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or justice may make an order directing that any information that could identify the complainant or a witness shall not be published in any document or broadcast or transmitted in any way, in proceedings in respect of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: 2017-12-11
Court File No.: Thunder Bay, Ontario 162179
Between:
Her Majesty the Queen
— AND —
C.G.V.
Before: Justice Peter T. Bishop
Heard on: November 16, 2017 and November 17, 2017
Reasons for Judgment released on: December 11, 2017
Counsel:
- Adriana Nigro, counsel for the Crown
- George Joseph, counsel for the defendant C.G.V.
BISHOP J.:
Charges
[1] C.G.V. stands charged that between the 24th day of June, 2016 and the 25th day of June, 2016 at the city of Thunder Bay, in the Northwest Region, did for sexual purpose touch T.F., a person under the age of sixteen years, directly with a part of his body to wit: penis, contrary to Section 151 of the Criminal Code.
And further
[2] That between the 24th day of June, 2015 and the 25th day of June, 2016 at the City of Thunder Bay in the said region, did commit a sexual assault on T.F., contrary to Section 271 of the Criminal Code.
Evidence of T.F.
[3] The court viewed a video which was taken by the Thunder Bay Police on July 12, 2016 where T.F. disclosed that she and the accused met at the shopping mall in Thunder Bay.
[4] T.F. and the accused left the mall and made contact and agreed to meet again. They communicated through Facebook.
[5] T.F. does not remember what the messages said but they asked questions to get to know each other better.
[6] She knew his age two to three weeks later before going to his place. He told her that he was almost thirty and she stated that she told him her age.
[7] She went to the accused's house and lied to her Mom as she told her Mom that she was going to a friend's place for the weekend.
[8] She said she felt nervous and he told her not to be nervous. They watched a movie and he looked at her and she looked at him and he kissed her. She kissed him back.
[9] She agreed to go to his room because she was too scared to say no.
[10] He kissed her again and stood up and he put her on his bed and she didn't know what to do.
[11] He took his shirt off and she was uncomfortable for a while but didn't say anything.
[12] He was on top of her and was kissing places and she pulled his hand away from her chest area and also pulled his hand away from her thigh area.
[13] At that time her shirt was off and the accused got up and asked if she was alright to which she replied "okay".
[14] He then took his pants off and he was on the bed and he told her it was alright to be nervous.
[15] She took her own pants off and he was on top of her.
[16] She told the accused that it was her first time with a male and she was not sure what to do.
[17] He began rubbing her "boobs" and biting for a long time and he suggested that they try to have sex.
[18] The complainant had some difficulty explaining sexual intercourse which was explained by the interviewing officer.
[19] The accused suggested that she touch him, which she did, but felt afraid.
[20] The accused suggested that she give him a blow job and she hesitated and then put her mouth on his penis.
[21] The accused was then on top of her and they had sexual intercourse without protection.
[22] He stopped and then put a condom on and took it off and they had intercourse again.
[23] The officer then asked questions about how they met and then about her appearance. She described the accused accurately; dirty blonde hair, blue eyes and that she was approximately one inch taller than him. He was athletic, clean shaven and had a tattoo on his arm.
[24] The first sexual encounter happened in a different room, but not the T.V. room.
[25] After that encounter they watched movies for about ninety minutes.
[26] On Friday she was at his place in the afternoon they had more sex. They did the same thing as the first time.
[27] She stated that he took her shirt off and she kept her pants on, then he helped her take them off. Eventually all of their clothes were off. After this sexual encounter she went to the washroom to put on her pajamas and came back and he was sleeping. They both slept.
[28] On Saturday morning he was up and he checked his phone and he suggested that she should stay another night.
[29] She agreed. It was raining so they stayed inside and watched T.V.
[30] They had sexual intercourse in the afternoon and he grabbed her private parts and put his finger inside her.
[31] She was afraid and uncomfortable but she didn't express that to the accused.
[32] She stated again that she told him that she was fourteen years of age and they stayed indoors and did not have any alcoholic beverages.
[33] There was no sex that night but she stayed over until Sunday morning.
[34] On Sunday morning they woke up and they checked their phones and he said a friend wanted him to go to the movies at which point she decided that he was just using her and she changed out of her pajamas and told him that she should go.
[35] She left to go downstairs and he blocked her with his arm and asked if she was okay as she left. He asked if she was okay and she replied: "I'm not really upset"
[36] During the sexual encounter she gave him a couple of hickeys on the neck and she has some bruises on her boob area.
[37] After talking to a counsellor it was determined who the accused was and he was eventually charged.
Viva Voce Evidence
[38] When examined in-Chief by the Crown attorney T.F. described her clothes, and physical appearance and elaborated on how the accused appeared and what they talked about.
[39] She admitted that she wanted to get to know him better and agreed to go to his house.
[40] There were some chance meetings at the mall when she was in the company of other fourteen to fifteen year olds.
[41] She did not really know the accused but wanted to be friends because they had the same interests and he stated that he liked Taekwondo and going to the mall and she indicated that she told him her age on Facebook. He said that he was almost thirty years old but she thought he was exaggerating and lying.
[42] She reiterated that she did not want to go to his room but she agreed because she was afraid. In her mind she looked tense.
[43] She did not want him to touch her chest or her thighs but she did not communicate that in away, apart from moving his hand away.
[44] At court she stated that she did not want sexual intercourse but that was not communicated in any verbal or physical way to the accused.
[45] She stated that she gave her phone to the police but had forgotten her password and she could not retrieve the text messages from it.
Evidence in Cross Examination
[46] She stated that there was a chance meeting with the accused at the food court at the Inter-City mall. She thought he was cute and wanted to get to know him.
[47] After speaking they had similar interests in music and sports and she was approximately one inch taller that the accused and thought he was closer to her age.
[48] She was attracted to him and stated that her birthdate was on Facebook.
[49] T.F. was shown her Facebook page and it was conceded that there was no birthdate there. But it may have been on the private friends feature and this was never opened by the police. She also deleted all messages to and from the accused before she talked to the police.
[50] The police attended on June 30, 2016 and that was her first interview.
[51] She stated that she asked to meet him at the mall and it was always at her request.
[52] She had concerns that she was going to be caught skipping school and he made her feel better.
[53] There was another meeting at the marina and they walked around and talked because it was not as open as the mall.
[54] She went to the accused's home within a week after accepting his invitation. She misled her Mother that she was going another girlfriend's place.
[55] She stated that her Mother dropped her off at the accused's house.
[56] She admits that when kissed she was surprised but she kissed him back as she was attracted, but not that much.
[57] On Friday night she never told the accused how uncomfortable she was nor on Saturday, but went along with the activity.
[58] She had difficulty with the word "ejaculation" and is not sure, first of all, what it meant, and secondly whether the accused ejaculated. And each and every question she acknowledged that she never communicated her fear or discomfort with the accused.
[59] She stated that she did not have a nervous breakdown but was tense about what might happen if her Mother found out she was skipping school.
[60] When she attended at the accused's residence she intended to stay overnight because she brought her pajamas.
[61] She stated there were three sexual encounters. One on Friday and two on Saturday. On Friday he used a condom.
[62] She restated that she knew his age and that her age was on her Facebook and that she told him she was fourteen years old, but she deleted him as a friend after this encounter.
[63] On the Friday he took off his shirt, then she took off her pants.
[64] On Saturday, he helped her take off the pants. And again did not tell the accused that she was uncomfortable or not want to do this.
[65] During one sexual intercourse, she was on top of the accused and was comfortable enough to have a nap afterwards
[66] He asked how old she was more than once and she told him, at least twice, and it was on Facebook.
[67] She admitted that she could have left the residence on Friday or Saturday or Sunday but after he received at text from another girl, she felt used.
[68] On re-examination she stated that the police did not ask for her messages nor the password, which she could not remember. It was conceded that she could have opened the phone with a thumbprint.
Evidence of C.G.V.
[69] At the time of trial Mr. C.G.V. was thirty-one years of age and was twenty-nine at the time of this occurrence.
[70] He stated that he has a disability or a learning disorder and is on Social Welfare with O.D.S.P. Support.
[71] He had three support workers; one named "P." who would help him with social issues, "C." who would help with the budget, bus passes and so on, and "W." would help him with domestic chores such as cooking.
[72] Personal hygiene was an issue and the workers as well as the Mother assisted him in that regard.
[73] While at the mall he saw the complainant but had no contact with her.
[74] Without any prompting she Face booked him the same day and wanted to have some contact. At the time he didn't know who she was but she stated that she wanted to get to know him better and thought that he was nice.
[75] He was confused at this initial contact and was hesitant to add her as a friend but they talked a bit on Facebook and he asked her how old she was and he received no response. She was somewhat coy about that. He asked her before and after this encounter.
[76] He checked out her Facebook but there was no age on her profile.
[77] He learned that there were family members on Facebook and friends and that she attended St. Ignatius High School.
[78] At the mall she was talking to him and he thought she was seventeen or eighteen years of age and he asked her her age and she simply shrugged it off.
[79] He never got a direct answer from her about her age and denies that she ever told him she was fourteen.
[80] When she came to his house, he met her at the bus stop and her Mother did not bring her to his house.
[81] There was another meeting at the marina prior to the complainant coming to his house and they walked around, sat and talked and she accepted his invitation to come to his house.
[82] At the house they sat on the couch and watched movies.
[83] On Friday they were holding hands and were making out and she gave him a hickey and they ended up having sex in his room. He thought that she was seventeen or eighteen years of age. They walked to his bedroom, they started making out, she took off her clothes and he took his clothes.
[84] On Facebook she told him that she wanted him to be the first one to have sex with.
[85] At his apartment he asked if she was sure she wanted to go through with this.
[86] He used a condom which he had in his room and she at no time said she was afraid or scared or didn't want to proceed.
[87] At one time he noticed that she was uncomfortable and he asked if it was okay to continue; at which time she said "okay". He was on top for a few minutes and he kept asking and she said she was fine. After sex they went back to the living room and played Wii.
[88] They talked and got to know each other better. There was no expression that she wanted to leave.
[89] He offered that she could stay another night and she accepted.
[90] On Saturday morning he made coffee, they watched "Dog the Bounty Hunter" and they started to make out on the pull-out couch and they had sexual intercourse on the couch. He used a condom and thought that she was seventeen or eighteen years old.
[91] She was okay with the sexual activity and did not say anything, and the second time she was on top of him. Both times he used a condom.
[92] After coffee he received a text message from another friend named Kim wanting to go see a movie and he told the complainant at which time she became upset and mad and stormed out and left.
[93] He first found that she was fourteen when he was contacted by the police days later.
Evidence in Cross Examination
[94] He admitted that he is a special needs person and was not attending regular classes. He presently he lives with his Mother and Step-Father.
[95] T.F. stated that she was in high school and he thought that she was at least seventeen or eighteen years old because she looked older as she was taller than him.
[96] He thought it was strange that she did not reveal her age right away. If he knew she was only fourteen he was adamant that he would not have had a sexual relationship with her
[97] During the encounter on Friday night she said she was "fine" and she removed his hand during foreplay and then he said "fine" and stopped and also stopped when she removed his hand when placed on her thigh.
[98] On Saturday she agreed to have sex and they participated on that basis.
Evidence of B.C.G.
[99] Ms. B.C.G. is the accused's Mother and stated that the accused had a modified high school program and she estimates that he attained a Grade 4 level, though he pushed on to Grade 12 class. He was special needs and was assessed with a learning disability.
[100] He no longer lives at the premises where the encounter occurred because he entered another resident's apartment without consent and decided it was best to leave.
[101] There have been assessments done on the accused but none were presented at court. This witness estimated his intelligence quota was 70 which was revealed in an assessment and his intellectual age was fourteen to sixteen.
[102] He has been able to hold some menial jobs from time to time, one day per week for two hours cleaning tables and has had an intellectual disability pension since he was eighteen.
[103] She is a retired family therapist with a Master's degree in sociology.
Case Law
[104] I have reviewed R. v. Chapman, [2016] O.J. No. 2218, a decision of the Ontario Court of Appeal, which enunciates defences in sexual activity when the complainant is under the age of sixteen years.
[105] Essentially, the defence, of mistaken belief of age, the court must determine whether the accused honestly believed that the complainant was sixteen years of age, or more, and his belief was honestly held because he had taken "all reasonable steps to ascertain her age".
[106] 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 circumstances which are outlined in that section. For the purpose of this trial the relevant subsections are as follows:
150.1(1) Subject to subsections (2) to (2.2), when an accused is charged with an offence under Section 151 or 152 or subsection 153(1), 160(3) or 173(2) or is charged with an offence under Section 271, 272 or 273 in respect of a complainant under the age of 16 years is not a defence that the complainant consented the activity that formed subject-matter of the charge
(2.1) If an accused is charged with an offence 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 a 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
[107] Whether the accused took all reasonable steps is fact specific, and depends on the circumstances.
[108] If the accused meets the evidentiary burden, the Crown is required to prove beyond a reasonable doubt that the accused did not have the requisite belief or that he or she failed to take all reasonable steps to ascertain the complainant's age.
[109] In Chapman, the Court reviewed R. v. Duran, (2013) ONCA 343, wherein at paragraph 54 Laskin J.A. stated: "there is no automatic checklist of considerations applicable in every case" and what constitutes "all reasonable steps, depends on the context and the circumstances, and that in some cases an accused's visual observation may be enough to constitute reasonable steps".
[110] I have also reviewed R. v. George, 2017 SCC 38, [2017] S.C.J. No. 100, where at paragraph 9 Gascon J. states that "in determining what raises a reasonable doubt in respect to the objective element is highly contextual."
Findings
(i) I'm finding that the complainant wished to have sexual intercourse with the accused and she pursued and sought him out as wanting to have him to be "the first". This is supported by the fact that she willingly went to his apartment, took pajamas and planned on staying over.
(ii) She mislead her Mother as to where she was going.
(iii) I do not accept that her Mother dropped her off at the accused's apartment, but rather that the accused met her at the bus stop. It would be counter-intuitive to have her Mother drop her off at the exact place when she is trying to conceal what she is really doing.
(iv) The complainant has admitted that she was attracted to the accused and believed that he was younger than his stated age.
(v) I'm also finding that the complainant's Facebook page did not reveal her age. That would have resolved the issue as the accused admitted searching her Facebook profile. I also accept the accused's evidence that it was not disclosed on her Facebook page.
(vi) The complainant deleted all correspondence with the accused and deleted the accused as a friend and took no steps to provide her thumbprint, password or other information so that the police could properly look at her Facebook page. I accept the accused's evidence in that regard.
[111] The steps that the accused took to ascertain the complainant's age were:
Asking the complainant several times to which he did not receive a direct response. I accept this evidence and reject the complainant's evidence in that regard.
He checked the complainant's Facebook profile and it was not disclosed there, and I do not accept that the complainant's evidence that it was there. At trial, T.F.'s birthdate was not on her Facebook profile which enhances the accused's credibility
She had no credible explanation as to why she deleted the messages between herself and the accused.
The complainant looked older than fourteen. This is confirmed by the photo filed as Exhibit 3 taken shortly after the occurrence. The complainant was taller than the accused, and his visual observation that she looked seventeen or eighteen is believable, credible and accepted.
[112] At each and every stage the accused wanted to make the complainant feel comfortable. At no time did the complainant disclose any discomfort. On one occasion the complainant removed the accused's hand from her chest and thigh area. This does not constitute sexual assault as the couple were engaged in a sexual encounter which was to last two and one-half days. The sexual dance between consenting partners can only be described as "foreplay" and to segregate and isolate that activity as suggested by the Crown does not constitute sexual assault when assessing the whole encounter. The relationship then progressed to full sexual intercourse on at least two occasions over the weekend. The complainant did not verbally or physically disclose any discomfort or lack of consent.
[113] The complainant could have left the premises at any time but chose not to do so.
[114] The complainant was fully engaged in the sexual interaction not withstanding her evidence to the police and at trial, as to fear, nervousness and not wanting to proceed. This is directly contradicted by the number of times that they had sex and the fact that she was admittedly on top of him on at least one occasion and gave him hickeys.
[115] The Crown has admitted in its statement of agreed facts that the accused suffers from some degree of developmental delay.
[116] The case law emphasizes that "all reasonable steps" is contextual. The court must take into account the developmental delay that the accused has without reducing the onus on him and then the Crown must prove beyond a reasonable doubt that in these circumstances he did not take all reasonable steps to ascertain her age. In these circumstances the accused asked her several times, which is denied by the complainant, and he received a coy response. He then checked her Facebook page and could find no birthdate. He knew that she was attending high school and was at the mall with other friends and students. He was completely honest about his own age. The accused's physical observation concerning T.F. looking at least sixteen years of age is corroborated by the photo filed as Exhibit 3, taken shortly after this encounter.
[117] The accused Mother's evidence is relevant. She estimates that the accused's educational level is Grade four, but chronologically he continued in school until age eighteen in special education classes. Her understanding from assessments was that her son's intelligence quotient was about seventy which is consistent with her evidence and observations and support given to her son over the years. He is on a disability pension. He requires support navigating life which is still being delivered by the Community Support team members.
[118] 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.
[119] In all of the circumstances in this case I am finding that the accused took all reasonable steps to ascertain the age of the complainant and has raised a reasonable doubt and the mistake of age defence is met.
[120] There will therefore be an acquittal on both charges.
Released: December 11, 2017
Signed: "Justice Peter T. Bishop"