R. v. J.A.C., 2018 BCPC 165

Citation: R. v. J.A.C. 2018 BCPC 165 Date: 20180628 File No: 102589-1 Registry: Kamloops IN THE PROVINCIAL COURT OF BRITISH COLUMBIA REGINA v. J.A.C. REASONS FOR JUDGMENT OF THE HONOURABLE JUDGE S.D. FRAME Counsel for the Crown: Ms. Alexandra Janse Counsel for the Accused: Mr. Bradford Smith Place of Hearing: Kamloops , B.C. Dates of Hearing: March 9, 2018 and April 30, 2018 Date of Judgment: June 28, 2018 [ 1 ] J.A.C. is charged with touching C.C. for a sexual purpose while she was under the age of 16. [ 2 ] To be clear, this is not a case about J.A.C. forcing sexual intercourse on C.C. and it is not a case about C.C. being too

intoxicated to form consent. The evidence does not support either scenario. It is factually a case about a 21 year old man having sexual intercourse with a girl under the age of consent. C.C. was born in 2001 and was about 15 ½ years old at the time of the allegations. The issue is whether J.A.C. had an honest but mistaken belief that C.C. was above the age of consent, or whether he took all reasonable steps to ascertain her age before engaging in the sexual activities with her. [ 3 ] The facts of this case are troubling and disheartening on several levels. C.C. was a vulnerable youth.

She was also on a parent- set curfew reasonable to a person her age. Her mother, J.H., testified to this effect. C.C. sneaked out of her home to go to her friend’s house. J.H. testified that breaking curfew had been an issue for them. Sometimes her daughter sneaked out for a few hours and sometimes she would be gone all night. This emphasises how vulnerable C.C. was.

It is also an acknowledgement that 15 year old girls are not expected to be out at the time of morning that these events occurred. [ 4 ] J.H. does not think her daughter presents as mature, and that she could only hold a conversation with another fifteen year old. I cannot agree. C.C. was a very self-possessed witness. Of course, her testimony was given over a year after the allegations which may be a significant amount of time of growth in the teen years.

The defence must be assessed based upon C.C. as she was in November, 2016. [ 5 ] J.H. conceded that at the time, C.C. went to school, held a job and interacted with a spectrum of age groups. She was clearly capable of communicating outside of her own age group. Constable Haliburton, who took C.C.’s statement, said she used fairly mature language and was as at ease as a person could be in the circumstances. That is astonishing in itself for someone so young in such a situation. This demonstrates the same composure and maturity then that C.C. exhibited at trial. [ 6 ] J.A.C. said C.C. talked like he would.

In his interview with the police, it is J.A.C. who sounds like and presents as a youth. In court, it was not possible to distinguish between their ages based only on composure, language and behaviour. J.A.C.’s speech patterns both in the police interview and his oral testimony certainly place him close in apparent chronological age to that of C.C. [ 7 ] C.C.’s friend whom she was sneaking out to see was a girl of 14. When C.C. described where she went, though, she said she went to G.B.’s house. He is the older brother of the friend.

C.C. testified she thought he was 19, but was quite a bit older than her friend in any event. [ 8 ] Despite the very young age of these girls, they partied with G.B. like peers. Evidently there were a couple of boys C.C.’s age and a couple more who were older. C.C. drank shots numbering between five and seven. It is unclear whether she drank anything else but she agreed that she was “pretty intoxicated”. She cannot remember if she also smoked marijuana. [ 9 ] When C.C. decided she needed to go home, she texted B.B. who was either a friend or a friend of friends, and who was also quite a bit older.

She knew he was about the same age as G.B. B.B. was unable to give her a ride himself because he was too intoxicated, but said he would try to find her a ride. [ 10 ] B.B. asked his two friends, J.A.C. and G.C., to give his friend a ride. J.A.C. testified that he only agreed to pick up C.C. because he and G.C. were looking to party and maybe to hook up with someone. He testified that B.B. told him C.C. was such a person and that she had tried to hook up with him only a week or so prior. This is, of course, hearsay, but it does set the context for J.A.C.’s actions and assumptions if he believed what he was told.

It does not in any way prove that C.C. had engaged in such prior activities, nor would this information alone serve to excuse J.A.C. from his legal duty. C.C. testified that she knew neither J.A.C. or G.C. [ 11 ] The two men picked up C.C. from G.B.’s home. They did not know he lived there. They did not go in the house where the party continued. C.C. came out when J.A.C. let B.B. know that they were there.

They therefore had - and afforded themselves - no opportunity to see that there were younger people present or to make any inquiries of G.B. about C.C. [ 12 ] J.A.C. testified that the house was lit up and looked like there might be a grad party going on. This was approximately 3:30 in the morning. J.A.C. said C.C. was wearing tight jeans, a revealing t-shirt, and was wearing makeup. She looked of age to him. He thought because their mutual friend - B.B. - was 19 that she was as well. [ 13 ] I do not agree with Crown’s characterization that the evidence about the house party was “this side of ridiculous”.

It sounds all too probable. It is not inconceivable that grads would want only grads at a grad party. It stretches matters too far to say it should be assumed a 15 year old may be present at such a party, no matter how possible it may be. It is not reasonable to expect a person to think a house party still going on at 3:30 in the morning would be attended by 15 year old youths, even if they were in fact present. [ 14 ] J.A.C. said C.C. was hammered when they picked her up and that they were pretty drunk as well. He said C.C. opened the conversation by asking if they had some “blow”.

Evidently they did, so J.A.C. “chalked” her a line. C.C. appeared to be experienced with snorting cocaine. She testified she had done it about four times before. [ 15 ] C.C. testified that it was her intention to go home, but the young men asked her if she wanted to party a little longer. She claimed she told the men that she had to be home by 8:00 because she had sneaked out. In the statement she gave to the police, she does not mention saying anything to these young men about a curfew or sneaking out. C.C. said that is because the police did not ask.

She also agreed on cross examination that she is not sure if she mentioned a time to the two men. Her evidence was not consistent about this evidence. In any event, C.C. testified that it was only 4:00 a.m. by then, so she agreed to the invitation to party. [ 16 ] J.A.C. said in his statement and in his testimony that C.C. told them she wanted to be home by 8:00. He testified that he was under the assumption that she had to work because who else would need to be home by 8:00 in the morning on a Sunday. She said nothing about a curfew or parents, and that these would have been red flags to him.

This evidence was not challenged on cross examination. I accept it as true. [ 17 ] The three went to a house in [omitted for publication] an area of Kamloops called [omitted for publication]. J.A.C. testified it was his parents’ home where he sometimes stayed. C.C. said they did some cocaine and drank some alcohol. She thought it might have been mixed drinks but J.A.C. said it was Fireball whisky. C.C. agreed the cocaine may have been cut in “Hollywood lines”, was not sure, but she was familiar with the term. She and G.C. also smoked some marijuana. J.A.C. said C.C. made her own lines and she was

“doing Hollywood”. [ 18 ] As with C.C.’s presence outside the G.B. home at 3:30 a.m., her use of and experience with drugs and their terms are relevant to what J.A.C. ought to have been able to assess about C.C.’s age and whether that ought to have embarked him on a further path of inquiry. [ 19 ] At some point in the early hours of the morning, C.C. said she was doing a line when J.A.C. pulled off her leggings. She continued doing the line, and they flirted a bit. She did not put the leggings back on. J.A.C. testified that she took her leggings off herself.

In the end result, it does not matter how the leggings came off or whose evidence is correct. While this was overall a picture of dissolute behaviour, there is no evidence it was not consensual, apart from C.C.’s age and lack of legal ability to consent, or that C.C. was not at ease. It matters only to a reasonable assessment of her age and whether J.A.C. ought to have embarked on that further inquiry. [ 20 ] C.C. asked for a brush because her hair was a mess and she could not go home looking as she did. When she was told there was no brush, she asked to have a shower.

J.A.C. testified that he got her a brush when she asked for one. She then asked for a towel which he also got her. [ 21 ] Once in the shower, C.C. said G.C. joined her and she performed oral sex on him. She testified that J.A.C. came in to the bathroom and took a video of this. J.A.C. said that he was on FaceTime with B.B. and was not filming the two people in the shower. [ 22 ] C.C. said G.C. got out of the shower and left the house to get more cocaine. J.A.C. told the police G.C. left, but not to get cocaine. He changed that statement at trial. C.C. believed J.A.C. then got in the shower, but is not sure.

He took some photos of her and then she dressed back in her shirt. J.A.C. denied he took any photos. No video or photographs were produced at trial nor did the police pursue production of the phone, which J.A.C. had said he was willing to give them. [ 23 ] At some point, J.A.C. observed a hickey on C.C.’s neck. Constable Haliburton observed a bruise mark on C.C.’s neck which he agreed was consistent with a hickey. J.A.C. asked C.C. where she got the hickey and she told him G.B. gave it to her. She also said she had sexual intercourse with G.B.

J.A.C. said G.B. was 19 at that time, and that he has known him all his life. With B.B. around the age of 18 and G.B. at 19, the age of C.C.’s peer group was solidifying. [ 24 ] C.C. did not put her leggings back on after the shower. She said they then went to the basement where she and J.A.C. had sexual intercourse. She cannot recall who initiated this. J.A.C. said C.C. put on only her underwear after the shower. After G.C. left, J.A.C. and C.C. went into the kitchen where he mixed drinks and she sat on the counter.

C.C. agreed that the drinking continued after she finished her shower. [ 25 ] J.A.C. said C.C. asked “are we going to fuck or what” to which he said “yeah”. They went downstairs. There is some largely irrelevant evidence from both sides about whether there was oral sex and whether the sexual event lasted 45 minutes or 15 minutes. J.A.C. then said C.C. wanted to stay the night. He did not want her to stay. C.C. also disputes this, saying she wanted to go home. J.A.C. based this assumption on the fact that C.C. did not ask for a ride home.

It is a bizarre path to such a conclusion. [ 26 ] C.C. said she asked for a “bong toke” and, still without leggings on, she went outside to smoke. J.A.C. would not let her back in the house. She had to use the assistance of G.C., who had returned by this time, to recover the rest of her clothing and her purse. She was then forced to walk back to G.B.’s house where G.B. got one of his friends to take her home. [ 27 ] J.A.C. agreed C.C. asked to smoke more “weed”, which they did in the house. Then C.C. wanted to smoke a cigarette so he sent her out to the steps with one.

Evidently, J.A.C.’s parents smoked marijuana in the house, but not cigarettes. [ 28 ] While she was sitting on the steps, G.C. returned with friends. J.A.C. told them they had to start packing up at which point C.C. came back in the house. She indicated she wanted to stay and that she felt sick. When C.C. began to feel sick, J.A.C. became quite cavalier, wanting her to just leave. He said “I didn’t want to clean up any puke”. The next moment, he realized she was putting on her shoes and walking down the street.

She did not wait for a ride. [ 29 ] I do not see the inconsistencies in this evidence as material or relating to matters of credibility. Rather, I find they are different perspectives of the same events - perspectives clouded by alcohol, drugs, lateness of the hour, and the passage of time. They do not have bearing on the outcome. [ 30 ] It is both astonishing and alarming that either of these people recall the events of the evening with any clarity or accuracy. They do, however, recall those events. While there are certainly some discrepancies as I have noted, the versions are largely similar.

This speaks volumes about their capacity to consume alcohol and drugs. [ 31 ] J.A.C. said he did not know anyone under 16 to smoke marijuana. He said he did not do so at that age, and his friends did not when they were under 16. They certainly were not doing cocaine before they were 16. [ 32 ] The Crown argued that it strained credulity that J.A.C. did not know anyone who smoked marijuana or experimented with cocaine prior to the age of 16. I do not know the answer to that. I have no sense of whether that is realistic. I have no evidence to guide me in that respect.

It is not something on which I could take judicial notice. In any event, it was C.C.’s degree of comfort and familiarity with the drugs and her capacity to consume them that formed J.A.C.’s impression of her age. [ 33 ] C.C. was clear that she knew neither J.A.C. or G.C. before that night, had no shared Facebook or other social media contacts, and had no discussions about her age. [ 34 ] C.C. had a Tinder account. She had posted a picture of herself and claimed she was 22 in her profile.

J.A.C. had not seen the Tinder posting so the age stated is not relevant other than to depict how C.C. presented herself at that time. What is relevant is that the photo posted to her account was posted by the time these events transpired. J.A.C. testified this is what C.C. looked like that night. C.C. agreed she looked similar to the photo at that time but does not believe she looks 22 in it. She said she stated the same age on her Facebook account. This is how she presented herself, at least to the social media world.

[35] The picture appears to be of a young woman somewhere around the age of twenty. One cannot look at this photo and believethey are looking at a 15 year old girl, or a girl close to that age on either side. If C.C. did indeed then look the evident age depicted in herphoto, there was nothing in her appearance that should have alerted J.A.C. that she may be under the age of consent. Even at trial only ayear and a bit later, with less makeup and wearing age-indicative clothing, C.C. does not look a mere 16 years old. At the time of theoffence, she was about three inches shorter, and ten pounds heavier.

Otherwise, she appeared similar in court to what she looked like inthe photo. [36] J.A.C. testified that from her appearance, her manner of speech and her evident experience with drugs, he believed her to be theage of their mutual friends, being 18 or 19. It is tragic that J.A.C. sees C.C.’s level of experience with drugs to be consistent with that ofhis 18 or 19 year old peers. [37] C.C. is angry about how she was treated by these two young men after they gratified themselves. She has a right to be. Theybehaved themselves in the most debauched, licentious fashion.

The evening can only be cast in the harshest light, starting with these twomen drinking to intoxication and then driving across town afterward. They then picked up a female person looking for a ride, but only ifshe was interested in partying and maybe “hooking up”. [38] There is not one redeeming quality in that evidence. They all consumed a prodigious quantity of drugs and alcohol. J.A.C.denied performing oral sex on C.C. because he barely knew her, yet he had sexual intercourse with her. It is a staggering andincomprehensible distinction to make.

After having sex with her, J.A.C. then wanted to just get rid of her. It is a damning indictment ofhis personal code of ethics and conduct. However, he is not charged with moral bankruptcy. [39] The Crown and Defence are agreed on the test to establish a defence of honest but mistaken belief. I have been provided thefollowing cases: R. v. George, 2017 SCC 38 , [2017] S.C.J. No. 100 (SCC); R. v. Moise, [2016] S.J. No. 569 (SKCA); R. v.Chapman, [2016] O.J. No. 2218 (ONCA); R. v. Saliba, 2013 ONCA 661 , [2013] O.J. No. 5887 (ONCA); R. v. Dragos, 2012ONCA 538 , [2012] O.J. No. 3790 (ONCA); R. v.

Osborne, (NL CA), [1992] N.J. No. 312 (Nfld. CA); andR. v. H.L. 2017 ONSC 6205 , [2017] O.J. No. 5924 (ONSC). [40] The framework is set out by the Supreme Court of Canada in paragraph 8 of its George decision: The Crown must provebeyond a reasonable doubt either that 1) the accused person did not honestly believe the complainant was at least 16 (the subjectiveelement); or 2) did not take “all reasonable steps” to ascertain the complainant’s age (the objective element).

The court recognized thatdetermining what raises a reasonable doubt with respect to the objective element is driven by the facts and is highly contextual. Thecourt also recognized - citing Tannas with approval - that it may be reasonable in some cases to ask a partner’s age but it would be anerror to insist a reasonable person ask a partner’s age in every case.

However, this is qualified in the court’s reference to Dragos, alsowith approval, that “conversely, it would be an error to assert that a reasonable person would do no more than ask a partner’s age in everycase, given the commonly recognized motivation for young people to misrepresent their age …” [41] The court concludes the analytical framework with the following comment at paragraph 9: That said, at least one general rule may be recognized: the more reasonable an accused’s perception of the complainant’s age, the fewersteps reasonably required of them.

This follows inevitably from the phrasing of the provision (“all reasonable steps”) and reflects the jurisprudence (R. v. Osborne (1992), (NL CA), 17 C.R. (4th) 350 (Nfld.

C.A.) at para. 64: “Osborne”)), and academiccommentary (Manning, Mewett & Sankoff, at p. 1113). [42] The factors the court considered in George included the complainant’s physical appearance, behaviours and activities; the ageand appearance of the complainant’s social group; and the circumstances in which the complainant had been observed by the accused. [43] At paragraph 20 of the decision, the court affirmed that the reasonable steps must precede the sexual activity and then stated“but it does not follow that the evidence she tenders must also precede her sexual activity with C.D. Such an

interpretation conflates thefact to be proven with the evidence that may be used to prove it”. The court continued to say at paragraph 21: 21 When determining the relevance of evidence in this context, both its purpose and its timing must be considered.

Evidencedemonstrating steps taken after the sexual activity to ascertain a complainant's age -- for example, the accused person checking thecomplainant's photographic identification immediately after the sexual activity -- is irrelevant to the reasonable steps inquiry… However, evidence properly informing the credibility or reliability of any witness, even if that evidence arose after the sexual activity inquestion, may be considered by the trial judge.

Similarly, evidence demonstrating the reasonableness of the accused person's perceptionof the complainant's age before sexual contact is relevant to adjudicating the reasonableness of the steps taken by the accused person…,even if that evidence happens to arise after the sexual activity or was not known to the accused before the sexual activity… [44] J.A.C. is charged under. s. 151 of the Criminal Code. While there is no evidence or prior admission to this effect, Crownasserts that J.A.C. was 21 years of age at the time of the offence and Defence urges me to accept that as true.

The evidence establishesthat C.C. was 15 ½ years old at the time of the offence. The age difference is roughly six years. C.C. was approximately ½ year short ofthe age of consent. Close is not enough. There is no question that the defence afforded by s. 150.1(2.1) is not available to J.A.C. either,as the age difference was not less than five years. The

section I must address today is s. 150.1(4) which provides: It is not a defence to a charge under

section 151 or 152, subsection 160(3) or 173(2), or

section 271, 272 or 273 that the accused believedthat the complainant was 16 years of age or more at the time the offence is alleged to have been committed unless the accused took allreasonable steps to ascertain the age of the complainant. [45] It is well established that the belief held by the accused must be an honest belief. J.A.C. cited various factors in the evidencethat led to his honest but mistaken belief that C.C. was 16 years of age or more at the time of the offence. That evidence includedJ.A.C.’s observations of her physical appearance. C.C. was 5’6” and weighed 140 lbs. at the time of the offence.

Her apparent stage ofphysical development was consistent with an adult female. J.A.C. in more vulgar terms described her as having a “big butt” and “boobs”and that she looked developed.

[ 46 ] Certainly the Tinder photograph of C.C., which had been posted by the time of the incident, shows a female person considerably older than C.C.’s biological age. J.A.C. confirmed that she appeared to look like this on the night in question. C.C. did not dispute that she looked like her photograph at the time, but opined that she did not look 22 in that photo. There is also evidence that C.C. did not know whether she was wearing makeup that night but she was going to a party when she left home. J.H. testified that her daughter began wearing makeup in public at about 14 years of age.

J.A.C. testified that C.C. was wearing makeup. J.A.C.’s evidence is undisputed in any event that C.C. looked that night like she appeared in the photograph. [ 47 ] J.A.C. agreed that he was aware youths under 16 can wear makeup, develop breasts, and wear tight clothing; and that it was possible for a girl to look as old as C.C. but still be under 16. He was remarkably ignorant of the path of maturity of a female person, but he did recognize these things as possible. [ 48 ] Crown argued that the laws are old fashioned if they say it is alright to have sex with a girl who dresses provocatively and wears makeup.

If that were the law, I would agree. That is not what the law says, nor how the test is applied. [ 49 ] There is also the context of how J.A.C. met C.C. J.A.C. testified he believed C.C. was 18 because he picked her up from a house where there appeared to be a party inside at a time of year when there are a lot of grad parties going on.

While he agreed that he was aware girls under the age of 16 could be at a grad party, it had not been his experience that anyone other than graduates themselves attended those grad parties. [ 50 ] Crown argued that because J.A.C. testified there were a lot of grad parties going on at that time of year, and that he agreed there could be girls under the age of 16 at a grad party, he ought to have made further inquiry about her age. She argued that when he subsequently said no one who was not a graduate had attended the grad parties he went to, he was contradicting his earlier evidence.

Agreeing that people under the age of 16 might be at a grad party is not the same as saying they ever attended the grad parties he attended. I find no contradiction. [ 51 ] J.A.C. did not go into the party to determine who was there or to assess the age of the participants. Crown cites this as a reasonable step he ought to have taken while Defence claims it is just part of the reasonable factual matrix which led to J.A.C.’s honest but mistaken belief.

In the circumstances of this case, I do not find that J.A.C. - or any reasonable person - ought to have taken this step as part of his legal obligation. [ 52 ] Setting the context for J.A.C.’s beliefs, he had been contacted by a person whom he knew to be 18 and graduating. Crown argued that since J.A.C. believed B.B. was graduating that year, this could place him closer to 17 or 18.

I have no evidence of the average age of a graduate but accept that they would generally lie somewhere on that line between 17 years old for the outside youngest and 19 years old for the outside oldest. [ 53 ] On that point, Defence argued that even if I accept J.A.C. believed C.C. was 17 or 18 years old, it does not place him on the “cusp of illegal territory”, and as such did not warrant J.A.C. making a further inquiry. He referred to the various cases that were provided to the court where the age difference ranged between 5 and 42 years.

Only in Osborne is the age difference similar to the one in the case before me. I agree that for people at the ages of J.A.C. and C.C., 17 or 18 would not lie on the cusp of illegal territory. [ 54 ] There is no issue that J.A.C. knew B.B. and that he was about to graduate from high school. Nothing in B.B.’s communications forewarned J.A.C. that C.C. would be under aged. Quite the contrary. B.B. evidently communicated to J.A.C. that C.C. had made advances toward him only the week prior. It is irrelevant whether this is true.

It goes only to establish the factors J.A.C. would have at hand that night. [ 55 ] Another important factor is the context in which J.A.C. met C.C. He met her outside of a house party around 3:30 in the morning - not a time that one would expect a 15 year old girl to be at a party. She readily and comfortably got into J.A.C.’s vehicle, snorted cocaine with him and drove around for a period of time before going to his parents’ home in [omitted for publication]. She had given a deadline time to be home of 8:00 in the morning, which is also not indicative of a 15 year old girl.

C.C. believes she may have told them that it was a curfew. J.A.C. is firm that she did not mention a curfew or sneaking out of her parents’ home. He assumed that she needed to be home in order to get ready for work. [ 56 ] Both C.C. and J.A.C. gave evidence which clearly showed C.C. was not only comfortable with the language of drug use but with the use of those drugs as well. She was completely at ease when asking if drugs were available and when helping herself to them.

To a reasonable person, this would not suggest a person of as young years as C.C., despite what these courts may see to the contrary from time to time. [ 57 ] Whether J.A.C. removed C.C.’s leggings or whether she removed them herself, C.C. was also comfortable being semi-clad around two young men she did not know. She testified that they flirted after the leggings came off. She asked to use the shower and engaged in sexual activities with G.C. while in that shower. She did not dress herself back in all of her clothing once she was finished the shower.

This all indicates a person more mature than C.C.’s biological age. [ 58 ] After G.C. left and J.A.C. was preparing drinks for himself and C.C., she asked him colloquially if they were going to have sexual intercourse. This was also a more adult approach than a reasonable person would expect from a 15 year old. [ 59 ] Crown argued that J.A.C.’s evidence was delivered in a manner that was flippant and unconcerned, mirroring his attitude toward determining the age of a girl with whom he was about to have sexual contact.

She argued J.A.C. did not take the necessary steps to ascertain C.C.’s age because he was more concerned about his sexual gratification. This was exemplified when he agreed that it was fair to say he was not going to pick up C.C. if she was not going to “put out”. [ 60 ] Crown argued that J.A.C. could not have an honest but mistaken belief that the complainant was over 16 because he simply did not care how old she was. It does not go without saying that because he was indifferent to C.C. or was largely focused on his gratification that he was indifferent to her age.

I find he did care how old his sexual partners were albeit out of a sense of self- preservation rather than any sense of protecting the vulnerable.

[ 61 ] While the Crown accused J.A.C. of being flippant and unconcerned, J.A.C.’s evidence was unequivocal that if he had known C.C. was under 16 years of age, he would not have been sexual with her. [ 62 ] In considering the context of both parts of the test, Defence put it most succinctly in his argument: The complainant willingly got into a car with two adult males she had never met before, drove with them to a house she had never been to before, partied there with them in the early hours of the morning for a period of several hours, while engaging in adult behaviour such as drinking alcohol, snorting cocaine and smoking cannabis before willingly engaging in sexual activity with both of them. [ 63 ] I agree this is the behaviour of an adult, not a youth.

C.C. consumed a considerable amount of alcohol and controlled drugs during the course of the evening, and did so with an attitude of adult confidence. She presented as an experienced cocaine and cannabis user. She was comfortable with her sexuality. [ 64 ] There are many - even most - occasions when a 5 or 6 year age difference is evident from the context of the situation or from the appearance of the parties, but this is not one of those cases. [ 65 ] At the commencement of this judgment, I reflected how disheartening this case is.

These young people are living high risk lives without regard for their personal safety or the sanctity of their community’s standards. It is said that it takes a village to raise a child. In this case, the village has failed both of these young people. This vulnerable young lady is entitled to the protection of the law. That is why the law demands she be sixteen before she is legally able to consent to sexual activity with an adult, and why it lies with that adult to consider whether she is legally able to consent. C.C. is both blessed and cursed with an appearance older than her biological one.

On this night, it was a curse. [ 66 ] J.A.C. was entitled to be better educated by his community about consent, his legal obligations to the vulnerable in priority to his self-preservation, and his perspectives on women generally.

Somewhere along the way, this has not been fully and meaningfully communicated. [ 67 ] They were both entitled to be better informed about the dangers posed by drugs and excessive alcohol consumption and the tragedies that befall those who abuse these substances. [ 68 ] From their excessive drinking, to illegal drugs, to opportunistic sexual activity, these young people do not have a sense of self protection or mortality. Both are developing dysfunctional attitudes toward drugs, alcohol, and sexuality and, most importantly, J.A.C. is developing a dysfunctional attitude toward women.

This is not surprising, given that some of these attitudes persist in some parts of society as well. [ 69 ] This was reflected disturbingly in comments coming from both Crown and Defence with respect to C.C.’s attire. J.A.C. referred to C.C. wearing makeup and tight, revealing clothing as forming part of the basis for some decisions he made about her: she was a mature female, she was willing to party, and she was open to casual sexual encounters.

It boggles the mind that such primitive views still exist, and that they exist in the attitude of someone as young as J.A.C. [ 70 ] Crown described this same attire as dressing provocatively - not to cast judgment on C.C. but to criticize the law if it failed to protect her if she dressed in this fashion. [ 71 ] Makeup and attire are useful factors when objectively considering the factual matrix surrounding assessment of age and meeting legal obligations, but a body proud woman or girl who wears form-fitting clothing or clothing that bares shoulders, cleavage, mid-riffs or thighs is in no way signalling that she is provocative, promiscuous, on the make, or willing to engage in casual sexual encounters with any lascivious male - or female - on the prowl. [ 72 ] J.A.C. has developed a cavalier and self-gratifying attitude toward the women in his community.

His attitude toward women who engage in prior sexual encounters, have hickeys and wear form-fitting clothing is anti-social and out-dated. Even so, these are moral attitudes for society to correct, not criminal issues for the court to punish. [ 73 ] I find that there is an air of reality to J.A.C.’s defence of honest but mistaken belief.

I find that J.A.C. believed C.C. was 18 or 19 years old, that it was reasonable in the circumstances to form such an honest but mistaken belief, and that in the circumstances there was no requirement that J.A.C. take any further steps to ascertain C.C.’s age. [ 74 ] There was nothing in C.C.’s appearance, her demeanour, her conversation or the context of the evening that should have compelled J.A.C. or any reasonable person to make further inquiry about her age. I acquit him of the charge. _______________________________ S.D. Frame Provincial Court Judge