is a relevant consideration when assessing the defendant’s subjective perceptions of his sexual partners and the events.

e) Air of Reality – Complainant O.A. – “Group Incident”

201In addition to the record produced by the defendant’s interaction with O.A. and J.E. during the “First Incident”, I accept the defendant’s testimony that he observed O.A.’s fake identification mere hours prior to the “Group Incident”.

202I find that the evidentiary record ranging from the “First Incident” to the “Group Incident” supports an air of reality to the asserted mistake of age defence as it concerns O.A. and the “Group Incident”. In this regard, I rely upon the contact that occurred during the “First Incident” and its close temporal connection to the “Group Incident” approximately two weeks later.

203As explained above, I find that rejection of the defendant’s denial of sexual contact does not mandate rejection of all of his evidence or asserted observations. I may accept all, none, or part of a witness’s evidence. It is not inconsistent to reject his denial yet accept other features of his evidence.

204In arriving at my conclusions concerning the applicability of the mistake of age defence as it concerns sexual contact with O.A. during the “Group Incident”, Defence counsel’s submissions and reliance on R v. Duran, 2013 ONCA 343, at paragraph 54 was instructive and helpful. I must now press on and analyse the mistake of age defence as it applies to O.A.. Later in this judgment, when I address the separate count involving R.A., I will explain why there is no air of reality to the mistake of age defence as it pertains to the defendant’s contact with R.A. during the “Group Incident”.

f) The Presentation of O.A. – “First Incident”

205I do not accept the defendant’s evidence that O.A. appeared to be “19 plus” based on his cumulative assessment of her including her manner of dress.

206When presented with Exhibit 2A and 2B, the defendant maintained that his entire circle of friends and club community dressed in a similar fashion. He indicated that the girls looked like any of the persons attending Club Haus party. These girls looked like “university people” is how he described them.

207While I do not dispute the defendant’s evidence that persons in his peer group and persons attending Club Haus wear similar clothing, I find, based on my own examination of the photographs, that the defendant’s assertion that the girls appear “19 plus” is objectively unreasonable. The defendant claims that O.A. presented as aged 19 or 20 when he first met her. While I accept that there is some subjectivity involved in the assessment of age, and I accept the defendant’s testimony that persons in his peer group and crowd wear similar clothing, I reject the defendant’s evidence in this regard based on my own examination of the evidentiary record.

208Exhibits 2A and 2B accurately capture the presentation of O.A. and her friend J.E. when they first met the defendant outside of Club Haus. It is clear that these photographs were taken shortly before O.A. first met the defendant outside of Club Haus.

209Complainant O.A. is wearing a tennis skirt and sports bra. Her friend J.E. is wearing a schoolgirl kilt and a sports bra in one picture, and a Queens university sweater in the other. The manner in which O.A. was dressed¹² is not relevant to O.A.’s credibility and reliability. I will not indulge the most classic rape-myth in this regard. However, the photographs are relevant as they depict the visual presentation of O.A. as she appeared to the defendant that day.

210As the trier of fact, coming from the objective reasonable standard, I may examine the photographs and form my own conclusion. Having received the evidence first-hand, and having benefited from the submissions of counsel, I find:

• The photographs depict two young girls in their early teens.

• Objectively reasonable persons in society encountering O.A. as she presents in exhibit photos 2 A and 2 B would easily question her age.

• No reasonable person could look at O.A. and conclude that she was “19 plus”.

211But a contextual analysis demands that I also consider the defendant’s background and circumstances. Earlier in this judgment I outlined the defendant’s background and experience as a club promotor. The defendant worked in an industry where resources are expended to detect underage persons attempting to gain entry to the club. Even more than the average adult in society, the defendant’s employment meant that he would be keenly aware of the prevalence of underage persons attempting to gain entry to the club. This is even more reason for the defendant to be keenly attuned to this issue.

212The defendant testified that the two girls were dressed in a similar fashion to those in his circle of friends and those attending his events – university students. This may be true. That a university student might wear a kilt is acknowledged. But the defendant’s credibility was impacted when he refused to even acknowledge the mere possibility that the photographs depicted young girls. The defendant seemed mystified by the cross-examination suggestion that the catholic girls skirt worn by J.E. was ubiquitous amongst thousands of children attending catholic school in Toronto. This was not sincere on the part of the defendant. Ultimately, under laborious cross-examination, the defendant grudging acknowledged that thousands of catholic schoolgirls wear kilts resembling that worn by J.E.. He then went on to add that this reality did not occur to him when he first met O.A. and J.E.. The defendant’s evidence in this regard was insincere.

213That J.E. was wearing a sweater with a university name on it can not be divorced from the overall presentation of the girls. But the mere article of clothing, considered with the overall presentation of the two girls, could not support a reasonable belief that either were university students.

214The defendant cites the fact that the girls were smoking cigarettes. It is common for underage persons to smoke cigarettes. Anyone living in this society understands this reality.

215I do not accept the logic expressed by the defendant -- since J.E. appeared of age, O.A. must have been of age. I do not believe that the defendant subjectively engaged in this analysis at the time of the events.

216In any event, this conflicts with evidence that I accept from O.A.. Complainant O.A. testified that the defendant told J.E. that she looked old enough to get into the club but O.A. did not present as old enough. This evidence was unchallenged in cross-examination.

217In my view, the cumulative presentation of O.A. and J.E. during the first meeting does not reasonably support the defendant’s claim that he operated under an honest mistake of age.

g) Failure to Gain Entry to Club Haus

218After the sexual contact between O.A. and the defendant at his residence, O.A. was not successful in gaining entry to Club Haus. I accept O.A.’s evidence that she attempted to gain entry in the company of the famous rapper and his entourage and was denied. I accept O.A.’s evidence that she solicited help from the defendant personally, and that he attempted to walk her into the club and again she was denied.

219The defendant did not acknowledge his direct involvement in assisting O.A. with gaining entry. I am suspicious about this apparent gap in his memory. The implication being that given he assisted O.A. and witnesses her denied entry, this would be another circumstance mandating an age inquiry prior to future sexual liaisons. My suspicion was dissipated by the defendant’s testimony that he mainly attributed O.A.’s failure to gain entry on her lack of identification.

h) Complainant O.A.’s Fake Identification

220I accept the defendant’s evidence that approximately two weeks after the “First Incident” he had occasion to observe a piece of identification in O.A.’s name. I am also satisfied, based on the evidence of the defendant, that this observation occurred the same day as the “Group Incident”.

221In arriving at this finding, I am also cognizant that O.A. testified that she possessed fake identification and I found her testimony to corroborate the defendant’s testimony to a degree.

222While I accept that this circumstance is part of the foundational air of reality to the mistake of age defence concerning the “Group Incident” and O.A., ultimately, I assign little weight to this evidence. This circumstance is not sufficient, alone or in combination with other factors, to support the mistake of age defence. There are several reasons for this conclusion.

223First, I have already addressed the subjective make-up of the defendant and his employment as a club promoter. Earlier in this judgment I found that he would be aware of phenomena of underage persons trying to get into clubs. I add to this conclusion the finding that he would be aware that those underage persons trying to get into clubs at times possess illegitimate identification. This must be an almost notorious fact known to the defendant given his employment. Were he employed as a Banker for example, perhaps this knowledge would not be attributable to his background and experience.

224Second, even on the defendant’s evidence, he looked at the ID only briefly. He did not identify the type of identification but indicated it was not a driver’s licence and it was purple. He recalled seeing the number 95, so he believed O.A. was nineteen. Complainant O.A. indicated where she had obtained the fake identification, it was issued out of Alberta, and represented her age as 19.

225Finally, O.A. told him she was 18 years old when they first met. Having examined the ID, the defendant claims that it supported a belief that she was 19. Complainant O.A. corroborates this – she also testified that fake ID represented her age as 19. This should have prompted the defendant to consider the obvious – that the combination of factors suggested this was fake identification.

226I find that the defendant, particularly given his peculiar employment background, was alive to the phenomena of fake identifications being proffered by underage persons. The defendant did not investigate the discrepancy between O.A.’s stated age of eighteen and her identification representing her as 19. On this record, a simple observation of identification does not support the defendant’s testimonial belief that O.A. was “19 plus”. In any event, the defendant’s approach to the issue of age and sexual partners convinces me that he did not hold an honest belief that O.A. was “19 plus”.

i) The Defendant’s Approach to the Issue of Age

(1) Age and Sexual Partners

227In addition to his testimony about his lifestyle, the defendant testified generally about his approach to age and sexual partners. The defendant’s testimony in this area was not restricted to any particular complainant or any particular count on the Information. His testimony was conveyed as a general approach to the issue. As such, I find that I must evaluate these general features of his subjective approach to the issue of age and sexual partners as potentially relevant to his mistake of age defence on this count. I can not parse out his general approach to any particular count.

(2) Indifference

228The best descriptor of the defendant’s approach to age and sexual partners, based on his clear testimony on this issue, was indifference. For example, the following exchange occurred during cross-examination:

Q. I am suggesting to you that at the time that you were with O.A. over course of time she was fifteen that you did not care about her age.

A. No I did not care about her age

Q. In fact you did not care about her age whether it was 20, or 19, or 15 or 16. Right?

A. No. I did not care to ask. ¹³

229The defendant’s mindset could not be clearer.

(3) General Discussions with O.A.

230The defendant was mildly inconsistent when describing his relationship with O.A.. The defendant testified that he did not generally ask a lot of questions of persons in his social circle. He did not wish others to return the favour and question him closely about his life. The defendant presented this testimony as part of his general make-up. Notwithstanding his “open door policy” to his residence and extensive social network, he maintained a private distance personally.

231On the one hand, the defendant conveyed a detached connection with the complainants generally. He admitted during cross-examination that the relationships were all about his arousal and sexual satisfaction. Yet he also claimed that he enjoyed a good personal relationship with O.A. and engaged in lengthy discussions with her.

232During cross-examination the defendant was confronted with his evidence that he enjoyed meaningful or lengthy discussions with O.A.. He was pressed about the fact that he never discussed O.A.’s student life, family life, or everyday circumstances. He never discussed O.A. obtaining her driver’s licence or access to a car. In retort, the defendant changed his testimony and said he simply talked about himself with O.A. – not her. This is contrary to his earlier testimony that he didn’t enjoy revealing details about himself to anyone and avoided conversations about himself.

(4) Age Gap Discussions with Complainant O.A.

233During cross-examination the Crown Attorney confronted the defendant with O.A.’s testimony that she had a specific conversation with the defendant about the age gap. The defendant denied that this occurred. The defendant explained that he doesn’t ask anyone about their age because he doesn’t want too many inquiries directed at himself. The defendant testified that O.A. had ID sufficient to get into the club so he did not make any further inquiries into her age. He never specially asked about her age or had a discussion in this regard. When responding to this area of questioning the defendant provided an unsolicited editorial that the O.A. must not have disclosed her true age to many persons, and that those (unnamed) individuals must have found out when his “face hit the news”.

234The defendant testified that he was aware of the age gap as it concerned each complainant generally. During cross-examination, he acknowledged that there was a significant age gap between his age and the two complainants. He testified that he declined to ask questions about the age gap notwithstanding he recognized it was present.

235During cross-examination, he also reluctantly accepted that over multiple sexual encounters with O.A. he was afforded several opportunities to appreciate the age gap. Then, the Crown Attorney suggested to the defendant that if he was aware of the age gap, O.A. must have been aware as well, and it was only natural that at some point over a year, a discussion about age occurred.

Q. I am going to suggest to you that not only did you appreciate the age gap but O.A. appreciated the age gap because she spoke to you about it.

A. I don’t think she cared.

236The defendant was understandably closely cross-examined about the foundation for his answer – that O.A. did not care. The obvious implication being, that there was a discussion wherein O.A. expressed this view. During this line of questioning, the implications associated with his answer “I don’t think she cared” became more apparent to the defendant. The conclusion strongly implied that there was a discussion about the issue. The more the Crown Attorney pressed the issue, the more steadfast the defendant became that there was no discussion. The defendant simply maintained that he believed that she did not care about the age gap, but he could not provide any support for why he held this belief.

237During continued cross-examination the defendant testified that he did not care how old O.A. was:

Q.I am suggesting to you that at the time that you were with O.A. over the course of the time that she was fifteen that you did not care about her age.

A. No I did not care about her age.

Q. In fact you did not care about her age whether it was 20, 19, or whether it was 15 or 16. Right?

A. No. I did not care to ask.

238Clearly, the defendant did not care how old O.A. was during the sexual encounters with her when she was fifteen. He testified that he had sex with O.A. because she wanted to have sex.

239I believe O.A.’s testimony that she disclosed her true age to the defendant – that she was fifteen years old. I accept her evidence that the defendant was not perturbed by this disclosure in the least.

j) Credibility and Reliability of Complainant O.A.

240I have explained my approach to the counts on the Information in the absence of a similar fact application. I have also explained that credibility assessments may span counts notwithstanding the absence of a similar fact application.

241Earlier in this judgment I set out my assessment of O.A.’s credibility and reliability when addressing the “First Incident”. Those general credibility and reliability findings extend to the “Group Incident”.

242As it concerns the “Group Incident”, it is important that all three witnesses described sexual contact supporting the actus reus of sexual interference. In such circumstances, there is less concern about credibility issues such as collusion. The central issue concerned the defendant’s invocation of the mistake of age defence – a position that admits that the actus reus occurred.

k) Credibility and Reliability of the Defendant

243I have outlined my findings as to the defendant’s credibility and reliability as it concerns the “First Incident” . Overall, for the reasons outlined in this judgment I found credibility issues with the defendant and rejected material portions of his evidence.

l) Conclusion – Mistake of Age Defence - O.A.

244As it concerns the “Group Incident”, the simple truth of the matter is that O.A. attended the defendant’s residence, introduced R.A., and sexual contact occurred within a short time frame without any inquiry by the defendant.

245According to the defendant, this was not an unusual circumstance for him. This was a lifestyle that he lived. That it was not an unusual circumstance for the defendant is a relevant subjective circumstance to consider. But this subjective circumstance can not provide immunity from the need to engage in an age inquiry or canvass consent with sexual partners.

246I reject the mistake of age defence as it concerns O.A. based on the analysis set out above.

247Given the defendant’s background and experience in the club promotion business, O.A.’s lies about her age, and her possession of fake ID is not a “reasonable step” supporting the mistake of age defence, let alone “all reasonable steps”. The defendant did not inquire into the discrepancy between O.A.’s asserted age (eighteen) and her fake identification age (nineteen). His viewing of O.A.’s fake ID was fortuitously encountered – not a circumstance where he directed the inquiry.¹⁴ The defendant was indifferent to the age of O.A. and R.A..

248None of the indicia cited by the defendant are “reasonable steps” he took to ascertain O.A. age. They are ex post facto observations he asserted to explain why he took no steps to ascertain the age of O.A. and R.A.: R. v. Levigne, 2010 SCC 25, at paras. 41-44.

5. Proof of the Offence – Count Two – Complainant OA.

249Rejection of the mistake of age defence does not automatically mandate a finding of guilt. The guidance of Morrison and W.(D.) require consideration of the case at large.

250The actus reus for sexual inference has been proven.

251The defendant’s evidence is corroborative of O.A. and R.A. (in her status as a witness on this count) as to the actus reus of sexual interference. The other essential elements were proven by the formal admission filed as an exhibit documenting the age of the defendant and the two complainants.

252I am not satisfied that the Crown has proven beyond a reasonable doubt that the defendant knew O.A. was under the age of sixteen at the time of sexual contact. Once again, I am entitled to accept some, none, or all of a person’s evidence. I believe the defendant insofar as there was no specific subjective internalized mindset that O.A. was under the age of sixteen.

253The defendant manifested a mindset of indifference to the age of his sexual partners. In this case, Exhibits 2 A and 2 B capture the presentation of O.A. minutes before the defendant encountered her outside of Club Haus. Any reasonable person, and in particular, the defendant given his background and employment, would have inquired further before sexual contact. The defendant saw the need for further inquires but decided not to pursue them prior to sexual contact two weeks later during the “Group Incident”. I find that he was wilfully blind.

254Even if I have erred in my finding as to wilful blindness, it is plain that the defendant knew there was a risk that O.A. was underage and chose to take that risk. He treated O.A.’s age as irrelevant and is blameworthy for participating in sexual contact: Carbone, at paras. 125-127. This is recklessness.

255Nothing in the record provokes a reasonable doubt at stage two of W.(D.). On all of the evidence, applying stage three of W.(D.), the Crown has proven the defendant’s guilt beyond a reasonable doubt.

6. Analysis: Findings – Mistake of Age -- Complainant R.A.

a) Introduction

256Earlier in this judgment I addressed the testimonial accounts of O.A., R.A., and the defendant in relation to the “Group Incident”

257The defendant is also alleged to have committed sexual interference in relation to R.A. as framed in count three on the Information. The Crown Attorney also articulates that the same incident grounds an allegation of sexual assault framed in count four on the Information.

b) Air of Reality - Mistake of Age Defence – Complainant R.A.

258The defendant testified that when R.A. and O.A. arrived at his apartment, R.A. was friendly, seemed cool, and was nice to him. During direct examination the defendant testified that he assumed that both girls were “19 plus”. He recalled the “95” on O.A.’s identification. Complainant O.A. described R.A. as her best friend. He was the same age as his best friend. Therefore, in his mind, this picture meant that logically, R.A. and O.A. must be the same age.

259The Crown Attorney cross-examined the defendant about any discussions or inquires he made before engaging in sexual contact with R.A. for the first time during the “Group Incident”. The defendant specifically testified that he made no specific inquiry concerning R.A.’s age. It is clear that prior to engaging in sexual contact with R.A., the defendant did not have any substantive discussion with R.A. including but not limited to age, school, or family. The “quick banter” described by the defendant as having occurred after the video game, did not involve questioning either complainant as to their age.

260Even if I accept the defendant’s claim that he was a passive participant in sexual contact with O.A. and R.A., there is simply no air of reality to the mistake of age defence as it concerns R.A.. There is nothing in the record supportive of a finding that the defendant took any steps, let alone all reasonable steps, to ascertain the age of R.A.. There is no evidence that the defendant took steps to determine R.A., age, that the steps taken were reasonable, or that the defendant honestly held a belief that R.A. was of legal age.

261I reject the defendant’s testimony that he turned his mind to the age of O.A., considered her friendship with R.A., and then deliberated that R.A. was the same age. I reject the defendant’s position as illogical, unreasonable, and unplausible. Even on the defendant’s testimony there was little time to deliberate. I do not even believe this was a thought process for the defendant at the time of the sexual contact. This sentiment is simply an ex post facto explanation for why the defendant did not make any inquiry around age.

262Even if I believed the defendant and accepted that he held this state of mind, it, it would not constitute a reasonable step the defendant took to inquire into R.A.’s age. Again, it is an ex post facto justification for why he engaged in sexual contact without taking any reasonable steps to ascertain R.A.’s age. let alone “all reasonable steps”:

263The defendant completed one year at the University of Toronto. He does not lack intellect. Had he truthfully evaluated the issue of age, he would have been provoked to ask questions prior to engaging in sexual relations with R.A.

264That there was an air of reality to the defence as it concerned O.A. as addressed above, does not infuse an air of reality to the defence as it concerns R.A.. The defendant had a fuller record of contact with O.A. provided by the “First Incident”. This record was absent concerning R.A..

265In arriving at my conclusion, I have also considered Defence counsel’s cross-examination of R.A. suggesting that she hung out with a group of friends who were in their twenties. Whether or not this was so, the defendant was not aware of her peer group prior to this first sexual contact. Furthermore, R.A. testified that she met this peer group through the defendant which suggests that this occurred subsequent to the “Group Incident”. Reasonable steps must occur prior to the sexual contact.

266I reject the mistake of age defence.

7. Credibility and Reliability of Complainant R.A.

a) Overall presentation

267Complainant R.A. was a quiet and cautious witness at trial. Overall, she presented as earnest in answering questions.

b) Credibility

268This is the first opportunity to address the credibility and reliability of R.A. overall. Complainant R.A. was a credible witness with moderate to significant reliability concerns around her ability to recount detail given the historical nature of the allegations. She testified clearly. She provided responsive and direct answers to questions. She was not shaken in cross-examination on any material issue or subject.

c) Reliability

269Complainant R.A. was a poor witness as it pertained to the issue of reliability. She exhibited moderate to great difficulty testifying given the historical nature of the events. At times she exhibited a high degree of difficulty providing the finer detail of events. This impacted the strength of her evidence .

270As it concerns the “Group Incident”, I accept R.A.’s evidence that sexual intercourse occurred with the defendant despite reliability concerns. The evidence provided by both O.A. and the defendant corroborate R.A.. There are no reliability concerns applicable to this circumstance given this record. Again, as I have outlined in this judgment, the prosecution has established the actus reus beyond a reasonable doubt.

d) Collusion

271I adopt my analysis of the issue of collusion set out earlier in this judgment where I addressed the “First Incident” and O.A.. As it pertains to the “Group Incident”, collusion is more available. The incident involves both O.A. and R.A.. But again, I adopt my analysis set out earlier in this judgment. The issue of collusion is muted where both complainants and the defendant agree that the actus reus for sexual interference occurred. Were it the Defence position that the “Group Incident” was fabricated, collusion would be a more central, rather than peripheral concern.

e) Motive to Fabricate

272I adopt the analysis of the law applicable to this issue set out above where I addressed the credibility and reliability of O.A.. The Crown has not proven the absence of a motive to fabricate.

8. Credibility and Reliability of the Defendant

273Earlier in this judgment I set out broad conclusions as to the credibility and reliability of the defendant. As it pertains to the “Group Incident”, I have analyzed the circumstances and explained why I rejected the defendant’s “best friends are the same age” premise. The defendant did not

9. Proof of the Offence – Count Three – Complainant R.A.

274I have explained why there is no air of reality to the mistake of age defence as it pertains to the defendant’s interaction with R.A. during the “Group Incident”. In my view, the defence is unavailable, and the analysis of the defence ends at this juncture. At it’s highest, as it pertains to R.A., the defendant asserted that he assumed that R.A. would be the same age as O.A. because they claimed to be “best friends”. This is an unreasonable assertion in the context of the foundational support required for the mistake of age defence. No judge of the law could leave the mistake of age defence for the jury on that record. But even if I have erred in my assessment of the air of reality test, were I to consider the defence, I would reject it based on lack of merit. As it concerns the “Group Incident” and R.A., the record is clear that the defendant did not take any steps, let alone all reasonable steps, to ascertain the age of R.A..

275As outlined earlier in this judgment, rejection of the mistake of age defence does not mandate conviction. I will now move on to assess the prosecution case.

276The actus reus for sexual interference has been established beyond a reasonable doubt by the cumulative testimony of the two complainants and the defendant.

277My credibility findings concerning O.A., R.A., and the defendant may span the individual counts before the court even in the absence of a similar fact application.

278All three witnesses testified to sexual contact that establishes the actus reus for sexual interference. Overall, I found R.A. to be a witness with reliability issues. These reliability concerns did not erode the prosecution’s case on the “Group Incident” given the corroborative testimony of both O.A. and the defendant.

279As it concerns the mental intent, there is nothing in the record suggestive of R.A’s manifest presentation as being underage at the time of the “Group Incident”. The prosecution did not lead a sufficient record as to R.A.’s dress and presentation on the day of the “Group Incident”. There is nothing in the record suggesting that the defendant subjectively knew that R.A. was only fourteen years old. Notwithstanding the defendant’s meagre opportunity to even speak to R.A. prior to engaging in sexual intercourse, I am not satisfied that the Crown has proven beyond a reasonable doubt that he subjectively knew R.A. was under the age of sixteen.

280I have set out my conclusions as to the defendant’s mental intent as it concerned O.A. during the “Group Incident” above. The defendant exhibited a similar mindset toward R.A.. The only difference is the defendant had no prior association with R.A. The defendant was wilfully blind and/or reckless. Either mental state is sufficient for criminal sanction.

281The Crown has proven the guilt of the defendant beyond a reasonable doubt as it concerns count three and