R v Piche, 2018 ABQB 980

Court of Queen’s Bench of Alberta Citation: R v Piche, 2018 ABQB 980 Date: 20181204 Docket: 150550549Q1 Registry: St. Paul Between: Her Majesty the Queen Crown - and - Lyle James Piche Accused _______________________________________________________ Reasons for Judgment of the Honourable Madam Justice Avril B. Inglis _______________________________________________________ Legal Background [ 1 ] Sexual activity with others is governed by the Criminal Code in Canada. In particular, young people in Canada are protected from older teens and adults seeking sexual activity.

In 2008 Parliament increased the legal age that a person has the ability to consent to sexual activity from 14 years to 16 years old to extend that period of protection from potential exploitation. That protection is a right enjoyed by all young people in Canada. The correlative responsibility is that everyone must, as required by the Criminal Code , take all reasonable steps to ensure that a prospective sexual partner is at least 16 years old (unless there is a close-in-age exception between the potential partners) before engaging in sexual activity.

Failure to execute that duty unless there are obvious reasons not to, then engaging in sexual activity with a young person is at best reckless; at worst it is sexual assault. [ 2 ] This responsibility to ensure a partner’s age exists regardless of apparent consent or even initiation by the young person to engage in the sexual activity in question, or lack of exploitive intent by the older individual.

The effect of this (and other Code provisions) is to impose responsibility on all individuals to ensure that their prospective partner is consenting to sexual activity but also that they can , by law, consent to sexual activity. Acting without knowledge of the capacity of the partner for consent is perilous. Ignorance of the import of that responsibility is irrelevant to criminal culpability. Ou t line

[ 3 ] This then-27 year old accused engaged in penile-vaginal sexual intercourse with the 15 year old complainant on June 15, 2013. The accused is charged with sexual assault and sexual interference. [ 4 ] At the time of the intercourse, the complainant was not able to give evidence about the activity or surrounding circumstances. She testified that she recalled nothing of the time period in question. The accused admits the intercourse, but alleges that the complainant’s mother told him months before the alleged offence that the complainant was 18 years old.

This occurred in the context of the mother suggesting that the accused could give the complainant a beer. [ 5 ] The accused relies on the defence of mistake of fact. He argues that s 150.1(6) of the Criminal Code , RSC 1985, c C-46 applies, such that, because the accused allegedly mistakenly believed the complainant was older than 15, and that he asserts she consented to the activity, the accused has a defence to the sexual assault charge. [ 6 ] The primary issue here is whether the accused took “all reasonable steps” to ascertain the age of the complainant, pursuant to s 150.1(6) of the Criminal Code .

I note that s 150.1(4) of the Criminal Code has produced the majority of case law most relevant to interpreting “all reasonable steps” in this context, and rely on those cases. Evidence of the offence alleged [ 7 ] This matter included many undisputed facts. [ 8 ] Mr. Piche had just turned 27 on the offence date. CL was 15 years old. Her sixteenth birthday occurred later that summer. [ 9 ] On the offence date the legal age of consent to sexual activity was 16 years old. The accused did not fit into close-in-age- exceptions to CL. [ 10 ] The accused admits that he had sexual intercourse with the complainant.

There is strong forensic evidence, specifically a matching DNA profile to the accused’s own profile with an extremely low degree of random match probability, found on a vaginal swab taken of the complainant on the offence date. [ 11 ] I conclude that the source of the spermatozoa present is the accused’s. Even without the accused’s admission of intercourse I find that the presence of his spermatozoa on a vaginal swab taken from the complainant on the alleged offence date is proof of the fact that he had penile-vaginal sexual intercourse with the complainant on or about that day. Defence [ 12 ] Mr.

Piche relies on a defence available pursuant to the Criminal Code : 150.1

(1) Subject to subsections (2) to (2.2), when an accused is charged with an offence under

section 151 or 152 or subsection 153(1), 160(3) or 173(2) or is charged with an offence under

section 271, 272 or 273 in respect of a complainant under the age of 16 years, it is not a defence that the complainant consented to the activity that forms the subject-matter of the charge. Mistake of age

(6) An accused cannot raise a mistaken belief in the age of the complainant in order to invoke a defence under subsection (2) or (2.1) unless the accused took all reasonable steps to ascertain the age of the complainant (emphasis added). [ 13 ] Any inquiry into the application of this

section is contextually and fact specific. [ 14 ] Here, Mr. Piche testified that at some time, months prior to the sexual activity, he was drinking with the complainant’s mother at her home, something he did regularly. CL’s mother allegedly suggested he share his beer with the complainant. His response was “I don’t give alcohol to minors.” He testified that CL’s mother then told him that the complainant was 18. He had known CL’s mother (and, thus I infer CL) for a few months at that point.

I infer from his evidence that he specifically attended the home to socialize with CL’s mother during these visits, not CL. [ 15 ] CL’s mother TL was called to rebut that evidence. It is unknown to me if anyone in the five years between the offence date and trial had ever asked her if she had said that to the accused. She denied it when called upon, and could not understand a circumstance that would lead her to say that her fifteen-year-old daughter was eighteen. Other evidence [ 16 ] The evening before the offence date, CL was at her home in Cold Lake, Alberta. Her friends D and J attended.

D had a better memory of the events than CL did and testified to the following: The three young women were drinking first outside of the complainant’s home and then they went across the street to the park. They met this accused and another adult male who were also drinking. The men, J and the complainant went for a walk. This was late at night. D returned to CL’s home and went to bed. At 7:00 the next morning she woke to find that CL and J were not home. She called them on each of their cell phones. She could not reach CL but communicated with J, who led D to a camping trailer not far away.

There D found CL alone, dressed in shorts and a tank top, apparently asleep. She could not rouse her. She reported this to TL and went back to bed.

The complainant confirms the timeline that D outlined. Her memory was very limited however. She remembers drinking three cans of a5% vodka drink and some shots while out front of her home with D and J. She did not recall anything after that until she woke up aloneand naked in the trailer. She gathered her clothes, walked home and told her mother what had occurred. This happened mid-afternoon.Her mother took CL to the hospital for a sexual assault examination. Mr. Piche’s evidence [17] The accused’s evidence matches much of what CL and D said.

He agrees that he was drinking with CL and J and theyattended a camper together. He says he fell asleep there, while the girls and his adult friend were still present. The other three usedmarijuana but Mr. Piche says he did not. He woke up in the morning with CL by his side. Both parties were dressed. [18] In order to leave the trailer, Mr. Piche testified he had to climb over CL to get out of the camper’s bed, at which time shegrabbed his penis and said “give it to me.” He then says he engaged in what he thought was consensual sexual intercourse without acondom, or any further discussion.

After that he says he and CL both got dressed and parted ways. Credibility of the accused [19] In this case, if I believe the accused the usual test does not apply in a straightforward way. True, his evidence is not just thatCL consented to the sexual activity but that she initiated it. Here that is not a defense as she was not legally able to consent due to herage; as such the gravamen of the offence has been made out based on the forensic evidence as well as his admission of intercourse. [20] But he claims he had been told she was 18.

He then asserts he deliberately relied on that information as he engaged in sexualactivity. Only if that belief is credible or raises a reasonable doubt, and that belief is sufficient to make out the defense argued, does theWD test apply. Even if I find that he held a specific belief of CL’s age, it must be objectively reasonable. [21] The defense asserted is only available if the accused can show that he took all reasonable steps to ensure CL had the capacityto consent. As I address below, I find that the issue of age, not impairment, is most important here.

De facto consent and impairment [22] The Crown has argued that the sexual assault could be convicted even if Mr. Piche’s evidence is found to be sufficient to raisea doubt about his belief in CL’s age. They argue that CL had been drinking alcohol and using marijuana the night of the sexual contactand her ability to consent, even if she had been 16 years old, did not exist. Her consumption was known to Mr.

Piche but he attests thathe also simply believed she was sober enough to have capacity to consent to sexual activity. [23] CL does not recall any circumstances of the sexual activity; no one but the accused and the complainant were present. TheCrown must prove that CL did not consent, beyond reasonable doubt. Here, CL did not give any evidence about her state of mind at thetime of the sexual activity. The only other evidence I have is from Mr. Piche and he gave evidence of de facto consent. There isinsufficient evidence, if the defence applies, that she was non-consenting at the time of the intercourse.

The Crown is unable to proveCL’s state of mind. [24] There is also insufficient evidence regarding CL’s ability to consent being significantly affected by alcohol or drug ingestionat the time of the sexual intercourse. I have limited information about what she drank or smoked; when she stopped those activitiescompared to the timing of the sexual activity; how those substances were affecting her that evening; or what her usual consumptionhabits were like.

From R v Haraldson, 2012 ABCA 147, 2012 CarswellAlta 872, 2012 ABCA 147, [2012] A.W.L.D. 2780, [2012] A.J.No. 502, 102 W.C.B. (2d) 531, 524 A.R. 315, 545 W.A.C. 315, 73 Alta. L.R. (5th) 163 at para 18: Mere drunkenness is not the equivalent of incapacity: R. v. Jensen (1996), (ON CA), 106 C.C.C. (3d) 430 (Ont.C.A.). Nor is alcohol-induced imprudent decision making, memory loss, loss of inhibition or self-control: R. v. Merritt, [2004] O.J. No.1295 (Ont. S.C.J.). A drunken consent is still a valid consent. Where the line is crossed into incapacity may be difficult to determine attimes.

Expert evidence may assist and even be necessary, in some cases (R. v. Faulkner (1997), (ON CA), 120 C.C.C.(3d) 377 (Ont. C.A.)), though it is not required as a matter of law: R. v. Merritt, supra; R. v. Hernandez, [1997] A.J. No. 955 (Alta.C.A.), R. v. Cedeno, 2005 ONCJ 91, 195 C.C.C. (3d) 468 (Ont. C.J.) . [25] If the legal issue of lack of capacity to consent due to age was not present, I would not be able to conclude that the essentialelement of lack of consent is proved beyond reasonable doubt simply due to CL’s inability to recall the events, and/or lacking betterevidence about her state of intoxication.

Credibility of the accused [26] I find that I do not believe the accused when he states he firmly and unquestioningly believed the complainant to be 18 yearsof age. I doubt that TL ever made the statement he alleges.

It makes little sense that she believed her daughter was not a drinker at thatpoint in time in her life and yet lied to an acquaintance about her daughter’s age in order to facilitate her getting a beer. [27] However I find that it may be possible that in that context the comment about CL’s age was made, some months before. [28] However the accused had other information than that one careless statement. He, himself, concluded that the complainant wasa minor when they met in the months leading to the sexual activity. That was reasonable given the following factors:

• Her mother was apparently a peer and drinking buddy, observably in court to appear to be roughly the same age as Mr. Piche (shewas approximately 32 years old on the offence date). • He knew CL lived with her mother and three very young siblings. • At trial, over five years after the sexual contact, CL appeared very young - she has a full face with round cheeks, very smooth,unlined skin and a high and quiet voice.

I have trouble concluding she looked older at the time of the alleged offence. [29] On the night leading to the sexual activity: • I do not know how she was dressed, or if she were made up to look older. I have no evidence how she regularly dressed orconducted herself. • I have no evidence of what was talked about while the girls and men spent time together, so there is nothing to suggest she saidanything that implied her age to be something other than 15. • On the date in question CL was with other girls, whom Mr.

Piche agreed were obviously teens. • He knew CL and her friends were across the street from her house and went to a separate place to drink and smoke marijuana,instead of bringing these men home to use alcohol and drugs at her home nearby. [30] Further, I do not believe that the accused even turned his mind to question the age of the complainant when it was relevant –when he was about to engage in sexual activity. I found his evidence to be broadly dismissive on this point.

He testified that he believedhe was having intercourse between consenting adults, yet when asked why he did not stop activity to inquire about her age or intoxicationhe repeatedly said “who does that?” His evidence exhibited carelessness to the issue in question at the time in question. [31] Mr. Piche asserts relied on an out-of-context statement (made to induce him to give someone a beer) made casually thatconflicted with the rest of the information he had about CL’s age at the time he participated in sexual activity. It was apparent that CLmight be under the age of 16 and paid little attention to that fact.

Law [32] In R v Osborne, 1992 N.J. No. 312, 102 Nfld & P.E.I.R. 194, (NL CA), the accused was 19 years old onthe date of the alleged offence and the complainant was 13. On the evening of the alleged offence, the complainant told the accused thatshe was 17, she was with other girls who claimed to be 16 or 17, and she appeared older than 13. Further she told him that she had justbroken up with her boyfriend, and he observed birth control pills in her purse.

The Court of Appeal agreed with the trial judge’s findingthat the accused took all reasonable steps to ascertain the age of the complainant, as required by s 150.1(4) of the Criminal Code. TheCourt clarified that for the accused to succeed in his mistake of age defence, the evidence must establish that the accused “took allreasonable steps” (emphasis in original), and that evidence “must be directed to the word ‘all’ as much as to any other part of thesubsection” (at para 59).

There must be “an earnest enquiry or some other compelling factor that obviates the need for an enquiry” intothe complainant’s age (at para 62). [33] The Court of Appeal in R v Duran, 2013 ONCA 343 noted that the steps taken must be objectively reasonable in light of whatthe accused knew and observed about the complainant, and the court must assess whether those steps “were all the steps a reasonableperson needed to take or whether a reasonable person ought to have made inquiries.” At trial, the accused unsuccessfully relied on themistake of age defence under s 150.1(4) of the Criminal Code.

He claimed that the complainant’s appearance, interests, clothing, andmanner of speech all suggested that she was older than 15, and that she had told him that she was 19 years old, attended college, andlived in a sorority house. The Court of Appeal set aside the accused’s convictions in part because the trial judge had erred in herinstructions to the jury.

The Court stated that the relevant question when considering a mistake of age defence is “whether what the[accused] knew and observed about the complainant were all the steps a reasonable person needed to take or whether a reasonable personought to have made further inquiries” (at para 53).

A trial judge or jury should consider the following factors in answering that question:“the accused’s observation of the complainant; the complainant’s appearance and behaviour; the information the complainant told the[accused] about herself, including any information about her age; and the age differential between the [accused] and the complainant” (atpara 53; see also Slater at para 29; LTP at para 20). [34] In R v Slater, 2005 SKCA 87, the complainant testified she told the accused she was 18.

However, the complainant looked noolder than her actual age of 16, and before the alleged offence took place, the accused saw her in the company of four other youngteenagers. The court held that “asking a pro forma question and receiving a pro forma answer does not satisfy the requirement of “allreasonable steps.” The Court of Appeal upheld the trial judge’s decision that the question asked and answered was NOT sufficient, andthat many other inquiries should have and could have been made: for example asking her actual birthdate, why the complainant was withthree younger girls, when she finished school.

The trial judge observed these types of questions would “demonstrate an earnest enquirydirected at determining her age. In other words, asking the complainant her age is ONE step, but in the circumstances of this case doesnot amount to “all reasonable steps”” (at paragraph 10). [35] The accused in R v Dragos, 2012 ONCA 538 was 24 years old on the date of the alleged offence; the complainant was 13.The trial judge convicted the accused of several sexual offences stemming from his online dealings with the complainant, and his sexualactivity with the complainant upon meeting her in person.

The accused argued the defence of mistaken belief of age, relying on the factthat the parties met in an online chat site for people over 14 years of age, and the claimant told the accused that she was 14 years old, ingrade 9, had dated older guys, and used sexualized language in her communications.

However, evidence also showed that the onlinechatroom was anonymous and gave no assurance as to the accuracy of any postings, the complainant appeared young and slight, thecomplainant’s conversations reflected her immaturity, and the complainant’s mother told the accused that the complainant was “wayunderage.” The trial judge compared the steps taken by the accused to the steps a reasonable person would have taken in thecircumstances, and rejected the accused’s defence (at paras 29-31). The Court of Appeal found no error and dismissed the accused’s

appeal. [ 36 ] The Alberta Court of Appeal upheld the accused’s convictions of sexual assault and touching a person under the age of 16 for a sexual purpose in R v Gashikanyi , 2015 ABCA 1 . In that case, the accused picked up the 14-year-old complainant and her 18-year-old cousin at a bus stop at 3:00 AM, fed them, invited them to spend the night at his home, and then had sexual intercourse with both of them.

Although the accused asked the complainant’s cousin about the complainant’s age, he never asked the complainant herself, and he assumed the complainant was over 16 largely because she appeared to be a sex trade worker and because she voluntarily agreed to spend the night at his house (at paras 7-8). The Court of Appeal confirmed that the accused had to take reasonable steps beyond simply assuming that the complainant was a sex trade worker (at para 16).

As well, the Court stated that while the accused does not necessarily have to ask a complainant their age, the failure to do so is relevant to the inquiry as to whether the accused took all reasonable steps (at para 17). [ 37 ] In R v Tannas , 2015 SKCA 61 , the accused was 26 years old on the date of the alleged offence and the complainant was 13. They chose to have sex after meeting at a party, and the accused was subsequently charged with sexual assault. He unsuccessfully argued the defence of mistake of age under s 150.1(4) at trial, but his conviction was set aside on appeal.

The Court of Appeal noted that, while the accused did not ask the complainant’s age at any point before having sex, the complainant appeared older than 15 to people other than the accused at the party, the other people who attended the party were all at least 18 years old, and the complainant engaged in adult activities (drinking alcohol and smoking marijuana) at the party (at paras 32-34). The accused’s failure to ask the complainant her age, on its own, did not prove a failure to take all reasonable steps to ascertain the complainant’s age.

The Court of Appeal also noted that, “[i]n some cases, a mere visual observation of the complainant may obviate the need for any further inquiry” (at para 28, citing Duran at para 52 ). Conclusion [ 38 ] To establish a mistake of age defence under ss 150.1(4)-(6), the evidence must raise a reasonable doubt as to whether the accused took all reasonable steps to ascertain the complainant’s age.

Courts have interpreted the requirement to take “all reasonable steps” to mean that there must be “an earnest inquiry or something that obviates the need for such inquiry” ( Gashikanyi at para 14 , citing Osborne at para 62 ). [ 39 ] Whether an accused took all reasonable steps depends on context and all the circumstances of each individual case ( Duran at para 52 ; Chapman at para 50). In some cases, the accused’s observation of the complainant’s appearance may be enough ( Tannas at para 28 ).

In others, it may not be enough that the accused asked the complainant’s family member or the complainant herself for their age ( Slater at para 19 ; Gashikanyi ). [ 40 ] Courts have indicated that the following factors are relevant to answering the question of whether what the accused knew and observed amounted to “all reasonable steps” or whether a reasonable person ought to have made further inquiries:

i) The complainant's physical appearance and behaviour; ii) The ages and appearances of those in whose company the complainant was found; iii) The relevant activities in which the complainant engaged; iv) Information the complainant told the accused about herself;

v) The age differential between the accused and the complainant; vi) The context of the observations; and vii) The times, places, and other circumstances in which the accused observed the complainant and the complainant's conduct. [ 41 ] In this case, the comment possibly made by the complainant’s mother in the context of giving alcohol to the complainant did not obviate the need for further inquiry.

There were many other factors known to the accused contradicting to that alleged statement, including: the complainant’s appearance; the obvious girlish appearance of her companions on the date of the alleged offence; meeting the girls in a playground; while they were drinking the girls were not apparently willing to go to CL’s home to do so, implying secrecy to their conduct; the relative and obvious close age of the complainant’s mother to Mr. Piche and her peer relationship with the accused; and the complainant’s living arrangements, including the very young ages of her siblings.

Most importantly, the accused himself had originally concluded that CL was under 18 years old. Given all of that, a reasonable person would have made further inquiries beyond the out-of-context and casual statement allegedly made by TL. [ 42 ] As such, even if I believed Mr. Piche’s evidence about the statement of age he says TL made, he did not take all reasonable steps to ensure the age of CL as required by the Criminal Code given the totality of the information known to him.

Even if the out-of- context and offhand statement was made by CL’s mother some months before, that was not sufficient when the situation and specifically the import of CL’s age changed. [ 43 ] Mr. Piche’s own evidence shows that he actually took NO steps prior to the sexual encounter, or even specifically turned his mind to CL’s age and whether he should ask more questions prior to engagement. Yet there were enough factors present that outweighed the statement of TL he says he received to suggest CL was younger than the legal age of consent and he was legally required to inquire.

Each of the factors I have listed above contribute to that legal duty at the time he was about to engage in sexual activity. [ 44 ] While the mother of a person is generally a reliable source of information about someone’s age, there were circumstances present that should have raised reliability questions in Mr. Piche’s mind about the statement the complainant’s mother may or may not have made.

[ 45 ] Mr. Piche showed a laissez faire attitude and significant lack of understanding of his obligations. His repetition of the phrase “who does that?” shows the accused relied on what he believed to be social norms and not the law to direct his conduct at the time of the offence. Unfortunately for Mr. Piche, ignorance of the law is not a defense. [ 46 ] Osborne focused on the exact words in the Criminal Code . “The evidentiary onus is to show evidence that establishes that the accused tool all reasonable steps to ascertain the age of the complainant….

While it is only necessary for an accused to create a reasonable doubt, the evidence which he uses to establish such doubt must be directed to the word “all” as much as to any other part of the subsection.” I have no such reasonable doubt that Mr. Piche took the required steps. [ 47 ] While I cannot find that he intended to deliberately exploit a 15-year-old girl who had been drinking and was alone with him in the trailer, he did not comply with his legal responsibilities and it was criminal for him to engage in the sexual activity without further inquiry.

CL’s rights to be protected from such sexual activity were unheeded. [ 48 ] The Crown has disproved the availability of the defense beyond reasonable doubt. In other words, the Crown has proved beyond a reasonable doubt that the accused did not take all reasonable steps to determine the complainant’s age, there were not sufficient factors present that obviated the need to do so and the defense fails. This is so even if I believed Mr. Piche’s evidence in its entirety. [ 49 ] As such, I find Mr. Piche guilty on both counts, sexual assault and sexual interference. Heard on the 30 th day of October, 2018.

Dated at the Town of St. Paul, Alberta this 4 th day of December, 2018. Avril B. Inglis J.C.Q.B.A. Appearances: Jordan Kerr Crown Prosecutor for the Crown Stephanie Oleksyn Todd & Drake LLP for the Accused