CITATION: R v. H.L., 2017 ONSC 6205

COURT FILE NO.: CRIMJ(P)1850

DATE: 2017 10 17

ONTARIO

SUPERIOR COURT OF JUSTICE

B E T W E E N:

HER MAJESTY THE QUEEN

A. Fedak-Tarnopolsky, Counsel for the Crown

• and -

H.L.

A. Mamo, Counsel for the Accused

HEARD: September 19, 21, 22, 25, 26 and 27, 2017

REASONS FOR JUDGMENT

D.E HARRIS J.

[1] The accused, 21 years old, had fellatio and unprotected sexual intercourse in a Howard Johnson hotel room with the 14 year old complainant.

[2] The accused is charged with sexual assault and sexual interference. He is also charged with breach of recognizance as a result of allegedly violating a no communication condition on his sexual offence bail.

[3] The complainant and the accused met on Facebook four days before they had sex in the hotel room. Both are Punjabi. The messaging between them has been retrieved and was filed on this trial. There are two sets of messaging: one in the several days leading up and right after the sexual activity in the hotel room and one after his release on bail.

[4] The complainant testified by closed circuit link. Her two video statements, one from three days after the sexual contact and the other in the wake of the accused’s alleged breach of bail were admitted on consent under Section 715.1 of the Criminal Code.

[5] It was not disputed that the complainant has an intellectual disability and functions on the level of a 4-7 year old, depending on the nature of the task. An expert report from psychologist Dr. Finegan was filed to furnish additional detail. Her report declines to opine on the complainant’s capacity to consent to sex because Dr. Finegan felt it was a legal concept outside her area of expertise.

[6] An agreed statement of facts was filed. It was agreed, amongst other things, that the accused’s DNA was found on the complainant’s external genitalia and on vaginal swabs a day after the visit to the hotel.

[7] In the days before sexual intercourse in the hotel, besides the messaging, there were some conversations on the phone between the complainant and the accused and several relatively brief meetings in his car, one which included the complainant’s friend Mumina.

[8] The accused testified in his own defence and admitted to the sexual acts but explained that he thought that the complainant was 16 years old and that she consented. He was unaware of the complainant’s disability although he knew that she was “not smart.”

Count #1: Sexual Assault

[9] The issues with respect to this charge are:

1. Did the complainant, in light of her intellectual deficits, have the capacity to consent to sexual intercourse and fellatio with the accused?

2. If she was incapable of consenting, has the Crown proved beyond a reasonable doubt under Section 273.2(a) and (b) of the Code that Mr. L. did not believe she was capable of consenting or that he was reckless or wilfully blind. Lastly, did the Crown prove that he failed to take reasonable steps to ascertain her consent.

a) Issue #1: Capacity To Consent

S. 273.1(1) Meaning of "consent" Subject to subsection (2) and subsection 265(3), "consent" means, for the purposes of sections 271, 272 and 273, the voluntary agreement of the complainant to engage in the sexual activity in question.

S. 273.1(2) Where no consent obtained No consent is obtained, for the purposes of sections 271, 272 and 273, where

b) The complainant is incapable of consenting to the activity

[10] In the leading case of R. v. R. (R.), (2001) 2001 27934 (ON CA), 159 C.C.C. (3d) 11 (Ont. C.A.) (affirmed on other grounds: 2003 SCC 4, 171 C.C.C. (3d) 575) the trial judge found that the complainant did not have “full appreciation and knowledge of the consequences” to voluntarily agree to the sexual act. The complainant functioned at the level of an 8 to 10 year old. With respect to consent, as recounted at para. 44 of the appeal decision, the trial judge had said:

The issue of whether a person did or did not consent to a particular action or event is a question of fact to be determined in each individual case. It is not sufficient to simply determine whether an individual said yes when asked if they would submit to or engage in a particular activity. It must be determined whether that individual made such a decision of their own free will, fully aware of or apprised of the proposed activity and its consequences.

(Emphasis Added)

[11] Justice Abella, as she then was, dealt directly with the capacity to consent issue:

57 The appellant argued that before guilt is found based on an incapacity to consent, there should be some evidence to show with certainty that a person who is severely or moderately mentally disabled does not understand the sex act. This distorts how the issue of consent is to be approached… The issue … was not the capacity of persons with developmental disabilities to consent to sexual activity; rather, the issue was the capacity of this particular complainant to consent to sexual activity with the appellant...

[12] Justice Abella found that the complainant was incapable of consenting and, capacity being integral to consent, there had been no consent to the sexual activity: see para. 52.

[13] In R. v. C.(C.) [2013] O.J. No. 24, 2013 ONSC 72, there was expert evidence demonstrating that the complainant’s “thinking, understanding, and reasoning skills both verbally and nonverbally” were at the level of a 3 to 5 year old. Justice Spies found the complainant was incapable of consenting,

168 Accordingly, even though the evidence of Mr. C. raises a reasonable doubt as to whether or not S. may have said "yes" to sexual intercourse with him of her own free will, by her words or actions, I am sure that when she made that decision she was not fully aware of or apprised of the proposed activity; namely sexual intercourse, nor did she have a full appreciation and knowledge of the consequences of that activity. Based on the definition of consent set out in R.R. I am satisfied beyond a reasonable doubt that S. was incapable of giving her consent to sexual intercourse with Mr. C. Her developmental disability most certainly made it impossible for her to make an informed decision; she was incapable of understanding the nature of the act, its possible consequences and the risks of unprotected sexual intercourse.

[14] I would note that the incapacity induced by intoxication cases articulate a similar standard: informed consent, an understanding of the risks and consequences, an understanding of the sexual nature of the act and the right to choose not to participate: R. v. R. (J.), 2006 22658 (ON SC), [2006] O.J. No. 2698 (S.C.) at paras. 41-45.

[15] Turning to this case, on behalf of the accused, Ms Mamo urged caution in assessing the question of capacity. A decision that an intellectually disabled complainant lacks capacity to consent to sex could drift into paternalism and be insensitive to the right of self-determination and sexual choice.

[16] I am also mindful of the somewhat nebulous quality surrounding the issue of capacity with a complainant of intellectual disability. An adult’s incapacity to consent based on intoxication is in most cases relatively easy to measure. If unconscious or extremely intoxicated, the complainant lacks capacity: R. v. A. (J.) 2011 SCC 28, [2011] 2 S.C.R. 440 at para. 36; R. v. R. (J.), supra at para. 43.

[17] In contrast, it will be a rare case in which there is clear, direct evidence showing incapacity to consent. Proof will almost inevitably be by circumstantial evidence.

[18] Despite these concerns, in the majority of cases the incapacity concept is not overly difficult to apply even, as in this case, where there is no expert evidence on the issue. Here, I have a wealth of circumstantial evidence on capacity. I have watched the two Section 715.1 videos of the complainant. I have seen the complainant testify viva voce in this trial and be skilfully examined by both counsel. I have the expert psychological report from Dr. Finegan.

[19] Although there will be difficult cases in the undifferentiated grey area, this is not one, in my view. The inference of incapacity derived from the primary evidence is compelling. In the end, I find that the complainant was incapable of consenting in the circumstances in which the sexual activity took place.

[20] Looking at inherent capacity first, my perception of the complainant is that she is profoundly intellectually challenged. Without exception, all the evidence I have supports this conclusion. One could look at one snippet of the videos or one passage from the viva voce evidence and this would be plain. Cumulatively, the evidence is indisputable. The complainant’s low functioning is both readily apparent and pervasive.

[21] I will mention a few examples. There are many more. Going through the evidence chronologically, the text messages between the complainant and accused reveal a girl of 14 working at a very elementary mental level. Making allowance for the somewhat foreign and culturally specific vernacular of youth communicating on Facebook, there was a general lack of coherence to quite a number of the complainant’s messages. On April 16, 2013 she wrote, “Heybabe I love yours o much babe me and u was kiss on ur lip.” Later on the same day she wrote, “Okay babe it hard for clean me and [the accused’s name] love both.” The accused wrote back to say that he “dunno” what she wrote. She asked what “mean duno.” He said don’t worry, it was okay.

[22] At one point in messaging after the hotel liason, she said that she had a baby and was pregnant. She did not. This was false. It was not clear why she said it.

[23] There were a lot of “love u” messages, referring to him as hot and sexy and calling him “babe.” While that may not be exceptional in the context of youth messaging or tweeting, the conversation never went much beyond this very basic level of discourse. The low level of linguistic ability and maturity is plain to see.

[24] The complainant’s video statements were also revealing. Here I am drawing primarily on the transcripts as an aid to understand the videos themselves which we viewed in court and which are the actual evidence. To mention just a few examples, the complainant had a very poor sense of time. When asked how long it took her and the accused to drive to the hotel from her school where he picked her up, she said “three, four.” When she was asked three or four what, she said she could not remember. She could not remember when they had sex although it was in fact only three days before. Although the police interview was less than one hour in length, less than a half hour into it, she said she thought she had been there for three hours.

[25] When asked what sex means to her, she said initially that she did not remember. When asked what the two of them did, she initially said he put his “dick on my vagina.” When asked what a condom is she said, “Condom means that girls do to boys to put his stuff on his penis.” When asked what they are for she said, “Because that people get and they get pernick [sic] and stuff like that.” She seemed to recognize that it prevented pregnancy later in the interview.

[26] She said that the idea to have sex was all the accused’s. She could not remember if she knew they were going to have sex at the hotel.

[27] She said that she put “my mouth in his penis” and did something with it but could not remember what she was doing with it.

[28] It was her evidence that a condom was not used during sexual intercourse. Something came out of his penis on to her vagina but she did not know what it is called.

[29] She called an elevator an “alligator” and had to be corrected by the police officer.

[30] At trial, the complainant was a charming, utterly ingenuous witness. She is attending a small beauty school in Woodstock and learning cosmetology and hairstyling. When she was told during this trial that she was finished her evidence, she beamed and gave a double thumbs up.

[31] The Crown launched an unsuccessful application to proffer expert evidence to demonstrate that she was susceptible to suggestion and would often acquiesce with no real resistance or independent thought to leading questions put to her. A ruling was made that this evidence was unnecessary. I am able to fully instruct myself with respect to the proper approach to this evidence: see R. v. McIntosh (1997), 1997 3862 (ON CA), 35 O.R. (3d) 97, [1997] O.J. No. 3172 (C.A.), at pp. 101-103 O.R., leave to appeal to S.C.C. refused R. v. McCarthy, [1998] 1 S.C.R. xii, [1997] S.C.C.A. No. 610 (leave sought by second appellant in McIntosh, Mr. McCarthy), R. v. D.D., 2000 SCC 43, [2000] 2 S.C.R. 275.

[32] Sure enough, the complainant like most children of her mental age, was very open to suggestion. I also found her memory to be quite unreliable. In the videos and in her viva voce testimony, she was often in a position where she simply did not appear to know the answer. My impression was that she would often guess or answer that she did not know.

[33] She had all the guile of a five year old child. That is to say, not much. What there was appeared to me to be readily transparent. Originally, in the video statement, she was reluctant to get the accused in trouble, for example. But she eventually wanted to tell her story and it came out despite her reluctance.

[34] When asked in-chief how old you have to be to date someone 20 years old, the complainant said 25 years old.

[35] The complainant said that she was not sure who decided not to use a condom. She did not know how to tell whether someone is wearing a condom although she seemed to have a general idea of the purpose of a condom, probably from the sex ed course she had recently taken. She was not sure who makes the decision to use a condom. She was not sure how the decision to have sex is made or who makes it. In this case, she did not remember having a conversation with the accused about having sex before they did.

[36] Referring back to the video and the discussion about what comes out of a penis, the complainant did not know how babies are made nor did she know that people can get sick from sex. The complainant did not know why women have periods although she did know that periods stop during pregnancy.

[37] The expert report of Dr. Finegan was admitted for the purpose of detailing the complainant’s intellectual disability. She assessed the complainant with an intellectual disability in the moderate range meaning that 99.9% of people her age (almost 19 years old at the time of the report) have higher IQ scores.

[38] The complainant’s language expression was significantly impaired. Her single word vocabulary understanding was at a 7 year old level but her sentence understanding was at a 4 year old level. Listening to paragraph length stories, she was able to get only 5 of 15 questions about the content of the paragraph correct. Verbal expression and memory was at a 4-1\2 year old level to a 6 year old level. Organizational abilities and strategy formation, along with social understanding and perception, were at a similar level. Her academic achievement was at a Grade 1 or early Grade 2 standard.

[39] In conclusion, Dr. Finegan said that the complainant’s comprehension levels were at around the age 4 to 5 level.

[40] I conclude from the evidence that the complainant had an exceedingly limited capacity to consent. I infer this from her approximate Grade 1-2 mental functioning. She did not understand or appreciate the sexual acts or the potential consequences. She did not know how babies are created and she did not understand that it is possible to contract sexually transmitted diseases.

[41] I would be careful not to ground my conclusion of lack of capacity solely on the complainant’s lack of knowledge with respect to the potential physiological consequences of sexual intercourse. It is possible, although no doubt anomalous, to conjure up young adults who lack an understanding of the basic facts of sexual education but nonetheless have the capacity to consent to sex. The lack of understanding of consequences is a significant component of my incapacity conclusion but is not definitive in itself.

[42] This case is distinguishable from R. v. Prince 2008 CarswellMan 479, 2008 MBQB 241. Although the complainant in that case was assessed at the 6 to 8 year old mental functioning level, the trial judge found that she was capable of consenting. The trial judge found that the complainant functioned at times “far beyond her apparent mental capabilities.” (para. 56) This was premised on his observations of her in court, that she had lived independently for years, had been able to instruct counsel on a criminal charge, knew and understood sex and its consequences and was assertive and knew her own mind.

[43] The expert evidence and my observations of her put this complainant on a much lower level then the complainant in Prince.

[44] Beyond the inherent incapacity, the circumstances in which the sexual activity occurred were not conducive to an effective capacity to consent. The complainant was raised in a strict household and she testified her parents did not like her to go out. She had only one friend, Mumina. She testified that the accused’s blandishments made her feel good.

[45] Everything in this case happened very quickly--in a matter of four days after the initial digital meeting on Facebook, culminating in the hotel liaison. There was very little lead up or warning before the sexual activity in the hotel room.

[46] There is nothing objectionable about sexual relations between virtual strangers. Such casual physical relationships are common. But it is entirely different with a complainant suffering from an intellectual disability.

[47] There was a total absence of any consideration whether there should be protection when the complainant had sex with the accused. She did not participate in this decision not to have protection in any way.

[48] Whether this complainant could consent to sexual activity in a different situation is quite beside the point. The fact is, given her profound inherent challenges and the situation under which she had sexual intercourse and fellatio with the accused, which she said was the first time she had engaged in sexual activity, she lacked the capacity to consent. Any ostensible consent was ineffectual. I find that the actus reus of sexual assault has been proven by the Crown beyond a reasonable doubt.

[49] The accused’s view of the complainant’s capacity is immaterial at this stage. As consent is purely subjective so too is capacity to consent. It is personal to the complainant: see R. v. Ewanchuk 1999 711 (SCC), [1999] 1 S.C.R. 330, 131 C.C.C. (3d) 481 at paras. 25-26 per Major J.

b) Issue #2: The Mens Rea of the Offence

S. 273.2 Where belief in consent not a defence

It is not a defence to a charge under section 271, 272 or 273 that the accused believed that the complainant consented to the activity that forms the subject-matter of the charge, where

(a) the accused's belief arose from the accused's

(ii) recklessness or wilful blindness; or

(b) the accused did not take reasonable steps, in the circumstances known to the accused at the time, to ascertain that the complainant was consenting.

[50] Did the accused know that the complainant lacked the capacity to consent? In light of the somewhat difficult and nebulous nature of this legal question, and based on the complainant’s evidence that she uttered no misgivings to the accused, together with his evidence on the issue, I do not believe that the accused knew of the complainant’s inability to consent. He did not appear to be a stereotypical predator who fully appreciated her incapacity and deliberately targeted her for that reason.

[51] Recklessness is the mental state of knowing that a particular result may well come about but going ahead despite the possible consequences: R. v. Sansregret 1985 79 (SCC), [1985] 1 S.C.R. 570, 1985 CarswellMan 176 at para. 22. As recklessness requires knowledge, my finding on recklessness is no different than my finding concerning knowledge itself. The accused did not know of the complainant’s incapacity nor was he reckless in the legal sense with respect to capacity to consent.

[52] In moving to the concept of wilful blindness, the common law imputes or deems knowledge if the accused fails to investigate after his suspicion is raised. This is distinct from actual knowledge: R. v. Sansregret, supra at para. 21-23, R. v. Briscoe 2010 SCC 13 at paras. 21-25. As was said in Briscoe at para. 21:

The doctrine of wilful blindness imputes knowledge to an accused whose suspicion is aroused to the point where he or she sees the need for further inquiries, but deliberately chooses not to make those inquiries. See R. v. Sansregret, 1985 79 (SCC), [1985] 1 S.C.R. 570 ((S.C.C.)), and R. v. Jorgensen, 1995 85 (SCC), [1995] 4 S.C.R. 55 ((S.C.C.)). As Sopinka J. succinctly put it in Jorgensen (at para. 103), “[a] finding of wilful blindness involves an affirmative answer to the question: Did the accused shut his eyes because he knew or strongly suspected that looking would fix him with knowledge?”

[53] In R. v Esau, 1997 312 (SCC), [1997] 2 S.C.R. 777, 1997 CarswellNWT 11, Justice McLachlin, as she then was, in dissent enunciated at paragraph 70 the common law test for wilful blindness in the context of sexual assault:

The term wilful blindness connotes a deliberate avoidance of the facts and circumstances. It is the legal equivalent of turning a blind eye, of not seeing or hearing what is there to hear or see. It is the making of an assumption that the complainant consents without determining whether, as a matter of fact, the complainant consents. Blindness as to the need to obtain consent can never be raised by an accused as a defence, since the need for consent is a legal requirement which the law presumes the accused to know. On the facts, wilful blindness to conduct or language which might support an inference of non-consent is similarly of no avail.

(Emphasis in Original)

[54] The wilful blindness in Section 273.2(a) is a slight modification of the common law. The pertinent part reads, “It is not a defence … that the accused believed that the complainant consented … where the accused's belief arose from the accused's wilful blindness.” While the premise of both the common law and statutory versions is to impose a duty to investigate, the common law imputes mens rea from suspicion while Section 273.2(a) negates an honest belief held by the accused itself if arrived at by wilful blindness. The duty imposed on the accused is significantly more onerous than under the common law. Normally, a true honest belief gained by whatever means would be a defence under our criminal law.

[55] There was a similar theme in the common law but it is made more explicit and emphatic under Section 273.2(a): see Esau, supra per McLachlin J. at para. 80.

[56] The statutory variant of wilful blindness must be read together with the obligation on the accused under Section 273.2(b) of the Code to “take reasonable steps, in the circumstances known to [him] at the time, to ascertain that the complainant was consenting.”

[57] The statutory prohibition on wilful blindness requires fuller awareness and appreciation of the issue of consent. Passivity or blitheness is not permitted. Reasonable steps goes even further and places an evidentiary onus on the accused to actively delve into the issue of consent. It is to be evaluated in the full context and on a reasonable person, objective basis but with the caveat that it is based on the “circumstances known to the accused at the time.”: R. v. Malcolm (2000), 2000 MBCA 77, 147 C.C.C. (3d) 34 (Man. C.A.); leave to appeal to S.C.C. refused [2001 CarswellMan 14 (S.C.C.); R. v. Cornejo (2003), 2003 26893 (ON CA), 181 C.C.C. (3d) 206, 2003 CarswellOnt 4679 (Ont. C.A.) at paras. 18-23.

[58] To summarize the convolutions of the mens rea of wilful blindness in Section 273.2(a) and (b), if an accused suspects a lack of capacity or consent and turns away from further inquiry, knowledge is imputed under the common law wilful blindness doctrine. By definition, reasonable steps will also be lacking.

[59] If an accused believes there is consent but this belief is arrived at by closing his mind to contradictory circumstances, the statutory form of wilful blindness will be established. The honest belief of the accused is void. Reasonable steps will necessarily also be absent.

[60] Was the accused wilfully blind and did he take reasonable steps to ascertain capacity to consent?

[61] In order to bolster her mens rea argument on the sexual assault, the Crown relies on a flurry of text messages initiated by the complainant on the day of the accused’s arrest, two days after she gave her videotaped statement. This, Ms Fedak-Tarnopolsky argues, is important after-the-fact conduct. It demonstrates a propensity to engage in further sexual activity despite being told by the police of the complainant’s intellectual deficits.

[62] Towards the end of the exchanges which took place from April 23, 2013 to May 8, 2013, the accused was urging the complainant to meet him behind a Mark’s Work Warehouse store. She appeared ready and willing to do so.

[63] These messages were a blatant violation of the accused’s bail order not to communicate with the complainant. On the witness stand, the accused acknowledged that the messaging was unwise but testified he wanted to tell the complainant in person that he was not a “creep” and that he did not know she was underage. He had also been told by the police that she had a severe mental disability and wanted to make amends. Defence argued that I should believe the accused’s explanation and draw no inference damaging to the accused.

[64] I should say at the outset that I do not believe the accused’s version or have a reasonable doubt about it. If he really wanted to atone for what he had done, he could easily have expressed this sentiment in the text messages. But he did not. It was implausible that the accused would hold back his feelings of guilt because he intended only to convey them upon a personal face to face meeting.

[65] A meeting for a sexual purpose seems a much more likely explanation. In the end, however, I have two major problems in making the sexual purpose finding. First, the accused asked the complainant to bring her friend from her special education class, Mumina. Although she had been present when the accused and complainant talked about sex and kissed in the accused’s car prior to the hotel liaison, the request to bring Mumina does not fit well with a sexual purpose.

[66] Second, besides the purposes advanced by the accused and the Crown, there are other potential explanations that come to mind. The most likely of these is that the accused wanted to dissuade the complainant from testifying against him.

[67] In my view, in the end, the encouraged presence of Mumina and the other possible purposes for the meeting frustrate drawing the inference the Crown seeks. Without the intermediate conclusion that the meeting was for a sexual purpose, the after-the-fact conduct does not avail the Crown.

[68] I should add parenthetically that this evidence is somewhat different than the usual after-the-fact conduct evidence previously termed “consciousness of guilt” evidence in the jurisprudence. The general tenor of this type of evidence is of concealment, lies and behaviour to avoid apprehension or cast blame away from him or herself.

[69] Instead, in this case, the Crown relies on the evidence to show a propensity to ignore doubts about the complainant’s consent and her capacity to consent to sexual activity. Thus the evidence has more in common with discreditable conduct evidence than with true consciousness of guilt evidence: see R. v. Handy 2002 SCC 56, [2002] 2 S.C.R. 908, [2002] S.C.J. No. 57, 160.

[70] I need not delve into this any further, however. Both consciousness of guilt evidence and discreditable conduct evidence rely on circumstantial inferences drawn from the accused’s conduct: R. v. White 1998 789 (SCC), [1998] 2 S.C.R. 72 at para. 27, R. v. White 2011 SCC 13, [2011] 1 S.C.R. 433, R. v. Sweitzer 1982 23 (SCC), 1982 CarswellAlta 552, [1982] 1 S.C.R. 949 at Carswell paras. 6-11. Here, the predicate finding of fact needed to launch the process of inference is absent. Since I am unable to arrive safely or with any confidence at the conclusion of a sexual purpose, the inference drawing process comes to a dead end. I cannot use it towards the Crown proof of the allegations.

[71] Despite concluding that this evidence does not avail the Crown, it is my view that on the other evidence it is proved beyond a reasonable doubt that the accused was wilfully blind and failed to take reasonable steps to ascertain consent. The complainant’s deficits are conspicuous. I have described them above. To a person of even modest observational powers, which the accused clearly is, it would be obvious based on the text messages, the brief meetings and the lead up to sexual intercourse in the hotel room.

[72] The accused’s mental element was the common law form of wilful blindness; the accused suspected that there was a capacity issue and turned his mind from it. Nor did he “take reasonable steps” or indeed any steps of real significance under Section 273.2(b) to ascertain consent. Most prominent amongst “the circumstances known to him” were the complainant’s serious intellectual deficits.

[73] In his testimony, the accused said that he was a middling high school student with grades in the 50’s and 60’s. He said that he suffers from ADHD, depression and anxiety. The accused says that he probably has a learning disability.

[74] I believe that the accused most likely has these disadvantages. The Crown did not mount a strong challenge in cross-examination in this regard. On the witness stand the accused appeared reserved with quite a flat affect. This, at least to some degree, confirmed the accused’s self-description.

[75] But I believe the accused is an intelligent person. He was very well spoken in the witness box. He was responsive to the questions put to him and was easily able to follow what was asked of him.

[76] He has a good vocabulary, using the words “reciprocal” and “introvert” with no prompting from counsel. He did not disagree when the prosecution put to him in cross-examination that he possesses superior reasoning and verbal skills. These strengths were evident when he testified.

[77] The accused admitted that he was aware that the complainant was “not smart.” It was his evidence that he did not think too much about it. He had little practical choice but to admit that she did not seem smart given his relative acuity and her obvious deficits. He knew after he first met her that she was in a special needs class. In his testimony, he attributed her error-riddled texting to poor typing. Her verbal expression impairments he attributed to English being her second language.

[78] These were both attempts at minimization, in my view. I reject them. While there were many typos in the texts, clearly there was a lot more going on hindering her expression. I have cited the texts from the complainant which made no sense. The accused expressed befuddlement at the time.

[79] I did not perceive any of the complainant’s expression difficulties as being significantly based on language.

[80] Verbal expression is what we notice, right after physical appearance, upon meeting someone. The complainant’s in-person presentation would have been similar to her presentation when she testified and was interviewed on video. I believe that a person of the accused’s intelligence would have known there was something significantly different about the complainant upon minutes if not seconds of meeting her.

[81] I am not left in a reasonable doubt by the accused’s explanations. I do not give them credence. Returning to R. (R.), supra, Justice Abella’s words with respect to the mens rea are apt here:

Under any circumstances, there is a responsibility, prior to engaging in sexual activity, to take reasonable steps to ascertain consent: Criminal Code s. 273.2(b). But in circumstances such as these, where one of the participants has demonstrable mental limitations, the threshold of responsibility escalates exponentially. This is not to suggest that persons who are developmentally disabled cannot consent;[footnote omitted]rather, it requires that prior caution be exercised to avoid the exploitation of an exceptionally vulnerable individual.

[82] The accused has led a sheltered life and was raised, according to his evidence, by strict Punjabi parents. He had very limited social contact with girls or women and according to him, could not even carry on a conversation with women outside his family. He had no previous sexual experience.

[83] He could not resist the good fortune which had befallen him. A lovely bubbly young girl, also Punjabi, was very happy to meet him and seemed eager to become intimate with him. However, she must have appeared strangely childlike to him. Despite being aware of this, the temptation proved too much. The accused did not stop and resist his ardour.

[84] Within days of the sexual acts in the hotel, the accused messaged that he wanted to go to the hotel again, evidently for the same purpose. Based on the agreed statement of facts and the other evidence, he spent probably a little more than three hours with the complainant on the day of the hotel visit. This was more than enough time to further the accused’s well established understanding of her intellectual disability. Yet he still continued to pursue her sexually.

[85] He should have known better and I find he did in fact know better. A finding of guilt will be entered on the sexual assault count.

COUNT #2: SEXUAL INTERFERENCE

S. 151. Sexual interference Every person who, for a sexual purpose, touches, directly or indirectly, with a part of the body or with an object, any part of the body of a person under the age of 16 years

(a) is guilty of an indictable offence and is liable to imprisonment for a term of not more than 14 years and to a minimum punishment of imprisonment for a term of one year

[86] I do not believe there is any issue raised with respect to the act element of this count. The complainant was under the age of 16 years (she was 14) and there was touching for a sexual purpose.

[87] In these circumstances, consent is not a defence by reason of Section 150.1(1) and (2.1):

S. 150.1(1) Consent no defence 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

S. 150.1(2.1) Exception — complainant aged 14 or 15

If an accused is charged with an offence under section 151 or 152, subsection 173(2) or section 271 in respect of a complainant who is 14 years of age or more but under the age of 16 years, it is a defence that the complainant consented to the activity that forms the subject-matter of the charge if the accused

(a) is less than five years older than the complainant; and

(Emphasis Added)

[88] First of all, I have held above that there was no capacity to consent. So the first precondition in 2.1 has been disproven. But beyond this, Section 2.1(a) only permits a consent defence if the accused is less than five years older than the complainant. In this instance, the difference in age is more than five years.

a) Issue #1: Mistake of Age

[89] The defence to this count arises out of subsection 4:

S. 150.1(4) Mistake of ageIt 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.

[90] While consent and the accused’s belief with respect to it was the focal point of the sexual assault count, the focal point under this count is the complainant’s age and the accused’s perception of it.

[91] Normally under our criminal law, an honest mistake concerning age—just like mistake as to consent-- would negate the mens rea for the offence and constitute a complete defence: R. v. Pappajohn 1980 13 (SCC), [1980] 2 S.C.R. 120 in the context of mistake of fact re consent. But Parliament has modified this general state of affairs and required the accused take “all reasonable steps” to ascertain age.

[92] It was the Crown’s position, very forcefully advanced, that it has been demonstrated to the requisite standard that the accused was told and must have believed that the complainant was 14 years old, her true age. Therefore the subsection 4 mistake of age defence is not available.

[93] I agree in large part with this argument. I agree that by far the most reliable evidence on the point is that of the complainant given in her first Section 715.1 video just three days after the events. She said there that the accused thought she was 14 years old because he asked her and she told him that was her age. Particularly in view of her intellectual disability, an unprompted, open ended question in such close proximity to the event is of much greater reliability than the complainant’s subsequent answers.

[94] In her viva voce evidence in chief before me, she did not think she told the accused her age but I detected significant uncertainty on the question.

[95] In cross-examination, when defence counsel suggested that she had said 16 years old at the preliminary hearing, she adopted this. Finally, in re-examination, when asked by the Crown whether the correct answer was 14 or 16, she answered it was probably 14.

[96] I agree with the Crown that a leading question suggesting the answer years after the event was likely to yield unthinking agreement from this complainant. For one thing, there is a good chance with her memory impairment that she could not remember. Furthermore, she was likely to simply go along with the questioner as she is not assertive or strong willed. She may well have been apprehensive contradicting a questioner who was self-assured and in a position of authority towards her.

[97] I accept the general proposition that children are more suggestible than adults and that this complainant, in particular, was extremely suggestible. She was likely to acquiesce to leading questions.

[98] The one disagreement I have with the Crown, however, is a fundamental one. Given the record as I have described it, I cannot see how a responsible finder of fact could conclude that the accused was told by the complainant that she was 14 years old, not 16 years old, to the high degree of certainty required. I cannot totally discount the testimony with respect to the complainant telling the accused that she was 16. When I incorporate the suggestibility and likelihood of automatic acquiescence, this evidence does still not deflate to zero. It maintains some residual weight.

[99] The Crown argues that in every case of a leading question, the complainant’s evidence is unreliable to the point of having no weight whatsoever. It is said that if I had let in the expert evidence, this would have been made plain.

[100] I am highly skeptical that such a categorical, blanket approach to evidence, whether aided by an expert witness or not, is ever permissible. It is certainly wholly inappropriate here based on my impression of the complainant. She was a very malleable witness but she was not completely without a mind of her own.

[101] I think it unlikely that the complainant said she was 16 but I cannot say that it is outside the realm of reasonable possibility. I am not convinced to a moral certainty when taking all the pertinent evidence into account that the complainant said 14. If she said she was 16, I think there is a reasonable doubt that the accused believed that this was her age.

[102] The accused testified that he was told by the complainant that she was 16 and in grade 11. I put little stock in this, especially that she was in grade 11, a difficult falsehood for the complainant to produce spontaneously. Ultimately, however, it need not be scrutinized too carefully as based on the complainant’s evidence as detailed above, I have a reasonable doubt.

[103] The last question is whether the accused took “all reasonable steps” to ascertain the complainant’s age. The regular criminal standard of proof applies; the Crown must demonstrate that all reasonable steps were not taken beyond a reasonable doubt.

[104] The case law directs a finder of fact to take into account the full context and circumstances. The inquiry is highly fact specific: R. v. George 2017 SCC 38, R. v. Duran, 2013 ONCA 343, 3 C.R. (7th) 274 (Ont. C.A.), at para. 52; R. v. K. (R.A.) (1996), 1996 7277 (NB CA), 106 C.C.C. (3d) 93 (N.B. C.A.) , at p. 96, R. v. Saliba 2013 CarswellOnt 18359, 2013 ONCA 661, [2013] O.J. No. 5887 at paras. 25-32, R. v. Dragos (2012), 2012 ONCA 538, 291 C.C.C. (3d) 350 (Ont. C.A.), at paras. 29-33, R. v. P. (L.T.), 1997 12464 (BC CA), [1997] B.C.J. No. 24, 113 C.C.C. (3d) 42 (B.C.C.A.) at paras. 12-20, R. v. Chapman 2016 CarswellOnt 6578, 2016 ONCA 310,.

[105] A few points of importance to this case emerge from these authorities:

a. The subsection focuses on the steps taken to ascertain age as opposed to the belief subjectively held by the accused. After assuming there is an honestly held belief in age the provision goes on to ask whether a sufficient due diligence investigation was undertaken by the accused. “All reasonable steps” suggests a higher responsibility than “reasonable steps” from Section 273.2(b) but the difference is too subtle and difficult to articulate or for it to amount to much.

b. For a trial judge to focus on the accused’s belief with respect to age instead and to the exclusion of steps taken to ascertain age is a fundamental error in law: see Saliba, supra at paras. 25-26,30.

c. “The trier of fact must compare the steps…taken by an accused to determine the true age of a complainant with the steps that a reasonable person would have taken in those circumstances:” Saliba, supra at para. 28. Generally speaking the more objectively reasonable a belief as to age, the less onerous will be the reasonable steps expected of an accused.

d. It would be wrong to conclude that asking age is, in every case, necessarily sufficient in light of a young person’s well-recognized motivation to mislead about their age: George, supra at para. 9. Again, it will depend on the circumstances.

e. The defence cannot rely on the sexual activity itself; it is only evidence predating the activity which can be considered: George, supra at para. 18.

[106] There are several key features of the context in this case. First, the accused believed that the complainant was 16 years old. This is on the cusp of illegal territory. In some circumstances, like in the case here, a purported age just over the legal limit itself warrants further exploration. This is particularly true in light, as suggested by the Supreme Court in George above, of the well-recognized motive on the part of young people in sexual situations to say they are older than they are.

[107] The main difficulty for the accused is that he knew the complainant appeared “not smart” and communicated on the level of a much younger person. While defence counsel argued that this was just a matter of believing that the complainant had a learning disability, I cannot separate this awareness from the question of his understanding of the complainant’s age. It would be virtually impossible to tell whether this was a result of the complainant being significantly younger than she purportedly had said she was or from a significant developmental problem, or both.

[108] A reasonable person in the position of the accused, having appreciated this, would have been on notice. The external manifestation of the complainant’s intellectual disability was a clarion call, a “warning sign” or “red flag” that ought to have led the accused to further investigation: Dragos, supra at paras. 59, 62 66.

[109] Despite the circumstances which should have put him on high alert, the accused did virtually nothing else to ascertain age. He said that the complainant claimed to have had previous boyfriends and said that she had engaged in intercourse in the woods. Besides being prohibited on its face by Section 276 of the Code, I do not believe him nor do I have a reasonable doubt about this part of his evidence. In any case, at most these matters could have very minimally bolstered his belief in her age. As in Salibas, supra, a belief is not steps to ascertain age under the mistake of age provision. The fact is, the accused did virtually nothing to ascertain her age. The circumstances cried out for him to do much more.

[110] An easy “reasonable step” to assist in ascertaining age in cases of doubt and ambiguity would be to request the complainant produce identification. Of course, the complainant may not be able to do so. Nonetheless, the accused will still have made efforts to attempt to confirm age: see Dragos, supra at paras. 61-67. “Reasonable steps” of this kind may not make for the most elegant courtship rituals but when there is an ambiguity about age, the law nonetheless requires it.

[111] I find the accused guilty of the sexual interference count.

CONCLUSION

[112] The accused is guilty of sexual assault and sexual interference. Defence counsel made no submissions on the breach of recognizance count. The accused was on a bail requiring him not to communicate with the complainant. Over about a two week period, he communicated frequently with the complainant over Facebook. He is found guilty of the breach of recognizance count as well.

D.E HARRIS J.

Released: October 17, 2017

CITATION: R v. H. L., 2017 ONSC 6205

COURT FILE NO.: CRIMJ(P)1850

DATE: 2017 10 17

ONTARIO

SUPERIOR COURT OF JUSTICE

B E T W E E N:

HER MAJESTY THE QUEEN

• and –

H.L.

REASONS FOR JUDGMENT

D.E HARRIS J.

Released: October 17, 2017