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), (2.1), (2.2), (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judge or justice may make an order directing that any information that could identify the victim or a witness shall not be published in any document or broadcast or transmitted in any way, in proceedings in respect of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, 171.1, 172, 172.1, 172.2, 173, 210, 211, 213, 271, 272, 273, 279.01, 279.011, 279.02, 279.03, 280, 281, 286.1, 286.2, 286.3, 346 or 347, or

(ii) any offence under this Act, as it read at any time before the day on which this subparagraph comes into force, if the conduct alleged involves a violation of the complainant's sexual integrity and that conduct would be an offence referred to in subparagraph (i) if it occurred on or after that day; or

(iii) REPEALED: S.C. 2014, c. 25, s. 22(2), effective December 6, 2014 (Act, s. 49).

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

486.4(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 victim of the right to make an application for the order; and

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

486.4(2.1) Subject to subsection (2.2), in proceedings in respect of an offence other than an offence referred to in subsection (1), if the victim is under the age of 18 years, the presiding judge or justice may make an order directing that any information that could identify the victim shall not be published in any document or broadcast or transmitted in any way.

486.4(2.2) In proceedings in respect of an offence other than an offence referred to in subsection (1), if the victim is under the age of 18 years, the presiding judge or justice shall

(a) as soon as feasible, inform the victim of their right to make an application for the order; and

(b) on application of the victim or the prosecutor, make the order.

486.4(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.

486.4(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); 2010, c. 3, s. 5; 2012, c. 1, s. 29; 2014, c. 25, ss. 22, 48; 2015, c. 13, s. 18.

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.

486.6(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

Date: 2019-06-10

Docket: C65926

Panel: Hoy A.C.J.O., Hourigan and Paciocco JJ.A.

Between

Her Majesty the Queen Respondent

and

K.S. Appellant

Counsel: Sam Goldstein, for the appellant Catherine Weiler, for the respondent

Heard: June 5, 2019

On appeal from: The finding of guilt made by Justice Robert Charney of the Superior Court of Justice on March 26, 2018, and the conviction entered on September 27, 2018, with reasons reported at 2018 ONSC 1988.

Reasons for Decision

[1] K.S. appeals his conviction for sexual interference resulting from sexual activity with a 14 year old minor. He contends that the trial judge arrived at an unreasonable verdict, engaged in "impressionistic reasoning" and failed to give adequate reasons. At the end of the oral hearing we dismissed the appeal, with reasons to follow. These are our reasons.

[2] K.S., who was 30 years of age at the time, admitted to the sexual activity alleged by the complainant, but relied on his claimed mistaken belief that the complainant was of legal age. The trial judge had a reasonable doubt about K.S.'s belief, but convicted K.S. because he had not taken reasonable steps to confirm her age.

[3] In support of the general grounds of appeal advanced, K.S. says that the trial judge erred by placing undue reliance on "selfie" photographs of the complainant taken at unknown dates around the time of the sexual activity. K.S. says this error is compounded in the face of K.S.'s "unchallenged" testimony that at the time of the sexual activity, she looked closer to her appearance in court as a 17 year old witness, rather than as depicted in the photographs. Drawing analogy to case law addressing improper inferences about the way sexual assault victims would behave, he also contends that the trial judge drew an inappropriate inference about what young women look like. Finally, he claims that the trial judge failed to give reasons for his conclusion that "[f]rom a subjective perspective, the complainant looks young – about 14 years of age – in these photos."

[4] Each of K.S.'s grounds of appeal lacks merit.

[5] K.S. conceded that a trial judge is entitled to draw inferences from photographs admitted into evidence, but argues that it was unreasonable for the trial judge to use the photographs admitted in this case to infer that at the time of the offence, the complainant "look[ed] young – about 14 years of age". He contends that it is unreasonable to draw such an inference from photos taken not on the day of the offence, but at unknown dates, depicting the complainant with various hairstyles and different clothing.

[6] We disagree. Although the precise times when the photos were taken are unknown, it is agreed that the photographs were taken both before and after the event, while the complainant was in grade 9. They therefore frame the event, which occurred in the middle of that school year, and together depict the complainant's general appearance at the time. The trial judge was therefore entitled to determine, based on his observation of the photographs, that at the time of the offence the complainant appeared to be about 14 years of age.

[7] Moreover, the trial judge's observations about the complainant's appearance in the grade 9 photographs was enough to entitle him to reject K.S.'s claim that, at the time of the event, she looked more like the 17 year old who was testifying in the case, than the person depicted in the photographs. The trial judge saw the photos and the complainant at the time of the trial. He was well placed to judge that claim. Therefore, we do not accept that K.S.'s testimony on this point was un-contradicted.

[8] It is noteworthy that the trial judge did not rely on the photos to support a conclusion as to the precise age of the complainant. He relied upon the photographs to conclude that her appearance around the time of the event, along with other evidence – including K.S.'s admission that he knew the complainant to be in high school at the time – would have prompted a reasonable 30 year old to make reasonable inquiries about her age before proceeding to having sex with her. Yet K.S., a 30 year old man giving a ride to a high school student he had just met that day, took no steps to inquire about the complainant's age. In our view, the trial judge's finding was closer to being inevitable than unreasonable.

[9] K.S.'s argument that that trial judge engaged in impressionistic reasoning about what young girls can be expected to look like misses the mark. In his factum, K.S. sought to support this argument with authority cautioning courts to avoid rank generalizations about what young women will or will not do. This body of law has nothing to do with inferences drawn from ordinary human experience about the apparent age of other persons. The law has long recognized the admissibility of a witness's inference about apparent age: R. v. Graat, [1982] 2 S.C.R. 819. It is no more "impressionistic" or improperly speculative for a judge to draw such an inference than it is for a witness to do so.

[10] Nor is there an issue with the quality of the trial judge's reasons. It is unreasonable to expect that the trial judge would identify, in his reasons, features or details from the photographs that support his conclusion that the complainant looked to be about 14 years of age. As indicated, lay witnesses are permitted to express general opinions about apparent age precisely because it is difficult to use language to capture and communicate the complex observations that go into this kind of commonly-derived conclusion: Graat, at pp. 837-838.

[11] We do not accept K.S.'s analogy to direct evidence of identification. Estimates of age differ from direct evidence of identification in what can be expected in explaining why the relevant opinion is held. Where direct evidence of identification is offered, courts expect a basis to be provided for the opinion that the accused is the suspect, since identification is based on perceived similarities, many of which are capable of description. In contrast, it is not realistic to expect precise details to be available to explain meaningfully why someone appears to be 14 rather than 18. Moreover, the photographic record is available for our inspection. We have reviewed the photographs, and, in our view, the trial judge's conclusion is a perfectly reasonable one.

[12] We therefore dismissed K.S.'s appeal.

"Alexandra Hoy A.C.J.O." "C.W. Hourigan J.A." "David M. Paciocco J.A."