Court File and Parties

COURT FILE NO.: CR-20-10000476-0000 DATE: 20220407

ONTARIO SUPERIOR COURT OF JUSTICE

BETWEEN:

HER MAJESTY THE QUEEN – and – BABA OUEDRAOGO

Counsel: Brigid McCallum, for the Crown Kristin Bailey, for Baba Ouedraogo

HEARD: March 14, 15, 16, 17 and 22, 2022

R.F. GOLDSTEIN J.

1On November 2, 2019, Baba Ouedraogo met A.O. near the Eaton Centre in downtown Toronto. They had a sexual encounter. As a result, Mr. Ouedraogo was charged with:

• Sexual assault contrary to s. 271 of the Criminal Code;
• Sexual interference contrary to s. 151 of the Criminal Code;
• Choking to assist in the commission of a sexual assault contrary to s. 256 (a) of the Criminal Code.

2After the close of submissions I stated the following:

For reasons that will follow, I find Mr. Ouedraogo guilty of all three counts. Briefly, I do not believe Mr. Ouedraogo’s evidence and it does not leave me in a state of reasonable doubt. I specifically disbelieve him that he thought A.O. was 19 years old. I find he did not take reasonable steps to determine her age. I also do not believe his evidence that the sexual activity between them was initiated by A.O., that she consented, and that there was no violence.

I do find, based on the totality of the evidence, that Mr. Ouedraogo sexually assaulted A.O. in a stairwell at the Eaton Centre. I find that he did use his hands to choke her to enable or assist himself to commit that sexual assault. I also find that he knew that she was under 16 years old at the time.

There will be findings of guilt on all three counts.

3The following are my reasons.

Background

4On November 3, 2019, A.O. gave a videotaped statement to the police. Her statement was adopted and made into evidence at the trial: Criminal Code, s. 715.1.

5A.O. told the police that on November 2, 2019, the previous day, she took the subway to downtown Toronto. She went downtown looking to buy a drug called Xanax. Xanax is a kind of sedative but in Canada is used recreationally. A.O. lived in Scarborough. She was 15 years old. She did not go to school. She lived with her mother and brothers, but sometimes stayed with friends when her mother’s boyfriend came over. The day before she had slept at her friend’s and then gone to the Scarborough Town Centre. She met a friend and then took the subway to Yonge and Dundas. She went to the Pizza Pizza on Yonge at Elm Street looking to purchase Xanax. People at the Pizza Pizza pointed to a man who sold Xanax. That man took her to a stairwell at Centennial College (she later agreed that it was Ryerson University). It is common ground that the man was Mr. Ouedraogo, although A.O. cannot identify him.

6In cross-examination, A.O. said that she went to the Eaton Centre where she met a friend. She thought that the friend gave her a necklace and a watch. In fact, surveillance video shows that A.O. was with Mr. Ouedraogo at the Eaton Centre when she appeared to lose a necklace while getting on an escalator. A woman, presumably a stranger, appeared to give it back to her. At the preliminary inquiry A.O. had a somewhat different memory of who she met at the Pizza Pizza and what happened at the Eaton Centre.

7A.O. told police that Mr. Ouedraogo took her up an elevator and then into a stairwell at Ryerson. He then forced her to have oral sex. He then put her on the floor and raped her there. He choked her using both of his hands. While she was on the floor she urinated. She had bruising on her neck and a black eye. The black eye – it is her right eye – is clearly visible on the video. Mr. Ouedraogo did not use a condom. He offered to give her $500. She could not recall how she got the black eye when she was first asked about it; later she told the police that he might have scratched her. She said she took a Xanax before going downtown. She had obtained it at the Scarborough Town Centre. She took Xanax for anxiety. As a result, she could not really remember what happened. A.O. denied having any other drugs or alcohol.

8In describing the sexual assault in the stairwell, A.O. said:

I remem- he was like I peed and like he was just like on me and he wouldn’t stop and then he was just like choking and then he’s I’m just like can I clean myself up and then he’s like he’s like no no no and then yeah

9She told the officers that she remembered telling a security guard coming and telling him that Mr. Ouedraogo had raped her.

10A.O. also told the police that Mr. Ouedraogo had asked her how old she was. She told him she was 15.

11In her examination-in-chief before the court, A.O. said that she only went to a stairwell with Mr. Ouedraogo. She could not recall going anywhere else with him. She did not expect to have sex with him; she only expected to purchase Xanax from him. He told her that it was a more private place to give her the Xanax. She was unable to break down the order of events. She kept telling him she did not want to have sex, and he kept choking her. She said he threatened her and she was scared. She was wearing a lingerie top. He ripped it in the crotch area and then began to rape her. She believes she urinated because she was scared. He told her that he would give her $500 if she didn’t report him. When she left the stairwell her neck was sore and her eye was bruised. The nail of her right index finger was also ripped off. She was uninjured prior to meeting Mr. Ouedraogo.

12In cross-examination, A.O. testified that she went straight from the Pizza Pizza to the stairwell at Ryerson University. They went to an elevator. When they got out of the elevator they went to the stairwell where Mr. Ouedraogo sexually assaulted her. Afterwards, when they were sitting down, A.O. went to a security guard to tell him what happened. She was awake and sober the whole time. She did not recall telling the police she went to Scarborough Town Centre. She denied talking to a group of girls at the Pizza Pizza. She denied smoking marijuana there as well. She also denied telling Mr. Ouedraogo that she was 19. She denied drinking alcohol or having a bottle of Crown Royal in her bag. She had no memory of going to the LCBO or walking around the Eaton Centre with Mr. Ouedraogo. She also denied speaking to a security guard near the LCBO or of purchasing alcohol there. She disagreed that she went into a stairwell at the Eaton Centre to smoke a cigarette. She also disagreed that she and Mr. Ouedraogo had consensual sex that she initiated. She denied that he used a condom, that the condom broke, and that he offered to give her cash for a morning-after pill.

13In cross-examination it was suggested that after having consensual sex, A.O. and Mr. Ouedraogo left the Eaton Centre on the west side, walked up an alleyway between the Eaton Centre and other buildings towards Dundas Street. A.O. denied that.

14In her examination-in-chief, A.O. was shown surveillance video of herself walking in the Eaton Centre and in the Student Learning Centre (or SLC) of Ryerson University. She did not recall herself being in the Eaton Centre. Video showed her walking unsteadily through the lobby of the SLC. She testified that she was walking awkwardly in both the SLC and the alleyway because she had urinated when Mr. Ouedraogo raped her and her jeans were wet. She denied that she was walking awkwardly because she was intoxicated. The video shows her sitting and lying down in the SLC for about an hour, until security guards came. She did not recall that.

15A.O. denied that she had taken any other drugs or alcohol. She testified in cross-examination that she had a poor memory because the entire incident happened almost three years earlier.

16Gary Chow is a security guard at Ryerson. On the evening of November 2, 2019, he was called to the SLC. When he arrived at the SLC a student pointed out A.O. A.O. was sitting with a male who was trying to wake her up. He and his partner decided to do a “well-being” check. A.O.’s eyes were closed and she was swaying. He smelled alcohol. He could see she was passing out. She was going in and out of consciousness. Mr. Chow asked her if she needed medical attention but could not get an answer. She then told Mr. Chow that she was choked and raped in the stairwell by a male individual that she pointed out. She was slumped over the whole time. Mr. Chow concluded that she was intoxicated. Due to his experience working in the downtown core, he is very familiar with intoxicated people.

17I pause here to note that the Crown abandoned an application in respect of A.O.’s utterance to Mr. Chow that the male raped and choked her. The utterance is admissible as part of the narrative, but not admissible for the truth of its contents.

18Mr. Chow did not see any bruising or injuries to A.O.’s face. His duties include doing a quick scan for injuries. A.O. was wearing a coat. He did not see A.O.’s neck. Mr. Chow concluded that A.O. was probably 15 to 18 years old. He is very familiar with Ryerson students. The first-year students are around 17 to 18. He sees many young people in his work and checks many identifications. He believed she was either a minor or a first-year student.

19During the evening of November 2, 2019, Lance Campbell was the shift supervisor for Ryerson security. He was also trained in trauma response. He went to the SLC and encountered A.O. She was laying down and had some level of impairment and appeared intoxicated. He noticed an odour of alcohol, but he was also aware that could be a diabetic response. A.O. was crying and in distress. She pointed out that a male individual had sexually assaulted her (again, that utterance is not admissible for the truth of its contents). Mr. Campbell did not notice any injuries to A.O.’s face. He did not know her age. She was lucid but confused about where she was and where the assault had taken place. She mentioned a stairwell. Mr. Campbell had his staff check the stairwells but they found nothing.

20An ambulance took A.O. to hospital from the SLC late in the evening of November 2, 2019. The sexual assault team examined her and took bodily substances, including swabs of her vaginal area. A toxicology report revealed that A.O. had Etizolam, tetrahydrocannabinol (THC), and traces of benzoylecgonine in her bloodstream. Etizolam is the active ingredient in Xanax. As noted, it is a kind of sedative, like Valium. It is not available in Canada or the United States, even with a prescription. It is available (or was at the time) in three countries. THC is the active ingredient of marijuana. Benzoylecgonine is a byproduct of cocaine ingestion. The toxicology report also revealed that A.O. had these substances in her urine. The DNA report revealed that male DNA, likely from semen, was found in A.O.’s vagina. In the usual language of DNA reports, Mr. Ouedraogo could not be excluded as the source of the DNA. The odds of the DNA originating from a person other than Mr. Ouedraogo are estimated at greater than one trillion. It is an obvious inference that Mr. Ouedraogo had sex with A.O. – as he admitted in his evidence.

Issues

21The ultimate question in any criminal trial is whether, on the whole of the evidence, the trier of fact is left with a reasonable doubt about the guilt of the accused: R. v. Vuradin, 2013 SCC 38, [2013] 2 S.C.R. 639, at para. 21. A criminal trial is not a credibility contest. A trial judge does not simply decide which version of events to believe: R. v. Y.(C.L.), 2008 SCC 2, [2008] 1 S.C.R. 5, at para. 6. As the Court of Appeal stated in R. v. W.(J.), 2014 ONCA 322, 316 O.A.C. 395, at para. 27, in a criminal trial the credibility assessment is not an either/or process where the trial judge is “required to choose a version of the events in order to reach a verdict.”

22Where a person testifies on his or her own behalf, a judge or jury may evaluate the evidence by asking these questions:

• First, do I believe the evidence of the accused? If so, then I must find the accused not guilty.
• Second, even if I do not believe the accused, does his or her evidence leave me with a reasonable doubt? If so, then I must find the accused not guilty.
• Third, am I satisfied beyond a reasonable doubt on the basis of the evidence I do believe? If not, then I must find the accused not guilty.

23R. v. W.D., [1991] 1 S.C.R. 742.

24Of course, the W.D. formula is not a “magic incantation” but rather a way of analyzing the evidence consistent with the burden of proof resting on the Crown: R. v. Thomas, 2012 ONSC 6653 at paras. 22-24.

25Mr. Ouedraogo is charged with one count of sexual assault, one count of choking in the course of the sexual assault, and one count of sexual interference. I will approach the issues this way:

(a) Do I believe Mr. Ouedraogo or does his evidence leave me with a reasonable doubt that about his guilt on the charges of sexual assault and choking? (b) If not, am I satisfied beyond a reasonable doubt based on the evidence that I do accept that Mr. Ouedraogo is guilty of sexual assault and choking? (c) Is the defence of mistake of age available to Mr. Ouedraogo?

Analysis

(a) Do I believe Mr. Ouedraogo or does his evidence leave me with a reasonable doubt that about his guilt on the charges of sexual assault and choking?

26The defence position is that I should accept Mr. Ouedraogo’s evidence. He was forthright about his criminal activity. He was also forthright about his criminal record. He did not attempt to flee even when A.O. told Ryerson security that he had raped and choked her. His evidence is largely corroborated by the surveillance video, especially regarding the events at the SLC.

27With respect, I do not believe Mr. Ouedraogo and his evidence does not leave me with a reasonable doubt.

28Mr. Ouedraogo has a criminal record. He has convictions from 2021 for theft under $5000 and fail to comply for which he received suspended sentences. Mr. Ouedraogo has also been convicted of sexual assault with a weapon, robbery, wearing a disguise while committing an offence, and fail to comply with recognizance. He has not yet been sentenced on those offences.

29In November 2019 Mr. Ouedraogo was living in downtown Toronto. He supported himself by selling cannabis. During the afternoon of November 2, 2019, he met his friend Olivier at the Eaton Centre. They walked around the mall and smoked cigarettes. He was with Olivier when he met A.O. A.O. was with another young man who knew Olivier. The young man asked if they had Xanax. Olivier said “no”. A.O. and the young man then went towards the subway. He went back to his place for a few hours and returned to the area of Yonge and Dundas at around 7pm to 8 pm. He met his friend Olivier again at the Pizza Pizza at Yonge and Elm. A girl he knew named Selina came to smoke a cigarette with him. A.O. then asked him for a cigarette. A.O. was there. She came from inside the Pizza Pizza where she had been with Selina and her friends. He knew Selina to be 22 years old. He did not give A.O. a cigarette. He asked her for her age. A.O. said she was 19. He told her that she looked much younger, about 13 or 14. In cross-examination Mr. Ouedraogo said that he would not have given A.O. a cigarette if he thought she was under 19, as a matter of conscience. He also testified in cross-examination that she seemed to be much younger than 19. He agreed that he did say to A.O. “you’re lying” when she said she was 19. He also testified in cross-examination that he knew Selina was 22 years old. He knew nothing else about Selina, such as her birthday and her last name, although he knew she lived at Covenant House, a shelter for young people. He also knew other people that lived at Covenant House, such as Olivier’s girlfriend, who was 23.

30Mr. Ouedraogo testified that A.O. had a bottle of Captain Morgan rum with her. She was drinking from the bottle. He was drinking cold shots of beer. She asked him for a cold shot, and he gave one to her. A.O. also had sips from a bottle of Crown Royal that was being passed around among the people standing outside the Pizza Pizza. Olivier and another man were passing around joints, and A.O. smoked one of them. A.O. asked one of the young men outside the Pizza Pizza if he had Xanax to sell, but he did not. A.O. also asked Mr. Ouedraogo if he had Xanax. He told her he did not but that he had marijuana.

31At around 8 pm Mr. Ouedraogo decided to go to the LCBO to buy more beer. A.O. said she wanted to go with. They went to the LCBO at the Atrium on Bay. He purchased more beer and A.O. purchased a bottle of Johnnie Walker Red. He lost her and went back to the Pizza Pizza. He then went with Olivier back to the LCBO to look for her. She was with a security guard. She had the receipt and the bottle. She did not recognize him at first. The security guard told him to stop bothering her. Eventually she said “oh its you, I’ve been waiting for you” or words to that effect. She did not recognize him initially because he had his hood on.

32In cross-examination, Mr. Ouedraogo agreed that he told police he did not see A.O. buy the bottle at the LCBO as he was in the beer line. He further told the police that he initially thought that A.O. was with security because she had stolen the bottle and been caught. He testified that he saw not only the bottle but also the receipt. He agreed that a minor can obtain alcohol at the LCBO using a fake identification or having someone else purchase the alcohol for them. Although he testified that he saw a receipt, he did not tell the police that.

33Mr. Ouedraogo testified that he and A.O. went to the food court at the Eaton Centre. That is confirmed by the surveillance video. Olivier did not accompany them. A.O. wanted to smoke a cigarette. It was cold out so they went to a stairwell where they could smoke in private. They had to take the escalator up. There were two young men in the stairwell who were smoking a joint. Mr. Ouedraogo shared his beer with them, and A.O. had some as well. A.O. was very affectionate with him. The two young men then left.

34Although Mr. Ouedraogo had seen A.O. consume beer, Captain Morgan, Crown Royal, and marijuana, she was acting normal. He did not see any signs of impairment in the staircase, although earlier, when they went for food, he had to hold her as she stumbled a bit. In cross-examination, he admitted that even before going to the food court he had to take care of A.O. a bit. He had to hold her up in his arms at times, although he would not agree that it was a sign she was intoxicated. He also agreed in cross-examination that A.O. fell asleep while he went to the bathroom.

35There were two other young men in the stairwell when they arrived. After they left, A.O. started to undo his pants and performed oral sex on him. He did not ask her for sex. She said “I like you” and initiated. She then pulled down her pants and asked for him to perform oral sex on her. She asked if he had a condom. He did. He began to have sex with her from behind while she leaned against the wall. She asked him to stop as it was painful. She then lay on the floor on her back with him on top. They had sex on the floor. He ejaculated but the condom broke. She then asked if he had any STD’s. He said he did not. She then asked him for $40 or $50 to buy morning after pills. He decided to go to the Bitcoin machine at Ryerson to get money.

36Mr. Ouedraogo then testified that they drank more beer and walked to Ryerson. They went to the SLC where Mr. Ouedraogo was going to sell marijuana to a person he knew as the Moroccan. While they were there A.O. borrowed another person’s phone to check her Instagram account. Mr. Ouedraogo went outside with the Moroccan to sell him some marijuana. He was called back into the SLC by an Indian girl who knew A.O. and said that she was not okay. He left his backpack there and when he came back A.O. was trying to open a bottle from the backpack. Eventually Ryerson security and the paramedics and the police came.

37In cross-examination, Mr. Ouedraogo testified that he did not witness anyone attacking or striking A.O. in the SLC. There is nothing on the video that would suggest anyone attacked or struck her. As well, Mr. Ouedraogo agreed that on the video he went outside with his backpack.

38Mr. Ouedraogo testified that A.O. did not have any bruising and scratching prior to their sexual encounter. He also testified that he did not rip her lingerie top; A.O. moved it to the side and guided his penis into her vagina. He did not put his hands around her neck or strike her. He disagreed in cross-examination that there were signs A.O. was very intoxicated prior to their sexual encounter, other than her stumbling. He agreed that he did tell the police that he thought she was drunk after they were at the LCBO; he adopted that statement in his cross-examination. He did not notice that she peed during sex. In re-examination Mr. Ouedraogo agreed that he did tell the police that A.O. told him that she was 19, and that he believed her.

39I do not believe Mr. Ouedraogo because his evidence is strongly contradicted by the physical evidence. Mr. Ouedraogo claims he did not rip A.O.’s lingerie top, but the top was entered into evidence and it is clearly ripped. Based on the stills from the video surveillance, it was not ripped before the sexual encounter. A.O.’s bruising and the scratching are clearly visible in later photographs and the video. Mr. Ouedraogo testified that he did not cause the injuries, but they weren’t there before he encountered her. There is no evidence that the injuries were caused by the paramedics or hospital staff.

40In my view, A.O.’s injuries to her face and neck are obvious physical signs that undermine Mr. O’s assertion that A.O. initiated and acquiesced to sexual activity.

41I also do not believe Mr. Ouedraogo’s evidence that he saw a receipt for the purchase of alcohol at the LCBO. Mr. Ouedraogo did tell the police about seeing A.O. with a bottle of liquor, but he did not mention a receipt. A receipt is obviously an important piece of information. I infer that if he had seen a receipt he would have told the police about it.

42There is, of course, no burden on Mr. Ouedraogo and no requirement that he explain how the bruising and the scratching appeared on A.O. As well, I must emphasize that I take nothing from the fact that Mr. Ouedraogo was selling marijuana for a living or that he has a criminal record. The totality of the circumstances – especially the physical evidence – is sufficient to undermine his credibility. I also do not believe Mr. Ouedraogo’s evidence that he thought A.O. was 19. I will discuss that issue later in these reasons.

(b) Am I satisfied beyond a reasonable doubt based on the evidence that I do accept that Mr. Ouedraogo is guilty of sexual assault and choking?

43The defence position is that even if I do not believe Mr. Ouedraogo or accept his evidence, the Crown has failed to prove the case beyond a reasonable doubt. A.O. is neither credible nor reliable. She clearly lied about her alcohol and drug intake as well as about the state of her relationship with her mother and her living arrangements. The fact that she lies so readily means that I should have a real doubt that she actually told Mr. Ouedraogo she was only 15. She was clearly wearing clothing that suggested she might go clubbing or to a bar. (Ms. Bailey was properly careful to draw attention to A.O.’s clothing only to illustrate the point about her age, rather than to invoke an aspect of “twin myth” reasoning.)

44Moreover, A.O. has no proper memory of the events. The Crown cannot say how or when she received her injuries. When she is not sure of a point, she makes up a story. Overall, Ms. Bailey argues that I should not be persuaded beyond a reasonable doubt.

45Ms. Bailey certainly has a point about A.O.’s credibility and reliability. A.O. was not a consistent witness. There are significant problems in her testimony. She testified that she flagged down the Ryerson security guards and told them that Mr. Ouedraogo had assaulted her – although she did tell them she was assaulted, it is clear that they went to her because she was lying, unconscious, on a bench in the SLC.

46A.O. insisted that she was not intoxicated, had not had alcohol, or had not smoked marijuana. The toxicology report indicates that she had marijuana and other substances in her system. The toxicology report did not indicate alcohol, but as the expert explained, alcohol metabolizes more quickly than the other substances. In my view, the video of her walking awkwardly and then lying down at the SLC indicates that she very likely was quite intoxicated. It could be that she was walking awkwardly because she had urinated, but even if that were true I think the video also shows that she was having trouble walking due to intoxication. She had no memory of important events, such as being in the Eaton Centre with Mr. Ouedraogo. And it is clear, based on the video surveillance, that the sexual activity happened in a stairwell at the Eaton Centre rather than a stairwell at Ryerson University. A.O. told the paramedics that she had been drinking three shots. When she was first taken to the hospital she apparently told the SCAN nurse that she had taken Xanax but not alcohol. She told a triage nurse, however, that she had been drinking alcohol.

47Moreover, A.O.’s perception of the timing of the events – and several events themselves – is clearly incorrect, when compared to the different surveillance videos. There is no doubt that A.O. was in the Eaton Centre with Mr. Ouedraogo, although A.O. did not remember and could not identify Mr. Ouedraogo. At 8:38 and 8:39 pm surveillance video shows Mr. Ouedraogo and A.O. in the Eaton Centre. They go from the Dundas stairs into the food court. At 8:55 pm surveillance video shows them leaving the food court. Mr. Ouedraogo is carrying what appears to be fast food packaging. Just over an hour later, at 10:06 pm, surveillance video of the north-south alley beside the Eaton Centre shows A.O. and Mr. Ouedraogo walking northbound, towards Dundas Street. At approximately 10:13 pm A.O. and Mr. Ouedraogo enter the Ryerson SLC. And finally, at approximately 11:05 pm the Ryerson security guards enter the SLC to check on A.O. A.O. remembers almost none of this.

48A combination of drugs and age obviously affected A.O.’s memory: R. v. G.M.C., 2022 ONCA 2 at para. 38. It must be borne in mind, of course, that A.O. was a child of 15 when these events occurred and was 18 when she testified: R. v. B.(G.), [1990] 2 S.C.R. 30 at para. 48. While I have concerns about her credibility and reliability in many of the areas of her testimony, I accept her evidence on the most important points about the sexual assault: that she and Mr. Ouedraogo had sex; that she did not consent; and that he choked her in the course of that sexual assault. Despite the problems with her evidence, the key points are confirmed by physical evidence:

• Mr. Ouedraogo and A.O. clearly did have sexual intercourse. The DNA evidence makes that clear beyond any doubt, as does the agreed statement of facts.
• The videos show that Mr. Ouedraogo and A.O. left the food court at 8:55 pm. They walked through the alley at 10:05 pm. I conclude that Mr. Ouedraogo and A.O. had sex between 8:55 pm and 10:05 pm.
• There is bruising around A.O.’s neck.
• A.O. has a very obvious black eye.
• A.O.’s fingernail is ripped off.
• Blown-up still photographs of A.O.’s lingerie top prior to the sexual assault indicate that it was intact. A.O.’s lingerie top itself was entered into evidence. It is clearly ripped. The ripping is consistent with A.O.’s testimony and inconsistent with Mr. Ouedraogo’s testimony, again bearing in mind that a criminal trial is not a credibility contest and there is no burden on Mr. Ouedraogo.

49While A.O. was not able to definitively say that Mr. Ouedraogo caused the black eye, I find as a fact that he did. A.O. testified that Mr. Ouedraogo may have scratched her although she could not really say. She also testified that he was “pretty rough” with her. The Ryerson security guards did not notice bruising. The bruising to her face, however, is clear on the video. I have reviewed the detailed paramedic notes. The paramedics did not note any bruising to A.O.’s face or scratching around A.O.’s neck. There is no indication at all that the bruise was caused between the time the paramedics took A.O. to the hospital and the time A.O. gave the video statement. I think it is highly unlikely that the bruising was caused by the paramedics or the hospital staff. Indeed, I am quite certain the bruising was not caused by paramedics or hospital staff.

50Neither counsel made submissions about whether the paramedic or hospital notes were admissible for the truth of their contents. The admissibility of such notes pursuant to an exception to the hearsay rule has been uncontested for many years. I find that these notes are admissible for the truth of their contents, as the makers were clearly under a duty to make the notes in the usual and ordinary course of business: Ares v. Venner, [1970] S.C.R. 608 at para. 26.

51I think it is very obvious that Mr. Ouedraogo gave A.O. that black eye and the bruising to A.O’s neck. The same is true of the injury to A.O.’s hand. Her fingernail was ripped off. There is no indication at all that A.O. was injured prior to the encounter with Mr. Ouedraogo. Again, I am quite certain that the paramedics and the hospital staff did not injure her finger or bruise her neck. It is consistent with the violent assault described by A.O. I find that the injury to her hand was caused by Mr. Ouedraogo in the course of the sexual assault.

52The physical evidence is not fully capable of confirming A.O.’s evidence that she did not initiate sex and that she did not consent to sex. I accept her evidence on those points, however, based on the totality of the circumstances. Mr. Ouedraogo’s actions indicate planning and deliberation: he led the obviously intoxicated A.O. to a secluded stairwell where nobody was likely to be able to assist her. As he admitted, he already knew of that place. The ripped fingernail and the bruising to the face and neck are indicative of a violent struggle – they are not indicative of consensual sexual activity. The ripped lingerie top on its own could, I suppose, under some circumstances suggest a particularly ardent encounter between consenting individuals. In this case, however, when the ripped lingerie top is combined with the violence, intoxication, and seclusion it suggests something entirely different. It certainly does not suggest any form of consent. At the end of the day, the physical evidence and the injuries to A.O. corroborate her testimony that Mr. Ouedraogo was “pretty rough” with her. I am satisfied beyond a reasonable doubt that A.O. did not acquiesce to any sexual activity. I am also satisfied beyond a reasonable doubt that Mr. Ouedraogo choked her to assist in the commission of an offence.

(c) Is the defence of mistake of age available to Mr. Ouedraogo?

53Given that there was no consent to sexual activity by A.O., the defence of mistake of age cannot apply (it would not, in any event, apply to the choking count). It is not necessary for me to engage in the analysis of a defence of mistake of age, but for the sake of completeness I will do so. In my view, even if A.O. had acquiesced to or initiated sex – which I do not accept and specifically reject – Mr. Ouedraogo could not avail himself of this defence.

54Section 151.1(4) of the Criminal Code provides a defence of 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.

55Parliament imported an objective element into the fault analysis to enhance protections for young people: R. v. George, 2017 SCC 38 at para. 8. As Gascon J. for the Supreme Court of Canada stated at para. 9 of George, “Determining what raises a reasonable doubt in respect of the objective element is a highly contextual, fact-specific exercise.” Gascon J. listed some of the steps that could be taken:

• In some cases, it may be reasonable to ask a partner's age but it is not necessary that a reasonable person ask a partner's age in every case;
• It is incorrect 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”; and,
• The more reasonable an accused's perception of the complainant's age, the fewer steps reasonably required of them.

56In R. v. Carbone, 2016 ONCA 612, the Court of Appeal considered the practical steps that must be taken by a trial judge to determine whether the defence of mistake of age applies. Doherty J.A. set out the test this way at para. 129:

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 step 1 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 judge 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.

57Is there an air of reality to Mr. Ouedraogo’s claim that he believed A.O. was 19 years old? In other words, is there some evidence upon which a trier of fact could find that Mr. Ouedraogo believed that A.O. was 16 or older, taking his evidence at its highest? See: R. v. Cinous, 2002 SCC 29, [2002] 2 S.C.R. 3. Mr. Ouedraogo’s evidence at its highest is that A.O. did tell him that she was 19. A.O. was downtown to buy drugs, she was hanging out with people in their 20’s, and she was drinking and smoking marijuana. If a trier of fact believed Mr. Ouedraogo, there would be a basis upon which to proceed to the second step.

58Has the Crown 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? In my view, the answer is clearly yes. Mr. Ouedraogo himself was very skeptical that A.O. was 19. He initially thought she was 13 or 14.

59Some physically mature 13-year-old children can look older than their age. Some physically immature 19-year-old adults can look younger than their age. I have carefully examined the video where A.O. testified. I have also carefully examined the video. I also observed A.O. testify before me as an 18-year old and on the video as a 15 year old. Mr. Ouedraogo’s initial view was clearly right – she looked 13 or 14 to the casual observer. Even as an 18-year-old, A.O. looks younger. Nobody could have seen A.O. on November 2, 2019 and believed that she was 19 years old, and I find that Mr. Ouedraogo himself did not believe it. As well, Mr. Ouedraogo spent hours in her company. After observing her testify (in court as well as on video) I find that nothing in her demeanour would have suggested that she was 19 years old; she presents as much younger. I do not accept his evidence that he believed she was really 19 years old. Moreover, it appears that Mr. Ouedraogo took virtually no steps to determine if she really was older than 16. He asked her age – surely not something upon which he should have relied. He claims he saw a receipt, suggesting she had purchased alcohol at the LCBO but as I have found I do not believe him on that point. Even if he did see such a receipt, he well knew that young people often have fake identification. In my view, the Crown has negated the defence.

60I turn to the final step. Has the Crown has proved the accused believed (or was wilfully blind) that the complainant was underage, or was reckless as to her underage status? Mr. Ouedraogo was (at the least) probably aware that A.O. was underage, and certainly reckless. I find beyond a reasonable doubt that he was indeed reckless: R. v. Carbone at paras. 124, 127.

61In R. v. P.Q., 2020 ONSC 7262, my colleague Smith J. pointed out various “red flags” that should have alerted the accused that the complainant may have been underage. The concept of a red flag is a very useful analytical tool. A red flag is a common term for a warning. A red flag is something that must be investigated; ignoring a red flag may lead to problems, serious trouble, or disaster. A red flag in the context of the s. 151.1(4) analysis is something that an accused person must examine, take into account, and consider when deciding to engage in sexual activity. Red flags may include a person’s appearance; apparent level of maturity; living circumstances; or friend group.

62Mr. Ouedraogo ignored a major red flag and some minor red flags. The major and most obvious red flag was A.O.’s appearance. As I have mentioned, on the video she looked much younger than 19. Mr. Chow, the security guard, estimated her age at 15 to 18. A minor red flag was A.O.’s living circumstances. Mr. Ouedraogo knew she lived with her mother, and that she did not support herself. She sometimes lived with friends. Another red flag was A.O.’s demeanour, as I have mentioned, both on the video (at age 15) and when testifying in this court (at age 18). Based on these red flags, Mr. Ouedraogo was well aware of the risk that he was having sex with an underage girl and proceeded anyway. At the very least, he was indifferent. As Doherty J.A. stated in Carbone at para. 127:

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…

63That described Mr. Ouedraogo. Even if A.O. had consented to sexual activity, the defence of mistake of age does not apply.

Disposition

64Mr. Ouedraogo is found guilty on all three counts.

Released: April 7, 2022

COURT FILE NO.: CR-20-10000476-0000 DATE: 20220407

ONTARIO SUPERIOR COURT OF JUSTICE

BETWEEN:

HER MAJESTY THE QUEEN – and – BABA OUEDRAOGO

REASONS FOR JUDGMENT R.F. Goldstein J.