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judge or justice may make an order directing that any information that could identify the victim or a witness shall not be published in any document or broadcast or transmitted in any way, in proceedings in respect of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, 160, 162, 163.1, 170, 171, 171.1, 172, 172.1, 172.2, 173, 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 from time to time before the day on which this subparagraph comes into force, if the conduct alleged would be an offence referred to in subparagraph (i) if it occurred on or after that day; or

(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the presiding judge or justice may make an order directing that any information that could identify the victim shall not be published in any document or broadcast or transmitted in any way.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.

486.6(1) Every person who fails to comply with an order made under any of subsections 486.4(1) to (3) or subsection 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.

COURT OF APPEAL FOR ONTARIO

DATE: 20230418 DOCKET: C68906

Tulloch, Benotto and Trotter JJ.A.

BETWEEN

His Majesty the King Respondent

and

John Clement Appellant

Counsel: Solomon Friedman and Vanessa Garcia, for the appellant Natalya Odorico, for the respondent

Heard: November 30, 2022

On appeal from the conviction entered by Justice Richard T. Knott of the Ontario Court of Justice on March 9, 2020.

REASONS FOR DECISION

A. Overview

[1] The appellant was convicted of sexual assault, sexual interference, and breach of probation. The offences arose out of a relationship the appellant had with the thirteen-year-old complainant, whom he had met on Tinder, in the summer of 2018. The case largely turned on whether the appellant took all reasonable steps to ascertain the complainant’s age.

[2] At the hearing, we dismissed the appeal with reasons to follow. These are those reasons.

B. BACKGROUND Facts

[3] In June 2018, the thirteen-year-old complainant created several fake social media accounts including an account on Tinder, an online dating application for individuals aged eighteen or older. She used the false name “Anne” and stated that she was nineteen on her profile. Initially, she posted a photo of her face on her profile, but later took it down. At the time she matched with the appellant, the only picture on her profile was of a green Ferris wheel.

[4] The appellant and the complainant began messaging on Tinder. The appellant was twenty-two years old at the time. They soon moved their conversation to Snapchat, another private messaging application, because the appellant was suspicious of the complainant’s Tinder profile. On Snapchat, the complainant told the appellant her real name and that she was eighteen years old. She also told the appellant that she was in grade twelve at a Catholic high school. The complainant and the appellant also exchanged nude photographs over Snapchat.

[5] Over the next few months, the complainant and the appellant met in person and engaged in sexual relations on five separate occasions. On one occasion, the appellant picked the complainant up at her mother’s house in the late evening, they went to the appellant’s residence where the complainant performed oral sex and they then engaged in vaginal intercourse. The next two sexual encounters involved the complainant performing oral sex on the appellant. The fourth encounter involved intercourse.

[6] The final sexual encounter occurred on September 19, 2018. The complainant walked to the appellant’s residence after school in her high school uniform. She met the appellant’s roommate, Mr. Mitton, and his roommate’s girlfriend, Ms. Strader, and told them that she was eighteen years old.

[7] The next day, the complainant messaged the appellant, revealed her real age, and attempted to commit suicide. After her suicide attempt, the complainant’s mother went through the complainant’s phone and discovered the messages and photos between her daughter and the appellant.

[8] In the complainant’s first statement to the police, she made allegations of sexual assault against the appellant and another man. She said she “tricked” the appellant into thinking she was eighteen and felt guilty because “they” were innocent people. About a month later, the complainant gave a second statement to the police. The appellant was arrested shortly afterwards.

[9] At the time of the alleged assaults, the appellant was subject to a probation order which required him to keep the peace and be of good behaviour. The probation order was admitted at trial on consent.

[10] The appellant did not testify at trial, but his statement to the police was admitted. In his statement, the appellant denied knowing the complainant and having had any sexual relations with her. The appellant raised the alternative defence that he was lawfully mistaken about the complainant’s age, under s. 150.1(4) of the Criminal Code, R.S.C., 1985, c. C-46.

C. TRIAL DECISION

[11] The trial judge was satisfied beyond a reasonable doubt that the sexual encounters occurred. He further found that these encounters were consensual in the sense that the complainant wanted to have sex with the appellant, but she could not consent to sexual relations with a twenty-two-year-old at the age of thirteen.

[12] The trial judge then turned to assess the mistaken belief in age defence. The complainant’s first statement to the police – that she lied to the appellant about her age and felt he was innocent – created an air of reality to this defence. The trial judge applied the principles set out in R. v. George, 2017 SCC 38, [2017] 1 S.C.R. 1021, at para. 8:

[T]o convict an accused person who demonstrates an “air of reality” to the mistake of age defence, the Crown must prove, beyond a reasonable doubt, either that the accused person (1) did not honestly believe the complainant was at least 16 (the subjective element); or (2) did not take “all reasonable steps” to ascertain the complainant’s age (the objective element). [Citations omitted.]

[13] The trial judge found that the appellant did not take all reasonable steps to ascertain the complainant’s age. The trial judge considered the following evidence in reaching this conclusion:

• The appellant and the complainant had a nine-year age difference;
• The complainant was only thirteen and not close to sixteen, the age of consent for sexual relations with the appellant;
• It was “clear” from the complainant’s physical appearance that she was in her “middle teens”;
• The complainant wore a school uniform when she was with the appellant on at least one occasion in September, indicating that she was still in high school at the beginning of the school year;
• The appellant knew that the complainant was still living at home with her parents;
• The complainant wore braces;
• The complainant did not consume alcohol with the appellant;
• The appellant’s roommate and the roommate’s girlfriend “commented on the young age of the complainant”;
• The complainant’s mother described her as “socially immature” and noted that she suffers from ADHD, PTSD, anxiety, and depression; and
• The appellant was suspicious of the complainant’s Tinder profile. The lack of photos on her profile and her admission that she initially lied about her age should have set off warning bells to make further inquiries.

[14] Aside from the complainant’s evidence that she told the appellant she was eighteen, as opposed to nineteen, there was no evidence that the appellant took any other steps to determine the complainant’s age when these circumstances would have required more than just asking the complainant about her age.

D. ISSUES on APPEAL

[15] The appellant raises the following grounds of appeal: (1) did the trial judge err by admitting cross-count evidence, without a Crown application, voir dire, or bad character evidence analysis; and (2) did the trial judge fail to properly apply the law with respect to “all reasonable steps” and in so doing, reverse the burden of proof and apply irrelevant considerations?

E. Analysis

(1) The trial judge did not improperly admit or rely on the probation order

[16] The appellant submits that his probation order was improperly admitted as cross-count evidence that would not have survived a bad character evidence inquiry. We disagree. The appellant was charged with breach of probation and his probation order was properly before the court with respect to this count: see e.g., R. v. R.C. (2001), 161 C.C.C. (3d) 335, 159 O.A.C. 373 (C.A.), at para. 40. The probation order was admitted at trial on consent for the purpose of showing that the appellant was bound by the probation order at the time of the alleged sexual offences. The Crown did not rely on the probation order for any other purpose.

[17] The appellant submits that the trial judge nonetheless improperly relied on the probation order in his analysis of the sexual interference offence where he stated that: “One would think a person on probation to keep the peace and be of good behaviour would make inquiries when he is engaging in sexual relations with a teenager.”

[18] In the reasons preceding this statement, the trial judge explicitly cautioned himself against the impermissible use of the probation order: “[w]hether the accused has a previous record or not is irrelevant to this case, apart from the breach of probation charge.” The impugned comment that followed was made in passing and was not central to the trial judge’s assessment of the key issues in this case. The trial judge did not refer to the nature of the charges for which the appellant was on probation. There is no indication that he made an improper inference from the existence of the probation order in his analysis on the mistaken belief in age defence.

[19] In any event, any error in relation to the evidence from the probation order had no bearing on the outcome. The trial judge considered a number of other more significant factors to conclude that a reasonable person in the circumstances known to the appellant would have made further inquiries into the complainant’s age.

(2) The trial judge reasonably concluded that the appellant failed to take all reasonable steps to ascertain the complainant’s age

[20] The offence of sexual interference under s. 151 of the Criminal Code requires the Crown to prove beyond a reasonable doubt that (i) the complainant was under sixteen years of age, (ii) that the accused touched the complainant, and (iii) that the touching was for a sexual purpose: R. v. W.G., 2021 ONCA 578, 405 C.C.C. (3d) 162, at para. 51, leave to appeal refused, [2021] S.C.C.A. No. 381.

[21] Section 150.1(4) precludes the defence of honest but mistaken belief that the complainant was at least sixteen years old unless the accused took “all reasonable steps” to ascertain the complainant’s age: W.G., at para. 54. Once the accused raises an air of reality to this defence, the burden is on the Crown to establish that the accused did not take all reasonable steps. The determination of whether an accused took “all reasonable steps” to ascertain the complainant’s age is based on what steps a reasonable person would take in light of the circumstances known to the accused at the time: W.G., at para. 60; R. v. Morrison, 2019 SCC 15, [2019] 2 S.C.R. 3, at para. 210. There is no automatic checklist of considerations or an exhaustive list of steps that an accused must take to satisfy this requirement: R. v. Duran, 2013 ONCA 343, 3 C.R. (7th) 274, at para. 52. The inquiry is highly contextual and fact-specific: W.G., at para. 46; Morrison, at para. 113. Trial judges are instructed to adopt a practical, common-sense approach to this analysis bearing in mind the goal of protecting youth from sexual offences: W.G., at para. 62.

[22] The trial judge did not fail to properly apply the law with respect to “all reasonable steps” under s. 150.1(4) of the Criminal Code. The appellant presents alternative explanations for the evidence that the trial judge relied on to conclude that the appellant did not take “all reasonable steps”, summarized at para. 13 above, to suggest that each individual piece of evidence did not necessarily support the inference that the appellant appeared to be a minor. However, a trial judge must take a holistic, not a piecemeal, approach to the evidence. The trial judge’s weighing of the evidence is owed considerable deference on appeal.

[23] The appellant takes issue with the trial judge’s reference to the complainant’s mental health issues as part of this analysis because these mental health concerns were not known to the appellant. The trial judge did not rely on the complainant’s mental health status as an indicator of her age. The trial judge acknowledged that the appellant was unaware of the complainant’s struggles with mental health and simply noted that her “health situation speaks to the additional vulnerabilities of young teenagers”. This remark demonstrates that the trial judge was alive to the legislative objective of s. 150.1(4). It is otherwise of no legal consequence.

[24] The trial judge’s finding that the appellant did not exercise “the same degree of care in ascertaining a complainant’s age that a reasonable person would exercise in equivalent circumstances” is reasonable and supported by the evidence: W.G., at para. 46. We see no basis to interfere with this finding.

[25] Based on the trial judge’s assessment of the complainant’s physical appearance at trial when she was fourteen, it was clear to him that she was somewhere in her mid-teens. The appellant’s roommate and his roommate’s girlfriend also commented on their perceptions of the complainant’s young age. The complainant wore her high school uniform to the appellant’s apartment at the start of the school year in September 2018 indicating that she was still in high school and not close to graduation. The appellant still had braces. The appellant knew that the complainant still lived with her parents. The appellant did not seem to want to be seen with the complainant in public. He did not offer her any alcoholic beverage while he would do so for others. He also had reasonable suspicions about the complainant’s Tinder account. However, there is no evidence that the appellant took any steps to confirm the complainant’s real age after she told him she was eighteen, as opposed to nineteen. All of these factors, taken as a whole, should have raised alarms for the appellant.

[26] On the totality of the evidence, a reasonable person in the circumstances known to the appellant would have made further inquiries into the complainant’s age. As such, the trial judge did not err in rejecting the appellant’s mistaken belief in age defence under s. 150.1(4) of the Criminal Code.

F. Disposition

[27] Accordingly, we dismiss the appeal from conviction.

“M. Tulloch J.A.”

“M.L. Benotto J.A.”

“Gary Trotter J.A.”

[1] The trial judgment was rendered prior to this court’s decision in R. v. Carbone, 2020 ONCA 394, 150 O.R. (3d) 758.