R. v. C.T.P. and A.S.D., 2021 BCPC 284

Citation: R. v. C.T.P. and A.S.D. 2021 BCPC 284 Date: 20211124 File No: 21991-3-C Registry: Western Communities IN THE PROVINCIAL COURT OF BRITISH COLUMBIA REGINA v. C.T.P. and A.S.D. These reasons are subject to a publication ban under sections 486.4 and 278.95 of the Criminal Code REASONS FOR JUDGMENT OF THE HONOURABLE JUDGE GOUGE Counsel for the Crown: M. Feldthusen & J. Pawlaw Counsel for the Accused C.T.P. R. Horne Counsel for the Accused A.S.D. N. Brooks Place of Hearing: Colwood , B.C. Dates of Hearing: June 28, June 29, June 30, July 2, July 27, November 24, 2021 Date of Judgment: November 24, 2021

Part 1: The Issues [ 1 ] Ms. P and Ms. D are accused of a variety of sexual offences, all arising from sexual activity in which they participated with three young boys. At the time of the events in issue, the boys were 13, 14 and 15 years of age. The evidence clearly establishes that each of the boys consented to the activity giving rise to the charges. The first question is whether Ms. P and/or Ms. D can rely upon the consensual nature of the activity as a defence to the charges. [ 2 ] Consent to sexual activity is not a defence if: (

i) the complainant was between 12 and 14 years of age at the time of the assault and the accused is more than 2 years older than the complainant; or (ii) the complainant was between 14 and 16 years of age at the time of the assault and the accused is more than 5 years older than the complainant: Criminal Code , sections 150.1(2) and 150.1(2.1) . [ 3 ] In this case: a. Ms. P is more than 5 years older than the complainant who alleges that she sexually assaulted him. As a consequence, the defence of consent is not available to her. b. There is no evidence of Ms. D’s age or date of birth.

It is necessary to decide whether she or the Crown carries the onus on that issue. [ 4 ] The Criminal Code provides for a second defence which may be open to Ms. P. She says that the complainant told her that he was over age 16, and that she believed him. Under

section 150.1(4) of the Criminal Code , the defence of mistake of age is available to Ms. P if and only if she “… took all reasonable steps to ascertain the age of the complainant …”. [ 5 ] There is also an issue as to whether the Kienapple principle limits the number of counts upon which each of the accused may be convicted.

Part 2: The Charges [ 6 ] Ms. P is charged with: a. two counts of sexually assaulting C.M., contrary to

section 271 of the Criminal Code ; b. two counts of sexually touching C.M., contrary to

section 151 of the Criminal Code ; c. one count of transmitting sexually explicit material to C.M., contrary to

section 171.1(1) (

b) of the Criminal Code ; d. three counts of “internet luring” under

section 172.1(1) (

b) of the Criminal Code ; [ 7 ] Ms. D is charged with: a. one count of sexually assaulting M.G., contrary to

section 271 of the Criminal Code ; b. one count of sexually touching M.G., contrary to

section 151 of the Criminal Code ; c. one count of sexually assaulting K.S., contrary to

section 271 of the Criminal Code ; d. one count of sexually touching K.S., contrary to

section 151 of the Criminal Code

Part 3: Established Facts [ 8 ] I am satisfied beyond a reasonable doubt of the facts stated in paragraphs 9 – 18, below. [ 9 ] In April, 2020, Ms. P and Ms. D lived in separate townhouses in a townhouse development in Colwood, British Columbia. [ 10 ] Ms. P was 26 years of age when she gave evidence on July 27, 2021. She was 24 or 25 years of age in April, 2020. [ 11 ] One evening in April, 2020, a group of four boys gathered on the sidewalk near Ms. P’s home. All of the boys lived with their families in the same development.

They were K.S., then age 13, M.G., then age 14, A.A., who had his 14 th birthday in April, 2020, and R.M., then age 13. They encountered Ms. P and Ms. D, who were leaving Ms. P’s home to walk to the liquor store. The boys offered to trade some marijuana for a six-pack of “Hey Y’Alls”, which is a beverage composed of iced tea and vodka, with a content of 5% alcohol. The ladies agreed to this proposition and walked to the liquor store, returning about 20 minutes later with the six-pack of Hey Y’Alls and a 2- litre container of wine for the women.

By time the women returned, C.M., then age 15, had joined the group of boys. The women and boys went to the patio at the rear of Ms. P’s home. [ 12 ] On the patio, Ms. P and Ms. D drank wine, while the boys smoked marijuana and drank “Hey Y’Alls”. Some of the boys also drank wine. While there are some inconsistencies in the evidence about how much each consumed, it is clear that: (

i) each of the participants was intoxicated to some degree; and (ii) it was apparent to each of the participants that each of the other participants was intoxicated to some degree. [ 13 ] After some time, Ms. D began an erotic solo dance, during which she removed some or all of her clothing. [ 14 ] At about the same time, Ms. P sat on C.M.’s lap. She and C.M. began to stroke and kiss each other. Shortly thereafter, they went into Ms. P’s house, where they had vaginal intercourse in an upstairs bedroom. [ 15 ] Shortly after C.M. and Ms. P returned to the patio, Ms. D and M.G. went to an upstairs bedroom, where they had vaginal

intercourse. [16] When Ms. D and M.G. returned to the patio, all of the boys except K.S. left the scene. Ms. D and K.S. then went upstairs and hadvaginal intercourse. [17] On April 26, 2020, Ms. P sent C.M. a text message, inviting him to her house for “… a hot make out sesh …”. C.M. acceptedthe invitation, and they had vaginal intercourse on a couch in Ms. P’s garage. [18] C.M., M.G and K.S. each consented to each of the sexual activities referred to above.

Part 4: Facts in Dispute a. Conversations About the Boys’ Ages [19] It is clear that there was some discussion of the boys’ ages while the parties were on the patio at the rear of Ms. P’s house. Giventhe quantities of intoxicants which each had consumed, it is not surprising that their recollections differ. [20] The following is the evidence in relation to C.M. a. C.M. says that, early on in the proceedings on the patio, Ms. P asked how old he was, and “… one of my buddies told them that I wasolder than I was and then I said no, that’s not right, and I had then told her I was 15”. b.

A.A. says that “… someone said that [C.M.] was 18 and he was saying he was 16. It was like a big confusion. … They were justjoking around, like [K.S.] and [M.G.]. I don’t know why, but they were saying [C.M.] was 18”. c. K.S. says that C.M. told Ms. D and Ms. P that he was 17 or 18 - K.S. does not remember which. d. Ms. P says that: i. “His friends said he was 18 … and he didn’t deny it”. ii. When she and C.M. were kissing on the patio, she asked him “Are you sure you are 18?”, and he said “yes”. iii.

Before she and C.M. went upstairs, she asked him the question a second time and he replied in the affirmative. iv. After they entered the upstairs bedroom, she asked him the same question for the third time, and he replied “I wouldn’t be here ifI wasn’t”. When asked during cross-examination why she asked C.M. his age on three separate occasions during the course of the evening, shereplied that she was “… a little sceptical …” about his assertion that he was 18. [21] M.G. says that there was no discussion of his age on the evening in question.

A.A. says that M.G. gave his age as 16, butimmediately followed the statement with “I’m joking – I’m 14”. [22] K.S. acknowledges that he “… might have said that I was 16 …”. A.A. says that, during the discussion on the patio: a. there was a lot of talk about the boys’ ages, which he describes as very confusing; b. K.S. gave his age as 14. [23] In light of the differences in these accounts of the conversations, I could not be satisfied beyond a reasonable doubt of theaccuracy of any of them. b. Ms. P’s Photograph [24] Sometime after the event, Ms. P sent C.M. a photo of herself via the internet.

The photo was not tendered in evidence. C.M. andMs. P agree that the photo was a rear view, shot into a mirror. C.M. says that Ms. P was naked. Ms. P says that her buttocks wereproperly clothed.

Part 5: The Case Against Ms. D [25] If Ms. D is less than 2 years older than K.S. and less than 5 years older than M.G., the defence of consent is available to her. Theevidence clearly shows that K.S. and M.G. consented to the activity complained of. There being no evidence of Ms. D’s age, her guilt orinnocence turns upon the question of onus of proof. The basic principle of the common law has been that the accused need not prove a defence.

Once an accused raises the possibility that adefence exists, whether by pointing to some fact in the Crown evidence or by leading defence evidence, the Crown is required todisprove the defence beyond a reasonable doubt. The common law has not distinguished in this area between defences that challenge theexistence of a necessary element of the offence and those defences that admit the mens rea and actus reus but avoid criminal liabilitybecause of circumstances that excuse or justify the conduct. With either type of defence, all that the accused need do is point to someevidence which supports the defence.

The Crown is then required to disprove the defence beyond a reasonable doubt. R v Holmes (SCC), [1988]1 SCR 914 I find nothing in

section 151 of the Criminal Code from which it could be inferred that Parliament intended to displace the common law

principle in cases of sexual assault. I observe that, in R v Silavi 2019 BCCA 366; [2019] BCJ No. 1984, Justice Newbury said @paragraph 6 that

section 150.1 of the Criminal Code is “… not regarded as placing any onus or duty on the accused”. Accordingly, thedefence of consent is open to Ms. D unless the Crown proves, beyond a reasonable doubt, that she is less than 2 years older than K.S. orless than 5 years older than M.G. [26] Because it has not been proven that Ms. D is more than 2 years older than K.S. or more than 5 years older than M.G., and it hasbeen proven that K.S. and M.G. consented to intercourse with her, the charges against Ms. D must be dismissed.

Part 6: The Case Against Ms. P [27] Because Ms. P is more than 5 years older than C.M., the defence of consent is not open to her. She advances the defence of amistaken belief that C.M. was over the age of 16 at the time of the events in issue. [28] In R v Westman 1995 BCCA 285; (BC CA), [1995] BCJ No. 2124, Justice Southin said @ paragraphs 18 -20: The mens rea of the crime created by s.151, insofar as the age of the complainant is an ingredient of the crime, is, in my opinion, eitherknowledge of the age of the complainant or reckless indifference whether the complainant was or was not under the age of fourteen.

I conclude that the sections mean this: Every person who, for a sexual purpose, touches, directly or indirectly, with a part of the body or with an object, any part of the body of aperson under the age of fourteen years, knowing that the person is under the age of fourteen years or recklessly indifferent as to whetherthe person is under that age, is guilty of an indictable offence ... For the purposes of this section, a person who believes the complainant not to be under the age of fourteen years but who has failed totake all reasonable steps to ascertain the age of the complainant is recklessly indifferent.

If this

interpretation is correct, then no question of a reverse persuasive onus arises. The burden of proof of the guilty mind of theaccused, which is a necessary ingredient of this crime, remains throughout upon the Crown which, by adducing evidence from thecomplainant of, for instance, the absence of inquiry by the accused, may shift the evidentiary burden to him. Justice Southin’s statement of the governing principle was recently quoted with approval in R v Jerace 2021 BCCA 94; [2021] BCJ No.383 @ paragraph 24 (leave to appeal refused @ 2021 SCCA 132).

I refer also to R v Darrach (ON CA), [1998] OJNo. 397; 38 OR (3d) 1; 122 CCC (3d) 225 @ paragraph 82 (affirmed @ 2000 SCC 46 , [2000] 2 SCR 443). [29] The Jerace decision also contains a review of the three-step process described in R v Carbone 2020 ONCA 394; 150 OR (3d)758 @ paragraphs 123 – 129. I am relieved of the need to follow that process because all counsel agree that, if I am satisfied beyond areasonable doubt that Ms. P was reckless as to the age of C.M., I am obliged to convict Ms.

P. [30] “Reckless indifference” was defined by Justice McIntyre In R v Sansregret (SCC), [1985] 1 SCR 570 @ pages581 - 582: The concept of recklessness as a basis for criminal liability has been the subject of much discussion. Negligence, the failure to takereasonable care, is a creature of the civil law and is not generally a concept having a place in determining criminal liability. Nevertheless,it is frequently confused with recklessness in the criminal sense and care should be taken to separate the two concepts. Negligence istested by the objective standard of the reasonable man.

A departure from his accustomed sober behaviour by

an act or omission whichreveals less than reasonable care will involve liability at civil law but forms no basis for the imposition of criminal penalties. Inaccordance with well-established principles for the determination of criminal liability, recklessness, to form a part of the criminal mensrea, must have an element of the subjective. It is found in the attitude of one who, aware that there is danger that his conduct could bringabout the result prohibited by the criminal law, nevertheless persists, despite the risk. It is, in other words, the conduct of one who seesthe risk and who takes the chance.

It is in this sense that the term 'recklessness' is used in the criminal law and it is clearly distinct fromthe concept of civil negligence. [31] Ms. P was conscious of the risk that C.M. might be under age 16. That risk was present to her mind on the evening in question,and was the reason that she asked him three times to state his age. She proceeded to have sex with him despite her scepticism at hisanswer.

I conclude that she was reckless as to his age. [32] I construe Justice Southin’s remarks, quoted in paragraph 28, to mean that the defence of mistake of age is not open to anaccused who was reckless as to the age of the complainant. [33] If I am wrong about that, it is necessary to consider whether Ms. P took “… all reasonable steps …” to ascertain C.M.’s age. Ms.P said that C.M. was not merely willing, but eager, to have sex with her. [34] The only step taken by Ms. P to ascertain C.M.’s age was to ask C.M.

In R v George 2017 SCC 38 , [2017] 1 SCR 1021,Justice Gascon said @ paragraph 9: 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 apartner's age in every case …. Conversely, it would be an error to assert that a reasonable person would do no more than ask a partner'sage in every case, given the commonly recognized motivation for young people to misrepresent their age … [35] Given C.M.’s eagerness to have sex, and his obvious intoxication, it was not sufficient for Ms.

P to simply ask him his age.Asking a young boy who has been consuming alcohol and marijuana, and who is visibly eager to have sex, to state his age is not areasonable way to determine his age. In the circumstances of this case, a further enquiry was required of her. She could, and should, have

postponed her overtures for a few days to allow her to make enquiries in the neighbourhood. Such a conclusion places “… theresponsibility for preventing adult/youth sexual activity where it belongs: with adults …”: George @ paragraph 2. [36] I convict Ms. P of two counts of sexually assaulting C.M. [37] Ms. P is charged with two counts of sexually touching C.M., one on the occasion of the gathering at her home and the other inher garage a few days later. In each case, the actions alleged to be sexual touchings are the same as the actions constituting the sexualassault.

Applying the principle stated in R v Kienapple (SCC), [1975] 1 SCR 729, she cannot be convicted of both sexualassault and sexual touching on the basis of a single incident, so I acquit her of the charges of sexual touching. [38] Ms. P sent an invitation by text message to C.M., inviting him to a “hot make-out sess”. That invitation led to the incident in hergarage, which I have found to be a sexual assault.

Section 172.1(1)(

b) of the Criminal Code provides that it is an offence to communicatewith a person under the age of 16 for the purpose of committing a sexual assault. Ms. P is clearly guilty of that offence, and I convict herof it. The text message referred to above is one in a sequence, leading to the three counts of internet luring alleged by the Crown.However, all of those text messages were sent in relation to a single incident, when Ms. P had sex with C.M. in her garage. In my view,the Kienapple principle precludes conviction on more than one count. [39] Ms. P is accused of transmitting sexually explicit material.

This allegation arises from the photograph sent by Ms. P to C.M. Thephotograph is not in evidence. If C.M. Is to be believed, it was a sexually explicit photograph. If Ms. P is to be believed, it was not. Icannot be satisfied beyond a reasonable doubt that C.M.’s evidence is correct. I acquit Ms. P of this charge. Disposition: [40] I convict Ms. P on counts #1, 3 and 6 and acquit her on counts #2, 4, 5, 7 and 8. I acquit Ms. D on counts #9 – 13. November 24, 2021 ____________________________________ T. Gouge, PCJ