Court of Appeal for Ontario

Date: 2025-03-26
Docket: COA-23-CR-1205
Coram: E.E. Gillese, P.J. Monahan, S. Gomery JJ.A.

Between:
His Majesty the King (Respondent)
and
James Keena (Appellant)

Appearances:
Paula Rochman, for the appellant
Raoof Zamanifar, for the respondent

Heard: March 14, 2025

On appeal from the convictions entered on January 27, 2023, and the sentences imposed on June 8, 2023, by Justice Carol A.R. Brewer of the Ontario Court of Justice.

Reasons for Decision

Overview

[1] On three occasions while the appellant was between the ages of 33 and 34, he had oral and anal intercourse with the complainant, a boy who was then aged 14 to 15. On the third occasion, the appellant took photographs and a video of the sexual activity.

[2] At the outset of his trial, the appellant pleaded guilty to three counts: making child pornography; possessing child pornography; and making sexually explicit material available to a child. His trial proceeded on three contested counts: sexual interference; sexual assault; and child luring for the purpose of facilitating sexual interference.

[3] At trial, there was no dispute that the actus reus of the three contested charges was proven. The key legal issue was whether the appellant had an honest but mistaken belief the complainant was 16 years of age or older. The trial judge found that the appellant’s mistake of age defence had an air of reality. She also found the Crown had not proven beyond a reasonable doubt the appellant did not honestly believe that the complainant was at least 16 years old. However, she gave compelling reasons for finding the appellant failed to take all reasonable steps to ascertain the complainant’s age.

[4] With respect to the sexual interference and sexual assault charges, the trial judge concluded that the appellant was reckless as to the possibility the complainant was underage. She accordingly convicted the appellant of those charges. She acquitted the appellant of child luring. As the child luring matter is not under appeal, we decline to comment on this finding. The trial judge conditionally stayed the sexual assault charge pursuant to R. v. Kienapple, [1975] 1 S.C.R. 729.

[5] On sentencing, the Crown sought a total sentence of seven years’ incarceration; defence counsel sought a sentence of between two and three years in custody.

[6] The appellant was given a global sentence of 5 years, apportioned as follows: 4.5 years’ imprisonment for sexual interference, and six months’ imprisonment to be served concurrently on each of the non-contested counts but consecutive to the sentence for sexual interference.

[7] The appellant appeals his convictions for sexual assault and sexual interference. His primary submission on the conviction appeal is that the trial judge erred in finding he was reckless and chose to take a known risk rather than take reasonable steps to ascertain the complainant’s age. He argues the trial judge imposed a standard of perfection when describing the steps he could have taken to ascertain the complainant’s age and gave insufficient reasons for rejecting his testimony that, in the circumstances, there was no risk the complainant was underage.

[8] The appellant also seeks leave to appeal against sentence. If leave is granted, he submits the sentence imposed was manifestly unfit.

[9] After hearing from the appellant, the court advised the parties that it did not need to hear from the Crown on the conviction appeal. However, it did call on the Crown on the sentence appeal.

[10] At the conclusion of the hearing, the court advised the parties that the conviction appeal was dismissed, with reasons to follow, and reserved its decision on the sentence appeal.

[11] For the reasons that follow, both the conviction and sentence appeals are dismissed.

Background

[12] The appellant and the complainant met through “Grindr”, a popular “hook up” application in the LGBTQ+ community used to arrange sexual encounters with other users in the same general vicinity. Users of Grindr do not provide their names but do describe their sexual interests; they may provide one or more photos. To access the Grindr application, a user must claim to be at least 18 years old; however, there is no formal mechanism to verify age. The complainant admitted to lying about his age to access the Grindr application.

[13] After meeting through Grindr, the appellant and complainant communicated through the application and text messages for a few months before meeting in person for sexual activity. Their communications were highly focused on sexual matters.

[14] The complainant testified that he told the appellant his true age of 14 on two occasions: once while communicating over text message, and again while driving to the appellant’s home for their first sexual encounter. The complainant testified that after he told the appellant he was 14 years old, the appellant told him “not to tell anyone or I could get in a lot of trouble.”

[15] The appellant testified that he asked the complainant how old he was while they were communicating on Grindr and the complainant said he was 16. He also testified that the complainant’s appearance when they met in person for the first time was consistent with that of a 16-year-old. The appellant denied that the complainant ever told him he was 14 years old.

[16] The trial judge found the complainant to be straightforward and candid. He was open about his sexual behaviours and did not try to paint the appellant in a negative light. Further, his version of the sexual activity in the three incidents was consistent with the appellant’s version of the events.

[17] The trial judge found the appellant was honest about his lifestyle, sexual preferences, and sexual activity with the complainant. She was satisfied there was an air of reality to the appellant’s mistaken belief in age defence. However, she found that the appellant failed to take all reasonable steps to ascertain the complainant’s age and was reckless as to his age because, despite being aware of the possibility that the complainant was underage, he “wanted to proceed with the sexual activity and decided to take the risk.”

Analysis

The Conviction Appeal

[18] In our view, the evidence overwhelmingly supported the convictions. The trial judge correctly set out and applied the law in concluding the appellant failed to take all reasonable steps to ascertain the complainant’s age and was reckless as to his age.

[19] The trial judge noted that the “reasonable steps” analysis is highly contextual and fact specific. After adverting to the key principles in R. v. W.G., 2021 ONCA 578, paras. 58-62, she concluded that, based on the circumstances known to the appellant, he failed to take all reasonable steps to ascertain the complainant’s age.

[20] The trial judge approached her “reasonable steps” analysis from the factual premise that the complainant might have told the appellant that he was 16 and that the appellant knew that the complainant was a high school student living with his parents. She then set out a compelling body of evidence to explain why she was satisfied the appellant failed to take all reasonable steps to ascertain the complainant’s true age. The appellant and the complainant were strangers when they met online on Grindr. Although they spent some four months communicating by messages on Grindr and texts, they knew little about one another because their discussions were focused on sex and sexual fantasies. The trial judge noted many serious red flags that the complainant was underage which the appellant ignored. For example, before they met in person, the complainant sent the appellant photos showing his youthful appearance. After receiving the photos, the appellant testified that he asked the complainant how old he “actually was” and the complainant answered “16”. At that point, the appellant knew the complainant had lied about being 18 to access Grindr. Nonetheless, apart from that single instance in which the appellant asked the complainant about his age, he made no inquiries of the complainant about his age before they met.

[21] While the appellant testified he relied on the complainant’s physical appearance, sexual maturity, and their months of exchanging messages to satisfy himself that further inquiry as to the complainant’s age was not necessary, the trial judge found that a reasonable person would have taken further steps such as asking for the complainant’s date of birth or for a piece of identification. The appellant argues on appeal that some of the steps the trial judge suggested he might have taken amount to a standard of “perfection” and may not have resulted in the appellant learning the complainant’s real age. However, the point is not that the appellant failed to take the suggested steps but that he took no steps whatsoever to ascertain the complainant’s age, apart from the single instance in which he asked the complainant how old he “really was”. Accordingly, the trial judge found the appellant failed to take all reasonable steps to ascertain the complainant’s age. This finding was fully open to the trial judge.

[22] There is no basis for appellate interference with the convictions.

The Sentence Appeal

[23] Appellate courts owe significant deference to a sentencing judge’s determination of a fit sentence. They are not to intervene unless the sentence is demonstrably unfit or the sentencing judge committed an error in principle and it appears from the decision that the error had an impact on the sentence: R. v. Lacasse, 2015 SCC 64, paras. 44, 51.

[24] The trial judge made no error in principle and the five-year sentence falls within the range established by the Supreme Court in R. v. Friesen, 2020 SCC 9, para. 114. Accordingly, there is no basis for appellate interference.

[25] As the trial judge noted, when imposing a sentence for an offence involving the abuse of a person under the age of eighteen years, Parliament has decreed that the court is to give primary consideration to the objectives of denunciation and deterrence: Criminal Code, RSC 1985, c C-46, s. 718.01. Further, at para. 114 of Friesen, the Supreme Court instructs sentencing judges that “mid-single digit penitentiary terms for sexual offences against children are normal … and substantial sentences can be imposed where there was only a single instance of sexual violence”.

[26] In this case, the trial judge found several aggravating factors which include the following. There were three instances of highly intrusive sexual activities involving a high degree of physical interference over a period of seven months. The time interval between the incidents gave the appellant the opportunity to reflect on the complainant’s age and the appropriateness of his conduct, but he did not do so. The victim was between 14 and 15 years of age at the time of the offences and there was a profound age difference between him and the appellant, who was almost 20 years his senior. The appellant documented his sexual abuse of the complainant by creating exploitive child pornography (photos and a video) of the complainant. Further, the complainant suffered devastating harm as a result of the offences.

[27] The trial judge also considered the mitigating circumstances which include: the appellant had no criminal record; this was his first contact with the justice system; he pleaded guilty to three of the offences; he has a strong work ethic and history of gainful employment; he is his mother’s only source of support and she depends on him for assistance in her daily living and, on occasion, for financial help; he has strong community support; and, he was genuinely remorseful for having failed to ensure the complainant was old enough to consent to sexual activity and for the harm his behaviour has caused the complainant and his family.

[28] To the extent the appellant maintains, as he did in his written submissions, that the trial judge erred in principle by failing to consider the complainant’s role in the sexual activity, we categorically reject this submission. A victim’s participation is never a mitigating factor or a relevant consideration in crafting a sentence for a sexual offence against a child: Friesen, paras. 149-154.

[29] After considering all the relevant sentencing factors, the trial judge imposed a sentence that reflected the gravity of the offences and the appellant’s degree of responsibility. There is no basis for appellate intervention.

Disposition

[30] Accordingly, the conviction appeal is dismissed and, while leave to appeal sentence is granted, the sentence appeal is also dismissed.

“E.E. Gillese J.A.”
“P.J. Monahan J.A.”
“S. Gomery J.A.”

[1] This appeal is subject to a publication ban pursuant to s. 486.4 of the Criminal Code, RSC 1985, c C-46.