WARNING
The court hearing this matter directs that the following notice be attached to the file:
A non-publication and non-broadcast order in this proceeding has been issued under subsection 486.4(1) of the Criminal Code. This subsection and subsection 486.6(1) of the Criminal Code, which is concerned with the consequence of failure to comply with an order made under subsection 486.4(1) , read as follows:
486.4 Order restricting publication — sexual offences. — (1) Subject to subsection (2), the presiding judge or justice may make an order directing that any information that could identify the victim or a witness shall not be published in any document or broadcast or transmitted in any way, in proceedings in respect of
( a ) any of the following offences:
(i) an offence under section 151, 152, 153, 153.1, 155, 160, 162, 163.1, 170, 171, 171.1,172, 172.1, 172.2, 173, 213, 271, 272, 273, 279.01, 279.011, 279.02, 279.03, 280, 281, 286.1, 286.2, 286.3, 346 or 347, or
(ii) any offence under this Act, as it read from time to time before the day on which this subparagraph comes into force, if the conduct alleged would be an offence referred to in subparagraph (i) if it occurred on or after that day; or
( b ) two or more offences being dealt with in the same proceeding, at least one of which is an offence referred to in paragraph (a) .
(2) MANDATORY ORDER ON APPLICATION — In proceedings in respect of the offences referred to in paragraph (1)( a ) or ( b ), the presiding judge or justice shall
( a ) at the first reasonable opportunity, inform any witness under the age of eighteen years and the victim of the right to make an application for the order; and
( b ) on application made by the victim, the prosecutor or any such witness, make the order.
486.6 OFFENCE — (1) Every person who fails to comply with an order made under any of subsections 486.4(1) to (3) or subsection 486.5(1) or (2) is guilty of an offence punishable on summary conviction.
ONTARIO COURT OF JUSTICE
DATE: October 20, 2022 COURT FILE No.: 22-0178
BETWEEN:
HIS MAJESTY THE KING
— AND —
JUSTIN McMULLEN
Before Justice Robert S. Gee
Heard on September 9 and 12, 2022 Reasons for Judgment released on October 20, 2022
Counsel: Cameron Rogers................................................................................ counsel for the Crown Eric Angevine.................................................................................. counsel for the accused
Gee J.:
INTRODUCTION
[1] At the outset of trial, the accused faced four charges, all alleged to have occurred on or about September 20, 2021. These charges were, sexual assault, sexual interference, invitation to sexual touching, and luring a person under 16. The Crown proceeded by indictment and the accused elected to have his trial in the Ontario Court of Justice. The evidence was heard on September 9, 2022, and submissions were made on September 12, 2022. The matter was then reserved to today for judgment.
[2] This was a one witness trial. The Crown called the complainant, who at the time of the alleged offences, was 14 years old and, at the time of trial, was 15. Her evidence consisted of her in court testimony and her statement she gave to police on November 8, 2021, which she adopted pursuant to s. 715.1(1) of the Criminal Code. The accused chose not to testify or call any other evidence.
[3] At the conclusion of the evidence, I was invited by the Crown to dismiss the luring charge, which I did. The balance of these reasons will explain why I will be making findings of guilt on two of the three remaining charges, that being the sexual assault and the sexual interference. The charge of invitation to sexual touching, will be dismissed.
THE EVIDENCE
[4] The accused and the complainant’s former boyfriend apparently played on the same ball hockey team. The accused, not long before the alleged incidents in this matter, started messaging the complainant through Instagram. According to the complainant, the accused told her he was 18 years old. It turns out he wasn’t, he was actually 24 at the time. The complainant testified she told the accused her actual age, which was 14.
[5] The complainant was in grade 10 attending high school in Brantford. She was skipping classes and frequently staying out overnight which, not surprising, created conflict and other issues between her and her mother. She testified that on at least two occasions when she stayed out, she stayed at the accused’s residence. On at least one of these times when she stayed with him, they engaged in sexual intercourse. Then, in the morning after staying there, he would drive her to school.
[6] The complainant testified her former boyfriend was concerned about her interactions with the accused and advised the complainant’s mother about it. The complainant’s mother at some point, took the complainant’s phone away from her. She knew the complainant’s passwords and was able to view the messages between the complainant and the accused.
[7] The complainant’s mother confronted her about the accused and her hanging out with someone in their twenties. She also advised the complainant the police were then looking for the accused. It was unclear from the evidence the reason the police were, whether it be related to this or something else, however, the complainant not long after messaged the accused and advised him about it. She also confronted him about his real age. The accused never admitted to lying about his age but did not deny it either, he never directly responded to it. The defence has claimed there is no proof the accused was the person on the other end of the messages sent by the complainant. That may be the case, however it is clear the complainant believed she was conversing with the accused so this is some evidence that corroborates her evidence that the accused lied about his age.
[8] As noted, the complainant was interviewed by Detective Gina Mantel of the Brantford Police on November 8, 2021. It was clear from the interview the complainant was reluctant to discuss the matter and become involved with the police. She did not know in great detail prior to attending for the interview why she was going to the police station. Her mother had arranged for the interview and brought her and told her it was concerning the accused. As the interview went on, she confirmed she knew the accused, had met him through his connection to her ex boyfriend’s ball hockey team and that they had sex. She also confirmed the accused told her he was 18 and she had told him she was 14. In her mind, the whole thing was not “a big deal” as she described it because the sex was consensual.
[9] Notwithstanding her reluctance to engage with the police, the complainant spoke of a time where she went on what she described as a spree where she didn’t go home, skipped school, and slept at friends’ houses. It was during this time she slept at the accused’s house a couple times. She was able to describe where his house was, it’s layout and on one occasion she took a picture of his dog while there. Then in the morning after sleeping over, he would drive her home so she could go to school. In the interview she never quantified the number of times she and the accused had sex, though when asked if they had sex both times she slept over, she said no. She also said had she known the accused was actually 24 and not 18 as he told her, she would have blocked him and not associated with him.
[10] In her testimony she stated they had sex once or twice at the accused’s house. She had stayed at his house during the week, and in the morning, he would drive her to school. She said the sex consisted of intercourse only. She said it lasted 10 to 20 minutes but could not be any more precise because it was not something she kept track of. There were other details she could not remember, like if the accused wore a condom or if he ejaculated. She was also asked in cross examination if she recalled how the intercourse ended and she said she did not. Also, in cross examination she was asked if she was concerned at the time about contracting sexually transmitted infections or contracting AIDS from this and she indicated she was not. She was asked if she knew anything about the health of the accused and again admitted she did not and could not recall if it was discussed.
ANALYSIS
[11] Since the complainant in this case is the only person to testify, whether the Crown has proven the charges of sexual assault and sexual interference, will depend on my assessment of her evidence. This I find is not the same though for the charge of invitation to sexual touching.
[12] For reasons that are set out below, I do accept the evidence of the complainant. However, even though I accept her evidence, I find the Crown has not proven the charge of invitation to sexual touching, contrary to s. 152 of the Criminal Code.
[13] The complainant did not provide any evidence of anything the accused said or did that led to them engaging in sexual intercourse. She stated they messaged over various social media platforms and obviously spoke in person, but the content or details of those discussions and interactions were never revealed. To establish guilt on this charge, the Crown would need to prove three elements, first, that the complainant was under 16, second, that the accused invited, counselled, or incited the complainant to touch him and, third, that the proposed touching was for a sexual purpose. An invitation in this context can be in the form of words or actions or both by an accused as long as it amounted to an invitation to touch for a sexual purpose. See: R. v. Carbone, 2020 ONCA 394 at paragraphs 60 to 62. It is the second of these three elements that the Crown has failed to establish.
[14] Since there is no evidence as to what the accused said or did in any of the interactions leading up to the sexual intercourse, the Crown has suggested I can fill in this gap in the evidence by presuming the accused must have said or did something that invited or incited the complainant to engage in sexual touching. This is an offence though that captures prohibited forms of communication, not necessarily assaultive behaviour. The offence can be committed without any touching taking place between the complainant and the accused, and conversely, sexual touching can take place without any “invitation” taking place.
[15] Justice S. Corthorn, sitting as a Summary Conviction Appeal Court stated this in R. v. S.O., [2021] O.J. No. 7087 at paragraph 39:
For the actus reus, it is important to note that invitation to sexual touching is an offence of communication, not assault. Invitation, incitement, or counselling to sexual touching requires a "positive action by the accused person", rather than "passive acquiescence"
[16] As acquiescence on the part of an accused is not sufficient to establish guilt under s. 152, the Crown must prove some act said or done by the accused to support a conviction. This principle was explained by the Prince Edward Island Court of Appeal in R. v. Rhynes, 2004 PESCAD 15 , [2004] P.E.I.J. No. 55 at paragraph 51 as follows:
The Summary Conviction Appeal Court judge did not err when she concluded that to "incite" touching for a sexual purpose contrary to s. 152, it must be proven the offender by some positive act, urged, persuaded or encouraged the person under the age of fourteen years to do so.
[17] A person could be touched for a sexual purpose by someone under the age of 16 but still not be guilty of an offence under s. 152. That is why s. 151, sexual interference, and s. 152 invitation to sexual touching are meant to be complimentary. One of these charges, sexual interference, prohibits forms of sexual touching of persons under the age of 16, while the other, invitation to sexual touching prohibits communications with persons under the age of 16 for sexual purposes.
[18] In this case, I accept the evidence of the complainant that sexual touching took place between her and the accused. However, that does not prove whether there was any invitation, discussion or incitement by the accused concerning that touching. Since sexual touching can occur without any “invitation” as prohibited by s. 152, as the P.E.I. Court of Appeal said in Rhynes above, the Crown must prove some positive act by the accused in order to ground a conviction.
[19] In this case, it is not permissible to fill in the evidentiary gap by presuming some discussion or incitement or other act must have taken place by the accused simply because sexual intercourse occurred. The Crown always carries the burden of proving the case by presenting evidence capable of establishing all the elements of the offence beyond a reasonable doubt. In the absence of such evidence, it is not permissible to presume it exists to fill the gap. As such, I decline the Crown’s suggestion in this case to presume there must have been some discussion or act by the accused that would amount to an invitation as required by s. 152 and that charge will be dismissed.
[20] That leaves the charges of sexual assault and sexual interference. On these charges, if I believe the complainant that sexual intercourse between her and the accused occurred, then the accused would be guilty of the offences notwithstanding the complainant’s claim the encounters were consensual, given she was 14 at the time. I should note, there was no claim here by the accused that he was in any way mistaken in his belief as to the complainant’s age. In other words, there was no claim that he honestly believed the complainant to be over 16.
[21] In assessing the evidence of the complainant, I find that I believed her testimony, I accept that her and the accused engaged in sexual intercourse when she was 14 and he was 24. In listening to her I find she testified honestly and to the best of her ability. I did not detect any attempts to embellish the matter, evasiveness on her part or any attempts to be deceitful. It was apparent from both her interview with the police and her testimony in court, that she did not want police or court involvement in this. It was her mother who brought the matter to the attention of the police and not her. It was apparent that in her mind, that although she was upset when she found out after the fact that the accused lied about his age, when they engaged in the sex it was consensual. To her it was not as big a deal as it was to the police at the time of her interview or even still at the time of trial. The fact the police, the courts and the adults in her life were taking it more seriously than she was, if anything led her to downplay the incidents.
[22] Notwithstanding the details she was able to give, there were other details of the incidents she did not know or could not recall. This will be discussed more below but suffice it to say, I did not find that any lack of detail, detracted from her credibility or reliability in any way. Given her perspective, that the sex was consensual and not a big deal, her lack of recall of some detail is not surprising. There would have been no reason for her to think during the course of the acts that she would have to recount the events in great detail some 6 to 8 weeks later in a police interview or a year later in court. The core of her allegations that she and the accused had sexual intercourse on one or two occasions, remained consistent throughout. She did not waiver in this in her police interview, in her examination in chief or, in cross examination.
[23] As noted, the reliability of her evidence was challenged by the accused based on her inability to provide more details surrounding the incidents. The date of the encounters was not known to her with precision. Whether it happened once or twice, whether the accused wore a condom and if he ejaculated were details, she was not certain about. Also, she said she could not recall if she had discussed the accused’s health status with him to assess the risk of contracting a sexually transmitted infection from him.
[24] I was urged by defence counsel to conclude the complainant was an unreliable witness because she provided almost no detail in places where, in defence counsel’s words, it would be reasonable, and common sense tells us that I should expect the complainant to know more about what happened.
[25] Reasoning in the manner as urged here I find is directly contrary to the manner in which judges are now directed to approach cases such as this. To reason in the manner urged here I find would be directly contrary to one or both of the rules Justice Paciocco enumerated in R. v. J.C., 2021 ONCA 131. The first is the rule against ungrounded common-sense assumptions. This rule tells judges to avoid falling back on “common-sense” assumptions that are not grounded in some way in the evidence. Justice Paciocco explained the rule in paragraphs 58 to 61 as follows:
[58] The first such rule is that judges must avoid speculative reasoning that invokes “common-sense” assumptions that are not grounded in the evidence or appropriately supported by judicial notice: R. v. Roth, 2020 BCCA 240 , at para. 65 ; R. v. Cepic, 2019 ONCA 541 , 376 C.C.C. (3d) 286, at paras. 19-27 ; R. v. Perkins, 2007 ONCA 585 , 223 C.C.C. (3d) 289, at paras. 35-36 . For clarity, I will call this “the rule against ungrounded common-sense assumptions”.
[59] To be clear, there is no bar on relying upon common-sense or human experience to identify inferences that arise from the evidence. Were that the case, circumstantial evidence would not be admissible since, by definition, the relevance of circumstantial evidence depends upon using human experience as a bridge between the evidence and the inference drawn.
[60] Nor is there any absolute bar on using human experience of human behaviour to draw inferences from the evidence. If there was, after-the-fact conduct evidence about things such as flight or the destruction of evidence would not be allowed. Such evidence is relevant because human experience tells us that these behaviours, flight and destroying evidence after a criminal act, are generally undertaken to hide guilt. An absolute bar on using human experience of human behaviour to draw inferences would also mean that evidence that an accused drove a protesting sexual assault complainant to a secluded location could not be used as proof of his intention or her lack of consent. The inferences to be drawn from that evidence depend on common-sense conclusions about what a person acting in a particular manner is likely to be thinking.
[61] Properly understood, the rule against ungrounded common-sense assumptions does not bar using human experience about human behaviour to interpret evidence. It prohibits judges from using “common-sense” or human experience to introduce new considerations, not arising from evidence, into the decision-making process, including considerations about human behaviour.
[26] The second rule enumerated in J.C. by Justice Paciocco is the rule the rule against stereotypical inferences. This rule warns against reliance on stereotypes or erroneous common-sense assumptions about how a sexual assault complainant is expected to act to either bolster or compromise credibility. In paragraphs 63 to 69 of J.C. he described and explained the rule as follows:
[63] The second relevant, overlapping rule is that factual findings, including determinations of credibility, cannot be based on stereotypical inferences about human behaviour. I will call this “the rule against stereotypical inferences”. Pursuant to this rule, it is an error of law to rely on stereotypes or erroneous common-sense assumptions about how a sexual offence complainant is expected to act, to either bolster or compromise their credibility: Roth, at para. 129 ; R v. A.B.A., 2019 ONCA 124 , 145 O.R. (3d) 634, at para. 5 ; Cepic, at para. 14 . It is equally wrong to draw inferences from stereotypes about the way accused persons are expected to act: R. v. Quartey, 2018 ABCA 12 , 430 D.L.R. (4th) 381, at para. 21 , aff’d 2018 SCC 59 , [2018] 3 S.C.R. 687; and see Cepic, at para. 24 .
[64] Two points are critical in understanding this rule and ensuring that it does not impede proper judicial reasoning.
[65] First, like the rule against ungrounded common-sense assumptions, the rule against stereotypical inferences does not bar all inferences relating to behaviour that are based on human experience. It only prohibits inferences that are based on stereotype or “prejudicial generalizations”: R. v. A.R.D., 2017 ABCA 237 , 422 D.L.R. (4th) 471, at paras. 6-7 , aff’d 2018 SCC 6 , [2018] 1 S.C.R. 218.
[66] For example, it is a myth or stereotype that a complainant would avoid their assailant or change their behaviour towards their assailant after being sexually assaulted, and it is an error to employ such reasoning: A.R.D., at paras. 57-58 ; A.B.A., at paras. 6, 8-10 ; R. v. Caesar, 2015 NWTCA 4 , 588 A.R. 392, at para. 6 . Similarly, it is a stereotype that women would not behave in a sexually aggressive manner, or that men would be interested in sex. Reasoning that is based on such inferences is not permitted: Cepic, at paras. 14-16 ; Quartey, at para. 21.
[67] By contrast, no stereotype or prejudicial generalization is offended by inferring, where a man drives a resisting woman to a secluded location before touching her sexually, that she did not consent and that he intended to touch her without her consent. Hence, such inferences are appropriate.
[68] The second critical point in understanding the rule against stereotypical inferences is that this rule prohibits certain inferences from being drawn; it does not prohibit the admission or use of certain kinds of evidence. Professor Lisa Dufraimont makes this point admirably in “Myth, Inference and Evidence in Sexual Assault Trials” (2019) 44:2 Queen’s L. J. 316, at pp. 345-46, 350; and it is reinforced in A.R.D., at paras. 6-8, 62 ; and Roth, at para. 73 .
[69] For this reason, it is not an error to admit and rely upon evidence that could support an impermissible stereotype, if that evidence otherwise has relevance and is not being used to invoke an impermissible stereotype: Roth, at paras. 130-38 . For example, in R. v. Kiss, 2018 ONCA 184 , at paras. 101-2 , evidence that the complainant did not scream for help was admitted, not to support the impermissible stereotypical inference that her failure to do so undermined the credibility of her claim that she was not consenting, but for the permissible purpose of contradicting her testimony that she had screamed to attract attention.
[27] The assumption in this case as urged by the defence, is that there are aspects to sexual encounters that are so important that common sense tells us the participants will necessarily discuss them beforehand and still recall them weeks, months, and years later. Sex can be a risky activity. For instance, it can result in unwanted pregnancies and sexually transmitted infections. Therefore, people will take all reasonable steps to reduce those risks and be able to recall, when asked, that they did. This is the common-sense assumption I'm being asked to make.
[28] The defence position is that the complainant should be able to recall these details, and since she cannot, she must necessarily be an unreliable witness. This line of reasoning would violate the first rule noted above, the rule against ungrounded common-sense assumptions. There is no evidence before me, nor can I take judicial notice of which aspects of sexual encounters, if any, are so universally important that all participants to the act will always recall them with precision. In fact, if anything, common sense tells me this is not the case. It would be folly to try to assume what aspects of a sexual encounter and what factors people would consider to be important, before engaging in sex. What might be an important consideration to one person may not be to another. Sex is a very private, individualized activity and what a person considers when deciding to engage in it no doubt varies from person to person.
[29] For me to say these details should have been important enough to this 14 year old complainant that she should have remembered them and then been able to describe them to me in detail is an impermissible manner of reasoning. I'm not about to guess at what aspects of a sexual encounter a 14 year old will recall from what she thought at the time was a somewhat age appropriate, and consensual encounter.
[30] This also applies to the other details the defence says are lacking in the complainant’s testimony, how many times the sex occurred, one or two, or the precise dates on which it occurred. In the end I accept the evidence of the complainant. Her so called lack of details does not detract from either her credibility or reliability. She was 14 years old, she said she had sexual intercourse with the 24 year old complainant. That is something I find she would remember and does. I believe her when she says it happened.
CONCLUSION
[31] It is for these reasons I accept the evidence of the complainant. I believe her when she says she and the accused engaged in sexual intercourse. Even though she stated she felt it was consensual, given their ages, that is not a relevant consideration. As such, I find the Crown has proven the charges of sexual assault and sexual interference beyond a reasonable doubt and findings of guilt will be made in relation to both of these counts.
[32] In order to comply with the rule against multiple convictions for one delict, I invite the Crown to advise which of the two counts on which it wishes a conviction to be registered.
Released: October 20, 2022 Signed: Justice Robert S. Gee