CITATION: R. v. Hussein, 2017 ONSC 2584

COURT FILE NO.: CR-16-40000537-0000

DATE: 20170426

ONTARIO

SUPERIOR COURT OF JUSTICE

BETWEEN:

HER MAJESTY THE QUEEN

– and –

SHARIFF OMARI HUSSEIN

G. Gaganiaras, counsel for the Crown

T. Rodocker, counsel for the Accused

HEARD: April 18-21, 2017

M.A. CODE J.

REASONS FOR JUDGMENT

A. OVERVIEW

1The accused Shariff Omari Hussein (hereinafter Hussein) is charged in a three count Indictment with sexual assault, sexual interference, and invitation to sexual touching, contrary to ss. 271, 151, and 152 of the Criminal Code. All three counts relate to events that took place on November 2, 2014. On that date, Hussein admittedly engaged in various sexual acts with N.M., including sexual intercourse. There is no dispute that N.M. was 13 years old at the time and was incapable of giving consent, as a matter of law, due to the effect of s. 150.1(1). There is also no dispute that Hussein was 27 years old at the time and so the age proximity defence in s. 150.1(2) has no application.

2The accused elected trial by judge alone and pleaded not guilty. The only issue at trial was whether Hussein honestly believed that N.M. was 16 or older and capable of giving a valid consent, and whether he took “all reasonable steps to ascertain the age of the complainant,” as required by s. 150.1(4).

3The trial commenced on April 18, 2017, some two and a half years after the relevant events. The Crown brought various pre-trial Applications, most of which were unopposed. In particular, the accused’s statements to the police were ruled voluntary, the complainant was allowed to testify out of court pursuant to s. 486.2, and the complainant’s contemporaneous videotaped statement to the police was admitted pursuant to s. 715.1.

4The trial proceeded over parts of four days. At the end of the trial, on April 21, 2017, I reserved judgment. These are my Reasons for Judgment.

B. FACTS

(i) Introduction

5It can be seen from the above overview of the case that the only dispute relates to the fault element of the three offences. There is no dispute as to the actus reus. There was admittedly sexual contact between Hussein and N.M. on November 2, 2014 and N.M. admittedly had no capacity to consent. Given this narrow focus to the factual and legal issues in the case, I will not review all of the evidence in detail.

(ii) N.M.’s account

6N.M. was born in […], 2000 and so she was 13 years old, although close to her 14th birthday, when the relevant events took place on November 2, 2014. She was 16 years old by the time she testified at trial in April 2017. Her videotaped statement to the police was taken on November 3, 2014, that is, the day after the relevant events. N.M. adopted that statement as the truth in her testimony at trial. She then added some further testimony, both in examination-in-chief and in cross-examination.

7N.M. lived at home in Toronto in a two-bedroom apartment with her mother, stepfather, and 3 year old brother. She had just started high school in September 2014 and was in Grade 9 at her local Catholic Secondary School. She met the accused in early September 2014, in the Wilson subway station, while she was on her way home from school. She was wearing her school uniform, which is a plaid kilt or skirt and a white top. She was on her own and Hussein started talking to her. They just made small talk but he told her that he was in Grade 12 before she left to go home.

8About a week later, still in September 2014, she saw Hussein again. It was a school day but she had gone home and got changed, and then went out to the Driftwood mall. It was about 6:00 pm. She was wearing a sun dress. She was driven to the mall by a woman in her 30s who N.M. referred to as her “guardian.” This woman had a small child. While her “guardian” was shopping inside one of the stores, N.M. was talking to four girlfriends who were also at the mall. Three of the girlfriends were age 12 and 13 and one was age 16. As she was leaving her girlfriends and returning to the store, with her guardian’s child, N.M. met Hussein. He was very nice to her and they started talking. She described their interaction as follows: “He just was being like easy to talk to, like a guy, like let’s say you’re a girl, you see a guy, he’s really nice, you like him a little bit so, we started talking.” He asked for her phone number and she gave it to him. He said his name was Omari. He asked her age and she said that she was 13. He asked her, “Can you handle a 19 year old?” She replied, “I thought you were in Grade 12.” He told her that he was 19.

9After this second meeting, Hussein started calling her. Sometimes she would call him. He asked her if they could “chill” together and she said, “Sure.” So they met on a Saturday at the Yorkdale Mall. It was still in September 2014. They had lunch together and then he took her to a movie in the afternoon. The movie was “No Good Deed.”

10Over the next month, they talked frequently on the telephone and they texted each other. N.M. thought that Hussein was her boyfriend. As she put it in her testimony, “Everyone had one” and so she wanted to have a boyfriend. She told some of her friends about the date at Yorkdale and that she now had a boyfriend. She did not tell her mother. However, N.M.’s mother found out about the relationship. As N.M. explained in her statement to the police, “She found out because when we were texting, we text sometimes, and I am always on the phone, and he always calls and I call sometimes, so she [her mother] kinda picked up on me … my mom talked to him over the phone and he lied to my mom, he said he is 15.” N.M. advised the police in her statement that Hussein’s phone number was 416-909-1662.

11During her testimony in-chief, N.M. provided further details about this telephone conversation between her mother and Hussein. She testified that her mother was on N.M.’s cell phone and saw Hussein’s contacts. She did not recognize him and so her mother called him. It was in either September or October. She had not told her mother anything about Hussein and when her mother saw his contacts, and asked who he was, N.M. then told her mother. She was not sure whether her mother saw anything more on her phone than Hussein’s contacts. N.M. was present when her mother phoned Hussein and she heard her mother tell Hussein that N.M. was only 13. She also heard Hussein speaking because her mother had the phone on the speaker function.

12N.M. and her mother had a conversation about Hussein, after this phone call. She told her mother only that “me and him are talking.” She did not tell her mother anything more. Her mother told her not to see Hussein. She continued to talk to Hussein afterwards, both by telephone and by text message, but she deleted their texts and call records. She did not want her mother to know that she was still calling Hussein. She did not see Hussein during October 2014 but they contacted each other over Facebook and Skype. He would call her and ask her “to skip school” but she never did. N.M. agreed in her testimony that she lied to her mother about this ongoing contact with Hussein.

13The fourth and last time that N.M. saw Hussein was on November 2, 2014. It was a Sunday and she was at home in the afternoon. Her stepfather had left for work at about 3:00 pm and her mother was at work and was not expected to come home until 6:30 or 7:00 pm. N.M. was babysitting her 3 year old brother. She thought that she had a few hours in which she could see Hussein before her mother arrived home. She and Hussein were calling each other on their phones. She agreed that she called him at least three times and that she wanted to see him. They had been talking for over a month and she thought of him as a close friend. She denied having to coax him or persuade him, as he wanted to come over. She agreed that she offered to help pay for his cab fare and she gave him money from a “piggy bank” for his cab fare, once he arrived at her apartment building around 4:30 or 5:00 pm. She explained in her police statement that, “I told him to come over to chill … his intentions weren’t to come chill, he wanted to have sex … He kept like saying [on the phone] nasty things, saying like he wants to F me and those kinda things.”

14N.M.’s stepfather had installed what she thought were two surveillance cameras in the apartment. He installed them during the summer while N.M. and her mother were away. N.M. covered the camera that faced the door to the apartment as she did not want Hussein’s image captured by the camera. She told Hussein about the camera and that she had “covered it,” after he entered the apartment. N.M. agreed that she did not tell the police in her video statement about covering the camera or about helping to pay Hussein’s taxi fare. Indeed, she told the police that the camera “was on” and that “you can see his face.”

15After Hussein entered the apartment, they went into N.M.’s bedroom and closed the door. She left her little brother alone in the living room. She agreed in her testimony that this was contrary to her mother’s instructions. She was in the bedroom alone with Hussein for about a half hour.

16It is unnecessary to describe the events in the bedroom in any great detail, as Hussein admitted in his testimony that he had sexual contact with N.M., including sexual intercourse. He also admitted that he brought a bottle of beer with him, as N.M. testified. Her account was that they were kissing and hugging on the bed. He then took off his pants, told her to stroke his penis, and she did. She took off her underwear but left her dress on. He touched her vagina. He took off his shirt and his boxer underwear and was now completely naked. She was somewhat unsure as to whether he inserted his penis or his finger in her vagina, as the room was dark and her eyes were closed, but she saw him put a condom on and he was lying on top of her and “I think he was humping me… I’ve never done it before … it hurt a lot because it was my first time.” Her vagina felt sore afterwards and the medical examination the next day, November 3, 2014, revealed a “deep hymenal notch with associated granulation tissue… diagnostic of trauma and/or sexual contact.”

17The events in the bedroom came to an end when N.M.’s mother returned home early. N.M. pushed Hussein off her. He left some of his clothing and the beer bottle behind in the bedroom. N.M. described her mother “like yelling who are you and all that kind of stuff and he was just trying to fight my Mom to go out the door.” He was eventually “able to escape.”

18N.M. described her personality as shy, but she agreed that she looks somewhat older than her age. Some people have said this to her. She was 5’8” or 5’9” tall at the time.

19It is an admitted fact that Hussein left his boxer underwear and white t-shirt behind in N.M.’s bedroom, when he left her apartment on November 2, 2014. The underwear was tested at the Centre of Forensic Sciences and it contained DNA that was consistent with Hussein’s DNA.

(iii) D.L.’ account

20N.M.’s mother, D.L., testified that she is 40 years old and was born in Grenada. She came to Canada in 1998. She works as a room attendant at a hotel. She has a daughter and a son and lives with them and with the father of her young son.

21Ms. D.L.’ daughter N.M. started high school in September 2014. She gave her daughter a cell phone when N.M. started high school, as she had promised. Her daughter usually left the cell phone locked with a password. However, one day in October, about two or three weeks before the November 2, 2014 incident, N.M. went to the bathroom and left her cell phone unlocked on the table in the living room. Her mother was curious and she picked up the phone and looked at the text messages on it. They were between her daughter and a person who she did not know and whose name she could not pronounce. She could tell that the person was male. The content of the text messages was not “age appropriate” in her view. She was reluctant to testify in any detail about the text messages but she agreed that they were about sex and “about showing body parts,” as she put it. They were not “good” and not “appropriate,” in her view.

22Ms. D.L. was surprised at what she had discovered on her daughter’s phone. She described N.M. as having been very quiet in primary school. N.M. is tall for her age, about 5’11”, and some people say that she looks old for her age because of her height. But her manner of carrying herself was not older than her age. Her mother described her as a “very shy kid.” She always had to tell her daughter things.

23When N.M. came out of the bathroom, her mother spoke to her about the text messages on her cell phone. Ms. D.L. told N.M. that she could have male friends, now that she was in high school, but that these text messages were “not good.” She warned her daughter about “what this can lead to,” that it was not a “road” she should be taking at the start of high school, and that she wanted N.M. to get a good education and have a career. She asked who this person was and N.M. said that he is 16 and he is going to the local public high school. N.M. and her mother talked for almost an hour.

24Ms. D.L. took the phone number of the person N.M. had been texting and, later that same evening, she phoned him. She is protective of her daughter and she was shocked by the texts. She felt that she had to call this person, for her daughter’s sake. N.M. was present with her mother throughout the phone call, sitting on the couch in their living room. Ms. D.L. identified herself in the phone call as “N.’s Mum” and she asked the person, “Are you in school?” The person told her that he was going to high school and that he was 16. Ms. D.L. told him about seeing the text messages on N.M.’s phone and about the fact that N.M. knows him. Ms. D.L. told the person that what they were talking about was “inappropriate.” He responded by saying, “Sorry ma’am.” She told him that she could not stop N.M. from having friends but that they could not be discussing “that stuff.” She told the person N.M.’s age, saying that N.M. was either 13 or 14. Ms. D.L. was unsure whether she told the person that N.M. was 13 or 14, and agreed that she likely told him that N.M. was 14 because she was about to turn 14 in December. Ms. D.L. wanted the person to know N.M.’s age because the content of the texts was “so inappropriate” and “not good,” in light of N.M.’s age. All that the person said in reply was, “Sorry ma’am.”

25The call was not long, lasting less than ten minutes. The person she called had an African accent and he was polite. Ms. D.L.’ tone of voice was firm, upset, and disappointed. The call was straightforward as she simply made her point that “my daughter is 14 and this text conversation is inappropriate.”

26Ms. D.L. spoke to her daughter after finishing the phone call. N.M. apologized to her. Ms. D.L. did not prevent her daughter from seeing this person, as she felt that she could not choose her daughter’s friends. But she did tell N.M. to stop this kind of inappropriate talk and to change her behaviour. She thought that N.M. had understood and had agreed and that they had resolved the matter. Ms. D.L. did not know how the relationship had started. She also did not know the person described by N.M. in her testimony as her “guardian,” who had apparently taken N.M. to the mall one day in September 2014.

27The normal routine in Ms. D.L.’ household at the time was that someone had to be at home to care for her 3 year old son. He is autistic and the boy’s father would be at home and would look after his son until he had to leave for work at around 3:00 pm. The boy’s father had also installed a monitor of some kind in their home in the summer, while Ms. D.L. was away in Grenada, but it was not a camera. N.M. would finish her high school classes at 2:40 pm and she had to be home by 3:00 or 3:30 pm, unless Ms. D.L. had a day off work. Ms. D.L. generally got home from work on school days at about 5:30 pm. When Ms. D.L. had a day off work, N.M. was allowed to stay late at school for activities or she would sometimes not come straight home. She took the bus directly along Wilson, from her local Catholic High School to their home. When N.M. was responsible for babysitting her young brother, she was allowed to briefly leave him unattended, for example, in order to go to the bathroom. But she could not leave him unattended for any extended period of time, such as ten minutes or more.

28November 2, 2014 was a Sunday and Ms. D.L. worked a later shift on weekends. She would normally be home by 6:30 pm but on this particular day she got a ride from a friend and arrived home early at 5:45 pm. She saw the door to N.M.’s bedroom closed and she saw her son watching television unattended. She knocked on her daughter’s door and asked why her son was unattended. N.M. replied that she was just getting her phone charger from the bedroom. N.M. came to the bedroom door wearing a black strapless dress that she sometimes wears around the house. She appeared nervous and they had a short conversation at the door. Ms. D.L. thought that something was wrong from the way that N.M. was acting. She stepped into the bedroom and saw a man “jamming himself into the closet” and trying to put his pants on. She was shocked by what she saw. She had difficulty describing certain details, in her testimony at trial, such as the man’s exact state of undress. She noticed an empty alcohol bottle of some kind in the room, a white t-shirt on the floor, and two condom packages on the floor. One of the condom packages had been opened.

29Ms. D.L. asked the man, “What are you doing in my apartment?” He made some reply. His voice sounded familiar to her but she had never seen him before. He put on his pants and shirt and came out of the bedroom. She continued to ask him, “What are you doing here” and she asked him, “Do you know how old my daughter is?” The man became upset and angry with N.M., about this age issue, and he replied, “She told me she is 18.” He was yelling at N.M., “You told me you were 18.” N.M. was just standing there and not responding. Ms. D.L. asked the man, “Are you the same guy I spoke to on the phone?” He replied, “Yes, ma’am.” He was polite and he had an African accent. Ms. D.L. said, “I told you she was 14.” He did not respond. She asked the man how old he was. She believed he replied that he was 18, although she was not entirely sure on this point. She thought that he was 20 or 21. Ms. D.L. testified that she believed the man in her apartment was the same person she had spoken to on the phone two or three weeks before, based on his voice, the familiar African accent, and his polite “yes Ma’am” responses. When she asked him if he was the person she had spoken to, he acknowledged that he was.

30Ms. D.L. was standing between the man and the door to her apartment. She told the man, “My daughter is underage and I have to call the police.” The age of consent in Grenada is 18 and she assumed that it was the same in Canada. She went to get her cell phone, in order to call the police, and when she returned to the front door of her apartment she saw the man running away down the hallway. She told N.M. that she was “very disappointed.” It was apparent to her that N.M. had not followed her advice, after she made the earlier phone call to the man.

(iv) Shariff Hussein’s account

31The accused Hussein testified that he was born September 17, 1987 and was 27 years old at the time of the relevant events on November 2, 2014. He was 29 years old at the time of his trial testimony. He has no criminal record. He was born in Ghana and came to Canada with his mother and two brothers in September 2004 when he would have been age 17. He enrolled in high school but he did not finish Grade 11 because he had to return to Ghana in 2005 when his grandfather died. He remained in Ghana for four years, settling a family dispute over his grandfather’s property.

32Hussein returned to Canada in 2009, when he would have been 21 or 22. He completed an upgrading course, received credit for Grade 12 equivalency, and attended a food service worker program at Centennial College in 2011 and 2012. Between 2010 and 2015 he worked at a number of factory jobs that he obtained through employment agencies, at a retirement home as both a server and cook, and as a floor cleaner. He was living at home in Mississauga with his mother, father, and three siblings for most of this period.

33During the relevant time period, between September and November 2014, he was no longer living at home. The family had sold their house in Mississauga and Hussein had moved in with a friend who had an apartment at Weston Road and Lawrence Avenue in Toronto. Hussein was working as a floor cleaner through an agency, generally at grocery stores at night between 8:30 pm and 5:30 am. He did not have a car and he would get rides to work with friends.

34Hussein gave a different account of how he met N.M. They never met at the Wilson subway station, they never went on a lunch and movie date to Yorkdale Mall, and they never talked about being boyfriend and girlfriend. He first met her in September 2014 at the Yorkgate Mall in the Jane and Finch area. He was shopping for groceries with friends from work in the upper level of the mall. N.M. was in the lower level of the mall in a clothing store. As Hussein came down the escalator, she waved at him and got his attention. They started talking and she asked to exchange phone numbers, which they did. She was dressed “shabby,” as he put it, which means in a sexually attractive way, wearing a skirt that was above her knees. The conversation did not last long. Hussein believed that N.M. was with an older woman, who was over age 25 and who had a young child. This woman was dressed “pretty shabby.” Their movements and manner of talking was also “shabby.” In all these circumstances, Hussein did not think N.M. was young. Hussein described himself as shy, partly due to a stutter that he has had since childhood. It was N.M. who approached him by waving at him and by then saying, “Hi.” Hussein agreed that they were strangers at this point when she waved at him.

35The second time that Hussein met N.M. was two or three weeks later. She called him and asked where he was and what he was doing. It was about 2:00 or 3:00 pm on a weekday. He was at a friend’s townhouse on Driftwood Avenue, not far from the Yorkgate Mall. He was getting ready for work. She asked when he was going to work and he told her at 8:00 pm. She asked to come by and he said, “Sure.” She arrived by bus, about an hour to an hour and a half after her phone call. They visited together at the townhouse for two or three hours on this occasion. Two friends of Hussein, named Andrew and Francis, were present. It was Andrew’s home. They were watching sports on television and N.M. was not interested in this activity. She asked Hussein if they could go upstairs to talk. He took her upstairs where they visited with each other for “over two hours,” having what Hussein described as “basically a sexual conversation.” Neither counsel asked Hussein for any details about this two hour visit. At the end, she left on her own and the three young men went to work. Andrew drove them.

36The third time that Hussein met N.M. was similar to their second meeting. It was a week or less after the previous meeting and it was on a weekday. He was, once again, at his friend Andrew’s home on Driftwood Avenue and was getting ready for work. Once again, she called him and initiated the idea of getting together. N.M. arrived and she and Hussein spent a similar amount of time together as on the previous occasion. At the end of their visit, N.M. left and Andrew drove Hussein to work. Neither counsel asked Hussein what happened during this visit.

37The fourth time that Hussein met N.M. was somewhat different as he was at home at the Weston Road apartment that he shared with a friend. It was around 5:00 pm on a Friday when N.M. called Hussein. She called him on her way home from the gym and she arrived at his apartment on the bus about an hour later. This was the only time that she came to Hussein’s apartment. They were together at his apartment for an hour or two. No one else was present. Neither counsel asked Hussein what happened during this visit.

38Hussein’s fifth and last meeting with N.M. was on November 2, 2014, when he came to her mother’s apartment. Once again, she called him and took the initiative in inviting him over. He declined her invitation, stating that it was “not appropriate as she lived with her family.” He took the view that they were not dating, they were not in a relationship, they simply communicated by phone, saw each other and had a sexual relationship. She would call him and suggest that they have sex together, but it was not in the context of a relationship. In these circumstances, she was not his girlfriend and he felt that it was inappropriate for him to go to her family’s home. He had been brought up to only go and visit a girl’s family home if she was his girlfriend. He, therefore, felt a moral obligation not to attend at her home.

39When Hussein declined N.M.’s invitation to visit at her home, she was persistent. She told him that she would pay his cab fare and she told him that they could go to the public washroom downstairs at her apartment building, in order to have sex. This did not seem right to Hussein either and it did not resolve his moral objection to attending at her home. But she was persistent and would not stop calling his phone. He estimated that she called ten or twenty times in a five or ten minute period. He eventually gave in and took a taxi to N.M.’s home. He explained that he simply was not thinking. He also explained that he assumed they would have sex in the public washroom and would not go to her apartment. He insisted, in cross-examination, that he was not interested in seeing N.M. and that she forced him to come over to her building.

40When Hussein arrived at N.M.’s building, he had money of his own to pay for the taxi. But she was waiting in the lobby and she came out to pay for the taxi. He let her pay because he did not want to be there and had only given in to her persistence. She had told him that “she was working” as a babysitter and so he assumed that she had money from work. She had told him that she lived with her parents but she never told him that she was in school and he never asked her about school. He had told her that he worked as a cleaner. He never told her that he was in school or that he was in Grade 12 or that he was age 16 or 19. He told her his true age, that he was 27 years old and was born in Ghana. He never lied about his age. She told him that she was 18 years old and he believed her, based on the way she talked and moved. She was comfortable and confident and was not shy. She also looked and dressed like she was 18. He had only seen her with another adult woman, when they first met at the Yorkgate Mall. She was not with young girlfriends when they met and she was never in her school uniform. He denied that her face was the face of a child.

41Hussein believed that they would go into the public washroom, upon his arrival at N.M.’s building. She went to the public washroom, while he waited outside the building. Upon her return, she told him that the door to the public washroom was locked. She said, “Let’s go upstairs.” She told him that there were cameras in her apartment but she said she would cover them. He replied that he would come with her but only “if you cover the cameras.” They took the elevator up to her apartment and he waited while she covered the cameras. He was still not comfortable with “the whole apartment thing,” as he put it. He was not comfortable going to her apartment “at all” and the presence of cameras made him doubly uncomfortable.

42Upon entering the apartment, Hussein saw a small child watching television. He did not know that it was N.M.’s little brother. He had brought a large bottle of beer with him that he had been drinking at home when she first called. They went into N.M.’s bedroom and had “sexual relations,” including intercourse. He was with her in the bedroom for about a half hour. He did not bring condoms. N.M. got condoms from her mother’s bedroom. N.M. was completely naked and Hussein had taken off his sweater and his white t-shirt and was naked on top. He had also taken off his jeans. They were lying on the bed. N.M. told him that her mother had gone out, and would be back at 6:45 or 7:00 pm, and that her stepfather was at work.

43They heard N.M.’s mother arrive home. She called out to N.M., who then pulled on her dress and left the bedroom in order to speak to her mother. Hussein quickly pulled on his jeans, leaving his t-shirt behind. He was very tense and unsure what he was doing. N.M.’s mother came into the bedroom, saw him, and asked, “What are you doing?” He did not answer her. She kept repeating the same question. She also asked him whether he knew that her daughter was 13 or 14. Hussein was confused by this and turned to N.M. He asked, “Why didn’t you tell me?” They were now standing at the front door to the apartment. N.M.’s mother had her hand on the door handle, blocking Hussein’s access to the door. Hussein was angry and scared because he did not know N.M.’s age. He asked her, “Why did you lie to me, why didn’t you tell me your age?” She did not reply.

44Hussein did not dispute that N.M.’s mother asked him if he was the person who she had previously spoken to on the phone. He acknowledged in his testimony, both in-chief and in cross-examination, that she may have said this as they stood in the entrance hall of the apartment. He simply did not hear her as he was not focused or in his right state of mind, and he did not reply. He was tense and was talking to N.M., he was also angry with N.M., and he simply wanted to get out of the apartment. When her mother went to get the phone in order to call the police, Hussein opened the door and ran as he was scared.

45Hussein insisted in his testimony that there had never been a prior phone call to him from N.M.’s mother, in which she told him that her daughter was only 14. He was completely unaware that N.M.’s mother disapproved of or knew of his communications with her daughter. Hussein believed that 18 was the age of consent and he knew that it was a crime to have sex with a girl who is age 13 or 14. He had been in dating relationships with women his own age, or older, and the thought now of having had sex with a 13 or 14 year old girl upset him.

46Hussein agreed that he frequently communicated with N.M. by telephone, either through text messages or phone calls. They mainly communicated in phone calls and it was mostly during the day. They also communicated on Facebook and by Skype and they used certain smart phone apps with video links. Each of them had the other person’s phone number, although he did not save her name and number in his own list of contacts. She called frequently and he knew her number. This communication between the two of them went on for two months. Sometimes he would ignore her calls and he told her a couple of times that he was not interested. However, she was persistent and so he continued to see her and talk to her. He agreed that he found her to be attractive.

47Hussein agreed that his second, third, and fourth meetings with N.M. were lengthy, lasting for a few hours. Although he spent a lot of time with her, and although their calls were mainly during the day, she never told him about being in school and he did not think or ask about what she was doing. They talked about family and work but not about what she did, other than babysitting. He did not ask her about school. He simply assumed that she worked. He did not ask her if she had a driver’s license or if she drove. He agreed that her age was “on his radar,” and he asked her age. However, he asks every girl her age. He did not ask her age due to any concern that she was underage.

C. ANALYSIS

48As explained above, there is no dispute in this case that Hussein committed the actus reus of the three offences charged when he engaged in various sexual acts with N.M. at a time when she was age 13 and incapable in law of giving a valid consent. The only issue is the fault element or mens rea of these offences, namely, Hussein’s allegedly mistaken belief concerning N.M.’s age. That element has evolved substantially in the recent past.

49The offence of sexual intercourse with a minor has always existed, both in Canada and in England, as a separate offence from other more general offences of sexual aggression against women (such as indecent assault and rape). For example, s. 138 of the 1955 Criminal Code of Canada made it an offence for a “male person” to have “sexual intercourse with a female person who is not his wife, and is under the age of 14 years.” In England, s. 5 of the Sexual Offences Act 1956 made it an offence “for a man to have unlawful sexual intercourse with a girl under the age of thirteen.” These offences carried the same maximum sentence as rape, namely, life imprisonment. They also enacted a form of absolute liability because it was no defence that the accused honestly or reasonably believed that the girl was 14 or older (in Canada) or 13 or older (in England). In that regard, the Canadian legislation expressly stated that the offence was committed “whether or not he believes that she is fourteen years of age or more.” In England, the well-known case of R. v. Prince (1875), L.R. 2 C.C.R. 154 held that “a belief that the girl is over thirteen, no matter how reasonable it may be, will not afford a defence to a charge under s. 5.” See: J.C. Martin Q.C., The Criminal Code of Canada (Cartwright & Sons Ltd. 1955), at pp. 234-5; Smith and Hogan, Criminal Law 3rd Ed. (Butterworths, 1973), at pp. 332-3; Mewett and Manning, Criminal Law (Butterworths 1978), at pp. 420-1.

50The common law had been inconsistent but it was eventually clarified that an honest belief in a set of facts which, if true, would negate the actus reus, was a complete defence to any offence that required proof of subjective mens rea. The reasonableness of the accused’s belief was simply relevant evidence as to the honesty of the belief. See: D.P.P. v. Morgan, [1975] 2 All E.R. 347 (H.L.); R. v. Beaver (1957), 1957 CanLII 14 (SCC), 118 C.C.C. 129 (S.C.C.); R. v. Pappajohn (1980), 1980 CanLII 13 (SCC), 52 C.C.C. (2d) 481 (S.C.C.); R. v. Seaboyer (1992), 1991 CanLII 76 (SCC), 66 C.C.C. (3d) 321 at 393 (S.C.C.).

51One further development was the impact of the Charter of Rights on the fault element for certain sexual offences. In R. v. Nguyen, R. v. Hess (1990), 1990 CanLII 89 (SCC), 59 C.C.C. (3d) 161 (S.C.C.), the Court held that the absolute liability aspect of the offence of sexual intercourse with a girl under age 14 violated s. 7 of the Charter and was not saved by s. 1. The remedy was to declare the statutory words — “whether or not he believes that she is 14 years of age or more” — of no force and effect.

52Parliament responded to these common law and Charter developments with various legislative amendments that qualify the “defence” of honest but mistaken belief in the context of sexual offences. In 1987, the offence of sexual intercourse with a female under the age of 14, which was s. 146(1) of the Criminal Code at the time, was repealed. It was replaced by the modern offences of sexual interference and invitation to sexual touching in ss. 151 and 152, which are both charged in the present case. Most importantly, s. 150.1(4) was enacted allowing for a “defence” of mistake of fact as to the complainant’s age, provided the accused “took all reasonable steps to ascertain the age of the complainant.” Similarly, in 1992 Parliament enacted s. 273.2 providing that honest belief in consent was a defence to the modern offence of sexual assault, provided the accused took “reasonable steps, in the circumstances known to the accused at the time, to ascertain that the complainant was consenting.” Finally, in 2008 Parliament amended s. 150.1(1) by raising the age of consent from 14 to 16 years. To date, these provisions have survived constitutional attack and have been held to blend both subjective and objective fault requirements. See: R. v. Nguyen, R. v. Hess, supra; R. v. Darrach (1998) 1998 CanLII 1648 (ON CA), 122 C.C.C. (3d) 225 at 252 (Ont. C.A.), aff’d (2000), 2000 SCC 46, 148 C.C.C. (3d) 97 (S.C.C.); Kent Roach, Criminal Law 4th Ed. (Irwin Law 2009), at pp. 184-191 and 390-6; Don Stuart, Canadian Criminal Law 6th Ed. (Carswell 2011), at pp. 299-341.

53Modern case law has held that the statutory “reasonable steps” or “all reasonable steps” requirements, introduced by Parliament in provisions like ss. 150.1(4) and 273.2, involve a form of due diligence defence. The accused must take “real steps … to ascertain the age of the person” and those steps must be reasonable in the context of the circumstances known to the accused at the time. Cronk J.A.’s reasons on behalf of the Court in R. v. Dragos (2012), 2012 ONCA 538, 291 C.C.C. (3d) 350 at paras. 31-41 (Ont. C.A.) set out a comprehensive analysis of this issue, as follows:

In various parts of his reasons, the trial judge referred to the steps that a reasonable person would have taken in the circumstances to ascertain E.B.'s age, in contrast to the appellant's conduct. This approach did not reflect legal error.

Relying on this court's decision in R. v. Thain, 2009 ONCA 223, [2009] O.J. No. 1022, the trial judge held, at para. 43, that the "reasonableness of the steps taken to ascertain the age of the person must be assessed in context". He further held, at paras. 46 and 47, that whether "reasonable steps" or "all reasonable steps" were taken must be assessed on an objective, reasonable person basis. These observations accord with the controlling legal principles. What constitutes "reasonable steps" in a given case is a fact-specific inquiry that turns on the circumstances of the case.

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

In my view, s. 172.1(4) requires an accused who claims mistake of age to have exercised a degree of care in ascertaining a complainant's age that a reasonable person in the circumstances would have exercised. I say this for the following reasons.

I note, first, that in Levigne, the Supreme Court upheld convictions for child internet luring, holding that the defence of mistake of age is not available when an accused has failed to take "the reasonable steps he was required by law to take": see paras. 36-38 (emphasis in original).

Second, the plain language of s. 172.1(4) focuses on whether an accused "took reasonable steps" to ascertain the age of the complainant, not whether there was an objective basis for the accused's honest belief in the complainant's age. As Levigne confirms, at para. 41, s. 172.1(4) requires both that real steps be taken to ascertain the age of the person with whom an accused is communicating and that those steps be "reasonable" in the circumstances.

Third, the statutory purpose of s. 172.1, the internet luring provision of the Code, weighs in favour of a construction of "reasonable steps" that protects children by requiring an accused to take more, rather than fewer, precautions in ascertaining a complainant's age.

Fourth, the "reasonable steps" language of s. 172.1(4) may be analogized to the requirement under s. 273.2(b) of the Code that an accused "take reasonable steps, in the circumstances known to the accused at the time, to ascertain that the complainant was consenting" in order to make out a defence of an honest but mistaken belief in consent against a charge of sexual assault. See R. v. A. (J.), 2011 SCC 28, [2011] 2 S.C.R. 440 (S.C.C.). This court has held that this provision "requires the accused to act as a reasonable person would in the circumstances by taking reasonable steps to ascertain whether the complainant was consenting": R. v. Cornejo (2003), 2003 CanLII 26893 (ON CA), 68 O.R. (3d) 117 (Ont. C.A.), at para. 22, leave to appeal to S.C.C. refused, [2004] S.C.C.A. No. 32 (S.C.C.).

The similarity in language between ss. 172.1(4) and 273.2(b) of the Code lends further support to the conclusion that a due diligence formulation of the "reasonable steps" requirement is appropriate in the s. 172.1(4) context, as it is under s. 273.2(b).

Finally, contrary to the appellant's submission, I see nothing in this court's decision in Thain that is inconsistent with the application of a due diligence approach to the "reasonable steps" requirement of s. 172.1(4). As the trial judge noted, Thain holds, at para. 37, that "the reasonableness of the steps taken to ascertain the age of the person must be assessed in context". The contextual analysis mandated by Thain in no way conflicts with an assessment of the steps a reasonable person would take in the circumstances to ascertain the age of a complainant.

Also see: R. v. Duran, 2013 ONCA 343 at paras. 51-5; R. v. Mastel (2011), 2011 SKCA 16, 268 C.C.C. (3d) 224 (Sask. C.A.); R. v. Osborne (1992), 1992 CanLII 7117 (NL CA), 17 C.R. (4th) 350 (Nfld. C.A.).

54It is relatively easy to apply the Dragos and Duran contextual approach to the “reasonable steps” requirement in this case. That is because of the body of evidence concerning Ms. D.L.’ prior phone call to a person who was apparently having inappropriate communications with her daughter. The defence concedes that, if this phone call was made to the accused Hussein, then the Crown has proved that he failed to take “reasonable steps” or “all reasonable steps” to ascertain N.M.’s age. I agree with this concession. In R. v. Dragos, supra at paras. 56 and 67, Cronk J.A. stressed that “where the accused was explicitly warned that he was associating with an underage girl,” this warning “cried out for further steps by the Appellant to ascertain [the complainant’s] true age.”

55Hussein testified and denied ever receiving the phone call from Ms. D.L.. Defence counsel acknowledged that Ms. D.L. was a credible witness and did not challenge the fact that she called someone and warned that person that her daughter was 14 years old. The defence position is simply that the Crown has not proved that the person Ms. D.L. called was, in fact, the accused Hussein. The defence is critical of the failure to preserve a screen shot or a call record, showing the actual phone number that Ms. D.L. called, and the defence points to Ms. D.L.’ inability to recall the phone number that she called two and half years ago. The defence also submits that the direct and circumstantial evidence tending to infer that Hussein was the person called is insufficient. Finally, the defence submits that if Hussein’s denial is believed, or if it raises a reasonable doubt in the context of all the other evidence, then I must acquit. See: R. v. W.(D.) (1991), 1991 CanLII 93 (SCC), 63 C.C.C. (3d) 397 (S.C.C.).

56In my view, the evidence is overwhelming that Ms. D.L. called Hussein sometime in October 2014 and told him that N.M. was 14 years old and that their text message communications were inappropriate. First of all, as the defence concedes, Ms. D.L. was a credible witness. She impressed me as a particularly thoughtful, principled, and cautious person who was careful to testify only to what she was sure of. Whenever she had any uncertainty on a particular point, she would acknowledge it and would qualify her evidence. She was also impressive because she was objective and unbiased. She was disappointed in her daughter’s behaviour and she was realistic in her assessment of her daughter. In this regard, she provided the defence with helpful evidence concerning Hussein’s assertion in the apartment, to the effect that, “She told me she is 18.” Furthermore, Ms. D.L. testified that N.M. stood mute in the face of this accusation and did not respond to Hussein’s allegation that she had lied to him. In other words, Ms. D.L. was credible because she was willing to be helpful to the defence on the central issue in the case. She was not a biased witness who had any agenda to help the prosecution or to defend her daughter.

57In these circumstances, I accept Ms. D.L.’ direct evidence to the effect that she recognized Hussein’s voice because of his African accent and his polite “yes ma’am” responses when she spoke to him on November 2nd. She gave this evidence without hesitation and with conviction and explained that he sounded familiar to her from the prior phone call. These voice and manner of speech characteristics, standing alone, would not provide a reliable basis for identifying Hussein as the person called, and Ms. D.L. essentially acknowledged this in cross-examination. However, she stressed that after recognizing his familiar voice, she went on to directly ask Hussein whether he was the man she had called and he replied by acknowledging that he was. I accept Ms. D.L.’ direct evidence that Hussein responded positively to her question. As noted previously, she was always careful to qualify her evidence, when she was uncertain. Her evidence on this point was sure and she firmly repeated it under cross-examination. Furthermore, Hussein does not dispute that Ms. D.L. asked him this question. Had he simply failed to respond, as he now asserts, I am sure that Ms. D.L. would have frankly and fairly acknowledged his silence in response to her question.

58In any event, the identification of Hussein as the person called by Ms. D.L. does not rest on her direct evidence alone. There is a strong body of corroborating evidence. N.M. testified that she saw her mother find Hussein’s contacts in her cell phone, was present when her mother placed the phone call, and heard Hussein’s voice over the speaker phone. There are undoubtedly concerns about N.M.’s credibility in relation to certain issues but, on this point, her mother Ms. D.L. confirmed that they discussed the person whose contacts and text messages were in the cell phone, that N.M. was present for the phone call, and that they discussed the matter again after the phone call. Counsel never asked Ms. D.L. whether the phone was on the speaker function, at the time of the call. More importantly, both Ms. D.L. and N.M. confirmed that they discussed the ongoing relationship with Hussein after the phone call and reached some kind of resolution concerning N.M.’s friendship with Hussein. This was a serious issue between them and they were apparently both satisfied that Ms. D.L. had been speaking to the right person. In all these circumstances, I accept N.M.’s evidence that she saw her mother find Hussein’s contacts and she heard her mother and Hussein talking on the phone call.

59Furthermore, the circumstantial evidence overwhelmingly leads to the inference that the phone call that Ms. D.L. placed was to Hussein. There is no dispute that Hussein and N.M. had been communicating over their cell phones at this precise time in October 2014, including by text message, and that the communications were frequent. There is evidence that they had a lengthy “sexual conversation” the second time that they met, according to Hussein. N.M. also testified that there was sexual talk over the telephone on an occasion when Hussein called her. Furthermore, there is no suggestion that N.M. was having sexual communications with anyone else at the time. There is also no suggestion that someone else was using or possessing Hussein’s phone at the time and mistakenly spoke to Ms. D.L.. Finally, it is admitted that Hussein was born and raised in Africa, that he has an African accent, that N.M. had his phone number stored in her cell phone, that Ms. D.L. phoned the person who she thought was sending and receiving the inappropriate sexual text messages found in her daughter’s phone, and that the person she called did not suggest that she had called the wrong number. In all these circumstances, the defence position that she may have mistakenly called some unknown person other than Hussein is simply speculation.

60For all the above reasons, I am satisfied that Ms. D.L. called Hussein and told him that N.M. was 14 years old, and I completely reject Hussein’s denial on this central issue. See: R. v. D. (J.J.R.) (2006), 2006 CanLII 40088 (ON CA), 215 C.C.C. (3d) 252 at para. 53 (Ont. C.A.); R. v. M. (R. E.) (2008), 2008 SCC 51, 235 C.C.C. (3d) 290 at para. 66 (S.C.C.); R. v. Beteta-Amaya, 2011 ONSC 6633 at paras. 50-54.

61In addition to being contradicted by Ms. D.L., N.M., and the circumstantial evidence relating to this central issue of the prior phone call, I should note that there were a number of internal improbabilities and inherent weaknesses in Hussein’s own account of the relevant events. His assertion that he and N.M. spent hours together and called each other frequently during the day, and yet she never mentioned school and he never asked her about school, is inherently improbable. His assertion that she wanted to have sex with him, but not in the context of a relationship, is inherently improbable. His assertion that she carried herself in a way that was confident and comfortable, that her face was not the face of a child, and that she was not shy, is contradicted by Ms. D.L.’ evidence and by N.M.’s appearance and manner of expressing herself in the video statement, which was consistent with a 13 year old. His assertion that N.M. forced him unwillingly to come over to her apartment in the belief that they would have some kind of furtive sex in a public washroom in the apartment building is inherently improbable and is inconsistent with the fact that he arranged to get a taxi, he brought a large bottle of beer with him, and he went up to her apartment.

62For all the above reasons, Hussein’s account is neither accepted nor does it raise a reasonable doubt. It may well be that N.M. told him that she was 18 at some point. Ms. D.L.’ evidence is helpful to Hussein, in this regard, and there are certain difficulties with N.M.’s credibility on some points, as noted above. However, I am satisfied that Ms. D.L. firmly and forcefully told Hussein in the prior phone call that N.M. was only 14. Furthermore, N.M.’s face and her manner of expression in the police video statement are consistent with a 13 or 14 year old girl. In my view, the evidence establishes that N.M. was a young unsophisticated girl who wanted a boyfriend and that Hussein was much older than her. He knew that she lived with her parents and he must have known that she was in school. She did not look, act or speak like she was 18 and he must have been suspicious as to whether she was telling him the truth about her age. In all these circumstances, any reasonable person would have made careful inquiries about her age after receiving Ms. D.L.’ warning in the prior phone call. I do not understand the defence to suggest that Hussein made any reasonable inquiries as to N.M.’s age, after the phone call from Ms. D.L..

D. CONCLUSION

63In the result, the fault element of the three offences charged has been proved by the Crown beyond reasonable doubt. I am satisfied that the accused Hussein did not take “all reasonable steps to ascertain the age of the complainant,” as required by s. 150.1(4). Accordingly, his only “defence,” concerning mistake of fact as to the complainant’s age, has been rebutted by the Crown.

64In the result, there is a finding of guilt on all three counts. I will hear submissions at the time of sentencing in relation to the rule against multiple convictions.

M.A. Code J.