Restriction on Publication

Subject to any further Order by a court of competent jurisdiction, an Order has been made in this proceeding directing that the identity of the complainant and any information that could disclose such identity shall not be published in any document or broadcast in any way pursuant to section 486.4 of the Criminal Code of Canada.

Reasons for Decision

Discreditable Conduct Application No. 2

Owen Rees J.

Introduction

[1] Victor Perez is charged with several sexual offences against H.D. I dismissed the Crown’s previous discreditable conduct application, for reasons reported at R. v. Perez, 2024 ONSC 6459.

[2] The Crown brings a second discreditable conduct application – which it styles an amended application – because Mr. Perez re-elected to proceed with a judge-alone trial, and because the Crown has, in its submission, narrowed the discreditable conduct evidence it seeks to adduce. The Crown also argues that it has more clearly articulated the uses to which it wishes to put the proposed evidence.

[3] The Crown seeks the admission of two groupings of evidence arising from Mr. Perez’s prior conviction on two counts of sexual interference in relation to B.C.L., a 14-year-old girl. Mr. Perez was sentenced to the equivalent of a three-year penitentiary term on February 20, 2020.

[4] Under the first grouping, the Crown contends that Mr. Perez’s previous experience of being convicted and sentenced for sexual activity with a minor make it more likely he turned his mind to the age of H.D. Under the second grouping, the Crown argues that the circumstances of how the prior complainant presented make it more likely Mr. Perez was alive to the danger of relying on those circumstances to ascertain H.D.’s age.

[5] I will consider each grouping in turn.

[6] These reasons should be read in the context of my earlier ruling on the Crown’s first discreditable conduct application. I have set out the legal framework in my earlier ruling and need not repeat it here.

Analysis

Group 1: Mr. Perez’s Previous Experience of Being Convicted and Sentenced for Sexual Activity with a Minor

[7] Under group 1, the Crown wishes to adduce the following evidence:

a. That Brown J. convicted Mr. Perez of engaging in sexual activity on two occasions in August 2018 with a girl, B.C.L., who was 14 years old at the time.

b. That Mr. Perez testified at the trial before Brown J. that he honestly believed B.C.L. was 16 years of age at the time.

c. Brown J. held that if Mr. Perez had honestly believed that the girl was 16, he had nonetheless failed to take all reasonable steps to ascertain the age of the girl.

d. That Mr. Perez received a three-year penitentiary sentence for these convictions, a sentence which Brown J. found was “required to adequately denounce and deter” Mr. Perez’s conduct.

e. That Mr. Perez was on parole for these convictions when the events involving H.D. occurred.

[8] The Crown wishes to adduce this evidence to undermine any claim by Mr. Perez:

a. That he did not turn his mind to the age of H.D.; or

b. That when he pursued H.D. sexually he was not concerned about the risk of engaging in sexual activity with someone under the age of 16.

[9] In other words, the Crown seeks to adduce the group 1 evidence in relation to Mr. Perez’s mental state on the sexual interference count. Where there is an air of reality to the defence that the accused had an honest but mistaken belief in the complainant’s age, the Crown must disprove the mistake of age defence. The Crown must also establish that the accused had one of the following blameworthy mental states:

a. Believed that the complainant was underage;

b. Was wilfully blind as to the complainant’s age; or

c. Subjectively appreciated the risk that the complainant was underage – that is, that the accused was reckless: R. v. Carbone, 2020 ONCA 394, para 129 and R. v. Hason, 2024 ONCA 369, para 49.

[10] A fourth mental state – complete inattention to the complainant’s age – is usually reckless and results in conviction, 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: Hason, at para. 50. But the Court of Appeal has held, in accordance with R. v. Morrison, 2019 SCC 15, 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”: Hason, at para. 50; see also Carbone, at paras. 126-127, 131.

[11] The defence concedes that it will not argue that Mr. Perez was completely inattentive to H.D.’s age. As a result, the proposed group 1 evidence becomes irrelevant to this mental state and cannot be admitted for this purpose.

[12] This leaves the second branch of the Crown’s argument as to relevance. The Crown clarified in oral argument that the proposed evidence is relevant to (i) the honesty of Mr. Perez’s belief in H.D.’s age and (ii) his awareness of the risk that H.D. was underage. The latter refers to the mental state of recklessness. To be found to have been reckless, the Crown would have to prove beyond a reasonable doubt that Mr. Perez recognized the risk that H.D. was under the age of 16, and nevertheless persisted, despite that risk.

[13] Evidence is relevant where it has some tendency, as a matter of logic and human experience, to make the proposition for which it is advanced more likely than in the absence of that evidence.

[14] The Crown did not explain in its submissions the relevance of the group 1 evidence to the honesty of Mr. Perez’s belief in H.D.’s age. The focus of the Crown’s submissions was on whether the group 1 evidence was relevant and probative of recklessness in relation to H.D.

[15] The group 1 evidence does not assist me in determining the honesty of Mr. Perez’s belief in H.D.’s age. The honesty of that belief does not turn on whether he was convicted of sexual interference in relation to B.C.L. or received a penitentiary term of imprisonment (or any other evidence under group 1). Even if I accept that Mr. Perez’s past conviction and sentence in relation to B.C.L. makes it more likely that he considered H.D.’s age, it does not assist me in determining whether he thought about H.D.’s age and honestly came to a mistaken conclusion.

[16] Even if I were wrong, and the group 1 evidence is relevant to the honesty of Mr. Perez’s belief in H.D.’s age, it is of very limited probative value. As I discussed in my ruling on the Crown’s first discreditable conduct application, which sought to adduce much broader evidence, assessing the credibility of Mr. Perez’s belief in H.D.’s age will turn on other factors. These factors include whether his explanation for his belief is credible, the reasons he gives for his belief, what he knew of the complainant’s age, her personal circumstances and characteristics, and the steps he took and did not take to ascertain her age. The focus in assessing the honesty of belief is not on whether he knew or did not know he could be in jeopardy for having a sexual relationship with a minor.

[17] Turning to prejudice, the risk of moral and reasoning prejudice is greatly reduced in judge-alone trials: R. v. B. (R.T.), 2009 ONCA 177, paras 27, 33; R. v. J.H., 2018 ONCA 245, paras 23-24. That said, admitting the group 1 evidence will distract the focus of the trial from the offences that are alleged.

[18] In my view, the very limited probative value of the evidence is outweighed by my concern that the evidence would become a distraction. Thus, the group 1 evidence is inadmissible to assist in determining the honesty of Mr. Perez’s belief in H.D.’s age.

[19] I now turn to the Crown’s third stated purpose for wishing to adduce the group 1 evidence. That purpose is to undermine any claim by Mr. Perez that when he pursued H.D. sexually he was not concerned about the risk of engaging in sexual activity with someone under the age of 16. The Crown argues that Mr. Perez’s past conviction and sentence for sexual activity with a girl under 16 years of age makes it more likely that the Respondent was thinking about H.D.’s age when he interacted with her.

[20] Whether Mr. Perez appreciated the risk, based on the circumstances known to him, that H.D. was underage, and proceeded with sexual touching despite the risk, remains a live issue.

[21] I accept the commonsense proposition that someone who has been convicted and served a sentence for sexual interference will be more careful next time to ensure that the other person is not underage. It has some relevance as to a general awareness of risk of engaging in sexual activity with someone under the age of 16.

[22] But when I consider the group 1 evidence more specifically in relation to assessing whether Mr. Perez appreciated the risk that H.D. was under the age of 16, I find that the group 1 evidence does not assist me in that determination. Whether Mr. Perez appreciated the risk that H.D. was underage must be anchored in the facts of this case, not in relation to his conviction and sentence relating to B.C.L. It does not help me resolve whether Mr. Perez had the specific mental awareness of a risk in relation to H.D. and then proceeded despite that risk. That determination must turn on the facts of this case.

[23] Thus, I find that the group 1 evidence is inadmissible.

Group 2: The Circumstances of How the Prior Complainant Presented

[24] Under group 2, the Crown seeks to adduce the following evidence:

a. That the prior complainant had lied to Mr. Perez about her age, telling him she was 16, before later informing him of her true age – 14 years of age.

b. That the prior complainant made herself seem older, smoked marijuana (including with Mr. Perez), and hung out with an older crowd.

c. That Mr. Perez testified that he thought the prior complainant was 16 or 17 years of age based on her demeanor, the way she talked with “casual responses” and apparent “street smarts,” and that she seemed confident when answering questions about her age.

d. That Brown J. found that even if he had accepted Mr. Perez’s evidence that Mr. Perez had an honest but mistaken belief that B.C.L. was 16 years of age, her “appearance and manner of carrying herself could not in these conditions overcome the clear reservations about BCL's age that would have necessarily arisen from her shifting accounts she gave as to her actual age.”

e. That Mr. Perez received a three-year penitentiary sentence for these convictions.

[25] The Crown wishes to adduce this evidence to undermine any claim by Mr. Perez that H.D.’s presentation with any of the same characteristics as the prior complainant, B.C.L., alone or in combination, gave him a reliable foundation to believe H.D. was over 16 years of age.

[26] The Crown argues that Mr. Perez’s prior conviction makes it more likely that Mr. Perez knew he could not rely on the characteristics set out in group 2 to ascertain the age of H.D. The Crown argues that Mr. Perez would know that someone who presents with all these characteristics can still be under 16 years of age. The Crown contends that before meeting H.D., Mr. Perez knew the risk of relying on these characteristics.

[27] The defence opposes the admission of the proposed evidence. The defence argues that the group 2 evidence mirrors the evidence and purpose from the Crown’s first discreditable conduct application, which this court dismissed. The defence further argues that the Crown’s intended purpose is contrary to the highly contextual and fact-specific analysis required by R. v. George,2017 SCC 38, to determine whether the accused took all reasonable steps in the circumstances known to the accused. The defence contends that the circumstances relating to B.C.L. were significantly different than those relating to H.D.

Analysis

[28] Unlike the group 1 evidence, the group 2 evidence is specific. It seeks to undermine any potential claim by the accused that he did not appreciate the risk that H.D. was underage based on specific characteristics that he relied on in relation to B.C.L. The inference being that Mr. Perez learned through his prior conviction and sentence that those are not reliable factors, individually or in combination.

[29] I agree that the group 2 evidence is relevant for this purpose. The group 2 evidence has some tendency, as a matter of logic and human experience, to make it more likely that Mr. Perez would have appreciated the risk that H.D. was underage if he based that belief on the same factors that he relied on for his belief in relation to B.C.L.

[30] How probative is this evidence? This turns on the similarity and dissimilarity between the circumstances Mr. Perez relied on in relation to B.C.L. and the circumstances he relied on in relation to H.D. Although the defence has indicated that Mr. Perez will testify, we do not yet know what his evidence will be about what he relied on in forming his belief about H.D.’s age.

[31] I have carefully reviewed Brown J.’s reasons. The factual circumstances relating to B.C.L. are significantly different than what is alleged in relation to H.D. Respectfully, the Crown has oversimplified the factual circumstances relating to B.C.L. and highlighted certain characteristics of B.C.L. for the purpose of this application to the exclusion of other, more important circumstances relating to B.C.L. There is significant danger in isolating specific circumstances in this way.

[32] I do not propose to review all of the evidence in relation to B.C.L.’s age. Briefly, salient circumstances the Crown has omitted from group 2, include the following. B.C.L. provided several different accounts of her age. There was significant evidence that Mr. Perez was aware that B.C.L. was underage, including text messages in which she gave her real age as 14 and her birthdate. She also disclosed that she was 13 earlier during the year that the offences took place. Further, without being comprehensive, there were text messages from Mr. Perez, between the first and second sexual encounters, indicating that he was aware that B.C.L. did not have pubic hair, which Brown J. found was a reference to B.C.L.’s pre-pubescence and an acknowledgement by Mr. Perez of her young age.

[33] Brown J. concluded that Mr. Perez did not have an honest but mistaken belief in B.C.L.’s age. He only held in the alternative that, even had he accepted that Mr. Perez had honest but mistaken belief or was left in a reasonable doubt in that respect:

[136] BCL's appearance and manner of carrying herself could not in these conditions overcome the clear reservations about BCL's age that would have necessarily arisen from her shifting accounts she gave as to her actual age. Mr. Perez's perception that she was 16 was not an objectively reasonable one in the circumstances. Given those shifting accounts, and the fact that for the most part those accounts put her under the age of 16, in the circumstances of this case, what was required at a minimum was independent corroboration of BCL's age from an adult who knew her. Absent such confirmation – from BCL's mother, father, or other adult - it was plainly dangerous for Mr. Perez to proceed down the path of sexual contact with BCL. The facts known to Mr. Perez from his text exchanges with BCL demanded independent verification of her age, and relying on her appearance and apparent confidence as indications that she was in fact 16 was plainly unreasonable.

[34] Based on this, I conclude that the circumstances on which Mr. Perez based his professed belief in B.C.L.’s age are too dissimilar to have any probative value in assessing whether he appreciated the risk that H.D. was underage.

[35] Turning to prejudice, I have significant concerns that admitting the group 2 evidence will unhelpfully shift the focus from the evidence on the counts before me to the circumstances Mr. Perez relied on in respect of B.C.L., and it would likely involve exploring what lessons Mr. Perez learned from the Brown J.’s reasons. There are also fairness concerns in admitting certain characteristics relating to B.C.L. and excluding others. This may lead to the defence having to adduce other evidence regarding the circumstances concerning B.C.L.’s age to distinguish them from those relating to H.D. Further, the defence indicated that if the Crown’s application were granted, it would take the position that the transcripts of Mr. Perez’s evidence from the B.C.L. trial be put to him, rather than the summary of his evidence in Brown J.’s reasons for judgment; the Crown disagrees. I need not decide whether one can look behind Brown J.’s findings of fact. I simply raise this to show that the admission of this evidence will lead to further evidentiary challenges. In short, the group 2 evidence would be a distraction and unnecessarily prolong the trial.

[36] Thus, the group 2 evidence is inadmissible.

Disposition

[37] The Crown’s discreditable conduct application is dismissed.

Justice Owen Rees

Released: January 20, 2025