ONTARIO
SUPERIOR COURT OF JUSTICE
CITATION: R. v. L.C., 2017 ONSC 120
COURT FILE NO.: CR-15-0074
DATE: 2017-01-06
B E T W E E N:
Her Majesty the Queen,
P. Guevremont, for the Crown
- and -
L.C.
T. Woods, for the Accused
Accused
HEARD: June 30, 2016,
at Thunder Bay, Ontario
Justice D. C. Shaw
Reasons For Judgment
[1] The accused is charged that between May 1 and May 27, 2015, on L[…] First Nation, he sexually assaulted the complainant, M.M., contrary to s. 271 of the Criminal Code, and that he sexually touched the complainant, who was under the age of 16 years, for a sexual purpose, contrary to s. 151 of the Criminal Code.
[2] The complainant was 15 years, five months of age at the time of the alleged offences. The accused was 24 years of age.
[3] The complainant was the sole witness for the Crown. While testifying, she adopted, pursuant to s. 715.2 of the Criminal Code, a video statement taken by the Ontario Provincial Police on June 12, 2015.
[4] The accused and his brother, T.P., testified for the defence.
Evidence of the Complainant
[5] The complainant said that on the evening in question she was with her boyfriend, S.D., and his friends in the community of L[…] First Nation. Mr. S.D. was 18 years of age. The complainant said that she was drinking and was drunk. She left her boyfriend and his friend that night to look for a cigarette.
[6] She went to a home in L[…] First Nation, owned by the grandparents of the accused. Downstairs in the home, the accused’s brother, Mr. T.P., had a bedroom. Mr. T.P. was dating A.K., who is a cousin of the complainant. In May 2015, both Mr. T.P. and Ms. A.K. were 20 years of age. The complainant said that she often went to the house with her cousin at night to drink with people who were older than her. She said that she had been drinking that night with Ms. A.K. and Mr. T.P. and that they were drunk. She knocked on the door of the house and went straight to Mr. T.P.’s bedroom. She said that her cousin and Mr. T.P. would not open the bedroom door.
[7] The complainant said that she next remembered that she was in a washroom in the home, her blue jeans were down, she was standing up, the accused was behind her, his penis was in her private parts and she was crying. She said she told him to stop and that he “…stopped within a couple of minutes,” “or not very long.” She said he probably did not ejaculate. She said that she did not remember going to the washroom and did not know how she got into the washroom. She did not know how her blue jeans had come down. She said that she then went up the stairs, left the house and went to her boyfriend’s house. She said that she told her boyfriend the next day about the incident. She said that she did not remember the specific date of the incident, but that it was sometime between May 1 and the end of May in 2015. She reported the incident to the police on June 12, 2015. She said that the last time she drank at the house was on the day of the incident.
[8] In cross-examination, the complainant said that she did not know that the accused had a bedroom downstairs in his grandparents’ home. She said that she did not know whether she entered the accused’s bedroom that night or whether she was continuing to look for a cigarette after Mr. T.P. would not open his bedroom door.
Evidence of the Accused
[9] The accused had a bedroom downstairs in his grandparents’ home.
[10] He said that he had not had any prior contact with the complainant, although he had seen her at his grandfather’s house almost every weekend, drinking and partying until as late as 2:00 to 2:30 a.m. He believed that she was between the ages of 17 and 20, based on the people she hung out with and based on her drinking with older people. He knew the complaint’s boyfriend, Mr. S.D., who he believed was 17 to 19 years of age. He had seen the complainant around the community.
[11] The accused testified that on the evening in question he was in his bedroom with his daughter. He said that he put his daughter to bed between 10:00 p.m. and midnight. He then played a video game and after that went to sleep with his daughter. He said that he had not been drinking that evening. He said that after he went to sleep he had a strange feeling, like being startled, and got up to find the complainant beside his bed. He said that she was giggling around. He asked what she was doing there. She responded that she wanted to ask for a smoke. He said that he did not have any smokes but he would share one with her. He told her to go into the washroom and that he would come in there and share a smoke with her. He said that he told her to go into the washroom because he did not want to smoke in the bedroom where his daughter was. He said that his daughter has a heart murmur.
[12] He got a cigarette, went to the washroom and lit the cigarette. The complainant was sitting on the toilet. She then stood up and they started talking about what they had been doing that night. He asked her if she had fun that night and she said yes. The accused testified that the complainant then approached him and started “grinding” on him, which he described as moving her bum and touching his privates. He said that he told her “no,” that he would just share a smoke with her and she would leave after that. He said that when it was her turn to take a drag from the cigarette she came closer to him again. He said he sat her down on the toilet, but she got up and tried to come on to him again. He said after he took a drag on the cigarette, he was going to walk out the bathroom door, but she stood in front of him and stopped him from leaving. He said he did not want to shove her out of the way. He testified that she said “…come on, I won’t tell no one.” He said that then “hormones took over.” He said she was very attractive. He said that she helped him remove her belt, that she kissed his neck, that they started kissing and that she helped him remove her pants. He said he took off his pants and they proceeded to have sex. He said that they “weren’t feeling it” and they both agreed to stop. He said that they then were talking. He asked if she wanted a smoke for the walk home. She said yes. He got her a cigarette and she left.
[13] The accused testified that the next time he saw the accused was the next night, in his brother’s room, drinking with Mr. S.D., Ms. A.K. and the accused’s brother. The accused testified that nothing was said to him. He said that he did not join the drinking and that he does not drink.
[14] The accused testified that he and the complainant are practically the same size. He said that he weighs 135 pounds, which he said was a little more than the complainant.
Evidence of T.P.
[15] Mr. T.P. testified that at the time in question he was dating Ms. A.K. and that they were both 20 years of age.
[16] He said he assumed that the complainant was the same age as Ms. A.K.. He said that they looked to be the same age and that the complainant was around a lot of older people.
[17] He said it was normal for the complainant to be at his residence where she, Mr. S.D., Ms. A.K. and he would drink in the basement. He said that Mr. S.D. was his best friend.
[18] Mr. T.P. testified that he would see the complainant walking around the reserve with her friends, some of whom he identified at trial and whom he said were in an 18 to 20 year old age group. He said that the people he saw the complainant with were generally 20 to 22 years of age. He said that there were three house parties in L[…] First Nation every weekend. He said that if he went out to drink and party, he would see the complainant there.
[19] Mr. T.P. said that he remembered the complainant knocking on his door asking for a cigarette. He said that when he told her “no,” she banged on his door harder and again asked for a cigarette. He told her that Ms. A.K. only had a few cigarettes left and that he was not going to wake her up. He said the complainant then went quiet. He went back to sleep with Ms. A.K. and did not notice anything further that evening.
[20] Mr. T.P. testified that after the evening in question, the complainant continued to come over to drink with him and Ms. A.K..
[21] Mr. T.P. testified that it never occurred to him that the complainant might be quite young because that would mean his friend, Mr. S.D., “was dating an underage.” He never talked to Mr. S.D. about the complainant’s age. He described the complainant as appearing a lot older than 15 years of age. He said that because his girlfriend, Ms. A.K., was the same age as him – 20 – he did not think that her cousin, the complainant, was 15. He thought the complainant might be two years younger than his girlfriend. He said that if he had known that the complainant was 15, he would not have been hanging out with her.
[22] Mr. T.P. estimated that L[…] First Nation had a population of approximately 500.
Position of the Crown
[23] The Crown submits that the fact that the complainant was intoxicated raises the question of whether she was capable of consenting to sexual activity. More forcefully, the Crown submits that because the complainant was under 16 years of age, it is not a defence, pursuant to s. 150.1(1) of the Criminal Code, that the complainant consented to the sexual activity and, pursuant to s. 150.1(4), it is not a defence that the accused believed that the complainant was 16 years of age unless the accused took all reasonable steps to ascertain the age of the complainant. The Crown submits that the only reason that the accused assumed that the complainant was over the age of 16 was because he would see her at his grandparents’ house drinking with people who were older than 16. The Crown submits that this does not satisfy the requirement of taking “all reasonable steps to ascertain the age of the complainant.”
Position of the Defence
[24] The defence submits that the complainant was unable to say whether or not consent actually took place. The defence notes that the accused testified that the sexual intercourse was consensual and that both he and the complainant agreed to stop the activity.
[25] The defence submits that the accused was operating under a mistake as to the complainant’s age and that, in the circumstances, he took all reasonable steps to determine that she was over 16 years of age. The defence submits that these circumstances negated any requirement that the accused make further inquiry.
Discussion
[26] Credibility is a central issue in the trial of these charges. The rule of reasonable doubt applies to that issue. The required instruction from R. v. W.(D.), [1999] 1 S.C.R. 742, at p. 409 C.C.C. is well known:
The trial judge should instruct the jury that they need not firmly believe or disbelieve any witness or set of witnesses. Specifically, the trial judge is required to instruct the jury that they must acquit the accused in two situations. First, if they believe the accused. Secondly, if they do not believe the accused’s evidence but still have a reasonable doubt as to his guilt after considering the accused’s evidence in the context of the evidence as a whole: see R. v. Challice (1979), 1979 CanLII 2969 (ON CA), 45 C.C.C. (2d) 546 (Ont. C.A.); approved by R. v. Morin, supra, at p.207.
Ideally appropriate instructions on the issue of credibility should be given, not only during the main charge, but on any recharge. A trial judge might well instruct the jury on the question of credibility along these lines:
First, if you believe the evidence of the accused, obviously you must acquit.
Secondly, if you do not believe the testimony of the accused but you are left in reasonable doubt by it, you must acquit.
Thirdly, even if you are not left in doubt by the evidence of the accused, you must ask yourself whether, on the basis of the evidence which you do accept, you are convinced beyond a reasonable doubt by that evidence of the guilt of the accused.
[27] As regards the first step in the W. (D.) formula, I must not consider the accused’s version of events in isolation, as if the Crown had led no evidence. The evidence that favours the accused must be assessed in the context of all the evidence.
[28] I see no basis on which to reject the evidence of the accused. His testimony as to what happened on the evening in question is reasonably plausible. There is nothing in the evidence of the complainant that contradicts the accused’s version of events. The complainant has no memory of what transpired between the time that Mr. T.P. refused to let her into his bedroom and the act of sexual intercourse. During this period of time, the events as described by the accused may have happened. In cross-examination, the complainant said that she did not know if it was possible that she walked into the accused’s bedroom, and she did not know if she was continuing to look for a cigarette after she had been refused by Mr. T.P.. The only direct evidence about whether or not the complainant consented to sexual intercourse is that of the accused. The accused’s evidence that the complainant came into his bedroom asking for a cigarette is consistent with the reason why the complainant came to the house. His evidence that he did not want to smoke in the bedroom because his young daughter was sleeping there is a reasonable explanation as to why he and the complainant went into the bathroom. The accused’s evidence as to what happened in the washroom has no inherent inconsistencies.
[29] Although demeanour is only one factor that enters into a finding of credibility, there was nothing in the manner that the accused gave his evidence that raised concerns. He appeared sincere. He was not evasive. On the evening in question, his powers of observation, judgment and recall were not impaired by alcohol.
[30] In Faryna v. Chorny, 1951 CanLII 252 (BC CA), [1951] B.C.J. No. 152 (C.A.), O’Halloran J.A. wrote that in assessing credibility, one should consider whether the evidence of a witness is in harmony with the preponderance of possibilities which a practical and informed person could readily recognize as reasonable in that place and in those conditions. I have assessed the evidence of the accused in that context.
[31] Section 273.1(1) of the Criminal Code defines consent for the purposes of the offence of sexual assault as “…the voluntary agreement of the complainant to engage in the sexual activity in question.” Section 273.1(1)(b) provides that no consent is obtained where the complainant is incapable of consenting to the activity.
[32] In submissions, the Crown briefly raised the question of whether the complainant was capable of consenting to a sexual activity because she was intoxicated. The Crown did not pursue that point further and focused rather on the question of whether the accused took all reasonable steps to ascertain the age of the complainant pursuant to s.150.1(4). I will, however, address the issue of consent and intoxication.
[33] In R. v. J.R., 2006 CanLII 22658 (ON SC), [2006] O.J. No. 2698 (S.C.J.), affm’d 2008 ONCA 200, leave to appeal refused [2008] S.C.C.A., T. Ducharme J. rejected the Crown’s submissions that the complainant’s memory loss after drinking was direct evidence that she did not subjectively consent to any sexual conduct. He found that the submission was an attempt to turn an absence of evidence into direct evidence of a crucial fact. At para. 18, he stated:
Absent expert evidence, a loss of memory or a “blackout” is direct evidence of nothing except the fact that the witness cannot testify as to what happened during a particular period. Indeed, Ms. Martin the toxicologist called by the Crown described a blackout as, “a complete loss of memory for a portion of time during a drinking episode.” In a sexual assault case, this is particularly unfortunate since, as was noted in R. v. Esau (1997), 1997 CanLII 312 (SCC), 116 C.C.C. (3d) 289 at 296 (S.C.C.), “[t]he parties’ testimony is usually the most important evidence in sexual assault cases.” Esau is particularly relevant to the case at bar because it is a sexual assault case involving a complainant with no memory of the relevant time. In Esau at 297, Justice Major said of the complainant’s memory loss, “[a]ny number of things may have happened during the period in which she had no memory.” Thus, the only significance of memory loss, without more, is that the complainant cannot give direct evidence as to whether or not she consented to the sexual contact or whether or not she had the capacity to do so.
[34] However, Ducharme J. held that memory loss could, in certain circumstances, be indirect evidence of non-consent or lack of capacity. At para. 20, he stated:
This does not mean that evidence of memory loss or a blackout is unimportant, irrelevant or necessarily lacking in probative value. It may well be circumstantial evidence which, when considered with other evidence in a case, may permit inferences to be drawn about whether or not a complainant did or did not consent or whether she was or was not capable of consenting at the relevant time. But even here, while not required as a matter of law, for such evidence to be probative, some expert evidence will almost always be essential.
[35] In my view, no inferences can be drawn from the circumstantial evidence about whether the complainant did or did not consent or her capacity to consent. There was no evidence as to how much the complainant had to drink that evening, how long she had been drinking, what she was drinking, the degree of her intoxication or how, if at all, her drinking affected her memory. On the complainant’s evidence, she walked from where she had been with her boyfriend and his friend to the home of the accused’s grandparents, knocked on the door of the home, descended the stairs to Mr. T.P.’s bedroom, asked him for a cigarette, and, after the sexual event, ascended the stairs of the home and walked to meet her boyfriend. No expert evidence was called on the issue of intoxication or the effect of intoxication on the complainant’s memory.
[36] The onus is on the Crown to prove that the complainant did not consent. It is not up to the accused to prove that she did consent. The Crown has not satisfied that burden of proof beyond a reasonable doubt.
[37] I turn next to the charge under s. 151 of the Criminal Code and the issue whether the accused took all reasonable steps to ascertain the age of the complainant.
[38] Section 151.1(1) and s. 151.1(4) of the Criminal Code provide:
150.1 (1) Subject to subsections (2) to (2.2), when an accused is charged with an offence under section 151 or 152 or subsection 153(1), 160(3) or 173(2) or is charged with an offence under section 271, 272 or 273 in respect of a complainant under the age of 16 years, it is not a defence that the complainant consented to the activity that forms the subject-matter of the charge.
(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.
[39] In R. v. L.T.P., 1997 CanLII 12464 (BC CA), [1997] B.C.J. No. 24 (C.A.), Finch J.A. reviewed a number of cases concerning s. 151.1(4). At para. 19, he stated:
I conclude from these cases that where the defence of honest but mistaken belief in the complainant's age arises in circumstances where s. 150.1(4) applies, the Crown must prove beyond a reasonable doubt that the accused did not take all reasonable steps to ascertain the complainant's age, or that he did not have an honest belief that her age was fourteen years or more. For the defence to succeed, it must point to evidence which gives rise to a reasonable doubt that the accused held the requisite belief, and in addition, evidence which gives rise to a reasonable doubt that the accused took all reasonable steps to ascertain the complainant’s age.
[40] In R. v. Duran, 2013 ONCA 343, the Court of Appeal reviewed the trial judge’s charge to the jury on the defence of mistake of age. At paras. 51-54, Laskin J.A. gave the following guidance:
[51] The trial judge should first have told the jury it was the appellant’s position that he honestly believed the complainant was over 16 years of age; and the trial judge should have reviewed the evidence for and against that position: see R. v. Wasser, 2010 ONCA 429, at para. 13.
[52] What constitutes “all reasonable steps” depends on the context and the circumstances. There is no automatic checklist of considerations applicable to every case. Indeed, in some cases, an accused’s visual observation of the complainant may be enough to constitute reasonable steps.
[53] In this case, the trial judge should have instructed the jury to determine whether what the appellant knew and observed about the complainant were all the steps a reasonable person needed to take or whether a reasonable person ought to have made further inquiries. In making that determination, the jury should have been told to take account of the following considerations and the evidence on them: the accused’s observation of the complainant; the complainant’s appearance and behaviour; the information the complainant told the appellant about herself, including any information about her age; and the age differential between the appellant and the complainant.
[54] These suggested instructions find support in CRIMJI: Canadian Criminal Jury Instructions, Gerry Ferguson, Michael Dambrot, and Elizabeth Bennett, 4th ed., looseleaf, (Vancouver: The Continuing Legal Education Society of British Columbia, 2005), vol. 2, 2011 update, at section 6.67A, paras. 23-24, and in the reasons of the British Columbia Court of Appeal in R. v. L.T.P. (1997), 1997 CanLII 12464 (BC CA), 113 C.C.C. (3d) 42, where Finch J.A. said, at para. 20:
In considering whether the Crown has proven beyond a reasonable doubt that the accused has not taken all reasonable steps to ascertain the complainant’s age, the Court must ask what steps would have been reasonable for the accused to take in the circumstances. As suggested in R. v. Hayes, supra, sometimes a visual observation alone may suffice. Whether further steps would be reasonable would depend upon the apparent indicia of the complainant's age, and the accused’s knowledge of same, including: the accused’s knowledge of the complainant’s physical appearance and behaviour; the ages and appearance of others in whose company the complainant is found; the activities engaged in either by the complainant individually, or as part of a group; and the times, places, and other circumstances in which the complainant and her conduct are observed by the accused. The Court should ask whether, looking at those indicia, a reasonable person would believe that the complainant was fourteen years of age or more without further inquiry, and if not, what further steps a reasonable person would take in the circumstances to ascertain her age. Evidence as to the accused’s subjective state of mind is relevant but not conclusive because, as pointed out in R. v. Hayes at p.11, “[a]n accused may believe that he or she has taken all reasonable steps only to find that the trial judge or jury may find differently”.
[41] The onus on the accused in this case is an evidentiary onus, not a persuasive onus. As observed by the Newfoundland Court of Appeal in R. v. Osborne, 1992 CanLII 7117 (NL CA), [1992] N.J. No. 312 (C.A.), the evidentiary onus requires the accused to adduce evidence or identify Crown evidence, or both, which, if true, would entitle the accused to an acquittal. Such evidence need not be believed; it is only necessary that it creates a reasonable doubt in the mind of the trier of fact. The word “all” is important and, while it is only necessary for an accused to create a reasonable doubt, the evidence which is used to establish such doubt must be directed to the word “all” as much as to any other part of the subsection.
[42] I am satisfied on the totality of evidence, namely, the testimony of the complainant, the accused and Mr. T.P., that there is an evidential basis for the defence of mistaken belief in age and that the Crown has not proved beyond a reasonable doubt that (a) the accused did not have an honest belief that the complainant was 16 years of age or older and (b) that he did not take all reasonable steps to ascertain the complainant’s age.
[43] As I have held, I find no basis to reject the testimony of the accused. He testified that he believed that the complainant was over the age of 16 years. I am left with a reasonable doubt on that issue.
[44] The “all reasonable steps” requirement is approached by asking what steps a reasonable person would take in the circumstances to ascertain the complainant’s age.
[45] The evidence as to “all reasonable steps” consisted of the following:
• The boyfriend of the complainant, Mr. S.D., was 18 years of age;
• The complainant regularly, on weekends, drank at the home in which the accused resided;
• When she drank at the home she drank with Ms. A.K., age 20, Mr. S.D., age 18, and Mr. T.P., age 20;
• No one in the community, which would include the complainant’s parents, appeared concerned that the complainant was drinking regularly at the home, although she was not of legal drinking age;
• The complainant had no apparent curfew. She often drank at the home until the wee hours of the morning;
• Mr. S.D., age 18, was Mr. T.P.’s best friend. Mr. T.P. testified that he had no reason to believe that his best friend had a girlfriend who was underage;
• Although there was a nine year age gap between the accused and the complainant, the accused and the complainant were not dissimilar in height and weight;
• Mr. T.P. testified that he assumed that the complainant was the same age as her cousin, Ms. A.K., that they looked to be the same age, and that the complainant appeared far older than her actual age;
• Mr. T.P. testified that he saw the complainant walking around the reserve with specific people he knew who were in an 18 to 20 year old age group and that the people that he saw the complainant with were generally 20 to 22 years of age;
• Mr. T.P. regularly saw the complainant at the house parties that were held in L[…] First Nation on weekends.
[46] In my view, the evidence noted above satisfies the evidentiary burden that is on the accused. On assessment of that evidence, I find that the Crown has not satisfied the persuasive burden that the accused did not take all reasonable steps. In the context and circumstances of that evidence, I am not persuaded beyond a reasonable doubt that a reasonable person would believe that the complainant was under 16 years of age and that further inquiries were necessary to ascertain that she was, in fact, 16 years of age or over.
Conclusion
[47] For the reasons given, the accused is found not guilty of counts one and two of the indictment.
_____”original signed by”
The Hon. Mr. Justice D. C. Shaw
Released: January 6, 2017
CITATION: R. v. L.C., 2017 ONSC 120
COURT FILE NO.: CR-15-0074
DATE: 2017-01-06
ONTARIO
SUPERIOR COURT OF JUSTICE
B E T W E E N:
Her Majesty the Queen,
- and -
L.C.
Accused
REASONS FOR JUDGMENT
Shaw J.
Released: January 6, 2017
/sab