COURT OF APPEAL FOR ONTARIO

CITATION: R. v. Duran, 2013 ONCA 343

DATE: 20130527

DOCKET: C54468

Laskin, Juriansz and Tulloch JJ.A.

BETWEEN

Her Majesty the Queen

Respondent

and

Ricky Duran

Appellant

Michael W. Lacy and Anida Chiodo, for the appellant

Amy Alyea, for the respondent

Heard: November 2, 2012

On appeal from the conviction entered on February 8, 2011 and the sentence imposed on May 17, 2011 by Justice Janet M. Wilson of the Superior Court of Justice, sitting with a jury.

Laskin J.A.:

[1] After a jury trial, the appellant Ricky Duran was convicted of sexual interference and sexual assault.[^1] He was sentenced to one year in custody, followed by three years’ probation. He appeals his convictions. The overriding question on his appeal is whether he received a fair trial. I have concluded that he did not receive a fair trial and would, therefore, set aside the convictions and order a new trial.

A. overview

[2] The incident that gave rise to the charges against the appellant occurred on August 4, 2008. The complainant and the appellant had met at least once before.

[3] On August 4, the complainant walked past the appellant’s apartment, where he was sitting on the porch with some friends. They struck up a conversation. The appellant invited her into the house. They sat in the backyard, drank beer and talked for a while. Eventually, they went into the bedroom and had sex, including sexual intercourse. At the time of the incident, the appellant was 27 years old; the complainant was 15 years and 4 months old.

[4] There were two main issues at trial: the first issue was whether the appellant honestly believed that the complainant was over 16 and had taken “all reasonable steps” to ascertain her age. By convicting the appellant of sexual interference, the jury rejected his defence of mistaken belief in the complainant’s age. The second issue was whether the complainant consented to all of the sexual activity. The appellant said that she did consent; the complainant said that she was intoxicated and did not consent to sexual intercourse.

[5] The appellant raises numerous grounds of appeal. I need only deal with three of them. The appellant submits:

(1) The trial judge improperly curtailed defence counsel’s cross-examination of the complainant on the issue of whether she had previously lied about her age;

(2) The trial judge erred by admitting prejudicial hearsay evidence about an incident that occurred after the incident giving rise to the charges. The trial judge’s instructions did not cure the prejudice, and the prejudice was magnified by the Crown’s reliance on the evidence during his closing submissions; and

(3) The trial judge did not adequately instruct the jury on the defence of mistake of age.

[6] I agree with these submissions. Cumulatively these errors deprived the appellant of a fair trial.

B. the charges

[7] The appellant was charged with sexual interference and sexual assault. Sexual interference is the touching for a sexual purpose of any part of the body of a person under the age of 16. Sexual assault is the intentional application of force without consent in circumstances of a sexual nature.

[8] For both offences, the complainant’s consent is not a defence if the complainant is under the age of 16. However, s. 150.1(4) of the Criminal Code provides an accused with a defence to these charges if the accused believed that the complainant was 16 years of age or more at the time the offence was alleged to have been committed and took “all reasonable steps to ascertain the age of the complainant”. Whether the appellant “took all reasonable steps” was thus a pivotal issue in this trial.

C. the evidence

[9] Only two witnesses testified at the trial: the complainant and the appellant. They gave very different accounts of what occurred. Especially pertinent to this appeal, they gave contradictory testimony about whether the complainant disclosed her age to the appellant. The credibility of their evidence was, therefore, central to the jury’s deliberation. I will summarize their accounts in order to put the appellant’s submissions in a proper context.

(a) How the complainant and the appellant met

(1) The complainant’s version

[10] The complainant said that she first met the appellant in July 2008. At the time, she was 15 years old, in grade nine, and living in a nearby group home. She walked past the house where the appellant lived on Dupont Street near the University of Toronto. She saw him sitting on the front porch. She stopped, and they chatted briefly.

[11] Over the next three weeks, while walking past the house, the complainant saw the appellant five or six times. They engaged in small talk. According to the complainant, they did not discuss her age.

(2) The appellant’s version

[12] The appellant testified that in July 2008 he was renting a room in the basement of a rooming house on Dupont Street near the University. One afternoon in late July, the complainant walked by. The appellant said “hi”. The complainant stopped, and they had a brief conversation.

[13] The complainant said that she was a student a George Brown College, that she lived in a sorority rooming house around the corner, and that she was 19 years old. They talked about what she did in her spare time. The appellant testified that the complainant presented herself as a 19-year-old college student.

[14] According to the appellant, this was the only time he spoke to the complainant before August 4, the date of the incident.

(b) The incident on August 4, 2008

(1) The complainant’s version

[15] The complainant testified that she was walking by the Dupont Street house at about 2:30 p.m. The appellant was sitting on the front porch and noticed her walking by. They struck up a conversation, and he invited her inside. The appellant and the complainant sat on the back porch for 30 to 60 minutes. The appellant offered her a beer. She said that she drank four beers; the appellant had only one.

[16] According to the complainant, the appellant asked her where she lived, where she went to school, and what she did in her spare time. She gave the appellant her name and some information about her background. She said she was in school but did not specify where, and when he asked what she was studying, she said, “I don’t know”.

[17] The appellant also asked her about her age. The complainant said that she replied, “It’s rude to ask a lady how old she is.” The complainant testified this was to keep her age from the appellant. The complainant agreed that the appellant was polite and respectful to her.

[18] The complainant testified, however, that after drinking four beers she began to feel dizzy. The appellant asked her if she wanted to go inside and lie down in bed. She said yes.

[19] The appellant started kissing the complainant. He then tried to take her clothes off. She told him no, but he would not stop or listen to her. So she stopped arguing. Instead, she “just kind of gave up.”

[20] According to the complainant, they lay in bed naked for two hours. They engaged both in oral sex and sexual intercourse. In response to the question whether she consented to the sexual activity, the complainant answered, “I would say I had consensual sex for two, for two hours under the influence…”

[21] When the sex was over, the complainant got dressed and went outside to have a cigarette and clear her mind. She and the appellant smoked some marijuana together. Then she left.

(2) The appellant’s version

[22] By August 2008, the appellant was no longer living on Dupont Street. However, he returned there over the civic holiday weekend to “hang out” with his old roommates. On the afternoon of August 4, he was on the front porch, drinking beer and smoking cigarettes. The complainant walked by and waived to him. When he realized who she was, he invited her up to the porch. They spoke for a few minutes and then went to the back patio.

[23] The appellant offered her a beer and cigarettes. She accepted the beer but pulled out one of her own cigarettes. They sat in the back, talking and smoking cigarettes for about 20 to 40 minutes. They spoke casually about different things: music, personal interests, parties, friends, and what they did on weekends. They exchanged anecdotes and talked about relationships. The complainant drank only one beer and took her time doing so. She did not seem intoxicated or dizzy.

[24] Eventually, the appellant and the complainant started kissing. The appellant testified that the complainant seemed to enjoy the intimacy. The appellant took the complainant to one of the bedrooms and began to remove her clothes. She did not show any signs of resistance. Instead, she let him continue. He went to get a condom. He then asked the complainant to perform oral sex, and she did. After more fondling and kissing, they had sexual intercourse, which was unprotected, as the appellant forgot to use his condom. The intercourse lasted for about 20 minutes. The appellant maintained that it was consensual, as he had no contrary indication from the complainant.

[25] After their sexual activity, the complainant and the appellant talked briefly in bed and then got dressed. After 10 minutes, the complainant left. The appellant never saw her again.

D. discussion

[26] As I said in the overview, three aspects of the trial deprived the appellant of a fair trial: defence counsel’s cross-examination was improperly curtailed; prejudicial hearsay evidence was admitted; and the instructions on the mistake of age defence were inadequate.

I. Defence counsel’s cross-examination was improperly curtailed

[27] The complainant gave false testimony about the extent to which she misrepresented her age. Defence counsel sought to cross-examine on this false testimony but the trial judge curtailed him from doing so.

[28] The context in which this issue arose is as follows. At the preliminary inquiry and again in her examination-in-chief, the complainant testified that the only time she had lied about her age and represented to others that she was over 16 was when she bought cigarettes. This testimony was a lie. Since 2007, the complainant had created online social networking accounts on “MySpace” where she presented herself as a 19 or 20 year old who had completed four years of high school. Defence counsel sought to cross-examine the complainant on her false testimony. He began as follows:

Q. So I’m going to ask you to look at your pre-lim testimony again at page 50, lines 14 to 20. Are you there with me?

A. Page 50?

Q. Page five zero.

A. Yeah.

Q. At line 14, were you asked the question:

“ All right, do you sometimes pretend to be older than you are?

“ Answer: No.

“ Question: Never?

“ Answer: No.

“ Question: Are you sure?

“ Answer: Only when I go to buy cigarettes.

“ Question: Or when you buy alcohol?

“ Answer: I don’t buy alcohol.”

Q. So, Ms. R., 14 days after you logged on to MySpace page where you were lying about your age, under oath you testified that you never lie about your age. Isn’t that the case?

A. It appears to be.

Defence counsel then asked:

Q. Okay. And here in court I gave you another opportunity to tell the truth, and instead you lied again.

[29] The trial judge did not allow the complainant to answer this question. Instead, she abruptly curtailed the cross-examination and sent the jury away for the rest of the day. She told defence counsel that because the appellant did not know about the MySpace account, cross-examination in this area was “very, very tangential”, only “of marginal relevance”, and pursuing it was “unfair” to the complainant.

[30] The next day, defence counsel returned to the subject of the complainant’s MySpace account and sought to challenge her explanation for why she had falsely represented her age. She had said that she did so because she believed that she had to be “of age” to set up an account. Defence counsel, however, told the court MySpace’s policy allowed persons as young as 13 or 14 to set up an account. He asked the trial judge for permission to cross-examine the complainant on the policy in order to challenge her explanation. The trial judge only permitted defence counsel to ask the complainant whether she was aware of the terms of MySpace’s policy. The complainant replied: “It might have just been, like, something my mom put on the computer”.

[31] In my opinion, the trial judge’s intervention to curtail defence counsel’s cross-examination – especially on the complainant’s lie about how often she had misrepresented her age – was improper and unfair to the appellant. I would make four points in support of my opinion.

[32] First, the trial judge’s concern that the cross-examination was “very, very tangential” because the appellant did not know about the complainant’s MySpace account overlooks the valid purpose of the cross-examination: to challenge the complainant’s credibility and specifically to show that she had misrepresented her age on other occasions, thus bolstering the appellant’s evidence that she told him she was 19. The complainant’s credibility and whether she had represented herself as over 16 were crucial issues at trial. Far from being tangential, the cross-examination was directly relevant to these issues.

[33] Second, although a trial judge has a responsibility to protect a witness from harassing, repetitive or irrelevant cross-examination, defence counsel’s cross-examination of the complainant was none of these things. The question itself that the trial judge stopped the complainant from answering – “and here in court I gave you another opportunity to tell the truth, and instead you lied again” – was an entirely proper question. It seems to me a trial judge should be very cautious about limiting cross-examination that goes directly to a witness’ credibility.

[34] Third, although defence counsel did obtain the complainant’s acknowledgement that she had lied about her age on her MySpace account, the trial judge prevented him from obtaining the complainant’s explicit admission that she had perjured herself in her testimony at the preliminary inquiry and in her examination-in-chief at trial. A witness’ lie under oath on an important matter is a powerful weapon in a cross-examiner’s arsenal. Defence counsel was entitled to bring out the complainant’s lie and emphasize it for the jury. He was prevented from doing so.

[35] Fourth, the trial judge’s instructions to the jury on the complainant’s MySpace account exacerbated the unfairness to the appellant. The trial judge said:

Defence counsel introduced as exhibits documents posted by Ms. R. in the My Space site. This site allows friends to communicate.

Clearly, Mr. D. did not review the information on this site as part of the reasonable inquiry into Ms. R.’s age. The document was discovered after the fact. Therefore, this document is not directly relevant to the question of whether Mr. D. made all reasonable steps to ascertain Ms. R.’s age.

This documentation is relevant to whether Ms. R., in other contexts, misrepresented her age as more than 15, as her age on these posting is 19 and 20. There is also a photograph of Ms. R. taken on October 13, 2008, some two-plus months after this incident, that is posted and is filed as Exhibit 3B.

Ms. R. explained that she used this site to communicate with her friends, that only her friends had access to her profile, but that to participate in the site you had to be at least 18 years of age and finished highschool. Therefore she posted the information that you see. In cross-examination, she was challenged about the age restriction, but testified that when she tried to join she could not log in showing her real age.

[36] That the appellant did not know about the complainant’s MySpace account until “after the fact” was irrelevant. Defence counsel did not cross-examine on the account to show the appellant’s efforts to ascertain the complainant’s age. He cross-examined on the account to attack the complainant’s credibility and to show that she had perjured herself. Indeed, the trial judge ought to have told the jury that the complainant’s lie about when she misrepresented her age was very relevant to her credibility.

II. Prejudicial hearsay evidence was admitted

[37] During his cross-examination of the appellant, Crown counsel elicited hearsay evidence, which was inadmissible and prejudicial. The Crown then relied on this evidence in his closing address to the jury. The trial judge gave both mid-trial and final instructions to the jury about the limited way they could use this evidence but neither instruction alleviated the prejudice.

[38] The evidence concerned an incident that took place several weeks after the incident giving rise to the charges. Crown counsel asked the appellant whether he knew about the allegations against him before he turned himself in to the police. Defence counsel objected to the relevance of the question, but the trial judge ruled that it was a “fair question”. The appellant answered:

A. Okay. So at the end of the month, I go back looking for some mail. I say hi to Piero. We’re on the porch just talking, and then these two girls come by and they start screaming and yelling about “she’s only fifteen”. They were just yelling and screaming for about a minute: she was only fifteen. You drugged her. You raped her …

Q. What did they say?

A. You raped her. You drugged her. She’s only fifteen. She’s only fifteen. That’s all I remember.

[39] The trial judge then gave the jury mid-trial instructions on this evidence, which she repeated during her final instructions. She told the jury that the evidence of these two girls could not be considered for the truth of its contents but that it was relevant to the chronology and the appellant’s state of mind at the time:

The second caution is you heard some evidence late in the day yesterday from Mr. D. about an incident that took place at 245 Dupont in late August, 2008, or early September, when two girls came to the house and were yelling at Mr. D. and making accusations. This evidence is relevant and may be considered by you, but only for a limited purpose. You may not consider the evidence of what the girls were shouting for the truth of what they were saying. You may consider the evidence as being relevant to the chronology of how this story spun out, number one, and number two, it’s relevant to Mr. D.’s state of mind because as of that date he knew there was a problem with the issue of [Ms. R.]’s age. But the statement made by the two girls, who are not witnesses, is not admissible for the truth of what they may have been shouting at Mr. D., and this evidence may not be considered by you to bolster the credibility of Ms. R. I repeat. The only relevance is, as of that date it’s part of the chronology, and it’s also relevant to what Mr. D. knew, and it was clear that as of that date he knew there was an issue with respect to [Ms. R.]’s age. Okay? So on that basis, we can proceed,

[40] Respectfully, this evidence was not relevant for any purpose. The appellant’s state of mind weeks after the August 4, 2008 incident had no bearing whatsoever on his belief or his efforts to ascertain the complainant’s age before he engaged in sexual activity with her.

[41] Moreover, the evidence was obviously hearsay. The two girls were not called as witnesses; they were not even identified by name. Their evidence was not admissible on any basis.

[42] Most important, the evidence was highly prejudicial to the appellant, a prejudice made worse by the inflammatory nature of the actual words – “she’s only fifteen. You drugged her. You raped her”. The trial judge’s instructions did not entirely alleviate the prejudice. Despite these instructions, there remained a real risk that the jury would use this evidence to find that the appellant was not credible.

[43] Finally, the Crown magnified the prejudice by relying on the evidence to attack the appellant’s credibility in his closing address. He said:

Also, when you consider his credibility, consider that at one point he talked about, on the first day when I got to ask him questions, I didn’t know anything about this until the police officer called me, and the next day I turned myself in. The on the second day, Mr. D. on his own brings up the fact that these girls had come to the house about a week or so before and were shouting at him, and he understood they were shouting at him because of this incident with [Ms. R]. He didn’t tell you that through his lawyer in-chief. It only came up in cross-examination on the first day, and then it was on the second day that he went back and brought that out. Well, which one is it? What does he want you to believe?

[44] The admission of this prejudicial hearsay evidence and the Crown’s use of it in closing were most unfair to the appellant, an unfairness that was not cured by the trial judge’s instructions.

III. The instructions on the mistake of age defence were inadequate

[45] The appellant defended the charges against him on the basis that he mistakenly believed the complainant was over 16 years old and he took all reasonable steps to ascertain her age. The mistake of age defence is set out in s. 150.1(4) of the Criminal Code:

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.

[46] The appellant gave evidence to support his defence. He claimed that the complainant told him she was 19 years old, went to George Brown College, and live in a nearby sorority house. He testified that he had no reason to doubt her age or the information she gave him. George Brown was near the rooming house on Dupont Street where he was staying and there were numerous sorority houses in the neighbourhood. The complainant’s appearance, her interests, the way she dressed, and the way she spoke all led him to believe she was 19 years old. Because there was evidence to support the appellant’s defence and because the question whether he took all reasonable steps to ascertain the complainant’s age was the pivotal issue at trial, it was especially important that the trial judge adequately instruct the jury on this defence. I am not persuaded that she did so.

[47] In fairness, the trial judge did review extensively the evidence supporting the appellant’s defence, as well as the contradictory evidence. For example, she properly told the jury that according to the appellant’s evidence, the complainant told him she was 19; but according to the complainant’s evidence, she never disclosed her age to the appellant.

[48] However, adequate instructions require more than a review of the evidence. Numerous decisions of the Supreme Court of Canada and provincial appellate courts have discussed the elements of adequate jury instructions. Doherty J.A. reviewed several of these cases in R. v. MacKinnon (1999), 1999 CanLII 1723 (ON CA), 43 O.R. (3d) 378 (C.A.). At pp. 385-6, he noted that no particular approach or formula is required, but that whatever approach is used, adequate instructions should contain four elements:

• The factual issues to be resolved;

• The law to be applied to those issues and the evidence;

• The positions of the parties; and

• The evidence relevant to the positions of the parties on the issues.

[49] In the present case, I am not satisfied that the trial judge adequately explained the legal principles to be applied to the mistake of age defence and how the evidence related to these principles. As a consequence, her instructions may have left the jury with the wrong impression of what was required to make out the defence.

[50] When the trial judge came to the part of her charge dealing with s. 150.1(4) of the Criminal Code, she did no more than read out the words of the section and tell the jury that the test was objective. In my opinion, more was required for two reasons: first, to assist the jury in assessing the defence and second, to avoid misleading the jury about the steps the appellant had to take.

[51] The trial judge should first have told the jury it was the appellant’s position that he honestly believed the complainant was over 16 years of age; and the trial judge should have reviewed the evidence for and against that position: see R. v. Wasser, 2010 ONCA 429, at para. 13. But, as the appellant’s subjective belief was not determinative, the trial judge should then have instructed the jury on whether the accused’s belief was objectively reasonable and specifically on whether the accused took all reasonable steps to ascertain the complainant’s age.

[52] What constitutes “all reasonable steps” depends on the context and the circumstances. There is no automatic checklist of considerations applicable to every case. Indeed, in some cases, an accused’s visual observation of the complainant may be enough to constitute reasonable steps.

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

[54] These suggested instructions find support in CRIMJI: Canadian Criminal Jury Instructions, Gerry Ferguson, Michael Dambrot, and Elizabeth Bennett, 4th ed., looseleaf, (Vancouver: The Continuing Legal Education Society of British Columbia, 2005), vol. 2, 2011 update, at section 6.67A, paras. 23-24,[^2] and in the reasons of the British Columbia Court of Appeal in R. v. L.T.P. (1997), 1997 CanLII 12464 (BC CA), 113 C.C.C. (3d) 42, where Finch J.A. said, at para. 20:

In considering whether the Crown has proven beyond a reasonable doubt that the accused has not taken all reasonable steps to ascertain the complainant's age, the Court must ask what steps would have been reasonable for the accused to take in the circumstances. As suggested in R. v. Hayes, supra, sometimes a visual observation alone may suffice. Whether further steps would be reasonable would depend upon the apparent indicia of the complainant's age, and the accused’s knowledge of same, including: the accused’s knowledge of the complainant’s physical appearance and behaviour; the ages and appearance of others in whose company the complainant is found; the activities engaged in either by the complainant individually, or as part of a group; and the times, places, and other circumstances in which the complainant and her conduct are observed by the accused. The Court should ask whether, looking at those indicia, a reasonable person would believe that the complainant was fourteen years of age or more without further inquiry, and if not, what further steps a reasonable person would take in the circumstances to ascertain her age. Evidence as to the accused’s subjective state of mind is relevant but not conclusive because, as pointed out in R. v. Hayes at p.11, “[a]n accused may believe that he or she has taken all reasonable steps only to find that the trial judge or jury may find differently”.

[55] Instructions along the lines proposed in CRIMJI and LTP would not only have assisted the jury in assessing the pivotal issue in this case, they would have avoided potentially misleading the jury. The CRIMJI and LTP instructions focus the jury’s deliberations on the question whether the steps the appellant had already taken – what he had observed and what he knew – were sufficient without further inquiry. Simply reading out the words in s. 150.1(4), without more, implicitly invites the jury to bypass this question and instead to focus on whether the appellant was required to take further steps.

[56] For these reason the trial judge’s instructions on the mistake of age defence were not adequate.

E. conclusion

[57] The trial judge erred in curtailing defence counsel’s cross-examination of the complainant, in admitting prejudicial hearsay evidence, and in her instructions on the mistake of age defence. These errors were not harmless. They may well have affected the jury’s assessment of the credibility of the complainant and the appellant. This is therefore not a case to apply the curative proviso as it cannot be said that despite the errors no substantial wrong or miscarriage of justice has occurred.

[58] I would allow the appeal, set aside the appellant’s convictions, and order a new trial.

Released: May 27, 2013 “John Laskin J.A.”

“JL” “I agree R.G. Juriansz J.A.”

“I agree M. Tulloch J.A.”

APPENDIX A

23. At this point, you may be wondering what constitutes “all reasonable steps”. There is no checklist of reasonable steps; what is required will depend on what is reasonable in the particular circumstances. Generally, as the difference in age between the accused and complainant increases, the accused is required to take more steps to ascertain the age of the complainant. In some situations, observations of _________________ [THE COMPLAINANT] by ____________ [THE ACCUSED] may be sufficient to constitute reasonable steps. Such observations may include ___________’s [THE COMPLAINANT’S] appearance and behaviour and the age of the people (he/she) normally associates with. You should also consider any personal knowledge _____________ [THE ACCUSED] had of ___________ [THE COMPLAINANT], the nature of the relationship between ___________ [THE ACCUSED] and _________ [THE COMPLAINANT], and the environment where the incident took place.

24. However, in some circumstances, observations may be insufficient and you may conclude that it was reasonable for ____________ [THE ACCUSED] to ask ____________ [THE COMPLAINANT] or someone who knew ________________ [THE COMPLAINANT] (his/her) age. However, even if _____________ [THE COMPLAINANT] told ___________ [THE ACCUSED] (he/she) was 16 years of age or more, ___________ [THE ACCUSED] may still have needed to make further inquiries, depending on the circumstances.

[^1]: The conviction for sexual assault was conditionally stayed.

[^2]: See Appendix A. The CRIMJI model charge was not given to the trial judge.