Court File and Parties

COURT FILE NO.: CR-18-50000126 DATE: 20200617 ONTARIO SUPERIOR COURT OF JUSTICE

BETWEEN: HER MAJESTY THE QUEEN – and – DWIGHT DESHAWN JOHN

Counsel: Chris Chorney, for the Crown Adele Monaco, for the Applicant

HEARD: June 3, 4, 5, 6, 7, 10, 11, 12, August 9, October 28, 2019 and January 10, January 31, and March 10, 2020

Judge: Davies J.

Publication Restrictions Notice

A non-publication order in this proceeding has been issued pursuant to subsection 486.4(1) of the Criminal Code. By order of this court, any information that could identify the Complainant shall not be published in any document, broadcast or transmission.

Reasons for Judgment

A. Overview

[1] Mr. John is charged with one count of sexual interference and one count of sexual assault. Both charges arise from the same incident involving JN in early September 2016. At that time, JN was 11 years old and Mr. John was 19 years old.

[2] Mr. John was introduced to JN by his friend, AM, who was 16 or 17 years old. AM told Mr. John that JN was her 18-year-old cousin.

[3] Before the alleged sexual assault, JN spent several hours with AM and Mr. John hanging out and smoking marijuana in Mr. John’s backyard. At some point well after midnight, Mr. John’s mother told AM and JN to leave. Mr. John left with them. They went to an abandoned house on Weston Road. AM then left, and Mr. John and JN stayed at the house together. Mr. John kissed JN and had sexual intercourse with her. JN testified that she did not resist or tell Mr. John to stop but she did not want Mr. John to kiss her or have sex with her.

[4] Mr. John testified. He acknowledged that he had sexual intercourse with JN. He testified that he thought JN was 18 years old. He also thought she was consenting.

[5] For Mr. John to be convicted of sexual interference, the Crown must prove beyond a reasonable doubt that JN was less than 16 years old at the time, that Mr. John intentionally touched her and that he touched her for a sexual purpose. [1] It is open to Mr. John to rely on “mistake of age” to negate the mens rea on this count. If Mr. John honestly believed that JN was 16 or older, and took “all reasonable steps” to ascertain JN’s age, he would be entitled to an acquittal on the sexual interference charge. [2]

[6] “Mistake of age” is also relevant to, although not determinative of, the sexual assault count. There are three parts to the actus reus of sexual assault that the Crown must prove beyond a reasonable doubt: (a) Mr. John touched JN; (b) Mr. John touched JN in a sexual manner; and (c) JN did not consent to the sexual touching. [3] Mr. John admitted that he touched JN in a sexual manner. Because JN was only 11 years old at the time, she was not legally capable of consenting. [4] As a result, the actus reus of the sexual assault has been proven.

[7] But, to convict Mr. John of sexual assault the Crown must also prove that Mr. John knew JN was not consenting. Knowledge of the absence of consent is part of the mens rea of sexual assault. “Mistake of age” is relevant to this element of the mens rea. If Mr. John honestly believed that JN was old enough to consent (or the Crown fails to disprove mistake of age), it would be open to him to argue that he honestly but mistakenly believed that JN communicated consent, even though she was legally incapable of consenting.

[8] Since there is no dispute that Mr. John had sexual intercourse with JN when she was 11 years old, there are only two issues in this case:

(a) Did Mr. John honestly but mistakenly believe that JN was old enough to consent to sexual intercourse with him? (b) Did Mr. John honestly but mistakenly believe that JN communicated her consent?

[9] The answers to these questions turn, in part, on my assessment of the credibility and reliability of the evidence I heard. However, this is not a case where Mr. John is inevitably entitled to an acquittal if I believe his evidence or if his evidence raises a reasonable doubt. [5] Both “mistake of age” and “honest but mistaken belief in communicated consent” have an objective component that requires an assessment of what a reasonable person would do in Mr. John’s situation. As a result, he can be convicted of either offence even if I believe his evidence. He is only entitled to an acquittal if I accept his evidence (or it leaves me with a reasonable doubt) and I also find (or have a reasonable doubt) that he took all reasonable steps to ascertain JN’s age and he took reasonable steps to confirm that she was consenting.

[10] For the reasons that follow I accept Mr. John’s “mistake of age” claim. He is, therefore, acquitted of sexual interference. However, I find that Mr. John did not honestly but mistakenly believe that JN communicated consent to the sexual activity in question because he failed to take reasonable steps to confirm her consent. I, therefore, find Mr. John guilty of sexual assault.

B. Mistake of Age

[11] There is both a subjective and an objective aspect to a claim of “mistake of age”. The subjective element focuses on whether the accused honestly believed the complainant was at least 16 years old. The objective element asks whether the accused took “all reasonable steps” to ascertain the complainant’s age. If the accused can point to some evidence that he thought the complainant was 16 years old (or older) and that he took all reasonable steps to ascertain the complainant’s age, the burden shifts to the Crown to prove beyond a reasonable doubt either (a) the accused did not honestly believe the complainant was 16 years old (or older), or (b) the accused failed to take all reasonable steps to determine the complainant’s age. [6]

[12] The Crown conceded, and I agree, that there is an air of reality to Mr. John’s mistake of age defence in this case. JN said she was 18 years old and she admitted that she wanted Mr. John to believe she was 18. I must, therefore, answer two questions:

(a) Do I accept (or have a reasonable doubt) that Mr. John believed that JN was 16 years or older? (b) Am I satisfied beyond a reasonable doubt that Mr. John failed to take “all reasonable steps” to determine JN’s age?

[13] In relation to Mr. John’s subjective belief about JN’s age, the Crown argued that Mr. John was willfully blind and, therefore, knew she was 11 years old. If I find that Mr. John was willfully blind about JN’s age, he would not be able to satisfy either element of the test for “mistake of age”. If Mr. John knew that he needed to make further inquiries about JN’s age but chose not to do so in order to avoid finding out the truth, he is deemed to know her true age. In those circumstances, he would also have failed to take all reasonable steps to determine her age.

[14] What will constitute “all reasonable steps” in a particular case is highly contextual and fact‑specific. In some cases, the accused will be required to take active steps to determine the complainant’s age. In other cases, passive steps such as visual observations of the complainant’s appearance and behaviour may be enough. [7] In R. v. George, 2017 SCC 38, the Supreme Court of Canada provided the following guidance on how to assess whether an accused took “all reasonable steps” to ascertain the complainant’s age:

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. [8] [Citations omitted]

[15] Mr. John cannot rely on the fact that JN engaged in sexual intercourse with him as a basis for his mistake of age claim. The assessment of what Mr. John believed and whether he took all reasonable steps to confirm JN’s age must focus exclusively on steps taken and information received by him before the alleged sexual activity took place. [9]

[16] In my view, the factors relevant to Mr. John’s mistake of age claim include the circumstances in which JN and Mr. John met, Mr. John’s observations of JN’s appearance and behaviour, and the representations made to Mr. John or in Mr. John’s presence about JN’s age. [10] There will, of course, be considerable overlap in the evidence that is relevant to the two aspects of “mistake of age”. The facts that informed Mr. John’s belief that JN was 16 years or older and the reasonableness of that belief will also inform the assessment of what steps, if any, a reasonable person would have taken to ascertain her consent.

1. Did Mr. John subjectively believe that JN was over 16?

[17] Mr. John testified that he believed JN was 18 years old. He pointed to several factors that contributed to his belief. First, he was told by AM that JN was 18 years old. Second, JN told his mother she was 18 years old. Third, he saw photographs of JN on Instagram in which she looked 18 years old. Fourth, her conduct on the night they met confirmed his belief that she was 18 years old, particularly when he compared it to how his 12-year-old sister acted. Fifth, he says he was shown a health card that confirmed that JN was born in 1998.

[18] The day after the alleged sexual assault, Mr. John’s mother, Shaunet Burke, saw on the news that JN had been reported missing and that she was only 11 years old. Ms. Burke told Mr. John what she had seen and Mr. John confronted JN. There is no dispute that Mr. John was furious that JN had lied to him about her age. His strong reaction to the news that JN was only 11 years old is further circumstantial evidence that he sincerely believed she was 18 years old at the time of the alleged assault.

[19] While I do not accept all of Mr. John’s evidence about what happened the night of the alleged sexual assault (as explained below), I do accept that he sincerely believed that JN was 18 years old.

2. Did Mr. John take “all reasonable steps” to ascertain JN’s age?

[20] Deciding whether Mr. John took “all reasonable steps” to determine JN’s age is a context specific inquiry, which turns on my assessment of the credibility and reliability of the evidence I heard and the factual findings I make.

[21] The basic chronology of events and how JN came to meet Mr. John are not in dispute. JN ran away from her house in the early evening of Monday, September 5, 2016. She met Mr. John late on Wednesday, September 7, 2016. By that time, JN knew that her family had reported her missing and the police were looking for her.

[22] When Mr. John and JN met, JN was with AM, who was 16 or 17 years old. AM and Mr. John had been friends for more than a year.

[23] Mr. John saw AM talking to a couple of his friends in his housing complex when he went out to have a cigarette. It was approximately 10:30 p.m. on Wednesday night. Mr. John joined the group and started talking to AM. AM told him that JN’s name was Nicole and she was 18 years old. AM also told Mr. John that she was trying to make money by having JN engage in prostitution. AM asked him to help but Mr. John said he did not want to get involved in anything illegal because he just got out of jail.

[24] After a short time, AM asked Mr. John if he wanted to smoke some marijuana with her and JN. Mr. John agreed, but said they had to go into his backyard because he was babysitting his 12‑year-old sister while his mother was at bingo.

[25] AM and JN hung out in the backyard of Mr. John’s house for several hours. JN and AM both smoked marijuana. I heard conflicting evidence about whether JN also consumed other drugs while at Mr. John’s house: JN said she took three pills; Mr. John said that he did not give JN pills and did not see JN take any pills. JN said she did not know what the pills were but she was told they were Percocet. Even if I accept that JN took pills, I do not have enough evidence to determine what they were or what effect, if any, they would have had on her. JN testified that she felt stoned and tired. I accept that JN was intoxicated from the marijuana at least. However, based on all the evidence I accept about what JN did, I find that she was alert and able to function throughout the night.

[26] At some point, Mr. John offered JN a change of clothing because she had spilled ice cream on her shirt earlier in the day. Mr. John gave her one of his t-shirts and a pair of his mother’s track pants. JN went into the house to change. When she came back outside, she sat on Mr. John’s lap.

[27] Shortly after midnight, Mr. John’s mother came home from bingo. She was not happy that JN and AM were in her backyard. Mr. John introduced his mother to JN and AM. His mother asked JN and AM who they were and why they were out so late. JN told Mr. John’s mother that she was 18 years old. AM said that she was 17 years old and that she and JN were cousins.

[28] At approximately 3:00 a.m., Mr. John’s mother told JN and AM to leave. Mr. John left with them. They all went to an abandoned house on Weston Road where the alleged sexual assault took place. According to JN, AM’s family owned the house but did not live in it anymore. JN testified that she had been to the Weston Road house with AM twice before.

[29] The next day, JN ended up back at Mr. John’s house. There is a dispute about whether they went back to Mr. John’s house together or separately. Nothing turns on this factual issue. Mr. John’s mother found JN asleep in her yard on Thursday afternoon. Later that same day, Mr. John’s mother saw the news that the police were looking for JN. Mr. John got very angry with JN and told her to leave. JN went back to the Weston Road house and spent the night there by herself. The next day she went back to school and the police were notified.

[30] The disputed evidence relates to JN’s appearance on the night of the alleged sexual assault and what representations were made to Ms. Burke about JN’s age.

(i) JN’s appearance on the night of the alleged sexual assault

[31] Mr. John testified that JN looked like she was 18 years old. He testified that while they were in his backyard, JN showed him pictures of herself on Instagram, in which she also looked like she was 18 years old.

[32] Four photographs of JN were filed at trial. The photographs were all taken during the summer of 2016. The photographs filed in court were not the ones JN showed Mr. John the night they met. Mr. John testified that JN looked even older when he met her than she did in the photographs that were filed.

[33] The videotaped statement JN gave to the police on September 11, 2016 – four days after the alleged sexual assault – was admitted under s. 715.1 of the Criminal Code.

[34] It is open to me to decide how old JN looks in the photographs and video, which depict her general appearance around the time of the alleged offence. I can use my assessment of JN’s appearance in the photographs and video to evaluate the credibility of Mr. John’s evidence that JN looked like she was 18 years old when they met. [11]

[35] I find that in three of the photographs filed (exhibits 3A, 3C and 3D), JN looked much older than 11, and could pass for 16, 17 or 18. In all three of those photos, JN was wearing makeup. In two of those photographs, JN had her hair down. In one photograph, she had her hair up. In the fourth photograph (exhibit 3B), JN looked closer to her actual age. In that photograph, JN is not wearing any make-up and her hair is down.

[36] In cross-examination, Mr. John agreed that JN looked like she was 12 or 13 years old in her videotaped police statement. I agree.

[37] Given the significant disparity in JN’s appearance in the various photographs and video, I find that JN could easily have looked much older than 11 when she met Mr. John, depending on whether she was wearing makeup, the style of her hair and what she was wearing.

[38] Mr. John testified that JN was wearing makeup when they met. He also testified JN refreshed her makeup when she went into his house to change her clothes. Mr. John’s mother testified that JN was wearing thick eyeliner and makeup when they met. Ms. Burke also testified that when she compared JN to her daughter, who was 12 going on 13, JN looked much older.

[39] JN gave inconsistent evidence about whether she was wearing makeup when she met Mr. John. Initially, she testified that she might have had some makeup on when she left her home on September 5, 2016 but it was gone by the time she met Mr. John two days later. In examination‑in‑chief, she testified that she did not have any makeup with her when she left her house. In cross‑examination, however, she testified that it was possible that she had lip gloss and mascara on when she met Mr. John.

[40] I accept Mr. John’s evidence that JN was wearing makeup when he met her and that she refreshed her makeup when she changed her clothing. His evidence is corroborated by his mother’s observations of JN when she came home from bingo. It is also consistent with JN’s evidence that she was trying to look older than she was.

[41] Just before JN met Mr. John, she was hanging out with other people who were in their late teens and early twenties. She testified that she also told them she was 18 years old. When one of them found out she was 11 years old and the police were looking for her, he became very angry and told her to leave. It was only a few hours later that JN met Mr. John. I find that JN’s experience of being caught in the lie about her age would have motivated her to try even harder to convince Mr. John (or anyone else she met) that she was actually 18 years old.

[42] In addition, JN testified that her aunt confiscated her phone during the summer of 2016. Her aunt was concerned about photos that JN was posting to Instagram. JN agreed that the photos she was posting online that summer made her look older than she was. She testified that she was not trying to look older but agreed that she did look older when she wore makeup. She, therefore, knew that one way for her to appear older was by wearing makeup.

[43] I find that JN looked much older when she met Mr. John than she appeared in her video‑taped statement or when she testified. Based on the photographs filed, I am satisfied that she could have looked like she was 18 years old.

(ii) Representations made to Ms. Burke about JN

[44] Ms. Burke testified that she was not happy to find two young women in her backyard when she came home from bingo. Ms. Burke did not recognize them but noticed that JN was wearing a pair of her track pants. This made her even more angry. Ms. Burke she asked JN and AM who they were. JN introduced herself as Nicole and said she was 18 years old. Ms. Burke then asked the two young women if their parents knew where they were. AM said that her mother knew where she was and that JN was her cousin. Ms. Burke testified that she also asked JN if she was in school. JN said she had graduated from high school and applied to Humber College.

[45] Mr. John and his mother both testified that they saw identification that said JN was born in 1998. Mr. John and Ms. Burke gave strikingly similar descriptions of how this happened. They both testified that Ms. Burke asked JN and AM for identification. AM did not have identification but she reached into a black backpack and produced a health card for JN. The name on the card was Nicole. Mr. John and his mother both testified that the photograph on the health card looked like JN but her hair appeared darker in the photograph. Ms. Burke could not find the date of birth on the health card. Mr. John took the card from her and pointed out the date of birth, which was sometime in 1998.

[46] Both Ms. Burke and Mr. John testified that it did not cross their mind that the health card was a fake. Ms. Burke said she only looked at the health card for a couple of seconds. Mr. John was born in 1996 so she thought the date of birth in 1998 was close enough to be accurate. Ms. Burke gave inconsistent evidence on whether the photograph on the health card was in colour or black and white.

[47] Ms. Burke was questioned about why she asked JN for identification. She initially testified that she was upset that JN was wearing her clothes and she thought JN was being “standoffish and shy”. In cross‑examination, she said that she was concerned that JN was younger than she said.

[48] JN testified that she did not have fake identification in 2016. She testified that she might have had her health card with her that evening, but it would have shown that she was 11 years old.

[49] I accept that Ms. Burke asked AM and JN questions about who they were, why they were out so late and whether their parents knew where they were. This is a reasonable response by a parent who comes home to find two people she does not recognize in her backyard. I accept that JN told Ms. Burke in Mr. John’s presence that she was 18 years old and that AM said they were cousins.

[50] I also accept that JN told Ms. Burke in Mr. John’s presence that she had graduated from high school and was planning to attend college. JN does not remember this conversation. But she does remember that when she went back to Mr. John’s house the day after the alleged sexual assault and Ms. Burke found her dozing off in her backyard, Ms. Burke said something like “What kind of life is this for a college girl?” It would not make sense for Ms. Burke to say that if JN had not told her the night before that she had finished high school and was enrolling in college.

[51] However, I do not accept that AM produced a health card with JN’s photograph and a date of birth in 1998. I find it inherently implausible that Ms. Burke would demand identification from her son’s friends who were just hanging out in her backyard. In addition, her initial explanation for why she asked for identification is not believable. It does not make sense that she would ask for identification simply because she was unhappy that JN was wearing her clothes and JN appeared shy and quiet.

[52] I appreciate that Mr. John and Ms. Burke gave consistent testimony about seeing a health card that purportedly belonged to JN. Often, when two witnesses give similar accounts of the same events, that will enhance the credibility of their account. However, in this case, there is evidence that Mr. John and Ms. Burke discussed in detail what happened that night several times, which undermines the credibility of their evidence.

[53] Mr. John was not charged with these offences until mid-March 2017, more than five months after the alleged sexual assault. Ms. Burke testified that Mr. John told her he had sex with JN as soon as they discovered that she was 11 years old. She said that she did not speak to Mr. John again about what happened that night until late December 2016 when they had a detailed discussion about what they remembered about Ms. Burke’s interactions with JN. Ms. Burke testified that the next time she spoke to her son about what happened was after he was arrested and released on bail. At that point, she and Mr. John again discussed in detail what JN said to Ms. Burke and how she was acting.

[54] Mr. John testified that he spoke to his mother a few times in the fall of 2016 about what happened with JN. He could not recall the details of what they discussed. Mr. John testified that he did not talk to his mother about what happened with JN at all after he was charged.

[55] I do not need to resolve the discrepancies between Mr. John and Ms. Burke about when and how often they talked about what happened because on both versions they discussed Ms. Burke’s interactions with JN in detail more than once. I am, therefore, not satisfied that either of them have an independent recollection of the conversation between Ms. Burke, JN and AM on the night of the alleged sexual assault. Given the implausibility of their account and my concern about collusion, I reject Mr. John and Ms. Burke’s evidence that they saw identification that suggested JN was born in 1998.

(iii) Conclusion on “Mistake of Age”

[56] In the end, the question is whether, looking at all the information known to Mr. John, a reasonable person would have believed that JN was 16 years old or more without taking any further steps to confirm her age? [12] In other words, are the indicia of age sufficiently compelling to relieve Mr. John of the need for further inquiry in this case? If the Crown fails to prove beyond a reasonable doubt that a reasonable person would have taken additional steps, Mr. John must be acquitted of the sexual interference charge, as the Crown will have failed to prove the mens rea.

[57] I find that the circumstances known to Mr. John by the time he engaged in sexual intercourse with JN at the Weston Road house were sufficiently compelling that a reasonable person would have concluded that JN was 16 years old (or older) without taking any further steps or making any further inquiries. I base this finding on JN’s appearance, the representations she made to Mr. John and his mother about her age and education, and her behaviour that night.

[58] As set out above, I am satisfied that JN looked much older than 11 when she met Mr. John. JN and AM also both said JN was 18 years old. These are not, however, the only relevant factor.

[59] It is also relevant that JN was with Mr. John’s friend. AM was 16 or 17 years old. The fact that JN was with a 16 or 17-year-old who was known to Mr. John would have made JN’s assertion that she was a similar age more believable.

[60] JN said that she had graduated from high school and was planning to enroll in college. This also supports a reasonable conclusion that JN was 18 years old.

[61] JN’s behavior is also highly relevant to what a reasonable person would have believed about her age. JN was out very late at night. JN was voluntarily consuming drugs while she was with Mr. John. Mr. John, AM and JN had a discussion about JN becoming Mr. John’s “shorty” or girlfriend. There was also discussion about how Mr. John would give JN money if she were his “shorty”. They also talked about going on a trip together. After Mr. John’s mother asked them to leave, JN and AM took Mr. John to an abandoned house where they were going to spend the night.

[62] I find that JN’s behaviour reasonably suggests that she was much older than 11, especially when compared to what Mr. John’s 12-year-old sister was doing. Mr. John’s sister was at home watching a movie being babysat by her older brother. Mr. John testified that one of the reasons he thought JN was 18 years old was because he had a 12-year-old sister and, as he put it, “she doesn’t do half of the things that [JN] was doing”.

[63] I must, of course, be careful not to engage in stereotypical reasoning or make assumptions about how people should or would act in any particular situation or at any particular age. I am not being critical of JN for how she was behaving or how she looked or what she said. Nonetheless, I do find that the constellation of information Mr. John received about JN’s age, her appearance and her drug use coupled with the nature of their conversations and the fact that she did not appear concerned about going home that night would lead a reasonable person to believe, without the need for further inquiry, that JN was 16 years or older (and indeed that she was 18) as Mr. John believed her to be.

[64] The Crown argued that the information Mr. John received about AM trying to make money from prostituting JN should have raised a “red flag” about JN’s age and required him to take additional steps to confirm her age. Mr. John testified that he thought JN was “on the same page” as AM about this and they were doing it together. I accept his evidence on this point. JN testified that her motivation for leaving home on September 5, 2016 was to get money to pay her ex‑boyfriend for a trip they were planning to Niagara Falls later in the month. Throughout the time JN was with AM, she was hoping to get or make money. Based on Mr. John’s interactions with JN and AM, it was reasonable for him to believe that they were friends and that AM was not simply exploiting JN for money.

[65] I find that Mr. John honestly believed that JN was 18 years old. I also find that a reasonable person in Mr. John’s circumstances would not have made any further inquiries or taken any further steps to ascertain JN’s age because of the compelling indicia that she was 18. The Crown has, therefore, not disproven Mr. John’s “mistake of age” claim and he is acquitted of sexual interference.

C. Honestly but mistakenly belief in communicated consent

[66] As set out above, there is no issue in relation to the actus reus of sexual assault because Mr. John admits he had sexual intercourse with JN when she was 11 years old. The only issue is whether the Crown can prove the mens rea. Because I accepted Mr. John’s “mistake of age” claim and I find that he honestly believed JN was old enough to consent, it is open to him to argue that he honestly but mistakenly believed that JN communicated that she was consenting to engaging in sexual activity with him.

[67] Like the “mistake of age” claim, if Mr. John adduces some evidence that he took reasonable steps to ascertain consent and that he honestly believed JN was consenting, the burden shifts to the Crown to disprove the defence beyond a reasonable doubt. [13]

[68] The requirement that Mr. John take reasonable steps to determine that JN was consenting has both an objective and subjective dimension: Mr. John must have taken steps that are objectively reasonable but the reasonableness of those steps will be assessed in light of the circumstances known to Mr. John at the time of the alleged sexual assault. [14] This is a fact specific inquiry, but there are certain things that will not constitute reasonable steps:

For example, steps based on rape myths or stereotypical assumptions about women and consent cannot constitute reasonable steps. As such, an accused cannot point to his reliance on the complainant’s silence, passivity, or ambiguous conduct as a reasonable step to ascertain consent, as a belief that any of these factors constitutes consent is a mistake of law. Similarly, it would be perverse to think that a sexual assault could constitute a reasonable step. Accordingly, an accused’s attempt to “test the waters” by recklessly or knowingly engaging in non-consensual sexual touching cannot be considered a reasonable step. [15] [Citations omitted]

[69] The threshold for what will satisfy the “reasonable steps” requirement will be higher when, like here, the accused and the complainant did not know each other before the alleged sexual assault (or only met recently). In those circumstances, there is an increased risk of miscommunications and misunderstandings about the issue of consent and the accused must do more to confirm the complainant is consenting than might be required in other circumstances. [16]

[70] Mr. John and JN gave competing versions of what happened after they left his backyard. Whether Mr. John honestly believed JN was consenting and took reasonable steps to ascertain her consent turns on my assessment of the conflicting evidence and my factual findings about how the sexual encounter between them unfolded. For the reasons that follow, I find that there is an air of reality to the defence of honest but mistaken belief in communicated consent, but that the Crown has proven beyond a reasonable doubt that Mr. John did not take reasonable steps to ascertain JN’s consent.

1. Mr. John’s version of events

[71] Mr. John testified that they left his house at about 3:00 a.m. JN asked him if they could rent a hotel room. He said he did not have any money so JN suggested that they go to a house on Weston Road for the night. Mr. John had never been to that house before and was surprised it took more than an hour to walk there. Mr. John testified that JN held his hand for part of the walk. As they were walking to the Weston Road house, Mr. John thought he was going to have sex with JN because she was holding his hand and sat on his lap earlier in the evening.

[72] When they got to the Weston Road house, AM left. JN went around the back and opened the front door from the inside. He and JN went into the house together. There was a bed in one of the rooms on the main floor. JN lay down on her back on the bed and he sat down beside her. They talked about the tattoos on his arm. Mr. John still expected they were going to have sex.

[73] Mr. John testified he kissed JN and she kissed him back. JN then kissed his neck. He removed his clothes. JN took off her pants and her shirt. He said that he did not remove any of her clothes or tell her to take off her clothes.

[74] Mr. John testified that JN then “got on top of him”. JN was still wearing her underwear. She pulled her underwear to the side to allow Mr. John to penetrate her. While they were having sex, they switched positions twice and JN was telling him what she wanted him to do. JN kissed him after he ejaculated.

[75] Mr. John testified that the sexual encounter lasted 15 to 30 minutes. After it ended, he left to get a drink at a nearby Tim Hortons. He never went back to the Weston Road house; he just walked back home by himself.

[76] Mr. John testified that he did not talk to JN about having sexual intercourse before it happened. He said it was just a physical interaction. Nonetheless, he testified that he thought JN was consenting because they kissed together, they took of their clothes together, and they engaged in intercourse together.

2. JN’s version of events

[77] JN did not recall many of the details from that night of the alleged sexual assault. She testified that she only remembers “different clips” of what happened. For example, she does not remember asking Mr. John about a hotel room. She does not remember who suggested going to the Weston Road house. She does not remember holding Mr. John’s hand on the walk but agreed that could have happened. She does not remember how they got into the house but acknowledged that she had been there before and knew how to get in.

[78] In terms of the alleged sexual assault, JN testified that as soon as they arrived at the Weston Road house, Mr. John started to kiss her. Mr. John removed some of her clothes and also asked her to take off some of her clothes. JN testified that Mr. John then started “getting on” her. JN was confused and did not understand why Mr. John was trying to have sex with her. JN said that she was on her back the whole time and Mr. John was on top of her; they did not switch position. JN does not know whether Mr. John ejaculated. After Mr. John finished, she fell asleep.

[79] JN did not tell Mr. John that she did not want to have sex with him. JN testified that it felt like the sexual intercourse lasted a long time and was “kinda painful”. She told Mr. John that she could feel him penetrating her but did not tell him it hurt or that she wanted him to stop. She testified that she did not know what to say and was scared: “When this was happening, when Deshawn was on me, I didn’t know what to say…I was speechless at first…I was afraid if I said something or did something wrong that I was gonna get hurt”.

3. Factual Findings and Analysis

[80] The Crown confirmed that the sexual assault charge relates only the sexual intercourse at the Weston Road house.

[81] Mr. John testified that he and JN did not talk about having sex either during the walk to the Weston Road house or when they were on the bed together once they got there. He did not discuss kissing JN before he did that. There was no discussion of any other sexual activity after he kissed JN. He did not ask JN if she wanted to have sex with him. He did not ask her if it was ok for him to engage in sexual intercourse with her. JN did not say she was consenting before the sexual activity occurred. In short, I find that JN said nothing from which Mr. John could reasonably have inferred that she had communicated her consent to sexual intercourse.

[82] A complainant can, of course, communicate her consent to sexual activity through her physical actions. The issue, therefore, is whether JN physically did anything to unequivocally communicate her consent to Mr. John.

[83] Defence counsel argued that the fact that JN sat on Mr. John’s lap in his backyard, suggested they go to the Weston Road House, held his hand on the way, kissed him, lay on the bed with him, took off her clothes, lay on top of him and moved her underwear to allow Mr. John to have intercourse with her all provided a basis for his honest but mistaken belief that JN had communicated consent to sexual intercourse.

[84] Even if JN sat on Mr. John’s lap, suggested they go to the Weston Road house together and held his hand on the way, those facts (alone or taken together) do not provide a basis for Mr. John to reasonably believe that JN was consenting to sexual intercourse. Similarly, even if JN voluntarily kissed Mr. John when they got to the Weston Road house that does not provide a basis for Mr. John to believe that she was consenting to having sexual intercourse with him. Mr. John was required to take steps to ensure, in advance, that JN was consenting to each sexual activity they engaged in. He was not entitled to “test the waters” by initiating some sexual activity as a way to obtain consent. He was certainly not entitled to simply initiate sexual intercourse without seeking JN’s consent to see whether she might be willing to consent. This is particularly true because Mr. John and JN had just met and there was a significant risk that he might misunderstand what she wanted and what she did not want from her conduct alone.

[85] In my view, the only possible basis on which Mr. John could have reasonably believed that JN was consenting is if she voluntarily removed her clothing, initiated the sexual interaction with him and moved her underwear aside to allow him to penetrate her. That could have led Mr. John to reasonably believe, without taking other steps, that she was consenting to sexual intercourse. However, I do not accept Mr. John’s evidence about how the sexual intercourse unfolded. I have already rejected Mr. John’s evidence about seeing identification with JN’s photograph as incredible, which was a very significant part of his evidence. And it makes me question the credibility and reliability of his testimony generally and, in particular, his description of events at the Weston Road house.

[86] I accept that when they got to the Weston Road house, JN lay down on the bed and Mr. John sat down beside her. I also accept that they had a conversation about his tattoos. In her testimony, JN described some of Mr. John’s tattoos and what they meant, which corroborates this aspect of his testimony. I do not, however, accept that JN removed her clothes voluntarily or that she got on top of him. Rather, I accept JN’s evidence about how the sexual encounter started.

[87] I recognize that there were some inconsistences and gaps in JN’s memory of what happened that night. For example, she testified during examination-in-chief that they took the bus from Mr. John’s place to the house on Weston Road. Under cross-examination, she agreed that they walked to Weston Road. As set out above, she also gave inconsistent evidence about whether she was wearing makeup when she met Mr. John.

[88] In my view, the gaps and inconsistencies are understandable given her age and the experiences she had in the days before she met Mr. John. Although JN was holding herself out to be 18 years old at the time of the alleged sexual assault, she was only 11. I must, therefore, be careful not to impose the same exacting standard on her as I would impose on an adult witness. While I must still carefully assess the credibility and reliability of JN’s evidence, inconsistencies, particularly inconsistencies about peripheral matters, must be considered in light of her true age. Because children experience the world differently from adults, it may be more understandable that details that are important to adults may be missing from their memory. [17] In my view, the inconsistencies about how they got from Mr. John’s place to the Weston Road house and about whether she was wearing makeup when she first met Mr. John are not significant.

[89] It is also important to recall that JN had essentially run away from home. In the days before she met Mr. John, she spent time with several different people, all of whom were strangers to her. She drank alcohol at various points during that week, although she had not consumed any alcohol the day she met Mr. John and she did not consume any alcohol while she was with him. She also smoked marijuana throughout that week and got very little sleep. She testified that she was scared: she described being “on the edge of what can happen and what is gonna happen to me”. Her description of being on edge and scared is very compelling. It is in this context that JN is now trying to recall details of her interaction with Mr. John. It is not surprising that her memories of the events from that week are imperfect and incomplete. To the extent that JN has memories of the sexual assault, they were clear and convincing. I am satisfied that the gaps in her memory from that night are genuine and were not concocted to avoid answering questions. While I do not accept all her evidence, her inability to recall details and the minor inconsistences do not, in my view, undermine her overall credibility or reliability.

[90] I accept JN’s evidence that Mr. John kissed her, removed some of her clothing, told her to remove some of her clothes and then initiated sexual intercourse with her. I find Mr. John formed the intention to have sex with JN before they got to the Weston Road house. Thereafter, he acted on that intention without doing anything to confirm that she was consenting. He took JN’s failure to object or her passive acquiescence as consent. These are not reasonable steps. In the absence of some unequivocal, positive statement of consent, through words or actions, Mr. John was required to asked JN if she was consenting or if she wanted to have sexual intercourse with him. I find that the Crown has proven beyond a reasonable doubt that Mr. John did not take reasonable steps to ascertain JN’s consent.

D. Conclusion

[91] I accept Mr. John’s mistake of age claim and find that the Crown has failed to prove the mens rea of sexual interference. Mr. John is, therefore, acquitted of that charge. However, I find that the Crown has proven beyond a reasonable doubt that Mr. John did not have an honest but mistaken belief that JN was consenting and I find him guilty of sexual assault.

[92] I appreciate that these verdicts might appear inconsistent – some might ask how Mr. John could be not guilty of sexual interference if I have found him guilty of sexual assault in relation to the same series of events with the same person. This is simply a function of the different essential elements of the two offences and the different defences that are available to Mr. John on each count.

Davies J. Released: June 17, 2020

COURT FILE NO.: CR-18-50000126 DATE: 20200617 ONTARIO SUPERIOR COURT OF JUSTICE HER MAJESTY THE QUEEN Respondent – and – DWIGHT DESHAWN JOHN Applicant REASONS FOR JUDGMENT Davies J. Released: June 17, 2020

Footnotes:

[1] Criminal Code, s. 151 [2] Criminal Code, s. 150.1(4) [3] R. v. A.(J.), 2011 SCC 28 at para. 23 [4] As a general rule, consent is not a defence if the complainant is less than 16 years old. There are some exceptions which permit consent to be a defence if the complainant was between 12 and 16 and the accused was close in age to the complainant. There is, however, no provision that allows consent to be raised if the complainant is less than 12 years old; Criminal Code, s. 150.1 [5] R. v. W.(D.), [1991] 1 S.C.R. 742; R. v. Dunchie, 2007 ONCA 887 at para. 15 [6] R. v. George, 2017 SCC 38 at para. 8; R. v. Chapman, 2016 ONCA 310 at para. 36 [7] R. v. Duran, 2013 ONCA 343 at para. 52; R. v. Morrison, 2019 SCC 15 at paras. 108-109 [8] George, 2017 SCC 38 at para. 9 [9] George, supra at paras. 18-22 [10] Duran, supra at paras. 52–54, Morrison, 2019 SCC 15 at paras. 112–113. Morrison was decided under s. 172.1(4) of the Criminal Code which only requires an accused to take “reasonable steps” to ascertain age, not “all reasonable steps”. Nonetheless, similar factors are relevant to the inquiry notwithstanding the different standards. [11] R. v. K.S., 2019 ONCA 474 at para. 6 [12] Duran, supra at para. 53 [13] R. v. Barton, 2019 SCC 33 at para. 121 [14] Barton, supra at para. 104 [15] Barton, supra at para. 107 [16] Barton, supra at para. 108 [17] R. v. B.(G.), [1990] 2 S.C.R. 30; R. V. W.(R.), [1992] 2 S.C.R. 122