WARNING

The President of the panel hearing this appeal directs that the following should be attached to the file:

An order restricting publication in this proceeding under ss. 486.4(1), (2), (3) or (4) or 486.6(1) or (2) of the Criminal Code shall continue. These sections of the Criminal Code provide:

486.4 (1) Subject to subsection (2), the presiding judge or justice may make an order directing that any information that could identify the complainant or a witness shall not be published in any document or broadcast or transmitted in any way, in proceedings in respect of

(a) any of the following offences;

(i) an offence under section 151, 152, 153, 153.1, 155, 159, 160, 162, 163.1, 170, 171, 172, 172.1, 173, 210, 211, 212, 213, 271, 272, 273, 279.01, 279.02, 279.03, 346 or 347,

(ii) an offence under section 144 (rape), 145 (attempt to commit rape), 149 (indecent assault on female), 156 (indecent assault on male) or 245 (common assault) or subsection 246(1) (assault with intent) of the Criminal Code, chapter C-34 of the Revised Statutes of Canada, 1970, as it read immediately before January 4, 1983, or

(iii) an offence under subsection 146(1) (sexual intercourse with a female under 14) or (2) (sexual intercourse with a female between 14 and 16) or section 151 (seduction of a female between 16 and 18), 153 (sexual intercourse with step-daughter), 155 (buggery or bestiality), 157 (gross indecency), 166 (parent or guardian procuring defilement) or 167 (householder permitting defilement) of the Criminal Code, chapter C-34 of the Revised Statutes of Canada, 1970, as it read immediately before January 1, 1988; or

(b) two or more offences being dealt with in the same proceeding, at least one of which is an offence referred to in any of subparagraphs (a)(i) to (iii).

(2) In proceedings in respect of the offences referred to in paragraph (1)(a) or (b), the presiding judge or justice shall

(a) at the first reasonable opportunity, inform any witness under the age of eighteen years and the complainant of the right to make an application for the order; and

(b) on application made by the complainant, the prosecutor or any such witness, make the order.

(3) In proceedings in respect of an offence under section 163.1, a judge or justice shall make an order directing that any information that could identify a witness who is under the age of eighteen years, or any person who is the subject of a representation, written material or a recording that constitutes child pornography within the meaning of that section, shall not be published in any document or broadcast or transmitted in any way.

(4) An order made under this section does not apply in respect of the disclosure of information in the course of the administration of justice when it is not the purpose of the disclosure to make the information known in the community. 2005, c. 32, s. 15; 2005, c. 43, s. 8(3)(b).

486.6 (1) Every person who fails to comply with an order made under subsection 486.4(1), (2) or (3) or 486.5(1) or (2) is guilty of an offence punishable on summary conviction.

(2) For greater certainty, an order referred to in subsection (1) applies to prohibit, in relation to proceedings taken against any person who fails to comply with the order, the publication in any document or the broadcasting or transmission in any way of information that could identify a victim, witness or justice system participant whose identity is protected by the order. 2005, c. 32, s. 15.

COURT OF APPEAL FOR ONTARIO

CITATION: R. v. Holloway, 2013 ONCA 374

DATE: 20130605

DOCKET: C55396

Doherty, Simmons and Rouleau JJ.A.

Her Majesty the Queen

Appellant

and

Marcus Holloway

Respondent

Susan Magotiaux, for the appellant

L. Wilhelm, for the respondent

Heard and released orally: May 22, 2013

On appeal from the acquittal entered by Justice Ramsay of the Superior Court of Justice, dated March 29, 2012.

ENDORSEMENT

[1] Counsel for the respondent, quite properly, acknowledges that the trial judge made legal errors in his reasons for judgment. She argues that the errors do not justify quashing the acquittals entered at trial.

[2] We disagree.

[3] There are four counts that are relevant on this appeal. Count 1, a charge of luring, involves communications between the 21 year-old respondent and the 15 year-old complainant over the internet. Counts 2, 3 and 4 involve an incident that occurred when the complainant and the respondent met in person for the first time. This meeting occurred at the respondent’s home. The complainant alleges that she was sexually assaulted. The respondent maintained that the sexual activity was consensual.

[4] The respondent’s defence on count 1 was that he believed the complainant was 16 years of age. He argued that he had taken reasonable steps to determine the age of the complainant as required under s. 172.1(4) of the Criminal Code. The respondent testified that the complainant told him that she was 16 years of age. He also testified that because he doubted the veracity of much of what she said, he contacted her using an alternate internet profile. In the course of conversations with the alternative internet profile “Jerome”, the complainant indicated that she was 16 years of age. The complainant acknowledged that she told “Jerome” she was 16 years of age. She also testified that she told the respondent she was 15 years of age. The difference is, of course, crucial in that 16 years of age is the demarcation for the purposes of criminal liability under this section.

[5] The respondent’s defence on counts 2, 3 and 4 was first that he believed the complainant was 16 years of age and, therefore, capable in law of consenting to the sexual activity. He took the position that he took “all reasonable steps” as required under s. 150.1(4) to determine the complainant’s age. Second, the respondent took the position that the complainant in fact consented to the sexual activity.

[6] The trial judge’s reasons acquitting the respondent on the four charges are very brief and, in some respects, unclear. In respect of count 1, the trial judge made no reference to s. 172.1(4). He did refer to the “Jerome” evidence, but did so in the context of the respondent’s belief as to the complainant’s age when he engaged in sexual activity with her at his home. The trial judge’s reference to that evidence of the respondent’s belief concerning the complainant’s age is found at p. 488:

Now in these circumstances, the steps he took are perhaps idiosyncratic, making up yet another alter ego and asking her how old she was, but given what he’s been told and also considering the fact that he himself is rather unsophisticated and immature, I’m trying to put it diplomatically, I think he has discharged the onus on him to raise a reasonable doubt as to his entitlement to the defence in accordance with the terms of s. 150.1(4). [Emphasis added.]

[7] The inquiry described in the above passage is neither the contextual nor the objective inquiry mandated under s. 172.1(4). We cannot take a reference by the trial judge made in the context of a consideration of the respondent’s belief at the time of the alleged sexual activity and apply it as if it were an inquiry into the respondent’s state of mind in respect of count 1. The trial judge failed to make the inquiry required under s. 172.1(4) as it related to the internet contact and he failed to address the “reasonable steps” test in the context of the entirety of the evidence relevant to the internet luring charge. The acquittal on count 1 must be quashed.

[8] On counts 2, 3 and 4, the trial judge appeared to accept that the accused had taken “all reasonable steps” to determine the complainant’s age as required under s. 150.1(4). Although the trial judge misstated the test as requiring only the taking of “reasonable steps” and not “all reasonable steps”.

[9] The trial judge’s analysis of the reasonableness of the steps taken by the respondent to determine the complainant’s age focussed exclusively on the respondent’s internet contact with the complainant using the name “Jerome”. The trial judge did not consider any of the other factors relevant to the “all reasonable steps” inquiry that existed at the time of the sexual activity alleged in counts 2, 3 and 4. When that activity occurred, the respondent and the complainant were together.

[10] The trial judge did not refer, for example, to the evidence of the complainant’s physical appearance or the evidence of the obvious reluctance of the complainant to engage in the sexual activity contemplated by the respondent. This evidence and other possible visual clues were relevant to whether the respondent, when he met the complainant, took “all reasonable steps” to determine whether the complainant was 16 years of age before engaging in sexual activity with her. The trial judge’s failure to consider any of these factors constitutes a failure to engage in the contextual analysis required under s. 150.1(4) and amounts to an error in law.

[11] There is a second problem with the trial judge’s acquittal on the sexual assault charge (count 4). His reasons relating to that count are so inadequate as to constitute legal error apart from the failure to properly address s. 150.1(4).

[12] Even if the respondent gained the advantage of s. 150.1(4), the trial judge still had to consider whether the Crown had proved beyond a reasonable doubt that the respondent did not reasonably believe that the complainant had consented: see Criminal Code s. 273.2. A reasonable belief that the complainant was 16 is not a defence to a charge of sexual assault. Rather, it opens the door to a defence based on the Crown’s failure to prove beyond a reasonable doubt that the accused did not reasonably believe that the complainant was consenting to the sexual activity.

[13] It was common ground that the complainant initially expressly refused to engage in the sexual activity sought by the respondent when she arrived at his home. It was common ground that they argued and the argument became somewhat vociferous. It was common ground that at some point after the complainant had been in the respondent’s home for four or five hours she fled the home. It was common ground that she had some significant physical injuries when she left the home.

[14] In the face of all of that evidence, it was incumbent upon the trial judge to expressly deal with the concepts of consent delineated in ss. 265(3) and 273.1 of the Criminal Code. The trial judge had to make the findings of fact made relevant by those provisions which speak to the issue of consent in situations like the one that existed here. Instead, the trial judge said only I “do not believe he [the respondent] forced sexual conduct”.

[15] A finding that the sexual conduct was not “forced” was not enough to determine whether, apart from the question of the complainant’s age, there was a potentially operative consent. The question of whether the complainant gave a genuine operative consent was crucial to the ultimate question of whether the Crown had proved that the respondent did not reasonably believe that she had consented. It was the respondent’s position that he held that reasonable belief because she had in fact consented, although as it turned out, she was incapable of doing so given her true age.

[16] The trial judge failed to address this issue in any meaningful way in his reasons. Effective appellate review of this part of his judgment is impossible.

[17] The Crown suggests this court can enter convictions. We cannot agree with that submission. The trial judge’s findings are not such as to permit this court to quash the acquittals and enter convictions. In our view, the Crown is entitled to a new trial. We would quash the acquittals on counts 1 through 4 and direct a new trial on those counts.

“Doherty J.A.”

“Janet Simmons J.A.”

“Paul Rouleau J.A.”