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judge or justice may make an order directing that any information that could identify the victim or a witness shall not be published in any document or broadcast or transmitted in any way, in proceedings in respect of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(iii) REPEALED: S.C. 2014, c. 25, s. 22(2), effective December 6, 2014 (Act, s. 49).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).
(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.
(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the presiding judge or justice may make an order directing that any information that could identify the victim shall not be published in any document or broadcast or transmitted in any way.
(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.
(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); 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.
(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: 20210824 DOCKET: C66451
Fairburn A.C.J.O., Watt and Huscroft JJ.A.
BETWEEN
Her Majesty the Queen Respondent
and
W.G. Appellant
Counsel: Brian H. Greenspan and Naomi Lutes, for the appellant Christine Bartlett-Hughes, for the respondent
Heard: January 27, 2021 by videoconference
On appeal from the conviction entered by Justice Douglas K. Gray of the Superior Court of Justice on September 20, 2018, with reasons reported at 2018 ONSC 5404.
Watt J.A.:
[1] They met first on a dating app where both had an account. They chatted.
[2] Then they met at a hotel. This was their first meeting in person. They had sex.
[3] The relationship continued for a few weeks. Virtually and in person. Usually sexual. But at other times, not. Interrupted by various events.
[4] After the relationship ended, the appellant was arrested on charges of sexual interference and sexual assault. A judge of the Superior Court of Justice found both charges proven beyond a reasonable doubt. The judge entered a conviction on the count of sexual interference and a conditional stay on that of sexual assault.
[5] The appellant appeals his conviction. These reasons explain why I would dismiss the appeal and affirm the conviction entered at trial.
The Background Facts
[6] The issues raised in this court do not require any detailed reference to the evidence adduced at trial. A brief overview of the underlying circumstances will provide the background necessary to understand the claims of error advanced and how I propose to resolve them.
The Principals
[7] L.S. was born female. Early in high school, L.S. began to identify as male. At all material times, L.S. was 15 years old.
[8] The appellant was a married father of two children. Self-employed, he was 50 years old when the offences alleged were committed.
The Grindr App
[9] Grindr is a dating app used by gay men. Its account holders must be 18 or older, but the service does not verify any information its account holders provide. Despite the age requirement, an account holder need not disclose their age.
[10] L.S. left his age blank on his Grindr profile. He included a photograph of his eye. An account holder could indicate the type of gay subculture with which he identified. L.S. did so. He indicated “twink”, a younger man with a boyish look.
[11] The appellant used the name “Tom” on his Grindr profile. He listed his age as 48. This was a lie. He was actually 50 years old and did not go by the name of “Tom” in his daily activities. The appellant knew that information provided in Grindr profiles was not verified.
The Grindr Chats
[12] L.S. and the appellant chatted on Grindr for about two or three weeks before they actually met. L.S. said he was 18. He had been born female but was transitioning to male. L.S. claimed he was doing a “lap” year at high school. He lived at home with his parents and a sibling.
[13] During their chats on Grindr, L.S. did not tell the appellant that he (L.S.) was seeing an older man, “Steven”.
The First In-Person Meeting
[14] Early in the month following their virtual meetings, the appellant and L.S. met in person. The appellant picked up L.S. at school. They drove in the appellant’s truck to a nearby hotel. There they engaged in various forms of sexual activity before the appellant drove L.S. back to the parking lot of his high school.
[15] The appellant proposed another meeting the next day. L.S. demurred because he was seeing another man, “Steven”.
The Later Meetings
[16] Over the next several weeks, the appellant and L.S. continued to chat and to meet. In most of their meetings, they had sex.
[17] Later in the month of their first in-person meeting, L.S. told the appellant that he (L.S.) had chlamydia. He advised the appellant that he should be examined by a doctor. The appellant did so. The examination confirmed that the appellant also had chlamydia. Both received medical treatment. Their sexual activity ceased during the period of treatment.
[18] The appellant believed that “Steven” was the source of the chlamydia that he (the appellant) had contracted from L.S. The appellant told L.S. that their relationship was over if L.S. continued to see other men.
[19] The day following this ultimatum, L.S. told the appellant that he would end his relationship with “Steven”.
[20] The relationship between L.S. and the appellant continued over a few more weeks. They chatted and met. Medical treatment, and vacations interrupted their sexual activity.
The Confession about Age
[21] On April 7, 2015, as the appellant and L.S. returned from sexual activity, the appellant asked L.S. what he proposed to do after completion of his “lap” year. L.S. paused as he had when “Steven” had asked him the same question. L.S. then told the appellant that he was only 15 – not 18, as he had said in their early meeting.
[22] L.S. and the appellant diverged in their accounts of what happened after L.S. disclosed his true age – 15 – to the appellant.
[23] L.S. testified that the relationship continued after his age disclosure. This included sexual activity. He was challenged on this issue in cross-examination. Among other suggestions put to him was that he had confused what had happened after he had made a similar disclosure to “Steven” with what had occurred with the appellant.
[24] The appellant gave evidence that once L.S. disclosed his true age, they agreed that they could no longer see each other. Their only further contact, about which they were also agreed, was that the appellant could wish L.S. happy birthday when L.S. turned 16. The appellant extended his best wishes. L.S. did not reply.
The Appellant’s State of Mind
[25] The appellant testified that until L.S. told him that he was only 15, he (the appellant) believed that L.S. was 18. L.S. had told him so as their virtual relationship began and, according to the appellant, had said nothing to the contrary until their relationship ended.
[26] The appellant recounted several factors that confirmed his belief that L.S. was 18 during their sexual relationship. L.S. said he was 18 and used the Grindr app which required account holders to be 18. L.S. said that he was doing a “lap” year at high school, meaning Grade 13. L.S. demonstrated maturity in their conversations and assuredness in his sexual preferences. L.S.’s demeanour and physical appearance, which were consistent with his photograph, confirmed his stated age.
The Appellant’s Inquiries
[27] The appellant was cross-examined about what steps he had taken to confirm his belief that L.S. was 18. He acknowledged that he only asked L.S. his age once, when they first met over Grindr. He did not inquire about why L.S. was doing a “lap” year at high school. Nor did the appellant tell anyone about their relationship. After they met in person, the appellant did not ask L.S. for any identification or whether he had a driver’s licence. The appellant did not inquire about the age of L.S.’s brother or ask to meet L.S.’s parents. They never met at L.S.’s home. The appellant picked up L.S. and dropped him off after their meetings some distance away from his home. The appellant acknowledged that people lie about their age and other things on Grindr. Indeed, he had lied about his own age in creating his profile on the Grindr app.
The Positions at Trial
[28] The trial Crown advanced two alternative bases upon which the appellant’s guilt could be proven. First, he submitted that the appellant could be found guilty on the basis that the appellant continued his sexual relationship with L.S. after L.S. had disclosed his true age as 15.
[29] Second, even if the appellant honestly believed that L.S. was at least 16, the Crown contended that it was proven beyond a reasonable doubt under s. 150.1(4) of the Criminal Code, R.S.C. 1985, c. C-46, that the appellant had not taken all reasonable steps to ascertain L.S.’s age. The Crown advanced this as an alternative path to conviction and as the principal basis of liability.
[30] For the appellant, defence counsel submitted that the trial judge should have a reasonable doubt that any sexual activity took place between the parties after L.S. told the appellant that he was 15. In the alternative, trial counsel argued that, throughout, the appellant honestly believed that L.S. was 18. Further, Crown counsel had failed to prove beyond a reasonable doubt, as he was required to do, that the appellant did not take all reasonable steps to ascertain L.S.’s age. It followed, defence counsel urged, that the appellant should be acquitted.
The Reasons of the Trial Judge
[31] Considering the first basis of liability advanced by the Crown, the trial judge was not satisfied beyond a reasonable doubt that the sexual relationship of the appellant and L.S. continued after L.S. told the appellant that he was 15.
[32] Turning to the alternative basis of liability, the trial judge was satisfied that the appellant had an honest but mistaken belief throughout the sexual relationship that L.S. was 18, or at least 16. However, the trial judge was persuaded beyond a reasonable doubt that the appellant did not take all reasonable steps to ascertain L.S.’s age. He expressed his conclusion in these terms:
In the final analysis, W.G. simply took L.S.’s word that he was 18 years old, and he made assumptions that were not warranted in the particular circumstances. While concrete steps are not required in every case, they were clearly required in this case. The simplest step would have been to ask for identification. That was not done.
In the final analysis, I am satisfied beyond a reasonable doubt that W.G. did not take all reasonable steps to ascertain the age of L.S. before he engaged in sexual activity with him. Thus, as specified in s. 150.1(4) of the Code , it is not a defence to the charges under s. 151 or s. 271 that W.G. believed that L.S. was 16 years of age or more.
The Grounds of Appeal
[33] The appellant identifies three errors in the trial judge’s analysis which he says warrant entry of an acquittal, or at worst, an order for a new trial. He says that the trial judge erred:
i. in finding the fault element in sexual interference satisfied on the basis of the appellant’s failure to take all reasonable steps to ascertain the true age of L.S.;
ii. in his interpretation of the “all reasonable steps” requirement in s. 150.1(4); and
iii. in misapprehending the evidence about L.S.’s online dating profile on Grindr.
[34] The first two grounds of appeal are related and can be combined for the purpose of analysis.
Ground #1: The Fault Element in Sexual Interference
[35] The argument advanced in support of this ground of appeal does not require further reference to the evidence adduced at trial or the reasons of the trial judge. A canvass of the arguments advanced in this court is sufficient prelude to the discussion that follows.
The Arguments on Appeal
[36] The appellant begins with the unassailable: subjective fault is a bedrock principle of the criminal law in Canada. Yet here, the appellant says, the trial judge failed to give effect to that principle. This is because the judge, having found that the appellant honestly believed L.S. was over 16, nonetheless convicted the appellant because he failed to take all reasonable steps to ascertain L.S.’s age.
[37] The failure to take all reasonable steps requirement in s. 150.1(4) of the Criminal Code, the appellant says, simply bars an accused from raising a positive defence – mistaken belief in age – in answer to a charge of sexual interference. The failure does not provide, and thus cannot be invoked, as an independent pathway to conviction as occurred here. Previous authority notwithstanding, no longer can the Crown establish an accused’s guilt of sexual interference on either of two bases – actual knowledge of the complainant’s underage status, or the failure to take all reasonable steps to ascertain the complainant’s true age. Only actual knowledge of the complainant’s underage status will suffice.
[38] Here, the appellant continues, the trial judge required him to show not only that he honestly but mistakenly believed that L.S. was at least 16 years old, but also that he had taken all reasonable steps to ascertain L.S.’s age. But the onus is on the Crown to disprove the defence for which s. 150.1(4) provides, by proving beyond a reasonable doubt that the appellant either did not honestly believe L.S. was of age, or that he failed to take all reasonable steps to ascertain L.S.’s true age.
[39] The trial judge’s findings, according to the appellant, require entry of an acquittal or, at the very least, a new trial. To establish the fault element of sexual interference, the Crown had to prove beyond a reasonable doubt that the appellant believed, was wilfully blind, or was reckless as to whether L.S. was under 16. The trial judge found that the appellant honestly believed that L.S. was 18, thus not under 16 years of age. On this finding, the appellant was entitled to an acquittal.
[40] Even if the appellant is not entitled to an acquittal under the new sexual assault fault regime, a new trial is required. The trial judge, the appellant contends, failed to consider and decide whether the Crown had proven beyond a reasonable doubt that the appellant had the state of mind necessary to establish guilt. The trial judge found that there was an air of reality to the appellant’s assertion that he had taken all reasonable steps to ascertain L.S.’s true age. Even if the trial judge was satisfied beyond a reasonable doubt that the appellant had not taken all reasonable steps as required by s. 150.1(4) , it remained incumbent on the Crown to prove beyond a reasonable doubt that the appellant believed, was wilfully blind to, or was reckless as to whether L.S. was under 16. But the trial judge never adverted to, much less decided whether the Crown had proven the required fault element beyond a reasonable doubt. Thus, the need for a new trial.
[41] In addition to the above, the appellant also challenges the trial judge’s interpretation and approach to the “all reasonable steps” element in s. 150.1(4) of the Criminal Code. The trial judge, the appellant complains, failed to conduct the assessment contextually, in particular, by failing to take into account the appellant’s subjective belief that L.S. was over 16. What constitutes “all reasonable steps” depends on the context of each case and requires an assessment of all the circumstances. The term “steps” has two modifiers: “all” and “reasonable”. The trial judge read “all” as “every”, thus approaching the requirement as a checklist, contrary to what the authorities teach. Steps that are not reasonably necessary in the circumstances need not be taken.
[42] The subjective belief of an accused informs but is not determinative of the contextual “all reasonable steps” inquiry under s. 150.1(4). Here, the trial judge’s failure to consider the appellant’s belief in L.S.’s age resulted in a disproportionate focus on the positive steps taken, rather than whether the context required any further inquiries. An honest belief not based on ignorance, but as here, grounded on L.S.’s own representation may obviate the need for further inquiry. Indeed, the appellant engaged the very inquiry necessitated by the circumstances. His conduct belies the states of mind required to establish the fault element in sexual interference.
[43] The respondent disagrees. The Crown rejects any suggestion of legal error in the trial judge’s analysis and conclusion. Admittedly, the analysis did not conform to what is now required because the trial judge did not have the teachings of those cases to guide him. But once the trial judge found that the Crown had proven beyond a reasonable doubt that the appellant had not taken all reasonable steps required by the circumstances to ascertain L.S.’s true age, the appellant was not entitled to rely on the mistaken belief in age defence. The appellant’s conviction, in turn, was inevitable.
[44] In several pages of her factum, the respondent articulated her concern with the reasoning of the majority of the Supreme Court of Canada in R. v. Morrison, 2019 SCC 15, [2019] 2 S.C.R. 3. The purpose of this critical analysis, she indicated, is to preserve a right of appeal to the Supreme Court of Canada on this basis. These submissions are best left to another place, at another time.
[45] When s. 150.1(4) is properly interpreted, the respondent contends, the subsection does not overlay a discrete mistaken belief in age defence on top of a fault element with respect to age for offences involving sexual activity with children. Instead, the mens rea component requires the Crown to prove beyond a reasonable doubt the absence of a reasonable mistaken belief with respect to the complainant’s age. However, even accepting that disproof of a mistaken belief of age is an inquiry distinct from that involving proof of the elements of an offence, negating mistaken belief in age to the extent of reasonable doubt is tantamount to proof of the culpable mental state required for offences such as sexual interference. A conviction of that offence is inevitable.
[46] The “all reasonable steps” requirement in s. 150.1(4) obliges an accused who advances a mistaken belief in age defence to have exercised the same degree of care in ascertaining a complainant’s age that a reasonable person would exercise in equivalent circumstances. This inquiry is a highly contextual, fact-specific exercise. It includes both objective and subjective components. When the Crown proves beyond a reasonable doubt that an accused did not take all reasonable steps to ascertain the complainant’s age, the defence of mistaken belief in consent is no longer available for the trier of fact to consider.
[47] Although rejection of the mistaken belief defence in s. 150.1(4) and the nature of the fault element required in respect of the age-specific sexual offences remain closely associated, the fault element must be defined in terms of the accused’s state of mind. The fault element in s. 151 includes actual knowledge or belief and wilful blindness. But it also extends to recklessness, that is to say, an awareness of some level of risk and a determination to proceed despite that risk. An accused who decides to proceed with sexual activity with an underage complainant after adverting to the possibility that the complainant was underage, is reckless with respect to the complainant’s age, even if the risk that the complainant is underage is low. Where an accused cannot rely on his evidence about mistaken belief in age because he has not taken reasonable steps to ascertain the complainant’s age, no reasonable doubt can arise with respect to proof of the fault element of the offence.
[48] In this case, the respondent argues, the appellant did advert to the question of L.S.’s age. If the trial judge correctly concluded that the appellant failed to take all reasonable steps in the circumstances as he knew them, then he cannot rely on the defence of mistaken belief and his claim in that respect is of no legal effect. The trial judge made no error in his “all reasonable steps” analysis. The appellant was properly convicted.
The Governing Principles
[49] The principles that control our decision are of recent origin. They differ from those applicable when the trial judge rendered his decision.
[50] The principles at work have to do with the essential elements of the offence of sexual interference; the mistaken belief in age defence in s. 150.1(4); and the combined effect of these principles in the circumstances of this case. Those circumstances include two findings of fact made by the trial judge:
i. that the appellant honestly believed L.S. was 18; and
ii. the appellant failed to take all reasonable steps to ascertain L.S.’s age as required by s. 150.1(4) of the Criminal Code.
The Offence Charged: Sexual Interference
[51] The appellant was charged with sexual interference, an age-specific offence created by s. 151 of the Criminal Code prohibiting defined sexual conduct with a prescribed class or group of persons. To establish this offence in the circumstances of this case, the Crown had to prove beyond a reasonable doubt:
i. L.S. was under 16;
ii. the appellant touched L.S.; and
iii. the touching was for a sexual purpose.
[52] Like the cognate offence of invitation to sexual touching in s. 152, the language of the section creating the offence of sexual interference says nothing expressly about the mens rea requirement or fault element as it relates to an accused’s belief about the age of the complainant: see R. v. Carbone, 2020 ONCA 394, 150 O.R. (3d) 758, at para. 67 . See also R. v. B.J.T., 2019 ONCA 694, 378 C.C.C. (3d) 238, at para. 37 .
[53] The language in s. 151 does not track the formula expressed in s. 172.1(1) requiring that the complainant be “a person who is, or who the accused believes is, …” under a specified age: see Carbone, at paras. 98-99 . Thus, the fault element in s. 151 would appear to be the intention to touch the body of a person under 16 with a part of the accused’s own body for a sexual purpose.
Mistaken Belief in Age: Section 150.1(4)
[54] Section 150.1(4) applies to the sexual interference offence of s. 151. Section 150.1(4) refers to a defence and imposes restrictions upon its availability. The defence, absent the statutory restrictions, has its roots in the common law which permit a defence of mistake about an essential element of an offence requiring proof of mens rea . The section precludes the defence of an honest but mistaken belief that the complainant was at least 16 years old unless the accused took “all reasonable steps” to ascertain the complainant’s age. A similar statutory provision appears in s. 172.1(4) which, like s. 150.1(4), forecloses the defence where the claim is entirely devoid of an objective basis: Morrison at para. 45 ; Carbone, at para. 67 .
[55] Substantive defences like s. 150.1(4) have implications for the burden of proof. An evidentiary burden is imposed on the accused. A persuasive burden on the Crown. The threshold evidentiary burden on the accused is to adduce evidence sufficient to give the defence an air of reality: Morrison, at paras. 84, 118 ; R. v. Levigne, 2010 SCC 25, [2010] 2 S.C.R. 3, at para. 32 (3); and Carbone, at para. 129 . This requires the introduction of evidence that would permit the trier of fact to find that the accused believed the complainant was the required age and took all reasonable steps to determine the complainant’s age: Morrison, at paras. 119-120 ; Carbone, at para. 129 . This is consistent with general principles: R. v. Cinous, 2002 SCC 29, [2002] 2 S.C.R. 3, at paras. 2 , 50-54.
[56] Where an accused fails to meet the evidentiary burden under s. 150.1(4) , the defence available under that section fails in limine in accordance with general principle. However, where the evidentiary burden is met, the defence is in play and becomes available for the trier of fact to consider in accordance with its terms. Once the defence is in play, the burden settles upon the Crown to negate the defence for which the subsection provides. This too accords with general principle, except for those few defences where the legal burden also falls upon the accused.
[57] Where the defence of s. 150.1(4) is in play, the Crown may negate it in either of two ways. The Crown may prove that the accused did not honestly believe that the complainant was at least 16 years old at the time of the alleged offence. Or the Crown may prove that, despite the accused’s claim that they honestly believed that the complainant was at least 16, the accused did not take all reasonable steps to ascertain the complainant’s age: Morrison, at para. 88 ; Carbone, at para. 118 . See also R. v. Saliba, 2013 ONCA 661, 304 C.C.C. (3d) 133, at paras. 26-28 ; R. v. Duran, 2013 ONCA 343, 306 O.A.C. 301, at para. 51 .
[58] The “all reasonable steps” analysis required under s. 150.1(4) is highly contextual and fact specific. As a general rule, the more reasonable an accused’s perception of the complainant’s age, the fewer steps required of the accused to satisfy the standard of diligence imposed: R. v. George, 2017 SCC 38, [2017] 1 S.C.R. 1021, at para. 9 .
[59] Some steps are of no avail in the “all reasonable steps” analysis. The sexual activity itself cannot be summoned in support because the steps must precede the activity which forms the subject matter of the charge. Equally unavailing are steps taken after the alleged interference, although these steps may have purchase on an assessment of the credibility and reliability of a witness. The steps must precede the conduct in issue: George, at paras. 18-21 .
[60] “Reasonable steps” are steps that a reasonable person would take, in the same circumstances known to the accused at the time, to ascertain the complainant’s age. The reasonable steps requirement includes both objective and subjective elements. The steps, viewed objectively, must be reasonable. And the reasonableness of those steps must be asserted in the circumstances known to the accused: Morrison, at para. 105.
[61] “Reasonable steps” are steps that provide information reasonably capable of supporting an accused’s belief that the complainant is of legal age. In other words, the steps must be meaningful. Steps that solicit information that does not reasonably support a belief in legal age are not reasonable steps. Relevant considerations include not only the nature of the steps themselves, but also the information that those steps solicit. The steps need not always be active. However, where the early steps of an accused could reasonably support a belief that the other person is of legal age, but later events raise “red flags” that the other person may not be of legal age, additional steps may be required to meet the standard of s. 150.1(4) : Morrison, at paras. 106-109 .
[62] There is no magic number or exhaustive list of steps that an accused must take to satisfy the “all reasonable steps” requirement in s. 150.1(4) . A practical, common sense approach should prevail, informed by the overarching purpose of the provision – to protect vulnerable young people from sexual crimes by assigning responsibility for preventing adult/youth sexual activity on adults. And by an enhanced standard. Not simply “reasonable steps”, but “all reasonable steps to ascertain the age” of the complainant.
Section 150.1(4) and Proof of Guilt
[63] Where a substantive defence to a charge is in play, but disproved by the Crown, the consequences for proof of the essential elements of the offence vary. To illustrate what I mean, consider the offence of second degree murder and the defences of self-defence, alibi, and provocation.
[64] When the Crown disproves a defence of self-defence that is advanced as the sole defence to a charge of second degree murder, the Crown has established an essential element of the offence – an unlawful killing – but not the offence itself. This is because rebuttal of the defence says nothing about proof of the fault element in second degree murder.
[65] Where an accused advances a defence of alibi and the Crown disproves it beyond a reasonable doubt, the effect is of no consequence to proof of any essential element of second degree murder. It does not establish the accused’s presence when and where the offence was committed, only that they were not elsewhere as they claimed.
[66] Where the Crown proves beyond a reasonable doubt that the accused was not acting under provocation, the effect is that the accused committed murder. This is because provocation only enters the picture when murder has been proven. When provocation is negated, murder remains proven.
[67] Where the defence of honest belief in age is in play in a prosecution for sexual interference and the Crown proves beyond a reasonable doubt that the accused did not take all reasonable steps to ascertain the complainant’s age, this means that the defence is unavailing. But it does not mean that, on this basis alone, the offence charged has been proven beyond a reasonable doubt. Whether the offence charged has been so proven depends on whether the trier of fact concludes that the Crown has proven beyond a reasonable doubt that the accused believed that the complainant was underage: Morrison, at para. 129 .
[68] Where the Crown has disproven the honest belief in age defence in s. 150.1(4), the trier of fact is left with three possible states of mind. The accused may have believed or have been wilfully blind to the fact that the complainant was under 16. The accused may have appreciated that there was a risk that the complainant was under 16 but decided to go ahead anyway despite that risk. Or the accused may never have adverted to the complainant’s age and chose to proceed with the touching: Carbone, at para. 122 .
[69] The fault element under s. 151 may be proven by establishing that the accused believed that the complainant was under 16, or that the accused was wilfully blind to the fact that the complainant was under 16. The Crown may also establish the fault element by proving beyond a reasonable doubt that the accused believed that there was a risk that the complainant was under 16, but went ahead anyway, choosing to do so despite the risk. In other words, the accused was reckless as to the complainant’s true age. And the Crown may also demonstrate that the accused never turned their mind to the complainant’s age as they proceeded. This too may establish recklessness on the accused’s part with respect to the complainant’s age. Reckless indifference is a subjective state of mind bespeaking a choice on the part of an accused to treat the complainant’s age as irrelevant and to assume the risk associated with their choice: Carbone, at paras. 123, 126-127 .
[70] As Carbone teaches, the fault element of recklessness is subjective. It involves the appreciation of some level of risk coupled with the conscious decision to take that risk. Under s. 151, an accused who chooses to proceed with the activity the section prohibits – sexual activity with young persons – after having adverted to the possibility that the complainant was underage, will inevitably be found to have been reckless with respect to the complainant’s age: Carbone, at para. 125 . So too, at least in most cases, indifference to the complainant’s age, a state of mind that reflects a positive choice by an accused to treat the complainant’s age as irrelevant to their decision to engage in the sexual activity: Carbone, at paras. 126-127 .
The Principles Applied
[71] I would not give effect to this ground of appeal. To explain why, I begin with some background.
[72] At trial, several circumstances were uncontroversial. The sexual activity which the appellant and L.S. participated took place within the time period alleged in the indictment and amounted to the external circumstances or actus reus of the offences charged. The appellant touched the body of L.S. with a part of his own body. The touching was for a sexual purpose. L.S. was 15.
[73] The defence the appellant advanced at trial was that he honestly believed that L.S. was 18, thus not under 16 as the offence-creating provision requires, and that he had taken all reasonable steps in the circumstances as he knew them to ascertain L.S.’s age. In other words, the appellant had satisfied all the requirements of s. 150.1(4) of the Criminal Code.
[74] In his reasons for judgment, the trial judge made two findings of fact upon which he rested his decision that the Crown had proven the appellant’s guilt beyond a reasonable doubt. He found that the appellant honestly believed that L.S. was 18 and would have made the same finding even if the appellant had to establish this fact beyond a reasonable doubt. The trial judge also found that the Crown had proven beyond a reasonable doubt that the appellant failed to take all reasonable steps the circumstances required to ascertain L.S.’s true age. On the basis of the then existing authorities, these two findings together established the appellant’s guilt of both offences charged.
[75] We now know that this reasoning, which treats the failure to take all reasonable steps to ascertain a complainant’s age as a discrete pathway to conviction, is erroneous. This is because this reasoning fails to take into account the fault element the Crown is required to prove in cases of sexual interference where the mistaken belief in age defence of s. 150.1(4) has failed for want of all reasonable steps.
[76] To establish the requisite fault element in the circumstances of this case, the Crown had a suite of options. Actual belief that L.S. was under 16. Wilful blindness as to whether L.S. was under 16. And recklessness, either through the appellant’s appreciation of the risk that L.S. was under 16 and proceeding anyway in spite of that risk, or in never turning his mind to L.S.’s age.
[77] This court has indicated that this additional step – assessing the adequacy of the proof of the fault element – will have little practical effect on verdicts rendered on the basis of the former alternative pathway analysis. This is so because removal of the positive belief that the complainant was the required age, in tandem with recklessness as a basis for a finding of mens rea , will leave little room for a conclusion other than that an accused was, at minimum, reckless as to the complainant’s true age: Carbone, at para. 130 .
[78] Whether the result would have been the same under the additional step now required in the mens rea analysis under the alternative pathway approach, which this court has said is likely to be the case in the majority of instances, will turn largely on the trial judge’s analysis of the failure of the accused to take all reasonable steps to determine the age of the complainant.
[79] In this case, the trial judge likened the analysis required as akin to an inquiry into the exercise of due diligence. There was no checklist of factors dipositive of the issue. The benchmark was what steps a reasonable person in equivalent circumstances would have undertaken to determine the complainant’s age. The analysis was highly contextual and fact specific. The trial judge then listed the factors upon which the appellant relied and rejected the submission that they met the standard required by s. 150.1(4) . He concluded that the appellant essentially accepted L.S.’s statement about his age without further meaningful inquiry.
[80] Here, contrary to the position advanced by the appellant, the trial judge specifically rejected a checklist approach to the issue framed by s. 150.1(4) . He did not require a standard of perfection. The offences charged were complete within minutes of the first actual meeting between the parties. The appellant relied on what L.S. had said on his Grindr profile and in their chats. He well knew that things were not as advertised on Grindr. Account holders lied about many things. Their identity. Their age, as he did himself. The age gap between the parties was three decades. This is not a case where L.S.’s physical appearance showed him to be clearly of age. The appellant had no external benchmarks against which to test L.S.’s representation about his age. He made no request for identification, simply took L.S. at his word and made unwarranted assumptions.
[81] In the circumstances of this case, I am satisfied that, had he had the benefit of the later authorities, the trial judge would have reached the same conclusion. The trial judge rejected the single defence advanced, that is to say, that the appellant honestly believed L.S. was over 16 when the sexual activity prohibited by s. 151 took place. The rejection was grounded on the appellant’s failure to take all reasonable steps to ascertain L.S.’s true age. This rejection took the appellant’s claim that he believed L.S. was at least 16 out of the evidentiary mix. This rejection, on these facts, left only two possibilities. Either the appellant actually knew or was wilfully blind as to whether L.S. was under 16, or that he was reckless about L.S.’s true age . Either is sufficient to establish the mens rea required by s. 151.
Ground #2: Misapprehension of Evidence
[82] The appellant urges a second ground of appeal. He says that the trial judge misapprehended evidence that was material to the finding of guilt. This misapprehension provided context to the reasonableness of the appellant’s inquiries and his perception of L.S.’s appearance. It was thus important to the “all reasonable steps” analysis under s. 150.1(4) that led the trial judge to reject the only defence put forward at trial.
The Essential Background
[83] The misapprehensions in this case include a mistake about the substance of evidence and the failure to consider evidence about L.S.’s representation that he was 18.
The Online Dating Profile
[84] In his online dating profile on Grindr, L.S. indicated he identified as a “twink”, a younger gay man who had a boyish look. Briefly, a boyish gay man. This attracted plenty of attention on Grindr from older men.
[85] In examination-in-chief, the appellant testified that on Grindr L.S. also associated himself with an “older guy” tribe. Selection of a tribe indicated a person’s preference of what he liked, things of interest to the account holder.
The Age Representation
[86] As he began his relationship with the appellant and “Steven”, L.S. represented himself as 18.
[87] In cross-examination, it was suggested to L.S. that when he met others in person, they accepted or appeared to accept that he was 18. He agreed. He was not asked and gave no evidence about having or using fake identification documents describing his age as 18. No submissions were made about him having or using fake identification.
The Reasons of the Trial Judge
[88] In his written reasons, the trial judge referred to evidence that on his Grindr profile, the appellant indicated his interest in two “tribes”: “The ‘twink’ tribe (being younger-looking men) and another tribe, being older men.”
[89] The trial judge made no reference to any evidence about the appellant being accepted by others as older than his true age or his possession or use of false identification.
The Arguments on Appeal
[90] In brief submissions on this issue, the appellant contended that the trial judge was in error about the substance of the evidence about the online Grindr profile of L.S. His designation of the tribe “twink” did not indicate his interest in younger men, as the trial judge recounted it, but that he was someone who had a youthful appearance. This misapprehension was material because it provided further context to the reasonableness of the appellant’s inquiries and his perception of L.S.’s appearance.
[91] In addition, the appellant says that the trial judge failed to consider evidence that others accepted that the complainant was 18 and that he had used fake identification in the past. This evidence indicated that the appellant’s failure to cross-examine L.S. about his age or to ask for identification were unlikely to produce any truthful response about his actual age. It follows that the appellant’s failure to do so should not have tolled against him in the “all reasonable steps” analysis .
[92] The respondent demurs. There was no misapprehension of evidence, in either sense advanced by the appellant, material to the reasoning process that led to the findings of guilt. This is a stringent test. The misapprehension must be an essential, rather than peripheral, part of the reasoning process leading to the finding of guilt. For it to amount to a miscarriage of justice, the misapprehension must leave the balance of the reasoning on shaky ground when struck from the determination of guilt.
[93] First, the respondent submits, the trial judge was not mistaken about the substance of the evidence about the “twink” tribe selected on L.S.’s Grindr profile. L.S. explained its meaning. The tribe “twink” referred to younger gay men. This comported with his youthful appearance and reinforced his later representations that he was 18.
[94] Second, the trial judge’s failure to refer to evidence that others accepted that L.S. was 18, including others on Grindr such as “Steven”, was of no consequence to the trial judge’s findings of guilt. Neither was it of consequence that the trial judge failed to refer to evidence that L.S. had apparently used or tried to use fake identification, and thus might have done so if asked by the appellant for identification. None of these steps were taken by the appellant.
The Governing Principles
[95] The principles governing appellate review of claims of misapprehension of evidence are well established in our jurisprudence.
[96] A misapprehension of evidence includes a mistake about the substance of evidence, a failure to consider evidence relevant to decide a material issue, or a failure to give proper effect to evidence: R. v. Morrissey (1995), 22 O.R. (3d) 514 (C.A.), at pp. 217-218.
[97] For a misapprehension of evidence to vitiate a conviction on the ground of a miscarriage of justice, the misapprehension must have to do with the substance of the evidence, not merely its details. The misapprehension must be material, not merely peripheral, and the error must play an essential part in the reasoning process leading to conviction, not just in the narrative of the judgment: R. v. Lohrer, 2004 SCC 80, [2004] 3 S.C.R. 732, at para. 2 . An error in the assessment of evidence amounts to a miscarriage of justice only if striking it from the judgment leaves the reasoning leading to the finding of guilt on shaky ground: R. v. Sinclair, 2011 SCC 40, [2011] 3 S.C.R. 3, at para. 56 .
The Principles Applied
[98] In my respectful view, this ground of appeal fails. As I will explain, the claims of misapprehension advanced here, whether considered individually or in combination, simply do not ascend to the stringent threshold required to warrant our intervention.
[99] First, the evidence about L.S.’s Grindr profile.
[100] The reasons of the trial judge include two references to the “tribes” included in L.S.’s Grindr profile. Each refers to “twink” and another tribe with interest in older men. The profile itself was not tendered or filed as an exhibit.
[101] The initial reference to “another tribe, being older men” appears under the heading “Background”. This is a narrative part of the judgment. It informs no part of the reasoning process leading to conviction. The second reference is contained in a summary of the appellant’s testimony at trial, recounting the factors upon which the appellant relied on to found his belief that L.S. was 18. The reference is faithful to the appellant’s testimony that the designation of a “tribe” reflected the account holder’s sexual preferences, “things that you’re interested in.”
[102] To the extent that the submission about misapprehension of evidence is grounded on a mistake about the substance of this evidence, the argument fails.
[103] Nor am I persuaded that the omission of references to the acceptance by others of L.S.’s representations that he was 18, or that he had used fake identification in the past, contaminated the judge’s conclusion that the appellant failed to take all reasonable steps to ascertain L.S.’s true age.
[104] The evidence was of doubtful admissibility – at least to the extent that it consisted of a witness reporting what others had said about acceptance of L.S.’s age-related representations as evidence of actual acceptance, or L.S.’s possession or use of false identification. It would appear to offend the hearsay rule and fall well short of admission by exception. Even received as non-hearsay, there was no evidence that it formed part of the appellant’s consideration. Similar admissibility concerns emerged when L.S. was asked in cross-examination whether others accepted that he was 18. That they did so was scarcely something about which he could testify, all the more so when the circumstances of such acceptance were not disclosed.
Disposition
[105] For these reasons, I would dismiss the appeal.
Released: “MJF” August 24, 2021 “David Watt J.A.” “I agree. Fairburn J.A.” “I agree. Grant Huscroft J.A.”
