ONTARIO COURT OF JUSTICE

CITATION: R. v. Bess, 2021 ONCJ 609

DATE: July 26, 2021

COURT FILE No.: Brampton 19-6593

BETWEEN:

HER MAJESTY THE QUEEN

— AND —

KYRAN BESS

Before Justice Hafeez S. Amarshi

Written reasons for judgment released on July 26, 2021

J. Goulin.................................................................................................... counsel for the Crown

E. Willschick........................................................................................... counsel for Kyran Bess

A non-publication and non-broadcast order in this proceeding has been issued under subsection 486.4(1) of the Criminal Code. Any information that could identify the victim or a witness in this matter shall not be published in any document or broadcast or transmitted in any way. Failure to comply with this order is an offence under section 486.6 of the Criminal Code.

H.S. Amarshi J.:

A. Introduction

[1] Kyran Bess is charged with sexual assault, sexual interference, procuring a person under 18, administering a noxious substance with intent to endanger life or cause bodily harm and two counts of threat to cause bodily harm contrary to sections 271, 151, 286.3, 245(1)(a) and 264.1(1)(a) of the Criminal Code.

[2] The offences are alleged to have occurred sometime between August 1, 2019, and October 25, 2019, when Mr. Bess was 30 years old and the complainant (G.I.) was 15 years old.

[3] The Crown called two police officers who investigated a trespass call on October 25, 2019, and located the defendant and G.I. undressed in a bedroom.

[4] This was a remote trial with all parties appearing either via Zoom or video link. G.I.’s video recorded statement to the police taken on January 5, 2020, was admitted on consent under s. 715.1. The defendant also testified at this trial.

[5] Although Mr. Bess has been charged with multiple offences, the primary issue in this trial was whether the defendant took all reasonable steps to ascertain the age of the complainant prior to sexual contact. It is not contested that there was sexual activity between G.I. and Kyran Bess. The defence raises a mistaken belief in age pursuant to s.150.1.

[6] At the outset of the trial, the parties filed an Agreed Statement of Facts. It is agreed that the presence of semen was detected on swabs from G.I.’s vaginal and external genitalia areas. A penile swab was taken from Mr. Bess on October 25, 2019, incident to his arrest and sent to the Centre of Forensic Sciences for a DNA analysis. An analysis of the penile swab revealed that DNA attributable to G.I. was present on his penis.

[7] It is further agreed that the results of a urine sample taken from G.I. on October 25, and analyzed by a forensic toxicologist, revealed the presence of cocaine. It is likely the cocaine was ingested within 24 hours of the sample being taken, although not impossible for it to have been ingested outside of 24 hours.

B. Relevant Evidence

(i) Trespass Investigation

[8] Officer Shayne Lemieux was on uniform patrol on October 25, 2019, when he responded to a trespass call with his partner Cst. Mitchell Gane. The officers did not deem the call a high priority and considered it a provincial offences investigation. The officers arrived just after noon and met Nazir Ataw in the lobby of an apartment building at 16 John St. in Brampton. Mr. Ataw wanted people removed from his residence that he allowed into his unit two days before.

[9] Officers Lemieux and Gane proceeded to apartment 1505. Mr. Ataw entered the unit using his key and was followed in by the officers.

[10] Cst. Lemieux described the unit as small and says he verbally identified himself as a police officer. He was in uniform. He first encountered a male and female in the living room. According to Officer Gane, the couple appeared to be in their 30’s and 40’s. He observed a used crack pipe.

[11] Officer Lemieux was aware there were three parties in the apartment and observed a closed bedroom door. He knocked and walked in. In the bedroom was a male sprawled naked on a blanket. The male was identified as Kyran Bess. Beside him was a younger female, wearing no bottoms, sitting up and holding her legs. She was later identified by the officer as G.I.

[12] When asked to describe the female, Cst. Lemieux described her as appearing, “very young, like a teenager.” He estimated her age at the time he observed her in the apartment to be between 13 and 16 years old.

[13] Officer Gane came to a similar conclusion, testifying, “My immediate thought just seeing her there was that in my mind she didn’t even look old enough to drive let alone be in this situation where she’s with drug users in this house.”

[14] Cst. Lemieux asked G.I. how old she was, to which the complainant replied “19.” The officer testified that he did not believe her and concluded that she was “underage.”

[15] He told G.I. to get dressed and escorted her to the apartment hallway to speak to her. He wanted to investigate the nature of the relationship between the parties.

[16] Once in the hallway G.I. started to cry and told the officer that the defendant is going to hurt her. She appeared scared.

[17] Cst Lemieux identifies G.I.’s date of birth as […], 2004,[^1] although G.I. initially lies and tells the officer she was born on […], 2001.

[18] G.I. is taken to Chantel’s Place at Trillium Hospital to complete a sexual assault examination kit just after 1 p.m. At the hospital members of Peel Police’ Special Victims Unit take over the investigation.

[19] G.I.’s father and brother also attend at the hospital.

[20] Mr. Bess is arrested by Officer Gane while he is still in the apartment based on information conveyed to him from Cst. Lemieux.

(ii) Police Interview

[21] Officer Grace Henrich has been with the Special Victims Unit for three years. The unit is tasked with investigating cases involving child abuse and sexual offences.

[22] Officer Henrich testified that she attended at Chantel’s Place on October 25 for the purposes of interviewing G.I. However, the complainant did not want to speak with police. The officer described her as being, “absolutely terrified,” that she was scared and fearful about giving a statement.

[23] Cst. Henrich further observed G.I. to be under the influence of drugs or alcohol and seemed “a bit erratic.”[^2] At times she was agitated. She was very upset. The officer decided to hold-off on conducting an interview that day.

[24] G.I. was ultimately interviewed by police two and a half months later on January 5, 2020.

[25] Officer Henrich observed a change in G.I.’s appearance and demeanor In January as compared to the first time she encountered the complainant in October. That she was a lot calmer and well put together. She looked the same however age wise according to the officer.

(iii) Testimony of G.I.

[26] G.I. met the defendant in Brampton one night while waiting for a bus. She realized she missed the last bus to Orangeville where she lived. She spoke to a male she knew as “D” who told her not to worry, that he had a friend “J.R.” who would give her a ride. She met J.R. (who was identified as Kyran Bess) a short time later.

[27] She went to the defendant’s home that night because the weather was cold. They had no sexual contact that evening, and she described Mr. Bess as rolling a joint for her. They exchanged phone numbers. The defendant arranged a taxi to take her home that evening, which he paid in advance. She described Mr. Bess as “really nice,” but she knew he was older - between 32 and 34. She believed she met the defendant in late September or early October 2019.

[28] When asked by Officer Henrich in her video statement if she believed Kyran Bess knew that she was younger, “Like 14,” G.I, replied that she assumed so, saying, “I don’t know but I’m pretty sure I told him at some point.”

[29] G.I. said she never told the defendant what grade she was in or what school she attended. She did tell the defendant about her father, sometimes telling Mr. Bess that her father wanted her home or that she had to be home to clean. She would use this as an excuse when she wanted to leave the defendant’s company.

[30] After that evening G.I. would see the defendant whenever she came to Brampton. On occasion he would give her money or gifts, like perfume.

[31] She described an occasion when she was sexually assaulted by the defendant. She was at his apartment when Mr. Bess made sexual advances towards her while they were both sitting on a bed. That she was moving away, and the defendant flipped her over and held her down. In her statement she said she tried to get up, but the defendant grabbed her by the throat, that, “He just put it in, and I screamed.” G.I. felt like blacking out and that she felt like she was having an anxiety attack. She said she did not consume a lot of alcohol that night, but enough to be drunk. According to G.I. the defendant forced her to have sex with him on a second occasion, but she provided little detail. She didn’t believe he was drunk the second time.

[32] According to G.I. the defendant would put cocaine on her lip. If she didn’t want any, he would force her mouth open. She thought she used cocaine with the defendant more than ten times.

[33] G.I. candidly described having trouble remembering details - of having intercourse with the defendant and passing out. She recalled on the afternoon at Chantal’s Place while completing a sexual assault examination kit, being asked what happened to her, but she couldn’t remember.[^3]

[34] G.I. said she would drink and smoke marijuana when she was with the defendant. That Mr. Bess would try and get her, “really drunk, really high.”

[35] In the complainant’s video statement, she told Officer Henrich about an incident that occurred a few days before the defendant’s arrest. While having intercourse, Mr. Bess told G.I. that he wanted her to make money for him, “I want to sell your pussy or something,” which she says was the exact phrase used by the defendant. G.I. responded that she didn’t want to do that, to which the defendant replied he knew information about G.I.’s family. The defendant asked her if she had ever heard of a “pimp.”

[36] The next day the complainant described going to the defendant cousin’s apartment, who she believed was part of a plan to traffic her. She believed she would be taken to Niagara Falls or St. Catherines. According to G.I., Mr. Bess told her that his cousin had a program where girls worked out of a hotel in Niagara Falls and are paid to have sex. That they (the defendant and his cousin) would pay money to protect the girls and post ads.

[37] There was no specific discussion about the amounts she would be paid or the type of sexual acts that were involved.

[38] When asked to detail what occurred during the time leading up to the defendant’s arrest, G.I. said that she consumed drugs and alcohol at night. The next morning when police arrived, she could remember three things – that she was on the floor with the defendant, there was blanket, and they had no clothes on.

[39] In cross-examination[^4] she agreed that she tried to act more mature around the defendant but denied trying to act older. She further agreed that she willingly accepted marijuana and alcohol from Mr. Bess.

(iv) Testimony of Kyran Bess

[40] Mr. Bess confirmed aspects of the complainant’s evidence. That he met G.I. at a bus stop in 2019, about a month before he was arrested. He was introduced to her by a friend. G.I. along with a male named Danny went to his home at 65 Main St in Brampton. G.I. and the defendant subsequently exchanged phone numbers.

[41] According to the defendant he never had sexual relations with her prior to October 24 or 25, which was the date of his arrest.

[42] When he first met G.I., he concluded that she was 20 or 21, because of how she carried herself. He says she portrayed herself as a “gangster girl,” and a “hustler girl,” wearing glossy lipstick and earrings. He said G.I. told him she was 19.

[43] The defendant said when he saw G.I. testify in this trial that he was shocked by the difference in her appearance, that she was not same person. That previously she looked “ragged.” He further testified that he has younger sisters and he knows what younger people look like and how they carry themselves.

[44] On the night before his arrest on October 25, he says G.I. came to the apartment lobby and he let her in. She had brought her own alcohol – a bottle of Appleton. He was hosting a party with some friends. He says at one point she wanted to sniff cocaine and that she had her own stuff. He recalls asking her why she used and told her to go the bathroom, which she did.

[45] At some point that evening as people were starting to leave, G.I. joined him the bedroom. She wanted to stay with him for two days. The defendant agreed.

[46] According to the defendant G.I. initiated sex. That she started kissing him. They proceeded to have consensual sex.

[47] Although he believed she had consumed drugs, he says he had no doubt that she wanted to have sex.

[48] He testified that he was surprised in the morning to see two police officers. That they roughed him up and they roughed up G.I. That they were, “busting off the door.” He says he almost got into a fight with one of the officers because of the way he was speaking to G.I.

[49] The defendant denied wanting to sexually traffic G.I., saying he wanted her to be his future wife. He denied forcing her to have sex or threatening her.

[50] He testified that G.I. never spoke about her family and he didn’t even know she had a family.

[51] Mr. Bess conceded he had a criminal record including entries for uttering threats, assault with a weapon, robbery and a breach of a court order.

[52] He agreed he gave money to the complainant for a taxi, although he denies doing so on the first night he met her. Once for a taxi to Bramalea City Centre for $30. On another occasion for a $100 taxi ride.

[53] The defendant agreed he was aware that G.I. couldn’t drive. He understood she was looking to get her driver’s licence.

[54] Mr. Bess testified that when he met G.I. he asked her how old she was – not because he thought she was young, but according to the defendant that’s how you approach someone when you meet them – you ask them their name and age. When asked in cross-examination if had also asked Danny how old he was when they first met – he testified no, saying you don’t really ask men how old they are, just females.

C. Applicable Principles

(i) Sexual Interference & Sexual Assault

[55] To establish sexual interference, the Crown must prove beyond a reasonable doubt each of these essential elements: that the complainant was under 16 years of age at the time; that the accused touched the complainant; and that the touching was for a sexual purpose.

[56] To establish sexual assault, the Crown must prove beyond a reasonable doubt each of the following essential elements of that offence: the intentional physical touching of the complainant by the accused; and that the touching was of a sexual nature.

[57] Section 150.1 of the Criminal Code eliminates the requirement that the Crown prove lack of consent where an accused is charged with sexual interference and sexual assault of a complainant under the age of sixteen.

The section reads:

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 … 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.

[58] In this case there was clearly sexual activity between G.I. and the defendant on October 24 or 25.[^5]

[59] It is not disputed that G.I. was under the age of 16 years on October 25, 2019. Her 15^th birthday was six weeks earlier on […].

[60] The main issue to be determined in this trial is whether the defendant knew G.I. was under the age of 16 years at the time of the sexual touching or was reckless in this regard by failing to take all reasonable steps to ascertain her age.

[61] Mr. Willschick argues that Mr. Bess mistakenly believed G.I. was the age of lawful consent when he engaged in sexual touching. He submits that G.I. looked older than her actual age and presented herself in a mature way. He submits she held herself out to be 19 if the evidence of the defendant is to be accepted.

[62] Further he argues there were no indications in the defendant’s interactions with the complainant that made him believe that G.I. was under the age of 16. She smoked marijuana, drank alcohol and socialized with individuals that were clearly older than her. She was streetwise. Specifically, there was no subjective or objective reason to make additional inquiries about G.I.’s age in the circumstances.

[63] Implicit in his submissions was any sexual intercourse that occurred was consensual.

[64] Section 150.1(4) of the Criminal Code limits the availability of the mistake of age defence by requiring that “all reasonable steps” be taken to ascertain the complainant’s age. The provision reads:

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. [Emphasis added]

[65] 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 (the objective element) where an inquiry was warranted.[^6]

(ii) The Reasonable Steps Requirement

[66] The Supreme Court addressed the objective element of s. 150.1(4)[^7] in R. v. George. The Court stated, at paragraph 9:

Determining what raises a reasonable doubt in respect of the objective element is a highly contextual, fact-specific exercise… In some cases, it may be reasonable to ask a partner’s age. It would be an error, however, to insist that a reasonable person would ask a partner’s age in every case …

Conversely, it would be an error to assert that a reasonable person would do no more than ask a partner’s age in every case, given the commonly recognized motivation for young people to misrepresent their age… Such narrow approaches would contradict the open-ended language of the reasonable steps provision. That said, at least one general rule may be recognized: the more reasonable an accused’s perception of the complainant’s age, the fewer steps reasonably required of them. This follows inevitably from the phrasing of the provision (“all reasonable steps”) and reflects the jurisprudence ... and academic commentary… (citations omitted).

[67] The Ontario Court of Appeal has also addressed the issue of what constitutes “all reasonable steps” under s. 150.1(4). In R. v. Chapman, 2016 ONCA 310, at paragraphs 40 and 41, the Court states:

Section 150.1(4) mandates an inquiry akin to a due diligence inquiry. The analysis involves comparing the steps, if any, taken by an accused to determine the complainant’s age with the steps that a reasonable person would have taken in those circumstances…

In R. v. L.T.P., the British Columbia Court of Appeal considered those steps that might be reasonable for an accused to take in order to ascertain a complainant’s age. The court stated, at para. 20:

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 have been reasonable for the accused to take in the circumstances. As suggested in R. v. Hayes, supra, 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 whose 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”. [Emphasis added.]

[68] The Court goes on to emphasize that the accused is not required to make every possible inquiry. “Reasonable,” is dependent on the context and the circumstances.

[69] In Chapman, the complainants admitted that they had engaged in a deliberate and premeditated attempt to present themselves as older than 16. While the accused was acquitted, the Court of Appeal also cautioned at paragraph 53:

[T]his does not mean that a complainant’s conduct and appearance will always obviate the need for further inquiry about the complainant’s age. A reasonable person would appreciate that underage children may apply make-up and dress and act so as to appear older.

[70] The caselaw is clear that the onus is on the Crown to prove that all reasonable steps were not taken. A determination of what constitutes “reasonable steps” depends on the circumstances of the particular case and must be determined from the perspective of the reasonable person and not solely by reference to the accused’s subjective perception.[^8]

[71] While reasonable steps are assessed from an objective point of view, this assessment is informed by the circumstances known to the accused at the time of the sexual activity.[^9]

(iii) Applicable Principles in relation to Credibility and Reliability

[72] Credibility and reliability are central issues in this case. The framework in R. v. W.(D.), 1991 CanLII 93 (SCC), [1991] 1 S.C.R. 742, applies in this case and requires me to find Kyran Bess not guilty if I accept or I am left with a reasonable doubt by his evidence or any evidence inconsistent with his guilt. In other words, I need not believe the defendant to find him not guilty. Further, even if this Court rejects such exculpatory evidence, I must still be satisfied beyond a reasonable doubt by the Crown's evidence that I do accept that the defendant is guilty.

[73] This Court can accept some, none or all of any witness’ testimony. For example, if some parts of the testimony of a defendant are disbelieved, other parts of his testimony may still be believed or raise a reasonable doubt.[^10]

[74] Justice Watt in R. v. H.C., 2009 ONCA 56, explained the difference between credibility and reliability:

Credibility has to do with a witness's veracity, reliability relates to the accuracy of the witness's testimony. Accuracy engages consideration of the witness's ability to accurately

i. observe;

ii. recall; and

iii. recount events in issue.

Any witness whose evidence on an issue is not credible cannot give reliable evidence on the same point. Credibility, on the other hand, is not a proxy for reliability: a credible witness may give unreliable evidence.

[75] I note that minor inconsistences do not necessarily undermine the credibility of a witness, in some ways it is to be expected. There is no standard of perfection in a criminal trial. Witnesses may perceive, reflect and recall events differently.

[76] To emphasize, this Court cannot make a finding of guilt because it prefers the complainant's evidence to that of the defendant. In other words, criminal trials are not credibility contests and it would be an error to arrive at a conclusion on culpability based on which witnesses' evidence I preferred. There is no burden on Mr. Bess to prove anything in this case and I cannot find him guilty unless I am sure he is guilty of the offence or offences as charged.

D. Defence Position

[77] The defence argues that Mr. Bess believed G.I. to be 19 years old. Indeed, the defendant testified G.I. told him so. That she looked older, wearing glossy lipstick and earrings. That she acted mature. In the defendant’s view she portrayed herself like a “gangster girl” which in his view made her appear older than her actual age.

[78] He further testified that he has younger sisters and therefore a basis of comparison to assess young people and how they carry themselves.

[79] The defendant’s evidence is sufficient to support an “air of reality” to the mistake of age defence. The Crown is therefore required to prove beyond a reasonable doubt, either that the defendant did not honestly believe the complainant was at least 16 years old or did not take “all reasonable steps” to ascertain G.I.’s age.

[80] The defence further submits that I treat G.I.’s evidence with caution. She admitted she had consumed alcohol and marijuana while in the presence of the defendant. Mr. Bess testified that the complainant was a cocaine user. Further there are gaps in her memory such that the reliability of her evidence is suspect. Mr. Willschick points out that her video statement is taken two and half months after the alleged sexual assault when her ability to recall details about the night of the assault and aspects of her relationship with Mr. Bess would be diminished because of the passage of time.

E. Credibility Findings

(i) Kyran Bess

[81] I did not find Mr. Bess to be a credible witness and there were portions of his evidence that were not believable. Further, there were aspects of his testimony that were confusing and at times contradictory.

[82] For example, the defendant stated on multiple occasions in his evidence that he doesn’t like to be around people that use cocaine. He referenced one occasion when he questioned a friend of G.I. for using cocaine at this house. On another occasion when asked if he was at party where people were using drugs, he agreed, but stated, “Yeah, I don’t really go around people that do that stuff.” He made a considered effort in his evidence to portray himself as someone who does not like being around illicit drugs and is critical of those that use. Yet in cross-examination he admitted to sniffing cocaine with G.I. in a washroom at a friend’s home. It is difficult to reconcile this admission with his earlier evidence.

[83] At times his evidence was inconsistent. He initially described G.I. as a “hustler girl,” when explaining why the complainant came across as mature, yet in cross-examination he denied using that term as a descriptor. I did however find Mr. Bess to be candid in his admission that he often consumed drugs and alcohol in the presence of G.I.

[84] The defendant’s explanation of his encounter with police on October 25 did not ring true. He said that he was roughed up by police, as was G.I. That the officers were, “busting off the door.” This is unlikely. Officer Lemieux and Officer Gane were conducting a trespass investigation. By their own account it was not a high priority call and therefore did not require an urgent response. Officer Lemieux testified that he knocked on the closed bedroom door before entering. I accepted that evidence. He was not aware of any specific criminal activity in the apartment. There were no officer safety concerns. It is not plausible that he would act aggressively given the limited information he had. That he needed to bust open the bedroom door.

[85] Officer Lemieux testified that upon entering the bedroom and seeing the couple laying together, he asked G.I. how old she was. This accords with G.I.’s evidence. She does not describe being roughed up, nor does that make sense given the context of the investigation. G.I. gathered her clothes according to Officer Lemieux and accompanied him to a hallway to speak further. He said that she was eager to leave the apartment. Mr. Bess testified that he almost fought one of the officers because of the way they were speaking to G.I. which I took to mean aggressively or rudely. Again, this is not believable. The officers immediately identified the complainant as a possible victim of a sexual offence. I accepted they were concerned about her well-being.

[86] There were aspects of the defendant’s evidence that were confusing especially as it related to his observations and conclusions about G.I.’s age. During examination-in-chief he suggested that G.I. looked older because she wore glossy lipsticks and earrings, yet in cross-examination he stated that really wasn't one of the reasons and emphasized that it was the way she carried herself, like that of a gangster as the main factor.

[87] The difficulty is that Mr. Bess never clearly articulates how that is a determining or relevant factor in assessing the complainant’s actual age.

The following exchange is illustrative:

Ms. Goulin: And you said that (G.I.) - you know what young people look like. You told us that, right?

Mr. Bess: Yeah, ‘cause I have younger sisters, right.

Ms. Goulin: So what do you mean by that? What does a young person look like?

Mr. Bess: I will look on you how you carry yourself and approach yourself, right. You will act like a student if you was a student. You would act like a grown-up if you are a grown-up.

Ms. Goulin: How do you act like a student?

Mr. Bess: Well, you know, you know people, how they carry themselves, you know. You act like a student. This - it’s like going to church. If you was a Christian, you act like a Christian, move like a Christian. You don’t drink, you don’t smoke, you know.

Ms. Goulin: So, the best answer you can give me in terms of how a young person acts is, is how they carry themselves?

Mr. Bess: Yeah, it’s, it’s how they carry their self, right, [indiscernible} different things that they do, right, and if they move like a gangster, something [indiscernible].

Ms. Goulin: And you said that you thought she was like a gangster girl, right?

Mr. Bess: Yeah. Well, that’s how she approach herself, and she move like a thuggy girl, right?

Ms. Goulin: Like a what girl?

Mr. Bess: Thug.

[88] The defendant’s evidence was meandering and confusing on this point. He does however explain that G.I. used drugs and drank alcohol which he described as “street things.” I did attach some limited weight to that consideration. I appreciate that someone who has a street wise demeanour may appear to be older than their actual age. Mr. Bess also stated that G.I. hung out with an older man “Danny,” who he believed to be 34, which in his mind made her appear older. I accept that socializing with an older peer group is one indicia of age and relevant to adjudicating the reasonableness of the steps taken by the defendant.

[89] There was another aspect of the defendant’s evidence that was puzzling. When asked by Mr. Willschick, after observing G.I. testify in court, whether she looked similar to how she looked at the time of his arrest - the defendant responded that he was “totally shocked,” that she didn’t look like the same person. The difficulty is that G.I. wore a mask while testifying, so it is unclear how Mr. Bess would have been able to conclude that such a dramatic transformation had taken place. He did specify in cross-examination that her hairstyle and how she carried herself in court was different. This exchange alone did not significantly impact the defendant’s credibility, although overall I had concerns, that Mr. Bess was prone to exaggeration in his evidence.

(ii) Credibility Findings – G.I.

[90] I found G.I. to be an honest and candid witness. She was frank in her evidence and resistant to guessing or attempting to fill in gaps in her evidence. On more than one occasion she said she didn’t want to guess when asked to provide additional detail when being interviewed by Officer Henrich. She readily conceded that most of the time she spent with the defendant she was under the influence of drugs and alcohol.

[91] Although she was a credible witness and I accepted parts of her evidence,[^11] I do not have sufficient confidence in the reliability of some of her evidence.

[92] For example, she details the defendant forcing cocaine on her and passing out after having sex, but says it is, “hard because most of it I don’t remember.” Her memory she candidly stated was impacted by the substances she was consuming.

[93] Although it is likely G.I. and the defendant had sexual intercourse on multiple occasions, I can only conclusively determine sexual contact occurred on October 24 or 25.

F. Analysis - Sexual Interference & Sexual Assault

[94] I have concluded the defendant failed to take all reasonable steps to ascertain the complainant’s age.

[95] I base this conclusion on the following factors:

(i) Knowledge about the complainant

[96] I accepted that the defendant was aware that G.I. lived her parents. She testified that she would tell the defendant that her father wanted her home as an occasional excuse she used when she wanted to leave the defendant’s company. She also said she told Mr. Bess that her father wanted her to come home and clean. The comment demonstrates some level of parental authority. That she had chores at home. She was credible on this point. This is just one factor and I appreciate young people can live with their parents well into adulthood.

[97] Mr. Bess testified that G.I. told him that she was looking to get her driver’s licence. He was aware that G.I. took the bus everywhere. The fact that she did not have a driver’s licence would have been one indication that the complainant had not reached the age where she can legally operate a motor vehicle.

[98] I did not definitively conclude that G.I. told Mr. Bess she was 19. When asked if she told the defendant her age, she responded no. Upon further examination she replied that she didn’t think so, before stating she was not sure. Given my conclusions about the defendant’s credibility I did not accept Mr. Bess’ testimony that G.I. told him she was 19. There may have been a discussion, but I am unable to reliably conclude G.I. misled the defendant about her age.

[99] Similarly, although G.I. said in her video statement that she was “pretty sure” she told Mr. Bess she was underage - however, given my reliability concerns with G.I.’s evidence, I am not prepared to make that finding and conclude the defendant had specific knowledge of G.I.’s actual age.

(ii) The witnesses’ perceptions of age

[100] Officer Lemieux testified that he was immediately struck by the appearance of G.I. in the bedroom, who he described as looking, “very young, like a teenager.” This is corroborated by G.I. who said that as soon as she encountered police, “The first thing they said was how old are you?” G.I. responded 19. The officer didn’t believe G.I. and concluded she was “underage.”

[101] When asked to estimate her age he replied between 13 and 16. He based this conclusion he said, “By her appearance -- I’ve dealt with many calls for schools, for high schools, middle schools and her body, her presentation, her, her skin all, all together may me led to believe that she was a very young female.”

[102] Officer Gane came to a similar conclusion stating that he didn’t believe G.I. was even old enough to drive. He too was immediately struck by her appearance.

[103] I found both officers to be credible witnesses. Officer Lemieux who had the most interaction with G.I. provided particularly detailed evidence. His testimony was measured and careful. I did not detect any particular animus towards Mr. Bess as suggested by the defendant during his evidence.

[104] The law is clear that a person’s apparent age is a topic on which a witness can give lay opinion evidence.[^12]

[105] I attached weight to the observations and conclusions of both officers as to G.I.’s appearance and age.

(iii) Observations made during G.I.’s videotaped statement

[106] G.I. did not provide a videotaped statement until approximately two and half months after police encountered her at the John Street apartment.

[107] Cst. Grace Heinrich testified that although G.I. was calmer than when she first met her in October, age-wise she looked the same in January. Indeed, the defendant said she looked pretty much the same in her police recorded interview as compared to when he first met her at the bus stop in the fall of 2019. Of significance, when asked how old G.I. looked in the January 2020 video, the defendant responded 19 or 20.

[108] The challenge with the defendant’s evidence regarding his assessment of G.I.’s age, is that it is difficult to accept his conclusion having viewed the videotaped statement. It undermines the reasonableness of his perception of the complainant’s age before sexual contact.[^13] G.I. looks young. She certainly does not look like a woman entering her early 20’s as was suggested by the defendant. It is not surprising that Officer Gane believed she did not look old enough to drive. I agree with that assessment.

[109] As the trier of fact, I am entitled make my own assessment of how old the complainant looked during the period of sexual contact. G.I.’s videotaped interview with police is over an hour long. The quality of the recording is good, and I had a significant opportunity to make observations about the complainant’s appearance.

[110] I have difficulty accepting that the defendant honestly believed the complainant was over 16 years of age. Even if I were to accept Mr. Bess had a subjective belief, I cannot conclude that this belief was objectively reasonable.

[111] Even if I were to accept that the defendant had been misled by G.I. about her actual age, a visual observation of the complainant would certainly have necessitated further inquiries. When comparing the steps taken by the defendant to those of a reasonable person in the same circumstances, I find Mr. Bess’ actions and inquiries fall far short of the reasonable steps required in this case.

[112] The fact that G.I. drank, and smoked marijuana is suggestive of some measure of life experience, but it is hardly determinative in these circumstances - a reasonable person would appreciate that teenagers may drink alcohol, although not legally permitted to do so. Similarly, the fact that the complainant carried herself in a street wise manner, which Mr. Bess repeatedly mentioned in his testimony, is a relevant factor, however, ultimately not a particularly reliable indicator of her age.

[113] In the end it was the observational assessments made from G.I.’s recorded statement and the evidence of officers Lemieux and Gane that I attached the most weight.

[114] The defendant’s testimony was not sufficient to raise a reasonable doubt about the objective element of the s.150.1(4) defence.

G. Conclusion

(i) Sexual interference & sexual assault

[115] The defendant is found guilty of sexual interference and sexual assault. A conviction is to be entered on counts 1 and 2. Count 2, the sexual assault charge, will be stayed pursuant to Kienapple.

(ii) Procuring a person under 18

[116] Mr. Bess is not guilty of count 3. Although I accept there was some discussion of G.I. providing sexual services for consideration, I am unable to determine if this was anything more than the defendant probing G.I.’s initial reaction. Further the Crown has not established the requisite degree of control, direction, influence or enticement required to ground liability under s. 286.3 of the Criminal Code.

(iii) Administering a noxious substance

[117] The defendant is not guilty of count 4. Given my concerns with the reliability of G.I.’s evidence I am unable to conclude the complainant was forced to consume cocaine. I accept the possibility that G.I. voluntarily used cocaine in the company of Mr. Bess.

(iv) Uttering threats

[118] A conviction is entered on count 4. G.I. provided detailed and reliable evidence that the defendant threatened to cause bodily harm to her father – M.I. Because G.I. testified that the threats also occurred over the phone, I do not have the same reliability concerns that she was under the influence of substances - such that her ability to accurately recount and convey the threats of bodily harm was impaired.

[119] The defendant was aware of details of G.I.’s family. That she lived in Orangeville with her parents. He pre-paid for her taxi home. She used her father as an excuse when she wanted to leave the defendant’s company. I reject as untrue, Mr. Bess’s evidence that he didn’t even know G.I. had a family.

[120] According to G.I. she was sufficiently concerned after Mr. Bess told her he would kill her father, that she told M.I. about the threat. G.I.’s evidence was specific and compelling on this point

[121] I rejected the defendant’s denial that he did not utter a threat. Nor am I left in doubt by his evidence. On the evidence I accepted, I am satisfied beyond a reasonable doubt that the defendant uttered a threat to G.I. to cause death to M.I.

[122] Count 5 is particularized as a threat to K.I. to cause bodily harm to M.I. No evidence was tendered at this trial to support this count and it is dismissed.

H.S. Amarshi J.

[^1]: G.I.’s father confirms her date of birth as […], 2004, later that evening. [^2]: Although Officer Henrich concluded that G.I. was under the influence of alcohol or drugs, she testified that she was able to communicate with the complainant. [^3]: I understood her evidence to be while being examined by medical professionals as opposed to speaking to police. [^4]: Near what I understand was the end of Mr. Willschick’s cross-examination, the complainant could no longer continue with her evidence. It was determined what was remaining were largely Browne v. Dunn related issues and Mr. Willschick was content the cross-examination be deemed completed. [^5]: As per the DNA analysis results outlined in the Agreed Statement of Facts. Also, both G.I. and the defendant testified that they had sex during that time period. [^6]: R. v. George, 2017 SCC 38, at para. 8. [^7]: See R. v. K.S., 2018 ONSC 1988, for a summary of the law in the area which has been adopted in this decision. [^8]: R. v. Duran, 2013 ONCA 343, at paras. 51-55. [^9]: R. v. Darrach, 1998 CanLII 1648 (ON CA), [1998] 38 O.R. (3d) 1 (OCA). [^10]: R. v. J.H.S., 2008 SCC 30, [2008] 2 SCR 152, at para. 11 [^11]: For example, I accepted her evidence that the defendant threatened to kill her father. [^12]: R. v. K.S., 2019 ONCA 474 at para. 9. See also R. v. Azonwannag, 2020 ONSC 1513. [^13]: R. v. George, 2017 SCC 38, at para. 9. I further note the age difference between the defendant and G.I. is also relevant in determining whether the steps taken are reasonable. The greater disparity in age, the more inquiry that will be required. See R. v. R (RA), (1996) 1996 CanLII 7277 (NB CA), 175 NBR (2d) 225 (CA). In this case there is a significant 15-year gap.