COURT FILE NO.: CR-16-10000115 DATE: 20160921 ONTARIO SUPERIOR COURT OF JUSTICE

BETWEEN:

HER MAJESTY THE QUEEN – and – HASSAN JARRAR

Karen Simone, for the Crown Lydia Riva, for the Defendant

HEARD: August 30, 2016

Subject to any further Order by a Court of competent jurisdiction, an Order has been made in this proceeding directing that the identity of the complainant and any information that could disclose such identity shall not be published in any document or broadcast in any way pursuant to s. 486.4 of the Criminal Code of Canada.

REASONS FOR JUDGMENT

K.P. WRIGHT, J.

Introduction

[1] On April 30, 2013, Hassan Jarrar became bound by a recognizance pursuant to section 810.2 of the Criminal Code, R.S.C. 1985, c. C-46. He comes before this court charged with three counts of breaching that recognizance between January 1, 2014 and February 2, 2014.

[2] The substantive charges from which these breach charges stem proceeded by way of jury trial before me in February of 2016. Crown and defence counsel agreed at that time, that all of the evidence heard at the jury trial, save and except for the testimony of Mr. Jarrar, would apply to this trial.

[3] The trial of this matter took less than 40 minutes to complete. The Crown called one police witness and filed one additional exhibit. The defence elected to call no evidence.

[4] At the conclusion of this trial, Crown counsel took the position that they had not met their onus on count two and invited the court to dismiss that charge. I agree. Count two on the indictment will be marked dismissed.

Overview of Evidence

[5] I will now give a very brief overview of the evidence that applies to this trial. I will further develop the evidence when necessary in my analysis.

[6] There is no dispute that on April 30, 2013, after being released from prison, Hassan Jarrar entered into a section 810.2 recognizance. This court order required Mr. Jarrar to abide by 15 conditions for a period of 24 months.

[7] The two conditions at issue in this trial are set out in the recognizance as follows:

• That you have no contact directly or indirectly, with any female under the age of 16.
• That you abide by a curfew and be inside your place of residence between the hours of 12am and 6am each and every day, except for lawful employment or medical purposes, and with respect to these exceptions you are to provide 48 hours advance, written proof of this by way of a letter from your employer or a letter from your doctor to the Toronto Police Service, specifically Detective Constable Alexandra Marks (9211) directly at (416) 808-7452 or Detective Constable Scott Peters (5119) directly at (416) 808-7456 or designate.

[8] The Crown alleges that Mr. Jarrar breached his recognizance by having contact with K.S., a female under the age of 16, between January 1, 2014 and February 2, 2014, and by being outside his residence between the hours of 12am and 6am from January 31, 2014 to February 2, 2014.

[9] The majority of the evidence for consideration on this trial comes from the testimony of K.S. at the February 2016 jury trial. I have reviewed her evidence and accept it in its entirety.

[10] It is an admitted fact that K.S. was 14 years of age when she had her first online conversation with Mr. Jarrar in late 2013. At that time, she was living in Bowmanville with her mother and her older brother. She was in grade 9 at a local high school and her father had passed away the year prior. She testified that Mr. Jarrar initially told her that he was 17 years old, and later told her he was 19 or 20 years old.

[11] In the months that followed, Mr. Jarrar and K.S. were in daily contact. They communicated primarily by text message and telephone conversations. During this time K.S. admitted that she sent Mr. Jarrar many provocative pictures and videos of herself. She testified that many, if not all, of these were at his request.

[12] She said that in January 2014, he asked her to come to Toronto for the weekend so that they could meet. K.S. said she told Mr. Jarrar that she was only 14 years old and did not have a driver’s licence. She told him that she was not familiar with Toronto and had never been on the GO Bus. She said Mr. Jarrar researched which bus she would have to take to get to Toronto and made all of the necessary arrangements.

[13] On Friday January 31, 2014, K.S. took a GO Bus from Bowmanville to Toronto and met Mr. Jarrar at the Yorkdale GO Bus terminal. From there, they went to the Queensway Motel. Prior to meeting K.S. at the GO Bus terminal, Mr. Jarrar attended at the Queensway Motel, signed the guest registry, and paid for a two night stay (exhibits 9 and 10). Over the weekend, Mr. Jarrar and K.S. attended the LCBO and the local Goodwill store. There were numerous provocative, sexual pictures and videos taken of K.S. that weekend on his camera and cell phone. K.S. testified that they checked out of the Queensway Motel on Sunday February 2, 2014 at approximately 10:30 am.

[14] The evidence of K.S. is corroborated by the following close circuit television footage:

• January 31, 2014, 3:12pm: Hassan Jarrar checking into the Queensway Motel and attending at Room #201.
• February 1, 2014, 2:45pm: K.S. and Hassan Jarrar exiting their room at the Queensway Motel.
• February 1, 2014, 2:46pm K.S. and Hassan Jarrar exiting the Queensway Motel.
• February 1, 2014, 3:48pm: K.S. and Hassan Jarrar at the Goodwill Store located at 871 Islington Avenue.
• February 1, 2014, 3:52pm: K.S. and Hassan Jarrar at the LCBO located at 1090 The Queensway.
• February 1, 2014, 4:23pm: K.S. and Hassan Jarrar return to the Queensway Motel.
• February 1, 2014, 4:24pm: K.S. and Hassan Jarrar return to the motel room.
• February 2, 2014, 10:39am: K.S. and Hassan Jarrar exit the motel room.
• February 2, 2014, 10:39am: Hassan Jarrar checks out of the Queensway Motel, K.S. standing behind him.

[15] K.S. testified that after checking out of the motel, Mr. Jarrar took her back to the bus terminal and purchased her a ticket to get home.

Analysis

Count One: Contact with a female under 16 years of age

[16] The Crown alleges that Mr. Jarrar breached this condition by having contact with 14-year-old K.S. between January 1, 2014 and February 2, 2014 by text message, telephone, and being in her direct company during the weekend of January 31, 2014.

[17] It is an admitted fact that K.S. was 14 years old at the times she had contact with Mr. Jarrar. There is also no dispute that K.S. and Hassan Jarrar had contact during the relevant time period. The evidence in that regard is overwhelming.

[18] The only issue on this count is whether Hassan Jarrar had actual knowledge of, or was willfully blind to, the fact that K.S. was under 16 years of age at the time he had contact with her.

[19] Defence counsel advances the defence of mistake of fact. Defence counsel asserts that Hassan Jarrar honestly and mistakenly believed that K.S. was over the age of 16 during the time he had contact with her, and that the Crown has failed to prove that he did not take all reasonable steps to ascertain her age.

[20] The Ontario Court of Appeal in R. v. Legere (1995), 22 O.R. (3d) 89 at para. 32 affirmed that “the offence of failing to comply with a condition of a recognizance is a true criminal offence requiring proof of mens rea”. The court in R. v. Withworth, 2013 ONSC 7413 at para. 13, 110 W.C.B. (2d) 575 explained the law as follows: “Due to the fact that s. 145(3) [failure to comply with a condition of undertaking or recognizance] requires proof of subjective fault, an accused person who raises a reasonable doubt about an honest but mistaken belief of fact cannot be found liable.” This would also be true for breach charges under section 811 of the Criminal Code as in the case before me.

[21] Justice Dickson explains the mistake of fact defence in R. v. Pappajohn, [1980] 2 S.C.R. 120 at para. 40 (dissenting in result) as follows:

Mistake of fact is more accurately seen as a negation of guilty intention than as the affirmation of a positive defence. It avails an accused who acts innocently, pursuant to a flawed perception of the facts, and nonetheless commits the actus reus of an offence. Mistake is a defence though, in the sense that it is raised as an issue by an accused. The Crown is rarely possessed of knowledge of the subjective factors which may have caused an accused to entertain a belief in a fallacious set of facts.

[22] However, as the Supreme Court stated in R. v. Sansregret, [1985] 1 S.C.R. 570 at para. 21, “a finding of wilful blindness as to the very facts about which the honest belief is now asserted would leave no room for the application of the defence because, where wilful blindness is shown, the law presumes knowledge on the part of the accused”.

[23] The defence of honest but mistaken belief of fact is often raised in sexual assault proceedings. Depending on the alleged offence, a defendant may either claim an honest but mistaken belief that a complainant consented to activity in question, or an honest but mistaken belief that a complainant was 16 years or older. The fault elements for certain sexual offences includes a “reasonable steps” or “all reasonable steps” test which modifies the Crown’s burden in such cases. What constitutes “reasonable steps” depends on the circumstances of each case. For the purposes of this case, such provisions and case law assist in explaining the general criminal law concepts of honest but mistaken belief of fact and wilful blindness.

[24] Defence counsel argues that the 24-month gap between a 14 year old and a 16 year old is a distinction without a difference. Defence counsel points out that much of the evidence available to the defendant regarding the age of K.S. was equivocal. I agree that the photographs depicting K.S.’s bedroom, the fact the she was in high school and the fact that she got in trouble from her mother for not cleaning her room are not conclusive of her age. However, when combined with her uncontradicted testimony that she told Hassan Jarrar that she was 14, those otherwise equivocal factors become much more compelling. I have reviewed and rely upon the following excerpts of her evidence.

[25] In examination-in-chief, at pages 8-9 of the transcript, K.S. testified as follows:

Q. Did you ever tell Stevo how old you were? A. Yeah. Q. And what did you tell him? A. Well, we were having a conversation about me driving over there, but then I said I wasn’t age appropriate for driving yet and I told him I was 14. Q. And what, if anything, did he say to you when you told him that you were 14? A. I can’t remember what he said. Q. All right. Did he continue to speak to you after you told him that you were 14? A. Yeah. Q. And in terms of the timing of when you spoke to him and told him you were 14, would you say that was at the beginning, middle or end of the relationship you had with Stevo? A. Around the middle.

[26] At pages 16-17 of the transcript, K.S. testified as follows:

Q. All right. Now, we see these conversations, K.S., where you’re talking about Go buses. By this point, by December of 2013, had you told Stevo your age and that you were only 14? A. I think so. Q. All right. Would you talk about your classes with Stevo -- A. Yeah. Q. -- the courses you were taking? A. Yeah. Q. And how did he know you were in high school? A. Because I would talk about my school, like the classes I was taking.

[27] In cross-examination, at pages 115-188, K.S. testified as follows on the topic of discussions between the defendant and complainant shortly before they met in person.

Q. Okay. And he says something like, I’ve got to come clean, I’m older than I said I was? A. Yeah. Q. Do you remember what you were talking about that day? A. We were talking about how we were going to meet, about the bus schedule, and then he wanted me to drive over there, but I said I wasn’t age appropriate, and that’s when I said I was 14 and I was unable to drive yet, and then -- yeah. Q. So you said you lied to him about your age, right? A. Yeah. Q. And he said, Oh, me too, I lied about my age? A. He didn’t say it right after that. Q. And -- well, within relatively -- within relatively -- within a relatively brief time, you both confessed to lying to each other? A. Yes, but not on the same day.

[28] At page 117, following a discussion about transportation, K.S. testified as follows:

A. Are you asking if I said my age before we were discussing to meet? Q. I’m trying to figure out whether it’s right before you actually get on the bus or whether it’s a long time before that. A. A long time before that.

[29] Finally, in re-examination at page 253, K.S. testified as follows:

Q. All right. Mr. Brodsky suggested to you, K.S., that you lied to Stevo about your age. Did you ever lie to Stevo about your age? A. I never said that I was actually 19, as what Badoo had said, but when he brought up driving, I said that I was 14. Q. Okay. So other than telling him that you were 14, did you ever tell him that you were any other age? A. No.

[30] I have turned my mind to the fact that K.S. and Hassan Jarrar initially met on an adult website called Badoo. Standing alone, this evidence may have supported a finding that Hassan Jarrar believed K.S. to be over the age of 16. But this evidence does not stand alone. This initial online introduction was followed by months of daily contact in a variety of ways, including video messaging. Over that extended period of time K.S.’ youthfulness and immaturity would have been obvious to Hassan Jarrar as would her age, notwithstanding her physical development. The video and close circuit evidence reveals a fresh-faced young girl. Even two years later, when testifying at 16 years of age, she was undeniably naive, inexperienced, and unsophisticated.

[31] To summarize, I accept the evidence of K.S. that she told Hassan Jarrar that she was only 14 years old, and that she did so well before they met in person on the weekend of January 31, 2014. When viewed in combination with the rest of the evidence, I find that the Crown has met its burden. I am satisfied beyond a reasonable doubt that Hassan Jarrar knew that K.S. was only 14 years of age when he had contact with her. I am satisfied beyond a reasonable doubt that he did not have an honest but mistaken belief that she was 16 years of age and that when K.S. told him she was 14, he made no further inquiries to ascertain her actual age and thus failed to take any reasonable steps.

Count Three: Curfew

[32] I will now turn to count three, the breach of curfew.

[33] In order to find Mr. Jarrar guilty of this charge, I must be satisfied beyond a reasonable doubt that he was outside of his residence between 12am and 6am between January 31, 2014 and February 2, 2014.

[34] The Crown’s case is premised on the theory that Mr. Jarrar spent this entire weekend at the Queensway Motel with K.S. and not in his designated residence as set out in the recognizance.

[35] Defence counsel correctly points out that there is no direct evidence from the police witnesses as to where Mr. Jarrar was supposed to be living on the weekend of January 31, 2014, nor is there an address designated for Mr. Jarrar in the recognizance.

[36] Defence counsel submits that this absence of evidence regarding Mr. Jarrar’s designated residence amounts to a fatal flaw in the Crown’s case. Defence counsel argues that if I do not know where Mr. Jarrar was supposed to being living on the weekend of January 31, 2014, then I cannot conclude that he was outside of his residence when he was in attendance at the Queensway Motel. Defence counsel points out that there were no restrictions upon where Mr. Jarrar could reside, as long as he notified police in advance. Defence counsel says that I cannot ignore the possibility that Mr. Jarrar may have notified police that he was going to be living at the Queensway Motel on the weekend of January 31, 2014.

[37] Despite the lack of direct evidence on this point, there remains an extensive body of circumstantial evidence that suggests that the Queensway Motel was not Mr. Jarrar’s designated residence between January 31, 2014 and February 2, 2014.

[38] That evidence is as follows:

• Detective McGarry’s unchallenged evidence at the jury trial that Mr. Jarrar was living approximately 20 kilometers away from the Queensway Motel at the time of the offences in 2014.
• The Queensway Motel guest registration form filled out by Mr. Jarrar on January 31, 2014 indicating an address of 790 Eglinton Avenue West, Toronto.
• The closed circuit television footage of Mr. Jarrar arriving at the Queensway Motel on January 31, 2014 with his belongings, and leaving the motel on February 2, 2014 with his belongings.
• Mr. Jarrar’s text messages to K.S. indicating that he lived with his mother and her boyfriend (Exhibit 2B).
• On January 30, 2014, the day before they met in person, Mr. Jarrar sent a text message to K.S. stating that he was searching the internet for good hotel room rates (Exhibit 2B, page 37).
• On January 30, 2014, one day before they met in person, Mr. Jarrar sent a text message to K.S. stating that they could watch movies online because every hotel has free internet (Exhibit 2B, page 37).
• K.S.’ testimony that they were planning to stay at a hotel that weekend and not at Mr. Jarrar’s house.

[39] In my view, this evidence, when considered as a whole and in context with the rest of the evidence, provides overwhelming support for a finding that the Queensway Motel was not Mr. Jarrar’s designated residence between January 31, 2014 and February 2, 2014. Despite not knowing exactly where Mr. Jarrar was required to reside, I am satisfied beyond a reasonable doubt that it was not the Queensway Motel.

[40] Defence counsel argues that even if I find that the Queensway Motel was not Mr. Jarrar’s residence, there is no direct evidence to suggest that he was actually in the motel between the hours of 12am to 6am, thereby leaving open the possibility that Mr. Jarrar left the motel and went home between the hours of 12am to 6am.

[41] I disagree. And here is why.

[42] It is clear from the nature and content of the text messages Mr Jarrar sent to K.S. prior to the weekend, that it was not only his intention but his great desire to spend the entire weekend with her. Their activities over the course of the weekend, both inside and outside of the motel, are detailed in the closed circuit television footage and in the video footage of K.S. taken by Mr. Jarrar. I am also mindful that Mr. Jarrar recorded on the motel guest registration form that two people would be sharing the motel room that weekend. There is no dispute that K.S. was in attendance at the Queensway Motel between the hours of 12am to 6am during the course of the weekend and I am convinced that Hassan Jarrar was there with her. I find that the only logical inference based on the evidence before me is that Mr. Jarrar did exactly what he intended to; namely, spent the entire weekend in the company of K.S..

Conclusion

[43] After a thorough review of the applicable evidence, the law and the submissions of counsel, I am satisfied that the Crown has met its onus on both counts.

[44] Accordingly, Hassan Jarrar will be found guilty on count one and count three.

K.P. Wright, J. Released: September 21, 2016

ONTARIO SUPERIOR COURT OF JUSTICE HER MAJESTY THE QUEEN – and – HASSAN JARRAR REASONS FOR JUDGMENT K.P. Wright, J. Released: September 21, 2016