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judge or justice may make an order directing that any information that could identify the victim or a witness shall not be published in any document or broadcast or transmitted in any way, in proceedings in respect of
(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 complainant of the right to make an application for the order; and
(b) on application made by the complainant, the prosecutor or any such witness, make the order.
486.6 OFFENCE — (1) Every person who fails to comply with an order made under subsection 486.4(1), (2) or (3) or 486.5(1) or (2) is guilty of an offence punishable on summary conviction.
Ontario Court of Justice
Date: 2025-04-07
Court File No.: Halton Info # 998 23 12101882
Between:
His Majesty the King
— and —
Peter Eerhard
Before Justice Jennifer Campitelli
Heard on February 19 and 20, 2025
Reasons for Judgment released on April 7, 2025
Counsel for the Crown: E. O’Marra
Counsel for the accused Peter Eerhard: R. Timol
Reasons for Judgment
Campitelli J.:
[1] Peter Eerhard faces three counts, as amended on the information before me. That he:
On or about the 10th day of June in the year 2023 at the City of Burlington in the said Region, did commit a sexual assault on J.E. contrary to s. 271 of the Criminal Code of Canada; and
On or about the 10th day of June in the year 2023 at the City of Burlington in the said Region, did, for a sexual purpose, touch J.E., a person under the age of sixteen years directly with a part of his body, to wit, his mouth, contrary to s. 151 of the Criminal Code of Canada; and
Finally, on or about the 10th day of June in the year 2023 at the City of Burlington in the said Region, did, while bound by a probation order made by the Ontario Court of Justice in Burlington on the 28th day of January in the year 2022, fail without lawful excuse to comply with such order, to wit: keep the peace and be of good behaviour, contrary to s. 733.1(1) of the Criminal Code of Canada.
Factual Background
[2] Mr. Eerhard and the complainant met through an online medium called “Sniffies”, designed to connect gay men for the purpose of engaging in sexual acts. At the time of the interaction between Mr. Eerhard and the complainant, J.E. was fourteen years old and Mr. Eerhard was 55 years old. J.E. was able to gain access to “Sniffies”, despite being under the age of eighteen at the time of the alleged offence, by entering a false birthdate when prompted by the website.
[3] Ultimately, J.E.’s father located the parties, while they were engaging in a sexual act, by tracking the location on J.E.’s cellphone. J.E.’s father learned of Mr. Eerhard’s identity, and immediately notified the police.
[4] On this record, the parties have agreed that there is an air of reality to the defence that Mr. Eerhard had an honest but mistaken belief that J.E. was sixteen years of age or older. In this case, eighteen years old. Therefore, the onus is on the crown to establish, beyond a reasonable doubt, that the defence is not available.
The Evidence of J.E.
[5] Prior to reviewing J.E.’s evidence, I want to be very clear that I have considered the evidence of this witness reminding myself that he is a young person, who was just fourteen years old at the time of the alleged offence. J.E. was 16 years old when he provided his evidence to the court. I am mindful that the evidence of children is not considered to be inherently unreliable, nor is it to be treated with any special caution: R. v. W.(R.) [R.W.], para 23. Moreover, I fully appreciate that, in my assessment of J.E.’s evidence, I need to be sensitive to the peculiar perspective of children, understanding that children experience the world differently than adults: R. v. W.(R.) [R.W.], supra, para 24.
[6] J.E. testified that on June 10, 2023 he was approximately 6’0 tall, and had been shaving since the age of twelve. He remembered he was in his room experiencing “some dark thoughts” around his depression. He recalled that he decided to use a website called “Sniffies”, which he described as a “hook-up app”. J.E. acknowledged that “Sniffies” had an “age restriction of 18”, so he entered an erroneous date of birth in order to gain access to the site. It was J.E.’s evidence that he logged on as “anonymous” and the application allowed him to see where other users were located on the map. He testified that a man in the Alton Village area, who had a profile picture depicting only his penis, reached out to him directly. J.E. denied that he was the one who initiated contact with Mr. Eerhard by sending him a message saying, “I’m 18, do you want to suck my seven-inch cock?”.
[7] However, J.E. couldn’t recall much of the conversation between the pair, except that he suggested they meet at Pearson High School. When pressed while under cross examination, J.E. agreed it was possible the pair first agreed to meet at Shoppers Drug Mart, and then plans changed. He recalled that once the meeting had been arranged, he told his Dad that he was “going on a walk” and left his home. J.E. was pressed a number of times but did not remember Mr. Eerhard ever asking for his age, or confirming that he was eighteen prior to the pair meeting.
[8] It was J.E.’s evidence that he had his phone with him on that evening, and that he was wearing Lululemon shorts and a t-shirt. J.E. remembered that he “first laid eyes” on what he thought was Mr. Eerhard’s vehicle in the Pearson High School parking lot. He then “went up to the car”, and he recalled Mr. Eerhard driving him to a more secluded part of the parking lot. J.E. testified that he did not remember what was said in the car, but because the parties were “going to hook up”, they exited the vehicle and Mr. Eerhard then asked J.E. to “drop” his pants. I found this aspect of J.E.’s evidence to be consistent with the suggestion he denied; specifically, that the pair had connected for the purpose of Mr. Eerhard performing oral sex on J.E. J.E. complied and Mr. Eerhard began performing oral sex on him at which point, J.E. received a phone call from his father. J.E. testified that he told his father something like, “I’m like walking near where it was happening”. After Mr. Eerhard finished performing oral sex on J.E., J.E. recalled he asked him, “have you ever had your ass eaten out before”. When J.E. indicated that he had not, it was his evidence that Mr. Eerhard responded, “you’re in for a treat”. While Mr. Eerhard was performing oral anal sex on J.E., J.E.’s father D.E. arrived. J.E. recalled his father saying, “you’re done, you’re done”, and telling him to get in his vehicle.
[9] J.E. recalled the police arriving, travelling back to his home to collect some of his electronics, and then attending McMaster Children’s Hospital. J.E. remembered that he provided a statement to the police at McMaster Children’s Hospital, and acknowledged that he was not honest about what had happened because he was “scared”. It was J.E.’s evidence that he was “scared of how my Dad would react to, like, the truth”, so he didn’t tell the police the truth. However, J.E. testified that his father highlighted how important it was to tell the truth, so it was J.E.’s evidence that he told the police the truth the second time he spoke with them.
[10] Overall, J.E. presented his evidence in a sophisticated and clear manner. He was candid and forthcoming about certain aspects of his evidence. However, I found J.E. was intentionally vague surrounding some of the more contentious aspects of his evidence, which I conclude was internally inconsistent. In particular, with respect to any conversation, which might have taken place between the parties. I also find it inherently implausible, on this record, and given J.E. maintained Mr. Eerhard reached out to him directly, that Mr. Eerhard did not confirm he was eighteen years old. Especially, given the date he recalled entering, 2003, would have resulted in J.E. being either twenty-two or twenty-three years of age in June of 2023. These problematic areas of J.E.’s evidence adversely impacted his credibility, and the reliability of his evidence overall.
The Evidence of D.E.
[11] D.E. is J.E.’s father. He was an impressive witness. He provided evidence that was sincere, objective and logical. He testified that on June 10, 2023, J.E. was “just scraping six foot or just approaching it”. He recalled that J.E. had been a bit “squirrely” throughout the day, and eventually asked him if he could go for a walk. It was D.E.’s evidence that he permitted him to go for a walk; however, ten minutes after J.E. left their home, D.E. still had a “nagging concern”. D.E. remembered that he decided to call J.E. to see where he was, which is consistent with J.E.’s evidence on this point. D.E. testified that he still didn’t “feel quite right”, so after he hung up, he checked the ‘Find My Phone’ application to determine J.E.’s location. Given it was inconsistent with where he told D.E. he was going to be, D.E. decided to find him.
[12] It was D.E.’s evidence that he located J.E. at Pearson High School, while he was in the company of Mr. Eerhard. D.E. recalled that J.E.’s pants and underwear were down, and he said, “stop right now”, “step away from the boy”. D.E. testified that Mr. Eerhard immediately said, “he told me he was eighteen”, at which point D.E. replied, “he’s fourteen”. This aspect of D.E.’s testimony is consistent with J.E. providing the age of eighteen to Mr. Eerhard, which is inconsistent with J.E.’s evidence on this point. D.E. remembered Mr. Eerhard then stated something to the effect of, “oh, no, not again”. When pressed while under cross examination, D.E. agreed he may have prompted Mr. Eerhard with respect to how old he thought J.E. was.
[13] D.E. testified that he directed J.E. to “get his clothes sorted and go wait in the car”. D.E. had previously asked Mr. Eerhard for his identification, which was provided to him, and he remembered calling 911 and providing that information to the operator. The police attended the scene a short time later. D.E. recalled attending McMaster Children’s Hospital with J.E. for a sexual assault kit.
The Evidence of Mr. Eerhard
[14] Mr. Eerhard presented his evidence in a largely unsophisticated manner. He was candid and testified in a straightforward fashion; however, he frequently experienced difficulty articulating himself. Mr. Eerhard’s evidence was corroborated by aspects of J.E. and D.E.’s evidence and I found it to be internally consistent. Overall, I find Mr. Eerhard was a truthful witness who provided reliable evidence.
[15] Mr. Eerhard testified that he is not currently employed; however, provides care for his elderly parents. He further recounted pleading guilty to “luring” and “sexual interference”. It was his evidence that he “didn’t question the other person enough to make his age appropriate”.
[16] Mr. Eerhard testified that on June 10, 2023 he was leaving his family’s home a little after 9:20 when he received a message through the “Sniffies” medium that stated, “Hi, I’m 18. Do you want to suck my seven-inch cock?”. It was Mr. Eerhard’s evidence that he said “Hi” back and asked, “You’re 18?”. Once he received confirmation the person he was communicating with was eighteen, Mr. Eerhard recalled they agreed to meet “at the Shoppers”. Mr. Eerhard remembered turning around at that point. He recalled some conversation about where the sexual activity would take place, wherein he suggested his motor vehicle. However, the individual then asked him to meet at the school across from the ‘Shoppers’ parking lot.
[17] The pair eventually connect when J.E. approaches Mr. Eerhard’s passenger side window. Mr. Eerhard testified that he asked J.E., “If he’s 18”, and then, “do you have your license”. It was Mr. Eerhard’s evidence that J.E. replied that he did have his license, but “not on him”. He again said, “I’m 18”. It was at this point in their interaction that Mr. Eerhard recalled opening his door. Mr. Eerhard remembered noticing J.E. was “black”, “he has some facial hair”, and “he was dressed appropriately”.
[18] Mr. Eerhard testified that J.E. asked him to “go to the back of the school”, and while they were driving, he asked him “if he’s finished high school”. Mr. Eerhard recalled J.E. replied that he “graduated”. He further inquired as to what he was doing currently, wherein he remembered J.E. told him he was looking for a job. When pressed while under cross examination, Mr. Eerhard agreed that each answer J.E. provided independently was not determinative of his age, particularly given young people can be deceptive. Something that Mr. Eerhard experienced personally in the past. However, he maintained that he relied on his visual observations of J.E., in addition to the information he received from him orally, prior to subjectively concluding he was eighteen.
[19] It was Mr. Eerhard’s evidence that while the pair were walking to where J.E. wanted him to perform oral sex they stopped, and J.E. stated, “not there, there’s a camera there”. At this point in their interaction, J.E. pulled down his shorts, and Mr. Eerhard began performing oral sex on him. Mr. Eerhard testified that J.E. asked him if he could “put his penis in my butt”, but Mr. Eerhard said “no”. J.E. then asked Mr. Eerhard if he could “suck my penis”; however, Mr. Eerhard recalled they were interrupted by J.E.’s phone ringing. Mr. Eerhard thought J.E. was speaking with “his friends”, and when that conversation was complete, Mr. Eerhard remembered that he asked if he could “lick his butt”. J.E. agreed, and the pair also engaged in that sexual activity. Their interaction ended abruptly when D.E. arrived.
[20] Mr. Eerhard testified that D.E. said, “that’s enough”, and asked him if he knew how old J.E. was. Mr. Eerhard recalled that he said, “he told me he was 18”, and D.E. replied, “no, he’s 14”. It was Mr. Eerhard’s evidence that he “just froze” and went to the ground. He remembered D.E. asking him for his identification, which he provided. The police then attended and placed him under arrest.
Position of the Parties
The Crown:
[21] The crown stresses the random nature of the encounter between these parties, arguing it created certain obligations on Mr. Eerhard with a view to ensuring the individual he was engaging with sexually was legally able to provide his consent. The crown asks me to reject Mr. Eerhard’s evidence completely; however, the crown takes the position that even if I accept Mr. Eerhard’s evidence, it has still proved beyond a reasonable doubt that he did not take all reasonable steps in the circumstances to ascertain the age of J.E. More was required on this factual record.
The Defence:
[22] The defence reminds me that I must approach my analysis contextually. Mr. Eerhard must be considered as an individual who was operating within the confines of an online application, which produces random sexual encounters by its very design. The defence takes the position that, given his previous experience, and taking into consideration the nature of “Sniffies”, Mr. Eerhard took all reasonable steps to ascertain J.E.’s age. Simply put, Mr. Eerhard recognized that there was an obligation on him to be diligent, and the steps he took were consistent with what a reasonable person would have taken in those circumstances.
The Applicable Legislation
[23] At all material times, J.E. was fourteen years old. Accordingly, the absence of consent is not a relevant factor. There is no dispute between the parties that any sexual contact, which occurred between Mr. Eerhard and J.E. was consensual. The only live issue is whether Mr. Eerhard had an honest but mistaken belief that J.E. was at least sixteen years of age. That being said, s. 150.1(4) of the Criminal Code of Canada applies. It provides as follows:
150.1(4) It is not a defence to a charge under section 151 or 152, subsection 160(3) or 173(2), or section 271, 272, or 273 that the accused believed that the complainant was 16 years of age or more at the time the offence is alleged to have been committed unless the accused took all reasonable steps to ascertain the age of the complainant.
Guiding Legal Principles
[24] Given that Mr. Eerhard, the defendant, has provided evidence, the framework set out in R. v. W(D.), para 28 applies. Specifically, the test outlined at paragraph 28:
If I believe the evidence of Mr. Eerhard, obviously, I must find him not guilty;
Second, even if I do not believe the testimony of Mr. Eerhard, but I am left in reasonable doubt by it, I must find him not guilty;
Finally, even if I am not left in doubt by the evidence of Mr. Eerhard, I must ask myself whether on the basis of the evidence which I do accept, if I am convinced beyond a reasonable doubt by that evidence of the guilt of Mr. Eerhard.
[25] In turning my mind to the analysis I must engage in, I have also reviewed the article written by Paciocco J.A. entitled, “Doubt about Doubt: Coping with W.(D.) And Credibility Assessment” found at 2017 22 Canadian Criminal Law Review 31. In that article, Justice Paciocco helpfully breaks down the W.(D.) principles into five analytical points:
Criminal trial cannot properly be resolved by deciding which conflicting version of events is preferred;
A criminal fact-finder that believes evidence that is inconsistent with the guilt of the accused cannot convict the accused;
Even if a criminal fact-finder does not entirely believe evidence inconsistent with guilt, if the fact-finder is left unsure whether that evidence is true there is a reasonable doubt and an acquittal must follow;
Even where the fact-finder entirely disbelieves evidence inconsistent with guilt, the mere rejection of that evidence does not prove guilt; and
Even where the fact-finder entirely disbelieves evidence inconsistent with guilt, the accused should not be convicted unless the evidence that is given credit proves the accused guilty beyond a reasonable doubt.
[26] I have reminded myself that the complainant in this matter is a child. In my final analysis, I found Justice Hill’s review of the applicable law in R. v. B.B., 2009 ONCA 56, paras 60-63 was both informative and instructive. In particular, paragraphs 60-63:
The testimony of a youthful witness cannot be said to be inherently unreliable. Otherwise, a negative stereotype improperly supplants abolition of the corroboration rule in the testimonial competence regime. The testimony of a young witness is to be understood with an eye to common sense as exactitude and detail may be missing from a child's recall as the world is experienced differently from an adult: B.(G.) v. The Queen (1990), 56 C.C.C. (3d) 200 (S.C.C.) at 219-220 per Wilson J.; Marquard v. The Queen (1993), 85 C.C.C. (3d) 193 (S.C.C.) at 201 per McLachlin J. (as she then was); R. v. H.C. (2009), 2009 ONCA 56, 241 C.C.C. (3d) 45 (Ont. C.A.) at para. 42.
The court's common sense approach may require caution in accepting the youthful witness' testimony taking into account the strengths and weaknesses of the particular witness' evidence in the context of a specific case: Marquard v. The Queen, supra 221-3 per McLachlin J.; The Queen v. W.(R.) (1992), 74 C.C.C. (3d) 134 (S.C.C.) at 142-4 per McLachlin J.; R. v. Keeper, [2000] O.J. No. 1407 (C.A.) at para. 4 per curiam; R. v. Reekers, [1999] O.J. No. 3415 (C.A.) at para. 1 per curiam; R. v. Stephen (D.), [1996] O.J. No. 441 (C.A.) at para. 3 per curiam.
As a general rule, children will have a better and more accurate recollection of events shortly after they occurred than they will some weeks, months or years later: R. v. F.(C.C.) (1997), 120 C.C.C. (3d) 225 (S.C.C.) at 233-4. Where a child witness at trial adopts an out-of-court statement admissible pursuant to s. 715.1 of the Code, but has no independent memory of the events, a special warning, like a Vetrovec caution, is admissible as to the dangers of convicting on the videotape alone: R. v. F.(C.C.), at 241.
Whatever enlightened approach is taken respecting a child's ability to perceive and recall, the standard of proof cannot be reduced below that of cases involving adults: B.(G.) v. The Queen, supra at 219; The Queen v. W.(R.), supra at 143; R. v. Markell, [2001] O.J. No. 1813 (C.A.) at para. 1-2 per curiam; R. v. Keeper, supra at para. 4.
[27] Section 150.1(4) is not concerned with the accused’s belief as to a complainant’s age. Indeed, the section assumes that the accused believed the complainant was old enough to give legal consent and requires an inquiry into the basis for that belief. Parliament, by enacting s. 150.1(4) has limited the “honest belief” defence to cases where the accused has taken “all reasonable steps” to ascertain the age of the complainant: R. v. Saliba, 2013 ONCA 661, paras 26-27.
[28] As explained in R. v. Dragos, 2012 ONCA 538, paras 29-33, s. 150.1(4) mandates an inquiry akin to a due diligence inquiry. The trier of fact must compare the steps, if any, taken by an accused to determine the true age of the complainant with the steps that a reasonable person would have taken in those circumstances. Importantly, the 150.1(4) analysis does not place any onus on the accused. The onus is on the crown to prove beyond a reasonable doubt that all reasonable steps were not taken: R. v. Saliba at para. 28 citing R. v. Duran at para. 54.
[29] In R. v. W.G., 2018 O.J. No. 4827, para 58, Justice Gray outlines some common threads within the relevant caselaw, which I found provided helpful guidance:
The legislative provisions seek to protect young people from sexual crimes; they do so by placing the responsibility for preventing adults/youth sexual activity where it belongs: with adults; Parliament's allocation of responsibility to adults is crucial for protecting young people from sexual crimes: R. v. George, supra;
It is well-understood that young people can pass for older people, and it is reasonable to expect that an accused should be aware of the possibility that a young person may be under 16 years of age: R. v. Hayes, supra;
There is a commonly recognized motivation for young people to misrepresent their age: R. v. George, supra; and R. v. H.L., supra;
The greater the age difference, the higher the degree of diligence that may be required in ascertaining the complainant's true age: R. v. R.A.K., supra;
Specific concrete steps may not be required, depending on the surrounding circumstances, including the complainant's degree of sophistication, his or her apparent age and maturity, and his or her circle of friends: R. v. L.T.P, supra.
Analysis
[30] The analysis I must engage in is necessarily contextual and fact specific. Mr. Eerhard was operating within the confines of an online medium, “Sniffies”, which connected parties for the purpose of random sexual encounters. This was a “hook-up app”, designed for individuals over the age of eighteen. It was in this context that Mr. Eerhard was connected with J.E. This was not a party, their interaction did not take place while in the company of mutual acquaintances, and J.E. was not in the company of his friends. My assessment with respect to whether Mr. Eerhard took all reasonable steps to ascertain J.E.’s age must occur against the appropriate fact specific backdrop. It cannot take place in the abstract, or with reference to an evidentiary record completely distinguishable from the one before me.
[31] I agree with the crown that the discrepancy in age between these parties imposed a higher degree of diligence on Mr. Eerhard, specifically with a view to the inquiry he was required to engage in. Moreover, as Mr. Eerhard was acutely aware based on his previous experience, it is not uncommon for young people to misrepresent their age. As such, it would not have been sufficient for Mr. Eerhard to simply rely on the age restriction imposed by the “Sniffies” application to satisfy himself that J.E. was eighteen years old.
[32] Prior to carrying my analysis forward, I think it is helpful for me to review the findings of fact I have made based on the evidence, which I have accepted on this evidentiary record. I have made the following factual findings:
I accept that Mr. Eerhard subjectively believed that J.E. was eighteen years old when they engaged in sexual acts together;
I find that Mr. Eerhard verbally confirmed J.E. was eighteen years old prior to allowing him to enter his motor vehicle. Additionally, I find Mr. Eerhard confirmed J.E. was eighteen years old through the “Sniffies” application prior to agreeing to meet J.E. personally;
I find Mr. Eerhard responded to the following message, “I’m 18. Do you want to suck my seven-inch cock?”;
I find Mr. Eerhard asked J.E. if he had a driver’s license, and J.E. responded that he did, his driver’s license was just not on his person; and
Finally, I find Mr. Eerhard asked J.E. if he had graduated High School, and that J.E. responded that he had. I further find that Mr. Eerhard inquired into what J.E. was doing for work at that point in time, and J.E. told him he was looking for a job.
[33] I also accept Mr. Eerhard’s evidence that J.E. was dressed “appropriately” from his perspective. It was J.E.’s evidence that he was wearing Lululemon shorts and a t-shirt, which I find to be corroborative of Mr. Eerhard’s evidence on this point. I also accept that Mr. Eerhard observed J.E. to have facial hair on June 10, 2023, as the record reflects that he started shaving two years prior to that date. There is no dispute that J.E. was approximately six feet tall on the date of the alleged incident, and I accept that at one point, he told Mr. Eerhard they couldn’t engage in sexual activity in a particular location because there was a surveillance camera.
[34] I carefully considered all of the inquiries, which I accept Mr. Eerhard made to inform his subjective belief that J.E. was eighteen years old, against the appropriate factual background. In the result, I find that on this particular evidentiary record, Mr. Eerhard did take all reasonable steps to ensure that J.E. was of an age where he could consent to the sexual activity they engaged in together. Certainly, there was an elevated level of diligence placed on Mr. Eerhard given the age discrepancy between these parties. Moreover, it would have been insufficient for Mr. Eerhard to simply rely on the age restrictions imposed by the online application “Sniffies”. But he did not. Mr. Eerhard took a number of factors into consideration in order to inform his subjective belief, and I must consider the totality of those factors in arriving in my ultimate determination.
[35] Mr. Eerhard was operating in the context of an online forum, designed to connect individuals over the age of eighteen for the purpose of engaging in random sexual encounters, or “hook-ups”. I accept that Mr. Eerhard responded to a message, which stated, “I’m 18. Do you want to suck my seven-inch cock?”. He proceeded to confirm J.E.’s age by sending him a message through the “Sniffies” application prior to agreeing to meet him. When Mr. Eerhard first encountered J.E., he observed him to be appropriately dressed, six feet tall, with observable facial hair. Mr. Eerhard personally confirmed J.E.’s age prior to allowing him access to his motor vehicle, following which J.E. advised him that he had a driver’s license. J.E. further told Mr. Eerhard that he had graduated from High School and was looking for a job. J.E. also exercised a degree of control over where the pair ultimately engaged in sexual activity together. When all of these factors are considered in their totality and contextually, I find they are consistent with an inquiry a reasonable person would engage in given similar circumstances.
[36] The crown very strongly argued that Mr. Eerhard ought not to have proceeded with any sexual contact with J.E. absent being provided with a physical copy of his identification. Speaking frankly, I find that to be wholly unreasonable in these particular circumstances.
Conclusion
[37] In the result, I find Mr. Eerhard took all reasonable steps to inform his subjective belief that J.E. was eighteen years old prior to engaging in sexual activity with him on June 10, 2023. The crown has failed to prove beyond a reasonable doubt that all reasonable steps were not taken. Mr. Eerhard is not guilty with respect to all counts charged.
Released: April 7, 2025
Justice Jennifer Campitelli