COURT FILE NO.: CR- 4765/19
DATE: 20210519
ONTARIO
SUPERIOR COURT OF JUSTICE
BETWEEN:
HER MAJESTY THE QUEEN
– and –
A-M
Defendant
Delia Greco, for the Crown
Lisa Carnelos, for the Defendant
HEARD: February 16, 17 and 18, 2021
PUBLICATION RESTRICTION NOTICE
By court order made under subsection 486.4(1) of the Criminal Code,
information that may identify the person described in this judgment as the
complainant may not be published, broadcasted or transmitted in any manner.
This judgment complies with this restriction so that it can be published.
Justice R. Raikes
[1] The defendant stands charged with
- Sexual assault contrary to s. 271 of the Criminal Code
- Sexual interference contrary to s. 151 of the Criminal Code
- Invitation to sexual touching contrary to s. 152 of the Criminal Code.
[2] The charges arise from a single incident in Windsor on November 30, 2018 involving the same alleged victim. Because the complainant is a minor and to minimize the risk of inadvertent publication of her name through this decision, I will refer to her throughout as “the complainant”. By doing so, I do not mean to be antiseptic or less respectful.
[3] At the commencement of trial, the following admissions were made:
- The complainant’s date of birth is […], 2004.
- She was not quite 14 years old when the alleged incident occurred.
- The defendant was 18 years old when the alleged incident occurred.
[4] There is no dispute that touching of a sexual nature occurred. How that came about, who initiated it, and what touching occurred differs between complainant and defendant. In this case, there is an independent witness who observed some of the sexual activity albeit briefly and from outside the vehicle where the sexual activity was happening.
[5] The principal issues in this case are: 1) whether the defendant took all reasonable steps to ascertain the complainant’s age before the sexual activity occurred, and 2) whether she consented to that sexual activity.
Pre-November 30, 2018 Contact
[6] The complainant and defendant first met at Devonshire Mall in Windsor roughly a month before the incident in question. The complainant was at the mall with her best friend at the time, H.. They regularly went to the mall on Fridays or Saturdays to eat and shop. The complainant was in grade 9 at a local high school. She was 13 years old. H. was in grade ten at the same school. They hung out together almost everyday. H. was 15 or 16 years old at the time.
[7] The defendant was at the mall with male friends. He was 18 years old. He is a big guy. He and his friends were getting ready to leave the mall to go play basketball.
[8] According to the complainant, she recognized one of the guys in the group with the defendant, J.. She had spoken to him briefly once or twice before. She and H. approached the group. They stood together on one side and the guys stood opposite them roughly three feet away. The complainant was wearing some make-up. She agreed in cross-examination that she looked older than her age and she acted older.
[9] The complainant testified that the two groups spoke briefly with H. doing the talking for the two young ladies. She was focused on her phone and was no paying much attention. At one point in the conversation, she recalled that the defendant asked what her name was and H. told him; otherwise, the defendant said nothing, and the complainant said nothing. The communication between the two groups lasted roughly 5 minutes.
[10] The defendant testified that the complainant and her friend approached J. about buying tickets for a “bash party”. H. indicated that they were 16 and could not get the tickets. J. advised that he was 17 and could not get them either. A “bash party” is a party for high schoolers who are 18 years old and older. It involves a lot of drinking and is reputed to be a “wild night”.
[11] The defendant testified that the complainant did not contradict H.’s statement that they were 16 years old. She appeared content with the statement. He did not know either girl. He was not introduced to them. He did not recall whether he asked the complainant’s name. The conversation was brief, perhaps two minutes. H. and J. did most of the talking.
[12] The complainant initially agreed in cross-examination that H. asked J. about tickets to a bash party and, almost immediately after, denied any inquiry made about a bash party. She denied that H. said that they were 16 years old during the conversation.
[13] I accept the defendant’s evidence as to the conversation at the mall; specifically, that H. indicated the she and the complainant were 16 years old and were looking to get tickets to a bash party. The complainant said nothing to contradict or cast any doubt on the accuracy of the ages put forward by H.. At the time, she looked and dressed like a 16-year old.
[14] The complainant testified that a few days to two weeks later, the defendant messaged her on Snap Chat to ask if she was the girl at the mall. The complainant likened their communication via Snap Chat to text messages.
[15] I pause to indicate that my understanding of how Snap Chat works comes largely from what the complainant and defendant testified to. According to the complainant, she had a Snap Chat account as part of her social media presence. Her account did not show her photo but used a “bit moji” which she described as a cartoon figure that looked like her. From time to time, she posted updates to her “story” along with pictures of herself. Her posts and pictures were available to view by those whom she had accepted to have access to her account. The posts and photos automatically deleted after 24 hours unless she deleted them sooner.
[16] She could track the number of “views” for posts on Snap Chat. She had many people on her Snap Chat account. When the defendant messaged her to ask if she was the girl from the mall, he was someone she had previously accepted to view her posts even though she did not know him. Until his messaged inquiry, she was not aware that he was on her Snap Chat account.
[17] According to the complainant, they messaged two or three times on Snap Chat before the day of the incident giving rise to the charges. The messages were brief – hi, how are you doing. There were no communications about their ages. She testified in chief that she thought that he was 16 years old but never asked him. He never asked her age. Apart from these brief communications – at the mall and by message – they knew very little about each other.
[18] According to the defendant, it was the complainant who initiated their Snap Chat communications by asking him if he was the boy from the mall. This happened a few days after the meeting in the mall. She sent a photo of her face along with her bit moji which he described as an animated person or avatar. He recognized her as the girl from the mall from the photo and learned her full name during that conversation.
[19] He testified that they messaged one another a handful of times between meeting at the mall and November 30. Again, she was the one who typically reached out to him to say hi, how are you. In one message, she told him that she was skipping school to smoke weed with her friends. She indicated that she did that often.
[20] He went on Instagram where he found her profile which gave the initials of her school and her grade – grade 10. He messaged her to tell her that he saw her profile and that she was in grade 10. She replied that she was in grade 11 and had forgotten to change her profile. He accepted her response at face value.
[21] The complainant denied any such communications about her school or what grade she was in. They simply never happened.
[22] I accept the defendant’s evidence that he looked up the complainant on Instagram and reviewed her profile which indicated that she was in grade 10. I also accept that he messaged her about being in grade 10 and she replied that she was in grade 11. Thus, as at November 30, 2018, he believed her to be 16 based on,
- H.’s statement at the mall that they were 16 which the complainant did not contradict and appeared comfortable with.
- Her appearance.
- Her message that she was in grade 11 at a local high school.
- Her manner – there was nothing in their interactions up to November 30, 2018 to indicate she was younger.
[23] Both the complainant and defendant testified that he never asked her age directly. He did not say: how old are you? I observe that they were not long-time acquaintances. They did not hang out in the same social circles. They did not attend the same school. His knowledge of her was limited to what he saw and heard at the mall, what he read on Instagram, and what he learned through the handful of communications via Snap Chat. She never told him her life story, nor did he inquire.
November 30, 2018
a. Complainant’s Story
[24] The complainant testified in-chief that her father dropped her off at H.’s brother’s home in Windsor at approximately 4 p.m. on November 30, 2018. He lived about a ten-minute drive from her home. Her parents had plans to go out for dinner and to do some Christmas shopping. She was going to hang out with H., H.’s brother, his girlfriend, and their children and watch movies.
[25] The complainant indicated that she had been at H.’s brother’s many times yet could not recall even his first name, the children’s names, the address, or even the name of the street.
[26] She testified that she planned to take the bus home but in cross-examination was decidedly uncertain when or if the bus ran and where to catch it. She was not a regular bus patron.
[27] The complainant and defendant both testified that it was the complainant who reached out to the defendant on November 30. She messaged him to see what he was doing and told him that she had no ride home. She did not come right out and ask for a ride, but she was looking to see if he would offer to give her a ride.
[28] She testified that the defendant offered to pick her up with his father and drive her home. She accepted. She lied to H. and her brother about how she was getting home. She led them to believe that she was taking the bus. She lied to her parents. She told them that she was getting a ride with H.’s brother even though he did not drive and had no vehicle.
[29] According to the complainant, she saw the defendant pull up near H.’s brother’s home. She walked to the car and got in the front passenger seat. It was a Dodge Journey. She told him her address and suggested that he take Wyandotte. He was driving. His father was not in the vehicle.
[30] He turned onto Rivait St.. She had no idea where she was or where he was going. He pulled into an empty parking lot at a Windsor Public Library Branch and parked his car. There were no lights. It was dark out and she was scared. There had been very little conversation between them to that point. She asked where they were, and he ignored her.
[31] She testified that she asked him if she could get in the back seat. He said yes. He stayed in the front driver’s seat for about ten minutes. Music was playing. He was on his phone. She sat in the back looking at her phone. She had no data so she could not call anyone for a ride. She looked at stored images on her phone. She asked him to take her home and he ignored her.
[32] She was wearing black tights or leggings, a zip up sweater, and a coat. She testified in-chief that she was wearing a bra that fastened in front under her sweater.
[33] The defendant got in the back seat. He moved closer to her. She tried to move away and turned into the corner away from him. He was trying to unzip her coat and sweater. He took her bra off and put it on the floor on the passenger side. She repeatedly asked him to stop but he ignored her. She tried to move away as he was trying to touch her but was up against the door.
[34] She testified that he touched her right breast with his hands for perhaps a few seconds. Initially the touching was over clothing. He asked her to “do it” and pointed to his penis area. He was fully clothed throughout. She never touched his penis. When he touched her legs, she pushed his hand away. When he tried to kiss her, she moved her head so that he could not. She asked him to stop at least four times.
[35] According to the complainant, the defendant knew when the police arrived. There were bright lights and a knock on the car window. She saw the defendant arrested. An officer told her to go and sit in a police car. She asked if she could put her bra on and was told that she could. She ran to the police car. She denied giving police an incorrect year of birth and could not recall if they asked her age. They kept asking her for identification and she did not have any. She was taken home by police where she was interviewed in the presence of her mother.
[36] The complainant’s cross-examination revealed newly added facts and many inconsistencies including:
- She did not want to take the bus because it was freezing cold out.
- She did not tell her parents that her ride – from H.’s brother – had fallen through; however, at the preliminary hearing, she testified that she did reach out to her parents and told them that H.’s brother was not able to drive her.
- She testified in cross-examination that her parents told her to find her own way home or simply didn’t answer; however, again at the preliminary hearing, she testified that her parents told her that they could come and get her in an hour or so. Because she was 13, she had a set time to be home and waiting for her parents meant being late and she was not allowed to be late getting home.
- She did not tell H. that the defendant was picking her up because H. would want to come along, and the complainant’s mother did not want people to come to their home.
- She told H. and her mother that she was going to take the bus even though she had arranged a ride with the defendant.
- She indicated that when they pulled into the parking lot, the defendant told her that he had been there before and it would be fine. That fact was new. It was not part of her statement to police or preliminary hearing testimony.
- When police arrived, she was trying to get the defendant off her and he was saying “oh my God, oh my God”. She made no reference to him uttering that in her statement to police or in her testimony at the preliminary hearing.
- He tried to hide her bra when police knocked on the window by pushing it under the front seat. This is another new fact added.
- She testified that she told police when they opened the door to his car that the defendant had had his hands all over her but later agreed that she never made any allegation of sexual assault until interviewed at home by police. She did not tell police that he was sexually assaulting her because she did not know what was going on.
- At the preliminary hearing, she testified that she did not use her phone to reach out to her parents because she thought they would be “super mad”. She made no mention that she had no WIFI or data for her phone at the preliminary hearing.
- In contrast to her testimony in-chief, at the preliminary hearing she testified that her bra probably fastened in the back, that he must have taken one arm out of her sweater or coat. When asked at the preliminary hearing how her bra was removed, she made no mention of a strapless bra.
- She agreed that police asked if he ever told her his age and she said no. At the preliminary hearing and at trial, she testified that he told her he was 16.
[37] The complainant denied that she removed her bra, she unzipped her sweater, she straddled the defendant in the back seat, that her breasts were exposed as she straddled him, and she was grinding against his pelvis as she straddled him. Her evidence in this regard is at odds with that of the defendant and the independent witness.
[38] The complainant’s evidence was fraught with inconsistencies and was contradicted on material points by the defendant, the independent witness who called police, and Constable Franklin, one the officers who responded to the parking lot and later interviewed the complainant.
b. Defendant’s Story
[39] The defendant testified that he picked up the complainant near the address she gave him on Glidden St.. He parked in a vacant parking spot on the road near a church. She crossed the road and walked to the car.
[40] The defendant was certain as to the name of the street where he picked her up. She told him via message that she was at a friend’s house. As it turns out, that is the street she lived on. Did she message him from home? Was she even at H.’s brother’s place?
[41] When she got in the car, he was driving. His father was not present. He agreed that he was not licenced to drive without another licenced driver in the vehicle.
[42] He testified that the complainant provided directions and he simply drove where she told him to go. He did not ask where they were going. There was very little conversation. She told him to pull into the library parking lot. He had never been to that parking lot. He thought that was where he was to drop her off.
[43] He parked the car only after she told him that she had extra time and they could chill. He drove deep into the parking lot and reversed the car into a parking spot near an entrance to the lot.
[44] The defendant acknowledged that he was much larger than the complainant. At the time, he was about 6’3” and weighed 300-305 lbs. She was maybe 100 lbs. As he put it, almost everyone is smaller than he is. He testified that he had limited prior sexual experience.
[45] When he parked the car, they were listening to music. His hand was resting on the centre console, palm down. She turned his hand over and interlocked her fingers with his. He was a bit nervous. She then moved to the backseat on the driver’s side. He did not ask her to do so. He turned and asked her if everything was okay. She invited him to join her in the backseat.
[46] He got out of the vehicle and walked around to the passenger side rear door. He got in. She shifted her position so that her back was against the rear driver’s side door and put her leg on his thigh. She asked him why he looked nervous. She told him that he was attractive.
[47] He testified that she initiated the sexual activity between them in the car. She removed her top and her bra. As she was straddling him and kissing him, she grabbed his shirt from the bottom and pulled it up. He lifted his arms but otherwise did nothing to help her. His shirt was off when police arrived.
[48] He testified that the complainant straddled him and was grinding him with her top off. She was facing him. Her breasts were free and in his face. His hands were on her legs, but he acknowledged that he may have touched her breasts with them. He never asked her to do anything to him.
[49] He testified that at first, he felt a bit overwhelmed but was “into it”. At no time did the complainant ask him to stop or to take her home. At no time did she indicate by word or action that she was not consenting to their sexual touching. Her breathing got heavier as she straddled him. He believed that she wanted the touching that was happening.
[50] She was still straddling him when police approached the car with lights. They shone their lights on them and asked him for his identification which he provided. They removed him from the car. They asked him how old she was.
[51] He testified that the complainant was physically mature. He believed her to be 16 when this incident occurred from her appearance, manner and the information gleaned from their earlier communications.
[52] The defendant was consistent in his evidence as to what happened on November 30, 2018. I observe that his version of what happened in the back seat is consistent with the observations made by the independent witness and police and make sense in terms of body positioning and clothing. He was cooperative with police.
[53] I am troubled by some aspects of his evidence; notably
- He told her that he would pick her up with his father but showed up alone, driving a vehicle he was not licenced to drive without another driver in the car.
- He said that he did not find her attractive but drove from downtown to the east end of Windsor to give her a ride to an unknown location and engaged in sexual activity with her.
- He parked at the rear of the parking lot. He had the whole parking lot to choose from including spots nearer the road.
- He never asked her where they were going to. Was home in Amherstburg? In West Windsor?
- He claimed not to be familiar with that area of Windsor but he found Glidden Street with no difficulty.
c. Independent Witness
[54] Crystal Sauve is a stay-at-home mother with four children. She lived roughly 4-5 minutes walk from the library.
[55] Ms. Sauve and her 10-year old daughter were out for a walk on November 30, 2018 when she noticed a vehicle in the parking lot of the library. She was roughly 15-20 feet away from the vehicle when she saw a half-undressed woman in the vehicle. The woman’s breast was exposed. She appeared to be on top of someone. They were grinding on each other. She believed that they were having sex.
[56] The vehicle was parked near the rear of the parking lot but there were lit street-lamps. She had a very clear view. From what she could see, the female with the exposed breast appeared to be an adult. She described the female as having dark colour hair. The complainant had blonde hair at the time.
[57] Ms. Sauve covered her daughter’s eyes. She turned and walked away. She called police on her cell phone.
[58] Ms. Sauve gave her evidence in a clear, cogent, and consistent manner. She did not appear to embellish or minimize her evidence. She was clear about what she saw. Her conclusion that she had observed two people having sex in a car is consistent with what she told police when she called. Her description of the colour of the woman’s hair is likely attributable to the lighting, car window and her distance from the car and does not materially affect the credibility or reliability of her evidence. I find her evidence to be credible and reliable and I accept it.
d. Constable Franklin
[59] Constable Franklin was on patrol when he was dispatched to the library parking lot at 7:31 p.m. on November 30, 2018. He arrived at the scene at 7:47 p.m..
[60] Upon arrival, he observed a silver Dodge Journey. Its front windshield was completely fogged. It was the only vehicle in the parking lot.
[61] There were two persons in the car – a male and female. He shone a light into the passenger side window when he was roughly 2-3’ from the car. His partner did the same from the other side. Both persons were sitting in the backseat. The male was on the passenger side and the female on the driver’s side.
[62] He knocked on the window. The defendant opened the door. He asked them what they were doing. The defendant said that they were just hanging out. The complainant was asked her name and date of birth. She gave her name and date of birth with 2002 as the year of birth. That date given would make her 8 days shy of her 16th birthday.
[63] He returned to the cruiser with his partner where they did a check on their computer. They found a name that matched the name and date of birth given by the complainant except that the year of birth was 2004, not 2002. He then spoke with her. She spoke very quietly and softly. He had to ask her date of birth multiple times. She appeared reluctant to provide the information requested. Eventually she said she was born in 2004.
[64] According to Constable Franklin, while at the parking lot, the complainant said only that the defendant was hugging and kissing her. She did not say that he had been pawing at her or pulling her shirt off or touching her breasts. She did not say that he took her bra off or her clothes. He observed her quickly zipping up her sweater while in the car. He could see enough to conclude that she was not wearing a bra under her sweater and later saw her holding the bra when she got out of the car. She did not run to the police car.
[65] He attended at her home where she was formally interviewed in the presence of her mother. He agreed in cross-examination that:
- She gave her statement quietly and hesitantly.
- Some of her answers caused him to wonder if she was concerned that her mother not find out how often she had communicated with the defendant.
- He was concerned that because her mother was present and she was only 13 years old, the complainant might not want her mother to hear of her interactions with another person especially of a sexual manner.
- Her mother was upset.
- Her father was within earshot and was likewise upset.
Analysis
[66] Although the complainant and defendant tell very different versions of how they came to be in the parking lot and what transpired in the backseat, there is no doubt on the evidence in this trial that the defendant and complainant engaged in sexual activity in his car on November 30, 2018. Thus, there was intentional touching of a sexual nature by the defendant of the complainant. The issue of consent and honest but mistaken belief that she was 16 years old will be addressed below.
[67] Before I turn to those issues, I will first address the charge of invitation to sexual touching. The Crown relies upon the complainant’s evidence that the defendant pointed to his penis and told her to “do it”. The defendant denies asking the complainant to perform any sexual act. This is a “she said, he said” scenario which engages the W.D. analysis.
[68] The complainant was 13 years old when the alleged sexual offences occurred and 16 when she testified at trial. At one time there was an assumption that the evidence of children was inherently unreliable. That assumption is now long in the past. In R. v. R.W., 1992 CanLII 56 (SCC), [1992] S.C.J. No. 56, Justice McLachlin (as she then was) of the Supreme Court of Canada wrote at para. 23:
The second change in the attitude of the law toward the evidence of children in recent years is a new appreciation that it may be wrong to apply adult tests for credibility to the evidence of children. One finds emerging a new sensitivity to the peculiar perspectives of children. Since children may experience the world differently from adults, it is hardly surprising that details important to adults, like time and place, may be missing from their recollection. …
[69] Following a lengthy quote from the decision of Wilson J. in R. v. B. (G.), 1990 CanLII 7308 (SCC), [1990] 2 S.C.R. 30, McLachlin J. wrote:
As Wilson J. emphasized in B. (G.), these changes in the way the courts look at the evidence of children do not mean that the evidence of children should not be subject to the same standard of proof as the evidence of adult witnesses in criminal cases. Protecting the liberty of the accused and guarding against the injustice of the conviction of an innocent person require a solid foundation for a verdict of guilt, whether the complainant be an adult or child. What the changes do mean is that we approach the evidence of children not from the perspective of rigid stereotypes, but on what Wilson J. called a “common sense” basis, taking into account the strengths and weaknesses which characterize the evidence offered in the particular case.
It is neither desirable nor possible to state hard and fast rules as to when a witness’s evidence should be assessed by reference to “adult” or “child” standards – to do so would be to create new stereotypes potentially as rigid and unjust as those which the recent developments in the law’s approach to children’s evidence have been designed to dispel. Every person giving testimony in court, of whatever age, is an individual, whose credibility and evidence must be assessed by reference to criteria appropriate to her mental development, understanding and ability to communicate. But I would add this. In general, where an adult is testifying as to events which occurred when she was a child, her credibility should be assessed according to criteria applicable to her as an adult witness. Yet with regard to her evidence pertaining to events which occurred in childhood, the presence of inconsistencies, particularly as to peripheral matters such as time and location, should be considered in the context of the age of the witness at the time of the events to which she was testifying.
[70] In R. v. D.D., 2000 SCC 43, [2000] 2 S.C.R 275, Justice Major, writing for the majority at para. 59, endorsed the principle that in cases of child sexual abuse, “the timing of the disclosure, standing alone, signifies nothing. Not all victims of child sexual abuse will disclose the abuse immediately. It depends upon the circumstances of the particular victim.”
[71] At para. 65, he wrote:
A trial judge should recognize and so instruct the jury that there is no inviolable rule on how people who are the victims of trauma like a sexual assault will behave. Some will make an immediate complaint, some will delay in disclosing the abuse, while some will never disclose the abuse. Reasons for delay are many and at least include embarrassment, fear, guilt, or a lack of understanding and knowledge. In assessing the credibility of the complainant, the timing of the complaint is simply one circumstance to consider in the factual mosaic of a particular case. A delay in disclosure, standing alone, will never give rise to an adverse inference against the credibility of the complaint.
[72] I have included the reference to D.D. because of the brief delay in the complainant’s disclosure of the alleged sexual assault to police. In my view, nothing turns on the delay per se. But, the inconsistencies in her testimony at trial as to what she said she told police and when, the inconsistencies between what she testified at trial and what she testified to at the preliminary hearing, what she said in her statement to police, and the inconsistency with Constable Franklin’s testimony stand on different footing – they are matters relevant to her credibility and reliability.
[73] I am mindful that the complainant was and is a child. She is not, however, a young child nor was she testifying to events that happened much earlier in time. She appears to be an intelligent and poised young person.
[74] As indicated earlier, the evidence provided by the complainant was internally and externally inconsistent. Even with allowance for her age at the time of the events in question and her age when she testified, her evidence is deeply flawed to the point where I have little confidence in its accuracy except to the extent it is corroborated by other credible evidence.
[75] To pick but a few significant inconsistencies among many: first, the complainant testified that she never straddled the defendant with her breasts exposed. That is precisely what Ms. Sauve saw and what the defendant testified occurred. Second, she testified that the defendant remained fully clothed throughout but his shirt was off according to Constable Franklin when police knocked on the window. The defendant testified that his shirt was off and she took it off. Finally, she lied to police when they asked her date of birth and testified at trial that she could not recall that they asked for her age.
[76] As indicated earlier, I have some misgivings about the defendant’s evidence but in the end, his testimony in the context of the whole of the evidence is enough to raise a reasonable doubt concerning the charge of invitation to sexual touching.
[77] To be clear, I am not satisfied beyond a reasonable doubt that the Crown has proven that the defendant invited the complainant to touch his body with a part of her body for a sexual purpose. I accept the defendant’s evidence that he did not point to his penis and ask her to “do it”. I find that no such request was made by the defendant. The charge of invitation to sexual touching is dismissed.
[78] I turn now to the charges of sexual interference and sexual assault.
[79] The defendant raises the following defences: honest but mistaken belief that the complainant was at least 16 years old and she consented to the sexual activity.
[80] Section 150.1(1) states that subject to subsections (2) and (2.2), consent is not a defence to a charge under ss. 151, 152 and 271 where the victim was under the age of 16 years when the sexual activity in question occurred.
[81] Subsections 150.1(2) and (2.1) state:
(2) When an accused is charged with an offence under section 151 or 152, subsection 173(2) or section 271 in respect of a complainant who is 12 years of age or more but under the age of 14 years, it is a defence that the complainant consented to the activity that forms the subject matter of the charge if the accused
(a) is less than two years older than the complainant; and
(b) is not in a position of trust or authority towards the complainant, is not a person with whom the complainant is in a relationship of dependency and is not in a relationship with the complainant that is exploitative of the complainant.
(2.1) If an accused is charged with an offence under section 151 or 152, subsection 173(2) or section 271 in respect of a complainant who is 14 years of age or more but under the age of 16 years, it is a defence that the complainant consented to the sexual activity that forms the subject matter of the charge if the accused
(a) is less than five years older than the complainant; and
(b) is not in a position of trust or authority towards the complainant, is not a person with whom the complainant is in a relationship of dependency and is not in a relationship with the complainant that is exploitative of the complainant.
[82] Subsection (6) states:
(6) An accused cannot raise a mistaken belief in the age of the complainant in order to invoke a defence under subsection (2) or (2.1) unless the accused took all reasonable steps to ascertain the age of the complainant.
[83] Thus, s. 150.1(1) removes consent as an available defence subject to the two “close in age” exceptions found in subsections (2) and (2.1). If the statutory requirements are present and the ages of complainant and defendant fit the particular exception, consent is a potential defence available to the defendant.
[84] By way of example, if a 14-year old boy is charged with sexual assault of a 13-year old girl, the defendant boy can assert that she consented to the sexual activity under the exception in (2) provided the relationship was not one of trust and authority etc. as set out in (b). In that scenario, if the defendant raises an air of reality to the defence that the complainant consented, the Crown must prove beyond a reasonable doubt that there was no consent to the sexual activity: R. v. George, 2017 SCC 38, [2017] 1 S.C.R. 1021, at para. 8.
[85] Similarly, and again by way of example, if an 18-year old boy is charged with sexual interference of a 15-year old girl, he can raise the defence of consent so long as the relationship was not one covered by (b). The exception in subsection (2.1) is engaged because in this scenario, he is less than five years older than the complainant.
[86] In both scenarios, there is no need to prove that the defendant believed the complainant was at least 16 years old. In these scenarios, the defendant may well be aware of the complainant’s true age.
[87] Subsection (6) governs when a defendant seeks to assert the exceptions in (2) or (2.1) but mistakenly believed the complainant was older than she was. For example, a 17-year old defendant believed the complainant was 15 when, in fact, she was only 13. In that case, he must provide evidence that he took all reasonable steps to ascertain the complainant’s age as a precondition to asserting his mistaken belief. Unlike subsection (4), he need not provide evidence that he believed her to be 16. If he took all reasonable steps to ascertain her age and mistakenly believed her to be 15, that will suffice to allow him to assert her consent to the sexual activity in question under the exception in (2.1).
[88] In the case before me, it is admitted that when the incident in question occurred, the complainant was 8 days shy of her 14th birthday. She was 13 years old. The defendant was then 18 years old and, as such, he was more than two years older than the complainant. The statutory precondition found in (2)(a) is not met. He cannot rely on the close in age exception found in (2).
[89] Defence counsel urges me to find that the defendant can avail himself of the exception in subsection (2.1). She argues that because he believed that the complainant was 16 years old, he must be taken to have believed that she was at least 14 or 15. She relies on subsection (6). Defence counsel asserts that the defendant had an honest but mistaken belief that the complainant was at least 14-15 and took all reasonable steps to ascertain her age. Thus, he can invoke the close in age exception in (2.1) to assert consent as a defence because he was less than five years older than the age that he believed her to be.
[90] I observe that at no point did the defendant suggest in his testimony that he believed she was less than 16 years old. He did not say, for example, “I thought she was around 16”. There is nothing in his evidence to suggest he thought she might have been 14 or 15. His evidence was clear and unequivocal that he thought she was 16.
[91] Section 150.1(4) governs where there is an honest but mistaken belief that the complainant was 16 years old. That subsection states:
(4) It is not a defence to a charge under section 151 or 152, subsection 160(3) or 173(2) or section 271, 272 or 273 that the accused believed that the complainant was 16 years of age or more at the time the offence is alleged to have been committed unless the accused took all reasonable steps to ascertain the age of the complainant.
[92] In circumstances where s. 150.1(2) and (2.1) do not apply, a defendant may nevertheless assert a mistaken belief that the complainant was 16 years old or older provided the defendant took all reasonable steps to ascertain her age. Both subsections (4) and (6) require that the defendant who asserts a mistaken belief as to the complainant’s age must have taken all reasonable steps to ascertain her age. Both provisions mandate an inquiry akin to a due diligence inquiry by the trier of fact, albeit with the onus on the Crown: R. v. Saliba (2013), 2013 ONCA 661, 304 C.C.C. (3d) 133 (Ont. C.A.), at para. 28; R. v. Dragos (2012), 2012 ONCA 538, 291 C.C.C. (3d) 350 (Ont. C.A.), at paras. 29-33.
[93] Neither subsection (4) or (6) require the defendant to have made every possible inquiry to ascertain the complainant’s age in order to establish a mistake in age defence, nor does it necessarily require that the defendant have expressly asked the complainant his or her age: R. v. Chapman (2016), 2016 ONCA 310, 337 C.C.C. (3d) 269 (Ont. C.A.), at para. 50.
[94] In R. v. Duran, 2013 ONCA 343, Laskin J.A. wrote at paras. 52-54:
[52] What constitutes “all reasonable steps” depends on the context and the circumstances. There is no automatic checklist of considerations applicable to every case. Indeed, in some cases, and accused’s visual observation of the complainant may be enough to constitute reasonable steps.
[53] In this case, the trial judge should have instructed the jury to determine whether what the appellant knew and observed about the complainant were all the steps a reasonable person needed to take or whether a reasonable person ought to have made further inquiries. In making that determination, the jury should have been told to take account of the following considerations and evidence on them: the accused’s observation of the complainant; the complainant’s appearance and behaviour; the information the complainant told the appellant about herself, including any information about her age; and the age differential between the appellant and the complainant.
[54] These suggested instructions find support in CRIMJI: Canadian Criminal Jury Instructions, Gerry Ferguson, Michael Dambrot, and Elizabeth Bennett, 4th ed.,… and in reasons of the British Columbia Court of Appeal in R. v. L.T.P. (1997), 1997 CanLII 12464 (BC CA), 113 C.C.C. (3d) 42 where Finch JA said at para 20:
“In considering whether the Crown has proven beyond a reasonable doubt that the accused has not taken all reasonable steps to ascertain the complainant's age, the court must ask what steps would have been reasonable for the accused to take in the circumstances. As suggested in, R. v. Hayes, supra, sometimes a visual observation alone may suffice. Whether further steps would be reasonable would depend upon the apparent indicia of the complainant’s age, and the accused’s knowledge of same, including: the accused’s knowledge of the complainant's physical appearance and behavior; the ages and appearance of others in whose company the complainant is found; the activities engaged in by the complainant either individually, or as part of a group; and the times, places and other circumstances in which the complainant and her conduct are observed by the accused. The court should ask whether, looking at those indicia, a reasonable person would believe that the complainant was 14 years of age or more without further inquiry, and if not, what further steps a reasonable person would take in the circumstances to ascertain her age. Evidence as to the accused’s subjective state of mind is relevant but not conclusive because, as pointed out in R. v. Hayes at p.11, “an accused may believe that he or she has taken all reasonable steps only to find that the trial judge or jury may find differently”.
The reference to age 14 no longer applies since amendments to the Criminal Code, but the principles quoted remain applicable.
[95] The defendant must adduce sufficient evidence to give the defence an air of reality. This is a relatively low bar. Once met, the onus lies on the Crown to prove beyond a reasonable doubt that all reasonable steps were not taken or, in the context of (4), that the defendant did not believe that the complainant was 16 years or older.
[96] Whether the inquiry is made under (4) or (6) of s. 150.1, it is substantially the same. If the Crown has proven beyond a reasonable doubt that the defendant did not take all reasonable steps, the issue of consent by the complainant to the sexual activity cannot be raised and need not be considered in the determination of guilt. In that circumstance, lack of consent is not a constituent element of the offence to be proven beyond a reasonable doubt.
[97] If the Crown has not proven beyond a reasonable doubt that the defendant failed to make all reasonable inquiries, then the court must go on assess and determine whether the Crown has proven lack of consent by the complainant beyond a reasonable doubt.
[98] I have already reviewed the evidence he adduced as to the basis for his belief that she was 16. I find that the evidence of the defendant is sufficient to give rise to an air of reality to the mistaken belief that she was 16. I turn next to whether the Crown has met its burden to proven beyond a reasonable doubt that he did not take all reasonable steps to ascertain her age.
[99] The defendant did not ask the complainant at any time how old she was. What did he do in this case to ascertain her age? He saw her at the mall and the night of the sexual activity. Both were admittedly short periods of time. He saw the picture she sent him. He checked out her Instagram account profile. He asked her about the fact that it showed her as being in grade 10. She responded that she was in grade 11.
[100] I accept the defendant’s evidence concerning his first meeting with the complainant at the mall. She was right beside H. when H. asked about tickets for a bash party. H. represented that the two girls were 16 and the complainant said or did nothing to contradict or cast doubt on the truthfulness of that statement. As the defendant put it, she appeared comfortable with it.
[101] She was dressed appropriate to the age H. stated. H. was a grade ahead of her and 15-16 years old, and the complainant did not stand out as younger or less mature than H.. She was wearing some make up which would make her appear older. There was nothing in the complainant’s appearance, manner, or conduct at the mall when she first met the defendant that gave lie to her stated age of 16 or should have set off alarm bells.
[102] I pause to observe that Ms. Sauve believed the female in the car with her breast exposed was an adult.
[103] The complainant reached out to him via social media. That is consistent with her observed self-confidence. The defendant checked out her Instagram account. When he saw that she was in grade 10 he asked her directly about it. She told him that it had not been updated and she was in grade 11, a grade consistent with being 16 years old. Both checking her Instagram profile and his inquiry about her grade are inquiries consistent with confirming the age H. represented her to be.
[104] Thus, she appeared by physical appearance to be 16. She behaved as if she was 16. She stood by when her friend held her out as being 16. She misrepresented that she was in grade 11 when she was only in grade 9. She appeared to him to be 16.
[105] I am not satisfied beyond a reasonable doubt that the Crown has proven that the defendant failed to take all reasonable steps to ascertain her age. In my view, it was not necessary that he directly ask her age given what was said at the mall and his subsequent interactions with her. There is no evidence that their social circles overlapped so that he could have inquired about her through a mutual friend. Even the complainant testified that J. was merely a passing acquaintance that she had spoken to perhaps once or twice at the mall. The defendant’s efforts were, in my view, sufficient in the circumstances here.
[106] Further, I accept his evidence that he subjectively believed based on objective information that she was 16 years old. H. said she was 16. She looked and acted 16. She told him she was in grade 11. He believed her to be 16.
[107] Given my findings, the outcome is the same whether under (2.1) with (6) or under (4) of s. 150.1.
[108] I turn to the last issue: has the Crown proven beyond a reasonable doubt that she did not consent to the sexual activity in question?
[109] I am not satisfied beyond a reasonable doubt that she did not consent to the sexual activity. The evidence provided by the defendant as to the sexual activity, who instigated that activity, her conduct during the sexual activity, and what Ms. Sauve and police observed raise a reasonable doubt. Specifically,
- The defendant testified that she initiated the sexual touching. She took the lead during their activity.
- She was straddling him and grinding his pelvis.
- She removed her own clothing including her bra.
- She removed his shirt.
- She appeared to him by her actions and breathing to be enjoying their activity.
- She never asked him to stop nor did she indicate by word or action that she was not consenting.
- Ms. Sauve’s observations were consistent with consensual sexual activity.
I have commented earlier on the evidence he provided concerning their sexual activity which I find to be cogent and reliable. His evidence and that of Ms. Sauve raise a reasonable doubt.
[110] Accordingly, I find that the Crown has not proven beyond a reasonable doubt that the sexual touching was non-consensual and the charges of sexual assault and sexual interference are dismissed.
Justice R. Raikes
Released: May 19, 2021
COURT FILE NO.: CR- 4765/19
ONTARIO
SUPERIOR COURT OF JUSTICE
HER MAJESTY THE QUEEN
– and –
A-M
REASONS FOR JUDGMENT
Raikes, J.
Released: May 19, 2021