WARNING

The court hearing this matter directs that the following notice be attached to the file:

A non-publication and non-broadcast order in this proceeding has been issued under subsection 486.4(1) of the Criminal Code. This subsection and subsection 486.6(1) of the Criminal Code, which is concerned with the consequence of failure to comply with an order made under subsection 486.4(1), read as follows:

486.4 Order restricting publication — sexual offences.

(1) Subject to subsection (2), the presiding judge or justice may make an order directing that any information that could identify the complainant or a witness shall not be published in any document or broadcast or transmitted in any way, in proceedings in respect of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, 172, 172.1, 173, 210, 211, 212, 213, 271, 272, 273, 279.01, 279.02, 279.03, 346 or 347,

(ii) an offence under section 144 (rape), 145 (attempt to commit rape), 149 (indecent assault on female), 156 (indecent assault on male) or 245 (common assault) or subsection 246(1) (assault with intent) of the Criminal Code, chapter C-34 of the Revised Statutes of Canada, 1970, as it read immediately before January 4, 1983, or

(iii) an offence under subsection 146(1) (sexual intercourse with a female under 14) or (2) (sexual intercourse with a female between 14 and 16) or section 151 (seduction of a female between 16 and 18), 153 (sexual intercourse with step-daughter), 155 (buggery or bestiality), 157 (gross indecency), 166 (parent or guardian procuring defilement) or 167 (householder permitting defilement) of the Criminal Code, chapter C-34 of the Revised Statutes of Canada, 1970, as it read immediately before January 1, 1988; or

(b) two or more offences being dealt with in the same proceeding, at least one of which is an offence referred to in any of subparagraphs (a)(i) to (iii).

(2) Mandatory order on application. — 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 complainant of the right to make an application for the order; and

(b) on application made by the complainant, the prosecutor or any such witness, make the order.

486.6 Offence.

(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.

Court Information

Ontario Court of Justice

Date: February 1, 2017

Court File No.: London 14-4178

Between:

Her Majesty the Queen

— AND —

K.M.

Before: Justice A. Thomas McKay

Heard on: May 17, August 19 and November 4, 2016

Reasons for Judgment released on: February 1, 2017

Counsel:

Ms. Heather Palin — counsel for the Crown

Ms. Valdis Libis — counsel for the accused K.M.

MCKAY J.:

INTRODUCTION

[1] The accused met the complainant in this matter when he was 20 years old. He was aware that the complainant was in high school, although he maintains that he did not specifically know her age. They met through mutual friends, attended the same parties and hung around with the same group of people. Their friendship turned into a sexual relationship which continued until the time that the accused was arrested on these charges. The charges were laid because of the fact that the complainant was 14 years of age when they began the sexual relationship. Given the Criminal Code provisions regarding the age of consent, the accused is charged with sexual assault contrary to section 271, sexual interference contrary to section 151, and invitation to sexual touching contrary to section 152 of the Criminal Code.

[2] The accused does not dispute the sexual relationship. He maintains that the group of friends that he and the complainant spent time with were all in the range of 17 to 20 years of age. The complainant stated that she was 17 years old. He believed that the complainant was 17 years old until he was informed otherwise by the police.

[3] For the reasons that follow, I find that the accused had a subjective belief that the complainant was 17 years of age during the timeframe in which they had a relationship. Further, I find that the Crown has not proven beyond a reasonable doubt that the accused failed to take all reasonable steps to ascertain the complainant's age. Accordingly, the accused will be acquitted on all charges.

EVIDENCE

Complainant's Testimony

[4] At the time that she testified, the complainant was 16 years of age. Her date of birth is […], 1999. She described the accused as her ex-boyfriend. She was 14 years of age when she met the accused through a mutual friend. At that point, the mutual friend was 18 years old. Initially she and the accused were simply friends who hung out together. They met sometime during the summer months of 2014. Eventually, probably by the fall of 2014, the relationship changed to one where they were having sexual intercourse. She was 14 years of age at the time. They did not call themselves boyfriend/girlfriend while in public. In public, they continued to portray their relationship as simply a friendship.

[5] The complainant could not recall specifically how many times she and the accused had sex. She knows that she was 14 years old on the first occasion that they had sex. It occurred in the accused's bedroom in his parent's home. No one else was home. When asked to describe how the relationship became sexual, the complainant indicated that it was simply normal. They started to get interested in each other and then had sex. There were no prior discussions about having sex. The accused never asked her how old she was, and there was never any discussion about her age. After this first occasion, they had sex again approximately one week later. The complainant described it as "nothing unusual, pretty basic, nothing unnatural, just sex".

[6] The complainant was uncertain how many times she and the accused had sex in total. They continued with a sexual relationship. The last time they had sex was approximately one week before the police began to investigate these offences. Whenever they had sex, it was always in the accused's bedroom. At no point did they talk about their birthdates. She did not "label" the relationship because she did not think that it was anyone's business. They never specifically discussed not telling people that they were in a sexual relationship. She was interviewed by the police on November 6, 2014.

[7] The Crown successfully brought an application under section 9(2) of the Canada Evidence Act, and was allowed to cross-examine the complainant with respect to the statement which she provided to police. The complainant testified that when she spoke to the police, she was having trouble recalling details, but attempted to do her best to recall the events. The statement was videotaped, and she did not review it until sometime later when a transcript of the statement was typed. It was difficult to say if the statement was completely accurate. She was trying to piece things together as best she could recall. She reviewed the transcript of the statement in court, but indicated that it was impossible to say whether the transcript was an accurate record of the statement. Reading the statement did not help her to recall any discussion with the accused about her age. She was unable to recall any discussion with the accused about her age.

[8] The complainant agreed that when she gave the statement, she had not been drinking alcohol, nor had she consumed any drugs. She understood the nature of the investigation, and knew that it was important to tell the truth and to give a comprehensive statement. She agreed that the events were fresh in her mind on the day that she gave the statement. The police officer who took the statement treated her well; the English language was used throughout the statement; and there was no need to leave the interview room at any time. The complainant agreed that pages 27 and 28 of the transcript of her video statement were accurate.

[9] On pages 27 and 28 of the transcript of her statement, the complainant gave the answers outlined below to the questions posed by the police officer:

Q: Okay. So, ah, when he was saying that to E.J., wait 'til you're older, then how old did he think you were?

A: Well, he knows how old I am.

Q: Okay. How does he know that?

A: 'Cause like obviously we talked like…

Q: Mm-hmm

A: we did not like not just say anything to each other, like I knew how old he was 'cause we talked about.

Q: Okay.

A: He knows how old I am.

Q: Yeah, so tell me about that. How - tell me about how he knows how old you are.

A: Well, like we talk about our birthdays and stuff so he like - he found out plus I think when I first met him E.J. told him 'cause he thought I was older when I first met him.

[10] The complainant went on to testify that she recalled giving those answers and that she was being truthful at the time. However, she had an idea in her mind about her relationship with the accused while giving the statement. She thought that they had talked about age but in hindsight she might have just thought that they talked about her age. They talked about the month of her birthday, not the year. While giving evidence, she could not recall any conversation with the accused about her age.

[11] The complainant stopped seeing the accused after the police were called. She could not recall if she ever had sex with the accused after the conversation which they had about her age. She described that conversation as a short conversation about the month of her birth. She does not recall the accused ever asking her the year of her birth. Her recollection was that she had already had sex with the accused by the time they had a conversation about her birth month.

[12] The complainant thought at the time she gave the statement to the police that the accused knew how old she was. She felt at that time that she had dated the accused long enough that he would have picked up on how old she was. The complainant did not recall ever asking the accused how old he was. She had some hearsay information about his age from her friend. At various times she has told many people that she was older than she actually is. She never told the accused that she was 17 years old.

[13] Her recollection was that she first met the accused at a party. The party involved people who went to the local high school. The range of the people at the party was between 14 years and 20 years of age. People were consuming alcohol at the party and she recalls engaging in some small talk with the accused. After that evening, she probably messaged the accused on Facebook and then added him as a Facebook friend. She had photos of herself on her Facebook profile, but no photos of her at school. Her Facebook profile contains a date of birth. It is not the correct date of birth; it indicates that she is 19 years of age.

[14] After meeting at the party, she had Facebook conversations with the accused. Her friend suggested that they go to the accused's house to hang out, and they did so around the beginning of the summer. She doubts that any of the conversation which they had touched upon school, but it was definitely mentioned that she was returning to school in the fall. She never had any conversations with the accused about homework from school and never had a direct conversation with him about being in school. When they were together, they essentially hung out, watched TV and made small talk. The accused never met any member of her family.

[15] She was unable to recall the number of times she had sex with the accused. It was frequent. She did not tell anyone other than her friend about the relationship, because it was not anyone else's business.

[16] When cross-examined by the defence, the complainant testified that her friend was 17 years old at the time the complainant met the accused. She has always hung around with the older kids because she is more mature than people thought. She hung around with older kids, mainly aged 16 to 19 years old, dressed like them, went to parties with them, drank alcohol and smoked pot with them. The parties went on late and she stayed just as late as her older friends. She became friends with the accused and they began texting each other. They would see each other at parties and hang out together. The relationship developed and she began going to the accused's house to hang out, at times with other friends.

[17] She had what she described as ordinary interactions with the accused, but then the relationship became a romantic interest for both of them. The accused never pressured her. She hung out with the accused's group of friends for a number of months. She had dinner at the accused's residence several times. She could not recall specifically who was at each dinner. She agreed that it would not surprise her if she told the accused's mother that she was 17 years old. The accused always treated her well and she was unaware that he had any learning disabilities. She testified that it was only when she saw a nurse that someone said something was wrong with the relationship. She felt that the nurse was judgmental.

Voir Dire Regarding the Accused's Statement to Police

[18] The Crown called evidence related to a statement provided to police by the accused. After a voir dire, for oral reasons delivered that day, the court found that the statement was not voluntary and it was excluded from evidence.

Testimony of Mutual Friend

[19] The mutual friend was 19 years of age at the time of trial. She and the complainant became friends in high school. At the time their friendship began, the mutual friend was 16 or 17 years old, and the complainant was 13 years old and in grade nine. The mutual friend also knew the accused, having met him through her boyfriend. When the complainant met the accused, the complainant was 14 years of age. Her recollection is that the complainant told her that she was attracted to the accused. She never spoke to the accused about the complainant's age. She knew that the relationship between the complainant and the accused changed over time and that the complainant really liked the accused. She was surprised when she heard that the relationship between the two had become sexual because of their difference in age. In her view, the complainant does look younger than her age. The people that she and the complainant hung around with were 16 or 17 years old.

[20] The accused never said anything to her about the complainant being younger than the rest of them. She never had a conversation with the accused about the complainant being younger than the rest of the group. When shown a statement which she provided to the police when the investigation was ongoing, she agreed that in the statement she was being truthful. She further agreed that she told the police in her statement that she had talked to the accused about the complainant wanting to date. She also told police that the accused responded to that by saying "she's a lot younger than me, maybe when she is older". That conversation took place in the summer of 2014. She believes that it was a conversation by text message.

[21] In cross-examination, the mutual friend agreed that it is difficult to recall events from that long ago. In addition, it was difficult to recall those events at the time she was giving her statement to the police. She was unable to really recall the actual conversation with the accused. She knew that the complainant was romantically interested in the accused. She never told the accused that the complainant was 14 years old. She agreed that the complainant liked hanging around with older kids, and felt comfortable in that group. The complainant would attend parties with the group of older kids at which everyone would be consuming alcohol. Not everyone in the group knew everyone else's age. The complainant was part of this group of older teenagers. The complainant attended the same parties and stayed as late as the rest of the group. A lot of the summer in question, the complainant lived at the mutual friend's house. She was aware of the complainant's actual age, and that may be a big part of her perception that the complainant looked younger than the rest of the group.

Testimony of the Accused

[22] The accused was 22 years of age at the time of the trial. He lives with his parents. He has a grade nine education, having taken part in the "school to work" program. He has been on Ontario Disability Support Program benefits since he was 17 or 18 years of age. From time to time he has employment, which he characterizes as "anything hands on". He suffers from ADD and ADHD. He indicated that he often loses his temper. He has been treated by professionals his entire life. He has always had difficulty in school.

[23] He met the complainant in 2014, approximately one year before these charges were laid, through their mutual friend. Originally they hung out together as part of a group. They would get together on occasion to play videos or watch TV. They went to the same parties, and consumed alcohol as part of the same group. They became Facebook friends. He believed that the complainant was 17 years old at the time, because that is what she said when she had dinner at his house one evening. His recollection is that her Facebook page also indicated that she was that age. His understanding is that you need confirmation of age to post your age on Facebook. In the spring or early summer of 2014, he viewed the complainant's Facebook profile and it gave a date of birth of […], 1995 and contained a number of photographs of her. All of the complainant's friends that she hung around with during this time frame were 17 to 20 years of age. Until the police got involved in this investigation, no one had ever told him that the complainant was not 17 years of age.

[24] His relationship with the complainant changed over time. They became intimate, and had sex approximately five times. He could not really recall who initiated sex, or who took the lead. He never had to instruct the complainant about how to do anything related to sex. He had no intention of taking advantage of the complainant. He only became aware that there was an issue when the police telephoned his cell phone, and left a message for him to call the police. During the subsequent conversation with police, they informed him that the complainant was not 17 years old. He had no idea of what the age of consent was prior to being told by the police.

[25] In cross-examination, he agreed that he was 20 years old when he first met the complainant. He was aware that the mutual friend was younger than him and that some of the people in the group that he hung out with were younger than him. He could not recall any discussion with the mutual friend about the complainant wanting to date him. He cannot recall how he learned that the complainant was interested in dating him. He never asked anyone how old the complainant was. He knew that the complainant was in high school. He was unaware of what grade she was in, or whether she was going back to school in the fall of 2014. The timeframe in which he was having sex with the complainant was possibly in the summer of 2014, and definitely by the fall of 2014.

[26] The accused believed that the complainant was approximately his age. He did not take any steps to find out how old she was, he assumed from all of the information which he had that she was approximately his age. In his view, the complainant did not look any younger than the rest of the group, nor did she ever indicate that she was only 14 years old. When asked whether he learned about the age of consent at school in health class or sex education class, he indicated that he had not. He did not believe that those topics were covered in the grade 9 "school to work" program. He maintained that the sexual activity between him and the complainant was mutually initiated. The complainant smoked cigarettes, drank alcohol and stayed out late just like everyone else in the group of older kids.

Testimony of the Accused's Mother

[27] The accused's mother is the accused's mother. The accused was born in Strathroy, Ontario. During her pregnancy, she had a pregnancy stress test and learned that her baby was in distress. Her son was born with illnesses and has had a number of problems from that point on. He has received medical assistance since birth. He presently collects benefits from the ODSP program. He has always been in special classes at school, was always taught at a lower grade level, and was older than his classmates in school.

[28] The accused hung out with a number of other kids, some of whom she knew. The kids would come to her house at times. That group included the complainant. The complainant had dinner with them on a couple of occasions. The complainant always appeared nice, and was not out of place with the other kids in the group. The complainant looked a little younger, so at one point she asked the complainant her age. The complainant indicated that she was 17 years old, and the accused's mother was satisfied with that. Both her husband and her son were present during that conversation. From her observations, the complainant was more mature than her son.

[29] In cross-examination, she indicated that she was not certain of exactly when she asked the complainant how old she was; it was probably one or two months after the complainant started hanging out with her son. The complainant's face looked a little younger than the other kids, but her body looked mature. She thought that there was something between the complainant and her son, and that they might be dating. The complainant never mentioned school. The complainant was shy and quiet during the dinners that she attended at her house.

Testimony of Another Friend

[30] Another friend was 21 years of age at the time of the trial. The accused was part of a group of friends that she hung out with during the relevant timeframe, as was the complainant. She was 17 to 18 years old during the time that they were all hanging out together. She indicated that the entire group was roughly the same age. The accused was her best friend. The group attended parties together. The complainant would be present at the parties, and everyone present would be drinking alcohol. She believed that the complainant was 17 years old at the time, and that is consistent with what the complainant's Facebook profile said at the time. In her view, there was no reason to assume that the complainant was a different age from the remainder of the group. She was aware that there was a dating relationship between the accused and the complainant. She was shocked when the police became involved, as she had no idea that the complainant was 14 years old at the time.

[31] In cross-examination, she agreed that she never asked the complainant her age. She maintained that at the parties, people were roughly the same age and that there were no 14-year-olds attending parties that she would have been aware of.

POSITIONS OF THE PARTIES

The Crown

[32] The complainant testified that she began having sex with the accused in the fall of 2014, and continued to do so until police became involved in November 2014. There was never any discussion about what her age was. Her activities in terms of hanging out with older teenagers, smoking, consuming alcohol and attending late parties do not mark her age. The accused should have taken steps to ascertain her age, particularly because her Facebook page indicated she was 19 years of age, and she told his mother that she was 17 years of age. That was a signal that she was lying about her age and a reasonable person would have taken steps to ascertain her age. The accused did not. That fails to meet the test set out in the Criminal Code.

[33] This case can be distinguished from the fact situation in R. v. Chapman, given that this was not a one night encounter. The accused should have been alive to the age issue because of the signal that the complainant was lying about her age. The opinions of others with respect to her age are not material, because others were not having a sexual relationship with the complainant. The accused had a responsibility to ensure that he was aware of her age.

The Defence

[34] What constitutes reasonable steps depends upon the circumstances. This is not a scenario with an older person preying upon a younger person, taking advantage of that person, grooming that person, and preplanning the sexual activity. The accused is extremely unsophisticated. He met the complainant as part of a group of young people who were hanging around together. The complainant fit in with the group, acted the same as the group, and claimed to be older than she was. Memories of details of any conversations about age have faded in all of the witnesses. In this situation, given what he saw, given what he was told and what he knew, the accused was not required to make any further inquiries about the complainant's age in order to meet the test of reasonable steps.

APPLICABLE LEGAL PRINCIPLES

[35] It is an offence under section 151 of the Criminal Code to, for a sexual purpose, touch, directly or indirectly, with a part of the body or with an object, the body of any person under the age of 16 years. Similarly, it is an offence under section 152 of the Criminal Code to, for a sexual purpose, invite, counsel or incite a person under the age of 16 years to touch, directly or indirectly, any person's body.

[36] Section 150.1 of the Criminal Code provides that consent is not a defence to certain sexual offences, including sections 151, 152 and 271, except in certain limited situations which are outlined in that section. For the purposes of this trial, the relevant sub-sections read as follows:

150.1(1) Subject to subsections (2) to (2.2), when an accused is charged with an offense under section 151 or 152 or subsection 153(1), 160(3) or 173(2) or is charged with an offense under section 271, 272 or 273 in respect of a complainant under the age of 16 years, it is not a defence that the complainant consented to the activity that forms the subject-matter of the charge.

(2.1) If an accused is charged with an offense under section 151 or 152, subsection 173(2) or section 271 in respect of a complainant who is 14 years of age or more but under the age of 16 years, it is a defence that the complainant consented to the activity that forms the subject matter of the charge if the accused

(a) is less than five years older than the complainant; and

(b) is not in a position of trust or authority towards the complainant, is not a person with whom the complainant is in a relationship of dependency and is not in a relationship with the complainant that is exploitive of the complainant. …

(4) It is not a defence to a charge under section 151 or 152, subsection 160(3) or 173(2), or section 271, 272 or 273 that the accused believed that the complainant was 16 years of age or more at the time the offence is alleged to have been committed unless the accused took all reasonable steps to ascertain the age of the complainant.

[37] The burden remains upon the Crown to prove beyond a reasonable doubt that the accused has not taken all reasonable steps to ascertain the complainant's age. What constitutes "all reasonable steps" depends upon the context and circumstances of any particular case.

[38] In its decision in R. v. Chapman, 2016 ONCA 310, the Ontario Court of Appeal cited with approval the following passage from R. v. L.T.P. (1997), 113 C.C.C. (3d) (B.C.C.A.):

"In considering whether the Crown has proven beyond a reasonable doubt that the accused has not taken all reasonable steps to ascertain the complainant's age, the court must ask what steps would be reasonable for the accused to take in the circumstances. As suggested in R. v. Hayes, sometimes a visual observation alone may suffice. Whether further steps would be reasonable would depend upon the apparent indicia of the complainant's age, and the accused's knowledge of same, including: the accused's knowledge of the complainant's physical appearance and behaviour; the ages and appearance of others in his company the complainant is found; the activities engaged in either by the complainant individually, or as part of a group; and the times, places, and other circumstances in which the complainant and her conduct are observed by the accused. .... Evidence as to the accused's subjective state of mind is relevant but not conclusive because, as pointed out in R. v. Hayes at p. 11, "[a]n accused may believe that he or she has taken all reasonable steps only to find that the trial judge or jury may find differently"."

[39] In its decision in R. v. Duran, 2013 ONCA 343, the Ontario Court of Appeal, speaking in the context of jury instructions, indicated that the trial judge should have instructed the jury to determine whether what the accused knew and observed about the complainant were all the steps that a reasonable person needed to take or whether a reasonable person ought to have made further inquiries.

ANALYSIS

[40] In this case, at the relevant time, the accused was more than five years older than the complainant. The sexual activity took place approximately 4 to 6 months before the complainant's 15th birthday. The accused was 20 years old at the time. Therefore, section 150.1(2.1) does not afford a defence to the charge despite the complainant's stated consent to the activity.

[41] The issue remains whether the accused has a defence to the charges on the basis that he took all reasonable steps to ascertain the age of the complainant. If there is evidence which meets the evidentiary burden required to establish that the accused honestly believed that the complainant was 16 years or older, the Crown must prove beyond a reasonable doubt that the accused either did not have that belief, or that he failed to take all reasonable steps to ascertain the complainant's age. The decision in R. v. Chapman, supra, provides guidance in terms of what constitutes reasonable steps in a given situation.

[42] The case law establishes that the requirement of all reasonable steps set out in section 150.1(4) is more than a casual requirement. It is an earnest inquiry or some other compelling factor which negates the need for an inquiry. The question of whether the standard of "all reasonable steps" has been met is fact specific and depends upon the circumstances of the case. The word "all" with respect to reasonable steps is important. However, it is only necessary that an accused person raise a reasonable doubt.

[43] With respect to the complainant, I find that she intentionally portrayed herself as older than she actually was. I find that in the presence of the accused and his parents, she indicated that she was 17 years of age. The ambiguities and contradictions in her evidence make it impossible to conclude that she ever had a conversation with the accused about her actual age.

[44] With respect to her Facebook profile, I accept that it lists her date of birth as […], 1999, when her actual date of birth is […], 1995. However, I am not clear from her evidence that her Facebook profile lists her as 19 years of age was a reference to what it listed as her age at the time of trial, or at the time of her relationship with the accused.

[45] I find that the complainant associated with a group of friends who were 16 years of age or older, and that she engaged in the same activities as that group including consuming alcohol and attending late parties. Evidence is that she essentially lived at the mutual friend's house that summer, which is an indication of a level of freedom that one would not normally associate with a 14-year-old. I accept the evidence that the complainant's appearance and activities were such that she fit in with that group of older teenagers.

[46] With respect to the complainant's physical appearance, I accept the evidence of the accused, the accused's mother, and another friend that there is nothing from the complainant's physical appearance which would differentiate her from the group of older teenagers she associated with. I note that the mutual friend testified that the complainant appeared younger to her, but in cross-examination, conceded that her awareness of the complainant's actual age may have affected her perception of the complainant's appearance.

[47] I find that the accused had a subjective belief that the complainant was 16 years of age or older at the time that they were engaged in a relationship. In this situation, I find that there was a compelling basis for the accused to hold that belief, and not make any further inquiries. Everything that he knew about the complainant would indicate that she was 16 years of age or older. More importantly, while she was having dinner with his family and in his presence, she specifically told his mother that she was 17 years of age. In these circumstances, that compelling fact means that the accused was not required to take any further steps. He met the requirement of all reasonable steps within the meaning of section 150.1(4) of the Criminal Code.

[48] There will be findings of not guilty with respect to all charges.

Released: February 1, 2017

Signed: "Justice A. Thomas McKay"