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judge or justice may make an order directing that any information that could identify the victim or a witness shall not be published in any document or broadcast or transmitted in any way, in proceedings in respect of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the presiding judge or justice may make an order directing that any information that could identify the victim shall not be published in any document or broadcast or transmitted in any way.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: 20230201 DOCKET: C68654
Huscroft, Trotter and Harvison Young JJ.A.
BETWEEN
His Majesty the King Respondent
and
C.P. Appellant
Counsel: Anthony Marchetti, for the appellant Jennifer A. Y. Trehearne, for the respondent
Heard: January 19, 2023
On appeal from the conviction entered on February 25, 2019 by Justice Eric N. Libman of the Ontario Court of Justice.
REASONS FOR DECISION
[1] The appellant appeals from his conviction on one count of sexual assault and two counts of sexual interference.
[2] There is no dispute about the central facts which formed the basis of the charges. On the day of the encounter, the 14-year-old complainant E.B. skipped her grade nine classes to go to the Apple Store at the Eaton Centre in Toronto to use their computers. There, she exchanged Facebook messages with the 35-year-old appellant and arranged to go to his house. The complainant testified that she knew the appellant from a prior interaction with him.
[3] The complainant said that while at his house, the appellant twice gave her ketamine. She described that the appellant touched her body with his hands and digitally penetrated her, and that he had intercourse with her before putting his penis into her mouth. She testified that she was agreeable to most of the sexual acts but did not want to perform fellatio. She also said that she asked the appellant to wear a condom but did not think he did, and that the appellant took pictures of her while she performed fellatio and while she was in her underwear despite her objections. The complainant said that after the sexual activity, the appellant gave her MDMA. She then learned that the appellant had an eight-year-old daughter and was “30 something”. She was taken aback and told him she was only 14 years old. She observed the appellant to appear surprised, and he promptly arranged for a taxicab to take her home. The trial judge convicted and imposed a four-and-a-half-year sentence with the appropriate ancillary orders.
[4] The appellant argues on appeal that the trial judge erred in both his analysis of the statutory fault element of the offence and in rejecting the appellant’s mistake of age defence. In particular, the appellant submits that the trial judge erred by failing to engage in the “highly contextual, fact-specific exercise” as required by R. v. George, 2017 SCC 38, [2017] 1 S.C.R. 1021, at para. 9. He also argues that there was a “lack of evidence” to support the trial judge’s findings that despite the ingestion of drugs, the complainant’s perception and recall of the sexual encounter was reliable in all material aspects. In addition, he submits that this error was compounded by the trial judge’s improper use of the complainant’s prior consistent out-of-court statements to bolster her credibility.
[5] For the following reasons, the appeal is dismissed. We address the appellant’s grounds of appeal in turn.
The trial judge did not misapprehend the evidence in relation to either the statutory fault element of the offence or the appellant’s mistake of age defence
[6] The trial judge set out the evidence in great detail. He noted that the person in the contemporaneous photo of the complainant was clearly “a young person”. The appellant had seen her at the gas station where she previously purchased drugs and knew who the complainant was when she sent him a Facebook message on the day of their meeting. During that Facebook exchange, the complainant mentioned a picture that she had posted on Facebook of herself in which she said she looked “like a 10 year old”. The appellant responded, “ur too pretty to look 10 anytime”. The complainant said she was “bored” and only had $5. The appellant invited her to his house and arranged to meet her at a subway station.
[7] The trial judge found that it was “clear to the [appellant] that the complainant was under age”. We do not agree with the appellant’s submission that the term “under age” was at best vague, and that it should have been understood to indicate that he knew she was under 18 years old, but not under 16 years old. This is a submission that was made below and renewed again on appeal. We see no error in the trial judge’s finding that the appellant knew before the sexual acts that the complainant was under the age of 16. The trial judge referred to the relevant provisions of the Criminal Code, R.S.C. 1985, c. C-46, numerous times throughout his reasons. A trial judge is presumed to know the law with which they work, day in and day out, and their reasons must be read functionally, contextually and with this presumption in mind: R. v G.F., 2021 SCC 20, 459 D.L.R. (4th) 375, at paras. 5, 69 and 74. Even where reasons are ambiguous, and we do not believe this to be the case here, interpretations that are consistent with a correct application of the law are to be preferred: G.F., at paras. 78-79.
[8] We thus see no basis to interfere with the trial judge’s finding that the Crown had established beyond a reasonable doubt both the mens rea and actus reus of the offence. In other words, the Crown had proven beyond a reasonable doubt that the appellant either believed the complainant was under the age of 16, was wilfully blind to that fact, or that he believed there was a risk the complainant was under the age of 16 and chose to take that risk and was therefore reckless as to her true age: R. v. Carbone, 2020 ONCA 394, 150 O.R. (3d) 758, at paras. 123-24.
[9] We are also satisfied that, on the facts as found by the trial judge, he did not err in rejecting that there was an air of reality to the appellant’s mistake of age defence. At the beginning of his reasons when referring to the appellant’s alternative mistake of age defence submission, the trial judge clearly rejected this argument since the appellant “took no steps to ascertain the age of this young woman” and further that, “[t]here was nothing about her conduct that would preclude him from doing so”.
[10] Simply stated, the trial judge found that there was no air of reality to the appellant’s mistake of age defence. There was no evidence that the appellant made any inquiries relating to the complainant’s age before the sexual acts took place. As the trial judge found, when the appellant first had any contact with the complainant on the day in question, the Facebook exchange between them would have put him on alert that he was dealing with a younger individual. These alerting factors would have included the complainant’s Facebook picture, in which she clearly appears to be a “young person”, her reference to looking about 10 years old and the fact that her Facebook username contained an age-related reference. The appellant never attempted to ask how old she was, or anything else of the complainant that would have indicated any concern about her age, or which could have constituted “reasonable steps”. He admitted that he “did nothing” to ascertain her age. His evidence was that he thought she was at least 17 years old, relying on the fact that she was tall and that he recognized her friends from the club scene.
[11] We also reject the appellant’s submission that the trial judge failed to engage in a “highly specific and highly contextual” analysis as required by George. In his analysis, the trial judge considered all five pieces of evidence that the appellant now submits that he ignored. These pieces of evidence include: 1) the complainant’s height; 2) the complainant’s use of dark eye makeup; 3) the age of the complainant’s friends; 4) the evidence of the complainant’s mother that the complainant had “changed”; and 5) the appellant’s observation of the complainant between one and four times at a gas station purchasing drugs. The trial judge was alive to all of this evidence when considering the appellant’s mistake of age defence.
[12] We thus see no error in the trial judge’s conclusion that despite the appellant’s claim that he honestly believed that the complainant was at least 16 years old, the appellant took no steps to ascertain her age. There was simply no air of reality to the defence.
[13] In summary, we see no error in the trial judge’s conclusion that the Crown proved beyond a reasonable doubt that the appellant knew the age of the complainant, was wilfully blind of that fact or was reckless about her age.
[14] Nor do we find any contradiction between the findings that the appellant knew that the complainant was ‘underage’ and his shocked reaction when she told him that she was 14 years old. Rather, and given the overwhelming evidence that she was very young, this confirmed that the appellant was required to make some inquiry to ascertain her age. If anything, the appellant’s shock was the product of his failure to take any reasonable steps to ascertain her age.
The trial judge did not err in his credibility and reliability findings with respect to the complainant
[15] Turning to the second ground of appeal, we see no error in the trial judge’s credibility and reliability findings. Significant deference is warranted to a trial judge’s credibility findings as they have the advantage of seeing and hearing the evidence of witnesses: R. v. Tynes, 2022 ONCA 866, at para. 57; R. v. R.A., 2017 ONCA 714, 355 C.C.C. (3d) 400, at para. 44, aff’d 2018 SCC 13, [2018] 1 S.C.R. 307. Credibility findings should not be interfered with on appeal unless they cannot be supported on any reasonable view of the evidence: R. v. R.P., 2012 SCC 22, [2012] 1 S.C.R. 746, at para. 10. Absent a palpable and overriding error, an appellate court must not interfere in a trial judge’s credibility findings: Tynes, at para. 57.
[16] The appellant submits that the complainant’s evidence lacked sufficient credibility and reliability to ground a conviction. He asserts this largely on the basis that the trial judge found that the complainant voluntarily consumed a powerful psychoactive drug that would have impaired her perception and recall of events experienced while intoxicated.
[17] Contrary to the appellant’s submission, we do not read the trial judge’s reasons as making such a finding. Rather a functional and contextual reading of the trial judge’s reasons demonstrate that his ultimate conclusion was that the complainant was consistent as to what had occurred at the appellant’s house, and that therefore, she must have been an experienced drug user given the drugs she admitted to ingesting.
[18] Nonetheless, even if the trial judge had reasoned in the manner submitted by the appellant, the record was sufficient to ground such a finding. The complainant testified that by January of 2014, she regularly used ketamine and the toxicologist was not challenged on her evidence that a person could build up a tolerance to ketamine. With respect to the evidence about the complainant’s use of MDMA, both the complainant and appellant testified that the complainant did not ingest MDMA until after the alleged sexual activity and therefore, it could not have caused her to hallucinate it. Accordingly, even if the trial judge’s reasons are read as suggested by the appellant, it was open to him to find that the complainant was an experienced drug user whose perception of the events on the day in question was unaffected by her drug use.
The trial judge did not misuse the complainant’s prior consistent statements
[19] The appellant’s third ground of appeal impugns two passages in the trial judge’s reasons where he submits that the trial judge impermissibly used the complainant’s prior consistent statements to bolster her credibility. The first impugned passage relates to Facebook communications between the appellant and the complainant three days following the sexual assault, in which the complainant told the appellant exactly what had occurred between them. In particular, the complainant detailed the type of activities that the complainant had stated occurred. In this Facebook exchange, the appellant confirmed that that the two had “fooled around”, kissed, that the complainant asked him to call her names and treat her roughly, and that they discussed condom use. The second impugned passage relates to the trial judge’s observation that “at no time did the complainant ever demur from what she says occurred” in the appellant’s bedroom. The appellant submits that in both passages the trial judge erred in law by then using the complainant’s prior consistent statement to bolster her credibility.
[20] We also reject this third ground of appeal as the trial judge did not use the complainant’s prior consistent statement to bolster her credibility. The trial judge’s comments were made in the context of his conclusion that the complainant’s drug use had not affected her reliability and were also responsive to the defence’s closing submission. Moreover, the appellant’s own messages admitted to at least some sexual interaction.
[21] In closing, the defence argued that the complainant’s “delayed disclosure” of three years to police was a “major inconsistency” in the complainant’s evidence. The defence submitted that there was a “a clear connection between the delay in coming forward to police” and “[the complainant’s] doubt, own doubt, regarding what happened that evening”. It was also suggested that her disclosure to police was a “fabrication” that “was timed in a way to deflect attention away” from the complainant. The defence argued that the complainant had just been arrested for drug possession, had been told that her mother was coming to the police station and that she was afraid of her mother’s reaction, so she “fabricated” the sexual assault to “deflect attention away” from her. The defence also argued that the complainant had consumed a significant amount of drugs at the time of the sexual assault, which impacted her reliability. The defence relied on the forensic scientist’s evidence on the disorienting and hallucinatory effects of ketamine to impugn the complainant’s reliability. The defence further argued in closing submission that a major inconsistency in the complainant’s evidence was her “inability to locate, regular heterosexual sexual intercourse in the alleged sexual intercourse, and the alleged oral sex, in and around that time period where [the appellant] left the room”.
[22] The trial judge was alive to the complainant’s reliability concerns given the complainant’s drug use, in addition to the significant period of time that had elapsed before she disclosed to the authorities what she says occurred. It was within this context that the Facebook communications were used by the trial judge, and it was open to him to consider that these communications corroborated the complainant’s version of events at trial. In the impugned passages, the trial judge is effectively saying that the fact of the complainant’s statements to the appellant, the timing of them, and the circumstances in which they were made yield inferences supporting the reliability of the complainant’s in-court testimony: R. v. Langan, 2019 BCCA 467, 452 D.L.R. (4th) 178, at para. 95, per Bauman C.J. (dissenting), rev’d 2020 SCC 33, 396 C.C.C. (3d) 149 (adopting the dissenting reasons of Bauman C.J.); R. v. Khan, 2017 ONCA 114, 136 O.R. (3d) 520, at para. 39. It was also open to the trial judge to use the Facebook communications to rebut the defence’s allegation of recent fabrication: Khan, at para. 28.
[23] Of particular significance is the defence’s reliance on this Facebook exchange to impugn the complainant’s reliability. The trial judge was required to assess the complainant’s in-court testimony in light of the Facebook communications—including the central evidence of what happened the day in question—in order to respond to these arguments: Langan, at para. 96.
[24] Finally, a contextual reading of the trial judge’s reasons demonstrate that the impugned passages came in response to the appellant’s submission at trial that the complainant was unreliable as she did not consistently place the point at which the appellant left the room for one-and-a-half-hours in relation to the sexual activity. Again, the trial judge did not impermissibly use the complainant’s prior consistent statement and he was entitled to consider that the inconsistency did not leave him with a reasonable doubt in light of the fact that the complainant had remained consistent on the material question of what sexual activity occurred.
[25] We therefore dismiss the appeal.
“Grant Huscroft J.A.”
“Gary Trotter J.A.”
“A. Harvison Young J.A.”