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judge or justice may make an order directing that any information that could identify the victim or a witness shall not be published in any document or broadcast or transmitted in any way, in proceedings in respect of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(iii) REPEALED: S.C. 2014, c. 25, s. 22(2), effective December 6, 2014 (Act, s. 49).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the presiding judge or justice may make an order directing that any information that could identify the victim shall not be published in any document or broadcast or transmitted in any way.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: 2022-05-13 Docket: C69003

Judges: Doherty, Tulloch and Favreau JJ.A.

Between: Her Majesty the Queen, Respondent and D.E., Appellant

Counsel: Patrick J. Ducharme, for the appellant Sunil S. Mathai, for the respondent

Heard: May 6, 2022

On appeal from convictions entered by Justice J. Paul R. Howard of the Superior Court of Justice on July 30, 2020, with reasons reported at 2020 ONSC 4602.

Reasons for Decision

[1] After a trial by judge alone, the appellant was convicted of one count of sexual interference and one count of invitation to sexual touching. The complainant was 13 or 14 at the time of the incidents. The appellant was 29.

[2] There was little, if any, dispute about the factual events. The complainant was introduced to the appellant by her older brother in late November or early December 2017. The appellant operated a pizzeria and the complainant’s brother worked there.

[3] In late November or early December 2017 when the complainant was alone with the appellant in the pizzeria, they engaged in what was initially flirtatious conduct, but which led to full intercourse in the back room.

[4] On a subsequent occasion, the complainant touched the appellant’s penis over his pants at the appellant’s request. On a third occasion, the appellant was driving the complainant to Tim Hortons when he asked for a kiss. This led to a request to fondle his exposed penis. The complainant complied, but refused to provide oral sex.

[5] Because the complainant was under 16, and the appellant was more than two years older than the complainant, consent was not a defence to the charges: Criminal Code, s. 150.1. The appellant relied on the defence in s. 150.1(4) of the Criminal Code. That section provides a defence if the appellant believed the complainant was 16 years of age or more, and “took all reasonable steps to ascertain the age of the complainant”.

[6] The appellant testified that the complainant told him she was 16 and that she was in grade 11. He believed the complainant. He testified she looked significantly older than 13 or 14, acted in a more mature manner, and discussed things like purchasing a car, which the appellant associated with the activities of someone well over 16.

[7] In her evidence, the complainant acknowledged that the sexual activity was not coercive from her perspective. She also enjoyed the appellant’s company. The complainant did, however, testify that she never told the appellant she was 16 or that she was in grade 11. She recalled telling him she was in grade 9 (her actual grade), but could not remember exactly when that conversation occurred.

[8] The complainant’s older brother testified that he was 15 years old when he went to work for the appellant in the fall of 2017. The appellant was aware of his age and agreed to help him get his driver’s licence. The brother also testified that, when he introduced his sister to the appellant in November or December of 2017, he described his sister as his “younger sister”.

[9] The appellant admitted he was aware of the brother’s age, but denied that the complainant was introduced to him as the brother’s “younger sister”.

[10] The trial judge properly identified the issues in the case, properly acknowledged that there was an air of reality in the evidence to the appellant’s claim that he believed the complainant was over 16 years of age, and properly recognized the burden of proof on the Crown in respect of that defence.

[11] After a thorough review and analysis of the complainant’s testimony, the trial judge concluded that while he had some concerns about the reliability of the complainant’s evidence “as to when certain discussions took place”, he had no doubt about the reliability of her “version of events”. In other words, the trial judge believed the complainant’s narrative of her interactions with the appellant.

[12] After a similarly thorough review, the trial judge accepted the brother’s evidence, indicating:

To my mind, the context of the first encounter of [the complainant] with [Mr. E.] in the presence of [her older brother] provides the natural explanation of why [her older brother] introduced [the complainant] to [Mr. E.] in the manner in which, I find he did.

[13] The trial judge next turned to the appellant’s evidence. He identified several features of that evidence, which caused him to conclude the appellant was not a credible witness. Some of the aspects of the appellant’s evidence identified by the trial judge, if considered in isolation, might be regarded as relatively inconsequential. However, when viewed in their totality, they provide a solid basis for the trial judge’s outright rejection of the appellant’s evidence on the essential issues. The trial judge ultimately concluded:

I am not left in a reasonable doubt by his evidence as to any element of the offences charged. Further, considering all of the evidence that I do accept, I am convinced beyond a reasonable doubt that [Mr. E.] did not honestly believe that [the complainant] was 16 years of age as of the time of their sexual encounters.

Thus, for all these reasons, I find the Crown has proven beyond a reasonable doubt that [Mr. E.] did not honestly believe that [the complainant] was at least 16 years of age at the time of the incidents in question.

[14] The trial judge’s finding that the appellant did not believe the complainant was 16 years old effectively eliminated the defence in s. 150.1(4). In the absence of an honest belief that the complainant was over 16, the existence of reasonable steps to support that belief is irrelevant to the appellant’s guilt.

[15] The trial judge did go on, however, for the sake of completeness, to consider whether the appellant had taken “all reasonable steps” to ascertain the complainant’s age. Once again, after a detailed review of the evidence and a consideration of some of the applicable case law, the trial judge was satisfied the appellant did not take all reasonable steps to ascertain the complainant’s age. The trial judge described the appellant as proceeding with “reckless indifference as to the age of the complainant”. Reckless indifference as to the complainant’s age establishes the required mens rea: R. v. Carbone, 2020 ONCA 394, at paras. 123-27.

[16] There is no error in the trial judge’s analysis. The evidence supported the findings he made and those findings cannot be characterized as unreasonable.

[17] Counsel also alleged the trial judge misapprehended an important piece of evidence. In his reasons, the trial judge indicated the appellant had testified that he knew the complainant did not have a driver’s licence. This was not an accurate statement of the evidence. The appellant had testified that the complainant told him that she wanted to get a job so she could purchase a vehicle. He assumed from this comment that she had a driver’s licence. In cross-examination, he acknowledged that the assumption was not necessarily accurate.

[18] The trial judge’s misapprehension of evidence comes down to the difference between the appellant knowing that the complainant did not have a driver’s licence (the trial judge’s statement), and the appellant assuming she did have a driver’s licence (the appellant’s evidence). The appellant’s evidence that he assumed the complainant had a driver’s licence could hardly help his case when considering whether he had taken “all reasonable steps” to ascertain her age. The trial judge’s factual error was not material to the ultimate outcome.

[19] The appellant marshalled many of the usual arguments targeting alleged errors and inadequacies in the trial judge’s reasons. Having heard the oral argument, it is clear the appeal is an attempt to have this court reconsider the factual arguments made at trial. Those kinds of arguments are beyond the reach of this court.

[20] The appeal is dismissed.

“Doherty J.A.”

“M. Tulloch J.A.”

“L. Favreau J.A.”