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judge or justice may make an order directing that any information that could identify the victim or a witness shall not be published in any document or broadcast or transmitted in any way, in proceedings in respect of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, 162.1, 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: 2024 10 04 COURT FILE No.: Thunder Bay 194997

BETWEEN:

HIS MAJESTY THE KING

— AND —

K.C.

Before: Justice C.M. Brochu

Heard on: October 1 and 2, 2024 Reasons for Judgment released on: October 4, 2024

Counsel: Shelby Ernst....................................................................................... Counsel for the Crown Robert Habjan................................................................. Counsel for the defendant, K.C.

BROCHU J.:

OVERVIEW

[1] K.C. is charged that on or between the 1st day of June, 2019 and the 30th day of August, 2019, he sexually assaulted A.B. contrary to section 271 of the Criminal Code, and for a sexual purpose touched A.B. a person under the age of sixteen, with a part of his body, by having intercourse, contrary to section 151 of the Criminal Code.

[2] The trial was heard on October 1 and 2, 2024.

[3] At the time of the alleged offence, A.B. was 15 years of age and the accused was 21 or 22 years of age, his date of birth falling in August.

[4] The alleged offence took place following a house party in the Township of Marathon. Both parties had consumed alcohol and drugs.

[5] The accused does not deny that he had sexual intercourse with A.B.

[6] The issues are narrow and as follows:

1. Does the defence of honest but mistaken belief in the legal age of consent apply?

2. Should this defence succeed, did the complainant consent and/or was she capable of consenting, by her words and/or actions, to the sexual activity?

SUMMARY OF EVIDENCE

[7] The complainant and the accused were the only witnesses called at the trial.

Undisputed facts

[8] An Agreed Statement of Facts (“ASF”) was filed. The following facts were admitted:

1. the date range of the alleged incident between June 1, 2019 and August 29, 2019,

2. time of the offence,

3. jurisdiction,

4. identity, and

5. that the accused and A.B. attended a party at T.B.’s aunt’s house, located near McCullough Street in Marathon, Ontario. At this party, A.B. and the accused engaged in a series of acts for a sexual purpose in an upstairs bedroom.

[9] I have also found that the following facts were not contentious:

1. the accused and the complainant were not known to each other prior to that evening,

2. the accused never specifically asked A.B. how old she was,

3. there were no discussions regarding A.B.’s or the accused’s age,

4. the complainant was 15 year of age and the accused 21 or 22 years of age at the time of the alleged incident,

5. the accused and the complainant engaged in sexual activity, which included sexual intercourse,

6. at no time did the accused explicitly ask A.B. for her consent, and

7. at no time did A.B. explicitly say “no”.

Evidence of A.B.

[10] A.B. is now 20 years of age. She is living in the City of North Bay with her mother, her partner and her 14-month-old baby. She testified via Zoom from the courthouse in North Bay following a successful 714.1 application brought by the Crown prior to trial.

[11] The Crown’s 715.1 application was abandoned at the start of A.B.’s testimony.

[12] A.B. remembered attending the party on the evening in question with her friend, H.M. She also remembered the people with whom she associated at the party. They included J.M., E.F. and the accused. She also recalled that J.F., J.B. and D.A. were there as well.

[13] It was her evidence that at one point there were several individuals at the party. She estimated likely between 10-20, but she does not remember everyone that was there.

[14] She testified that H.M was the same age as her, 15 years old. J.M. was 15 or 16 years of age. E.F. was 16 or 17 years of age. D.A. was 16 years of age. She did not know how old the accused was, but believed he was between 20 and 25 years old. She based her assumption on the age of the accused by the fact that he hung out with individuals that were about the same age as her sister, A. Her sister would have been 22 to 23 years of age in the summer of 2019.

[15] She knew that the accused hung out with T.B., who she also believed to be in the age range of 20 to 25 years.

[16] A.B. had met T.B. through H.M., as they were friends at the time.

[17] The evening in question started at H.M.’s place, where A.B. was hanging out with H.M. and E.F. They made their way to the party around 7 to 8 p.m.

[18] She brought her own alcohol, which had purchased by someone else given her age. It was her recollection that at the party she drank approximately half a mickey of vodka and half a 26 oz bottle of Sourpuss.

[19] She admitted to having drank in the past and estimated that she had done so perhaps on five prior occasions.

[20] The evening was spent drinking and socializing.

[21] She could not remember exactly when the accused arrived, but she recalled seeing him standing in the kitchen and talking. At one point in the evening, they were standing around with others and talking.

[22] There were also drugs at the party. She remembers there was marijuana. She admitted to having consumed marijuana in the form of gummy worms. She recalled having 2 or 3 of the gummies. It was her evidence that she got the drugs from the accused. She stated that she ingested all the gummies within the span of a few minutes. She had not consumed gummies in the past.

[23] It was her evidence that she did not recall feeling much effect from the gummies. She stated that she was already very intoxicated from her alcohol consumption. She remembered that objects were blurry, and the room was kind of spinning.

[24] She was cross-examined on her use of cocaine that night. It was her evidence that she had no recollection of consuming cocaine, or of seeing anyone else consume cocaine at the party.

[25] At the end of the night, remaining at the party was H.M, T.B. and A.B. J.M. was also present. She recalled that the accused had previously left. They had exchanged, or at least she had obtained his Instagram contact information at some point during that night. She messaged him and asked where he had gone. She recalled him answering something to the effect that if he returned, she needed to hang with him.

[26] He obviously returned. It was A.B.’s evidence that they were sitting on the couch in the living room. This included A.B., H.M., T.B. and the accused. She remembered sitting on the couch with the accused, and the conversation was going well.

[27] At one point, H.M. and T.B. were going upstairs. It was her evidence that she ended up following them upstairs. The accused followed her upstairs as well.

[28] T.B. and H.M went into one of the upstairs bedrooms.

[29] A.B. went into the other bedroom. She laid down on the bed. The accused followed her in the bedroom. He shut the door. The room was dark.

[30] It was A.B.’s evidence that she was laying on her back on the bed. The accused joined her on the bed. He was on her left side. He put his hand down her pants rubbing and digitally penetrating her vagina. This lasted approximately 10 to 15 minutes. She stated that she does not remember saying much. She was just laying there trying to process what was happening.

[31] It was her evidence that she was slightly uncomfortable. She did not realize what was going on. She was shocked. She was also very intoxicated.

[32] Subsequently, the accused took off her pants, underwear and shirt. He got on top of her and started having sexual intercourse with her.

[33] She indicated that she was wearing black leggings and a snug fitting, red and white long sleeve shirt with a high neck.

[34] She did not remember any conversation between her and the accused. They did not discuss having sex or consent to engage in any activity.

[35] She adamantly denied ever providing her consent to engage in any type of sexual activity with the accused. It was also her evidence that she could not have consented due to her level of intoxication.

[36] A.B. admitted that she never uttered the specific word, “no”. She did not call out for help. She did not push him off. She admits that he was a “skinny guy”, and she was bigger than he was.

[37] She was open to the possibility that she kissed him during the interaction, although she did not specifically have a recollection. She denied that she was actively participating in the sexual activity. She described herself as “just laying there”.

[38] The sexual activity ended without the accused ejaculating. It was A.B.’s testimony that at one point, he got up and left the room. She does not believe he even grabbed his clothes. He just ran away and left the house. In cross-examination, she indicated that it was possible that T.B. and/or J.M. came in afterwards to get his clothes.

[39] This made her feel embarrassed, bothered and humiliated. She grabbed her clothes, went to the bathroom, got dressed and went downstairs.

[40] She remembered that J.M. was downstairs. She could not remember if H.M. and T.B. were there as well. If not, they came down shortly thereafter.

[41] A.B. was cross-examined about a competition between H.M. and her – the object of which was to see who could moan the loudest, or who could make the loudest sex noises. She denied that this ever happened. She did not remember hearing H.M. and T.B. having sex in the adjacent room.

[42] As it relates to her physical appearance, A.B. indicated that in 2019 she likely weighed slightly over 200 pounds, her chest size would have been probably over a double D. On the night in question, she would have been wearing makeup, including eye shadow and mascara. She also wore glasses.

[43] A.B. described her parents as being strict. They did not really approve of her hanging out with H.M. On the night in question, they were not aware that she was at a party. She had told them she was sleeping at a friend’s house. Her parents also monitored her cell phone.

[44] A few weeks after the incident, her parents found out what had happened at the party. She denied it, saying that she was embarrassed.

[45] When they found out what had happened, they were not happy. Her father was yelling. She was not given much choice but to report the incident to the police and to provide a statement.

[46] There was mention of a video floating around after the incident. Both the accused and A.B. indicated that they did not listen to it. The video did not form part of the evidence at trial. It was suggested that the video consisted of voices and moaning sounds of individuals having sex.

[47] Although not having listened to the video herself, A.B. indicated that she knows many individuals that did. Having such a video circulate in her community made her feel humiliated.

Evidence of the Accused

[48] The accused is now 27 years of age.

[49] The accused indicated that he is 5’11” and likely weighed about 120 pounds in 2019. He stated that he was using drugs at that point including amphetamines. He candidly admitted to having started using drugs at 14 years of age. His drug of choice in 2019 was crack cocaine.

[50] On the night in question, he arrived at the party around 7:00 p.m. There were already individuals there. He met up with J.M. It was his evidence that J.M. was 17 years of age. He also knew T.B. He knew him through school. They were the same age.

[51] He also recalled that J.B. was there. He believed he was around 17 or 18 years of age. He remembered that J.F. was there as well. He stated that the youngest individual he knew at the party was D.A., who was 16 years of age at the time.

[52] It was his evidence that individuals were having a good time, laughing, conversing, playing beer pong and drinking.

[53] He did not bring his own alcohol, but J.M. had said he would give him a few beers. It was his evidence that he was intoxicated by cocaine that night. He believed that he did about half a gram. It was his evidence that T.B.’s room that night was being used as the cocaine room, explaining that individuals went upstairs to the bedroom to partake in the drug. He remembered A.B. coming out of the room with her eyes beaming and grinding her teeth.

[54] At the end of the night, while walking home, he received a message from A.B. It would have been approximately 2:00 or 3:00 a.m. She asked him to come back to the house. When he returned, H.M, T.B., J.M. and A.B. were the only ones left at the house.

[55] The accused testified that they sat around in the living room for about 10 to 15 minutes. They were chatting. He could not recall what they were talking about. J.M. went downstairs. He went upstairs to the bedroom with A.B. They both approached each other and started kissing. A short while later, they had sexual intercourse.

[56] It was his evidence that they could hear T.B, and H.M. having sex in the next room. It sounded like they were having a good time. There was a competition as to who could moan the loudest, or which of them could make the girls moan with pleasure more.

[57] He stated that A.B. was into it; she was fully participating. The girls were laughing, moaning and banging on the wall.

[58] At one point, A.B. told him something along the lines of how she really enjoyed it and would like to continue doing this kind of thing. He took this to mean that she wanted to date. He stated that he told her he was sorry, and that this instance would be it. At that time, he stopped having sex with A.B. She got up and went to the bathroom. While she was in the bathroom, he went downstairs. T.B. threw him his clothes from upstairs and he left the house.

[59] He had no further interactions with A.B. after that evening.

[60] The accused described A.B.’s physical appearance as being a young woman, pushing 200 lbs. It was his evidence that she looked his age.

[61] He testified that he found out how old she was when he was informed by the police upon his arrest.

[62] He based his assessment of her age on her physical appearance, the interactions that they had and her level of maturity when speaking. Although he did admit that he could not remember what they had discussed, he stated that the way she was dressed, with tight clothes, he would not have expected a 15-year-old to be wearing what she did. She was also wearing makeup.

[63] He was questioned as to why he did not ask her age. The accused stated that he thought she was their age. He did not think that she would have been there if she was not of age. He would have thought that T.B. would have had the common sense to say that she was too young, and was not allowed to come in.

[64] In cross-examination when pressed on the issue of A.B.’s age, the accused stated that when he was 15, there was no drinking. They were kids and would be in bed at that time.

[65] On the issue of consent, the accused stated that when they were in the bedroom, and they both approached one another and started kissing, he “figured the consent was present”. She also said that she really liked it, and that she would like to continue. That is when he told her no, that it was just for tonight, and he was sorry.

[66] In cross-examination, the accused also indicated, in commenting on consent, that A.B. had messaged him to come back. Based on that fact, he figured there was consent. He stated that you would not message someone at that time of night if there was no physical attraction.

[67] He was specifically asked, on more then one occasion, whether based on that message, he believed A.B. was consenting to having sex. He consistently answered in the affirmative.

[68] He confirmed that they did not have a conversation about having sex or consent. He had a feeling that this is what would happen when he went back to the house, and believed it was consensual.

THE LAW AND ANALYSIS

[69] The legal principles that are applicable in this case are not in dispute. The parties agree on the relevant law as set out in R. v. Morrison, 2019 SCC 15 and R. v. Ewanchuk, [1999] 1 S.C.R. 330.

Honest But Mistaken Belief in Age of Consent – The Law

[70] Counsel referred to the decision of the Supreme Court of Canada in R. v. Morrison 2019 SCC 15 as the seminal case on the defence of honest but mistaken belief of age. I have reproduced below only some of the relevant passages starting at paragraph 116:

116 With all this in mind, the defence that the accused believed the other person was of legal age would operate in practice as follows:

(1) First, in order to raise the defence, the accused bears the evidentiary burden of pointing to some evidence from which it may be found that he or she took reasonable steps and honestly believed the other person was of legal age: see Levigne, at para. 32(3). In other words, the accused must show that the defence has an "air of reality".

(2) Second, if the accused discharges his or her evidentiary burden, the defence is left with the trier of fact, and the Crown then bears the persuasive burden of disproving the defence beyond a reasonable doubt: see Levigne, at para. 32(3). However, this does not mean that in order to obtain a conviction, the Crown must prove beyond a reasonable doubt that the accused failed to take reasonable steps.

(3) Third, regardless of whether the defence can be considered, the trier of fact must ultimately determine whether the Crown has proven beyond a reasonable doubt that the accused believed the other person was underage. Thus, at the end of the day, whether the accused is convicted or acquitted does not hinge on whether the accused took reasonable steps; it hinges on whether the Crown can prove culpable belief beyond a reasonable doubt.

117 I will address each of these stages in turn.

(b) Step 1: Does the Defence Have an Air of Reality?

118 The first step is for the trial judge to determine whether there is an "air of reality" to the defence. A defence has an air of reality if a properly instructed jury acting reasonably could acquit the accused on the basis of the defence: see R. v. Cinous, 2002 SCC 29, [2002] 2 S.C.R. 3, at para. 2. If the defence has no air of reality - that is, there is no evidentiary basis on which the defence can rest - then it must not be left with the jury: see Pappajohn v. The Queen, [1980] 2 S.C.R. 120, at pp. 126-27; R. v. Osolin, [1993] 4 S.C.R. 595, at p. 648, per McLachlin J. (dissenting, but not on this point); R. v. Park, [1995] 2 S.C.R. 836, at paras. 11-13.

119 In my view, the defence that the accused believed the other person was of legal age has an air of reality only if the trier of fact could find, on the evidence, that the accused took steps capable [page56] of amounting to "reasonable steps" in the circumstances to ascertain the other person's age and that the accused honestly believed the other person was of legal age. In other words, the accused will only meet the air of reality threshold if he or she can point to evidence capable of supporting findings that:

(1) the accused took steps to ascertain the other person's age;

(2) those steps were reasonable; and

(3) the accused honestly believed the other person was of legal age.

120 In particular, this means that the defence of honest belief in legal age will not be in play if there is no evidence capable of satisfying the "reasonableness" requirement (2). If the accused cannot discharge this evidentiary burden, then the defence will not be left with the trier of fact. In those circumstances, in the context of a jury trial, the trial judge should provide a limiting instruction that because the accused failed to take reasonable steps to ascertain the other person's age, the jury is precluded, as a matter of law, from considering the defence of honest belief in legal age. In that event, as described more fully under "Step 3" below, the sole question the jury must consider is whether - on the whole of the evidence, including the evidence relating to the accused's failure to take reasonable steps - the Crown has established, beyond a reasonable doubt, that the accused believed the other person was underage.

121 Where the accused has failed to point to any steps capable of amounting to reasonable steps in the circumstances, this may be a good indication that the accused believed the other person was underage or was wilfully blind as to whether the other person was underage. However, even if the defence lacks an air of reality, this is not necessarily determinative of the accused's belief. The Crown continues to bear the burden of proving beyond a reasonable doubt that the accused believed the other person was underage. [page57] Where the defence is unavailable, even though the trier of fact will be precluded from considering the defence, the evidence as a whole may leave gaps or weaknesses in the Crown's case that could give rise to a reasonable doubt as to whether the Crown has met its burden of showing that the accused believed the other person was underage.

122 Conversely, if the trial judge determines that the defence has an air of reality, then it will be left with the trier of fact. Meeting this evidentiary burden does not require the accused to take the stand; the accused could instead point to evidence adduced by the Crown, such as the content of the relevant telecommunications or police interviews, demonstrating that there is an air of reality to the defence.

(d) Step 3: Has the Crown Proven That the Accused Believed the Other Person Was Underage?

129 As explained above, where the Crown establishes that the accused failed to take reasonable steps, s. 172.1(4) bars accused persons from raising, as a defence, that they believed the other person was of legal age. But a conviction cannot rest solely on this basis; without the presumption under subs. (3), the reasonable steps requirement under subs. (4) does not provide an independent pathway to conviction. Therefore, the inquiry does not end if and when the Crown establishes that the accused did not take reasonable steps. Instead, the trier of fact would then be required to consider the whole of the evidence, including the evidence relating to the accused's failure to take reasonable steps, not to reintroduce the defence of honest belief in legal age, but in determining whether the Crown has discharged its legal burden of establishing that the accused believed the other person was underage. Only if that element is proven can a conviction be entered.

130 With this in mind, where an accused has failed to take reasonable steps, the trial judge must [page60] instruct the jury that the accused's evidence that he or she believed the other person was of legal age cannot be considered in determining whether the Crown has proven its case beyond a reasonable doubt. This instruction is essential - it guards against the risk that an acquittal may result based on an assertion that is devoid of any objective basis in the evidence. Thus, put simply, where reasonable steps have not been taken, an accused's evidence that he or she believed the other person was of legal age is without any value, and the jury cannot rely on that evidence when assessing the strength of the Crown's case.

131 There are circumstances in which, despite the absence of reasonable steps, the Crown may nonetheless fail to prove beyond a reasonable doubt that the accused believed the other person was underage. For example, the trier of fact may determine that the accused was merely aware of a risk that the other person was underage (i.e., was reckless), or was merely negligent. Neither of these findings could ground a conviction.

132 Equally, there are circumstances in which, despite the reasonable steps requirement having been satisfied, the Crown may still succeed in proving beyond a reasonable doubt that the accused believed the other person was underage. For example, as illustrated above, there may be evidence that the accused made statements to a third party that indicate he or she had the belief necessary to sustain a conviction.

133 In sum, it is the third step in the analysis - whether the Crown has proven beyond a reasonable doubt that the accused believed the other person was underage - that is the question of ultimate consequence.

[71] The Court of Appeal for Ontario in R. v. Hason, 2024 ONCA 369 has recently provided an excellent and comprehensive review of the law with respect to the defence of mistaken belief in age. I found this case to be extremely instructive. I have reproduced below the relevant paragraphs 33-51 in their entirety.

(a) The Governing Principles for the Mistake of Age Defence and the Blameworthy Mental State Requirement

33 Parliament prohibits adults from engaging in sexual activity with young people under the age of 16 to protect those young people from exploitation by adults and the wrongfulness and harmfulness of adult/youth sexual activity: Criminal Code, s. 150.1(1); R. v. A.B., 2015 ONCA 803, 342 O.A.C. 36, at paras. 37-39, 45. 3 Adults who violate this prohibition may be prosecuted for committing sexual assault and/or sexual interference: Criminal Code, ss. 151, 271. Such adults sometimes claim that they believed that the underage young person was 16 or older. Absent legislative intervention, judge-made law would permit this mistake of age defence if the adult honestly held that belief, even if it was unreasonable: Pappajohn v. The Queen, [1980] 2 S.C.R. 120, at p. 156, per Dickson J. (dissenting, but not on this point); R. v. George, 2017 SCC 38, [2017] 1 S.C.R. 1021, at paras. 7-8.

34 The mistake of age defence presented Parliament with a dilemma. Permitting it to operate unrestricted would allow adults who failed to make reasonable inquiries and held unreasonable beliefs about a young person's age to evade conviction, but eliminating it would likely violate the Charter: R. v. Carbone, 2020 ONCA 394, 150 O.R. (3d) 758, at paras. 109-111; Isabel Grant, "The Slow Death of the Reasonable Steps Requirement for the Mistake of Age Defence" (2021) 44 Man. L.J. 1, at pp. 7-8.

35 Parliament resolved this dilemma and enhanced protections for young people by enacting section 150.1(4) of the Criminal Code: George, at paras. 7-8; Carbone, at paras. 111-113. That provision modifies the mistake of age defence by requiring the accused to take all reasonable steps to ascertain the complainant's age. The modified defence has two elements: (1) the accused honestly believed that the complainant was at least 16 years old at the time of the alleged offence, and (2) the accused took all reasonable steps to ascertain the complainant's age. If the accused shows an air of reality to both elements, then the Crown must negate the defence by proving beyond a reasonable doubt that either element is lacking: R. v. W.G., 2021 ONCA 578, 405 C.C.C. (3d) 162, at paras. 54-57, leave to appeal refused, [2021] S.C.C.A. No. 381.

36 Disproving the first element, honest belief, requires the Crown to prove that the accused did not subjectively accept as true that the complainant was of legal age. Because to believe something is to subjectively accept it as true, belief requires a higher degree of certainty than suspicion or supposition: Ontario (Environment and Climate Change) v. Geil, 2018 ONCA 1030, 371 C.C.C. (3d) 149, at para. 55. A person who suspects, guesses, or hopes that the complainant is 16 or older does not accept that proposition as true but instead recognizes that there is a risk, even a low one, that the complainant may be underage. Proceeding with sexual activity despite being aware of that risk is the blameworthy mental state of recklessness, not belief: Carbone, at para. 125.

37 Disproving the honest belief element knocks out the entire mistake of age defence. It is irrelevant that the accused took all reasonable steps to ascertain age or that a reasonable person might have believed the complainant was 16 or older if the accused did not also subjectively believe this: R. v. Moise, 2016 SKCA 133, 343 C.C.C. (3d) 16, at paras. 30-32.

38 The second element, all reasonable steps, makes adults responsible for preventing adult/youth sexual activity. Assessing this element is challenging because it is contextual and fact-specific. The caselaw meets this challenge by establishing principles to guide the assessment: George, at paras. 2, 9. I distill those principles in these reasons.

39 The second element implements Parliament's protective purpose by setting a high bar: Adults must take all reasonable steps to ascertain the complainant's age before engaging in sexual activity. Parliament's choice of the word "all" means what it says: Adults must take all reasonable steps, not merely some. Parliament's protective purpose drives judges' assessment of whether adults have met that high bar and favours requiring adults to take more, not fewer steps: George, at para. 2; W.G., at para. 62; R. v. Dragos, 2012 ONCA 538, 111 O.R. (3d) 481 ("Dragos (ONCA)"), at para. 38. This high bar ensures that the "all reasonable steps" element is robust and protects young people as much as reasonably possible: R. v. Hayes, [1991] A.J. No. 1232 (Q.B.), at para. 9.

40 The second element has two interrelated requirements. First, the accused must take all the steps that a reasonable person would take in the circumstances known to the accused to ascertain the complainant's age. Second, those steps must provide information that would cause a reasonable person to accept as true that the complainant was of legal age: W.G., at paras. 60-61; R. v. Chapman, 2016 ONCA 310, 130 O.R. (3d) 515, at paras. 40, 54, leave to appeal refused, [2016] S.C.C.A. No. 35.

41 These requirements make clear that a reasonable person would demand compelling information that establishes the complainant's age with a high degree of certainty before accepting as true that the complainant was of legal age: R. v. Osborne (1992), 102 Nfld. & P.E.I.R. 194 (N.L.C.A.), at para. 62. Carbone 's teaching that awareness of even a low risk that the complainant is underage is recklessness and precludes belief that the complainant is of legal age confirms that this high degree of certainty is required. So does the grave harm that proceeding with sexual activity with an underage young person can cause, as well as the absence of social value to offset risking that harm that Carbone highlighted: at para. 125. Reasonable people would want to be sure that they are not running the risk of causing the "'life-altering'" and "devastating" consequences that adult/youth sexual activity inflicts on underage young people, including the heightened risks of physical injury, suicide, substance abuse, and unwanted pregnancy that sexual violence by adult men against adolescent girls causes: Friesen, at paras. 74, 136, 142, quoting R. v. Woodward, 2011 ONCA 610, 107 O.R. (3d) 81, at para. 76. The definition of belief as accepting the truth of something and requiring more certainty than mere supposition reinforces the need for this high degree of certainty: Geil, at para. 55.

42 Steps to ascertain age are only meaningful if they obtain compelling information that establishes the complainant's age with a high degree of certainty. If they do not, then the accused must take additional steps: Morrison, at paras. 106-108. Adults cannot take a casual, box-checking approach to ascertaining the complainant's age that is focused on establishing plausible deniability rather than reasonable belief: Osborne, at para. 62; Dragos (ONCA), at para. 46.

43 Courts have identified several common scenarios where the accused must take additional steps to ascertain age. These scenarios include, without limitation:

• If complainants tell the accused that they are underage;
• If the complainant either declines to respond to the accused's inquiries concerning age or provides an ambiguous response;
• If the information the accused obtains merely suggests that the complainant could be 16 or older but does not establish this with the high degree of certainty that belief requires and,
• If the accused initially obtains compelling information that the complainant is 16 or older but subsequently learns other information suggesting that the complainant is underage.

44 Stereotypical and/or illogical reasoning is not compelling and would not cause a reasonable person to believe that the complainant was of legal age. For example, a reasonable person would not infer that complainants are 16 or older because they offer to exchange sex for money since young people below the legal age may also do so: Gashikanyi, at para. 16; Moise, at para. 33. Likewise, a reasonable person would appreciate that underage young people can look like they are 16 or older and would be wary of relying on appearance to jump to conclusions about age: Hayes, at para. 21. For instance, a reasonable person would not conclude that a young woman is 16 or older because she is 5 foot 5 inches tall, weighs 160 pounds, and has some breast development: Gashikanyi, at para. 17. While visual observation may be sufficient in some circumstances (Chapman, at paras. 41-42), these circumstances will be rare because it is not a reliable indicator: Hayes, at para. 21; R. v. R.A.K. (1996), 175 N.B.R. (2d) 225 (C.A.), at para. 8.

45 Because stereotypes and illogical reasoning are impermissible, a reasonable person would also be very wary of relying on the mere fact(s) that complainants are drinking, smoking, purchasing or using drugs, and/or are sexually active to infer that they are of legal age: R. v. Angel, 2019 BCCA 449, 382 C.C.C. (3d) 149, at para. 59, leave to appeal refused, [2020] S.C.C.A. No. 35. Rather, the reasonable person would recognize that many underage young people engage in these activities: Chapman, at paras. 52-53; R. v. Hadvick, 2024 YKCA 2, at para. 88. Often, such young people are especially vulnerable to sexual violence, for example because they are in state care: Friesen, at paras. 70-73; R. v. Alcorn, 2021 MBCA 101, 407 C.C.C. (3d) 395, at paras. 3, 62, leave to appeal refused, [2022] S.C.C.A. No. 39; R. v. Gudmandson, 2018 MBPC 31, at paras. 39, 58; R. v. Moazami, 2015 BCSC 2055, at paras. 96-98. Reliance on these factors to conclude that a young person is 16 or older thus risks undermining Parliament's protective purpose by providing less protection to those especially vulnerable young people who need it most: Hadvick, at paras. 79-80, 88; see also Grant & Benedet, at pp. 29-30.

46 Because drinking, smoking, drug use, and sexual activity are unreliable indicators and reliance on them risks undermining Parliament's protective purpose, these activities are generally not sufficient to ground a reasonable belief: R. v. Mastel, 2011 SKCA 16, 268 C.C.C. (3d) 224, at para. 18. Instead, the accused must also usually obtain more reliable indicators of age, such as attendance at adult-only social events, graduation from high school, employment, or the ability to drive: Chapman, at paras. 52-53; R. v. Tannas, 2015 SKCA 61, 21 C.R. (7th) 166, at paras. 33-34; R. v. C.J.C., 2018 NLCA 68, 370 C.C.C. (3d) 522, at paras. 40, 51, 55.

47 Finally, accused persons may not proceed with sexual activity unless and until they have taken steps that would cause a reasonable person to believe that the complainant is 16 or older. Sometimes taking steps that are immediately available at a specific point in time may not yield compelling information right away, such as if the complainant declines a request to provide identification or cannot provide it promptly. In these circumstances, accused persons cannot roll the dice and proceed with sexual activity just because they have checked a few boxes since a reasonable person would not run the risk of inflicting life-altering and devastating consequences on the complainant. Rather, accused persons must desist from sexual activity until they can take additional steps to ascertain age because the information they have obtained would not cause a reasonable person to believe that the complainant is 16 or older: Morrison, at paras. 106-108; R. v. MacDonald, 2023 NSPC 21, at para. 70.

48 Negating the mistake of age defence is necessary but not sufficient to convict the accused. The Crown must also prove that the accused had one of three blameworthy mental states: (1) belief, (2) wilful blindness, or (3) recklessness: Carbone, at paras. 120-124. First, belief means that the accused accepted as true that the complainant was underage. Second, wilful blindness means that the accused suspected that the complainant might be underage but deliberately suppressed that suspicion and chose not to make further inquiries: Morrison, at para. 98. Third, recklessness means that the accused appreciated a risk, even a low one, that the complainant might be underage and decided to take it. This includes situations where accused persons chose to never turn their minds to the complainant's age and, thus, chose to run the risk that the complainant might be underage: Carbone, at paras. 125-127.

49 While negating the defence is not sufficient to convict the accused, it does make it easier for the Crown to prove that the accused had a blameworthy mental state by eliminating the accused's claim that he believed that the complainant was of legal age. This leaves only four possible mental states that the accused could have: (1) belief that the complainant was underage, (2) wilful blindness as to the complainant's age, (3) subjective appreciation of the risk that the complainant was underage, and (4) complete inattention to the complainant's age. The first three mental states lead inevitably to a conviction because they respectively constitute the blameworthy mental states of belief, wilful blindness, and recklessness: W.G., at paras. 67-70, 81.

50 The fourth mental state, complete inattention to the complainant's age, is usually reckless and thus results in conviction. This is because failing to turn one's mind to the age of the complainant generally reflects a choice to take a risk that the complainant might be underage. Nonetheless, this court has recognized that, in some rare circumstances, accused persons' failure to turn their mind to the complainant's age may not reflect a choice to take the risk that the complainant is underage. In those circumstances, the accused should be acquitted because the Crown has not proved recklessness: W.G., at paras. 69-70; Carbone, at paras. 126-127, 131.

51 I recognize that ordinary people would likely find it counterintuitive and surprising that accused persons could, even in rare circumstances, be acquitted of sexual offences against children despite having failed to turn their minds to the complainant's age and take all reasonable steps to ascertain that age. They would not be wrong to be surprised. Before the Supreme Court's 2019 Morrison decision, the law was clear that proof that the accused had not taken all reasonable steps was sufficient for a conviction: Carbone, at paras. 74-78. But Morrison seemed to revise the Supreme Court's prior decision in George concerning s. 150.1(4) 's all reasonable steps requirement by commenting that negating that requirement was not sufficient to convict the accused: Morrison, at paras. 86-91. These comments opened up the concerning possibility that, contrary to Parliament's intent in enacting s. 150.1(4), accused persons who unreasonably failed to turn their mind to the complainant's age and take all reasonable steps to ascertain that age could be acquitted: Grant, at pp. 7-8, 28-29. While at least one other court has treated those comments as only applicable to the child luring offence at issue in Morrison due to these concerns (Angel, at paras. 50-52), this court decided in Carbone that those comments provided binding guidance concerning other offences involving sexual activity with young people: Carbone, at paras. 74, 116-120. This court remains bound by Carbone 's interpretation of Morrison unless and until the Supreme Court revises or clarifies its comments in Morrison or Parliament changes the law.

Honest But Mistaken Belief in Age of Consent – Analysis

Step 1 – Does the Defence Have an Air of Reality?

[72] In order for the accused to successfully raise this defence, he has to establish that he took all reasonable steps and honestly believed that A.B. was of legal age.

[73] The accused contended that it was reasonable for him to believe A.B. was of legal age to consent to having sex with him based on the following:

1. he was at a party hosted by his friend T.B., who was the same age as he was at that point. He would not have expected T.B. to allow a 15-year-old to be there.

2. A.B. looked like she was older than 15 years of age. This was based on his observations of her physical appearance, such as: a) full figured and over 200 lbs with large breasts, and b) wore makeup, glasses and tight-fitting clothes,

3. A.B. handled herself in a mature fashion, she spoke well, seemed intelligent, and

4. A.B. was drinking and doing drugs.

[74] I accept the accused’s testimony that he believed that A.B. was of legal age. It was his evidence that he only found out A.B.’s age when he was advised by the police that she was 15 years of age after he was arrested for the index offences.

[75] However, the fact the accused “believed” she was of age does not meet the legal test of what must be established for an “honest belief” to arise. His use of the word, and even his subsequent shock when he found out A.B.’s actual age, is essentially the product of suspicion or supposition that she was of legal age. I will readdress this issue in dealing with stereotypical reasoning employed by the accused in the steps he stated he took to ascertain A.B.’s age.

[76] I will note at this time, that despite any argument on the honest belief of the accused, the defence is nonetheless unavailable to the accused, as I have found, for reasons I will elaborate upon later, that he has failed to take all reasonable steps to determine A.B.’s age.

[77] The accused never even bothered to ask A.B. her age. As a result, this is not a scenario where A.B. lied about her age. There was no evidence that the accused was misled by A.B. or by anyone else about her age.

[78] In my view, a simple inquiry with A.B. as to her age would have gone a long way and would have been a reasonable step. This would have required little effort on his part.

[79] The accused’s contact with A.B. was brief and limited. He knew practically nothing about her. He could have and should have questioned her, and obtained details, including her age, as part of the reasonable steps to be taken prior to engaging in sexual activity with her.

[80] He met her at a house party where everyone was drinking and doing drugs. Clear from the evidence was the fact that T.B. and the accused were the oldest individuals at this party. Everyone else was between the age of 16 to 18, based on the accused’s own evidence. Given his age at the time, either 21 years of age, or recently having turned 22 years of age, there is an age gap of 3 to 4 years between him and the other oldest individual, who he believed may have been 18 years of age.

[81] This is not a gathering at a licensed establishment, such as a bar, where you would expect the individuals present to be of legal drinking age. In fact, everyone that the accused remembers seeing at the party, except for T.B., were under the legal drinking age.

[82] It is unreasonable for the accused to believe that A.B. was of legal age because she was at the party, drinking and doing drugs. These are not reliable indicators of being above 16.

[83] In this regard, the accused also commented in cross-examination that he would not expect a 15-year-old girl to be at a party. He stated that when he was 15 years old, he would have been in bed by the hour the party was humming and not out drinking. This statement is contradicted by his own testimony wherein he stated having struggled with drug addiction. His evidence was that he started doing drugs at 14 years of age. He is therefore familiar with the notion of young individuals consuming illicit substances and/or alcohol under the legal age.

[84] Further, it is not reasonable for the accused to rely on A.B.’s appearance and demeanor to ascertain that she is of legal consenting age. As noted in Hason, physical stature and breast development are not reliable indicators of being 16 or over. Appearance can be deceiving, particularly with the application of makeup.

[85] Pursuant to section 150.1(4) of the Criminal Code, the accused was required to take all reasonable steps. He did not do so. He did not ask any questions about her age and took no further steps. In fact, it seems as though he did not turn his mind to the issue of age. He should have. It was certainly reasonable in the circumstances, especially when it was evident that many individuals at the party were younger than he was. He was aware that D.A. was 16 years of age. It was certainly not much of a stretch to believe 15-year-olds were at the party too.

[86] Even if he genuinely believed she was of legal age, he definitely did not take all reasonable steps in the circumstances known to him to ascertain A.B.’s age.

[87] The “reasonable steps” the accused advances that he took in order to ascertain A.B.’s age all fall within the noted “impermissible stereotypes and illogical reasoning” about which Hason forewarned us. They are all facts upon which a reasonable person would be wary to rely in taking all reasonable steps to determine someone’s age.

[88] It is specifically acknowledged in Hason at paragraph 39 that:

“Parliament’s choice of the word “all” means what it says: Adults must take all reasonable steps, not merely some.”

[89] In addressing the issue of honest belief, the Court comments on the fact that stereotypical and/or illogical reasoning is not capable of establishing that a reasonable person would believe that the individual is of legal age.

[90] The accused must demonstrate an air of reality to both elements before the Crown is called upon to negate the defence by proving beyond a reasonable doubt that either element is lacking. (see Hason at paragraph 35)

[91] Having found that the accused has not met the required threshold, the defence of mistaken belief in age is not available for my consideration.

Step 2 – Has the Crown Disproved the Defence?

[92] Given my findings on step 1, it not necessary to address Morrison ’s step 2.

Step 3 – Has the Crown Proven that the Accused Believed the Other Person Was Under-age?

[93] At this stage, the sole question to be considered is whether, on the whole of the evidence, including the evidence relating to the accused’s failure to take all reasonable steps, the Crown has established, beyond a reasonable doubt, that the accused believed the other person was underage. It is only if this element is proven that a conviction can ensue.

[94] Since the “honest but mistaken belief in age” defence is not in play, the accused’s claim that he believed that the complainant was of legal age is eliminated. As stated in Hason at paragraph 49, this leaves four possible mental states that the accused could have: (1) belief that the complainant was underage, (2) wilful blindness as to the complainant’s age, (3) subjective appreciation of the risk that the complainant was underage, and (4) complete inattention to the complainant’s age.

[95] It is indicated that the first three mental states lead inevitably to a conviction. The fourth mental state is usually recklessness and results in conviction. However, it has been recognized that in some rare circumstances, it may not reflect a choice to take the risk that the complainant is underage.

[96] In this case, I find that other than the stereotypical observations noted above made by the accused, he took no steps to ascertain the complainant’s age. The case law refers to “modest and initial steps” when an accused has asked the complainant about her age and observed her appearance and conduct. The accused did not even achieve the minimum, the easiest and most common step, asking someone how old she was before engaging with her in sexual activities.

[97] This is a far cry from requiring that he ask for identification. The bare minimum for him to satisfy an honest belief that A.B. was of legal age was not even achieved. How can it be said, under those circumstances, that his mental state was not reckless?

[98] The Court of Appeal for Ontario in R. v. Carbone, 2020 ONCA 394 addressed the issue of recklessness in the context of these types of offence. There is no question that the onus falls upon the Crown to prove beyond a reasonable doubt that the accused had the requisite state of mind as it relates to the complainant’s underage status. The Court of Appeal clearly stated that it includes recklessness as to the age of the complainant. (See Carbone, paras 126-128)

[99] The Crown advanced that all the accused did was make bold assumptions based on physical traits and demeanor. There was no evidence that he specifically turned his mind to A.B.’s age. Indeed, I find that he did not turn his mind to this issue.

[100] It is expected and required that an adult will ensure that the other individual is of a legal consenting age prior to engaging in sexual activity. As stated in Hason, these requirements are in place “to protect young people under the age of 16 from exploitation by adults and the wrongfulness and harmfulness of adult/youth sexual activity”.

[101] In my view, the evidence establishes a disregard and a recklessness on the part of the accused as it related to A.B.’s age.

[102] I find therefore that the Crown has proven beyond a reasonable doubt that the accused believed or was reckless as to A.B.’s underage status. As a result, the Crown has met its heavy onus in satisfying the court that the accused had the requisite mens rea.

[103] Given my finding regarding the accused’s failure to take all reasonable steps to ascertain A.B.’s age, there can be no legal consent offered by her to the sexual acts engaged in with the accused.

[104] It is admitted that the act of sexual intercourse occurred. Thus, the Crown has proven all essential elements of the offences beyond a reasonable doubt.

Credibility and Reliability of the Accused and A.B.

[105] I would not normally address credibility and reliability of the accused and the complainant at the end of my reasons, however, in this case, I find that it is appropriate.

[106] I have found both the accused and A.B. to have offered their evidence, for the most part, in a straightforward and honest fashion. They admitted and testified to bawdy, outlandish behaviour on each of their parts. They were candid about some of their shortcomings. They did not try to embellish.

[107] There were also frailties in both of their testimony, which were likely occasioned by the fact that they were both under the influence of alcohol and/or drugs on the evening in question.

[108] The facts and the evidence on which I have relied to make the above findings, were mainly based on undisputed facts. For example, this was not a scenario wherein the accused testified that the complainant told him she was above the legal age and the complainant provided evidence to the contrary. It was undisputed that there were no discussions regarding age.

[109] An analysis under W. (D). would, in my view, be superfluous. Of course, if I had found that the accused reasonably believed, or had raised a reasonable doubt in my mind as to A.B. being of the age of legal consent, I would have been obliged to conduct the inquiries under W.(D). That was not this case.

[110] The discrepancies in the evidence offered by the accused and A.B. was in relation to what happened behind closed doors. The issue of consent regarding engagement in sexual activity would have been a central issue; it would have required findings and would have necessitated a W.(D). analysis.

[111] However, consent would only have come into play had the accused successfully raised a defence of mistaken belief in legal age. Given my findings above, that is now a moot issue.

CONCLUSION

[112] In summary, I find that the Crown has proven beyond a reasonable doubt that the accused had the requisite mens rea. The actus reus having been conceded, I find the accused guilty on both counts.

[113] In accordance with the principles in Kienapple, I will enter a stay of conviction on the offence of sexual assault pursuant to section 271 of the Criminal Code.

Released: October 4, 2024 Signed: Justice C.M. Brochu