WARNING

A non-publication and non-broadcast order in this proceeding has been issued pursuant to section 486.4 of the Criminal Code of Canada.

Ontario Court of Justice

Date: April 23, 2020

Court File No.: 19-4554, 19-5193, 19-8342

Between:

Her Majesty the Queen

— AND —

John Patrick Martinez

Before: Justice Jodie-Lynn Waddilove

Heard on: February 21, March 2, 4 and 12, 2020

Reasons for Judgment released on: April 23, 2020

Counsel:

• Ms. H. Azimi — Counsel for the Crown
• Mr. B. McLellan — Counsel for Accused

WADDILOVE, J.:

OVERVIEW

[1] John Patrick Martinez, on a replacement information that was amended at trial, is charged with two counts of sexual assault contrary to section 271 of the Criminal Code of Canada and two counts of for a sexual purpose touching a person under the age of 16 with his body, in particular, his mouth, chest and abdominal area, contrary to section 151 of the Criminal Code of Canada. The offences are alleged to have been committed between December 1, 2018 and April 30, 2019 and on July 5, 2019, in the Township of Clearview, in the province of Ontario.

[2] In brief, the facts are as follows: In December of 2018, the accused, 29 years old, met D.M. when she attended the house he was living in with other individuals. The accused testified that he believed D.M. was 17 years old, but in fact D.M. was 14 years old at the time. Shortly after meeting each other, D.M. and the accused engaged in oral sex.

[3] Later in July of 2019, the accused was at D.M.'s family home, when D.M.'s mother called the police. D.M.'s mother testified that she was concerned about her daughter and the stress she was under from the accused. She also said the accused would not leave her home. When the police arrived and entered D.M's bedroom, they found the accused laying in bed with D.M. D.M. who was 15 years old at the time, was pregnant and naked and the accused was naked from the waist up.

[4] The accused claims he was there out of concern for D.M. who was in pain and concerned about a possible marriage. The accused denies any sexual activity with D.M.

[5] On February 28, 2020, this Court granted the accused's application brought under section 276 of the Criminal Code and allowed counsel to ask D.M. questions from the list of eight (8) questions in the application.

ISSUES

[6] The issues in this trial are as follows: has the Crown proven beyond a reasonable doubt that:

(1) John Patrick Martinez, for a sexual purpose, touched D.M., a person under the age of 16, directly with a part of body, his mouth, between December 1st of 2018 and April 30, 2019, contrary to section 151 of the Criminal Code?

(2) John Patrick Martinez did commit a sexual assault on D.M. between December 1, 2018 and April 30, 2019, contrary to section 271 of the Criminal Code?

(3) John Patrick Martinez, for a sexual purpose touched D.M., a person under the age of 16, directly with his body, his chest and abdominal area on or about July 5, 2019, contrary to section 151 of the Criminal Code?

(4) John Patrick Martinez did commit a sexual assault on D.M., a person under 16 years of age, on or about July 5, 2019, contrary to section 271 of the Criminal Code?

[7] John Patrick Martinez has pled not guilty to all charges and testified in his defence.

EVIDENCE AT TRIAL

[8] D.M. testified that in December of 2018 she visited Jody Eckman's house in Stayner, Ontario. D.M. lived with her family about a ten-minute walk away. This was the first time she met Jody Eckman in person. Prior to this, she had known him through Facebook. On this day, she said her sister, S. also came over to the house. D.M. said she did not know how old Jody was, but was pretty sure he was in his forties.

[9] D.M. said that the accused and another man, Jesse Hendry, later arrived at the house. Jesse was dating her sister S. This was the first time D.M. met the accused. D.M. said she assumed the accused was 20 years old. She said the four of them, the accused, Jesse, S. and D.M. went upstairs together. She said they sat on some furniture upstairs and listened to music. D.M. said she asked if they wanted to smoke weed and they smoked weed together. She did not say who provided the weed.

[10] D.M. said she wanted to go upstairs because Jody Eckman was making her feel uncomfortable. She said she told Jody she was seventeen years old. She said Jody told her that if she was older, he would be all over her. She said she felt that Jody wanted to go to bed with her and this made her feel uncomfortable.

[11] D.M. said neither Jody nor the accused asked her any questions.

[12] D.M. also said she had her friend Hayley tell the accused that she was seventeen years old. She said this happened on the first day she met with the accused.

[13] After the first visit to Jody Eckman's house, D.M. said she later visited the house for a second time probably a day or two after, maybe even a week later. She said during this visit, she drank alcohol and got the alcohol from Jesse Hendry. She said she threw up because she drank too much. She said the accused helped her clean the vomit out of her hair and she went to a bedroom and lied down. She said she didn't know whose bedroom it was, other than it was a blue room.

a) The Oral Sex Incident

[14] D.M. said the next night, she asked the accused if he liked her. She said she didn't think he liked her. She said she was flirting with him. She said that the accused was in the hallway, when she pulled him in and told him to 'come here'. She said he asked what she was doing and she just started kissing him. She said she sucked his dick until he came. She said she next pushed his head down towards her vagina and made him eat her out. She said she had a recollection of performing oral sex on the accused. She said they were in the blue bedroom at this time.

[15] When asked about how she flirted with the accused, D.M. said she doesn't think she told him much, but did tell him he was hot and undid his pants. She said the bedroom door was closed. After they engaged in oral sex, she said she played on her cell phone until 5 or 6 and then went home.

[16] She said that her friend Hayley was also there, but had left to go home earlier and that Jesse had gone to bed in the other bedroom. She said she left while the accused was still sleeping and didn't see him after that. She said the accused would only text her rarely. She then said she asked the accused if she could come over, sometimes he would say no and sometimes he would say yes. She did not talk about the later visits.

[17] D.M. said the accused once asked her how old she was and she told him she was seventeen years old. She believes she told him this in December of 2018, around the same time they first met. D.M. said she talked to the accused once about school and he didn't ask her what grade she was in. At the time, she said she was in grade nine. She said she didn't remember talking about school with him.

[18] D.M. said the accused did not tell her his age. She said she wanted to see the accused more because she felt something. She said she felt safe with the accused because she felt he was twenty years old. D.M. said she did not date the accused, but they would meet up and go shopping together at Foodland.

[19] D.M. said that she thought they were 'friends with benefits', which meant they were not dating, but acted like friends who act closer, but were not in a relationship.

[20] She said she went back to Jody Eckman's house maybe once or twice. She believes the accused lived at Jody Eckman's house for three months and wasn't sure where he went after that. She said she tried to make contact with him, but he would answer her.

[21] D.M. said in March or April of 2019, the accused texted her and asked to meet up. They met up on the grounds of the local school on a weekend. They were alone. She said the accused told her that he didn't want to have contact anymore because he found out her real age. She said the accused said he knew she was 14 years old. D.M. believes her mother told Jody Eckman about her and Sa.'s real age. And she believes Jody in turn told the accused her real age. After that, she said the accused didn't talk to her again. She said she texted him to say sorry.

[22] When asked if the accused talked about her age any other time, D.M. said no.

[23] Jody Eckman, 48, testified that he rented rooms in a house he had in Stayner, Ontario. One room was rented to Jesse Hendry, who mentioned he had a homeless friend, the accused John Patrick Martinez, who needed a place to stay. Jody said the accused moved in prior to 2019. He said later in early 2019, Victoria Kant moved in. Victoria knew the guys from before and they were friends. Jody Eckman said he spent most of his time in Collingwood with his girlfriend there. He said he set the ground rules for the house in Stayner where the accused, Jesse and later Victoria lived. He said they didn't follow the house rules or pay bills.

[24] Jody Eckman said when D.M. and her sister Sa. first came over to his house in Stayner, they both told him they were over 18 years old. He said he didn't believe them because they looked super young to him. He said D.M. looked like she was 16 at the most. He said he first met D.M. within a couple of weeks of the accused moving into the house. He said D.M. and her sister Sa. hung out with the accused and Jesse. He said to him it was clear that the accused and D.M. were in a relationship. He said D.M. was in the accused's bedroom with the door closed and he could hear Sa. knocking on the door and D.M. saying 'can't a girl enjoy herself' and that they needed to get dressed. He also said the sisters, D.M. and Sa. fought constantly.

[25] Jody Eckman said he was in Stayner on average 2-3 times a week, to check on the house. He said most times the girls were there. He said he observed D.M. and the accused kissing, D.M. slept in the accused's bedroom with the door constantly shut, the accused and D.M. would get into relationship type fights. He said the accused would get jealous of D.M. about who she was talking to over the phone.

[26] Jody Eckman testified that he heard the accused say the last thing he wanted to do was get D.M. pregnant and asked Jesse for a condom.

[27] Jody Eckman said he knew D.M.'s mother, T.M. because he went to school with her. He said when he found out the girls' true ages, he confronted their mother about it. He said T.M. wrote a permission letter for the girls to be there. He also said he went to the local school and spoke to the Children's Aid Society (CAS) about his concerns about the girls' ages. He said he was concerned about his liability and was told to go to the CAS about his concerns. He also said he was given the advice to call the police, which he did.

[28] Jody Eckman said he got upset about the girls being there all the time and sat down with the accused to talk about it. He said the accused admitted to being in a relationship with D.M., that they were sleeping together and asked for condoms. Jody said when he confronted the accused about D.M. being underage, the accused admitted they were sleeping together and said that it was none of Jody's business.

[29] Jody Eckman said he told the accused what he was doing was a criminal offence and he said the accused told him he could do what he wanted and date who he wanted. The accused told Jody to shut up about it. Jody said he told the accused he wanted him to move out. He said they fought about and eventually the accused and D.M. moved to T.M.'s house together.

[30] Ms. Victoria Kant testified that in February of 2019, she moved in Jody Eckman's house. She explained that Jody had half of the house and was renting rooms to various tenants. She stayed in the living room until a bedroom became available. She said there was two bedrooms upstairs, one was Jesse Hendry's bedroom and the other was the accused's bedroom. When asked who she saw in the house, Victoria Kant said: Jesse, the accused, D.M. and Sa.

[31] Victoria Kant testified that she knew the accused from other friends. She said that when she moved in, she noticed two young girls, D.M. and her sister Sa., coming into the kitchen to cook food and take it to their boyfriends, the accused and Jesse Hendry, in the bedrooms upstairs. She said she didn't know D.M. prior to moving into the house. She believed D.M. to be fifteen years old.

[32] Victoria Kant said she believed that the accused was between twenty-seven to thirty years of age, but didn't know his exact age. She said that the two young girls, D.M. and her sister Sa., slept with the accused and Jesse in the upstairs bedrooms. She said in the accused's room there was either a queen or a double bed. She said the accused and D.M. were together as boyfriend and girlfriend and didn't leave each other's sides. And she believed that sex was involved between the two of them. She said D.M. was secluded to the accused's bedroom most of the time.

[33] Victoria Kant said that Jody Eckman did not live at the house and came by the house occasionally. She said that she felt something wasn't right about the situation between the accused and D.M. and confronted the accused about it two or three days after she moved in. She said she did not want to be responsible for an older man and a younger girl. She said she was referring to the accused and D.M.

[34] Victoria Kant said she tried to get D.M. to go back to her family's home. Victoria Kant said she felt like the accused listened to her, he did acknowledge it and was fine with her. She said the accused understood her concerns and was a little concerned about what she was going to do. She said it was his decision. She told the accused she would call the cops, the OPP.

[35] Victoria Kant said as far as she knew, the accused left Jody Eckman's house and went with D.M. to her family's house. She said they left within three to four days after she moved in. She said the accused and D.M. came back to Jody Eckman's house after they moved out and that they were always together.

b) The Accused and D.M. in Bed Together

[36] In March of 2019, D.M. said the accused came to her house to pick up his tools that he stored in her basement. She said she tried to talk to him and he pretended she wasn't there. She said he told her that he can't see her anymore and he was disgusted about the age thing. She said he then took his tools and left.

[37] D.M. said the next time she seen him, her mother told her that the accused was coming over. D.M. said she got mad and didn't want him there. She said she believes it was her mother or her brother that called the police. She said she was in her bedroom and the accused was in the basement. She said she heard the accused down in the living room and was upset he was there. She said she went back to her bedroom and sat by the window. She said she heard the police come in the house.

[38] She said the accused was coming from the bathroom and the police grabbed him in the hallway. She said he was doing something with the water in the upstairs bedroom and when he came out, the police arrested him. She said she seen the accused get arrested near the doorway of her bedroom, which is on the second floor of the home. She believes she was clothed and standing by her bed when the police arrested him.

[39] In cross-examination, D.M. said on the day the accused was arrested, she had asked the accused to listen to her stomach. She said at the time, she was concerned about her pregnancy and a possible miscarriage.

[40] D.M. said that the accused had been close friends with her two older brothers for a couple of years. She said they played online games together.

[41] D.M.'s mother, T.M. testified that she knew the accused through Jody Eckman. She knew the accused was staying at Jody Eckman's house. T.M. knew Jody Eckman because she went to school with him. T.M. said she communicated with the accused online and later, when he stored his tools in her basement. T.M. said the accused was friends with her two daughters.

[42] T.M. said the accused would sometimes stay at her house and sleep on the couch in the living room. She believed he stayed over her house three to four times in 2019.

[43] In the summer of 2019, T.M. said the accused was at her home, arguing with her daughter, D.M. She said the accused went into the bedroom with D.M., when T.M. told him, if he didn't leave, she would call the police. She then called the police. She estimated the police arrived within ten minutes of her call. Four officers attended her home, two stayed with her outside of the home and two proceeded inside her house and arrested the accused. She said she believed both D.M. and the accused were clothed at the time, but didn't go in the bedroom at the time.

[44] Ontario Provincial Police (OPP) Detective Sergeant Mark Saunders testified that on July 5, 2019, the police received a call that there was an unwanted person at a residential address in Stayner, Ontario. He said he went to the residence, with other officers and enroute to the address received information that the accused was wanted by the OPP on an outstanding warrant. He said he was familiar with the accused's name because they were looking for him prior to this call.

[45] When the police arrived at the home, the officers were advised that he accused was in the bedroom with a minor, the caller's fourteen year old daughter. He said the police confirmed the validity of the warrant and proceeded into the home. He said the police went up to the second floor, approached the bedroom door, knocked on it and opened the door, to see a small room with a bunk bed inside. He said he seen a nude female lying on her side, with her back to the police and her knees up to her chest. The accused was lying on top of her, with no shirt on, but had jeans on, and the officer said they appeared to be cuddling. He said the male had his legs over the female, while both were lying on the bed.

[46] OPP Constable Patricia Scott, who was also on scene and in the bedroom with Det. Sgt. Saunders, testified that when they entered the bedroom and seen the accused lying bed with D.M. in the manner previously described, she believed that the accused was laying onto of D.M. who was completely naked, for a sexual purpose. She said given their body positions, it appeared to her, to be for a sexual purpose that the accused was lying in bed with D.M.

[47] Det. Sgt. Saunders physically took the accused off of D.M. and took him into custody. The accused initially resisted and they applied some force to get him to comply, which he then did. He was then handcuffed and took out of the home and put into a cruiser. The accused was told about the outstanding warrant, the charges, read his rights to counsel, cautioned and transported to the detachment.

[48] John Patrick Martinez, the accused testified that on December 19, 2018, he attended Jody Eckman's house in Stayner, Ontario, because his friend Jesse Hendry told him there was a bedroom for rent there. He said this is when he met Jody Eckman, D.M. and her sister, Sa. He then said he moved in Jody Eckman's house around December 13-14th, 2018 and that is when he met Jody Eckman.

[49] The accused said the first time he met D.M. was sometime around December 14-16, 2018. He said he arrived at the house around 5 p.m. and Jody Eckman answered the door. He said that D.M. and her sister, Sa. were already there. He said that, to him, all three appeared to be intoxicated, but that he didn't smell alcohol on D.M. He said he spoke to them for about five minutes and then went upstairs. Before going upstairs, he said he asked the girls how old they were. He said he asked both girls and Jody told him they were 18. He then said he thought Jody said D.M. was 17 turning 18. The accused said he asked D.M. how old she was because he was curious with them both because they appeared so young, under 20 to him, and were hanging out with Jody Eckman who was almost 50 years old.

[50] John Patrick Martinez said later that same night, Jesse Hendry arrived home and eventually, Jesse, Sa. and D.M. came upstairs where he was. He said they came upstairs to the sitting area and they smoked weed. He said nothing happened. He said one of the girls was close to Jesse and guessed they were boyfriend and girlfriend at the time. He recalls Sa. calling Jesse "honey". The accused said that D.M. followed her sister around.

[51] After their initial meeting, the accused described the next time he saw D.M. was when she was again at Jody Eckman's house. He said the girls, Sa. and D.M. were there drinking with Jody. He said they just finished drinking and he asked how old she was, one said she was 18 and the other said she was 17 turning 18. He said the four of them talked until Jesse showed up about 15 minutes later. He said all four of them went upstairs and chilled for a bit. He said D.M. and Sa. left about an hour after coming upstairs.

[52] John Patrick Martinez said a few days later, D.M. and Sa. came back to the house and were half intoxicated and started drinking again. He said Jesse was there and had half a bottle of liquor with him. He said D.M. took a big drink and within minutes she started feeling bad. He said she puked on the floor in front of his bedroom. He said he cleaned it up and D.M. was lying on the floor like a little puppy. He said he asked her to go into the bedroom, so she could lie down on his bed. She was alone. The other three, Jesse, the accused and Sa. sat in the sitting area, until Jesse and Sa. left to go into Jesse's bedroom. The accused said about an hour later, D.M. got up from feeling sick and came out of the bedroom. He said she then tried to get with him. She tried to touch him and was touching him in the crotch area with her hand. He said she then performed oral sex on him. He said this happened by his bedroom door, right at the doorway. He said she pulled him from the sitting area to the bedroom doorway area. He said after she performed oral sex, they chilled for a bit and then she left and went home.

[53] In cross-examination, the accused said he was not interested in D.M. He said he tried to take her hands off of him and he walked down the hallway, while she sat in the sitting room. Later in cross-examination, he admitted he wasn't resisting that much. He said D.M. grabbed him by the hand, tried to get his pants down and performed oral sex on him. He said at the time he was seeing someone else and that he didn't want it to happen. He said it was just oral sex and with past girlfriends, it wasn't a big deal.

[54] In further cross-examination, the accused said he performed oral sex on D.M. but they were not naked. He said it was a quick thing. He said the moment kind of finished for him, the moment was over for him.

[55] In cross-examination, when asked what did he mean by "chilling", John Patrick Martinez said they, he and D.M. sat and talked. When asked what they talked about specifically, he could not say what they talked about other than to say it was small talk.

[56] He said he next seen D.M. two to three days later. He said the two sisters would stop by the house for a couple of hours. He said Sa. would stay with Jesse for a while and D.M. would stay for about an hour or an hour and half. He said he would talk with D.M. during this time, in the upstairs sitting area. He said they would come by almost on a daily basis. He said he hung out with them as a friend. He said he didn't have sexual relations with D.M. after that and did not have oral sex after that.

[57] The accused agreed that he and D.M. became "friends with benefits" afterwards. When asked if they did things sexually with each other, he said not necessarily. He said friends with benefits to him, means I care for you. He said you are my friend and that benefits you.

[58] The accused denied that D.M. told him she was in grade 9. He said he never asked her birthdate. He said she told him she was 17. He said she felt bad for her home life and her home situation. He said D.M. wasn't attending school when he met her. And on occasion, he would buy her food. He admitted to smoking weed with D.M., but said he tried to encourage her to go back to school.

[59] The accused said when he moved out Jody Eckman's house, he left and D.M. was not with him. He recalled talking to Victoria Kant about his relationship with D.M. He agreed that Victoria told him that she didn't agree with the situation because D.M. was very young. He denied D.M. spent time in his bedroom after the initial oral sex incident. He said Victoria told him D.M. looks young or too young, maybe you should get to the bottom of it. He didn't recall if he told Victoria that D.M. was 17.

[60] The accused said he later confronted T.M., D.M.'s mother and found out that D.M. was young. He denied moving into T.M.'s house, but said he stored tools there and was couch surfing. He later admitted to staying at T.M.'s house a couple of times and said it wasn't a big deal.

[61] The accused said he later confronted D.M. about her age. He said they met in March, at the local school grounds. He said he told her she was only 14 years old and he couldn't hang out with her. He said later in June, D.M. told him she was pregnant. The accused denied hanging out with D.M. around this time.

[62] The accused said T.M. told him about the outstanding warrant for his arrest and he felt he wasn't guilty of whatever the charges were. He further said, he felt he did nothing wrong and it didn't bother him.

[63] On the day of his arrest on July 5, 2019, the accused said he went to T.M.'s house to get his tools. He said he heard arguing in the family home, but it wasn't his business. However, he then went upstairs to the second floor of the home where D.M.'s bedroom was. The accused said he was arguing with D.M. He said D.M. was mad at everyone and wasn't feeling well.

[64] The accused said he was there to help D.M. He said he likes to think he is a doctor because he could have gone to school for medicine, but chose to go into construction. When asked why he didn't call for an ambulance under cross-examination, he said he was going to call for one and later said it was for her mother to call for an ambulance.

[65] The accused said he removed his t-shirt to offer it as a cloth for D.M. And he was listening to D.M.'s stomach when the police came into the bedroom. He said he was listening to her stomach, because D.M. was concerned about the baby. He said she was naked under the sheet, but later said that he didn't know she was naked. He said she felt like she was clothed. He said her body was not exposed.

[66] The accused claimed the police officers who came into the bedroom lied about D.M. having no covers on her. He said he had his head on her stomach and was not on top of her.

THE POSITION OF THE PARTIES

a. The Accused

[67] The accused submits that the charges stem from two incidents, the first incident when the accused and D.M. engaged in oral sex and the second incident, when the accused was found naked from the waist up, in bed with D.M. who was naked and pregnant.

[68] At the time of the first incident that involved mutual oral sex between the accused and D.M., the accused believed D.M. was 17 years old. The accused points to the testimony of D.M., who admits to telling him the same. The accused claims that because Jody Eckman did not tell him D.M. was under 16 and D.M. saying herself she was 17, he had no cause for concern. And when he found out her real age, the accused claims he stopped seeing her. He argues that that by asking D.M. her age, that was the reasonable steps necessary.

[69] At the time of the second incident, where the accused was partially naked and found in bed with the accused, the accused said he knew D.M.'s real age at the time – that she was under sixteen. This is from the evidence of the accused and D.M. who both testified about their earlier confrontation about her age. The accused claims he was there to check on D.M.'s well-being given her concerns about her pregnancy.

[70] On July 5, 2019, when the police walked into D.M. bedroom, the accused claims he had his head near D.M.'s stomach because he was concerned about her pregnancy and not for any sexual purpose.

[71] The accused claims the evidence that he slept at D.M. family's house does not suggest anything inappropriate. He points to D.M.'s mother, T.M., who said she did not witness anything sexual between the two of them.

[72] The accused argues that the evidence of Victoria Gant is based on assumptions. She did not witness anything sexual between them. Victoria Gant knew there was a gap in age between D.M. and the accused and that was all.

[73] Jody Eckman's evidence, the accused argues still does not satisfy the beyond a reasonable doubt threshold. Jody Eckman testified that D.M. told him she was 17 going on 18, but thought she looked 16 at the most. The accused claims that Jody never told him he thought D.M. was under 16. The accused argues that the court should reject Jody Eckman's evidence, in particular the evidence about D.M. and the accused relationship, because it is based on assumptions. The argues claims Jody Eckman testified to leaving condoms at the house, but did not know what was actually happening between the accused and D.M.

[74] The accused points out that there were no witnesses that observed anything sexual between the accused and D.M. and that they both deny anything sexual. The accused correctly argues that there must be proof beyond a reasonable doubt that he committed the crimes as alleged and the court cannot convict someone based on assumptions.

b. The Crown

[75] The Crown argues that the conduct at issue involves sexual crimes against a youth. The requirement that all reasonable steps be made to ascertain the age of a person before engaging in sexual conduct is to protect young people from such crimes. The social responsibility and onus are on adults to avoid any sexual activity with underage youth.

[76] In this case, the Crown argues it does not need to prove subjective belief in D.M.'s age at the outset. The Crown submits that in the previously R. v. George decision, the accused in that case believed the young person was 17 at the time of the sexual activity and later learned that the young person was in fact 14 years old. In its decision in that case, the Supreme Court of Canada made no comment that suggested that it was an element necessary for the Crown to prove at first instance. Rather, where there is proof beyond a reasonable doubt that either the accused did not honestly believe that the complainant was sixteen years old or did not take all reasonable steps to ascertain the age – the elements of the offence is proven.

[77] The Crown submits that the Criminal Code limits the availability of the mistake of age defence by requiring that "all reasonable steps" be taken to determine the complainant's age. In the present case, the Crown argues that the accused did not take all reasonable steps to determine D.M.'s age at the time. The claim by the accused that he asked her once, does not fulfil the requirement that he take all reasonable steps to ascertain D.M.'s age.

[78] The accused testified meeting the girls, who looked intoxicated and asked them how old they were. Jody Eckman responded saying that Sa. was 18. And someone said D.M. was 17. The Crown submits this is the only step the accused took to find out D.M.'s age.

[79] The Crown further submits that D.M. and the accused were not honest in their evidence. The Crown submits that D.M. described her relationship with the accused as "friends with benefits" without fully divulging what that entailed and the accused did the same.

[80] The Crown argues the first incident involving oral sex between the accused and D.M. is grounds for the charge of: 1 count of for a sexual purpose touching a person under the age of 16 with his body, in particular, his mouth, contrary to section 151 of the Criminal Code of Canada; and 1 count of sexual assault contrary to section 271 of the Criminal Code of Canada. The first incident happened in December of 2018 and is within the time frame stipulated in the information.

[81] The accused argues that during this time, D.M. told the accused she was 17 years old; he asked her and she told him he was 17 and as a result, he had an honest mistaken belief that she was 17 years old. The Crown argues the evidence proves beyond a reasonable doubt that the accused did not honestly believe she was the age she said she was and that he did not take any reasonable steps to find out her age. The Crown argues that the accused knew D.M.'s age throughout his contact and relationship with her.

[82] The Crown points to the evidence of Victoria Kant and Jody Eckman, who both claim they confronted the accused about D.M. Jody Eckman admitted he had a criminal record, struggled with addictions and had other unrelated issues with the accused, but said he didn't believe D.M. was the age she claimed. He said to him she appeared 16 at most. He said he observed the accused and D.M. have relationship-based fights, they kissed in front of him and he knew they slept in the same room together with the door closed. More importantly, he overheard the accused ask Jesse Hendry for condoms and say that the last thing he wanted was to get D.M. pregnant. The accused, when confronted by Jody Eckman admitted to sleeping with D.M. and being sexually involved with her. When Jody Eckman raised his concerns, the accused responded saying he would sleep with whoever he wants.

[83] With respect to the second incident, the Crown argues that D.M. gave completely different version of events. In her evidence, D.M. claims she is sitting by her window in her room and the accused is coming out of the bathroom into the hallway when he is arrested. So according to D.M.'s evidence, the accused is outside of her bedroom when the accused is arrested. This is problematic, given she testified that the accused was sitting listening to her stomach and had his head on her stomach when the police came into the room. When confronted with this discrepancy, D.M. said the accused then left the room and went to the washroom and was then arrested in the hallway.

[84] The discrepancy is further amplified by the police witnesses who testified they entered the bedroom to find the accused and D.M., who was naked, lying in bed together. Sgt. Sanders was the first officer to enter the bedroom and he said that D.M. was completely nude, the accused was draped over D.M. and they appeared to be cuddling.

[85] Neither police officer testified that the accused was exiting the bathroom or was he in the hallway when they arrested him. Even further on this point, T.M., D.M's mother, testified that she heard D.M. and the accused arguing when she called the police. T.M. asked the accused to leave and she seen him go into D.M.'s bedroom. She did not say the accused went to the bathroom.

[86] The Crown also points out that the suggestion that the accused took his shirt off to use as a cloth for D.M. was never put to D.M. during her brief cross-examination.

[87] The Crown submits the context of counts 3 and 4 are different from counts 1 and 2. The evidence at trial is that the accused knew D.M.'s real age on July 5, 2019. The accused suggests that the police who attended the house and arrested the accused, misunderstood what they saw when they walked into D.M.'s bedroom on this day and seen D.M. naked lying in bed with the accused partially clothed. The Crown argues that the accused claims that he was naked from the waist up because he gave D.M. his shirt to use as a cloth and he was listening to her stomach out of concern for her pregnancy, is not believable. The Crown submits the evidence about this incident form the grounds for the charge of one court of sexual assault and one count of, for a sexual purpose, touching D.M., a person under 16, with his chest and abdominal area.

THE LAW

Presumption of Innocence, Burden of Proof and Reasonable Doubt

[88] The first and most important principle of law applicable to every criminal case is the presumption of innocence. The accused enters the proceedings presumed to be innocent, and the presumption of innocence remains throughout the case unless the Crown, on the evidence put before the Court, satisfies the Court beyond a reasonable doubt that the accused is guilty.

[89] Two rules flow from the presumption of innocence: one is that the Crown bears the burden of proving guilt. The other is that guilt must be proved beyond a reasonable doubt. These rules are linked with the presumption of innocence to ensure that no innocent person is convicted.

[90] The burden of proof rests with the Crown and never shifts. There is no burden on the accused to prove that he is innocent. The accused does not have to prove anything.

[91] Now what does the expression "beyond a reasonable doubt" mean? A reasonable doubt is not an imaginary or frivolous doubt. It is not based on sympathy for or prejudice against anyone involved in the proceedings. Rather, it is based on reason. It is a doubt that arises logically from the evidence or from an absence of evidence.

[92] It is virtually impossible to prove anything to an absolute certainty, and the Crown is not required to do so. Such a standard would be impossibly high.

[93] I cannot convict the accused unless I am sure he is guilty. Even if I believe the accused is probably guilty or likely guilty, that is not sufficient. In those circumstances, I must give the benefit of the doubt to the accused and find him not guilty because the Crown has failed to satisfy the Court of his guilt beyond a reasonable doubt.

[94] The requirement of proof beyond a reasonable doubt does not apply to individual items of evidence. I must decide, looking at the evidence as a whole, whether the Crown has proved the accused's guilt beyond a reasonable doubt.

Credibility and Reliability

[95] Trials like this one are not credibility contests. A court cannot find an accused guilty simply because it prefers the complainant's evidence to the accused. Because Mr. Martinez testified the well-known test in W.D. requires me to find him not guilty if I accept, or am left with a reasonable doubt, by his evidence or any evidence inconsistent with his guilt. Practically speaking, this means that I need not believe Mr. Martinez to find him not guilty.

[96] Further, even if I reject his evidence, I must still be satisfied beyond a reasonable doubt by the Crown's evidence that I accept, that the accused is guilty. In considering whether the Crown's evidence has proven the charges beyond a reasonable doubt, I must be satisfied that the Crown's evidence is both credible and reliable enough to justify a guilty verdict. The burden is always on the Crown to satisfy me beyond a reasonable doubt that the accused is guilty. There is no burden on the accused to prove anything. In short, I cannot find accused guilty unless I am sure he is guilty.

[97] Notwithstanding the W.(D.) test, the Ontario Court of Appeal has stated that "an outright rejection of an accused's evidence based on a considered and reasoned acceptance beyond a reasonable doubt of the truth of conflicting credible evidence is as much an explanation for the rejection of the accused's evidence as is a rejection based on a problem with the way the accused testified or the substance of the accused's evidence".

[98] The W.(D). analysis should be done in a contextual manner. In order to properly assess the accused's evidence, it must be done in a contextual manner with a focus on the rest of the evidence including the complainant's evidence. Lastly, I note that the W.(D.) analysis does not apply where the defence evidence makes out the elements of the offence.

[99] I must add that it is an error of law for trial judges to rely on unsupported assumptions about human behaviour or stereotypes and myths in sexual assault cases. Relying on common sense can "mask reliance on stereotypical assumptions".

"[T]here are two important points to consider when determining whether a 'common sense' assumption about human behaviour can be safely relied on. The first is that human beings are complex and how they behave in an unusual, stressful or difficult circumstance may often be difficult to predict, particularly by people who have never themselves experienced similar circumstances. It is difficult to apply 'common sense' expectations to how somebody would behave after being sexually assaulted or suddenly accused of a serious crime because these are not common experiences. Caution should be exercised in applying common sense to uncommon circumstances. The second point is that a trier of fact hearing a witness testify will know little about the witness and his or her life experiences, personality and background…What might seem to be a "normal" reaction to somebody from a particular cultural background may appear strange and unusual to a person of a different background. There are simply too many variables to allow a trier of fact to safely make accurate assumptions about how a 'normal' person would react in an unusual or stressful situation".

Reasonable Steps Required to Ascertain Age of Complainant

[100] In 2017, the Supreme Court of Canada in R. v. George confirmed that:

The "reasonable steps" requirement in section 150.1(4) of the Criminal Code, R.S.C. 1985, c. C-46 -- which requires an accused person who is five or more years older than a complainant who is 14 years of age or more but under the age of 16, to take "all reasonable steps to ascertain the age of the complainant" before sexual contact – seeks to protect young people from such crimes.

As a result, to convict an accused person who demonstrates an air of reality to the mistake of age defence, the Crown must prove beyond a reasonable doubt either that the accused person (1) did not honestly believe the complainant was at least 16 (the subjective element); or (2) did not take "all reasonable steps" to ascertain the complainant's age (objective element).

Determining what raises a reasonable doubt is a highly contextual, fact-specific exercise. …That said, at least one general rule must be recognized: the more reasonable an accused's perception of the complainant's age, the fewer steps reasonably required of them.

When determining the relevance of evidence, both its purpose and timing must be considered. …[E]vidence properly informing the credibility or reliability of any witness, even if that evidence arose after the sexual activity in question may be considered by the trial judge. Similarly, evidence demonstrating the reasonableness of the accused person's perception of the complainant's age before sexual contact is relevant to deciding the reasonableness of the steps taken by the accused, even if that evidence happens to arise after the sexual activity or was not known to the accused before the sexual activity.

Child Witnesses

[101] I agree that the approach for the assessment of child witnesses is set out in R. v. B.G., however, I find the guidance in R v W(R) at paragraphs 132-134 more applicable where the Court held:

Every person giving testimony in court, of whatever age, is an individual, whose credibility and evidence must be assessed by reference to criteria appropriate to her mental development, understanding and ability to communicate.

MY FINDINGS

[102] D.M. was 14 years old when she engaged in oral sex with the accused, who was 29 years old. D.M claims she initiated the oral sex and after she performed oral sex on the accused, he performed oral sex on her with his mouth. Despite D.M.'s claim that she willingly engaged in the oral sex, D.M. was incapable of legally consenting to this sexual act given her age and the disparity in age with the accused.

[103] For both offences, the accused is barred from relying on D.M.'s consent as a defence, because the accused was younger than 16 and the accused is more than five years her senior.

[104] It is a criminal offence to sexually touch a child who is 14 years of age or more, but younger than 16 when you are five or more years their senior, even if you honestly believe they are older than 16, unless you have taken "all reasonable steps" to ascertain their age. Nothing more is required.

[105] D.M. was 15 years old when she testified and had no difficulty speaking in court. She did not appear to be shy at all. However it became apparent when speaking about the accused that she had feelings for him at the time of the incidents and her youthfulness was apparent in how she described their relationship and their sexual activity. In describing the events leading up to the oral sex incident, she readily admitted that when they first met, she wanted to smoke a bowl of weed and they did. She said she thought the accused was hot, she said she flirted with him and then sucked his dick until he came and then, she pushed his head down and he ate her out.

[106] After the oral sex incident and after the accused was confronted by Victoria Kant and Jody Eckman and he confirmed her age with her mother, D.M. said the accused ignored her, but that she wanted to be normal friends, but not friends that would hold hands.

[107] When she described her relationship with the accused, I found her to be vague and cryptic at times. For instance, when she said she and the accused were "friends with benefits" she did not fully explain what she meant by the term even when asked. Initially D.M. said she wanted to be his friend and then she changed her mind and said she doesn't want to be his friend because he wouldn't be her friend.

[108] When cross-examined about his initial meeting of D.M. and his initial belief that she was 17 years old, the Crown asked the accused if he was interested in D.M. when he first met her. He disagreed and said he was never sexually interested in D.M. When pressed about the events leading up to the oral sex incident, the accused said he tried to get up and leave when D.M. approached him and started touching him. But he didn't leave. He said he sat on the couch and D.M. was touching his crotch area and then she pulls him towards the bedroom and then gives him oral sex. He performs oral sex on her despite the fact, he says, he was not interested in her. It is important to note, that at no time, did the accused say he tried to stop D.M. or that he told her that he was not interested in her.

[109] The accused's description of how or why he performed oral sex on D.M. was vague at best. He struggled to explain how the incident happened and simply offered that D.M. had her pants halfway down. The accused's evidence about the entire incident is very confusing and unclear. I find his evidence about this incident to be based on his own self-interests and misleading to the court. He is the adult in the situation and he did very little to verify D.M.'s age and even after finding out about her age, showed no concern for his actions. This is evident in his statements to Jody Eckman that he will sleep with whoever he wants and its none of his business.

[110] When D.M. first came to Jody Eckman's house, Jody Eckman testified she looked very young. He said she looked to him to be 16 years old at the most. When the accused arrived at the house, he asked how old the girls, Sa. and D.M., was and someone said D.M. was 17 years old. Based on the evidence, the only step the accused took to ascertain D.M.'s age, was to ask D.M.'s age. It is unclear who said D.M. was 17, either this information came from D.M. herself, her friend Hayley and or from Jody Eckman. It is important to point out, only D.M. mentioned her friend Hayley. Regardless of who said how old D.M. was, this was the only step the accused took to find out her age before he engaged in sexual conduct with her. Both the accused and D.M. were unable to divulge what they talked about leading up to their sexual encounter and if the accused tried to determine her age in any other way. Further the accused was unable to offer any explanation about any reasonable steps he undertook to find out D.M.'s age, for instance, whether he thought to ask her sister, Sa. who was there or if he tried to ask D.M.'s mother, who he said was his friend. The test requires that that the accused take all reasonable steps to find out D.M.'s age and I am not satisfied he did. In fact, he only asked about her age once when he initially met her and this in my view, is not taking all reasonable steps to determine D.M.'s age.

[111] I accept the unchallenged evidence of Victoria Kant and Jody Eckman's evidence as it relates to the accused knowing that D.M. was underage and their description of the relationship between the accused and D.M. I find the accused and D.M. were in an intimate, boyfriend and girlfriend relationship that involved sexual activity despite D.M.'s age. Jody Eckman described the accused admitting to him that he was sexually involved with D.M. and hearing the accused ask for condoms, saying he didn't want to get D.M. pregnant. I accept this evidence and find it proves that there was as sexual relationship between D.M. and the accused. This caused Jody Eckman to be so concerned that he went to D.M.'s mother, T.M., the CAS, and the police.

[112] It was obvious to Victoria Kant, days after moving in, that D.M. is young. It was obvious to Victoria Kant that something was going on between the accused and D.M. given all the time they were spending in the bedroom and it wasn't right. The accused was confronted by Victoria Kant about D.M. being underage. When confronted, the accused did not deny it, nor did he say he didn't know she was underage. He never responded to Victoria saying he thought D.M. was 17 years old. Instead, the accused acknowledged Victoria Kant's concerns, worried about what she was going to do and when she suggested that she would call the police, the accused and D.M. left and moved out of Jody Eckman's house together. Even after they left the house, they still came back to visit – together. It is important to also point out that Victoria Kant's evidence was entirely unchallenged at trial.

[113] Further on this point, when the accused is confronted by Jody Eckman about D.M.'s age, Mr. Eckman testified that the accused admitted to him that he would sleep with whoever he wants. In my view, this is a direct indication that the accused knew and or didn't care how old D.M. was. He wanted to engage sexually with her and did so. Based on this evidence, I accept the accused knew that D.M. was underage, only asked superficially about her age in a vague way – asking how old the girls were - and then quickly engaged in sexual conduct with D.M. I further find the accused and D.M. were in an intimate, boyfriend and girl relationship together.

[114] I accept that Jody Eckman and Victoria Kant both confronted the accused about his relationship with D.M. out of concern for D.M.'s age. The accused admitted to being sexually involved with D.M. and said it wasn't any of Jody's business. Jody said he told the accused it was a criminal offence and the accused told him to shut about it. Neither Victoria Kant nor Jody Eckman said that the accused claimed to believe that D.M. was 17 going on 18. I accept Victoria Kant and Jody Eckman's evidence as it relates to the accused knowing D.M. was underage and despite this, the accused engaged in relationship with her that included sexual activity.

[115] With respect to the second incident on July 5, 2019, when the police walked into D.M.'s bedroom to find D.M. completely naked and the accused with no clothes on from the waist up – I accept the evidence from the two police officers who testified that they observed the accused lying with his leg on top and draped over D.M. and that the couple appeared to be cuddling, with no blanket between them. Police Constable Scott testified that she believed they appeared this way for a sexual purpose and rejected the suggestion that the accused had his head near D.M.'s stomach area. The police officer testified that police had to pull the accused off of D.M. I reject the accused's claim that he was in this position out of concern for D.M.'s well-being during her pregnancy and that he was listening to her stomach. I further accept the police evidence that D.M. was completely naked and not clothed as D.M. suggested in her evidence. There was no explanation why D.M. was naked, but the accused suggested he removed his shirt to use it as a cloth. This suggestion was not put to D.M. at trial and I reject this suggestion.

[116] There was no explanation given why, if the accused was concerned about D.M.'s pregnancy, was he lying in bed with D.M. when she was naked. The accused said the doctor in him, led him to stay and help out D.M. To be clear, there was no evidence at trial that the accused was a medical doctor and or received any medical training. The accused did not say if he raised his concerns with D.M.'s family, including her mother who was in the house and called the police on him. Nor did the accused call or ask D.M.'s mother to call for medical assistance. I reject entirely the accused's evidence about this incident and I accept the police evidence that they appeared to be cuddling for a sexual purpose. I further find there was a sexual purpose behind the accused's touching of D.M. with his chest and abdominal area in the manner previously described.

[117] Therefore, given my rejection of the accused's evidence, I am satisfied beyond a reasonable doubt by the Crown's evidence that I accept and as outlined above, that the accused is guilty. In considering whether the Crown's evidence has proven the charges beyond a reasonable doubt, I am satisfied that the Crown's evidence is both credible and reliable enough to justify a guilty verdict on all counts.

CONCLUSION

[118] I find to the criminal standard of beyond a reasonable doubt, that between December 1, 2018 and April 30, 2019, John Patrick Martinez did for a sexual purpose touch D.M., a person under the age of sixteen, directly with his body his mouth, contrary to section 151 of the Criminal Code.

[119] I also find to the criminal standard of beyond a reasonable doubt, that John Patrick Martinez sexually assault D.M. between December 1, 2018 and April 30, 2019, contrary to section 271 of the Criminal Code.

[120] I also find to the criminal standard of beyond a reasonable doubt, that on or about July 5, 2019, John Patrick Martinez did for a sexual purpose touch D.M., a person under the age of sixteen, directly with his body, his chest and abdominal area, contrary to section 151 of the Criminal Code.

[121] Lastly, I find to the standard of beyond a reasonable doubt, that on or about July 5, 2019, John Patrick Martinez did sexually assault D.M., a person under 16 years of age, contrary to section 271 of the Criminal Code.

[122] Therefore, I find John Patrick Martinez guilty on all counts before the court.

Released: April 23, 2020

Justice Jodie-Lynn Waddilove, O.C.J.