Court File and Parties

COURT FILE NO.: CJ 9708 DATE: 2021-11-09

ONTARIO SUPERIOR COURT OF JUSTICE

BETWEEN:

HER MAJESTY THE QUEEN

– and –

P.Q. Accused

COUNSEL: J. Caskie, Counsel for the Crown M. Goodfellow, Counsel for the Defendant

HEARD: August 30 to September 1, 2021

SUBJECT TO ANY FURTHER ORDER BY A COURT OF COMPETENT JURISDICTION, AN ORDER HAS BEEN MADE IN THIS PROCEEDING DIRECTING THAT THE IDENTITY OF THE COMPLAINANT AND ANY INFORMATION THAT COULD DISCLOSE SUCH IDENTITY, SHALL NOT BE PUBLISHED IN ANY DOCUMENT OR BROADCAST IN ANY WAY PURSUANT TO S. 486.4 OF THE CRIMINAL CODE OF CANADA.

REASONS FOR JUDGMENT

MR. JUSTICE I.R. SMITH:

Introduction

[1] The defendant, PQ, is charged with sexual assault and sexual interference in connection with events that occurred in the summer of 2018. The complainant, DM, was then a 15-year-old girl. PQ was 23.

[2] DM and PQ knew each other for a very short time. They met one day, agreed to meet the next, spent some time together that day and the day following, after which DM spent the night at PQ’s home. DM left the following morning and has not seen PQ since.

[3] For both counts, the key issue is whether the Crown has proven that PQ knew, or was wilfully blind or reckless about, DM’s age at the time of their sexual contact. This issue turns in large part on whether PQ took all reasonable steps to ascertain DM’s age. For the reasons which follow, I find that the Crown has proven beyond a reasonable doubt that PQ failed to take all such steps and that PQ was at least reckless with respect to DM’s age. Accordingly, I find PQ guilty of both counts.

Overview of the evidence

[4] The case for the Crown was comprised of three witnesses and an agreed statement of facts. The defence called two witnesses. PQ did not testify.

[5] Among other things, it was agreed that DM was 15 years old at the relevant time and that PQ was 23. It was also agreed that semen found on a t-shirt that the complainant provided to the police was the semen of PQ.

[6] The Crown called DM, who testified about meeting PQ, their contact in the period leading to her staying the night at PQ’s home (where she stayed because she had been kicked out of her mother’s home), and their sexual encounter, which included intercourse and which she testified was non-consensual. She said that PQ ejaculated on her stomach and that she wiped herself off with her shirt, which she later gave to the police for examination. DM testified in a straightforward manner, painted an unflattering picture of herself and her life at the relevant time, was not evasive in cross-examination, acknowledged errors in her testimony, and made reasonable concessions in favour of the defence while maintaining the core of her evidence. While there are some problems with DM’s evidence (which I address below), I am satisfied that DM was a credible witness who testified honestly before me, and I believe her evidence.

[7] DM’s mother, MM, gave evidence and testified, among other things, that she sent PQ a Facebook message telling him that DM was 15. While I find that MM was a credible witness, her evidence was confusing on the question of when this message was sent. Nevertheless, she did re-affirm in re-examination that the message was sent before DM disclosed to her that she had had sex with PQ. That disclosure was the day immediately after the sexual incident, which had happened late the previous evening. That account corresponds with the evidence of DM, which I believe, that her mother’s message was received by PQ before the sexual contact, that she discussed it with PQ in person, and that she advised PQ to “block” her mother (I note that MM confirms that PQ blocked her after she sent her message), and that she disclosed to her sister and to MM the day after the sexual incident.

[8] The Crown also called the investigating officer, Staff Sergeant Allison Yeoman, who testified that PQ told her during a telephone discussion they had that, among other things, he was never alone with DM and that there was no way his DNA would be on her. He said that he asked DM and her friends how old they were and they said they were 16. I am satisfied that PQ made this statement. It is clear, though, that his implied claim not to have had sex with DM is false. PQ was alone with DM and she was able to supply a sample of his DNA. While there is some evidence that PQ was told that DM was 16, as will be discussed, that is not the end of the matter with respect to the crucial question of PQ’s belief respecting DM’s age.

[9] The defence called two witnesses. MT, DM’s best friend at the relevant time, gave largely vague and unhelpful evidence. She said that she could not remember the relevant events well. She testified that she provided incorrect information to the police about PQ’s knowledge of DM’s age, but could or would not say exactly what was wrong with her initial statement to the police. MT’s evidence is not credible, is unreliable and is of no assistance. It does not raise a reasonable doubt.

[10] MT’s mother, TH, testified that she overheard DM telling others that she had lied to PQ about her age before sleeping with him. TH did not report this conversation to the police until roughly three years after she says that she heard it, despite being aware of the charges against PQ. This is not credible or reliable evidence. I do not believe it and it does not raise a reasonable doubt, either alone or when considered with the evidence as a whole.

Fundamental principles

[11] I observe, of course, that PQ enjoys the presumption of innocence and that the burden of proof, beyond a reasonable doubt, is on the Crown. PQ need prove nothing. Moreover, the principles set out in Regina v. W. (D.) (1991), 1991 CanLII 93 (SCC), 63 C.C.C. (3d) 397 (S.C.C.) apply in this case given that PQ made an exculpatory statement to the police and called evidence.

Elements of the offences

[12] As I have said, PQ is charged with two offences arising out of the alleged sexual encounter with DM: sexual assault and sexual interference. Both charges require proof beyond a reasonable doubt that there was a sexual touching.

[13] Sexual assault requires proof that the touching was non-consensual. In circumstances where the complainant is under the age of 16, lack of consent may be proved where the complainant actually did not consent or where the accused is 5 or more years older than the complainant at the time of the sexual touching (Criminal Code, R.S.C. 1985, c. C-46, s-ss. 150.1(1) and (2.1)(a)). In the latter case, the Crown must prove that the defendant knew, or was wilfully blind or reckless about, the complainant’s age.

[14] In the case of actual non-consent, the defendant may raise the defence of honest but mistaken belief in communicated consent. In the case of non-consent on the basis of age, the defence may raise the defence of honest but mistaken belief that the complainant was 16 or older at the time of the sexual touching.

[15] For the second count, sexual interference, consent is not in issue. The Crown need only prove beyond a reasonable doubt that, at the time of the sexual touching, the complainant was younger than 16, that the defendant was 5 or more years older than the complainant, and that the defendant knew, or was wilfully blind or reckless about, the complainant’s age. Again, though, the defence may raise the defence of honest but mistaken belief that the complainant was 16 or older at the time of the sexual touching.

[16] In this case, for both counts, the key issue is whether PQ knew, or was wilfully blind or reckless about, DM’s age.

Did PQ have sex with DM?

[17] DM testified that on the evening which she spent at PQ’s home, they smoked some marijuana before returning inside to his bedroom, where they sat on his bed. They were “chilling” and watching a movie until DM told PQ that she was tired and was going to get ready for bed. PQ said she could lie down and go to sleep. She lay down but did not fall asleep. PQ said that he too was going to get ready for bed. He did so by getting completely naked which, so he told DM, was how he always slept. This made her feel uncomfortable and she worried about what was going to happen.

[18] DM said that she was lying on one side of the bed and that PQ was on the other. Initially there was space between them, but PQ gradually moved closer to her. There was no conversation about having sex and DM stayed still but eventually they were “basically touching bodies.” DM thought that if she stayed still she would be okay. Without saying anything, PQ put his hands in her pants. In shock, she stayed still. She did not say anything.

[19] PQ had his hand inside DM’s underwear and was “playing with me down there.” She did not know what to do and did not move. He then moved his head down to her vagina and performed oral sex on her. DM testified that she is “pretty sure” PQ took her pants off but not totally sure. She said that she did not know how they came off but that she did not take them off.

[20] DM testified that PQ moved his head back to the level of her head, penetrated her vagina with his penis, eventually pulling out and ejaculating on her stomach. DM testified that she did not remember if either she or PQ spoke during the sexual contact that she described.

[21] DM testified that after PQ ejaculated on her she took her shirt and wiped herself off and then, in shock, fell asleep. As noted earlier, that shirt was later found to have PQ’s semen on it.

[22] I am satisfied beyond a reasonable doubt that PQ and DM had a sexual encounter that involved the touching described by DM and intercourse. Indeed, this conclusion was not seriously resisted by PQ’s counsel, though it was not conceded. In this respect the evidence of DM, which I believe, is corroborated by the shirt supplied by DM to the police. It was found to have PQ’s semen on it. I do not believe the implicit denial in PQ’s statement to Staff Sergeant Yeoman that he had sex with DM, by saying both that his DNA would not be on her and that he was never alone with her. Nor does this statement raise a reasonable doubt.

[23] This satisfies the element of sexual touching for both counts.

Actual consent and reasonable but mistaken belief in consent

[24] With respect to the charge of sexual assault, PQ asserts that DM did provide her consent to sex (setting aside, for the moment, that PQ could not rely on her consent given their respective ages) or that the Crown has not proven that PQ did not have a reasonable but mistaken belief in consent.

[25] The Crown concedes that it has not proven that PQ was not reasonably mistaken about DM’s consent to oral sex and sexual intercourse given that DM testified that it was possible that she told PQ that she wanted both and gave him the impression that he was enjoying the sex. I agree with this concession.

[26] But the Crown says that DM did not consent, and that there is no air or reality to honest but mistaken belief in consent, to PQ’s initial touching of DM, that is, when he put his hands in her pants and fondled her vagina.

[27] In my view, the evidence cannot be dissected as neatly as proposed by the Crown. In her evidence, DM candidly acknowledged that her memory of the evening was poor, that she was “too high to function”, and that it was possible that she might have told PQ that she wanted sex after smoking marijuana with him. These general admissions are not limited to the acts following the initial touching. At a minimum, DM’s own evidence leaves a reasonable doubt about whether DM consented or whether PQ was honestly but reasonably mistaken on the issue of consent to all acts of sexual touching.

[28] This conclusion is relevant only to the charge of sexual assault. However, even on that count, this conclusion is not dispositive because of DM’s age at the time of the sexual contact. Whether the Crown has proven either that PQ knew that DM was 15 years old in the summer of 2018, or that he was wilfully blind or reckless about her age, is the issue to which I turn now.

Mistaken belief about DM’s age

[29] As I have said, it is agreed that DM was 15 on the evening that she and PQ had sex. PQ was 23 on that evening. Accordingly, DM was not legally able to consent to sex with PQ (Criminal Code, s. 150.1(1)).

[30] PQ argues that the Crown has failed to prove that he knew DM was 15, or that he was wilfully blind or reckless in that regard. Indeed, PQ takes the position that the evidence shows that he honestly believed that PQ was over the age of 15, and that he took all reasonable steps to ascertain her age (see: Criminal Code, s. 150.1(4)).

[31] I am required to follow three steps in analyzing this question. They are described in Justice Doherty’s judgment in Regina v. Carbone, 2020 ONCA 394, at para. 129, as follows:

Step 1: The trial judge will first determine whether there is an air of reality to the s. 150.1(4) defence, that is, is there a basis in the evidence to support the claim the accused believed the complainant was the required age and took all reasonable steps to determine the complainant's age.

Step 2: If the answer to step 1 is no, the s. 150.1(4) defence is not in play, and any claim the accused believed the complainant was the required age is removed from the evidentiary mix. If the answer at step 1 is yes, the trial judge will decide whether the Crown has negated the defence by proving beyond a reasonable doubt, either that the accused did not believe the complainant was the required age, or did not take all reasonable steps to determine her age. If the Crown fails to negate the defence, the accused will be acquitted. If the Crown negates the defence, the judge will go on to step 3.

Step 3: The trial judge will consider, having determined there is no basis for the claim the accused believed the complainant was the required age, whether the Crown has proved the accused believed (or was wilfully blind) the complainant was underage, or was reckless as to her underage status. If the answer is yes, the trial judge will convict. If the answer is no, the trial judge will acquit.

Step 1 – Is there an air of reality to the defence of mistake of age?

[32] The Crown urges me to find that there is no air of reality either to the contention that PQ believed that DM was 16 (or older) or to the contention that he took all reasonable steps to ascertain DM’s age. At this stage of the analysis the task is not to determine the merits of PQ’s defence, or its likelihood of success, but to determine only whether the evidential burden placed on the defence has been met. In other words, is there some evidence upon which I might conclude that PQ could reasonably be acquitted on account of mistake of age taking the evidence relied upon by PQ at its highest (see: Regina v. W.G., 2021 ONCA 578, at para. 55; Regina v. Cinous, 2002 SCC 29, [2002] 2 S.C.R. 3, at paras. 2; 50 – 54).

[33] In my view, in this case, the evidential burden has been met and I should proceed to Step 2 of the analysis.

[34] There is some evidence, taken at its highest, that PQ believed that DM was 16. That is the implication of his statement to Staff Sergeant Yeoman. The officer testified that PQ said that he had been told she was dating a 20-year old and that he asked her and her friends how old they were because he always asked people that and they said they were 16. This claim is corroborated by evidence of a text exchange in which PQ asked DM her age. The reply came from DM’s phone, but was typed by MT. It said that DM was 16.

[35] In addition to this evidence, the defence points to a constellation of facts which would allow PQ to conclude that DM was 16 or older. I will review that evidence under the next heading and say now only that, considering the totality of the evidence, and assuming the evidence relied upon by PQ to be true (Cinous, at para. 53), there is an air of reality to the defence of mistake of age in this case, and that I should proceed to the next stage of the analysis.

Step 2 – Has the Crown negated the defence of mistake of age?

[36] To prove the offences charged, the Crown must prove an absence of mistaken belief in the complainant’s age (Carbone, para. 113). That can be accomplished either by proving that the defendant did not believe that the complainant was 16 or older, or by proving that the accused failed to take “all reasonable steps to ascertain the age of the complainant” (Criminal Code, s. 150.1(4), W.G., at para. 57). In this case, this step in the analysis will turn on the “reasonable steps” inquiry.

[37] The determination of whether an accused person has taken all reasonable steps “is highly contextual and fact specific” (W.G., para. 58). Indeed, PQ urges me to review the record carefully to show that the steps he took to ascertain DM’s age were all the reasonable steps required in the circumstances of this case. I have rejected that contention and find that the Crown has proven that PQ did not take all reasonable steps. The following review of the evidence will explain why I have come to that conclusion.

a. The evidence of DM

[38] The bulk of the relevant evidence on this point comes from the complainant, DM, and her description of her contact and communications with PQ before she spent the night at his house.

[39] DM testified that in the summer of 2018 she was 15 and having a rough time. She was in the process of running away from home because she was having disagreements with her mother. She was rebellious and making bad decisions. She agreed in cross-examination that her mother had kicked her out of the house because she was staying out all night. In any case, because she did not want to go home, DM was spending nights at friends’ houses or, as counsel put it, “couch-surfing.”

[40] DM had a close friend, a girl named MT, who was also 15 in July 2018. That summer, DM and MT spent time together. MT had a friend named TF, a young man who was a few years older and in his 20’s. In July of 2018, MT had known TF for just a few months. TF had a car and one evening in July he and DM and MT were driving around in that car. TF suggested that they visit his friend, PQ. DM did not know PQ or anything about him. TF drove to PQ’s home. When they arrived, the occupants of the car stayed inside it and PQ came to the driver’s side window and spoke to TF. DM was in the back seat, behind the front passenger seat.

[41] DM remembered that PQ made jokes of a sexual nature at that time. Although she did not participate much in the conversation, DM did say that she laughed at some of PQ’s jokes, that they did exchange phone numbers, and that they arranged to meet again the next day. As DM explained, “we planned to see each other the next day because I was running away from home at this point and I was just everywhere.” DM testified that she did not discuss her age with PQ during this first encounter in TF’s car. She agreed in cross-examination that she got a cigarette from PQ and smoked it in front of him on this occasion.

[42] DM saw PQ again the next evening. They made arrangements for that meeting by text message and/or by social media and planned to meet as a group and hang out. On this occasion, DM, MT, TF, PQ, and DM’s boyfriend Q (to whom I shall refer as “QX”, since his last name was not in evidence and to distinguish him from PQ), all met at the parking lot of a mall or plaza where there was enough room for all participants to park their cars and sit as a group. DM arrived in TF’s car with MT and QX at about 11:30 p.m. or midnight. PQ arrived 30 to 40 minutes later.

[43] DM said that they “got Tim Horton’s”, listened to music, hung out and talked. Some of the discussion was about where DM was going to stay that night because, as she put it, “I was running away from home.”

[44] DM said that she spoke with MT and QX about this issue while PQ and TF were sitting in PQ’s car talking. DM said that she wanted to stay at MT’s house, but MT told her she was not welcome because MT’s mother did not like DM. QX proposed that she should stay with either TF or PQ. DM said that she did not want to ask TF to stay at his home because she was not comfortable with him.

[45] That same evening, DM also spoke with PQ. They spoke about PQ’s ex-girlfriend. They also spoke about “weed.” She said that she “might have mentioned” that she was in and out of school at that time. She said that she spoke about her family, the issues she was having, and that she was “pretty sure” that she told PQ that she had been fighting with her mother that night. Since she was not working at the time, she did not discuss work with PQ. DM said that she and PQ spoke about driving. She told him that he was lucky to be able to drive and that she was scared to do so. PQ just agreed that her fear was understandable.

[46] While they were speaking in the mall parking lot, DM did not tell PQ her age but, later on in the evening, before she went to his house, she said that MT told PQ her age. DM testified that MT told PQ her age and that DM “agreed with [MT] that I was 15.” Later in her evidence, DM testified that this conversation may have happened the following day. In any case, there was no discussion of MT’s age. DM testified that PQ did not ask DM how old she was.

[47] When asked what she looked like in 2018, she testified that she did not remember what she was wearing but then clarified that she was wearing her pyjamas and had her hair, which was brown or black at the time, “tied up in a messy bun.”

[48] That evening PQ told DM that he was 23, a fact she also learned from TF. DM testified that she did not think anything of this information since she did not think anything was going to happen with PQ.

[49] Eventually, a “solution” was found to DM’s problem about where to stay that evening. Someone else approached PQ and asked if DM could stay with him. PQ spoke to DM and said that he had heard that she needed a place to stay and that he offered his place to her. DM testified that she “agreed that it was a place to stay.”

[50] Nevertheless, when the gathering in the parking lot dispersed, between 3 and 6 a.m., they did not go to PQ’s home. Instead, PQ drove DM to the home of her ex-boyfriend, one ZE, arriving at about 6 a.m.. MT followed in QX’s car. TF drove by himself. DM asked ZE if she and MT could stay at his house. ZE agreed and DM and MT stayed there until about 7:30 or 8:00 a.m. when ZE asked them to leave because DM was “annoying” and “bugging” ZE.

[51] DM and MT walked to MT’s house, arriving at about 8:30 a.m. They went to sleep but were up again at about 10 a.m. MT texted QX and DM texted PQ about hanging out. PQ said that he was not working and that he could hang out and, about an hour and a half later, PQ, QX, DM and MT were hanging out at MT’s complex. They talked until PQ had to leave for work.

[52] In cross-examination, DM agreed that she and MT also went to TF’s house on this morning before returning to MT’s house. DM denied that she told TF’s father that she was 16 years old.

[53] After PQ left MT’s house, DM stayed with MT and QX at MT’s home, but the plan was that she was going to hang out with PQ again. While PQ was at work, they texted about DM staying at PQ’s home that evening and the plan to get together when PQ got off work. In cross-examination, DM agreed that during this time PQ asked by text what her age was and MT took DM’s phone and replied to PQ indicating that DM was 16. DM said that she had forgotten to mention this in-chief.

[54] PQ came back to MT’s house at about 9:30 or 10:00 that same evening. DM was still with MT and QX. The group talked. DM testified that it was at this time that MT told PQ that DM was 15. DM quoted MT as saying, “By the way, she’s 15.” DM said that MT wanted PQ to know because she was worried. MT wanted DM to be careful.

[55] DM testified that PQ replied to the information about DM’s age by saying “yeah, yeah, that’s okay” or “age is just a number,” although the latter phrase might have been used at a different time and when they were discussing PQ’s ex-girlfriend.

[56] At some point before the night she spent with him, DM says that she had a conversation with PQ about a text he had received from DM’s mother, who had apparently heard that he was spending time with DM. She testified that she thought that her mother spoke to PQ about DM’s age. She knew that because PQ told her that her mum was texting him. DM testified that this annoyed her and she told PQ to “block” her mum and that she was “not dealing with it.” She said that she was “pretty sure” that PQ told her that “she [DM’s mother] told him my age.” In cross-examination, she agreed that she did not know when this conversation had occurred but resisted the suggestion that it was after the events complained of. In re-examination said that she was “pretty sure” it was before those events.

[57] PQ drove DM from MT’s house to his house. PQ’s room was in the basement. He had purchased a pizza which he and DM ate sitting on his bed while they watched a movie. When they had finished eating pizza they went outside to a shed where they smoked some marijuana together. There was no further discussion of DM’s age.

[58] The marijuana made DM feel bad. She was “really dizzy and over-heated.” In cross-examination, DM acknowledged that the marijuana had affected her perception of the evening’s events and, to some extent, her memory. She agreed that she had failed to mention these points in her statement to the police.

[59] At this point, DM and PQ returned to PQ’s basement bedroom where the sexual encounter described above occurred.

[60] In the morning, at about 11 or 11:30, PQ drove DM back to MT’s house and then headed off to work. She did not see PQ again and had little if any communication with him. In cross-examination, DM agreed that before she left PQ’s house, she texted her friend A (to whom I shall refer as “AX” since his last name was not in evidence) and asked him to come over. PQ had no problem with that and, when he arrived, AX asked DM if anything had happened. DM said nothing had happened. In re-examination, DM said that after her encounter with PQ she just did not want to talk about it.

[61] Also in cross-examination, DM said that when PQ dropped her at MT’s house, DM’s mother, MM, and MT’s mother, TH, were standing outside MT’s house. She was asked if anything had happened. She replied that nothing had happened.

[62] That day, DM told her sister what had happened with PQ. A few minutes later, she told her mother, MM. Within the week she was at the police station giving a statement about what had happened to her. She decided to go to the police after speaking with MT and QX.

[63] DM said that she is no longer friends with MT. DM agreed in cross-examination that MT suffered from anxiety and had not wanted to speak to the police. DM said she encouraged MT to speak to the police when DM realized that the police would not charge PQ if MT did not speak to them and provide evidence. DM agreed that she told MT to “do the right thing” and that she told MT she would buy her an “ice cap” coffee if she gave an interview. She agreed that her encouragement worked and that MT provided a statement to the police in August 2018. DM denied that she encouraged MT to lie to the police or that she had threatened MT with violence. In re-examination, DM said that she spoke to MT after her own interview and before MT’s interview with the police (period of about 21 minutes according to the evidence of Staff Sergeant Yeoman). She said to MT that “she needed to do it for me and she needs to be honest.” DM testified that MT was abusive, would hit her, and took advantage of DM’s friendship.

[64] DM rejected the suggestion that she had told MT and QX that she was happy that she had had sex with PQ, and that she had lied to PQ about her age so that he would have sex with her. She also rejected the suggestion that she changed her story about when her mother, MM, found out that she had sex with PQ.

[65] Although DM gave evidence of a number of text messages, none of them was entered into evidence. She testified in cross-examination that a friend of hers had advised her to delete her texts, so she did.

b. The evidence of MM

[66] MM is DM’s mother. She testified that she first heard that DM was spending time with PQ when MT’s mother, TH, told her that DM had left her house with a man older than DM. TH told MM that she was concerned and that she had called Family and Child Services about that concern. I note here that TH, in her testimony, denied calling F&CS.

[67] MM said that she never met or spoke to PQ, but that she did communicate with him electronically after speaking to TH. She testified that she found PQ’s name on Facebook and sent him a message indicating that DM was just 15 years old. She testified that she could tell that she was blocked immediately and that there was no answer back. MM said that she has tried to find her message to PQ but has not been successful doing so.

[68] As I said earlier in these reasons, exactly when this message was sent is unclear on the evidence. In-chief, MM said that it was sent the day before or the day of her conversation with TH when she learned of the call to F&CS. In cross-examination MM agreed that she told police that she sent the message in August and after TH had alerted F&CS about her concerns (i.e., after the alleged events). In re-examination, MM said that the message was sent the day before DM disclosed to MM that PQ had had sex with her (which, on the evidence, appears to have occurred in July).

[69] I am satisfied that this message was received by PQ before he had sex with DM, the day before DM disclosed to MM that she had had sex with PQ. As I explained at the outset of these reasons, that disclosure was the day immediately after the sexual incident, which had happened late the previous evening. That account corresponds with the evidence of DM, which I believe. She testified that her mother’s message was received by PQ before the sexual contact, that she discussed the message with PQ in person, and that she advised PQ to “block” her mother. MM testified that she was in fact blocked by PQ. DM also testified that and that she disclosed to her sister and to MM the day after the sexual incident, in other words, the day after the Facebook message was sent.

c. The evidence of Staff Sergeant Alison Yeoman

[70] Staff Sergeant Yeoman was the investigator in this case. She testified that she received a complaint from Family & Children’s Services respecting this matter on August 3, 2018. On August 5, 2018 She called PQ and left a voice message in which she advised him that DM was 15 years old and warned him that against further sexual contact with her. The next day she spoke with PQ by telephone. He said that he was on speaker phone and had TF with him.

[71] After advising PQ that he was not required to speak with her, and that he was free to contact a lawyer, PQ “immediately began talking.” He was agitated and nervous. PQ told Staff Sergeant Yeoman that he had met DM only “three or four days ago” and that he was not in a relationship with her. He said that TF could vouch for him. He said that someone’s mother said they were in a relationship. He said that he had met DM at a community centre for a couple of hours and that he was never alone with her. He said that they met on a Wednesday the next day she called and asked for a ride. He picked her and two friends up and they went to TF’s house. He was in the car with DM and AX. He often gives people rides. He said there was no way his DNA would be on her. He had been told she was dating a 20-year old. He asked her and her friends how old they were because he always asked people that and they said they were 16. He said that he would be willing to provide DNA on consent.

d. The evidence of MT

[72] MT was called by the defence. Her evidence was largely unhelpful and was characterized by vagueness, confusion and lack of memory. She did say, however, that at the relevant time DM was “bugging” PQ to hang out and to stay at his house. As a result, she had not wanted to speak to the police because it was “kind of unfair” but DM was “bugging” her to make a statement so she did.

[73] MT made another statement in 2021. She told the police that DM had told PQ that was 17 or 18. She told the officer that because she came to understand that what she told the officer before was wrong. She testified that in 2018 she told the officer that DM was 15 but claimed to be confused and could not explain what was wrong with that, given that DM was 15 in 2018. The transcript of her statement to the police did not refresh her memory. She testified that “it was wrong … saying what I had said” but she could not remember what she said to the police that was wrong.

[74] She said that she might have spoken with PQ about her age and DM’s age, but she could not remember if she did.

e. The evidence of TH

[75] The defence also called TH, the mother of MT. TH testified that she overheard DM speaking at a gathering outside TH’s residence where a number of people were talking. TH reported that she had overheard DM say, possibly to MT and QX, that she convinced PQ that she was 18 so that she could have sex with him, which she did consensually. She asked DM no questions and apparently reported this evidence to no-one until roughly three years after the fact, even though she had been made aware of the charges against PQ.

[76] I note that MT gave no evidence about this point and that DM denied the suggestion that she had lied to PQ to get him to have sex with her. Moreover, in his statement to police, PQ said that he was told that DM was 16, not 18.

[77] As noted above, I do not believe this evidence. It is neither credible nor reliable, nor does it raise any a reasonable doubt respecting any aspect of the Crown’s case, considered alone or with the evidence as a whole.

f. Conclusions respecting the credibility and reliability of the evidence

[78] As I said at the outset of these reasons, I have found that DM was a credible witness. That is not to say that her evidence is free of inconsistencies or failures of memory. For example, DM failed to mention until cross-examination that the consumption of marijuana affected her memory of the sexual contact she had with PQ, in particular her memory of whether she might have consented or given the impression that she was consenting. She also failed to mention that MT sent a text to PQ from DM’s phone saying that DM was 16. I am satisfied, however, that these failures were honest omissions, not attempts to mislead. DM immediately acknowledged the correctness of counsel’s suggestions on these points and did not attempt to evade.

[79] DM testified that she had deleted her text messages shortly after the relevant events in this matter. She said that she did so because a friend had advised her to do so, although she did not elaborate on why that advice was given. There is no evidence that DM was motivated in this regard by any improper purpose, in particular, any attempt to mislead the police or the judicial process. On the contrary, the deletion of her text messages did not prevent DM from admitting that a text had been sent to PQ from her phone indicating that DM was 16.

[80] I take nothing from the evidence that DM testified that she told her friend AX that nothing had happened with PQ, or that before disclosing that she had had sex with PQ she told her mother that nothing had happened. I accept DM’s evidence that she simply did not yet want to talk about what had happened to her. In any event, DM’s disclosure to her sister and her mother came a little later that day, just one day after the evening she spent at PQ’s house. This evidence does not raise a doubt.

[81] PQ’s counsel suggested that DM had a motive to lie about her encounter with PQ. It was suggested that DM was afraid of the consequences of MM discovering that she had had sex with PQ, which might include being prevented from returning home. DM denied that she had such a motive. MM testified that she and DM were “very close” and that even though they were going through a “rough patch”, DM knew that “she’s allowed to come and talk to me about anything.”

[82] I reject the suggestion that DM had such a motive to lie. Only she and PQ knew what had happened between them. If DM did not want MM to know what had happened, all she had to do was not tell her. No elaborate lie was necessary. I accept DM’s evidence that she was upset about what had happened with PQ, that she decided to confide in her sister about those events, and that she decided to disclose to her mother immediately thereafter for no purpose other than that she thought something wrong had happened to her.

[83] Nothing in the evidence of TH detracts from the evidence of DM. As I set above, I do not accept her evidence that she overheard DM saying that she had lied to PQ about her age and that she was happy that she had had sex with him. Nor does this evidence raise a reasonable doubt. The delay in reporting the evidence, the failure of MT to confirm it, and its inconsistency with the statement of PQ, all point to its unreliability.

[84] MT’s evidence was, as noted above, vague. She frequently claimed to be confused or unable to remember. To the extent that she testified that DM wanted to stay at PQ’s residence and was “bugging” him about that, I note that DM obviously did want to stay at PQ’s home. She needed a place to stay.

[85] With respect to MT’s vague claim that she told the police in 2021 that DM had told PQ that she was 17 or 18, again, I note that this evidence does not align with PQ’s statement to the police about what he said he was told about DM’s age. Nor was she actually able to confirm that what she told the police in 2018 was false.

[86] MT and DM gave competing evidence about which of the two of them was the dominant figure in their relationship. On balance, it seems likely that DM was more dominant given MT’s demeanour when testifying and given the evidence that she suffers from anxiety. In any case, it is clear that these two young women had a complicated relationship (which is now apparently over).

[87] Although DM confirmed that she had encouraged MT to speak to the police to support her complaint, and that she offered to buy her a coffee afterward, I do not believe that DM used a dominant position and improperly influenced MT’s original statement to the police. I accept her evidence that she merely encouraged MT, who was anxious and did not want to speak to the police, to tell the investigator the truth. I note, in this regard, that MT did not testify that DM had in fact done anything wrong in encouraging her to speak to the police.

[88] MT’s evidence that she might have spoken to PQ about her age and DM’s age, although she could not actually remember doing so, is of limited significance. DM gave evidence about communications she and MT had with PQ about DM’s age. She denied that she was ever privy to any discussion about MT’s age, but said that MT told PQ in person that she, DM, was 15, and, by text, that she was 16. I accept this evidence, which is not contradicted by MT’s inability to remember.

[89] None of these aspects of MT’s evidence, singly or cumulatively, detracts from the credibility of DM. Her evidence does not raise a doubt, either on its own or when considered with all the other evidence.

[90] PQ’s statement to Staff Sergeant Yeoman requires comment. Some parts of it are or could be true. But significant portions of it are not. PQ did not meet DM at a community centre. More importantly, his assertions that he was never alone with DM and that his DNA would not be found on her, and impliedly, that he did not have sex with DM, are false. As I have already concluded, I am satisfied beyond a reasonable doubt that PQ had sex with DM in the manner she described.

[91] PQ’s claims to Staff Sergeant Yeoman that he had been told that DM had been dating a 20-year old, and that, when asked, DM and her friends told him that they were 16, has some support in the evidence. DM agreed that “a while ago” she had dated TF, who was in his early 20’s in 2018. As discussed, DM agreed that PQ asked her age by text and that MT responded for DM, saying that she was 16. There is no other evidence that PQ asked for the ages of DM or her friends. I will address this evidence under the next heading.

g. Did PQ take all reasonable steps?

[92] The defence of mistake of age will not be available to PQ unless he “took all reasonable steps to ascertain the age of the complainant” (Criminal Code, s. 150.1(4)). The burden is on the Crown to prove that PQ did not take all such steps. As I have already said, the analysis is contextual and driven by the facts of the case which I have reviewed above. It is clear that “the more reasonable an accused’s perception of the complainant’s age, the fewer steps required of the accused to satisfy the standard of due diligence imposed” (see: W.G. at para 58; Regina v. George, 2017 SCC 38, at para. 9).

[93] Making reference to the judgment of the Supreme Court of Canada in Regina v. Morrison, 2019 SCC 15, in W.G. Justice Watt described “reasonable steps” as follows (see W.G., at paras. 60 – 62):

60. "Reasonable steps" are steps that a reasonable person would take, in the same circumstances known to the accused at the time, to ascertain the complainant's age. The reasonable steps requirement includes both objective and subjective elements. The steps, viewed objectively, must be reasonable. And the reasonableness of those steps must be asserted in the circumstances known to the accused: Morrison, at para. 105.

61. "Reasonable steps" are steps that provide information reasonably capable of supporting an accused's belief that the complainant is of legal age. In other words, the steps must be meaningful. Steps that solicit information that does not reasonably support a belief in legal age are not reasonable steps. Relevant considerations include not only the nature of the steps themselves, but also the information that those steps solicit. The steps need not always be active. However, where the early steps of an accused could reasonably support a belief that the other person is of legal age, but later events raise "red flags" that the other person may not be of legal age, additional steps may be required to meet the standard of s. 150.1(4): Morrison, at paras. 106-109.

62. There is no magic number or exhaustive list of steps that an accused must take to satisfy the "all reasonable steps" requirement in s. 150.1(4). A practical, common sense approach should prevail, informed by the overarching purpose of the provision - to protect vulnerable young people from sexual crimes by assigning responsibility for preventing adult/youth sexual activity on adults. And by an enhanced standard. Not simply "reasonable steps", but "all reasonable steps to ascertain the age" of the complainant.

See also, Regina v. Duran, 2013 ONCA 343, at paras. 52 – 54.

[94] Applying these directions to the evidence before me, I note that there is evidence that PQ took one active step to ascertain DM’s age: he sent a text to her asking that question. The answer he received, which would have appeared to PQ to have come from DM (although it was sent by MT), was that DM was 16. The asking of this question does constitute a reasonable step – but does it constitute all reasonable steps?

[95] PQ asserts that that this step was sufficient when considered in the context of all the other evidence in this case. He points out, as did Justice Watt, that not all steps need be active, that the steps must assessed in the context known to PQ, and that there is no exact number of steps that must be taken.

[96] I have concluded that the Crown has proven beyond a reasonable doubt that PQ did not take all reasonable steps. The contextual issues to which PQ points to show the reasonableness of his inquiry into DM’s age, show the opposite, or are neutral factors, or are insufficient responses to the red flags in the evidence.

[97] There were at least two blatant red flags. Most important was the Facebook message from DM’s mother, MM, which I have found was sent prior to PQ’s sexual contact with DM. It was not a reasonable step to block MM and ignore her message; it was the opposite of due diligence. The Facebook message cried out to the reasonable adult to take all steps to be satisfied of DM’s age. One such step might have been to accept the correctness of MM’s message. Another might have been to reply to DM’s mother and discuss the issue of DM’s age. In this respect, see Justice Cronk’s discussion of a similar Facebook message in Regina v. Dragos, 2012 ONCA 538, at paras. 56 – 58.

[98] Moreover, the evidence of DM, which I accept, indicates that MT told PQ at least once, in person, that DM was 15, not 16 as indicated in the text message. I do not know why MT would give PQ conflicting information about DM’s age, but this is another red flag. The conflict itself was reason to make further inquiries and to doubt the reliability of information provided to him by either MT or DM. As the cases in this area emphasize, the adult in these situations must beware of the fact that young people often misrepresent their ages (see, for example, Regina v. Eichner, 2020 ONSC 4602, at para. 103). In this case, the evidence is that PQ reacted with indifference to the information that DM was 15.

[99] The context to which PQ points did not absolve him of the need to take further steps, especially in light of these red flags.

[100] According to PQ, that context includes the following facts:

• DM was socializing with a group of people who were older than she was, including TF (whom she had dated) and QX, who drove their own cars;
• DM smoked;
• DM enjoyed PQ’s sexual jokes;
• DM told PQ he was “cute”;
• DM told PQ that she was afraid of driving;
• DM discussed marijuana with PQ (and later smoked it with him); and,
• DM was staying out all night without going home, was taking care of herself, and appeared to be making her own decisions and to have more responsibilities than a regular 15-year old.

[101] Taken together, PQ submits, this constellation of factors shows that his reliance on the text indicating that DM was 16 was reasonable and satisfied his obligation to take all reasonable steps.

[102] I disagree. While most in the group of people were older than DM, her best friend, MT, was the person with whom she spent the most time. Indeed, on the evidence, before PQ picked up DM to take her to his home, at any time PQ was in the company of DM, MT was also present. MT was also 15 at the time of PQ’s observations.

[103] Moreover, at all those times, neither DM nor MT ever drove. They were always passengers, or they walked. The fact that DM told PQ that she feared driving does not support the conclusion that fear of driving was either the reason she did not drive or the only reason she did not drive. She was also not legally eligible to drive because of her age.

[104] PQ argued that the fact that DM did not drive would have left him believing that he could not ask DM for identification since she would be without a driver’s licence. There is no evidence that PQ actually engaged in this line of analysis, but even if there were, a driver’s licence is not the only form of identification which can provide a date of birth. There is no evidence that PQ asked DM for any kind of identification. As I have already pointed out, this was also a topic he could have taken up further with DM’s mother when she messaged him.

[105] The fact that DM smoked a cigarette in front of PQ (or even that she smoked more than once in front of PQ – of which there is no evidence), that she smoked marijuana with him, that she laughed at his jokes, and that she called him cute, are not evidence of context that allowed PQ to fail to make further inquiries, especially in the face of the red flags to which I have referred. While each of these things might be more likely the older a young girl gets, none of them could have allowed PQ to distinguish between a girl who is just over the relevant age, 16 years, from one who is 15, just under the relevant age.

[106] The fact that DM was a rebellious girl who had been kicked out of the house by her mother, was staying out late and making her own decisions, similarly does not eliminate the need to make further inquiries. DM obviously did not have her own residence, she was not employed, and was in and out of school. Observation of none of these points, separately or collectively, could have constituted a reasonable step to ascertain age. A girl just turned 16 was only slightly more likely to have this list of attributes than a girl who was 15. DM’s circumstances might have generated any number of questions from a reasonable adult who wanted to have sex with her. To take just one example, PQ might have asked: Are you going to school and, if so, what grade are you in? Many further questions might have flowed from the answers to those questions.

[107] In the face of this ambiguous or neutral context and the red flags to which I have referred, a single texted question about DM’s age, the answer to which is not discussed further at any time by PQ and DM, does not constitute the taking of all reasonable steps on any standard, let alone the “enhanced standard” referred to in W.G.. DM was a vulnerable young person who was temporarily homeless. PQ was an adult to whom the responsibility to prevent “adult/youth sexual activity” was assigned. In my view, the Crown has proven beyond a reasonable doubt that he did not discharge that responsibility because he did not take all reasonable steps to ascertain DM’s age.

[108] Accordingly, the Crown has negated the defence of mistake of age described in section 150.1(4) and I must proceed to step 3 of the analysis.

Step 3 – Has the Crown proven that PQ knew, or was wilfully blind or reckless about, DM’s age?

[109] The last part of the analysis is to consider whether the Crown has proven that PQ believed that DM was younger than 16, or was wilfully blind or reckless with respect to DM’s age (Carbone, paras. 118 – 122, W.G., paras. 67 – 70, 76).

[110] In Carbone, Justice Doherty explained that a conviction will almost always follow where the defence of mistake of age has failed in step 2 of the analysis. He wrote as follows, at paras. 121 and 130:

121. … for practical purposes in the vast majority of cases, there will be little, if any, distance between the rejection of a reasonable belief defence under s. 150.1(4) and a finding of the requisite mens rea. This close association is a reflection of the nature of the mens rea required in respect of the age of the complainant for offences like s. 152. In my view, the mens rea includes recklessness.

122. Although, the additional step in the mens rea inquiry adds some complexity, it will, as I think the court in Morrison acknowledges, have little practical effect on verdicts. If the accused fails to take reasonable steps to determine the complainant's age, he cannot advance the claim that he believed the complainant was the required age. The removal of a positive belief that the complainant was the required age, combined with recklessness as a basis for a finding of the required mens rea, will, I think, leave few situations in which a person who engages in sexual activity with an underaged person and does not take reasonable steps to determine the age of that person, will not be found to have been at least reckless as to the true age of the complainant.

In this respect, see also W.G., at paras. 70 and 77.

[111] In this case PQ cannot rely on a claim that he believed that DM was the required age. The evidence shows beyond a reasonable doubt that he adverted to DM’s age, appreciated that there was a risk that DM was less than 16 years old, and proceeded to have sex with her notwithstanding that risk. In other words, PQ was (at a minimum) reckless with respect to DM’s age.

Conclusion

[112] For all these reasons, I find PQ guilty of both the sexual assault of DM and sexual interference with respect to DM.

I.R. Smith J.

Released: November 9, 2021