CITATION: R. v. Akinsuyi, 2016 ONSC 2103

COURT FILE NO.: 14-1-039

DATE: 20160329

ONTARIO

SUPERIOR COURT OF JUSTICE

BETWEEN:

HER MAJESTY THE QUEEN

– and –

ENIAFE AKINSUYI

Jennifer Gibson, for the Crown

Michael Owoh, for Mr. Akinsuyi

HEARD: March 21, 22, 23, 2016

r.f. goldstein j.

[1] Mr. Akinsuyi and the complainant, C.W., had a relationship in the fall of 2012. Mr. Akinsuyi was 30 years old. C.W. was 14. She testified that she told him she was 17 and he told her he was 22. She also testified that she might have said she was older. He testified that she told him she was 18 going on 19 and that he told her his true age of 30.

[2] They probably met sometime in September. They began dating. They would see each other usually late at night. During the relationship they had sexual intercourse at least one time, and oral sex on more than one occasion. C.W. was a willing participant in the sex. On November 16 2012 they had an argument of some kind. The Crown alleges that Mr. Akinsuyi assaulted, unlawfully confined, and robbed C.W. He is now charged with those offences, as well as sexual assault and sexual interference.

[3] The Crown does not allege that Mr. Akinsuyi knew that C.W. was only 14. Rather, the Crown alleges that Mr. Akinsuyi did not take all reasonable steps to determine her age.

[4] Thus, there are two questions before the court: First, did Mr. Akinsuyi take all reasonable steps to determine C.W.’s age? I find that the Crown has not proven beyond a reasonable doubt that he did not. Second, did Mr. Akinsuyi assault, unlawfully confine, and rob C.W. on November 16 2012? I find beyond a reasonable doubt that he did.

[5] I start with the background facts.

FACTS:

[6] C.W. gave a videotaped statement to the police which she adopted as her evidence. In the fall of 2012 she was a student at a Toronto high school studying in French. She had recently moved to Toronto with her mother. She testified that she met Mr. Akinsuyi on the street. They struck up a conversation. In her video statement she did not specify the time of day that they met. In her examination-in-chief in court she said she could not remember the time of day. In her evidence in chief she said that she thinks she was on her way home from school. She told him that she had to go home but they agreed to see each other again. She did not tell him her real age. She said he was older but that she did not know he was 30, and would not have had a relationship with him had she known he was that old. She testified in court that she had a Facebook page but did not have her actual age on it. In cross-examination, however, she agreed that her Facebook profile indicated that she was 19. She never told her mother or her friends about Mr. Akinsuyi. She was careful to hide her age from him.

[7] In her videotaped statement she said that she had told Mr. Akinsuyi that she was 17. In her cross-examination she testified that she could not remember exactly what she said about her age but agreed that it was possible she told him she was 18 or 19. She agreed that she lied to him about her age and told him she was older than she was. She also agreed that she told Mr. Akinsuyi that she was in a higher grade than she really was. She agreed that she lied about her age because she wanted to impress an older guy and date him. She agreed that she purposely tried to present herself as older not just to Mr. Akinsuyi, but generally. She said she was successful in this with other people.

[8] C.W. testified that she often stayed out all night. Sometimes she obeyed her mother about coming home, sometimes she did not. She agreed in cross-examination that she had far more freedom than other 14-year-olds.

[9] In her videotaped statement C.W. said that on the night of the altercation she went to Mr. Akinsuyi’s apartment. The plan was for her to spend the night. In her statement she said that Mr. Akinsuyi was angry with her because he suspected that something was going on between her and his roommate. The argument lasted until around 5:00 am. She left the apartment at that point. She said that while they were inside the apartment he asked her questions and if she refused to answer he would start pushing her. She said that he pushed her with his hands against the table and she fell on it. She was yelling at him not to touch her. The roommate tried to get in but Mr. Akinsuyi wouldn’t let him. Eventually she got out and went to the living room where he took a swing at her. She managed to calm him down and told him to go outside and talk to his roommate, who was calling the police. When he left she got out of the apartment but he found her outside, and started hitting her again. Then the police showed up. She ran to the police, while Mr. Akinsuyi ran off with her purse in the opposite direction.

[10] Both C.W. and Mr. Akinsuyi testified that the argument, whatever it was about, occurred in the bedroom. There is no doubt that the argument in the bedroom became heated. The roommate threatened to call the police and apparently did. C.W. testified in cross-examination that she spent 10-15 minutes trying to convince the roommate not to call the police. She did not want the police to be involved because she did not want it to come out that she had lied to Mr. Akinsuyi about her age.

ANALYSIS:

[11] As I will explain, I believe part of Mr. Akinsuyi’s evidence, and disbelieve other parts. I do not accept C.W.’s evidence, except where it is independently confirmed. It is important to note that a trial is not a credibility contest. I do not simply compare versions of events. Rather, where an accused person has testified a judge (or jury) should first determine whether he or she believes the accused. A judge may believe some, none, or all of an accused person’s evidence – the same as any witness. If the judge believes the accused, the judge must acquit and that is the end of the matter. Even if the judge does not believe the accused, if the evidence of the accused leaves him or her with a reasonable doubt, he or she must still acquit. The judge may not believe the accused and may find that the evidence does not leave him or her with a reasonable doubt. In that case, the judge may only convict if he or she is satisfied beyond a reasonable doubt based on the evidence that is accepted.

[12] Mr. Akinsuyi faces five counts. They are:

Assault on C.W.;

Unlawful confinement of C.W.;

Robbery of C.W.;

Sexual assault of C.W.; and,

Sexual interference with C.W.

[13] I will deal first with the sexual offences, and then with the assault-related offences. As I have already noted, there are two issues to be determined:

(a) Did Mr. Akinsuyi take all reasonable steps to determine C.W.’s age?

(b) Did Mr. Akinsuyi intentionally assault, rob, and unlawfully confine C.W.?

(a) Did Mr. Akinsuyi take all reasonable steps to determine C.W.’s age?

[14] Ms. Gibson, for the Crown, was careful not to over-reach. She did not allege that Mr. Akinsuyi actually knew C.W.’s age. She also conceded that C.W. was a willing participant in sexual activity. The real issue, therefore, is whether Mr. Akinsuyi took all reasonable steps to determine C.W.’s age.

[15] It is a criminal offence for an adult to have sexual contact with a child. The criminal law says that a child is a person who is under 16 years old for most purposes. A child generally cannot legally consent to sexual activity with an adult. That is why it is considered a sexual assault as well as sexual interference if an adult has sex with a child. It does not matter whether the child is a willing participant.

[16] There is, however, a defence of honest mistake as to age available if the accused took “all reasonable steps” to determine the age of the complainant. “What constitutes reasonable steps in a given case is a fact-specific inquiry that turns on the circumstances of the case”: R. v. Dragos, 2012 ONCA 538. As Cronk J.A. put it at para. 35 of that case, what is required is that the accused exercise a degree of care in determining the age of the complainant that a reasonable person in the circumstances would. There is a subjective element and an objective element.

[17] The Crown must prove beyond a reasonable doubt that Mr. Akinsuyi did not take all reasonable steps. There is no checklist of what steps a reasonable person ought to take to determine a complainant’s age. Sometimes an accused person’s visual observations of the complainant are enough to constitute reasonable steps. Sometimes the information provided by the complainant may be enough. Sometimes the age differential may be enough. Of course, in some cases those things should raise a red flag and cause an accused person to make further inquiries. See Laskin J.A.’s comments R. v. Duran, 2013 ONCA 343 at paras. 51-55.

[18] I am sceptical of much of what Mr. Akinsuyi had to say. That said, his evidence leaves me in a state of reasonable doubt about whether he took all reasonable steps to determine C.W.’s age. I also find that the Crown has not proven beyond a reasonable doubt that he did not take all reasonable steps based on the evidence I do accept.

[19] Mr. Akinsuyi testified that he was 30 years old when he met C.W. It was late at night. He was on his way home from his job as a security guard. They passed each other on the street and struck up a conversation when she asked him for a cigarette. She told him that she had moved from northern Ontario. She said she spoke French and they discussed the fact that he was African person but not a French-speaking African. She told him she was turning 19 in a few months but said she had lost her ID and wanted help to get cigarettes. He testified that he thought she was 18 or 19 or older because she was out all night, she smoked, she was getting ready to attend college, and she only needed one more course to graduate. She looked her age, he testified.

[20] The subject of C.W.’s ID did come up. Mr. Akinsuyi took C.W. out one night with his friends. They went to a bar. She did not have her identification and was not admitted.

[21] There were definitely problems with Mr. Akinsuyi’s testimony. I rather doubt that he told C.W. his true age. It makes some sense – at least in her mixed-up worldview – that she would have dated a 22-year old but not a 30-year old. He was definitely cagey about his other girlfriend, and I doubt that C.W. would have dated him if she knew he had a pregnant partner – although it must be stressed that he is not on trial for being a cad. Furthermore, his version of events on the night of November 16, 2012 is not credible and I don’t believe him, as I will shortly get to. I find it particularly troubling that Mr. Akinsuyi tried to drag C.W. back into his apartment building when he knew the police had been called. It is certainly possible that he at least suspected at that point she was underage and was worried about police involvement.

[22] In my view, however, I am left in a state of reasonable doubt about whether Mr. Akinsuyi took all reasonable steps to determine C.W.’s age. I say this for the following reasons:

• C.W. herself was careful to give the impression that she was older than she was. She wanted to date him. She hid information from him.

• C.W. pleaded guilty to lying to the police about her age.

• C.W. admitted that her age on her Facebook profile was older than her real age. There is no evidence one way or the other about her privacy settings and her friendship status with Mr. Akinsuyi so there is no way to know whether he had access to her full profile on Facebook. Nonetheless, they certainly had contact on Facebook, as demonstrated by the Facebook messages she sent him. It is plausible that he would have seen her fake age on her Facebook profile.

• C.W. brought alcohol to Mr. Akinsuyi’s apartment. Adolescents of 14 have obviously been known to obtain and drink alcohol, but when combined with other information that is significant.

• C.W. testified that she first met Mr. Akinsuyi during the day – in contrast to Mr. Akinsuyi who said that they met at night. She backtracked in cross-examination and could not exactly remember. Mr. Akinsuyi testified that he was on his way home from work from a night shift as a security guard and was in his uniform. C.W. did recall that he was wearing his security guard uniform. It does not matter whether C.W. and Mr. Akinsuyi first met at night or during the day. That is because it is clear that she and Mr. Akinsuyi often met at late hours. C.W. did not act like a 14 year-old living with her parents. She stayed out all night. She came to visit Mr. Akinsuyi unannounced late in the evening. There would have been nothing in her external behaviour to suggest she was that young.

• C.W. said in her videotaped statement that she and Mr. Akinsuyi would go out to eat or to a movie. I think it would be very unlikely that if Mr. Akinsuyi actually thought C.W. was under-age that he would be out with her in public like that.

• Just as C.W. hid her age from Mr. Akinsuyi, she did not discuss her relationship with Mr. Akinksuyi with her mother or her friends.

• Mr. Akinsuyi took C.W. out with his friends to a bar of some kind. I agree with Ms. Gibson that the whole story lacks detail and is problematic. That said, C.W. agreed in cross-examination that this event may have happened, as she remembered something like that. If Mr. Akinsuyi really thought C.W. was underage, and had told her that he was 22, then why expose the possibility of his lie by taking her out with his friends? And, far more importantly, if he thought she was under-age, then why expose himself to the highly dangerous prospect that people would find out he was dating a girl of 14?

[23] The video, in my view, is not helpful in determining whether C.W. was underage. Her appearance, at least to me, is too uncertain. I find it to be a neutral factor.

[24] I turn now to the question of the altercation on the night of November 15-16, 2012.

(b) Did Mr. Akinsuyi intentionally assault, rob, and unlawfully confine C.W.?

[25] There are two aspects to these charges: the incidents in Mr. Akinsuyi’s apartment, and the incidents caught by the surveillance camera outside Mr. Akinsuyi’s apartment.

[26] Mr. Akinsuyi testified that he never hit C.W., assaulted her, or robbed her. He testified that he was on the way to get some food at a nearby Subway Subs when he received a text from C.W. telling him to get home. He turned around immediately and went back to his apartment. He testified that C.W. was going crazy, in essence. They had an argument in the bedroom of his apartment. She was questioning him about whether he had a girlfriend. She had never acted that way before. He said that he did not touch her or assault her in the apartment. He agreed that he did try to contain her outside the apartment, which is what is shown on the surveillance video. He said that he was trying to calm her down because she was in such a state. He testified that she threatened to harm herself, and he was simply trying to prevent that.

[27] In my view, Mr. Akinsuyi’s evidence on this point is neither credible nor plausible. As I will shortly relate, his behaviour on the surveillance video clearly contradicts his testimony that he was concerned about C.W.’s state and was trying to keep her from harming herself. After a review of the surveillance tapes, I draw the inference that at least one of his purposes was to get her back in the building and away from the police, who he knew were on the way. He also enlisted his friend to assist him with that. If he was really concerned about her mental health and worried she was about to harm herself, it would have been reasonable to welcome police involvement. I therefore reject the argument that he did not have the mental intention to commit any of the offences shown on the video.

[28] C.W. herself corroborates some aspects of Mr. Akinsuyi’s evidence, but contradicts other aspects. For example, C.W. said in her videotaped statement and in chief that they were “having a few beers” at his place on the night of November 15-16, 2012. That corroborates the aspect of Mr. Akinsuyi’s evidence that she had been drinking, but I reject his evidence that she was drunk.

[29] Since I reject Mr. Akinsuyi’s evidence on this point, the incidents inside the apartment turn almost exclusively on C.W.’s evidence.

[30] I do not find C.W.’s evidence to be reliable. She simply could not or would not remember important aspects of it. I do not accept C.W.’s evidence except where it is independently corroborated.

[31] I do not think that at any point C.W. was deliberately lying about anything, and Mr. Owoh did not seriously suggest that she was. I do agree with Mr. Owoh that I cannot rely on C.W.’s evidence to convict Mr. Akinsuyi. It is clear that she did not want to be involved in this proceeding, did not want to go to the police, and was not fully cooperative. She was uninterested in checking her preliminary inquiry evidence to refresh her memory. Her four-month old baby – who was in the closed circuit room while she testified – was understandably distracting. Most of her answers consisted of “I don’t remember” and she testified that she had a bad memory. She also made it clear that she does not want Mr. Akinsuyi to be in trouble.

[32] There were examples of important inconsistencies in her evidence but I will just mention a few. In her videotaped statement C.W. said that she and Mr. Akinsuyi had sexual intercourse something less than ten times. In her in-court testimony C.W. testified that they had sexual intercourse three or four times. In cross-examination she agreed that it was just once. In her in-court testimony C.W. said that she did not contact Mr. Akinsuyi after the police became involved. In fact, after the altercation on the night of November 15/16 2012, C.W. sent Mr. Akinsuyi a Facebook message telling him that she loved him and her feelings would not change. In her testimony in court she said that on the night of the altercation he had alcohol at his apartment; but in her cross-examination she said that she brought alcohol in order to maintain the image that she was older. She testified that she might have lost her identification in the move from Kapuskasing to Toronto (she couldn’t remember), but a big part of her telling Mr. Akinsuyi that was to hide her real age.

[33] C.W. gave different versions about how the altercation started on November 16, 2012. In her videotaped statement to the police, she said that Mr. Akinsuyi accused her of having a relationship with his roommate. In his cross-examination, Mr. Owoh suggested that the argument was possibly about something different – the fact that he had another girlfriend. He suggested to her that Mr. Akinsuyi’s roommate had told her that he had another girlfriend and that she angrily texted him to come back to the apartment. She said that sounded correct but she could not be sure.

[34] Despite not being able to remember much else, C.W. steadfastly maintained that Mr. Akinsuyi assaulted and pushed her in the apartment. She definitely said that she was placed in a closet. I find, however, that I cannot rely on her evidence. I am therefore unable to say that the assaults happened in the manner she described, although there is certainly some corroboration for them. For example, C.W. said that Mr. Akinsuyi was kicking the bottom of the door. Photographs corroborate the fact of the damage, but not who caused it. I am not prepared to convict on that basis.

[35] It is a different matter with the surveillance video. As Mr. Owoh conceded, on its face the surveillance video shows that the offences are made out. There is no question that Mr. Akinsuyi dragged C.W. back into his apartment building forcibly against her will, and confined her in the foyer. There is also no doubt that he bent down, grabbed her purse, and left with it as she fled towards a police car. She never received her purse back. Since I reject Mr. Akinsuyi’s evidence that his intention was to help C.W., as I have explained earlier, I find him guilty of unlawful confinement, assault, and robbery.

DISPOSITION:

[36] I find Mr. Akinsuyi guilty of the following counts:

Count 1 – assault;

Count 2 – unlawful confinement;

Count 3 – robbery.

[37] I find Mr. Akinsuyi not guilty of the following counts:

Count 4 – sexual assault;

Count 5 – sexual interference.

R.F. Goldstein J.

Released: March 29, 2016

CITATION: R. v. Akinsuyi, 2016 ONSC 2103

COURT FILE NO.: 14-1-039

DATE: 20160329

ONTARIO

SUPERIOR COURT OF JUSTICE

BETWEEN:

HER MAJESTY THE QUEEN

– and –

ENIAFE AKINSUYI

REASONS FOR JUDGMENT

R.F. Goldstein J.