COURT FILE NO.: CR-56/19

DATE: 2022 09 29

ONTARIO

SUPERIOR COURT OF JUSTICE

BETWEEN:

HIS MAJESTY THE KING

– and –

L.S.

Ms. M. Ward, for the Crown

Mr. A. Edgar, for Mr. L.S.

HEARD: May 28, May 31, June 1, June 2, June 3, June 4, October 28, November 30, 2021 and April 8, July 5, 2022.

REASONS FOR JUDGMENT

cONLAN j.

I. Introduction

The Charges

1Mr. L.S. stands charged with sexual assault and sexual interference under sections 271 and 151, respectively, of the Criminal Code. The alleged incident took place in Oakville, Ontario in early September 2017.

The Trial

2The trial, judge-alone, for various reasons, took a very long time to complete. Although there were about ten days of actual Court time, the trial spanned more than one year, commencing in May 2021 and concluding in July 2022.

3The accused did not testify, but the Defence did call evidence at trial.

The Issues as Identified by Counsel

4Both sides agree that there are two issues and that they should be dealt with in the following order: (i) whether L.S. took all reasonable steps to ascertain the age of the complainant, and (ii) whether the complainant consented to the sexual activity that took place, or alternatively whether the accused honestly but mistakenly believed that she consented.

5The first issue is driven by section 150.1 of the Criminal Code. As the complainant, A.M., was under the age of 16 years at the material time, it is not a defence to either charge that L.S. is facing that A.M. consented to the sexual activity that took place – 150.1(1). Because A.M. was at the material time 14 years of age or more but under the age of 16 years, however, and because at the material time L.S. was less than five years older than A.M. and not in a position of trust or authority towards A.M. and not in a relationship with A.M. that was one of dependency and/or exploitation, consent is an available defence to L.S. – 150.1(2.1).

6A further stipulation applies to that available defence, though. L.S. cannot raise a mistaken belief in the age of A.M. in order to invoke a defence of consent unless he took all reasonable steps to ascertain the age of A.M. – 150.1(6). It is not a defence to either charge that L.S. is facing that he believed that A.M. was 16 years of age or more at the material time unless he took all reasonable steps to ascertain the age of A.M. – 150.1(4).

7Both sides agree that if this Court does not have a reasonable doubt on the first issue described above, then the verdict on each charge must be guilty. In the event of an appeal, however, both sides urge the Court to analyze the second issue regardless of the result on the first.

The Onus and The Standard of Proof

8L.S. enjoys the presumption of innocence. He is presumed to be innocent of both charges. He has no burden to prove anything. He has no burden to testify or to present any evidence. The onus of proof lies exclusively with the prosecution.

9The standard of proof that applies to the Crown’s exclusive burden is a high one. It is to prove beyond a reasonable doubt each and every essential element of the offence in question. Proof beyond a reasonable doubt is more than proof of probable guilt. It is more than proof of likely guilt. It is not proof to the level of absolute certainty, but it is closer to that standard than it is to proof on a balance of probabilities. In layperson’s terms, where the prosecution must prove X, unless this Court is sure of X then it cannot be said that the Crown has met its burden and the prosecution consequently fails. Of course, the Crown never wins or loses; by “fails” I mean simply that the accused must be acquitted.

10In the specific context of the first issue in this case, assuming the existence of an air of reality to the mistaken belief in age defence, the burden rests with the Crown to prove beyond a reasonable doubt either that L.S. did not honestly believe that A.M. was at least 16 years of age or that L.S. did not take all reasonable steps to ascertain A.M.’s age. The Crown need not prove both of those things; I would emphasize the words “either” and “or”. R. v. George, 2017 SCC 38, at paragraph 26.

11As is the case with a defence of honest but mistaken belief in consent, the defence of mistaken belief in age does place an evidentiary burden on the accused. That evidentiary burden is not a stringent one; in fact it is a relatively low one. That evidentiary burden in no way compels the accused to testify. Nor does it require that the accused present any evidence at trial. It is also true, however, that the choice of an accused not to testify may compromise his/her ability to point to any evidence that s/he believed that the other person was at least 16 years of age. R. v. Moise, 2016 SKCA 133, at paragraph 24.

12The case is not over, however, in favour of the Crown, just because the prosecution has negated the mistake of age defence under section 150.1(4). The Crown must still prove that the accused had the requisite state of mind regarding the complainant being under 16 years old. That requisite state of mind, the mens rea of the offence, can be proven through actual knowledge on the part of the accused, or through wilful blindness or recklessness. R. v. Carbone, 2010 ONCA 128, 2010 ONCA, at paragraph 128.

The Framework as Stated Differently by This Court

13Thus, with respect, I would not state the issues quite the same as counsel. Rather, on the mistake of age defence (the consent defence is a separate matter), I would adopt the three-step framework suggested by Justice Doherty in Carbone, supra. I pause here to note that the decision in Carbone, supra was extensively referred to and applied very recently by the Court of Appeal for Ontario in its decision in R. v. H.W., 2022 ONCA 15. That framework, outlined at paragraph 129 of the decision in Carbone, supra, is set out below.

129The reshaping of the mens rea analysis effected by Morrison makes the job of the trial judge (or the jury) somewhat more complicated. I suggest the trial judge will proceed along the following lines:

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 step1 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 juge 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.

II. Analysis

A Very Brief Summary of The Evidence at Trial

14What follows is a brief synopsis of the trial evidence. It should be noted that there were multiple voir dires held and numerous pre-trial/mid-trial rulings issued in this proceeding, however, the focus below is on the evidence that was admitted on the trial proper.

15Without objection by the Defence, part of the evidence of the complainant, A.M., was adduced at trial through the playing of her audio-video police statement, as permitted under section 715.1(1) of the Criminal Code.

16A.M., 15 years old at the time of the incident, testified in direct examination that she became tipsy from alcohol (vodka) that was supplied to her by L.S. There were four of them together – A.M., A.M.’s female friend of about the same age, L.S., and L.S.’s male cousin. A.M. testified that she thought that L.S. was 19 or 20 years old at the time.

17According to A.M. in direct examination, L.S. had sexual intercourse with her in the car. When that happened, the other two persons were not nearby. Specifically, without a condom, L.S. put his penis inside her vagina and had sex with her, she stated. She does not know if L.S. ejaculated, although in answer to a later question by the Court for clarification A.M. stated that L.S. did not ejaculate.

18According to A.M., again in direct examination, she was drunk. She blacked out a little. She kept saying over and over again “stop” and “I don’t wanna have sex”. He pulled off her pants and got on top of her. She tried to push him off but could not do so. He would not stop. She was crying. She was scarred.

19A.M. testified in direct examination that she met L.S. for the first time on the date of the incident. According to A.M., there was no discussion on that day about her age. He never asked. She never said. She never heard anyone else say how old she was.

20In cross-examination, A.M. stated that she never told anyone that she was older than she really was. She agreed that Tinder is a website for dating and sex, and she agreed that you have to be 18 years old to be on Tinder, but she stated that she was not registered on Tinder at the time. A.M. testified that there was no discussion that day about her age or her female friend’s age. She denied that they said to the males that they were 17 years old.

21Later in cross-examination, A.M. was asked if she was told that her female friend told the guys that A.M. was 15 or 16 years old. She stated “yes”. It was then suggested to her that her female friend might have told the guys that A.M. was 16 years of age. She answered “yes”. After looking at her police statement transcript, however, A.M. said that what her female friend had told the guys was that A.M. was 15 years old. At that point in her evidence, the Court cautioned A.M. not to refer to the statement transcript in that way.

22Also in cross-examination, A.M. testified that her female friend lied to the males about the friend’s age. The female friend told A.M. that the friend was worried that the guys would not talk to the friend if they knew that the friend was 14 years old.

23D.R. testified at trial. She was friends with A.M. at the time of the incident. She was not present at the scene. In the afternoon on the date in question, D.R. received a telephone call from A.M. and her female friend. They were giggly and happy, in a good mood, slurring a bit, excited, and probably not sober. Later, D.R. received another telephone call from A.M. That time, A.M. was very upset, really distraught, and stressed. D.R. told her parents and walked over to where A.M. was. When she saw A.M., she observed A.M. to be crying and visibly “super upset”. A.M. almost could not breathe, according to D.R. in direct examination.

24In cross-examination, D.R. testified that A.M. was on Tinder before the date in question.

25In re-examination, D.R. stated that both A.M. and the female friend, before the date in question, told D.R. that they were on Tinder. When asked what year those conversations took place, D.R. could not say.

26A.A. testified at trial. She is the “female friend” referred to above. She is the person who was with A.M. and the two males on the date in question. Like A.M., her evidence-in-chief consisted of both oral testimony and the playing of her audio-video police statement.

27It was A.A. who met L.S. on Tinder. In direct examination, A.A. testified that she, before the date in question, told L.S. that she was 15 years old (but she was actually 14 years of age).

28In her police statement (page 47 of the transcript), which forms a part of A.A.’s evidence-in-chief at trial, A.A. said that the other male (not the accused) asked the two girls how old they were, to which A.M. answered “17”. L.S. was present at the time that those things were said, according to A.A.

29In cross-examination, A.A. was asked more about her Tinder profile. She confirmed that you have to be 18 years old to be on Tinder. Her front page showed her as 18 years old, but she wrote in her bio section “I’m not 18”. She did not put down any specific age in the bio section, she testified.

30In cross-examination, A.A. stated that she told L.S., before the date in question, via Snapchat, that she was 15 years old. She later corrected that to say that she told that to L.S. on Tinder and not on Snapchat.

31In cross-examination, some text messages were shown to A.A. (Exhibit 3). A.A. agreed that nowhere in those messages, which pre-date the day of the incident, did she tell L.S. how old she was.

32Halton Police officer Ross Amore (“Amore”) testified at trial. In cross-examination, Amore stated that there was nothing in the Tinder bio information for A.A. that was relevant to her age generally or specifically that she was not 18 years old. In re-examination, Amore stated that he did not review A.A.’s Tinder profile or her bio.

33All of the witnesses referred to above in these reasons were called at trial by the Crown. The Defence elected to call evidence at trial, although the accused did not testify. One witness testified for the Defence, Brandie Stevenson (“Stevenson”).

34Stevenson provided expert opinion evidence regarding the cognitive abilities, decision-making abilities, and overall skills of L.S. Stevenson holds a B.A. Degree in psychology and sociology, a M.A. Degree in forensic psychology, and she has been a registered psychologist with the College of Psychologists of Ontario since 2016.

35Stevenson testified that L.S. has an extremely low IQ and significant deficits in his executive functioning – thinking, judgment, decision-making, and planning. According to Stevenson, it would be hard for someone like L.S. to effectively verify a girl’s age. He has major problems determining one’s age, even where he is provided with a birthdate. He has an intellectual disability in the mild/moderate range.

36When asked by Defence counsel a hypothetical question, if L.S. was presented with information on a dating website that someone was 18 years old, what would he do with that information, Stevenson replied that he would likely just accept it without enquiring further.

A Very Brief Summary of The Closing Submissions of Counsel

37As the Defence presented evidence at trial, Mr. Edgar delivered his closing address first. He began his submissions dealing with the issue of whether the Court should have a reasonable doubt on the issue of consent. He argued that A.M.’s decision to stay in the area with L.S., alone, is an indication that she did not want to leave and was not afraid of the accused.

38On the issue of consent, the Defence submitted that A.M. was not a credible witness. In particular:

(i) her testimony that she wanted to leave is inconsistent with her own actions and with the evidence of A.A.;

(ii) her testimony that she had no fun that day is inconsistent with the evidence of both A.A. and D.R.;

(iii) her testimony makes no common sense in that no reasonable person who had experienced unwanted sexual advances from the accused would agree to have her female friend and the other male go get some food and leave A.M. and L.S. alone together;

(iv) her testimony that she did not know about the plan to smoke marihuana that day should not be believed in light of the other evidence adduced at trial;

(v) her testimony about not having smoked marihuana around the time of the incident is inconsistent with the evidence of D.R.;

(vi) her testimony about who initiated the idea of getting alcohol that day is inconsistent with the evidence of A.A.;

(vii) her testimony about how the alcohol affected her sobriety is inconsistent with the evidence of A.A.;

(viii) her testimony about her mood while she was on the swings is inconsistent with the evidence of A.A.;

(ix) the fact that A.M. stayed in the car with L.S. after the other two left the area is inconsistent with her evidence that she wanted to leave and, further, that fact points towards her consent to having sexual activity with the accused;

(x) she was unable to explain how it came to be that the car went from being locked to unlocked;

(xi) the fact that A.M. got back into the car after getting out of it is inconsistent with her evidence that she wanted to leave and, further, that fact points towards her consent to having sexual activity with the accused;

(xii) her testimony that nobody was around the car to help her is inconsistent with her police statement;

(xiii) her testimony that she was able to get out of the car once but then could not get out a very short time later makes no common sense;

(xiv) her description of the accused flipping her over in the back seat of the car is unbelievable given the very small size of the car;

(xv) her testimony about the position of her body during the sexual intercourse was contradictory, first stating that her chest was facing the door (which would have been impossible) and then stating that her chest was facing the back of the front seat;

(xvi) the agreed fact at trial that she had no marks or injuries on her body is inconsistent with her evidence that this was a violent sexual encounter;

(xvii)her testimony revealed a poor memory of basic things, such as how her pants came off;

(xviii) her evidence about when the car alarm sounded was internally inconsistent, both between her police statement and her oral testimony and within her oral testimony;

(xix) her evidence about the car alarm having sounded after the sexual intercourse took place makes no sense given her stated reason for getting back into the car;

(xx) her testimony about condoms having been given out in gym class at school is inconsistent with the evidence of both A.A. and D.R.; and

(xxi) her testimony about A.A. having taken a condom out of A.M.’s bag is inconsistent with A.A.’s evidence.

39The Defence argued that there must be a reasonable doubt on the issue of consent. Although there is no clear motive to fabricate on the part of A.M., there also is no proven lack of motive, Mr. Edgar submitted.

40The Defence turned next in closing submissions to the issue of mistake as to the age of the complainant. On that issue, Mr. Edgar advanced these points:

(i) A.M.’s evidence about her being on Tinder is inconsistent with that of D.R. and demonstrates that A.M. lied about her age;

(ii) A.M.’s evidence about not knowing how A.A. met L.S. is inconsistent with that of A.A.;

(iii) A.A.’s police statement, which statement forms a part of her evidence at trial, specifically at page 47 of the transcript, confirms that A.M., in the presence of L.S., told the other male that A.A. was 17 years old, and (even if this Court finds that the said comment by A.M. was confined only to the age of A.A. and not an expression of the age of A.M. herself) there is evidence that the accused knew that A.A. and A.M. were friends and in the same grade at school, thus, it is reasonable to infer that L.S. thought that A.M. was the same age as A.A., 17 years old;

(iv) because A.A.’s Tinder account has been deleted, there is no independent proof that A.A. told L.S. on Tinder that A.A. was 15 years of age;

(v) Amore testified that there was nothing on A.A.’s Tinder profile about her age, and thus this Court should reject any suggestion that A.A.’s Tinder profile said that she was not 18 years old; and

(vi) further, and related to the point immediately above, the evidence of Mr. Tran confirms that the bio information is not visible on the front page of a Tinder account profile, therefore, there is no reason to think that the accused would have seen the alleged statement that A.A. was not 18 years old even if that statement was in existence.

41Mr. Edgar argued that this Court should conclude that the accused thought that A.M. was at least 16 years old. It would be unsafe to conclude that L.S. knew that A.M. and/or A.A. was/were under 16 years of age. Remember, it was submitted, that even A.M. testified that she knew that A.A. had told L.S. and/or the other male that A.M. was 15 or 16 years old (emphasis on the latter).

42Third and finally, the Defence dealt with whether the accused took all reasonable steps to ascertain the age of the complainant. Mr. Edgar submitted that not all steps need to be taken by someone in the shoes of L.S., but rather just all reasonable steps.

43On that issue, key is the evidence of Stevenson, Mr. Edgar submitted. That evidence should be accepted by this Court, including that L.S. has limited cognitive functioning, it was argued.

44The Defence brought the Court’s attention to the decision of the Provincial Court of British Columbia in R. v. L.F.M., 2015 BCPC 449, 2015 BCPC 0449. In that case, the accused, 54 years old, was charged with sexual offences allegedly committed against a 15-year-old. The accused testified at trial. The Defence also called expert evidence at trial, a registered psychologist. The accused advanced two defences at trial – that he took all reasonable steps to ascertain the age of the complainant and believed the complainant to have been 16 years of age or older, and that he had an honest but mistaken belief in consent. The accused could not read or write. He left school before completing grade 8. He did not know what sexual arousal or masturbation meant. He had an IQ of 45. His cognitive functioning was in the “extremely low range”, and he had a “significant intellectual disability”. He presented in the courtroom like a child. He was described by others as “childlike”. Ultimately, both defences advanced in that case were accepted by the learned trial judge. The Court stated the following at paragraphs 58 through 63 of its decision.

58L.F.M. testified that he believed that D.S. was 17 years old, because he heard someone on the bus say so. He did not ask D.S. directly how old he was, although D.S. appeared to be a younger teen and L.F.M. knew that D.S. was still in high school. Having heard that D.S. was 17, L.F.M. does not appear to have turned his mind to the matter further.

59The degree of attention that the law requires is that the accused take all reasonable steps to ascertain the age of the complainant. If I were considering that test and these circumstances in the context of a 54-year-old man of normal intelligence and normal life experience, I would find that the Crown had proven beyond a reasonable doubt that the accused had failed to take all reasonable steps to ascertain the age of the complainant.

60However, I must include factors personal to L.F.M., which are his significant intellectual disability and very limited life experience. Those factors are relevant, although not determinative. Did he give to the question of D.S.’s age that degree of attention which the law requires, and which he was capable of giving? He heard someone say that D.S. was 17, and he relied on that statement. Given his significant intellectual disability and limited life experience, I have a reasonable doubt that more was required of him. I find L.F.M. not guilty of sexual interference, and not guilty of invitation to sexual touching.

61L.F.M. testified that he believed D.S. enjoyed touching him. His belief was honestly held. There is no finding of fact that D.S. pulled his hand away. The circumstances known to L.F.M. at the time the offence was alleged to have occurred included the fact that D.S. had chosen to sit with him every day for weeks, although D.S. could have chosen to sit in an empty seat somewhere else on the bus. The circumstances also included the fact that the sexual conduct in question invariably followed a game that D.S. played willingly. The circumstances included the fact that M.T. and T.L. did not see anything consistent with unwillingness.

62The circumstances also included a gap of almost 40 years between the age of the complainant and the age of the accused. If these circumstances were considered in the context of a 54-year-old man of normal intelligence and life experience, I would have found that the Crown had proven beyond a reasonable doubt that the accused did not take reasonable steps to ascertain that the complainant was consenting. However, the circumstances include personal factors like the accused's significant mental disability and his relative social isolation. Those personal factors are not determinative, but in the circumstances of the case before me, I find that they leave me with a reasonable doubt about whether the Crown has proven that L.F.M. did not take reasonable steps to ascertain that the complainant was consenting. I find L.F.M. not guilty of sexual assault.

63All three counts are dismissed.

45Mr. Edgar drew a close parallel between the L.F.M., supra decision and our case, submitting that not guilty verdicts should also be rendered here.

46Ms. Ward, for the Crown, delivered her closing address by dealing first with the issue of age and the “all reasonable steps” enquiry. She submitted that the Court should place no weight on the evidence of Stevenson, for the following reasons:

(i) Stevenson simply ignored information that did not support her own opinions, such as the school records for L.S. and his prior experience as a tutor;

(ii) Stevenson simply ignored the serious concerns that the prior assessors had about the veracity of the information supplied to them by the accused’s mother;

(iii) Stevenson’s ad hoc photos test should not be relied upon by the Court because it is not standardized and has never been peer-reviewed; and

(iv) Stevenson failed to explain how it could be that some of the accused’s answers to her questions defy all common sense, such as his comment that he does not know what “sex” is.

47The Crown submitted that D.R. was not a reliable witness, although the Court was urged to accept the evidence of D.R. about her alleged post-offence observations of A.M. and A.M.’s demeanour. Otherwise, D.R. exhibited a bad memory and was generally uncertain about much of her evidence, it was argued by the Crown.

48The Crown also submitted that the Court should have some concerns about the evidence of A.A. On any point of direct contradiction between the evidence of A.M. and that of A.A., this Court should accept the evidence of A.M., it was submitted. A.A. has her own self-interest to protect here, as she was the driving force behind the events of that day, it was argued by the Crown.

49The Crown urged the Court to conclude that the accused did not take all reasonable steps to ascertain the age of the complainant. Even if L.S. believed that A.A. was 16 years of age or older, why does he get a free pass on A.M.’s age, it was asked rhetorically.

50The Crown submitted that Amore’s evidence and that of Mr. Tran are not helpful to the Defence. The bottom line is that Amore did not review any of A.A.’s Tinder information, and there is no basis to believe that Tinder operated in 2017 as it does today, thus the evidence of Mr. Tran is not useful. Something or someone from Tinder itself was required, it was submitted by the Crown.

51In the end, the police statement of A.M. is the very best evidence before the Court. It is contemporaneous with the events. It should be accepted. This Court should find that L.S. was well aware that A.M. was under 16 years old, the Crown submitted.

52The Crown dealt next with the issue of consent. A.M. was clear and unshaken in her evidence that she never consented to any sexual activity with the accused, and that evidence should be accepted by the Court, it was argued.

53The Crown submitted that any alleged deficits in the evidence of A.M. must be assessed reasonably and having taken into account all of the circumstances. For example, why did she not fight back or yell out for help? The Defence is inviting the Court to engage in improper stereotypical and mythical reasoning, Ms. Ward explained. Remember, A.M. was young and vulnerable and intoxicated. Also, a lot of time has passed, and it is therefore not surprising that A.M. cannot recall her exact body position in the back seat of the car, for example. Also, the Court should be careful not to rely upon A.A.’s perceptions of A.M., such as whether A.M. was having any fun that day. Those perceptions, inherently subjective as they are, could be misleading, the Crown submitted.

54On the issue of the improper reliance on myths and stereotypes in sexual offences cases, the Crown brought the Court’s attention to the decision of the Court of Appeal for Ontario in R. v. Steele, 2021 ONCA 186. In that case, Justices Benotto and Thorburn stated the following, at paragraphs 17 through 20.

17The Crown's right of appeal from acquittals is restricted to questions of law alone: s. 676(1)(a) of the Criminal Code, R.S.C. 1985, c. C-46. An assessment of the evidence on a wrong legal principle constitutes and error of law: R. v. H. (J.M.) (2011), 113 O.R. (3d) 80, [2011] 3 S.C.R. 197, [2011] S.C.J. No. 45, 2011 SCC 45, at para. 29; R. v. Luceno, [2015] O.J. No. 5826, 2015 ONCA 759, 341 O.A.C. 223, at para. 34. Reliance upon stereotypical views about how victims of sexual assault would behave is an error of law: R. v. D. (A.R.J.), [2018] 1 S.C.R. 218, [2018] S.C.J. No. 6, 2018 SCC 6, at para. 2.

18R. v. Ewanchuk, 1999 CanLII 711 (SCC), [1999] 1 S.C.R. 330, [1999] S.C.J. No. 10, at para. 95, demonstrates that the law has been seeking to eradicate myths about the appropriate behaviour of victims of sexual assault for decades:

Complainants should be able to rely on a system free from myths and stereotypes, and on a judiciary whose impartiality is not compromised by these biased assumptions. The Code was amended in 1983 and in 1992 to eradicate [page728] reliance on those assumptions; they should not be permitted to resurface through the stereotypes reflected in the reasons of the majority of the Court of Appeal. It is part of the role of this Court to denounce this kind of language, unfortunately still used today, which not only perpetuates archaic myths and stereotypes about the nature of sexual assaults but also ignores the law.

19The use of a common-sense approach to credibility assessment is fraught with danger for it can "mask reliance on stereotypical assumptions": R. v. A. (A.B.) (2019), 145 O.R. (3d) 634, [2019] O.J. No. 833, 2019 ONCA 124, at para. 7.

20Here, the trial judge applied irrelevant stereotypical views about the behaviour of sexual assault victims under the guise of a common-sense approach to credibility assessment. He did this twice: first when considering A.V.'s evidence about why she went into the trailer; second when discussing her call with her parents.

55On the issue of how alcohol consumption can reasonably impair someone’s memory of rather insignificant things but not shake her credibility in relation to her core memory of the sexual assault, the Crown relies on the decision of the Court of Appeal for Ontario in R. v. M.B., 2018 ONCA 399. In that case, the Court of Appeal found no error in the trial judge’s assessment of the credibility of the complainant. Paragraphs 2 through 7 of the Court of Appeal’s decision are set out below.

2The appellant submits that the trial judge erred in his credibility analysis of the complainant’s evidence. In particular, the appellant takes issue with the trial judge’s explanation for the major inconsistency in the complainant’s description of her position when she woke up to the assault: on one version, she woke up on her back; on the other version, she woke up on her stomach and was turned over.

3The appellant advances two arguments. First, the trial judge impermissibly relied on the scientific concept of memory fragmentation caused by alcohol consumption without the support of expert evidence. Second, it was unfair for the trial judge to make this finding without giving counsel an opportunity to address it.

4We disagree.

5The trial judge carefully reviewed the complainant’s evidence and was alive to its frailties. The trial judge accepted the complainant’s explanation for her poor memory and found that it did not affect her credibility in relation to her core memory of the sexual assault.

6We do not read the trial judge’s use of the words “memory fragmentation” as a scientific term. Rather, he was summarizing the complainant’s own explanation for her inconsistent and sometimes incoherent memory of the relevant events, which she attributed to her excessive alcohol consumption. It is no more than a finding, based on the evidence, that on both occasions when she described what happened, the complainant was unable to consistently access from her memory some of the details of what occurred on the night of the incident, because of her intoxication.

7Because these findings were open to the trial judge and given that the effect of the complainant’s intoxication was a significant issue at trial, there was no unfairness.

56Not surprisingly, while Mr. Edgar argued that acquittals should be entered on both charges, Ms. Ward submitted that there ought to be two findings of guilt entered.

The Mistake of Age Defence - Step One in Carbone, supra – is there an air of reality to the section 150.1(4) defence, that is, is there a basis in the evidence to support the claim that the accused believed the complainant was the required age and took all reasonable steps to determine the complainant’s age?

57The air of reality test is not an onerous one to be met. It is not intended to assess whether the defence is likely or unlikely to succeed. The question is whether a properly instructed jury acting reasonably could be left with a reasonable doubt with regard to the issue at hand, and here that issue is whether the accused believed that the complainant was the required age and took all reasonable steps to determine the complainant’s age. In deciding whether there is an air of reality, this Court must consider both direct and circumstantial evidence capable of supporting the inference(s) being advanced by the accused. If there is a doubt about whether the test is made out, the trial judge should err on the side of caution and consider the defence on its merits. R. v. Barrett, 2022 ONCA 355, at paragraphs 61-63 and 67; R. v. Cinous, 2002 SCC 29; R. v. Pappas, 2013 SCC 56.

58This Court is satisfied that the air of reality test has been met here. As to the accused’s alleged belief about the complainant’s age, this Court could accept that part of A.M.’s evidence in cross-examination at trial where she agreed with Mr. Edgar that her female friend may have told the two males (accused included) that A.M. was 16 years of age, and from that evidence this Court could infer that L.S. believed that A.M. was 16 years old on the date in question. That inference could be strengthened if this Court also accepted the evidence-in-chief of A.A. where she stated in her police interview that the accused’s friend, in the presence of the accused, asked the two girls how old they were and A.M. replied “17”.

59As to whether the accused took all reasonable steps to ascertain the age of the complainant, this Court could accept the evidence of D.R. in cross-examination at trial and find that A.M. was on Tinder before the alleged offence date, and this Court could also accept the evidence of A.A. in cross-examination at trial that one had to be 18 years old, minimum, to be on Tinder at the material time. From that evidence the Court could infer that the accused also thought that one had to be at least 18 years old to be on Tinder, and the Court could infer from all of the circumstances that the accused knew that A.M. (and not just A.A.) was on Tinder before the day of the sexual activity, and thus, A.M. must have been at least 18 years old at the time. On the basis of those many inferences, this Court could conclude that L.S. had taken all reasonable steps to determine the age of the complainant.

60I am prepared to err on the side of caution and consider the section 150.1(4) defence on its merits.

The Mistake of Age Defence - Step Two in Carbone, supra – if the answer to step one is no, then the section 150.1(4) defence is not in play, but if the answer to step one is yes, has the Crown negated the defence by proving, beyond a reasonable doubt, either that the accused did not believe the complainant was the required age or that the accused did not take all reasonable steps to determine the age of the complainant?

61In my view, the Crown has negated the defence. It has been proven, beyond a reasonable doubt, that L.S. did not believe that A.M. was the required age, that is at least 16 years old. It has been further proven, beyond a reasonable doubt, that L.S. did not take all reasonable steps to determine A.M.’s age.

62The following points deserve to be highlighted. First, there is no evidence from the accused that he believed that A.M. was 16 years of age or older. Second, there is no evidence that the accused was ever told directly by A.M. that A.M. was 16 years of age or older. Third, there is no evidence that the accused was ever told by A.A. that A.M. was 16 years of age or older. Fourth, there is no evidence that the accused was ever told by anyone else or by any other source that A.M. was 16 years of age or older.

63The said first and fourth points are unassailable.

64On the second point, at its highest, there is evidence that the other male (not L.S.), in the presence of L.S., asked the two girls how old they were and A.M. replied “17”. That evidence comes from the police interview of A.A. and forms a part of A.A.’s direct evidence at trial. I do not accept that evidence. I prefer the evidence of A.M. who testified that she never told anyone that day that she was 17 years old and, further, there was no discussion by anyone that day, in her presence, about her age.

65On this contentious point, I prefer the evidence of A.M. over that of A.A. because I believe that A.M. would likely have a better memory of what she said that day about her own age, as opposed to attributing what she said to the memory of someone else, A.A. My preference for the evidence of A.M. on this contentious point is only buttressed by the fact that A.A., by her own admissions, was untruthful about A.A.’s age prior to the date in question. She had communicated to L.S. that she was older than she actually was. And she had knowingly allowed her Tinder account front page to advertise that she was 18 years old. Evidently, A.A. is not the most credible source when it comes to the subject matter of her own age, and that gives me some concern about placing any weight on that isolated part of her evidence about what A.M. allegedly said to the other male in the presence of the accused.

66On the third point above, at its highest, there is evidence that A.A. might have told the two males that A.M. was 16 years old. That evidence comes from the cross-examination of A.M. at trial. That evidence must be assessed in its context, however. The flow of the cross-examination must be fairly considered. A.M. was first asked by Mr. Edgar if she had been told that A.A. said to the two males that A.M. was 15 or 16 years old. A.M. answered in the affirmative. It was then suggested to A.M. that A.A. might have told the two males that A.M. was 16 years of age, and A.M. agreed with that suggestion. A.M. then clarified that what she was told was that A.A. said to the two males that A.M. was 15 years old.

67Putting aside the issue of whether the said clarification was improperly tainted by A.M. having regard to the transcript of her police statement, which issue is unimportant to the following point, what is clear is that this evidence is unreliable. It is unreliable because A.M. is attempting to relay something that she was told by someone else and not something that she actually heard. The trial transcript is not even clear as to who allegedly told this to A.M. It is further unreliable because it only goes as far as suggesting what A.A. might have told the two males, not what she in fact did tell them. Finally, it is unreliable because it must be equally true that A.A. might have told the two males that A.M. was 15 years old. For these reasons, this Court places no weight on that evidence from A.M. about what A.A. might have told the two males about A.M.’s age.

68In short, the unimpeachable fact that there was no direct conversation/discussion/comment of any kind between A.M. and L.S. about A.M.’s age, combined with the other points highlighted above, all persuade me to conclude that the Crown has negated the mistake in age defence in that it has proven beyond a reasonable doubt that L.S. did not believe that A.M. was at least 16 years old.

69Remember, there is no evidence from the accused about what he believed. Of course, such evidence is not necessary, however, on these particular facts, the observation made by the Court of Appeal for Saskatchewan in Moise, supra is relevant – the capacity of this Court to articulate some evidentiary basis for the accused’s alleged belief that the complainant was indeed the requisite age is significantly compromised.

70There is a separate and distinct basis for this Court’s conclusion that the Crown has negated the mistake in age defence, however, in fact an even stronger basis than that of the accused’s belief. An even more compellable one. And that concerns whether the Crown has proven beyond a reasonable doubt that the accused did not take all reasonable steps to determine the complainant’s age. I find that the Crown has proven that. In actuality, I would go so far as to say that L.S. took virtually no steps to make that determination, never mind all reasonable steps.

71This Court accepts the evidence of A.M. and finds as facts that L.S. never asked her how old she was and she never told him how old she was. This Court further finds as facts that L.S. never asked A.A. how old A.M. was and A.A. never told L.S. how old A.M. was. There is also no evidence that L.S. was told how old A.M. was by anyone else or by any other source, and on the latter there is no evidence that L.S. thought that A.M. was on Tinder at the material time. I find that she was not, as I prefer the evidence of A.M. over that of D.R. in that regard, but on the issue of “all reasonable steps” it matters not because, even if A.M. was on Tinder beforehand, there is no reason to think that L.S. knew that and therefore made some assumption about A.M.’s age.

72Surely, whatever connotations the expression “all reasonable steps” may have, right-minded persons will agree that it must mean something more than deciding to have sex with a person on the basis that she must be 16 years old because she’s hanging out with a girl who I have been communicating with on an adult hook-up site, Tinder. At its core, that is this case. With respect, that cannot constitute “all reasonable steps”. If it does, then the test is so devoid of any meaning that it would better serve the interests of justice to scrap it altogether, a decision that Parliament would have to make.

73The whole objective of the legislation, and of section 150.1(4) specifically, is to avoid that type of speculation, conjecture, and the making of assumptions. It is to encourage those who decide to have sex with someone to make some meaningful enquiry about the person’s age. Depending on the circumstances, a simple and singular question might suffice – how old are you? Each case is different, but we do not even have that on our facts.

74The reliance by the Defence on the evidence of Stevenson and on the L.F.M., supra decision is understandable but, with respect, not convincing.

75I accept the evidence of Stevenson. There is no question that L.S. has a mild/moderate intellectual disability and a very low IQ. There is no question that L.S. has significant deficits in his executive functioning. There is no question that he is the type of person who is likely to have trouble verifying someone’s age and might simply accept initial information about that person’s age without appreciating that a further enquiry is warranted.

76That is not at all our case, though. This is not a case about verification but rather one about any enquiry at all. There was no enquiry. Not even a simple question by the accused to the complainant, or even to her female friend, about how old A.M. was. Stevenson was careful not to exaggerate her findings to the degree that L.S. is intellectually incapable of making any enquiry at all, and such a conclusion would be startling given his education and work history, a history that includes L.S. having acted as a tutor to others. Stevenson’s evidence about what L.S. might assume from someone being on Tinder is relatively unhelpful because, I repeat, there is no evidence that L.S. thought that A.M. was on Tinder at the time.

77Our case is also very different than the facts that presented themselves in L.F.M., supra. That accused testified and explained, as best as he could, what it is he relied on to determine the age of the victim. Not here. That accused was so disabled that he was like a child. Not here.

78L.S. did virtually nothing to determine the age of A.M. He took his chances with a fragile assumption that she must have been 16 years of age or older. Even for L.S., such an assumption was not enough. The Crown has negated the defence; I am sure that the accused did not take all reasonable steps to ascertain the age of A.M.

The Mistake of Age Defence - Step Three in Carbone, supra – if the Crown has not negated the defence, then the accused will be acquitted, but if the Crown has negated the defence, has the Crown proved the accused believed (or was wilfully blind) that the complainant was underage, or was reckless as to her underage status?

79As pointed out by Justice Doherty in Carbone, supra, it will generally be a rare case that a trier of fact gets to this question and then concludes that the Crown has not proven the mens rea (knowledge) component.

80At a minimum, this Court finds that L.S. was wilfully blind to or was reckless as to the underage status of A.M. By making no enquiry at all about her age, not even a simple question directed to A.M., or even to A.A., L.S. made a deliberate choice to keep himself unaware of his sexual partner’s age. That is the very definition of wilful blindness. He proceeded to have sex with a relative stranger, a young female, without there having been a word uttered between them or among them about how old that female was. That is recklessness defined.

The Consent Defence

81In the event that this Court is wrong in its handling of the mistake in age defence, I will proceed, albeit more briefly, to deal with the consent defence.

82I find that the Crown has proven beyond a reasonable doubt that A.M. did not consent to having sex with the accused, and I find that there is no merit to any suggestion that the accused honestly but mistakenly believed that A.M. did consent. On the latter, if this was a jury trial, I likely would not have left the defence of honest but mistaken belief in consent with the jury on the basis that there was no air of reality to that argument. To the credit of Mr. Edgar, actual consent was the clear focus of the submissions on behalf of L.S.

83In his able closing argument, Mr. Edgar outlined a series of imperfections about A.M.’s evidence. Some of them I agree with. None, however, shakes her credibility or reliability on the penultimate question of whether she wanted to have sexual intercourse with the accused. Taking all of the imperfections together, as I find them to be, also does not shake my confidence in reaching the conclusion that I have. On a consideration of the totality of the evidence adduced at trial, I am sure that A.M. did not consent to the sexual activity. On the contrary, she repeatedly and unequivocally protested against it. She clearly did not want it to occur.

84The Court will deal now with the specific points raised by the Defence.

85I can understand why A.M. chose not to leave the area, and I see no inconsistency between her evidence that she wanted to leave and her own actions and/or the evidence of A.A. A.M.’s decision to stay could be explained by her desire not to disappoint her friend. Her decision to stay could also be explained by the fact that she would have had no reason to anticipate that the accused would make sexual advances towards her. Whatever the explanation, this point causes me no concern about the veracity of the complainant’s evidence on the issue of consent.

86I agree with Mr. Edgar that it is not credible for A.M. to say that she had no fun that day. But I can understand why a young victim of a serious sexual assault would perceive the day’s events that way, after-the-fact. I see it not as a lie but as an exaggeration, and one that is not surprising.

87I agree with Mr. Edgar that it seems unusual to permit one’s friend and the fourth person to leave the area after having had unwanted sexual advances made towards one by the person who will be staying back. This was a fifteen-year-old girl, though. I am hesitant to say how I think she should have behaved. Perhaps she was afraid of the accused. Perhaps there was a reason for her to stay other than wanting L.S. to put his penis inside her. In any event, what on its face seems unusual to some causes me no concern about A.M.’s evidence on the issue of consent.

88I believe A.M.’s evidence about prior marihuana use and her knowledge, or lack thereof, of the plan to smoke pot that day. I prefer that evidence to the testimony of D.R., as the latter was rather vague in my opinion. Besides, this issue is a trivial and inconsequential one.

89I believe A.M.’s evidence about who initiated the idea of getting alcohol that day. It makes no common sense to me that A.M., rather than A.A., fueled that idea. A.A. was without question the main instigator of the whole rendezvous. She was the one who had the prior online relationship with L.S. I think it is more likely that A.A. and the two males sparked the plan to get the alcohol, and not A.M.

90I believe A.M.’s evidence about how the alcohol affected her own level of sobriety. I think it is inherently dangerous to rely much on one young person’s description of another’s drunkenness. A.A. made her own subjective observations of A.M., but those do not cause me to reject the evidence of the complainant.

91I agree with Mr. Edgar that A.M. was likely appearing to be having some fun while on the swings. A.A. is probably right about that. A.M.’s testimony that she was in a sour mood at that time is understandable, however. The trial took place a long time after the incident, an incident that involved A.M. being raped at the hands of a stranger. I doubt that A.M. looks back on the day with any acceptance that it had even a moment of happiness. I can sympathize with that.

92I reject the notion that staying behind in the car with L.S. points towards A.M.’s consent to having sexual intercourse with him. It does not. It points towards nothing more than her willingness to stay, for whatever reason. Consent to sexual activity cannot be inferred from the decision to hang out with someone.

93I am not surprised that A.M. cannot recall the specifics of how the car went from being locked to unlocked or when it was locked or unlocked. Those are trivial and inconsequential items.

94I reject the notion that A.M.’s decision to get back into the car after getting out of it points towards her consent to having sexual intercourse with the accused. If that were true, then I suppose that it is equally true that her decision to get out at all points towards a lack of consent. I draw neither conclusion.

95I agree with Mr. Edgar that there is an inconsistency between A.M.’s police statement and her viva voce evidence at trial about whether there was anybody around the car to help her. I see it as a minor matter, however. Just as I would not likely hold such an imperfection against an accused, I place no weight on it here.

96I see nothing nonsensical about A.M.’s evidence that she was not able to get out of the car a second time. Just because she got out once does not mean that she could get out again. I fail to see the logic in the reasoning. Two different moments in time. Two different things happening inside the car. One other person inside the car who could have done something to prevent the second exit. It makes sense to me.

97I see nothing nonsensical about A.M.’s evidence that the accused flipped her over in the back seat of the car. The complainant is not a large person. Even the smallest car imaginable, if it has a back seat, as this one did, can accommodate the complainant’s description.

98I agree with Mr. Edgar that the complainant’s evidence about her chest facing the door of the car seems to make no sense. But that entire line of questions and answers at trial is difficult to comprehend. The transcript will speak for itself. Respectfully, I think that the difficulties in comprehension stem from the term “facing the” door/back of the front seat. Without describing in intimate detail how L.S.’s penis got inserted into A.M.’s vagina, from what direction, and so on, which description was never elicited at trial, it is impossible to determine what can be made of A.M.’s accounts of where her chest was facing. In any event, none of this changes my view of whether the complainant wanted to have sex with the accused.

99I reject the notion that the lack of marks or injuries on A.M. is inconsistent with her account of what happened inside that car. A.M. never described anything that this Court can safely say would necessarily have caused visible injury. And forced sexual intercourse may or may not lead to injury.

100I agree with Mr. Edgar that A.M. was unable to explain with any precision how her pants were removed inside the car. I disagree, however, that one takes from that a conclusion that she demonstrated a generally poor memory of the sexual encounter. She did not. The manner in which her pants were removed was overshadowed by what occurred next, and that is not hard to comprehend.

101I agree with Mr. Edgar that the whole business about the car alarm is a mess (my word). But that level of scrutiny on the timing of the sounding of a car alarm is improper, for any witness, never mind someone in the position of A.M.

102I do not think that any of the three girls, A.M., A.A., or D.R., is too sure about her evidence on the condoms having been given out, or not, in gym class. I see it as unimportant.

103I believe A.M.’s evidence about A.A. having taken a condom out of A.M.’s bag. I prefer that evidence over the testimony of A.A. That does not make A.A. a bad or immoral or irresponsible young lady. It just makes her someone who understandably may not wish to divulge such a private matter in a courtroom. It is embarrassing, and A.A. looked so when she was asked about it at trial.

104In summary, there were some problems with the evidence of A.M. She was certainly not a perfect witness, if there exists such a thing. For the most part, though, she was credible and reliable in her evidence. She was unshaken and steadfast in her emotional testimony of having sexual intercourse forced on her by the accused. In totality, I have no hesitation in concluding that she did not consent to having sex with L.S. The Crown has proven that beyond a reasonable doubt.

105This Court finds that the following occurred. A.M., 15 years old at the time of the incident, became tipsy from the consumption of vodka that was supplied to her by L.S. While A.A. and the second male were away from the area, A.M. found herself alone with the accused. They were in the back seat of the car. Without a condom, L.S. put his penis inside her vagina and had sex with her. One cannot conclude that he ejaculated. She blacked out a little around the time of the sexual intercourse, due to the booze. She kept saying over and over again “stop” and “I don’t wanna have sex”. But he persisted. She tried to push him off but could not do so. He would not stop until he finally did. She was crying. She was scarred. She did not want it to happen.

106A.M. had never met L.S., and did not know him at all, before that day. She thought that he was, and he in fact was, an adult and a few years older than her.

107Those findings, and the trial evidence as a whole, are not commensurate with any air of reality to the defence of honest but mistaken belief in consent. Any such defence is rejected by this Court. All of the essential elements of both offences have been proven beyond a reasonable doubt.

III. Conclusion

108For all of the aforementioned reasons, the verdicts are as follows: sexual assault (section 271) – guilty; sexual interference (section 151) – guilty.

109It is likely that one of the findings of guilt ought to be conditionally stayed. We will discuss that issue at the time of sentencing.

110The sentencing date will be scheduled today. It is likely that the evidence of Stevenson is relevant on sentencing. A presentence report may also be advisable.

111I wish to thank both counsel for their very hard work and thorough assistance throughout the trial.

Conlan J.