COURT FILE NO.: CR-23-0736-0000 DATE: 2024 09 03

ONTARIO SUPERIOR COURT OF JUSTICE

BETWEEN:

HIS MAJESTY THE KING – and – MICHAEL NASER PHILIB ZAKHARI Defendant

COUNSEL: T. Meehan, for the Crown H. Bassi, Counsel for the Defendant

HEARD: May 13, 14 and 15, & June 28, 2024

Justice G.D. LEMON

REASONS FOR JUDGMENT

The Issue

[1] Mr. Zakhari is charged with committing a sexual assault on Stevie Rundle-Chiasson contrary to Section 271 of the Criminal Code of Canada, and sexually interfering with Ms. Rundle-Chiasson contrary to s. 151 of the Code. Both offences are said to have occurred on October 7, 2021.

[2] At the outset of the trial, Ms. Rundle-Chiasson asked that there be no ban on the publication of her identity. Neither counsel objected. Accordingly, her name is used throughout these reasons.

[3] During argument, the Crown conceded that I should have a reasonable doubt as to whether Mr. Zakhari is guilty of sexual assault and asked that Mr. Zakhari be found not guilty of that charge.

[4] I agree with the Crown that I should at least have a reasonable doubt as to whether Ms. Rundle-Chiasson consented, and had the capacity to consent, to the sexual acts as alleged. On all of the evidence, Ms. Rundle-Chiasson may have had the capacity to consent and did consent to the acts that occurred between the two. Accordingly, Mr. Zakhari is acquitted of that charge.

[5] There is no dispute that Mr. Zakhari had sexual intercourse with Ms. Rundle-Chiasson on October 7, 2021. Mr. Zakhari does not deny that Ms. Rundle-Chiasson was 15 at the time. Accordingly, that still leaves the factual and legal issues of:

1. Was Mr. Zakhari aware that Ms. Rundle-Chiasson was under the age of 16 at the time?
2. Did Mr. Zakhari take reasonable steps to ascertain Ms. Rundle-Chiasson’s age?

The Positions of the Parties

[6] Counsel for the Crown submits that Ms. Rundle-Chiasson did not consent to the activity and did not have the capacity to consent; however, he accepts that, on all of the evidence, I should have a reasonable doubt about whether Ms. Rundle-Chiasson consented to the sexual activity in question and whether she had the capacity to consent, for the purposes of the sexual assault count. Counsel for the Crown submits that Ms. Rundle-Chiasson’s evidence is credible but not sufficiently reliable to prove a lack of consent beyond a reasonable doubt.

[7] In response, the defence submits that Ms. Rundle-Chiasson was a sober and willing partner in the sexual activity. Although it is admitted that she was 15 at the time of these events, Mr. Zakhari states he was unaware of this fact despite his reasonable efforts to determine Ms. Rundle-Chiasson’s age.

[8] In reply, the Crown accepts that there is an air of reality to Mr. Zakhari’s defence but submits that Mr. Zakhari knew or ought to have known that Ms. Rundle-Chiasson was underage. In any event, on Mr. Zakhari’s own evidence, he did not take reasonable steps to enquire about her age.

[9] For the following reasons, I find Mr. Zakhari not guilty of both charges.

The Background

[10] There were four people in the group involved in these events on the night of October 7, 2021. Ms. Rundle-Chiasson, her male friend, Adam Rivera-Martes, her female friend, Ivy Toner, and Mr. Zakhari. Ms. Rundle-Chiasson, Adam and Ivy knew each other prior to this night. Ivy and Mr. Zakhari knew each other prior to this night. However, Mr. Zakhari, Ms. Rundle-Chiasson and Adam first met that evening.

[11] As I have said, there is no dispute that Mr. Zakhari and Ms. Rundle-Chiasson had sexual intercourse in the back of Mr. Zakhari’s car on October 7, 2020. I need not review the details of the sexual activity to make my determinations. The events leading up to that activity are generally agreed upon, although many of the particulars are in dispute.

[12] There is no dispute that Ms. Rundle-Chiasson was 15 and Mr. Zakhari was 27 on the day in question. The evidence confirms that neither Ms. Rundle-Chiasson nor her companions that night told Mr. Zakhari that she was 15. Indeed, all the evidence is that Ms. Rundle-Chiasson was represented to be 18 years of age by her and her friends. How those representations were made is in dispute. Whether Mr. Zakhari believed those representations or should have believed them is in issue.

[13] Ms. Rundle-Chiasson’s evidence is that she was grossly impaired that night and unable to consent to the sexual activity, even if she was of age. All other evidence is that she was not so impaired.

[14] While none of the witnesses were certain of the timing of the events, the rough chronology is that Mr. Zakhari arrived in Guelph to visit a friend earlier in the day. Before he left Guelph, he contacted Ivy to meet with him and she agreed. They met at her residence apartment building at about 6:00 p.m.

[15] Ivy suggested that they include Adam and Ms. Rundle-Chiasson in their evening. Mr. Zakhari was hesitant at first but then agreed. Ivy and Mr. Zakhari then picked up Adam and Ms. Rundle-Chiasson, and they gathered in the Riverside Park parking lot or Ivy’s parking lot around 7:00 p.m. Nothing turns on where they met, or if they met in one car or two.

[16] Wherever they met, they all decided to go to “the cliffs” just outside of Guelph. They went there in Mr. Zakhari’s car and arrived at approximately 7:15 p.m. They spent time at the foot of the cliffs and then walked to the top. They spent about a half hour there and then returned to the bottom after 8:30 p.m.

[17] They then drove to an abandoned house near Fergus. They arrived there about 20 minutes later and stayed for less than a half hour.

[18] They then left and returned to Ivy’s apartment building parking lot. They talked briefly and then Ms. Rundle-Chiasson and Mr. Zakhari left in his car. Mr. Zakhari was to drive Ms. Rundle-Chiasson home. The sexual activity occurred in his car on that ride home, and away from Ivy and Adam.

[19] By the door camera at her home, Ms. Rundle-Chiasson returned home at 11:10 p.m.

[20] Ms. Rundle-Chiasson, Ivy and Adam gave evidence for the Crown. Mr. Zakhari testified in his own defence.

The Authorities

[21] Counsel agree on the well-known principles of law that apply to this case. For the benefit of Ms. Rundle-Chiasson, Mr. Zakhari and others in the courtroom, I can summarize them as follows.

[22] First, Mr. Zakhari is presumed to be innocent. The presumption of innocence means that Mr. Zakhari started the trial with a “clean slate.” The presumption stays with him throughout the case and is defeated only if Crown counsel satisfies me beyond a reasonable doubt that, Mr. Zakhari is guilty of the crime charged.

[23] Although the slogan “believe the victim” has become popular of late, it has no place in a criminal trial. To approach a trial with the assumption that the complainant is telling the truth is the equivalent of imposing a presumption of guilt on the person accused of an offence and then placing a burden on that individual to prove their innocence. That is contrary to our fundamental principles of justice. At the outset of any trial, there is no assumption, one way or the other, about the credibility of the complainant. See: R. v. Nyznik, 2017 ONSC 4392.

[24] The phrase “beyond a reasonable doubt” is a very important part of our criminal justice system. A reasonable doubt has been described as not a far-fetched or frivolous doubt. Nor one based on sympathy or prejudice. It is a doubt based on reason and common sense. One that logically arises from the evidence, or the lack of evidence.

[25] It is not enough for me to believe that Mr. Zakhari is probably or likely guilty. If so, he must be found not guilty, because Crown counsel would have failed to satisfy me of his guilt beyond a reasonable doubt. Proof of probable or likely guilt is not proof of guilt beyond a reasonable doubt.

[26] That said, it is nearly impossible to prove anything with absolute certainty. Crown counsel is not required to do so. Absolute certainty is a standard of proof that is impossibly high. Still, proof beyond a reasonable doubt is much closer to “absolute certainty” than it is to “probability”.

[27] Further, I am not to decide whether something happened simply by comparing one version of events with another, and then choosing one of them. Instead, I must consider all of the evidence and decide whether I have been satisfied beyond a reasonable doubt that the allegation is proven.

[28] Mr. Zakhari gave evidence in his defence. Some of the Crown witnesses provided defence evidence. If I accept defence evidence for the accused, he must be found not guilty. However, even if I do not accept the defence evidence, I must acquit Mr. Zakhari if that evidence leaves me with a reasonable doubt about guilt.

[29] Finally, even if Mr. Zakhari’s defence evidence does not leave me with a reasonable doubt of his guilt, I may only convict him if the rest of the accepted evidence proves his guilt beyond a reasonable doubt.

[30] Here, that principle only applies to some of the evidence. In this case, the Crown submits that Mr. Zakhari can be convicted on his own evidence. See: R. v. Ibrahim, 2019 ONCA 631. I will deal with that issue below.

[31] Mr. Zakhari submits that he had a mistaken belief in Ms. Rundle-Chiasson’s age. He says that he believed she was 18.

[32] This has become a complicated area of the law. Noted author Kent Roach has said that the law of sexual assault “seems to be collapsing under its own weight and complexity”: “Sexual Assault Law”. Editorial (2022) 70 Crim. L.Q. 1 at p.1.

[33] Counsel relied on R. v. W.G. 2021 ONCA 578, R. v. George, 2017 SCC 18; R. v. Morrison, 2019 SCC 15 and R. v. Carbone 2020 ONCA 394 along with other cases that refer to the defence of mistaken belief in age. However, the law with respect to this defence has recently been comprehensively reviewed by the Ontario Court of Appeal in R. v. Hason, 2024 ONCA 369. Although long quotes from other cases are to be discouraged, in Hason, Chief Justice Tulloch set out in clear detail (paras 33 - 51):

Parliament prohibits adults from engaging in sexual activity with young people under the age of 16 to protect those young people from exploitation by adults and the wrongfulness and harmfulness of adult/youth sexual activity. Adults who violate this prohibition may be prosecuted for committing sexual assault and/or sexual interference. Such adults sometimes claim that they believed that the underage young person was 16 or older. Absent legislative intervention, judge-made law would permit this mistake of age defence if the adult honestly held that belief, even if it was unreasonable.

The mistake of age defence presented Parliament with a dilemma. Permitting it to operate unrestricted would allow adults who failed to make reasonable inquiries and held unreasonable beliefs about a young person’s age to evade conviction, but eliminating it would likely violate the Charter.

Parliament resolved this dilemma and enhanced protections for young people by enacting section 150.1(4) of the Criminal Code. That provision modifies the mistake of age defence by requiring the accused to take all reasonable steps to ascertain the complainant’s age. The modified defence has two elements: (1) the accused honestly believed that the complainant was at least 16 years old at the time of the alleged offence, and (2) the accused took all reasonable steps to ascertain the complainant’s age. If the accused shows an air of reality to both elements, then the Crown must negate the defence by proving beyond a reasonable doubt that either element is lacking.

Disproving the first element, honest belief, requires the Crown to prove that the accused did not subjectively accept as true that the complainant was of legal age. Because to believe something is to subjectively accept it as true, belief requires a higher degree of certainty than suspicion or supposition. A person who suspects, guesses, or hopes that the complainant is 16 or older does not accept that proposition as true but instead recognizes that there is a risk, even a low one, that the complainant may be underage. Proceeding with sexual activity despite being aware of that risk is the blameworthy mental state of recklessness, not belief.

Disproving the honest belief element knocks out the entire mistake of age defence. It is irrelevant that the accused took all reasonable steps to ascertain age or that a reasonable person might have believed the complainant was 16 or older if the accused did not also subjectively believe this.

The second element, all reasonable steps, makes adults responsible for preventing adult/youth sexual activity. Assessing this element is challenging because it is contextual and fact-specific. The caselaw meets this challenge by establishing principles to guide the assessment. I distill those principles in these reasons.

The second element implements Parliament’s protective purpose by setting a high bar: Adults must take all reasonable steps to ascertain the complainant’s age before engaging in sexual activity. Parliament’s choice of the word “all” means what it says: Adults must take all reasonable steps, not merely some. Parliament’s protective purpose drives judges’ assessment of whether adults have met that high bar and favours requiring adults to take more, not fewer steps. This high bar ensures that the “all reasonable steps” element is robust and protects young people as much as reasonably possible.

The second element has two interrelated requirements. First, the accused must take all the steps that a reasonable person would take in the circumstances known to the accused to ascertain the complainant’s age. Second, those steps must provide information that would cause a reasonable person to accept as true that the complainant was of legal age.

These requirements make clear that a reasonable person would demand compelling information that establishes the complainant’s age with a high degree of certainty before accepting as true that the complainant was of legal age. Carbone’s teaching that awareness of even a low risk that the complainant is underage is recklessness and precludes belief that the complainant is of legal age confirms that this high degree of certainty is required. So does the grave harm that proceeding with sexual activity with an underage young person can cause, as well as the absence of social value to offset risking that harm that Carbone highlighted. Reasonable people would want to be sure that they are not running the risk of causing the “‘life-altering’” and “devastating” consequences that adult/youth sexual activity inflicts on underage young people, including the heightened risks of physical injury, suicide, substance abuse, and unwanted pregnancy that sexual violence by adult men against adolescent girls causes. The definition of belief as accepting the truth of something and requiring more certainty than mere supposition reinforces the need for this high degree of certainty.

Steps to ascertain age are only meaningful if they obtain compelling information that establishes the complainant’s age with a high degree of certainty. If they do not, then the accused must take additional steps. Adults cannot take a casual, box-checking approach to ascertaining the complainant’s age that is focused on establishing plausible deniability rather than reasonable belief.

Courts have identified several common scenarios where the accused must take additional steps to ascertain age. These scenarios include, without limitation:

• If complainants tell the accused that they are underage;
• If the complainant either declines to respond to the accused’s inquiries concerning age or provides an ambiguous response;
• If the information the accused obtains merely suggests that the complainant could be 16 or older but does not establish this with the high degree of certainty that belief requires and,
• If the accused initially obtains compelling information that the complainant is 16 or older but subsequently learns other information suggesting that the complainant is underage.

Stereotypical and/or illogical reasoning is not compelling and would not cause a reasonable person to believe that the complainant was of legal age. For example, a reasonable person would not infer that complainants are 16 or older because they offer to exchange sex for money since young people below the legal age may also do so. Likewise, a reasonable person would appreciate that underage young people can look like they are 16 or older and would be wary of relying on appearance to jump to conclusions about age. For instance, a reasonable person would not conclude that a young woman is 5 foot 5 inches tall, weighs 160 pounds, and has some breast development. While visual observation may be sufficient in some circumstances, these circumstances will be rare because it is not a reliable indicator.

Because stereotypes and illogical reasoning are impermissible, a reasonable person would also be very wary of relying on the mere fact(s) that complainants are drinking, smoking, purchasing or using drugs, and/or are sexually active to infer that they are of legal age. Rather, the reasonable person would recognize that many underage young people engage in these activities. Often, such young people are especially vulnerable to sexual violence, for example because they are in state care. Reliance on these factors to conclude that a young person is 16 or older thus risks undermining Parliament’s protective purpose by providing less protection to those especially vulnerable young people who need it most.

Because drinking, smoking, drug use, and sexual activity are unreliable indicators and reliance on them risks undermining Parliament’s protective purpose, these activities are generally not sufficient to ground a reasonable belief. Instead, the accused must also usually obtain more reliable indicators of age, such as attendance at adult-only social events, graduation from high school, employment, or the ability to drive.

Finally, accused persons may not proceed with sexual activity unless and until they have taken steps that would cause a reasonable person to believe that the complainant is 16 or older. Sometimes taking steps that are immediately available at a specific point in time may not yield compelling information right away, such as if the complainant declines a request to provide identification or cannot provide it promptly. In these circumstances, accused persons cannot roll the dice and proceed with sexual activity just because they have checked a few boxes since a reasonable person would not run the risk of inflicting life-altering and devastating consequences on the complainant. Rather, accused persons must desist from sexual activity until they can take additional steps to ascertain age because the information they have obtained would not cause a reasonable person to believe that the complainant is 16 or older.

Negating the mistake of age defence is necessary but not sufficient to convict the accused. The Crown must also prove that the accused had one of three blameworthy mental states: (1) belief, (2) wilful blindness, or (3) recklessness. First, belief means that the accused accepted as true that the complainant was underage. Second, wilful blindness means that the accused suspected that the complainant might be underage but deliberately suppressed that suspicion and chose not to make further inquiries. Third, recklessness means that the accused appreciated a risk, even a low one, that the complainant might be underage and decided to take it. This includes situations where accused persons chose to never turn their minds to the complainant’s age and, thus, chose to run the risk that the complainant might be underage.

While negating the defence is not sufficient to convict the accused, it does make it easier for the Crown to prove that the accused had a blameworthy mental state by eliminating the accused’s claim that he believed that the complainant was of legal age. This leaves only four possible mental states that the accused could have: (1) belief that the complainant was underage, (2) wilful blindness as to the complainant’s age, (3) subjective appreciation of the risk that the complainant was underage, and (4) complete inattention to the complainant’s age. The first three mental states lead inevitably to a conviction because they respectively constitute the blameworthy mental states of belief, wilful blindness, and recklessness.

The fourth mental state, complete inattention to the complainant’s age, is usually reckless and thus results in conviction. This is because failing to turn one’s mind to the age of the complainant generally reflects a choice to take a risk that the complainant might be underage. Nonetheless, this court has recognized that, in some rare circumstances, accused persons’ failure to turn their mind to the complainant’s age may not reflect a choice to take the risk that the complainant is underage. In those circumstances, the accused should be acquitted because the Crown has not proved recklessness. [Citations removed]

[34] In short, I must first consider whether there is an air of reality to the defence of mistaken belief in age. At this point, Mr. Zakhari has the evidentiary burden to point to evidence that is sufficient to permit me to find that he believed Ms. Rundle-Chiasson was the required age, and took all reasonable steps to determine her age.

[35] If that threshold is met, the defence of mistaken belief in age becomes available for me to consider. If so, the Crown then bears the burden to negate that defence. The Crown may do so in one of two ways. First, by proving beyond a reasonable doubt that Mr. Zakhari did not honestly believe that Ms. Rundle-Chiasson was at least 16 years old at the time of the alleged offence. Or, second, by proving beyond a reasonable doubt that, despite Mr. Zakhari’s claim that he honestly believed that Ms. Rundle-Chiasson was at least 16 years old at the time of the alleged offence, he did not take all reasonable steps to ascertain her age.

[36] Further, my determination as to whether the Crown has proven that Mr. Zakhari did not take all reasonable steps to ascertain Ms. Rundle-Chiasson's age is a highly contextual fact determination. As Justice Gascon noted in George, "in some cases it may be reasonable to ask a partner’s age. It would be an error, however, to insist that a reasonable person would ask a partner’s age in every case."

[37] Watt J. said in W.G.,

There is no magic number or exhaustive list of steps (...) and 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.

[38] If I am left with a reasonable doubt that Mr. Zakhari honestly believed that Ms. Rundle-Chiasson was at least 16 years old at the time of the offence and am left with a reasonable doubt that he took all reasonable steps to ascertain her age, the defence of mistaken belief in age is available and Mr. Zakhari must be acquitted.

The Evidence

[39] Given the agreed upon background set out above, I will focus on the evidence of each witness relating the issues of age and impairment.

Evidence of Stevie Rundle-Chiasson

[40] Because of the distance between Ms. Rundle-Chiasson’s present residence in Calgary and Guelph, counsel agreed that she should give her evidence by Zoom connection. She gave two video statements to the Guelph police in October of 2021. It was agreed that those statements could be filed in evidence as part of her examination in chief pursuant to s. 715.1 of the Code.

[41] Ms. Rundle-Chiasson was born December 25, 2005, and was therefore 15 in October of 2021. She presently lives in Calgary but in 2021, she was living with her father and stepmother in Guelph. When she moved to Guelph, she had just finished Grade 10 in Calgary. She had moved out of her mother's home in Calgary in March of 2021, but moved back to Calgary in August of 2022.

Evidence with Respect to Age

[42] Ms. Rundle-Chiasson told police that she often hung out with her friend, Ivy, who was 19 at the time. On the night in question, she had agreed to meet with Ivy to hang out after school at 6:00 p.m. However, Ivy said that she would be late and arriving with a friend because he had a car, and she did not have gas money. They arrived at Ms. Rundle-Chiasson’s residence around 7:00 p.m., with Adam in the same car.

[43] When they met up, Mr. Zakhari was driving. After some small talk, Mr. Zakhari asked her and Adam how old they were. Adam “shouted that we were eighteen. So I kind of knew then and there this time like go along with it, like whatever.”

[44] In her second interview, Ms. Rundle-Chiasson told the police that Ivy, rather than Adam, had shouted out that they were eighteen. Adam did not say anything because he “really wasn’t part of that night.” She said that Ivy had lied about Ms. Rundle-Chiasson’s age in the past. She told the police:

. . . and she won’t stand up for me and it’s really hard for me to stand up for myself when I’m sitting there having to like pretend I’m eighteen but try to be like, like you can’t do that, like stop.

[45] Although she told the police that Ivy said that she was 18, at the preliminary inquiry, she said that it was Adam. However, at trial she was clear that it was Ivy who answered the question.

[46] Ms. Rundle-Chiasson was upset that Ivy lied about her age, but this was not the first time that Ivy had done so; it had occurred multiple times in the past. Ms. Rundle-Chiasson testified that when Ivy did that, Ms. Rundle-Chiasson kept her silence and said nothing one way or the other. She could have corrected Ivy but did not, because she did not want to lose Ivy’s friendship or that of the others in the group. That would have lost her the use of Ivy’s car and her access to alcohol. Accordingly, Ms. Rundle-Chiasson was content to go along with this so long as nothing bad happened as it did here. She was not concerned about the age difference between her and Ivy because it gave her the benefit of knowing someone who could drive and get alcohol. They hung out one or two times a week.

[47] Ms. Rundle-Chiasson confirmed that during the night of these events, she did not say that she was not 18 but also did not clarify that she was 15.

[48] During the evening, Mr. Zakhari told her that he was 27 and a lawyer living in Mississauga. She started to make jokes that he was really old and “you’re kind of like my dad.” In response he said that “age is just a number.”

[49] Ms. Rundle-Chiasson denied that Mr. Zakhari specifically asked her how old she was during the night, but he did ask her about college and her work. The only time he asked for her age was when she got into the car. She denied that she told him she was eighteen.

[50] Ms. Rundle-Chiasson stated Mr. Zakhari said that she did not look eighteen. He said that he thought that Adam looked eighteen, but she looked younger. She spoke with Mr. Zakhari about her job and "school" without telling him that she was in high school, but also did not tell him that she was in college.

[51] Ms. Rundle-Chiasson testified that Adam said that he was in college. She said that he looked like he was 18 or 19 because he was tall for his age.

[52] When the four were at the abandoned house, Mr. Zakhari tried to kiss her and she told him no and “I was scared to tell him my age because of Ivy, I was scared she would be mad.”

[53] When the group was together, they were talking about tattoos. She told them that she had a “stick and poke” but did not show it to any of them.

[54] When asked if Mr. Zakhari had asked her age, she told the police that he had not. At trial, she agreed that she was not truthful with the police. He did ask her age and about college. She did not tell him about being in Grade 11 or say that she was in college. Adam said that he was in college.

[55] She agreed that it would not be unusual to have a curfew and live at home as an adult. However, she texted Ivy during the night that she needed to be home by 11:00 p.m. She did not want to say that to Mr. Zakhari because “he was twenty-seven and thought I was eighteen and I was scared to be like, I have a curfew.”

Evidence with Respect to Impairment

[56] Ms. Rundle-Chiasson told the police that while they drove to the cliffs, they were smoking marijuana and drinking. She had nothing to drink before getting into the car but had probably smoked marijuana during the day. However, by the time she came down from the cliffs, she was too drunk to walk. After she left Ivy in Mr. Zakhari’s car, her memory is “really blurry.” She did not remember getting into her house but does remember parts of the sexual activity.

[57] When they arrived at the cliffs, Mr. Zakhari took bottles of alcohol out of the trunk of his car. There was beer, vodka, and whiskey. The vodka and whiskey were mickeys, and Ms. Rundle-Chiasson does not remember if they were already opened. She drank one beer first and then drank the hard liquor. She cannot quantify how much liquor she had. Her goal was to get a “little drunk” and enjoy the cliffs. She did not want to get "hammered." It was a school night, and she did not want to wake anyone when she got home at curfew.

[58] She had between 3 and 7 swigs of the hard liquor and was clear with the officers that “I remember stopping at five, but I feel like I must’ve dranken more to get to the point I was at.” She testified at trial that this was not an unusual amount for her to drink. This level of consumption would not have brought her to blackout. They drank over the duration of 1.5 hours. She said that she stopped drinking the hard liquor at five shots based on “small sips” out of the bottles. She confirmed that she was only drinking at the cliffs between 7:00 and 9:30 p.m. She cannot be precise but that is her best estimate.

[59] They first hung out at the bottom of the cliffs and shared some marijuana from Adam. That did not affect her sobriety. They were there about 40 minutes before they walked up to the top of the cliffs.

[60] She does not believe that she drank on the way up the cliffs or at the top, but there was alcohol at the top. At the top, she told Ivy that she was too drunk and up too high and needed to go back down. They were at the top of the cliffs for about 20 minutes to a half hour. It is possible that she had more to drink at the top, but she "hopes" that she did not.

[61] When asked by the police what she had had to drink, she remembered that she had one Corona, a “few swigs of the vodka” and “one sip of” whiskey. She said that she had a gram of marijuana, but that drinking was not normal for her. She had been smoking marijuana for some time and was accustomed to being high.

[62] In evidence, she testified that on a scale of one to ten for impairment, she was a ten. She had never been that drunk before.

[63] They had passed around a pipe early on in the evening. At the time, she was smoking marijuana every day such that she was not getting high; only tired. She was not on any other drugs. She does not remember smoking at the base when they got back down. She did not fall on her way down but did need help from Ivy and the others to take her hand from time to time, because the path was very steep. She was worried about walking down the path.

[64] She believes that it was 20 minutes to the abandoned house. She had nothing more to drink after being at the cliffs. She described that she was really drunk at the abandoned house. However, in her statement to the police, she said that she was sober at that time. She thought this was a minor inconsistency and that she was doing her best to answer the questions in a traumatic circumstance. She was able to understand the officer’s questions and what was going on at the time. She denied that she was sober at the house no matter what she told the police. She may have been stumbling but knew what she was doing.

[65] Ms. Rundle-Chiasson agreed that she was not truthful when she told the officer that this amount of drinking was not normal for her. In reality, this amount of drinking was not unusual for her. Although she told the police that it was not normal for her to drink, at trial she confirmed that she was drinking before going into Grade Ten. She admitted that, in Alberta, she had “issues with drinking.”

[66] She, Adam, and Ivey drank a lot at house parties and stayed over at times. She drank whatever was available or was given to her. This was not the first time that she drank to unconsciousness; that was the first time she drank. After she passed out the first time, she learned how to control her alcohol to avoid that happening again. By “unconscious”, she meant "blacked out” or having no memory of what occurred.

[67] In evidence, she identified Snapchat videos that she created on the drive between the abandoned house and Ivy’s parking lot. She added a title to those videos - "Kicking It." She does not know why she added the title because she was drunk and not having a good time. She testified that she did not look sober in the video.

[68] The door camera video from her home was put into evidence. It shows that she dropped something and turned around to pick it up. She has no recollection of getting home. Ms. Rundle-Chiasson said that the door camera showed that she was not walking normally. Even though she got in the door, she does not remember being dropped off until the next morning. She does not remember getting into bed.

[69] The next morning, she thought that she had been heavily intoxicated the night before because she was confused and did not remember how she got there. At that time, she was sore and in pain, and then put this together from what came back to her memory.

Evidence of Adam Rivera-Martes

[70] Mr. Rivera-Martes is 18 and about to turn 19. He moved to Guelph in late 2019.

[71] He has known Ms. Rundle-Chiasson since the summer of 2019. He met her through friends in the same school. They hung out together with a group of similar friends. He has known Ivy through the same group of friends.

[72] On October 7, 2021, he was with Ivy, Ms. Rundle-Chiasson, and Mr. Zakhari. He met Mr. Zakhari that day.

Evidence with Respect to Age

[73] A half hour before Mr. Zakhari arrived, the three friends spoke on the phone and agreed that they would tell Mr. Zakhari that they were 18.

[74] Ivy had driven Adam to her residence, and they met in the parking lot. Ms. Rundle-Chiasson was already in the car. They all went from there to the cliffs in Mr. Zakhari’s car. Mr. Zakhari brought alcohol and marijuana while Adam brought marijuana.

[75] On the way to the cliffs, he and Ms. Rundle-Chiasson both told Mr. Zakhari that they were 18 when Mr. Zakhari asked how old they were. It was a 15 to 20-minute drive and Mr. Zakhari asked about halfway there. Ms. Rundle-Chiasson told Mr. Zakhari that she was in school to make up grades for college.

[76] At the cliffs, Mr. Zakhari asked them again how old they were, and both said that they were 18. Adam testified that they said they were 18 so they could get alcohol from Mr. Zakhari.

[77] It is possible that Mr. Zakhari asked another time about their age. They discussed college together. No one clarified that Ms. Rundle-Chiasson was 15. The three all went along with the plan that Ms. Rundle-Chiasson was 18. Mr. Zakhari did say that she looked young and asked Ms. Rundle-Chiasson specifically how old she was, and she said 18.

Evidence of Impairment

[78] On the way to the cliffs, Mr. Zakhari said that if they wanted to smoke or drink, they could, because he was sober. When they got there, Mr. Zakhari opened the trunk of his car and asked them if they wanted any alcohol, but he did not pressure them. He was not drinking and was to be the designated driver. There was a mickey of vodka and whiskey along with some beer.

[79] Ivy did not drink. Adam had a little bit of the hard liquor and two Coronas. He did not finish the second beer because he was not feeling well. He had about an ounce or ounce and a half of the whiskey. They walked 15 minutes to the cliffs from the parking lot and then drank at the cliffs. He was feeling sick before he started to drink. They shared a pipe of marijuana. It is possible that Mr. Zakhari had some. It is possible that Mr. Zakhari had a swig of the alcohol.

[80] He was not particularly watching Ms. Rundle-Chiasson, but he believes that she had one beer and then asked for vodka. They had a beer and then had marijuana at the top of the cliffs.

[81] They were at the cliffs for one and half hours and then walked back to the car. Mr. Zakhari said it was too early to go home and so they went for a drive. Adam was not feeling well and so they parked near a cemetery so that he could vomit. It took about fifteen to twenty minutes to drive there, and they stayed about five minutes. It was near the abandoned house.

[82] On the drive home, Ms. Rundle-Chiasson offered to show her stick and poke tattoo on her bare rear end. In doing so, she fell into the front seat over the console. No one forced her to show her tattoo. She fell over because of the moving car and not because of being impaired.

[83] From there, they went back to Ivy’s to drop everyone off.

[84] Ms. Rundle-Chiasson was friendly and not acting out of the ordinary. She did not appear to drink much. She was talkative to Mr. Zakhari. Ms. Rundle-Chiasson was talkative but far from “hammered”.

[85] Ms. Rundle-Chiasson did not have much alcohol to drink but did smoke marijuana. She had a tolerance for marijuana and was not that drunk at the cliffs. No one was drunk at the cliffs. Ivy helped Ms. Rundle-Chiasson up to the top but that was because of the trail and not because of the effects of alcohol. It was dark going down and they had flashlights.

[86] On a scale of one to ten, Ms. Rundle-Chiasson was a three or four out of ten for impairment. If she were “hammered”, he would not have let her go with Mr. Zakhari. She was not stumbling or slurring her words.

[87] About 20 minutes to a half hour after the couple left, he and Ivy called Ms. Rundle-Chiasson, and he could hear both of their voices. They said that they had gone for a drive and were about to drop her off. He could not tell her mood but there was no slurring of words.

Evidence of Ivy Toner

[88] Ms. Toner is 21 and resides in Guelph.

[89] She met Ms. Rundle-Chiasson through mutual friends. There was a group that met about once a week to hang out and drive around town. They had been met about a year before these events. She had met Mr. Zakhari at a party, and she liked him as a friend. He lived in Mississauga, and they had hung out twice before.

[90] Mr. Zakhari had driven to Guelph that day to hang out. After about a half hour, she suggested that they get a group together. He was hesitant at first but then agreed. She picked up Adam and then Ms. Rundle-Chiasson. The two cars then met at Riverside Park. From there, they went to the cliffs. She does not remember if they drove there in two cars or one. She did not remember the time of day, but it was starting to get dark. She had not had anything to drink but she may have had some marijuana that morning.

Evidence of Age

[91] Ivy testified that Ms. Rundle-Chiasson said that she was 18 about six or seven times that night. The first time was when they were in the car together. That was a surprise to Ivy.

[92] Mr. Zakhari had asked about her age just before the alcohol came out and Ms. Rundle-Chiasson said 18. Mr. Zakhari asked her age within 5 – 10 minutes of meeting and before alcohol was mentioned. Ivy thought that Ms. Rundle-Chiasson looked to be 14. Ms. Rundle-Chiasson then said that she was 18 throughout the night and talked about her high school credits and her job. She did not discuss college.

[93] Ms. Rundle-Chiasson said that she was 18 “a load of times” throughout the night. In her statement to the police, Ivy said that Ms. Rundle-Chiasson said it 8 times, but it could have been more. Ms. Rundle-Chiasson was making a point of telling her age. She caught herself from talking about her classes. She may have said that she was going to college after her “victory lap.”

[94] Mr. Zakhari knew that Ivy was 19 and she did not tell him of their ages before he got there. She did not say that Ms. Rundle-Chiasson was 15. Ivy did not remember Adam saying that he was 18 but it is possible. Adam was tall.

[95] When Ivy spoke with Mr. Zakhari the next day, she told Mr. Zakhari Ms. Rundle-Chiasson’s actual age, and it sounded like he threw up. He was upset about that news – “like a punch to the gut.”

Evidence of Impairment

[96] From the cliffs parking lot there was a two-minute walk to the cliffs. When they first arrived, they stood around in the parking lot while Ivy had a cigarette.

[97] Mr. Zakhari had brought some alcohol in the trunk of his car. There was some RedBull and Black Label and perhaps a couple of beers. She did not have anything to drink. He brought the alcohol in an LCBO bag and took it along to the top of the cliffs. She cannot remember if they discussed the alcohol ahead of time.

[98] The alcohol came out before they went to the top of the cliffs. They sat on some logs and drank. Ms. Rundle-Chiasson had whiskey by taking a couple of swigs from the bottle. Ivy was not paying attention to what Ms. Rundle-Chiasson was drinking and went off with Adam to walk some trails. Ms. Rundle-Chiasson and Mr. Zakhari stayed in one spot and were alone together but not for long.

[99] At the top of the cliffs, Adam and Ms. Rundle-Chiasson asked to have something to drink. Ms. Rundle-Chiasson mentioned that she was 18.

[100] Ms. Rundle-Chiasson was “in a chipper mood” or a “tipsy mood.” She had another swig at the top of the cliffs and was “giggly and touchy” more than when she was first picked up. She was also louder.

[101] Adam drank a little from a bottle, but he did not feel well after a few swigs.

[102] Ivy had no marijuana or other drugs that night.

[103] They were at the cliffs from about 7 – 7:30 for an hour to an hour and a half. There was not very much drinking.

[104] They then went back to Riverside Park. At first, she did not remember anything between those two locations but then remembered that they went to the abandoned house. They drove 20 minutes to the abandoned house. On the way, Ms. Rundle-Chiasson did not say that she was drunk. They all got out of the car. Ivy walked around but also came back to see if Adam was ok. They did not go into the house. They were not there long.

[105] Ms. Rundle-Chiasson was touchy towards both her and Mr. Zakhari. Ms. Rundle-Chiasson grabbed her hand, feeling her arm and tried to hug her at Riverside Park. Ivy saw the two walking together towards the house. She was very close to Mr. Zakhari, acting like a “lost puppy,” and followed around behind him. She grabbed his arm when walking toward the house. This was unusual behaviour for Ms. Rundle-Chiasson. She was getting friendlier, sooner than usual.

[106] Ms. Rundle-Chiasson was not stumbling at the house or slurring her words. They were at the house for 20 minutes. Ms. Rundle-Chiasson did not say that she was uncomfortable. Her behaviour was normal even though she was more chipper and friendly. Ms. Rundle-Chiasson was not as shy as usual. But then she “exploded” and opened up to everyone. Ms. Rundle-Chiasson appeared comfortable with Mr. Zakhari.

[107] Ivy testified that with respect to SnapChat, one can add a filter like a caption, but it takes two fingers and a swipe and a double tap.

[108] They then drove to Riverside Park – about 4 minutes away. She and Ms. Rundle-Chiasson relieved themselves behind some trees while Mr. Zakhari waited in his car. They all got into his car when they returned.

[109] While in the car, Ms. Rundle-Chiasson fell into the driver’s seat while showing her tattoo from the back seat. She tried to crawl over the console and pulled down her pants to show her tattoo on her buttocks. Mr. Zakhari looked shocked and confused. Ms. Rundle-Chiasson stumbled over the console but that was not from intoxication.

[110] They parted ways about 20 – 25 minutes later. Ivy asked to take Ms. Rundle-Chiasson home and she said yes. Mr. Zakhari also offered to take Ms. Rundle-Chiasson, and she said yes to him. Ivy asked to confirm and Ms. Rundle-Chiasson said that she would go with Mr. Zakhari. Ivy drove Adam home.

[111] Ivy was nervous about Ms. Rundle-Chiasson leaving with Mr. Zakhari because she had lied about her age and Ivy had seen her hand on his hand when they drove away. Ivy was worried that Ms. Rundle-Chiasson was acting reckless and might do something that she would regret. She was “throwing herself out there.” Ms. Rundle-Chiasson was usually shy and took a bit to open up. This night, she was faster to do so. Ms. Rundle-Chiasson’s hand on Mr. Zakhari’s hand was not normal for Ms. Rundle-Chiasson.

[112] After they separated, she called Mr. Zakhari while Adam called Ms. Rundle-Chiasson. On the first call, they spoke with both of them, and she could hear Ms. Rundle-Chiasson in the background. She appeared happy when she left and sounded happy when they talked to her on the phone.

[113] At trial, Ivy said that she had not seen Ms. Rundle-Chiasson drink in the past but agreed that she told the police that she had seen her “wasted” in the past. However, she said that Ms. Rundle-Chiasson was not drunk this night. Ivy did not smell alcohol. On a one to ten scale, Ms. Rundle-Chiasson was a “three or four”. Ivy had taken the SmartServe course by this time. If Ms. Rundle-Chiasson were too drunk, Ivy would have driven her home herself. Instead, Ms. Rundle-Chiasson was “completely fine.” She had maybe three swigs the whole night equal to 1” in a plastic cup. She may have had one part beer. Ms. Rundle-Chiasson had one pipe of marijuana.

Evidence of Michael Zakhari

[114] Mr. Zakhari was 31 at the time of trial and grew up in Mississauga. He was 27 at the time of these events. He graduated from law school in the Cayman Islands in 2017. He was working at a law office in Mississauga on a part time basis in October of 2021.

[115] At that time, he had a high school friend that he visited in Guelph on a weekly basis. He met Ivy at his friend’s house party when she was 18. They had an on and off relationship and kept in touch, but they were not close. Mr. Zakhari did not know Adam or Ms. Rundle-Chiasson before these events. He was not aware of any of Ivy’s friends at the time.

[116] On October 7, 2021, Mr. Zakhari went to Guelph to hang out with his friend, Dominick. While he was there, he messaged Ivy that he was in town. He met with her at her apartment building to smoke a joint at about 6:00 or 6:30 p.m. They talked for a bit, and she suggested that they meet with others. He was hesitant since he did not know them but then agreed. They then went to pick up those friends in her car. They picked up Adam first.

[117] When Adam got in the car, they introduced themselves and he asked Adam his age. He said 18 and Ivy “confirmed” that. Adam was tall and had some facial hair. Mr. Zakhari knew that Ivy was 19. He only asked Adam his age for small talk and not because Mr. Zakhari thought that Adam was underage. He did not find it odd that Ivy “confirmed” that Adam was 18.

[118] They then went to pick up Ms. Rundle-Chiasson. Again, they introduced themselves and he asked her age. She said 18. He denied that he had an agenda to confirm their ages for drinking and sex.

[119] They then drove back to Ivy’s parking lot and talked. They eventually agreed to go to the cliffs. He then told them that he had some alcohol in his car for their use. He knew they needed to be 19 to drink but 18 was close enough for him. He brought a bag of “Shred” as well. All were sober at that time.

[120] He had a mickey of whiskey, vodka and 4 or 5 Corona beers in an LCBO bag in his trunk left over from a party two weeks prior. He offered that to everyone. Ms. Rundle-Chiasson said again that she was 18. She and Adam accepted his offer, but he is not sure if Ivy did. Ms. Rundle-Chiasson had a beer as did he and Adam. They drank at a firepit in the cliffs parking lot.

[121] At that point, he, Ms. Rundle-Chiasson and Adam had swigs from the alcohol bottles. That is to say, he and Ms. Rundle-Chiasson had four to six “little sips” from the vodka. Adam had more, including chugging the whiskey.

[122] Ms. Rundle-Chiasson appeared to be comfortable, happy, and content. He asked her if she was at college, and she said that she needed more credits to do so. This occurred on a Thursday night, and she said that she had the next day off from work for a long weekend.

[123] During this time, Ms. Rundle-Chiasson was “touchy” and flirting with him. She held his arm and stood close to him. She was sober because she had only two to three swigs from the vodka, and he did not know if she finished her beer. He had finished his beer but planned to go home that night and so drank nothing else. All four smoked some of his marijuana.

[124] They were 20 to 30 minutes at the top of the cliffs. Ms. Rundle-Chiasson did not say that she was drunk or unwell. She had no difficulty getting up to or down from the cliffs.

[125] Ivy suggested that they go to an abandoned house near Fergus. They all got into the car without hesitation. Ms. Rundle-Chiasson was not intoxicated at that time.

[126] While they drove to the house, Adam said that he was feeling sick, so Mr. Zakhari pulled over to let him vomit. He gave Adam a water bottle and they carried on to the house. When they got there, Adam stayed in the car.

[127] The other three got out and walked toward the house. He and Ms. Rundle-Chiasson went into the house while Ivy went back to check on Adam. He and Ms. Rundle-Chiasson then went to sit beside the house. From there, they could see Ivy and the car. Ms. Rundle-Chiasson seemed happy and content.

[128] While they were sitting, Ms. Rundle-Chiasson was “flirty and touchy”. He “went in for a kiss” and asked if that was ok. She said yes and they kissed for a minute. They then agreed that they should rejoin the others. He did not threaten her in any way. They were comfortable around each other.

[129] They then drove to Ivy’s car in her parking lot. The girls went to the washroom while he spoke with Adam. Mr. Zakhari got out and had a cigarette.

[130] When Ms. Rundle-Chiasson and Ivy returned, the three sat in the back of his car. The discussion turned to tattoos and Ms. Rundle-Chiasson stood up and pulled down her pants to show her tattoo. He was shocked but not uncomfortable by Ms. Rundle-Chiasson’s actions. He knew she had to be 18 or 16 with parental approval to get the tattoo. Ms. Rundle-Chiasson had no trouble dressing or undressing.

[131] This was about an hour and a half since the cliffs and there had been no alcohol since then.

[132] From his perception, Ivy was “minimally intoxicated” and Ms. Rundle-Chiasson was “very minimally intoxicated”.

[133] They then discussed driving home and he said that he would drive everyone home and return with Ivy. Ivy said she would drive, and he agreed. Ms. Rundle-Chiasson said that she would go with Ivy. Adam got in Ivy’s car. But then Ms. Rundle-Chiasson got out of Ivy’s car and got into his. She said that she wanted him to drive her home and put her hand on his.

[134] Once they were underway, they got a call from Ivy. Ms. Rundle-Chiasson said that she was good where she was.

[135] They then got another call from Ivy that Adam may have lost his phone. They pulled over to look for the phone and then got back into the car. When they got in, Ms. Rundle-Chiasson put her hand on his and then fondled his arm. They looked at each other and started to kiss each other. The sexual activity followed from there. When he dropped her off, they said that they would see each other at Ivy’s that Saturday when Ivy was having a party. He dropped her in her driveway. He watched her walk up the driveway and had no concerns about her walking.

[136] Mr. Zakhari testified that he thought that Ms. Rundle-Chiasson was 18 because she mentioned it more than 8 times and he had no reason to doubt that she was 18. Ivy and Adam said she was 18. She had a very developed chest, a nose ring, tattoos, smoked and worked. She said that she needed to catch up on her credits. She was on birth control. He did not doubt that she was 18. He asked her age a few times but not because he had any concerns.

[137] He knew she had a curfew and had to be home by 11:00. He did not find that to be unusual since he had a curfew until he was 22. The curfew did not make him think that she was under 18. He did not ask what grade she was in.

[138] He said that he did not ask for Ms. Rundle-Chiasson’s identification since there was no apparent risk of her being underage. He did not need to be more cautious because of her age difference. He did not plan to have sex with her until it happened.

[139] He denied that he said that “age is just a number” or that she made a comment that he was as old as her father.

[140] Ivy called him in the morning, and he told her that they had “hooked up”. She told him that Ms. Rundle-Chiasson was 15 and that they had all lied to him. He was distraught and disgusted and threw up. He said that he was very uncomfortable because he had had no doubt about her age.

The Analysis

[141] At the outset, I find that I cannot rely on Ms. Rundle-Chiasson’s evidence for any of my analysis.

[142] While Ms. Rundle-Chiasson’s state of inebriation does not matter to the mistake of age defence, I cannot accept that she was as impaired as she says. All of the evidence is against her description of her state of sobriety including what she says she drank. That finding shakes the balance of her evidence.

[143] As set out above, her evidence is contradicted by the other Crown witnesses as well as her prior statements to the police. While there were a number of inconsistencies between the witnesses, most were insignificant. Where they met at first and how many cars there were makes little difference and that difference can be expected given that driving around the city was a common occurrence. Some of the inconsistencies within Ms. Rundle-Chiasson’s evidence were insignificant; but some were very significant.

[144] At the preliminary inquiry, Ms. Rundle-Chiasson said that this was the first time that Ivy had lied about her age but then agreed at trial that this was incorrect. It happened often.

[145] Between her statement to the police, the preliminary hearing and trial, Ms. Rundle-Chiasson differed on who told Mr. Zakhari how old she was.

[146] At the preliminary inquiry, Ms. Rundle-Chiasson was clear that she said that “Kevin” was with the group that evening. However, at trial, she agreed that he was not. He had sent her a text that night and so she thought he was part of the group. She agreed that having Kevin there was an important detail, but it was not correct. She explained that giving evidence was stressful and the cross-examination made her second guess herself. She was also impaired that evening and that would affect her memory. She did not tell the Crown and police that she was mistaken about “Kevin” because she did not want to talk to them more than necessary. Even if her explanation for the inconsistency is accepted, her evidence on this and other matters is unreliable.

[147] As set out above, despite telling the police that it was unusual for her to drink, in fact, it was not unusual for her to drink. She differed as to whether she was sober or not at the abandoned house.

[148] The tattoo/ stick and poke discussion makes no difference to the analysis with respect to her state of impairment. If it is to suggest that she showed her bare buttocks, that does not assist with any of the issues. If it is to suggest impairment, there is no evidence other than hers that she was impaired by then. It is unclear on the evidence as to whether she fell over when they were stationary or driving. Even so, she could have fallen or stumbled trying to show the tattoo regardless of impairment. However, that incident does enter the mistake of age analysis as set out below.

[149] Ms. Rundle-Chiasson acknowledged the door camera video when she returned home. That 25 second recording was placed in evidence. Ms. Rundle-Chiasson submits that it shows that she was impaired because she dropped her coat and picked it up before she entered the house. I cannot find that dropping something is indicative only of impairment; I do not find that the video assists my determinations.

[150] That video is the only evidence that I have of Ms. Rundle-Chiasson’s appearance that night. While her physical appearance may add some support for the defence argument, the video is too brief and too restricted for me to put much weight upon it. The camera is a “fisheye” view and is therefore distorted. I have placed little weight on that piece of evidence, but it does not conflict with Mr. Zakhari’s evidence.

[151] Included in the evidence was a Snapchat video admittedly made by Ms. Rundle-Chiasson while enroute from the abandoned house to the parking lot. It is only 15 seconds in length. It has a title added to the video. It shows Ms. Rundle-Chiasson’s face. Ms. Rundle-Chiasson says that it shows her to be impaired. The defence submits that it shows that she had the capacity to operate her phone and that is inconsistent for one as incapacitated as Ms. Rundle-Chiasson says she was. In my view, the video is of little benefit to either party but does suggest a somewhat greater ability than to that which Ms. Rundle-Chiasson testified.

[152] Adam seems credible with no bias one way or the other. He has not seen either Ms. Rundle-Chiasson or Ivy since the events. Most of his evidence goes against the prosecution. Ms. Rundle-Chiasson testified that she did not think that Adam would lie – I agree. The Crown witnesses Adam and Ivy deny the level of impairment testified to by Ms. Rundle-Chiasson. The Crown submits that I should reject Ivy’s evidence but has provided few reasons to do so other than some minor inconsistencies. I do not agree. Ivy was essentially consistent with both Adam and Mr. Zakhari. I accept those Crown witnesses’ evidence on her impairment where it conflicts with that of Ms. Rundle-Chiasson.

[153] The Crown filed a toxicology report with respect to a sample of Ms. Rundle-Chiasson’s urine taken October 8, 2021, at 10:15 p.m. Neither counsel referred to that evidence in argument. That sample indicated that no ethanol was detected; however, the sample was taken so late that I put no weight on that evidence.

[154] On all of the evidence, I find that Ms. Rundle-Chiasson was sober at the time of these events. That finding makes the rest of her evidence unreliable. Where her evidence conflicts with the other witnesses, I cannot rely on Ms. Rundle-Chiasson’s evidence.

[155] Although Ms. Rundle-Chiasson was 15 at the time of the offence, she was 18 at the time of trial. No one suggested that I should consider evidence as though she were a child. See: R. v. J.P. 2023 ONCA 570.

[156] Further, I accept Mr. Zakhari’s evidence that he was sick to his stomach when Ivy told him of Ms. Rundle-Chiasson’s age. That is confirmed by the Crown evidence from Ivy. Accordingly, I find that Mr. Zakhari subjectively did not know how old Ms. Rundle-Chiasson was at the time. The surprise made him ill.

[157] The real issue is whether Mr. Zakhari did enough to ascertain Ms. Rundle-Chiasson’s age on his own evidence. In my view, he did.

[158] The Crown evidence is that all three participants were determined to keep Ms. Rundle-Chiasson’s real age from Mr. Zakhari. There is nothing in the evidence to support that he should have known her age. Adam said he was 18 and all witnesses said that he looked that age. Ivy was 19. To Mr. Zakhari’s knowledge, the three were friends. There is nothing from the age of those participants to suggest that Ms. Rundle-Chiasson was 15.

[159] Ms. Rundle-Chiasson was clear in her evidence that she made every effort to hide her age. As she said: “I was scared to tell him my age because of Ivy, I was scared she would be mad.”

[160] The other Crown witnesses confirmed that Ms. Rundle-Chiasson said that she was 18 on many occasions. She did not say what grade she was in, but she spoke of her day off from employment the next day rather than being at school. She wanted to hide her age to continue to spend time with the others and to have access to Ivy’s vehicle and alcohol. On the Crown evidence, there is nothing to suggest that Mr. Zakhari would be tipped off about concerns about her age. I find that Ms. Rundle-Chiasson said that she was 18.

[161] Ms. Rundle-Chiasson testified that she referred to Mr. Zakhari as “kind of like my dad” and made jokes of how old he was. She said that he replied that “age is just a number.” Mr. Zakhari denied that such a conversation occurred. The other witnesses did not comment one way or the other with respect to that matter. Given the unreliability of Ms. Rundle-Chiasson’s evidence, I cannot find that this conversation occurred.

[162] In my view, this is not a case where Mr. Zakhari should have asked for government identification. He asked Ms. Rundle-Chiasson her age at the outset, she and others confirmed her age, and nothing arose afterwards to raise concerns. He did not obtain contrary information other than her appearance. He did not say that he relied solely on the fact that she was drinking, smoking marijuana or other myths referred to above. Those were factors in his consideration, but he did not rely merely on those facts.

[163] In Hason (para 62), Tulloch CJ. stated:

Second, the appellant overlooks the trial judge’s finding that a reasonable person would have also asked for government-issued identification. Such identification is a reasonably reliable source that is widely used to verify age. Asking for it is an easy, simple, straightforward, and obvious step to resolve confusion and/or uncertainty concerning the complainant’s age. In many cases, taking this step is the bare minimum. Indeed, identification is generally more reliable than the complainant’s own statements because young people often misrepresent their age.

[164] I do not read that direction as requiring all reasonable persons to ask for government-issued identification with a young-looking person. Rather, that is only necessary where needed to resolve confusion and/or uncertainty concerning the complainant’s age. On these facts, I cannot find beyond a reasonable doubt that Mr. Zakhari had such confusion or uncertainty. He received no conflicting information such as Ms. Rundle-Chiasson telling him anything about her true age, that she was in high school, lived in a group home or had a 16-year-old boyfriend (See Hason, paras 9, 12, 13).

[165] Mr. Zakhari stated that he thought that Ms. Rundle-Chiasson’s tattoo was of some assistance to him since he knew that one could not get a tattoo under 18 or over 16 without parental consent.

[166] It is to be remembered that I did not observe Ms. Rundle-Chiasson. She gave all of her evidence by video or Zoom. Neither process gave me any ability to determine how old she looks now, let alone make any observations of how she may have looked at the time of the events.

[167] The Crown submits that Mr. Zakhari should have been suspicious of Ms. Rundle-Chiasson’s age because he picked her up at her home. I do not accept that submission. First, the evidence is not clear where the two met that evening. Second, accepting Mr. Zakhari’s evidence, it would not be unusual for a person over the age of 18 to be residing with their parents.

[168] The Crown also submits that Mr. Zakhari should have been suspicious of Ms. Rundle-Chiasson’s age because she had not finished high school. I do not accept that submission. The evidence was that Ms. Rundle-Chiasson was hiding her age from Mr. Zakhari, spoke of make up courses for college and her employment. It is still possible that she could have not completed high school at the age of 18.

[169] The Crown submits that Mr. Zakhari must have suspected that Ms. Rundle-Chiasson was underage because he asked for her age. Mr. Zakhari said that he asked only as a matter of “small talk.” I have no reason to reject Mr. Zakhari’s evidence on that point; however, even if the Crown is correct, that argument is a double bind for the accused. If he says he asked for Ms. Rundle-Chiasson’s age, the Crown can submit that he must have known she was underage. If he fails to ask, the Crown will submit that he is wilfully blind, reckless, or inattentive to the issue.

[170] Here, on all of the evidence, Mr. Zakhari asked Ms. Rundle-Chiasson’s age, received an unambiguous answer and was not told by any witness of Ms. Rundle-Chiasson’s true age. All agreed that steps were taken to hide that fact.

[171] Mr. Zakhari testified to his belief and was cross-examined on his evidence. He answered without hesitation and without inconsistency. He provided detailed answers to detailed questions. His evidence was consistent with Crown evidence that supported his defence There was no reason to reject his evidence. That evidence, at the very least, raises a reasonable doubt for the defence.

The Result

[172] For those reasons, I find that Mr. Zakhari was not aware that Ms. Rundle-Chiasson was under the age of 16 at the time and he took all reasonable steps to ascertain Ms. Rundle-Chiasson’s age.

[173] In the result, Mr. Zakhari is found not guilty of sexual assault and sexual interference.

Justice G. D. Lemon Released: September 03, 2024