COURT FILE NO.: CR-18-4319-0000

DELIVERED ORALLY: Thursday, July 30, 2020

ONTARIO

SUPERIOR COURT OF JUSTICE

BETWEEN:

HER MAJESTY THE QUEEN

– and –

DANIEL V. EICHNER

Nicole M. Lamphier, for the Crown

Patrick J. Ducharme, for the Defence

HEARD: December 2, 3, and 4, 2019

REASONS FOR JUDGMENT

Howard J.

Overview

[1] The accused, Daniel Volkan Eichner, is charged in a three-count indictment with one count of sexual interference, contrary to s. 151 of the Criminal Code,[^1] and two counts of invitation to sexual touching, contrary to s. 152 of the Code.

[2] All three counts involve the same complainant, a female person, who is shielded from identification in this proceeding; hence, I refer to her as “the complainant” or by the initials “J.M.D.”

[3] At the time of trial, Mr. Eichner was the owner of a pizzeria offering take-out and delivery, located in a small strip mall in the east end of Windsor. One of Mr. Eichner’s employees at the pizzeria was the complainant’s older brother, to whom I refer by the initials “J.G.E.”[^2]

[4] The complainant first met Mr. Eichner at the pizzeria one day in September 2017 when she dropped by the pizzeria with a friend. As of September 2017, the complainant had just entered Grade 9 at St. Joseph’s Catholic High School, which is located a few blocks away from the pizzeria. The complainant was 13 years of age when she started Grade 9 in September 2017.

[5] It would appear that within a matter of weeks after commencing Grade 9, the complainant had fallen into a practice of stopping by the pizzeria as she was walking home from school. This happened multiple times per week. Sometimes the complainant was accompanied by various friends, and sometimes it was just the complainant herself. Sometimes she stopped by to say hello to her brother if he was working, and sometimes she stopped by to visit with Mr. Eichner.

[6] The charges in question involve three incidents that arose out of the interactions that occurred between the complainant and Mr. Eichner at the pizzeria. It is common ground that the complainant and Mr. Eichner were never in a “boyfriend-girlfriend” relationship. Indeed, at the material times, Mr. Eichner was more than twice the age of the complainant.

[7] Mr. Eichner does not dispute that the sexual touchings that form the subject-matter of the charges before the court actually took place. Rather, the position of Mr. Eichner is, in essence, that he believed the complainant was consenting to the sex acts and, further, that he honestly believed that the complainant was of sufficient age such that she had the capacity to consent. In other words, Mr. Eichner maintains that he had an honest but mistaken belief as to the age of the complainant at the time of the incidents. Thus, Mr. Eichner pled not guilty to all three counts.

[8] The hearing of this matter was held, without a jury, in Windsor on December 2, 3, and 4, 2019. The court heard evidence from four witnesses over two days. Final submissions were delivered on the third day. The witnesses at trial consisted of the complainant, the complainant’s older brother, a friend of the complainant, and Mr. Eichner.

[9] The attendance for the delivery of judgment in this matter was initially scheduled for April 17, 2020. However, as we all know, on March 15, 2020, the Chief Justice of the Superior Court of Justice (“SCJ”) announced that in order to protect the health and safety of all court users and to help contain the spread of the 2019 novel coronavirus (COVID-19), the SCJ was suspending all in-person attendances, effective Tuesday, March 17, 2020, until further notice.

[10] Accordingly, by order of Morawetz C.J. dated March 15, 2020, for any accused person who had a criminal matter scheduled for any type of appearance in the SCJ in the month of April 2020, that matter was adjourned to June 3, 2020. By further order of Morawetz C.J. dated May 5, 2020, all criminal matters that had been adjourned to June 3, 2020, were further adjourned to July 7, 2020, at which time this matter was scheduled for delivery of judgment today.

Factual Background

[11] I do not propose to recite the entirety of the evidence given by each of the witnesses who testified in any great detail. My review of the evidence at trial is limited to those facts that are significant to the central issues or that provide context necessary to appreciate and determine the relevant issues.

[12] Born in mid-December 2003, the complainant was 13 years of age at the time she first met Mr. Eichner and was 15 years of age at the time of trial.[^3] As I have said, she entered Grade 9 at St. Joseph’s Catholic High School in September 2017. She turned 14 years of age in December 2017.

[13] The complainant’s family home, where she resided with her mother, step-father, and older brother J.G.E., was located within a few minutes’ walking distance from the pizzeria. Indeed, standing at the rear of the pizza shop, one could actually see the complainant’s home.

[14] In turn, it was a relatively short walk from Mr. Eichner’s pizzeria to St. Joseph’s. Mr. Eichner estimated that it was perhaps a ten-minute walk from his pizzeria to the high school.

[15] The complainant and her friends would often attend at another establishment within the same vicinity, being a Tim Hortons restaurant located across the street and somewhat east of the pizzeria. The evidence of the complainant was that the Tim Hortons was perhaps a five-minute walk from the pizzeria.

[16] Mr. Eichner was born on July 11, 1988, and, as such, was 29 years old at the time of the incidents in question and 31 years old at the time of trial.

[17] The evidence of Mr. Eichner was that he basically worked every day on the premises of the pizzeria with only “the odd day off.” He acquired the business in or about August 2017, that is, just a few months before the incidents in question occurred.

[18] Mr. Eichner was acquainted with the complainant’s older brother, J.G.E., and knew that he had worked at the pizzeria for the previous owner. As such, Mr. Eichner approached J.G.E. in late summer 2017 and offered him his old job back. Indeed, the evidence of Mr. Eichner was that he “hand-picked” J.G.E. for the job because he knew of – and needed – the lad’s previous experience in the business. I note that J.G.E. was born in January 2002, and so was 15 years of age at the time when Mr. Eichner approached him. J.G.E. accepted Mr. Eichner’s offer of employment and started back working at the pizzeria in late summer 2017.

[19] Mr. Eichner confirmed that apart from himself and J.G.E., sometimes his friend Tyler worked at the pizzeria (but was not paid), and sometimes his brother worked there (but was also not paid). As well, there were delivery drivers, but they were paid as third-party contractors.

[20] There is relatively little dispute concerning the chronology of events that led to the charges in question.

[21] The complainant knew of Mr. Eichner because her brother was working for him. However, the first time the complainant actually met Mr. Eichner in person was in September 2017, after she had started in Grade 9, when she was walking home from school with one of her girlfriends, to whom I refer by the initials “M.D.” The evidence of the complainant was that M.D. wanted to stop by the pizzeria to say hello to Mr. Eichner, and the complainant went along with her. At first, the complainant was fairly quiet and mostly sat and listened to M.D. chat with Mr. Eichner. The complainant believed that she and M.D. visited the pizzeria perhaps once or twice a week and that, after a few weeks, perhaps three or four visits with M.D., the complainant became more comfortable in going to the pizzeria and speaking with Mr. Eichner. The complainant estimated that when she initially went to the pizzeria with M.D., the girls might stay there for about 30 minutes.

[22] The complainant also went to the pizzeria accompanied by another girlfriend, who was a year younger than her, to whom I refer by the initials “M.S.P.” In fact, the evidence of the complainant is that she would usually be with M.S.P. when she dropped by the pizzeria.

[23] At some point, when the complainant felt more comfortable, she started to drop by the pizzeria by herself, and she would visit with either her brother if he was working or she would chat with Mr. Eichner. The complainant thought these visits sometimes might last for an hour. Asked about the topic of their conversations, the complainant said that she and Mr. Eichner would just talk about what was going on in their lives, what was going on at school with J.M.D., and what was going on at work with Mr. Eichner. There would often be other workers present during these visits, either her brother, J.G.E., or sometimes Tyler.

[24] This pattern of the complainant stopping at the pizzeria to visit with Mr. Eichner, either accompanied by her various girlfriends or by herself, continued throughout the autumn months of 2017. In cross-examination, the complainant agreed that, for the period from mid-November 2017 through early January 2018, it was fair to say that the complainant dropped by the pizzeria three or more times per week. She testified in cross that most of the times she went there accompanied by her friends, but sometimes she would go alone.

[25] Asked how best to describe the relationship with Mr. Eichner, the complainant said she believed they were friends. She said she liked going there because he was someone she could talk to. She added, in cross-examination, that she liked their conversations and liked his company. However, she denied that she wanted to have a girlfriend-boyfriend relationship with Mr. Eichner. In cross-examination, she maintained that she did not want Mr. Eichner as her boyfriend and did not want to be with him in that way. Further, they never saw each other outside the pizzeria or made arrangements to meet. They never texted each other. The complainant explained that she did not even know Mr. Eichner’s cellphone number or his social media contacts. Her evidence, which is unchallenged on this point, is that they had no conversations apart from their interactions at the pizzeria.

[26] The complainant admitted that she thought Mr. Eichner was good looking and that she once wrote in a notebook, which Mr. Eichner kept on the counter of the pizzeria, that she thought he was “hot.” The complainant admitted in cross-examination that she let Mr. Eichner know that she thought he was attractive.

[27] It is common ground that there were three sexual encounters between J.M.D. and Mr. Eichner. The parties are also agreed as to the details of the three sexual encounters. That is, having listened to J.M.D. give evidence in court as to the details of the three incidents, Mr. Eichner confirmed in his evidence that the complainant testified accurately as to the details of the incidents, that he agreed with the details she gave, and that he did not dispute any of the details she gave.

[28] The first encounter happened in late November or early December 2017. The complainant cannot recall the exact date, but she is certain that it was before her birthday in mid-December.

[29] The evidence of the complainant was that she was walking home from school that day with a boy she was dating at the time. She was wearing her St. Joseph’s school uniform, and, at least initially, she said she was wearing a navy-blue sweater that had a patch with the words “St. Joseph’s” on it. Subsequently in her testimony, the complainant said that she knew she was wearing one of her uniform sweaters, but she could not remember for sure if it was the one with the “St. Joseph’s” patch on it. In any event, the complainant continued walking to her residence, parted ways with her boyfriend at some point, and when she got home, she changed her pants and put on joggers. The complainant explained that her classes ended at 2:49 p.m., and allowing for 10 or 15 minutes to walk home, the complainant is certain that she was at home sometime between 3:00 and 4:00 p.m.

[30] The complainant then left her residence to head over to the Tim Hortons, where she often went to meet up with her friends. However, she thought that she would stop into the pizzeria along the way to say hello to Mr. Eichner. When the complainant arrived at the pizzeria, she found that Mr. Eichner was there alone, and the two of them got to chatting about how their days were going. The complainant told him about her day at school.

[31] At some point, Mr. Eichner said to the complainant that, “I think you owe me something.” This confused the complainant because she could not think what she would owe Mr. Eichner. He continued and said words to the effect, “you owe me a kiss.” The complainant thought to herself, “why would I owe him a kiss?” The complainant did not move to kiss him, but Mr. Eichner continued on with words suggesting or asking that the complainant should give him a hug at least. The complainant replied, “okay,” and she then moved around the front counter to where Mr. Eichner was standing behind the counter and gave him a quick hug. Mr. Eichner then asked for a longer hug, and the complainant complied with a longer hug. As the two were hugging, Mr. Eichner reached his hands down and grabbed the complainant’s buttocks. As his hands were on her buttocks, he made some complimentary comment about her physique; the complainant said nothing in reply because, as she explained, “I didn’t know what to say.” Mr. Eichner then asked again for a kiss, and the complainant have him a quick peck on the lips. Mr. Eichner asked for a longer kiss, and the complainant replied, “okay.”

[32] Mr. Eichner then suggested that they “go back there” – by which he meant the space at the very back of the pizzeria behind the large table where the pizzas were made, which itself was behind the front counter. The complainant replied, “okay.” They both then moved to the space at the very back of the shop, which the complainant described as having a metal table and two big metal sinks.

[33] As the two were standing in the back of the shop, they began to kiss, which progressed to some open-mouth kissing. Mr. Eichner told the complainant that he was getting “turned on” and that his penis was “hard.” The evidence of the complainant was that she did not know what to say.

[34] Mr. Eichner then asked J.M.D. if she wanted “to touch it,” and the complainant said, “okay.” She then touched his penis area over his clothes.

[35] The complainant’s evidence was that Mr. Eichner then told her that he wanted to have sex with her. The complainant explained that she did not know what to say and that she “felt on the spot.” But the complainant replied, “okay.”

[36] Mr. Eichner then asked the complainant if he should lock the front door, and she replied, “yeah.” Mr. Eichner asked the complainant if he should get a condom, and she replied, “yeah.” Mr. Eichner then left the complainant and went to the front of the store. When he returned, he told the complainant to turn around, which she did. He then asked J.M.D. if she wanted him to pull her pants down or did she want to do it, and she replied that she would do it herself. The complainant pulled down her pants and underwear to past her knees but not completely off.

[37] As the complainant was leaning over the metal table, Mr. Eichner was behind her. He told her that he was going to put on the condom, which he did. Mr. Eichner then inserted his penis into J.M.D.’s vagina from behind. The evidence of the complainant was that the intercourse lasted five minutes “maximum” and that as Mr. Eichner was having sex with her, he uttered words to the effect that she “was tight” and that he was “gonna come.” The complainant made no reply.

[38] After Mr. Eichner had ejaculated and removed himself, the complainant remembers seeing him remove the condom and discarding it. The complainant also recalls that Mr. Eichner asked her if she wanted to use the washroom, and she replied in the negative. As they both moved to the front of the shop, Mr. Eichner asked the complainant if she was hungry, and she replied in the negative. He offered her a water bottle, and she believes she took a bottle of water from him. He asked her if she was okay, and she replied that she was fine.

[39] The evidence of the complainant is that the two of them were in the back of the shop for no more than perhaps 10 minutes and that she remained at the pizzeria with him perhaps 15 or 20 minutes after the fact. The complainant was asked if she remembers whether they discussed what happened, and the complainant replied that, although she cannot recall whether Mr. Eichner told her that very same evening, at some point he told her “not to tell anyone” about what had happened.

[40] The complainant then left the pizzeria and, abandoning her previous plans to go to the Tim Hortons, she just walked home. When asked how she felt afterwards about the incident, J.M.D. said she felt “kinda used.” She said that she did not know how to really feel; but she felt “used” because “I knew I was nothing to him” and “it didn’t mean anything to him.” The complainant said that she did not discuss these feelings with Mr. Eichner.

[41] The complainant testified that after this first encounter, she did not return to the pizzeria for a few days. Her evidence was that she “did not want to go there because I felt used.”

[42] For his part, Mr. Eichner did not perceive that the complainant felt used or was upset by the encounter, which he inferred, he said, because she “hung around a while” at the pizzeria after the incident. Moreover, in cross-examination, Mr. Eichner denied that the complainant stopped coming around the pizzeria in the days that followed the incident involving the sexual intercourse. Indeed, he twice suggested that her visits to the pizzeria became even more frequent following the incident. However, Mr. Eichner then admitted that he did not have a specific recollection of the complainant visiting the pizzeria in the few days that followed the incident.

[43] The two other sexual encounters occurred sometime after the first episode. While J.M.D. was not sure of the exact date that either of the subsequent two events occurred, she believes that both episodes occurred sometime after Christmas 2017 or perhaps early January 2018. Moreover, the complainant is also unsure as to which of the subsequent two events happened next.

[44] The complainant gave evidence about an incident that happened around 9:00 p.m. one night when J.M.D. and her girlfriend M.S.P. were walking home from Tim Hortons. The complainant recalled that she had a head cold at the time; her nose was stuffed up, and one could hear from her voice that she had a cold. As the girls passed by the pizzeria, they decided to stop in and say hello. When they got inside, they encountered Mr. Eichner and Tyler in the process of closing up shop for the night.

[45] However, shortly after the girls entered the pizzeria, the mother of M.S.P. texted her to say that she wanted her home, and M.S.P. then left the premises. After M.S.P. had left, Tyler told Mr. Eichner that he was going to wait in the car, and Tyler then also left the premises. At that point, the complainant was alone with Mr. Eichner.

[46] Mr. Eichner continued to close up the shop, pulling closed the curtains on the front window, and turning off the lights. The premises were then dark except for the light that passed through the front door, which was glass. Mr. Eichner then turned to the complainant and asked for a hug goodnight. The complainant said, “okay,” and the two then hugged. Mr. Eichner said to the complainant something to the effect that he wished he could kiss her, but he could not because of her cold.

[47] However, as they were hugging, Mr. Eichner then said something to the effect that he was becoming aroused and/or that his penis was hard, and he then asked the complainant if she wanted to touch it.

[48] The complainant then touched the area of Mr. Eichner’s penis over his pants and held his penis for about two minutes, she estimated. However, she started to get uncomfortable and was finding it increasingly awkward, so she stopped and pulled away. Mr. Eichner responded that he had to finish closing up the shop, and the complainant replied, “okay.”

[49] And with that, they both exited the premises. The complainant walked out first, with Mr. Eichner following and stopping to lock the front door. They said goodbye to each other, and then they went their separate ways. Mr. Eichner got into his car, and the complainant walked home.

[50] The third incident happened one night in January 2018. The complainant had made plans with her girlfriend to meet at Tim Hortons. As J.M.D. walked by the pizzeria, she stopped in quickly to say hello to Mr. Eichner. She told him that she could not stay, as she had plans to meet a friend at Tim Hortons, who was waiting for her there.

[51] Mr. Eichner replied that he had to leave to deliver a pizza, and that he had to drive by the Tim Hortons anyways, so he could drop her off. They both got into his car, and he pulled the car out to the plaza exit on to Tecumseh Road East and was then waiting for the traffic to clear so that he could turn right and proceed easterly down Tecumseh Road. The complainant estimated that they were stopped there for no longer than ten minutes at most. In cross-examination, she testified that it was not the case that the traffic was so congested that Mr. Eichner could not have pulled out onto Tecumseh Road if he wanted to. On the contrary, her evidence was that the traffic at that time of night was not that bad and that Mr. Eichner could have pulled out if he wanted to, but he had decided to sit there for his own reasons.

[52] In any event, the complainant’s evidence is that as they were stopped at the plaza exit to Tecumseh Road, Mr. Eichner said to the complainant that she should give him a kiss. The complainant testified that she paused because she did not know what to say at first, but then replied, “okay,” and she gave him a quick peck on the lips.

[53] Once again, Mr. Eichner said something to the effect that he was becoming aroused and/or that his penis was hard, and he then asked the complainant to touch it. The complainant testified that she did not reply at first and just continued to look out the car window. However, the complainant then did touch his penis, again over his pants.

[54] Mr. Eichner then said that he was going to “take it out of my pants,” and with that he lifted his hips and pulled down his pants just enough to expose his penis and testicles. The complainant then touched his penis, i.e., with skin on skin contact.

[55] In response, Mr. Eichner said that he wished the complainant would put her mouth on it. With that, the complainant responded with a firm “no,” removed her hand, and pulled away. Mr. Eichner then pulled up his pants to cover himself and told the complainant that he was going to drop her off now because he had to deliver the pizza. He dropped the complainant off at the Tim Hortons, she got out of his vehicle, and again they went their separate ways.

[56] As I have said, Mr. Eichner took the stand in his own defence, and he agreed in his testimony that the complainant had accurately testified as to the details of the sexual incidents in question. That said, although he maintained that he accepted the accuracy of the details of the complainant’s testimony concerning the incidents, some of Mr. Eichner’s evidence departed from that of the complainant.

[57] For example, particularly with respect to the two subsequent incidents, the perspective of Mr. Eichner was that the complainant was quite flirtatious towards him and, as he put it, she “tried to make a move” on him.

[58] With respect to the sexual intercourse incident, Mr. Eichner indicated that the complainant was complimenting him on the tattoos on his arms and rubbing his arms there. In cross-examination, he also suggested that she was rubbing his penis while the couple were standing at the front of the store and before they retreated to the back room. However, when pressed, he distanced himself from his suggestion and said that his memory of events two years prior was “all over the place.”

[59] With respect to the incident driving to Tim Hortons, Mr. Eichner maintained that the reason why his vehicle was stopped at the plaza exit for a prolonged period of time is because he could not readily turn onto Tecumseh Road due to the horrendous traffic that night, which, he says, was backed-up for blocks. Moreover, Mr. Eichner said that it was the complainant who initiated contact, saying that she undid her seatbelt and then leaned over to kiss him on his right cheek, and subsequently began to rub his thigh. (The complainant denied all such suggestions in her testimony.)

[60] That said, at the outset of his cross-examination, Mr. Eichner again confirmed that he did not take issue with the complainant’s description of the central events and that she was not exaggerating any of the details.

[61] As the factual background to the events in question is not seriously in dispute, I deal with other aspects of Mr. Eichner’s evidence below.

[62] One of the complainant’s girlfriends testified at trial, and I refer to her by the initials “S.W.” S.W. was close in age to the complainant and was 16 years of age at the time of trial. S.W. testified that although she was unsure of the precise date, one day towards the end of November or the beginning of December 2017, the complainant told S.W. that she had lost her virginity to Mr. Eichner. That news greatly upset S.W., and she attempted to contact Mr. Eichner at the restaurant by phone that very same day.

[63] For present purposes, the details of S.W.’s phone calls are not important, and I attach no significance to the conversations in question. However, the evidence of S.W. is significant in the sense that it is corroborates the evidence of the complainant that the one incident of sexual intercourse with Mr. Eichner took place in the specified time frame, that is, before the complainant’s 14th birthday.

[64] The complainant’s older brother, J.G.E., also gave evidence at trial. As I have said, having been born in January 2002, J.G.E. was 15 years of age when Mr. Eichner first approached him about going back to work at the pizzeria. The evidence of J.G.E. was that within a few days of accepting the job at the pizzeria, he was required to fill out some paperwork, in the course of which J.G.E. gave his social insurance number and his date of birth. J.G.E. testified that he could not recall any specific discussion with Mr. Eichner about his date of birth around the time of his hire; however, J.G.E. maintains that he subsequently told Mr. Eichner that he was 15 years old, although he could not specifically recall when that conversation took place. J.G.E. maintains that Mr. Eichner knew he was 15 years old, that he attended St. Joseph’s, and that he was in Grade 10.

[65] The reason why J.G.E. is certain Mr. Eichner knew how old he was is because he specifically recalls having more than one conversation with Mr. Eichner in the late autumn of 2017 about J.G.E. wanting to obtain his driver’s licence once he turned 16 years of age in January, and Mr. Eichner making the offer to teach him how to drive. Indeed, the evidence of J.G.E. was that he and Mr. Eichner “talked about that quite a few times.”

[66] J.G.E. further explained that Mr. Eichner talked with him about how, when he was old enough to obtain his driver’s licence, he could do deliveries for the pizzeria, and how that arrangement would benefit them both, as Mr. Eichner would be able to remain at the shop to do business, and J.G.E. could get some tips for the deliveries and “make a bit of extra money.” J.G.E. testified that he was excited about turning 16 and the prospect of making some extra money, and that was “definitely something we talked about a lot.”

[67] I pause to note that, in cross-examination, Mr. Eichner ultimately conceded that he knew J.G.E. was 15 years of age when Mr. Eichner first hired him. Consistent with the evidence of J.G.E., Mr. Eichner acknowledged having discussions with J.G.E. about him getting his driver’s licence and learning to drive. He acknowledged having offered to teach J.G.E. how to drive. He acknowledged that he knew J.G.E. was excited about getting his driver’s licence and that he knew the boy’s birthday was coming up in January. Most importantly, Mr. Eichner acknowledged that he knew J.G.E. would be turning 16 years on his birthday in January, as a result of which he allowed that he knew J.G.E. must have been under 16 years when Mr. Eichner hired him.

[68] J.G.E. also testified that about a month or two after he started working at the pizzeria for Mr. Eichner, one day when the complainant came in to visit, J.G.E. introduced her to Mr. Eichner as his younger sister. J.G.E. testified that he told Mr. Eichner that she was just starting her first year at St. Joseph’s and explained that while she was two years younger than him, she was only one Grade level below him because she had a late birthday.

[69] Mr. Eichner denied that J.G.E. ever spoke about the complainant being his younger sister. He further denied being told by J.G.E. that the complainant was in Grade 9 or had just started at high school. Moreover, Mr. Eichner denied knowing that J.G.E. was in Grade 10.

[70] As described more fully below, Mr. Eichner maintains that the complainant told him that she was 16 years of age, and in Grade 11, and was turning 17 in December 2017.

Fundamental Principles

[71] It is instructive to review the fundamental framework of analysis in a criminal trial.

Presumption of innocence and reasonable doubt

[72] The presumption of innocence is the most fundamental principle of our Canadian criminal justice system. It is the fundamental right of every person accused of criminal misconduct to be presumed innocent until proven guilty by the evidence presented and established by the Crown. Accordingly, Mr. Eichner, as every accused person charged with an offence, is presumed to be innocent unless and until the Crown proves his guilt beyond a reasonable doubt.

[73] The presumption of innocence is interwoven with the standard of proof required to displace that presumption. The standard of proof required of the Crown to secure a conviction in a criminal case is that it must establish each and every essential element of the offence against the accused by proof beyond a reasonable doubt.

[74] A reasonable doubt is not an imaginary or frivolous doubt. It must not be based upon sympathy or prejudice. Rather, it is based on reason and common sense. It is logically derived from the evidence or absence of evidence. On the other hand, it is virtually impossible to prove anything to an absolute certainty and the Crown is not required to do so. Such a standard of proof is impossibly high.[^4]

[75] It is not enough for me to believe that Mr. Eichner is probably or likely guilty. In those circumstances, I must find Mr. Eichner not guilty because Crown counsel would have failed to satisfy me of his guilt beyond a reasonable doubt. Proof of probable or likely guilt is not proof of guilt beyond a reasonable doubt. Proof of probable or likely guilt is only proof on a balance of probabilities standard – and the standard of proof required in a criminal case is not the balance of probabilities. Again, the standard of proof required in a criminal case is proof beyond a reasonable doubt.

Assessment of credibility

[76] It is common ground that where an accused elects to testify on his own behalf, and the court is presented with two competing versions of the critical events in question, such that credibility is important, then central to the court’s analysis of the case are the well-known principles in R. v. W.(D.).[^5] There, the Supreme Court of Canada held that the trier-of-fact should be instructed on the issue of credibility in accordance with the following three-step analysis:

First, if you believe the evidence of the accused, obviously you must acquit.

Second, if you do not believe the testimony of the accused but you are left in reasonable doubt by it, you must acquit.

Third, even if you are not left in doubt by the evidence of the accused, you must ask yourself whether, on the basis of the evidence which you do accept, you are convinced beyond a reasonable doubt by that evidence of the guilt of the accused.[^6]

[77] In my view, the commentary on the W.(D.) principles set out by Code J. in his decision in R. v. Thomas is of assistance. In that case, Code J. held:

… [W.(D.)] does not describe three sequential analytical steps that a trier of fact must pass through, one at a time. Rather, it describes three distinct findings of fact that a trier of fact can arrive at, when considering all the evidence at the end of the case, namely, complete acceptance of the accused’s exculpatory account (“step 1”), complete acceptance of the Crown witnesses’ inculpatory account (“step 3”), or uncertainty as to which account to believe (“step 2”). …

… A trier of fact must look at all the evidence, when deciding whether to accept the accused’s evidence and when deciding whether it raises a reasonable doubt. It is at that same point in time that the trier of fact will also determine whether the Crown’s witnesses prove guilt beyond reasonable doubt and whether the accused’s contrary exculpatory account must necessarily be rejected. In other words, these decisions are all made at the same time on the basis of the same total body of evidence. The so-called “three steps” in W.D. are simply different results, or alternative findings of fact, arrived at by the trier of fact at the end of the case when considering the totality of the evidence.[^7]

[78] The principles enunciated in W. (D.) are applicable whenever any evidence is called that is favourable to the accused.[^8]

[79] As such, in the circumstances of the instant case, I must assess the evidence as follows:

a. if I believe the evidence of Mr. Eichner that he did not commit the offence as charged, I must acquit him;

b. if, after careful consideration of all the evidence, I am unable to decide whom to believe, I must find Mr. Eichner not guilty because Crown counsel would have failed to prove Mr. Eichner’s guilt beyond a reasonable doubt;

c. even if I do not believe the evidence of Mr. Eichner, but I am left in a reasonable doubt by his evidence as to any essential element of the offence charged, I must acquit him of that offence;

d. even if I do not believe and am not left in a reasonable doubt by the evidence of Mr. Eichner, then I must consider, on the basis of all the evidence that I do accept, whether I am convinced beyond a reasonable doubt of the guilt of Mr. Eichner. Only where I am so convinced should Mr. Eichner be convicted. It is a very high burden.

[80] That said, I well recognize that the determination of an accused’s guilt or innocence must not devolve into a mere credibility contest between a complainant and the accused. Such an approach erodes the operation of the presumption of innocence and the assignment of the burden of proof beyond a reasonable doubt to the prosecution.

Credibility and reliability

[81] Credibility and reliability are not identical concepts. Credibility refers to the honesty of the witness. Was the witness telling the truth when he or she gave their evidence? Reliability refers to the accuracy of the witness’s evidence. Did the witness accurately receive the information, accurately remember the information, and accurately relate the information in their testimony? Was the witness accurate, was the witness correct, when the witness related past events in their testimony? A witness may be honest – i.e., credible – but simply wrong, simply incorrect, in relating past events – i.e., not reliable. I have considered both concepts in my assessment of the evidence.

[82] Where there are significant inconsistencies or contradictions within a witness’s testimony, or when considered against other conflicting evidence in the case, I must carefully assess the evidence before concluding that guilt has been established.

[83] Demeanour evidence alone cannot suffice to make a finding of guilt. One must not jump to conclusions based entirely on a witness’s demeanour when they were testifying. Giving evidence at a trial is not a common experience for many witnesses, and different people will react and appear differently. There are simply too many variables to make the particular demeanour in which a witness testifies the only or most important factor in one’s decision.

[84] To make my decision on the issues of credibility and reliability overall, I must consider carefully, and with an open mind, all the evidence presented during the trial. It will be up to me to decide how much or little I believe and rely upon the testimony of any witness. I may believe some, none, or all of it.

[85] One must use common sense and experience in deciding whether people know what they are talking about and whether they are telling the truth. There is no magic formula for deciding how much, or how little, to believe of the testimony of any witness or how much to rely on it in deciding this case.

[86] I instruct myself in accordance with all of these fundamental principles.

Law

Sexual crimes against young persons

[87] Count 1 of the indictment, which is based on the first incident involving sexual intercourse, alleges that Mr. Eichner committed the offence of sexual interference, contrary to s. 151 of the Criminal Code, which provides in pertinent part that:

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[.]

[88] “To establish sexual interference, the Crown must prove beyond a reasonable doubt each of these essential elements: that the complainant was under 16 years of age at the time; that the accused touched the complainant; and that the touching was for a sexual purpose.”[^9]

[89] Counts 2 and 3 of the indictment, which are based on, respectively, the “closing up shop” incident and the “drive to Tim Hortons” incident, allege that Mr. Eichner committed the offence of invitation to sexual touching, contrary to s. 152 of the Code, which provides in pertinent part that:

Every person who, for a sexual purpose, invites, counsels or incites a person under the age of 16 years to touch, directly or indirectly, with a part of the body or with an object, the body of any person, including the body of the person who so invites, counsels or incites and the body of the 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[.]

[90] “To establish invitation to sexual touching, the Crown must prove beyond a reasonable doubt each of these essential elements: that the complainant was under 16 years of age at the time; that the accused invited the complainant to touch him; and that the touching was for a sexual purpose.”[^10]

[91] It is common ground that at the time of all three incidents in question, J.M.D. was a person under the age of 16 years for the purposes of ss. 151 and 152.

[92] Given the age of the complainant at the time of the incidents, as a matter of law, it is not open to Mr. Eichner to maintain that J.M.D. consented to the sex acts in question. That position is foreclosed to Mr. Eichner by reason of the provisions of s. 150.1 of the Code, which provide that:

Subject to subsections (2) to (2.2), when an accused is charged with an offence under section 151 or 152 … 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.

[93] Further, none of the exceptions set out in subsections 150.1(2) through (3) applies to the circumstances of the instant case.

Mistake of age

[94] What is relevant for present purposes is the defence of mistake of age and, more specifically, the limitations on the availability of the mistake of age defence established by s. 150.1(4), which provides that:

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.

[95] As I consider the question of the proper application of s. 150.1(4) to the circumstances of the instant case, I bear in mind the words of Gascon J., writing for the majority in the Supreme Court of Canada’s decision in R. v. George, that:

Sexual crimes are disproportionately committed against vulnerable populations, including youth. The “reasonable steps” requirement in s. 150.1(4) of the Criminal Code … – which requires an accused person who is five or more years older than a complainant who is 14 years of age or more but under the age of 16, to take “all reasonable steps to ascertain the age of the complainant” before sexual contact – seeks to protect young people from such crimes. It does so by placing the responsibility for preventing adult/youth sexual activity where it belongs: with adults. Parliament’s allocation of responsibility to adults is crucial for protecting young people from sexual crimes.[^11]

[96] By reason of the restrictions imposed by s. 150.1(4), the fault element required to prove the offences of sexual invitation or invitation to sexual touching is not purely subjective. As the Supreme Court explained in R. v George, through the statutory intervention reflected in s. 150.1(4), “Parliament has imported an objective element into the fault analysis to enhance protections for youth.”[^12]

[97] In practical effect, the purpose of the “all reasonable steps” requirement is to demand that adults proceed with extreme caution when contemplating sexual activity with someone whom they believe may be an adolescent.

[98] As such, the Supreme Court in R. v. George expressed the burden on the Crown in the following terms:

As a result, to convict an accused person who demonstrates an “air of reality” to the mistake of age defence, the Crown must prove, beyond a reasonable doubt, either that the accused person (1) did not honestly believe the complainant was at least 16 (the subjective element); or (2) did not take “all reasonable steps” to ascertain the complainant’s age (the objective element).[^13]

[99] The Supreme Court went on in R. v. George to explain how the objective element might be established in any given case, in the following terms:

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[.][^14]

[100] In R. v. Chapman, our Court of Appeal addressed the question of what constitutes “all reasonable steps” for the purpose of s. 150.1(4) and observed that the section requires a “due diligence” inquiry, as follows:

Section 150.1(4) mandates an inquiry akin to a due diligence inquiry. The analysis involves comparing the steps, if any, taken by an accused to determine the complainant’s age with the steps that a reasonable person would have taken in those circumstances[.][^15]

[101] The Court of Appeal went on to say that s. 150.1(4) “does not require that an accused make every possible inquiry to ascertain a complainant’s age in order to successfully mount a mistake of age defence.”[^16]

[102] Rather, the Court of Appeal recognized that what constitutes “all reasonable steps” will vary depending on the context and all the circumstances of the particular case.[^17]

[103] In his decision in R. v. W.G., Gray J. reviewed many of the authorities, noting that “the courts have wrestled with what ‘all reasonable steps’ will involve under different circumstances.”[^18] Recognizing that there is “no automatic checklist of factors,” as our Court of Appeal has also done,[^19] Gray J. offered the following helpful observations:

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[.]

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[.]

c) there is a commonly recognized motivation for young people to misrepresent their age[.]

d) the greater the age difference, the higher the degree of diligence that may be required in ascertaining the complainant’s true age[.]

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[.][^20]

Issues

[104] In my view, the issues that arise in this case are as follows:

a. Has the Crown proven beyond a reasonable doubt each of the essential elements of the offences of sexual interference and invitation to sexual touching?

b. Has the Crown proven beyond a reasonable doubt that Mr. Eichner did not honestly believe that J.M.D. was at least 16 years of age?

c. Has the Crown proven beyond a reasonable doubt that Mr. Eichner did not take all reasonable steps to ascertain J.M.D.’s age?

Analysis

Has the Crown proven beyond a reasonable doubt each of the essential elements of the offences of sexual interference and invitation to sexual touching?

[105] I need not spend much time on this issue. As Mr. Ducharme said at the outset of the case for the defence, reiterated at the end of the examination-in-chief of the complainant, and repeated in his closing, this is really a singular issue case – that is, the case is all about Mr. Eichner’s knowledge of the complainant’s age.

[106] As such, with respect to Count 1, apart from the question of mistake of age, I am satisfied beyond a reasonable doubt that the Crown has otherwise established the essential elements of the offence of sexual interference. It is agreed that the complainant was in fact under 16 years of age at the time of the encounter. As Mr. Eichner admits the act of sexual intercourse, I find that he engaged in touching the complainant, and the touching obviously had a sexual purpose.

[107] Similarly, with respect to each of Counts 2 and 3, again apart from the question of mistake of age, I find that the Crown has established the essential elements of the offence of invitation to sexual touching beyond a reasonable doubt. In each case, I find that Mr. Eichner invited the under-age complainant to touch his penis, and the touching clearly had a sexual purpose.

[108] That said, I am also satisfied that Mr. Eichner’s mistake of age defence has a sufficient air of reality to warrant consideration. The evidence of Mr. Eichner was that the complainant told him, before the first incident involving the sexual intercourse, that she was 16 years of age and was turning 17 in December 2017. The evidence before the court, if believed, is capable of supporting the defence.

[109] Once it has been shown that there is an “air of reality” to the mistake of age defence, the onus is on the Crown to negative the defence beyond a reasonable doubt.[^21]

[110] As such the Crown is required to prove beyond a reasonable doubt either that Mr. Eichner did not honestly believe that J.M.D. was at least 16 years of age (the subjective element) or that he did not take “all reasonable steps” to ascertain J.M.D.’s age (the objective element).

Has the Crown proven beyond a reasonable doubt that Mr. Eichner did not honestly believe that J.M.D. was at least 16 years of age?

[111] The central position of Mr. Eichner at trial is that, he says, J.M.D. told him she was 16 years of age and would be turning 17 in December 2017, and he believed her. In particular, I would summarize his evidence on the critical question of age as follows:

a. Mr. Eichner first met the complainant in September 2017 when she came into the pizzeria with a friend.

b. Over the course of the repeated visits of the complainant to the pizzeria, Mr. Eichner believed that she found him attractive, that she was flirting with him, and that she had a crush on him.

c. Mr. Eichner had one conversation with the complainant about her age, and that one conversation occurred one month before the incident involving sexual intercourse. However, in cross-examination, Mr. Eichner said he did not remember when he spoke to the complainant about her age; he said he knew it was before her birthday, but he did not remember when.

d. Mr. Eichner knew that J.M.D. attended St. Joseph’s Catholic High School.

e. Essentially in response to what Mr. Eichner considered to be the complainant’s flirtatious behaviour, he asked J.M.D., “how old are you anyways?” His evidence is that the complainant replied that she was then 16 years of age. Mr. Eichner testified that he then asked her what Grade she was in, and the complainant replied that she was in Grade 11.

f. The evidence of Mr. Eichner was that he believed the complainant was telling the truth when, he says, she told him that she was 16 years of age and in Grade 11.

g. Mr. Eichner knew that the complainant’s birthday was in December. He testified that J.M.D. told him that she would be turning 17 years of age on her birthday in December 2017.

h. Mr. Eichner said the complainant joked about him giving her a cellphone for her 17th birthday.

i. Mr. Eichner said he believed the complainant looked older than her actual age. His evidence was that she looked probably 17 or 18 years of age as of the time of his first encounter with her. He testified that she did not look “anything like under 16.” His evidence was that, observing the complainant testify at trial, he believed she looked like she was in her early 20s.

j. Mr. Eichner’s evidence was that the notion that the complainant looks older than her actual age was the topic of discussion with the complainant and, he maintains, the complainant told him that she “gets that” quite a lot, that is, that other people have made the same observation about her.

k. Mr. Eichner does not remember ever saying to the complainant not to tell anyone about their sexual encounters. He suggested that if he had said something like that, it would be in the context of not telling anyone that they had sex at his place of business. He testified that “the only thing” he would be concerned about is people knowing that the sexual activity took place at his “establishment,” that is, his place of business.

l. Mr. Eichner testified that he never once spoke with the complainant’s older brother, J.G.E., about the age of the complainant or what Grade she was in. He denies that J.G.E. ever used the term “younger sister” in reference to the complainant when speaking with Mr. Eichner.

[112] While the evidence of the complainant is consistent with the testimony of Mr. Eichner on many collateral aspects, her evidence is, not surprisingly, fundamentally at odds with that of the accused on the more critical points. I would summarize the evidence of the complainant as follows:

a. The complainant testified that, consistent with Mr. Eichner’s subsequent evidence, she first met Mr. Eichner in September 2017 when she came into the pizzeria with her friend, M.D.

b. The complainant agreed that she found Mr. Eichner attractive and good looking. She denied that she ever flirted with him. She denied that she ever wanted to be in a girlfriend-boyfriend relationship with him.

c. The complainant adamantly denied that she ever told Mr. Eichner that she was 16 years of age at the time in question or that she would be turning 17 in December 2017. She similarly denied that she ever told him that she was in Grade 11.

d. The complainant did not recall Mr. Eichner ever asking her how old she was.

e. The complainant maintained Mr. Eichner knew she was in high school and attended St. Joseph’s Catholic High School, which, Mr. Eichner admits, he did in fact know.

f. The complainant testified in examination-in-chief that she knew she told Mr. Eichner that she was in Grade 9. The complainant said she was “not too sure” whether she told him that before or after the incident involving sexual intercourse.

g. The complainant maintained that Mr. Eichner knew that she had just entered Grade 9 by reason of their repeated conversations about what was going on in their respective lives and, in particular, what was going on in her school life.

h. In re-examination, the complainant testified that she was not positive if she told Mr. Eichner her age or what Grade she was in, but she knows that he knew she was in Grade 9.

i. The complainant testified that Mr. Eichner said to her that she looked “older” than her actual age. The complainant cannot recall when Mr. Eichner said this to her, but she knows that her friend M.S.P. was present at the time. In cross-examination, when it was put to her that in response to Mr. Eichner’s comment that she looks older than her age, she said to him that a lot of people say that to her, the complainant answered that she “might have” said that, but she does not remember that exact conversation.

j. In cross-examination, the complainant testified that she does not remember whether Mr. Eichner ever told her that she seems “more mature” than someone 16 years of age.

k. The complainant was asked in examination-in-chief whether there was any further conversation with Mr. Eichner about her age in or about the time of the “driving to Tim Hortons” incident, which took place in January 2018, and she replied that she did not remember telling him her exact age then. The complainant maintained, however, that Mr. Eichner knew how old she was by reason of their discussions over the months.

l. The complainant testified that on more than one occasion Mr. Eichner told her that she should not tell anyone about their sexual encounters. She testified that he raised that a few times, that she believed the topic was raised less than five times, but that she was not positive about that.

m. The complainant testified that she does not remember exactly if she ever asked Mr. Eichner about his age, but she said she did in fact know his age; however, she could not say whether Mr. Eichner told her his age or whether her brother did.

[113] The other important witness on the question of age is, of course, the complainant’s older brother. I have already summarized the evidence of J.G.E. on the question of his age and the complainant’s age, as set out in paras. [64] to [69] above.

[114] Given that Mr. Eichner testified, and given further that the evidence of the complainant and her older brother contradicts that of Mr. Eichner on some critical points, I must remind myself of the W.(D.) principles. Accordingly, the issue is not simply whether I believe the complainant or whether I believe Mr. Eichner. Even if, on a balance of probabilities, I believe the complainant, I must still find Mr. Eichner not guilty if the evidence, taken as a whole, including the evidence of Mr. Eichner, raises a reasonable doubt about his guilt.

[115] In his closing submissions, Mr. Ducharme described the complainant as a bright, articulate, young woman whose memory was spotty at times. I take no real issue with Mr. Ducharme’s characterization.

[116] I certainly recognize that the evidence of the complainant was not always reliable as to when certain discussions took place – as Mr. Ducharme said, her memory was spotty at times. By the same token, I would note that none of the witnesses had an exact word-for-word recollection of their conversations, which is not surprising given the passage of two years from the time of the incidents in question.

[117] Further, I am mindful of the reality that one does not always remember unremarkable events. Questions as to one’s age or Grade might seem trite or mundane at the time they are being discussed. It is a common reality that people who do not appreciate that a topic of discussion may later – even years later – assume a greater significance will not always remember the details of that discussion merely because the topic was unremarkable at the time it was being discussed. That is, there was no reason to remember it at the time.

[118] That said, I found the complainant to be a straightforward and candid witness, and while certainly there were definite lapses in her memory, she did not exaggerate her evidence and was not argumentative in giving her testimony.

[119] Indeed, I found her to be careful in her testimony in the sense that she readily acknowledged that which she did not know or could not recall and that of which she was certain. For example, she knew that she told Mr. Eichner that she was in Grade 9, but she readily admitted that she could not recall whether she told him that before or after the sexual intercourse. In any event, she adamantly maintained that Mr. Eichner knew she was in Grade 9 as a result of their many conversations over the months in question.

[120] To take another example, she testified that she did in fact know how old Mr. Eichner was, but she was careful to say that she did not know whether it was Mr. Eichner or her brother who told her that.

[121] To take a further example, in cross-examination, the complainant was asked whether Mr. Eichner went to lock the front door of the pizzeria, and she answered, to paraphrase, that while she did not actually see Mr. Eichner lock the front door, she assumed he did because he had asked her if he should lock the door, and he then left the rear of the pizzeria to go to the front of the store. My point is that many a witness, when asked the same question, would just answer that the accused went to lock the front door. However, J.M.D. answered that she did not actually know that Mr. Eichner locked the front door because she did not actually observe him. In my view, that is the mark of a witness who is mindful of the limitations on her observations and is making a concerted effort to be careful in her testimony.

[122] Further, the complainant did not try to demonize the accused in any way. She readily acknowledged that she enjoyed speaking with Mr. Eichner, and in giving her evidence, she did not attempt to hide the fact that she clearly felt comfortable in his company.

[123] In the same vein, the complainant demonstrated a real effort to remain even-handed and fair in her testimony. To my mind, the chief example of that was likely her agreement with Mr. Ducharme’s questions in cross-examination that “at every step of the way” of the sexual encounters, Mr. Eichner asked the complainant if he could proceed with the activity in question, and she agreed – a point upon which Mr. Ducharme placed some emphasis in closing argument. At no point did J.M.D. ever try to portray Mr. Eichner as having attempted to overwhelm her or force her to do something against her apparent will.

[124] In sum, while I have some concerns regarding the reliability of the complainant’s evidence as to when certain discussions took place, I have no doubt about her version of events.

[125] Turning to the evidence of the older brother, I also found J.G.E. to be a straight-forward and candid witness. In closing submissions, Mr. Ducharme suggested that the evidence of the older brother was “vague.” Respectfully, I do not share that view. I found J.G.E. to be a highly credible and reliable witness.

[126] Like his younger sister, I found J.G.E. to be careful in giving his evidence. For example, he testified that he told Mr. Eichner that he was 15 years of age, but he readily offered that he did not remember when he said that to Mr. Eichner. And, I would note, while Mr. Eichner initially resisted the suggestion, Mr. Eichner eventually did yield in cross-examination that he knew J.G.E. was 15 years of age when he was hired.

[127] Further, J.G.E. did not try to exaggerate or distort his evidence for tactical purposes. Indeed, I note that in cross-examination, J.G.E. made a number of concessions that one might regard as favourable to the position of the accused. In that regard, J.G.E. testified that he thought Mr. Eichner was a “very cool boss,” that Mr. Eichner let him eat at the pizzeria, that Mr. Eichner arranged to obtain a new iPhone for him, that Mr. Eichner let him pay the phone off over time, that Mr. Eichner taught him how to drive, that Mr. Eichner gave him keys to the pizzeria, that Mr. Eichner trusted him to close up the shop, etc. Like his younger sister, J.G.E. certainly did not try to demonize the accused. I found that he gave his evidence in a fair and even-handed manner.

[128] Further, again I must respectfully disagree with Mr. Ducharme’s closing submission that although J.G.E. testified that he told Mr. Eichner that J.M.D. was his younger sister and that she had just entered Grade 9 at St. Joseph’s, the brother could not remember the context of that conversation. On the contrary, the evidence of J.G.E. was that the occasion upon which he introduced his younger sister to Mr. Eichner was, to his mind, the first time his sister came into the pizzeria when he was working there.

[129] I pause to note that both the complainant and Mr. Eichner testified that the first time they met was one day when the complainant came in with her friend, M.D. To my mind, that is consistent with the evidence of the older brother. The evidence of the complainant was that she and her friend M.D. stopped in the pizzeria as they were walking home from school – that is, that it was a school day when the complainant first met Mr. Eichner in person. That is not inconsistent with the evidence of her older brother that he almost always worked weekends at the pizzeria. It is plain to me that the first time the complainant met Mr. Eichner was after school one week-day when she was walking home from school with her friend M.D., but that was not the same day as the day when the complainant first encountered Mr. Eichner at the pizzeria when her brother was working there.

[130] The evidence of J.G.E. was that on the day in question, he introduced J.M.D. to Mr. Eichner as his “younger sister” and, as I have said, he told Mr. Eichner that she was in Grade 9 and had just started her first year at St. Joseph’s.

[131] I readily accept that her older brother would have introduced the complainant to Mr. Eichner as his “younger sister” and being in Grade 9 at high school. To my mind, the context of the first encounter of the complainant with Mr. Eichner in the presence of her older brother provides the natural explanation of why J.G.E. introduced J.M.D. to Mr. Eichner in the manner in which, I find, he did.

[132] Moreover, I would observe that J.G.E. was subjected to vigorous cross-examination on the central issue concerning the information that he told Mr. Eichner about his sister’s age, but he did not waver in his testimony. And in this regard, I do not suggest that Mr. Ducharme’s cross-examination of the witness was unfair in any way; rather, I merely observe that it was appropriately thorough and focussed. And J.G.E. emerged unscathed.

[133] In contrast, I have various concerns regarding the evidence and credibility of Mr. Eichner.

[134] In contrast to the complainant, I cannot say that I found Mr. Eichner to be careful in his testimony at trial. Indeed, I found the reverse was true. To be frank, my impression of Mr. Eichner over two days of observation of him as a witness at trial is that he routinely gave calculated responses and that in responding to questions, he appeared to strive to keep in the fore of his mind that answer that, he believed, would best suit his purposes.

[135] For example, in cross-examination, Crown counsel put to Mr. Eichner that he knew that J.G.E. was 15 years of age when Mr. Eichner first hired him. The immediate response of Mr. Eichner was that he did not know J.G.E.’s age; he just knew that he worked at the pizzeria previously.

[136] However, as I have said, when pressed in cross-examination, Mr. Eichner admitted – consistent with the previous testimony of J.G.E. – that he had discussions with J.G.E. about him getting his driver’s licence in January 2018; he admitted having offered to teach J.G.E. how to drive; he admitted that he knew J.G.E. was excited about getting his driver’s licence; he admitted that he knew the boy’s birthday was coming up in January; and, critically, he admitted that he knew J.G.E. would be turning 16 years on his birthday in January 2018, as a result of which he allowed that – “okay, that makes sense” – he knew J.G.E. must have been under 16 years when Mr. Eichner hired him.

[137] And yet Mr. Eichner began that exchange with Crown counsel saying that he did not know that J.G.E. was 15 years of age when he started at the pizzeria. In my view, he began that exchange with an answer that, he thought, would best suit his purpose. At the very least, Mr. Eichner was not careful in his initial testimony. At worst, Mr. Eichner was not truthful in his initial testimony.

[138] Moreover, I would note that at one point in cross-examination, Mr. Eichner was referred to the previous testimony of J.G.E., who had said that in the course of accepting the job at the pizzeria, he was required to fill out some paperwork, in the course of which gave his date of birth and other personal information to Mr. Eichner. In response, Mr. Eichner denied that he was aware that J.G.E. had given his date of birth, and he suggested that J.G.E. dealt not with him but with his bookkeeper by email – a point that was not put to J.G.E. in cross-examination – and that, further, Mr. Eichner never reviewed the work of his bookkeeper. To my mind, that was all part of a concerted effort on the part of Mr. Eichner to resist the notion that he knew J.G.E. was not 16 years of age when he hired him. And yet, just a few minutes later in his testimony, Mr. Eichner admitted that he must have known that J.G.E. was under 16 years of age when he was hired.

[139] To take another example, in cross-examination, Mr. Eichner was questioned about his observations concerning the frequency of the complainant’s visits to the pizzeria following the incident of sexual intercourse. The evidence of the complainant was that she felt used after the incident and, accordingly, did not attend at the pizzeria for a few days. In contrast, the response of Mr. Eichner, which he repeated, was that the complainant’s visits to the pizzeria became even more frequent following the incident. However, when pressed by Crown counsel, Mr. Eichner ultimately admitted that he actually did not have any specific recollection of the complainant visiting the pizzeria in the few days that followed the incident. Again, that exchange indicated to me that, at the very least, Mr. Eichner was not being careful in his testimony to the court or, alternatively, Mr. Eichner was trying to cast a more favourable light on his testimony than that afforded by the actual truth.

[140] To take yet a further example, in cross-examination, Mr. Eichner was questioned about whether he ever told the complainant not to tell anyone about their sexual encounters. His initial response was that he did not remember ever saying that. He went on, however, to suggest that if he had said something like that, it would be in the context of not telling anyone that they had sex at his place of business. He testified that if he had said something like that, his concern would be about people discovering that the sexual activity took place at his pizzeria. At that point, I intervened in the cross-examination to clarify whether Mr. Eichner in fact had a memory of any such conversations or whether he was just speculating as to what “he would have” said, and the response of Mr. Eichner was that he did not actually recall any such conversations. Again, that is not the mark of a witness who is attempting to be careful in his testimony. Rather, that is the mark of a witness who is prepared to engage in speculation to further what he believes to be his own best interests.

[141] I found that, at times, Mr. Eichner was prepared to resort to implausible fiction to support his position at trial. For example, in cross-examination, Mr. Eichner was questioned about certain conversations he had with the complainant about her aspirations to obtain a good-paying job so that she could save enough money to buy a car for herself. From that particular exchange, Crown counsel extracted admissions from Mr. Eichner that, inter alia, he knew the complainant did not have a car, he knew she did not have the financial means to purchase a car, he knew that she did not have a job, and she did not have a driver’s licence. Crown counsel put to Mr. Eichner that by reason of the fact that he knew the complainant did not have a driver’s licence, he must also have questioned whether the complainant was of the requisite 16 years of age in order to obtain a driver’s licence. The response of Mr. Eichner, remarkably, was to the effect that because the complainant wanted to purchase a car, he assumed that she must have had a driver’s licence (and was therefore at least 16 years of age). I must say that, to my mind, the non-sensical nature of Mr. Eichner’s response must have been obvious to everyone in court the moment he uttered it. And to that end, Mr. Eichner quickly agreed with Crown counsel’s follow-up question that even a 13-year-old child have dreams of purchasing a car without possessing the legal-age capacity of obtaining a driver’s licence. To my mind, this was an obvious example of the extent to which Mr. Eichner was prepared to give answers – even obviously non-sensical answers – in order to support his position at trial.

[142] These and other examples from Mr. Eichner’s testimony have given me cause to seriously consider Mr. Eichner’s evidence at trial and, I must say, to question its veracity.

[143] In these circumstances, I find that I cannot – and do not – believe Mr. Eichner. I do not regard him as a credible witness. I do not accept his evidence, except where it is consistent with other evidence that I do accept. I do not accept his evidence that he honestly believed that J.M.D. was 16 years of age at the time of the sexual intercourse or subsequent sexual encounters.

[144] As well, I am not left in a reasonable doubt by his evidence as to any element of the offences charged. Further, considering all of the evidence that I do accept, I am convinced beyond a reasonable doubt that Mr. Eichner did not honestly believe that J.M.D. was 16 years of age as of the time of their sexual encounters.

[145] Thus, for all these reasons, I find that the Crown has proven beyond a reasonable doubt that Mr. Eichner did not honestly believe that J.M.D. was at least 16 years of age at the time of the incidents in question.

Has the Crown proven beyond a reasonable doubt that Mr. Eichner did not take all reasonable steps to ascertain J.M.D.’s age?

[146] In any event of my conclusion about the subjective element under s. 150.1(4), I would go on to consider the objective element as well. Mr. Eichner would still be convicted if the Crown proves beyond a reasonable doubt that Mr. Eichner did not take “all reasonable steps” to ascertain the age of the complainant.

[147] Having considered the objective element, I am persuaded beyond a reasonable doubt that, in all of the circumstances of the instant case, Mr. Eichner did not take all reasonable steps to ascertain J.M.D.’s age.

[148] I start with the profound age difference between the complainant and the accused. Again, at the time of the sexual intercourse, J.M.D. was still 13 years of age, and Mr. Eichner was 29 years old. Mr. Eichner was more than twice the age of the complainant.

[149] In R. v. K. (R.A.), Hoyt C.J.N.B., writing for the unanimous New Brunswick Court of Appeal, held that: “[a]lmost 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 [who was, in that case, not yet 17 years of age].”[^22] This same passage was quoted with approval by our Court of Appeal in R. v. Chapman.[^23]

[150] In a similar vein, I note that in R. v. K.S., which involved an appeal from the conviction imposed by the trial judge for sexual interference resulting from sexual activity with a 14-year-old minor, the Ontario Court of Appeal dismissed the appeal and held that:

[The trial judge] relied upon the photographs to conclude that [the complainant’s] appearance around the time of the event, along with other evidence – including [the accused’s] admission that he knew the complainant to be in high school at the time – would have prompted a reasonable 30 year old to make reasonable inquiries about her age before proceeding to having sex with her. Yet [the accused], a 30 year old man giving a ride to a high school student he had just met that day, took no steps to inquire about the complainant’s age. In our view, the trial judge’s finding was closer to being inevitable than unreasonable.[^24]

[151] In the instant case, even on his own evidence, Mr. Eichner had only one conversation with J.M.D. when he asked her, one time, “how old are you anyways?” On his evidence, he accepted her answer because, in his view, her answer was not inconsistent with his own impression of how old she appeared to be based on her physical appearance.

[152] However, in my view, there were a number of “red flags” confronting Mr. Eichner that ought to have impelled him to make a more thorough inquiry than he did.

[153] One of the red flags was the age of the high school clientele that came into Mr. Eichner’s pizzeria. Mr. Eichner admitted that he was well aware that it was an offence to have sexual relations with a person under 16 years of age. He also admitted that high school students from St. Joseph’s Catholic High School came into his pizzeria. Further, Mr. Eichner admitted that he knew that students attending high school typically range in age from 13 years to 17 years or even 18 years. Accordingly, in cross-examination, he agreed with Ms. Lamphier’s suggestion that he therefore knew that chances were that almost 50 percent of the students coming into his shop were under-age.

[154] More specifically, it is not disputed that Mr. Eichner knew that the complainant attended high school at St. Joseph’s. He expressly admitted same, and that was consistent with his own observations of J.M.D. occasionally wearing clothing with the “St. Joseph’s” name on it.

[155] Mr. Eichner relies, in part, on his alleged belief that the physical appearance of the complainant was such that, at the very least, her apparent physical age was consistent with her alleged statement to him that she was 16 years of age, going on 17. Indeed, Mr. Eichner’s evidence is that he thought that, based on her physical appearance, J.M.D. was probably 17 or 18 years of age.

[156] In support of his alleged belief that J.M.D.’s physical appearance was consistent with a person who was at least 16 years of age, Mr. Eichner testified that when the complainant came in to his pizzeria, he observed that she was wearing makeup, her hair was done up, and her nails were done.

[157] One of the difficulties I have with the position of Mr. Eichner is that the courts have consistently and repeatedly ruled that a reasonable person would be aware of the “commonly recognized motivation for young people to misrepresent their age.”[^25] As our Court of Appeal observed in R. v. Chapman, a “reasonable person would appreciate that underage children may apply makeup and dress and act so as to appear older.”[^26] In the same vein, as Grey J. of our court said in R. v. W.G., “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.”[^27]

[158] Moreover, the instant case does not merely involve the legal construct of what the “reasonable person” ought to have known. Indeed, in the instant case, Mr. Eichner himself admitted in cross-examination that he was well aware that it was not unusual for high school girls to get “all dolled up” and, further, that he knew that doing their hair and makeup was a technique that high school girls specifically used in order to make themselves appear older than their actual age.

[159] In other words, a reasonable person – and Mr. Eichner specifically – ought to have known that it was folly to place much reliance on his own perception of the physical appearance of the complainant.

[160] Indeed, Mr. Eichner ought to have appreciated the danger in relying on perceptions of the physical appearance of the complainant given that, on his own evidence, other people had told the complainant that she appeared to be older than her actual age. In other words, even accepting the evidence of Mr. Eichner that the complainant told him that other people had told her that she looks older than her age, and that he believed the same to be true, he therefore ought to have known that the complainant’s looks were deceiving because other people had, apparently, made the same mistake. That ought to have put Mr. Eichner on notice that people have found the complainant’s physical appearance to be deceiving. That ought to have been a red flag for Mr. Eichner.

[161] But there were other red flags confronting Mr. Eichner as well. There were the red flags raised by the company that the complainant apparently kept.

[162] In this regard, the evidence of Mr. Eichner was that he had observed the complainant in the company of her friend M.S.P., and he admitted that he knew that M.S.P. was in elementary school. While I appreciate that, as Mr. Eichner knew, the complainant and M.S.P. were neighbours, he admitted that he observed the complainant “hanging” with M.S.P. in his pizzeria on more than one occasion. To Mr. Eichner’s suggestion that he thought perhaps the complainant might be babysitting her friend M.S.P., I say only that I reject his evidence on point, and I find his attempted explanation to be self-serving and thoroughly specious.

[163] One should also consider the company that the complainant kept by reference to the notebook that Mr. Eichner said he kept on the front counter of the pizzeria, for the purposes of customer feedback and the like. Exhibit 1 at trial was the page from that notebook upon which the complainant and her friends, including M.D., wrote various comments for Mr. Eichner’s review. The only comment directed towards Mr. Eichner that can be reliably attributed to J.M.D. is the writing: “your [sic] hot”. But other comments include: “we [heart] you!” and “keep this as a memory of me [heart].” I note that particular page of the notebook is peppered with heart-shaped icons. Indeed, of the 11 comments on that single page, more than half of them include a heart-shaped icon. In the circumstances, I do not disagree with the closing submission of Ms. Lamphier that the comments on that page of the notebook reflect a certain degree of immaturity on the part of the writers. That said, speaking for myself, I would describe the comments as being age-appropriate for 13-year-old schoolgirls.

[164] The other feature of the company that the complainant kept that ought to have been considered by Mr. Eichner is the fact that she had a brother who, admittedly, he knew to be just 15 years of age when Mr. Eichner hired him in the summer of 2017, just three months before the episode of sexual intercourse with his sister. This was not a situation where Mr. Eichner knew that the complainant’s brother was, say, 25 years old; rather, he knew the boy was just 15 years. That should have been a red flag for Mr. Eichner.

[165] As I have said, in the instant case, Mr. Eichner asked the complainant her age on only one occasion, and he simply took the word of the complainant that she was of age – despite the many red flags that were staring him in the face.

[166] To my mind, the instant case is not unlike the situation in R. v. W. G., where Gray J. concluded that:

In the final analysis, [the accused] simply took [the complainant’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.

[167] In the instant case, it seems to me that, if as Mr. Eichner suggested in his evidence, it was so unthinkable to ask the complainant for identification, then the next simplest step would have been for Mr. Eichner to ask the complainant’s brother, J.G.E., how old his sister was. But, on Mr. Eichner’s evidence, that was not done. On Mr. Eichner’s evidence, he had no discussion with the complainant’s brother about the complainant’s age. In my view, a reasonable person would have done that.

[168] However, somewhat remarkably, Mr. Eichner utterly rejected the notion that he might have some obligation to take some reasonable steps to ascertain the age of the 13-year-old J.M.D. before having sexual relations with her. In that vein, in cross-examination, Mr. Eichner told Ms. Lamphier that he did not ask the complainant for her I.D. Further, he said that he was not “an investigator,” and he was not going to “interrogate” the complainant. Mr. Eichner repeatedly and adamantly maintained that he was not going to ask her “20 questions.”

[169] In my view, Mr. Eichner might not have been obliged to ask the complainant 20 questions. But he was certainly required to do more than just ask her the one.

[170] To the extent that the purpose of the “all reasonable steps” requirement in s. 150.1(4) of the Code is to demand that adults proceed with extreme caution when contemplating sexual activity with someone who they believe may be an adolescent, it is abundantly clear to this court that Mr. Eichner did not proceed with extreme caution. On the contrary, in the circumstances of the instant case, I find that Mr. Eichner was recklessly indifferent as to the age of the complainant.

[171] For all of these reasons, I find that the Crown has proven beyond a reasonable doubt that Mr. Eichner did not take all reasonable steps to ascertain the complainant’s age before engaging in sexual activity with her.

Conclusion

[172] Accordingly, for the above reasons, after having reviewed all of the evidence in this case, and despite the very able submissions of Mr. Ducharme, I find Daniel V. Eichner guilty of:

a. committing the offence of sexual interference upon the under-aged complainant, J.M.D., contrary to s. 151 of the Criminal Code, as charged in Count 1 of the indictment;

b. committing the offence of invitation to sexual touching upon the said J.M.D., contrary to s. 152 of the Code, as charged in Count 2 of the indictment; and

c. committing the offence of invitation to sexual touching upon the said J.M.D., contrary to s. 152 of the Code, as charged in Count 3 of the indictment.

J. Paul R. Howard

Justice

Delivered Orally: Thursday, July 30, 2020

COURT FILE NO.: CR-18-4319-0000

ONTARIO

SUPERIOR COURT OF JUSTICE

BETWEEN:

HER MAJESTY THE QUEEN

– and –

DANIEL V. EICHNER

REASONS FOR JUDGMENT

Howard J.

Delivered Orally: Thursday, July 30, 2020

[^1]: Criminal Code, R.S.C. 1985, c. C-46.

[^2]: More specifically, J.G.E. is the older half-brother of the complainant, the two siblings having the same mother but different fathers.

[^3]: By my order made December 2, 2019, pursuant to s. 486.2(1) of the Code, the complainant testified at trial by way of closed-circuit television.

[^4]: R v. Lifchus, 1997 CanLII 319 (SCC), [1997] 3 S.C.R. 320, 118 C.C.C. (3d) 1, at pp. 336-337 [cited to S.C.R.].

[^5]: R. v. W.(D.), 1991 CanLII 93 (SCC), [1991] 1 S.C.R. 742, 63 C.C.C. (3d) 397 [cited to S.C.R.].

[^6]: Ibid. at pp. 757-758.

[^7]: R. v. Thomas, 2012 ONSC 6653 (S.C.J.), at paras. 23-24.

[^8]: R. v. D. (B.), 2011 ONCA 51, 266 C.C.C. (3d) 197, at para. 114.

[^9]: R. v. K.S., 2018 ONSC 1988 (S.C.J.), at para. 49, affirmed 2019 ONCA 474.

[^10]: Ibid. (S.C.J.), at para. 49.

[^11]: R. v. George, 2017 SCC 38, [2017] 1 S.C.R. 1021, 349 C.C.C. (3d) 371, at para. 2.

[^12]: Ibid., at para. 8.

[^13]: Ibid. [Citations omitted.]

[^14]: Ibid., at para. 9. [Citations omitted.]

[^15]: R. v. Chapman, 2016 ONCA 310, 130 O.R. (3d) 515, 337 C.C.C. (3d) 269, at para. 40. [Citations omitted.] See also R. v. Hess, 1990 CanLII 89 (SCC), [1990] 2 S.C.R. 906; and R. v. Dragos, 2012 ONCA 538, 111 O.R. (3d) 481, 291 C.C.C. (3d) 350, at paras. 33-40.

[^16]: Ibid., at para. 50.

[^17]: Ibid. See also R. v. Duran, 2013 ONCA 343, 3 C.R. (7th) 274, at para. 52.

[^18]: R. v. W.G., 2018 ONSC 5404 (S.C.J.), at para. 57

[^19]: R. v. Duran, at para. 52.

[^20]: Ibid., at para. 58. [Citations omitted.]

[^21]: See R. c. Cinous, 2002 SCC 29, [2002] 2 S.C.R. 3 (S.C.C.); and R. v. W.G., at para. 47.

[^22]: R. v. K. (R.A.), 1996 CanLII 7277 (NB CA), 106 C.C.C. (3d) 93, 175 N.B.R. (2d) 225, at para. 11, quoted in R. v. W.G., at paras. 58, 60, and 67.

[^23]: R. v. Chapman, at para. 46.

[^24]: R. v. K.S., 2019 ONCA 474, at para. 8.

[^25]: R. v. George, at para. 9.

[^26]: R. v. Chapman, at para. 53. See also R. v. W.G., at para. 62; and R. v. K.S., at para. 63.

[^27]: R. v. W.G., at para. 58, citing R. v. Hayes, [1991] A.J. No. 1232 (Alta. Q.B.), at para. 22.