Court File and Parties

COURT FILE NO.: 69/17 DATE: 2018-09-20

ONTARIO SUPERIOR COURT OF JUSTICE

BETWEEN:

HER MAJESTY THE QUEEN – and – W.G.

Counsel: Sean Bradley, for the Crown David Landesman, for W.G.

HEARD: May 7-9, 14-16, 2018

REASONS FOR JUDGMENT

Gray J.

[1] W.G. is charged that between February 1, 2015 and April 30, 2015, he did sexually assault L.S., contrary to s. 271 of the Criminal Code, and that between the same dates he committed sexual interference with L.S., contrary to s.151 of the Code.

[2] At all material times, L.S. was 15 years of age. Accordingly, the absence of consent is not relevant. There is no dispute that sexual contact between W.G. and L.S. was consensual, in the sense that both parties wanted sexual contact to occur. The only live issue is whether W.G. had an honest but mistaken belief that L.S. was at least 16 years of age. That being the case, s.150.1(4) of the Code applies. It provides as follows:

150.1(4) It is not a defence to a charge under section 151 or 152, subsection 160(3) or 173(2), or section 271, 272 or 273 that the accused believed that the complainant was 16 years of age or more at the time the offence is alleged to have been committed unless the accused took all reasonable steps to ascertain the age of the complainant.

Background

[3] At the times material to the charges, W.G. was 50 years of age. He is married, with one son. He is now separated from his wife.

[4] At the times material to the charges, L.S. was 15 years of age, and was in Grade 10 at a high school in Oakville.

[5] L.S. was born female, but at the times relevant to the charges was in the process of transitioning to becoming a male. He identifies as a male.

[6] Sometime in late 2014, or early 2015, L.S. opened an account on Grindr, an electronic service that caters to males looking for same-sex sexual relationships. In order to open a profile, the person opening an account must apparently be 18 years of age or more. However, it is acceptable for the person opening an account to leave the person’s age blank on the profile. L.S. did so.

[7] W.G. also had a profile on Grindr. He said that his age was 48, even though he was 50 at the time.

[8] An account holder could identify as being interested in one or more “tribes”. L.S. did so, indicating that he was interested in the “twink” tribe (being younger-looking men) and another tribe, being older men.

[9] W.G. and L.S. came into contact with each other through Grindr, and after some electronic communication through Grindr they agreed to meet in person. They did so, and commenced a sexual relationship.

[10] While there is some minor dispute as to how many occasions occurred on which the parties actually engaged in sexual contact, they are generally agreed that the relationship lasted about six weeks. Sexual contact included anal, vaginal and oral sex. It was consensual. It occurred at a hotel, at W.G.’s office, and in W.G.’s vehicle.

[11] There is a dispute as to whether the sexual relationship continued after L.S. finally disclosed to W.G. that he was, at the relevant time, 15 years of age. L.S. contends that sexual contact continued, while W.G. testified that he refused to have any further sexual contact with L.S. after L.S. disclosed that he was 15 years old.

[12] Before the parties commenced a sexual relationship, there is no dispute that L.S. told W.G. that he was 18 years old. He told him he was in a “lap” year in high school, which would be the equivalent of Grade 13. He told W.G. that he lived with his parents, and had a younger brother. He told him he had been born a girl and was transitioning to becoming a male. L.S. sent some photographs of himself. They had some discussion about sexual matters, but the details of those discussions were not described. W.G. testified that when he and L.S. met each other in person, L.S. appeared exactly as he had appeared in the photographs.

[13] L.S. was also having a sexual relationship with another older male, named “Steve”, which apparently lasted about three weeks. At some point during that relationship, L.S. acquired a sexually transmitted disease (STD), which W.G., in turn, believed he had acquired from L.S. Both L.S. and W.G. received treatment for the STD. W.G. received treatment in Niagara Falls, New York. There was some period, perhaps a week or ten days, during which they abstained from sex.

[14] W.G. testified that towards the end of the period of contact with L.S., he asked L.S. what he intended to do after his lap year in high school. He testified that L.S. became nervous, and eventually admitted that he was only 15 years old. It was at that point that W.G. testified that he discontinued any sexual relationship with L.S. L.S., on the other hand, testified that after he made the disclosure of his true age, the sexual relationship continued.

[15] Counsel for the Crown called, as a number of witnesses, friends and classmates of L.S., who testified as to their knowledge of the sexual relationship between L.S. and W.G., and over what period that relationship occurred. Anything those witnesses said about the relationship was purely hearsay in nature, and clearly cannot form part of the Crown’s case. However, to the extent that those witnesses testified as to conversations with L.S. that differed from evidence L.S. gave before me, they have relevance as to the credibility and reliability of L.S.’s evidence.

[16] Counsel for W.G. also called as a witness a forensic psychiatrist, who testified as to the effects of drug use on the perception, mood, cognition and memory of an adolescent who regularly uses various drugs.

[17] L.S., in his evidence, acknowledged that he regularly used various drugs, including cannabis, methamphetamine, and drugs that are used for the treatment of ADHD, a condition suffered by his younger brother. The expert witness testified that the regular use of such drugs by a young person can affect that person’s memory of events.

[18] L.S. testified that he did not wish to harm W.G. He knew that having sexual relations with someone W.G.’s age would be unlawful, and he made sure the relationship, and W.G.’s identity, were not disclosed. However, after the relationship ended he felt guilty and confused, and he consulted a school counsellor. The counsellor advised him that she was then required by law to advise the authorities, which she did. L.S. was interviewed by the police, and W.G. was ultimately charged.

Submissions

[19] Mr. Bradley, counsel for the Crown, submits that W.G. can be found guilty of the offences in one of two ways.

[20] First, W.G. can be found guilty of both offences if I find, beyond a reasonable doubt, that he was advised by L.S. that he was 15 years old, and the sexual relationship continued after W.G. was so advised.

[21] Second, even if W.G. honestly believed that L.S. was at least 16 years of age, he must be found guilty if, as required by s.150.1(4) of the Code, he did not take all reasonable steps to ascertain the age of L.S. before he and L.S. had sexual relations. Mr. Bradley acknowledges that the onus is on the Crown to establish, beyond a reasonable doubt, that W.G. did not take all reasonable steps to ascertain L.S.’s age.

[22] Mr. Bradley points out that L.S. had no reason to fabricate his testimony. He did not want to do anything to harm W.G., and he took steps to hide the relationship he and W.G. had. L.S. was quite clear that at some point during the relationship, he advised W.G. that he was 15 years old, and the sexual relationship nevertheless continued. L.S. would have no reason to fabricate his evidence in that regard.

[23] In any event, Mr. Bradley submits that W.G. did not take all reasonable steps to ascertain L.S.’s age before they had sex. He points out that W.G. did virtually nothing to ascertain L.S.’s age, beyond asking him his age and being told he was 18. All other information came from assumptions only. He assumed that because a person opening a profile on Grindr has to be 18 years of age, that meant that L.S. was 18 years of age. He assumed from L.S.’s demeanour and the things they discussed that L.S. was at least 16 years of age. He assumed that because L.S. told him that he was in a lap year in high school, he was 18. However, W.G. never attempted to meet any of L.S.’s classmates or friends. He never asked to meet L.S.’s parents, and indeed he went out of his way to assist L.S. in ensuring that he would not meet his parents. He would pick L.S. up some distance away from L.S.’s home, and he would drop him some distance away as well. He did not take the most obvious precaution of asking to see any identification for L.S., and he never even asked whether he had a driver’s licence.

[24] Mr. Bradley points out that W.G. must have known that one could not rely on statements made as to a person’s age, or rely on the fact that the person had a profile on Grindr, because W.G. himself had lied about his age on Grindr.

[25] Mr. Bradley points out that the age difference here was very significant. W.G. was 50 years old and, even assuming that L.S. was 18 years old, the age difference would have been 32 years. In such circumstances, it was important that W.G. take specific steps to ascertain L.S.’s age.

[26] Mr. Bradley submits that W.G. could take no comfort from any photographs submitted by L.S. He points out that a photograph of L.S. was entered as an exhibit at the trial and it clearly shows someone who may well be less than 16 years of age. It would have been very important for W.G. to take concrete steps to ascertain L.S.’s age, and he did not do so.

[27] For these reasons, Mr. Bradley submits that, pursuant to s.150.1(4) of the Code, W.G. cannot rely on the defence that he honestly but mistakenly believed that L.S. was 16 years of age or older.

[28] Mr. Landesman, counsel for W.G., submits that W.G. should be found not guilty on both counts.

[29] Mr. Landesman submits that there is, at the very least, a reasonable doubt as to whether any sexual contact occurred after W.G. was told that L.S. was 15 years of age.

[30] Mr. Lansdesman submits that L.S. had sexual relationships with two older men, namely, W.G. and “Steve”. It is quite possible that L.S. has confused W.G. and Steve, and whether a sexual relationship continued with either one of them once his real age was disclosed. Mr. Landesman points out that L.S. was a regular, heavy user of various drugs, and it is clear, from the evidence of the forensic psychiatrist, that heavy drug use can affect a young person’s memory.

[31] Furthermore, Mr. Landesman points out that L.S. described many different versions of his relationship with W.G. to a number of his friends, and it would be unsafe to rely on the version of events that he related in court.

[32] That being the case, there is at least a reasonable doubt as to whether W.G. had an honest but mistaken belief in L.S.’s age, before any sexual contact occurred.

[33] As far as the “all reasonable steps” issue is concerned, Mr. Landesman submits, as acknowledged by the Crown, that the onus is on the Crown to prove, beyond a reasonable doubt, that W.G. did not take all reasonable steps to ascertain L.S.’s age. Mr. Landesman submits that the Crown has failed to do so.

[34] Mr. Landesman submits that in the circumstances, the steps W.G. took to ascertain L.S.’s age were reasonable. He points out that W.G. knew that a person who opens a profile on Grindr must be 18 years of age. Furthermore, L.S. told him he was 18 years of age, and he was in a lap year in high school. From his photograph and from his appearance when he met him in person, L.S. appeared to be 18 years old. He appeared mature, and was able to discuss things, including sexual matters, from a mature perspective.

[35] Mr. Landesman submits that the steps taken by W.G. were reasonable in the circumstances, and nothing more was required.

[36] Accordingly, since the Crown has not satisfied its onus under s.150.1(4) of the Code, W.G. is entitled to an acquittal on both counts.

[37] Authorities referred to by the parties, and reviewed by me independently, include R. v. Hayes, [1991] A.J. No. 1232 (Alta. Q.B.); R. v. R.S.M. (1991), 69 C.C.C. (3d) 223 (P.E.I.C.A.); R. v. Osborne (1992), 17 C.R. (4th) 350 (Nfld. C.A.); R. v. R.A.K. (1996), 106 C.C.C. (3d) 93 (N.B.C.A.); R. v. L.T.P. (1997), 113 C.C.C. (3d) 42 (B.C.C.A.); R. v. Slater (2005), 2005 SKCA 87, 201 CCC (3d) 85 (Sask. C.A.); R. v. Alcayaga (2009), 250 C.C.C. (3d) 107 (Ont. C.J.); R. v. Pengelley (2010), 2010 ONSC 5488, 261 C.C.C. (3d) 93 (Ont. S.C.J.); R. v. Dragos (2012), 2012 ONCA 538, 291 C.C.C. (3d) 350 (Ont. C.A.); R. v. Duran (2013), 2013 ONCA 343, 306 O.A.C. 301 (C.A.); R. v. Saliba (2013), 2013 ONCA 661, 304 C.C.C. (3d) 133 (Ont. C.A.); R. v. Tannas (2015), 2015 SKCA 61, 324 C.C.C. (3d) 93 (Sask. C.A.); R. v. A.B. (2015), 2015 ONCA 803, 333 C.C.C. (3d) 382 (Ont. C.A.); R. v. Moise (2016), 2016 SKCA 133, 343 C.C.C. (3d) 16 (Sask. C.A.); R. v. Ghotra (2016), 2016 ONSC 1324, 334 C.C.C. (3d) 222 (Ont. S.C.J.); R. v. Chapman (2016), 2016 ONCA 310, 337 C.C.C. (3d) 269 (Ont. C.A.); R. v. Powell, [2016] O.J. No. 795 (S.C.J); R. v. H.L., 2017 ONSC 6205, [2017] O.J. No.5924 (S.C.J.); R. v. George, 2017 SCC 38, [2017] 1 S.C.R. 1021; and R. v. Morrison (2017), 2017 ONCA 582, 350 C.C.C. (3d) 161 (Ont. C.A.).

[38] I note that leave to appeal to the Supreme Court of Canada was granted in Morrison, supra: [2017] S.C.C.A. No.290; the appeal was argued on May 24, 2018, and judgment was reserved.

Analysis

[39] I have taken the liberty of attaching as an Appendix to these reasons certain of the provisions of the Criminal Code that are relevant. I have included some provisions that are analogous to s.150.1(4) which, as noted earlier, contains the “all reasonable steps” requirement.

[40] Because evidence was called on behalf of W.G., I must apply the principles discussed by Cory J. in R. v. W.(D.), 1991 SCC 93, [1991] 1 S.C.R. 742. Those principles include:

a) if I accept the evidence called on behalf of the accused, I must acquit him; b) even if I do not accept that evidence, if I am left in reasonable doubt by it I must acquit him; c) even if that evidence does not leave in me in doubt, I must assess whether, on the basis of the evidence I do accept, I am convinced beyond a reasonable doubt of his guilt.

[41] The principles discussed in R. v. W.(D.) are applicable whenever any evidence is called that is favourable to the accused: see R. v. D.(B.), 2011 ONCA 51, at para. 114.

[42] As submitted by the Crown, there are two issues:

a) whether a sexual relationship continued after W.G. was advised by L.S. that he was 15 years old; b) whether W.G. had an honest but mistaken belief that L.S. was 16 years of age or older, and, if so, whether W.G. had not taken all reasonable steps to ascertain L.S.’s age.

[43] As to the first issue, I am not persuaded beyond a reasonable doubt that a sexual relationship continued after W.G. was advised of L.S.’s true age.

[44] I accept that L.S. had no motive for being untruthful. He clearly did not want to get W.G. in trouble. He had sought out a sexual relationship with an older person, and he knew that W.G. was at least 48 years old. He lied about his age initially, and he sought to make W.G. believe he was 18 years old.

[45] However, I cannot be certain that L.S. is not mistaken as to whether a sexual relationship continued after he advised W.G. of his true age. It is possible that he mixed up W.G. and Steve. Furthermore, the expert evidence at least casts a doubt on whether L.S.’s memory was affected by his use of drugs. The different versions of the events that he related to his friends and classmates casts some doubt on the reliability of L.S.’s evidence.

[46] For these reasons, I am not persuaded beyond a reasonable doubt that W.G. was told of L.S.’s true age and that a sexual relationship continued thereafter.

[47] I am persuaded that W.G. had an honest but mistaken belief that L.S. was 18 years of age, or at any rate was 16 years of age or more. To put it another way, the Crown has not satisfied me beyond a reasonable doubt that W.G. did not have an honest but mistaken belief that L.S. was 16 years of age or older. As is the case with any defence, once it has been shown that there is an “air of reality” to the defence, the onus is on the Crown to negative the defence beyond a reasonable doubt: see R. v. Cinous, 2002 SCC 29, [2002] 2 S.C.R. 3.

[48] In this case, there is clearly an air of reality to the defence that W.G. had an honest but mistaken belief that L.S. was 16 years of age or older. That being the case, the onus is on the Crown to establish, beyond a reasonable doubt, that that defence is not available.

[49] In this case, I have seen and heard W.G. in the witness box. Even if the onus was on him to demonstrate that he had an honest but mistaken belief that L.S. was at least 16 years old, he has met that onus. He pointed to indicia that persuaded him that L.S. was 18 years old. I accept that he believed, honestly, that L.S. was 18 years old.

[50] I am left, then, with the issue that arises under s.150.1(4) of the Code: whether W.G. took all reasonable steps to ascertain L.S.’s age. To put it another way, has the Crown satisfied me beyond a reasonable doubt that W.G. did not take all reasonable steps to ascertain L.S.’s age?

[51] I note that provisions having similarity to s.150.1(4) are contained elsewhere in the Code. I have included those provisions in the Appendix. However, there are some differences.

[52] For example, s.171.1(1) makes it an offence to transmit sexually explicit material for the purpose of facilitating the commission of certain sexual offences against people under certain defined ages. However, it is provided under s.171.1(4) that it is not a defence that the accused believed the person to be at least the defined age “unless the accused took reasonable steps to ascertain the age of the person.” Similarly, where a person is charged under s.172.1(1) with communicating by means of telecommunication for the purpose of facilitating the commission of certain defined sexual offences with persons under defined ages, it is provided under s.172.1(4) that it is not a defence that the accused believed the person was at least the defined age “unless the accused took reasonable steps to ascertain the age of the person.” It is noteworthy that under both s.171.1(4) and s.172.1(4), the operative words are “reasonable steps” as opposed to “all reasonable steps” as found in s.150.1(4).

[53] Perhaps of less significance, I note that under s.273.2, in dealing with the issue of consent where age is not a factor, it is specified that it is not a defence that there was consent where “the accused did not take reasonable steps, in the circumstances known to the accused at the time, to ascertain that the complainant was consenting.”

[54] I note that the constitutional validity of s.150.1(4) has been attacked, but the constitutional validity of the provision has, so far, been upheld: see R. v. Alcayaga, supra.

[55] Section 172.1(4) has been held to be constitutional: see R. v. Ghotra, supra; and R. v. Morrison, supra. However, as noted earlier, Morrison has been appealed to the Supreme Court of Canada and judgment has been reserved.

[56] In substance, s.150.1(4) mandates an inquiry akin to a due diligence inquiry. As stated by Doherty J.A. in R. v. Saliba, supra, at para. 28, “The trier of fact must compare the steps, if any, 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.”

[57] In many of the cases I listed above, the courts have wrestled with what “all reasonable steps” will involve under different circumstances. It is clear that there is no automatic checklist of factors, and in some cases it will not take much to satisfy the requirement. Indeed, in at least one case it has been held that it might be sufficient to simply look at the person: see R. v. Hayes, supra. In other cases, more would be required.

[58] There are common threads in the caselaw:

a) the legislative provisions seek to protect young people from sexual crimes; they do so by placing the responsibility for preventing adults/youth sexual activity where it belongs: with adults; Parliament’s allocation of responsibility to adults is crucial for protecting young people from sexual crimes: R. v. George, supra; b) it is well-understood that young people can pass for older people, and it is reasonable to expect that an accused should be aware of the possibility that a young person may be under 16 years of age: R. v. Hayes, supra; c) there is a commonly recognized motivation for young people to misrepresent their age: R. v. George, supra; and R. v. H.L., supra; d) the greater the age difference, the higher the degree of diligence that may be required in ascertaining the complainant’s true age: R. v. R.A.K., supra; e) specific concrete steps may not be required, depending on the surrounding circumstances, including the complainant’s degree of sophistication, his or her apparent age and maturity, and his or her circle of friends: R. v. L.T.P, supra.

[59] The relevant inquiry has been summarized in a number of cases in different ways. For example, in R. v. Osborne, supra, Goodridge C.J.N. stated:

Parliament requires more than an honest belief; it requires a belief resulting from the taking of all reasonable steps to ascertain the age of the complainant. Parliament made the act a crime and expects of citizens engaging in sexual activity with young people to make a reasonable effort to ascertain the age of prospective partners. It is more than a casual requirement. There must be an earnest enquiry or some other compelling factor that obviates the need for an enquiry.

[60] In R. v. R.A.K., supra, Hoyt C.J.N.B. stated at para. 10:

I return to the Crown’s submissions that a threshold for invoking s.150.1(4) is that the accused must either ask the victim directly her age or ask collateral questions that would disclose her age and that the age differential should not be a factor in determining whether all reasonable steps had been taken under s.150.1(4). I am reluctant to suggest that such questions are necessary to invoke s.150.1(4). Such would be tantamount to establishing a checklist of steps that must be taken before the section could have application. Rather, I prefer the remarks of Mitchell J.A. in R. v. M.(R.S.), where he said that what constitutes reasonable steps will depend on the circumstances of each case. In addition, it is my view that the age differential may be considered when determining whether the steps taken are reasonable. Almost without exception, the greater the disparity in ages, the more inquiry will be required. More will be expected of an older or more sophisticated accused than from a youth such as R.A.K.

[61] In R. v. L.T.P., supra, Finch J.A. stated, 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 be depend upon the apparent indicia of the complainant’s age, 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.”

[62] In R. v. George, supra, Gascon J. summarized the relevant principles as follows, at para. 9:

Determining what raises a reasonable doubt in respect of the objective element is a highly contextual, fact-specific exercise. In some cases, it may be reasonable to ask a partner’s age. It would be an error, however, to insist that a reasonable person would ask a partner’s age in every case. Conversely, it would be an error to assert that a reasonable person would do no more than ask a partner’s age in every case, given the commonly recognized motivation for young people to misrepresent their age. Such narrow approaches would contradict the open-ended language of the reasonable steps provision. That said, at least one general rule may be recognized: the more reasonable an accused’s perception of the complainant’s age, the fewer steps reasonably required of them. This follows inevitably from the phrasing of the provision (“all reasonable steps”) and reflects the jurisprudence, and academic commentary.

[Citations omitted]

[63] It is with these principles in mind that I must determine whether the Crown has proven, beyond a reasonable doubt, that W.G. did not take all reasonable steps to ascertain L.S.’s age.

[64] I have obtained a transcript of W.G.’s evidence. To summarize, W.G. testified that he took the following factors into account:

a) L.S. was required to be 18 years of age in order to open an account on Grindr; b) L.S. told W.G. that he was 18 years of age; c) L.S. was in a couple of tribes on Grindr, namely, “twink”, and a tribe that demonstrated interest in older men; d) L.S. mentioned that he was in his lap year in high school; e) W.G. and L.S. had conversations about L.S.’s family, that he lived with his parents and had a younger brother; f) L.S. sent W.G. a couple of pictures; he had bluish hair and blue jeans and a loose top; g) There was no further discussion about L.S’s age; h) W.G. had no new impressions about L.S. after he met him in person; i) L.S. was youthful; he did not have any body hair because he was born female.

[65] W.G. acknowledged that he had never met any of L.S.’s friends. Furthermore, he had not met L.S.’s parents, and if he picked up L.S. at any place other than at the school, he picked him up and dropped him off some distance from L.S.’s home. He did not ask for any identification. He also acknowledged that while he was 50 years of age, he had portrayed himself as 48 years of age on his Grindr profile.

[66] I am persuaded beyond a reasonable doubt that W.G. did not take all reasonable steps, in the circumstances, to ascertain L.S.’s age.

[67] I start from the profound age difference. There was actually a 35-year age difference, although W.G. believed it was a 32-year age difference. As stated by Hoyt C.J.N.B. in R. v. R.A.K., supra, “Almost without exception, the greater the disparity in ages, the more inquiry will be required. More will be expected of an older or more sophisticated accused than from a youth such as R.A.K.”

[68] I also start from the well-understood phenomenon, as mentioned in R. v. George, that young people will try to make themselves appear to be older. One cannot simply rely on a person’s statement as to his or her age. W.G. himself had lied about his own age.

[69] The photograph of L.S. that was tendered in evidence as Exhibit 5 is problematical. It cannot be relied upon as evidence that L.S., at the relevant time, was at least 16 years of age. At best, it is equivocal. Unlike R. v. Pengelley, supra, in which the accused was furnished with a photograph of someone who was clearly an adult, in this case further inquiry was required.

[70] Unlike some of the cases in which the accused could draw inferences from the age and maturity of the complainant’s friends, or the apparent approval of the complainant’s parents, those features are not present here. W.G. did not meet any of L.S.’s friends, nor did he meet L.S.’s parents. Indeed, L.S. took steps to ensure that W.G. did not meet his parents.

[71] In the final analysis, W.G. simply took L.S.’s word that he was 18 years old, and he made assumptions that were not warranted in the particular circumstances. While concrete steps are not required in every case, they were clearly required in this case. The simplest step would have been to ask for identification. That was not done.

[72] In the final analysis, I am satisfied beyond a reasonable doubt that W.G. did not take all reasonable steps to ascertain the age of L.S. before he engaged in sexual activity with him. Thus, as specified in s.150.1(4) of the Code, it is not a defence to the charges under s.151 or s.271 that W.G. believed that L.S. was 16 years of age or more.

[73] For the foregoing reasons, I find W.G. guilty of both offences as charged.

[74] Issues relating to the application of the principle in R. v. Kienapple, 1974 SCC 14, [1975] 1 S.C.R. 729 will be addressed on the next occasion the matter is before the court.

Gray J.

Released: September 20, 2018

Appendix – Excerpts from the Criminal Code

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.

151 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;

171.1 (1) Every person commits an offence who transmits, makes available, distributes or sells sexually explicit material to

(a) a person who is, or who the accused believes is, under the age of 18 years, for the purpose of facilitating the commission of an offence with respect to that person under subsection 153(1), section 155, 163.1, 170, 171 or 279.011 or subsection 279.02(2), 279.03(2), 286.1(2), 286.2(2) or 286.3(2);

(b) a person who is, or who the accused believes is, under the age of 16 years, for the purpose of facilitating the commission of an offence under section 151 or 152, subsection 160(3) or 173(2) or section 271, 272, 273 or 280 with respect to that person; or

(c) a person who is, or who the accused believes is, under the age of 14 years, for the purpose of facilitating the commission of an offence under section 281 with respect to that person.

(4) It is not a defence to a charge under paragraph (1)(a), (b) or (c) that the accused believed that the person referred to in that paragraph was at least 18, 16 or 14 years of age, as the case may be, unless the accused took reasonable steps to ascertain the age of the person.

271 Everyone who commits a sexual assault is guilty of

(a) an indictable offence and is liable to imprisonment for a term of not more than 10 years or, if the complainant is under the age of 16 years, to imprisonment for a term of not more than 14 years and to a minimum punishment of imprisonment for a term of one year;

273.2 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

(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.