R v. Mr. E., 2011 NUCJ 35

nunavuumi iqkaqtuijikkut NUNAVUT COURT OF JUSTICE La Cour de justice du Nunavut Citation: R v. Mr. E., 2011 NUCJ 35 Date: 20111222 Docket: 21-09-203-1 Registry: Iqaluit Crown: Her Majesty the Queen -and- Accused: Mr. E. ________________________________________________________________________ Before: The Honourable Mr. Justice N. Sharkey Counsel (Crown): F. Alibhai Counsel (Accused): L. Stevens, Q.C. Location Heard: Cambridge Bay, Nunavut Date Heard: November 2-3, 2011 Matters: Criminal Code , s 151, 271 REASONS FOR JUDGMENT (NOTE: This document may have been edited for publication) Restriction on Publication: By court order made under

section 486.4 of the Criminal Code , “any information that could identify the complainant or a witness shall not be published in any document or broadcast or transmitted in any way.”

Amended Decision: An amended decision was issued on January 11, 2012; the corrections have been made to the text and the amendment is appended to this judgment. I. INTRODUCTION [ 1 ] The accused [Mr. E.] is charged with 2 sexual offences involving a young girl, the complainant, D.A. The only evidence in the case was the testimony of the complainant and the testimony of the accused. [ 2 ] The accused and complainant engaged in 3 acts of consensual intercourse between December of 2008 and August of 2009.

The complainant's best memory is that there were 4 such incidents, but I accept the testimony of the accused that the two of them engaged in sexual intercourse on 3 occasions. [ 3 ] The complainant, D.A., was 12 years old at the time of the incidents. The accused, Mr. E., was 19 years old at the time of their first encounter and had turned 20 by the time of the last incident. [ 4 ] In this case, the complainant, D.A., did in fact willingly engage in sexual activity with the accused; there is no dispute between the Prosecution and Defence about this.

It is also clear it was the complainant, D.A., who initiated sexual contact with the accused.

It was her idea. [ 5 ] The Criminal Code does not, however—because of the complainant's age—recognize her willing participation in the sexual activity as a valid consent which would otherwise provide the accused with a defence to the charge by allowing him to argue that the activity was lawful. [ 6 ] The Criminal Code provisions which prohibit sexual activity with children under a certain age do so, of course, to protect children— both from sexual predators as well as from their own sexual indiscretion. [ 7 ] The first charge — for sexual interference — as it is presently worded, alleges that the accused touched a person under the age of 14, namely, the complainant, D.A., for a sexual purpose contrary to s. 151 of the Criminal Code (“Code”). [ 8 ] The second charge alleges the offence of sexual assault contrary to s. 271 of the Code .

This charge is silent as to the prohibited age of a complainant for which an accused faces criminal liability. [ 9 ] Approximately 6 months before this sexual activity between the accused and the complainant, Parliament changed the law regarding the 'age of consent' in relation to the charges which the accused faces—raising it from 14 to 16 years. [ 10 ] Since, however, the complainant, D.A, was 12 years old at the time of the sexual activity, this change in the law which raised the age of consent does not affect the prospective criminal liability of the accused for being sexually involved with such a young complainant.

His liability may be limited because of the rule against multiple convictions, but otherwise it is the age of the complainant which governs. [ 11 ] Mr. E's defence to these charges is this: He says he believed the complainant, D.A, was not under the legal age of consent.

He says he believed she was 16. [ 12 ] The Code says, however, in s. 150.1(4) that it is not a defence to these types of sexual charges that the accused believed the complainant was 16 years of age or more at the time the offence is alleged to have been committed unless the accused took all reasonable steps to ascertain the age of the complainant.

[13] The law then allows for a very limited defence based on an honest, but mistaken, belief by the accused about the age of thecomplainant. [14] Parliament has decided that sexual activity on the part of a 19-year-old with a 12-year-old is a crime, notwithstanding that theencounter may be consensual. The only defence is a belief that the complainant-victim was 16 years old, or more.

Parliament requires,however, more than simply an honest belief; it requires a belief resulting from the taking of all reasonable steps to ascertain the age ofthe complainant. [15] The issue in this case is whether this limited defence of honest but mistaken belief, as allowed by s. 150.1(4) of the Criminal Code,is available to Mr. E. II. THE LAW A.

The limited defence of honest but mistaken belief respecting the age of a young complainant [16] Courts across Canada have considered this question of what may — in an individual case — actually constitute "all reasonablesteps to ascertain the age of the complainant". [17] The Newfoundland case of R v Osborne (1992), (NL CA), 17 CR (4th) 350, [1992] NJ No 312 (Nfld SC (AD))[Osborne], is one of the leading authorities. The accused, Osborne, was 19 at the time the events took place.

He went to an apartmentwhere a group of young people were partying and had a sexual encounter, not involving intercourse, with the complainant who was 13.This incident took place in 1989, when the legal age of consent was 14. The complainant and a friend, also a girl under 14, had recentlyrun away from home and were staying at the apartment. There were five females and four males at the party; most of the males were intheir late teens, and two were 20 years old. The complainant and the other girls lied about their ages because they did not want to beconsidered "jailbait" by the males in the room.

During the early part of the evening—and before the accused arrived at the party—thecomplainant said she was 17, nearly 18. Some of the other girls said they were 16 or 17. When the accused joined the party he asked thegirls their ages and got the same information as had been communicated earlier.

The complainant and the accused had a brief sexual, andconsensual, encounter in a back room; sometime afterwards the complainant told a friend about the encounter, who, in turn, told thecomplainant's mother. [18] In writing for the Court in Osborne at para 62, Goodridge CJ made the following observation about the limited defence of mistakenbelief as to the age of a complainant available under s. 150.1(4): Parliament requires more than an honest belief; it requires a belief resulting from the 'taking of all reasonable steps to ascertain the age ofthe complainant... It is more than a casual requirement.

There must be an earnest inquiry or some compelling factor that obviates theneed for an inquiry. An accused person can only discharge the requirement by showing what steps he took and that these steps were allthat could be reasonably required of him in the circumstances... [Emphasis added] [19] What constitutes "all reasonable steps" will, of course, depend on the circumstances of each case.

Sometimes it will not take much:for example, it has been suggested that in some circumstances the only reasonable step a person would be required to take to ascertainthe age of another person would simply be to look at him or her (Osborne, supra at para 41 with reference to R v Hayes, [1991] AJ No1232, 12 WCB (2nd) 457 (Alta QB), Mackenzie J [Hayes]). [20] The rub, or difficulty, comes in the individual case in figuring out what actually amounts to the taking of all reasonable steps toascertain the age of the complainant.

If an accused takes some steps to ascertain the age of the complainant, it might be said that he couldhave taken more steps. [21] For example, in Osborne, Goodridge CJ said that there were other steps that the accused, Osborne, might have taken, but thequestion is whether such steps were reasonably required — not whether he could have taken more steps.

[22] Goodridge CJ was of the view that the trial judge — who had heard the complainant, her friends, and the accused all testify —thought no more steps were necessary, and it was the trial judge who would have a better feeling for the prevailing circumstances thanwould be apparent to an appellate court. [23] Goodridge CJ noted that the trial judge had stated the basic facts—that the complainant said she was 17, that the accused assessedher appearance—and upon that basis and "in all the circumstances of the party," concluded that the accused took all reasonable steps toascertain the age of the complainant (Osborne, supra at paras 64 and 65). [24] This is consistent with the often quoted proposition put forth by Goodridge CJ, that reasonable steps to ascertain age involve an"earnest inquiry," or "some other compelling factor" which would obviate the need for such an inquiry (Osborne, supra at para 62). [25] There is, therefore, an objective element built into the defence of honest but mistaken belief in a complainant's age.

Evidence as tothe accused's state of mind is relevant but not conclusive, because, as pointed out by the court in Hayes, "an accused may believe that heor she has taken all reasonable steps only to find that the trial judge or jury may find differently." (Quintilla, supra at para 113, Belzil J). [26] The Supreme Court of Canada has said s. 150.1(4) allows a "due diligence" defence if the accused can show that he or she took allreasonable steps to ascertain the age of the complainant (R v Nguyen, (SCC), [1990] 2 SCR 906, 59 CCC (3d) 161).Thus s. 150.1(4) allows a defence to a morally innocent person who has taken reasonable steps to ascertain the complainant's age. [27] Obviously, an accused who is willfully blind to a young person's age or negligent with respect to ascertaining their age will not beallowed to plead this defence of honest but mistaken belief about the age of a complainant.

There must be evidence of an earnest efforton the part of the accused to ascertain the complainant's age, or compelling circumstances which would obviate the need for an inquiry. [28] However, it is not up to the accused to prove on a balance of probabilities that the steps he took were all that was reasonablyrequired. There is not a persuasive burden on the accused.

For the defence to succeed, it is only necessary that there be evidence which, iftrue, would entitle the accused to an acquittal. [29] The accused has only an evidential burden to produce evidence, or to point to evidence which is capable of supporting hiscontention that he held an honest but mistaken belief about the complainant's age, and that he took all reasonable steps to ascertain herage under the circumstances. [30] The authorities are clear that if the accused is able to identify such evidence, it is up to the Crown to show beyond a reasonabledoubt that the accused did not take all reasonable steps to ascertain the complainant's age, or that he did not have an honest belief that thecomplainant was of legal age (See e.g.

Osborne, supra at para 61). [31] In considering whether the Crown has proven beyond a reasonable doubt that the accused has not taken all reasonable steps toascertain the complainant's age, the Court must ask what steps would have been reasonable for the accused to have taken in thecircumstances. [32] As suggested in Hayes, supra, sometimes — and presumably on rare occasions — a visual observation alone will suffice.

Whetherfurther steps would be reasonable will depend upon the apparent indicia of the complainant's age: the accused's knowledge of thecomplainant's physical appearance and behaviour; the ages and appearances of others in whose company the complainant is found; theactivities engaged in by the complainant individually, or as part of a group; and the times, places, and other circumstances in which thecomplainant and her conduct are observed by the accused.

The Court should ask whether, looking at these indicia, a reasonable personwould believe that the complainant was 16 years of age or more without further inquiry and, if not, what further steps a reasonableperson would take in the circumstances to ascertain her age (R v Quintanilla (1999), 1999 ABQB 769 , 251 AR 59, 28 CR (5th)186 (Alta QB) at para 113, Belzil J). [33] The Nunavut case of R v Kamookak (2010), [unreported] 27-10-171 (Nu CT J) [Kamookak], Johnson J, is an instructive exampleof the proper application of this burden of proof.

[34] The female complainant in Koomookak was 13 years old and the male accused was 27. The accused was visiting Community Xfrom a nearby community and the two met in the street; they did not know each other and both had been drinking. The complainantfollowed the accused back to a local hotel; she told the accused she was 18 or 19 and produced a condom before they had consensualsexual intercourse. The Crown tendered a photograph of the complainant taken about 3 months after the sexual encounter. The accuseddid not testify. [35] Johnson J stated that "The defence relies on R. v. Osborne [above] and R. v.

L.T.P. ) to argue the accused doesnot have to prove that he took all reasonable steps to ascertain the age of the complainant.

He is only required to establish that there issome evidence that, if true, would entitle the accused to an acquittal” (Koomookak, supra at 3). [36] Johnson J noted that the complainant told the accused she was 18 or 19, that her photo was capable of putting her in that age group,and that that she was not acting like a 13-year-old because of her drunkenness in the street and her experience in sexual matters. [37] In acquitting the accused, Johnson J said, "I am satisfied there is evidence to raise a reasonable doubt about whether the accusedtook all reasonable steps to ascertain the age of the complainant.

The Crown has failed to overcome the reasonable doubt raised by theaccused" (Koomookak, supra at 5). B. The evidence at trial [38] The complainant, D.A., gave her in-chief evidence by way of a video recording which was made on August 8, 2009, shortly afterthe last of the 3 incidents, at the Community X RCMP detachment. [39] The video is an interview of the complainant conducted by the investigating officer in the case. It is not a particularly high qualityvideo in terms of either audio or picture.

The audio is difficult to decipher and it was necessary for both Counsel and the Court toreference a written transcript in order to follow the evidence.

Similarly, the picture quality is not particularly useful in that we do not geta good close-up view of the complainant — instead, we see the complainant from across the room and from up high, on video footagerecorded by a wall mounted camera. [40] The complainant, who was 14 years old when she gave evidence, was reluctant to testify against the accused but quite forthcomingin acknowledging that it was she who contacted him and invited him to have sex, not the other way around. [41] The complainant was forthcoming as well — both in testimony as well as during the video interview with police — about the factthat around the time she was having sex with Mr.

E., she was also sexually involved with other older boys or young men around his age.She told the investigating officer that "most guys think I'm 18." [42] The complainant and accused are both residents of Community X — a community of about 1,800 people and they had never metbefore the complainant initiated contact with the accused online. [43] The complainant knew who the accused was through her best friend — and the accused's niece — “A”, a girl slightly older than thecomplainant. But the complainant had never encountered the accused when she was with “A”. The complainant also knew a fair bitabout Mr.

E.'s family — for example who his parents and sisters were. [44] The accused, on the other hand, knew the complainant only by sight. He did not know her family or who her parents were. He hadseen her on the street, around town, sometimes under the influence of alcohol, and always with an older crowd—people, mostly males,his own age. A buddy of Mr. E. had told him that the complainant "got around." [45] It was the complainant who first contacted the accused by way of computer, online, through MSN Messenger; she introducedherself, asked how he was doing, and engaged him in other unremarkable conversation.

[ 46 ] She also made it clear that she wanted to come over to his place and get together with him. She was quite "bossy" about insisting that they get together. As well, during this first online contact the complainant told the accused how old she was. [ 47 ] She told him, online, that she was 16. [ 48 ] The accused, Mr. E., was reluctant, initially, to have her come over and said no to the prospect because he didn't know her that well. [ 49 ] Mr. E. was living with his adult sister D.J. and her kids, at the time. [ 50 ] Shortly after this first online contact, the complainant, D.A., saw the accused, Mr.

E., on the street and waved to him. And shortly after this 'wave' on the street she simply showed up at his place, in the early morning hours — and when no one else was home — uninvited, for sex. [ 51 ] This would be in December of 2008. The door was unlocked and the complainant just walked in. Mr. E. was upstairs at the time and heard her announce herself from downstairs; he had just gotten home and was sobering up after a night of drinking with his friends. [ 52 ] He came downstairs and the two of them engaged in some small talk. Once again — and both D.A. and Mr. E. say this — she was quite bossy with Mr.

E., inviting and instructing him to go upstairs for sex. They then went upstairs and had sexual intercourse. [ 53 ] The complainant testified that a condom was used only on this first occasion but not on any other. I accept, however, and for what it's worth, that a condom was used each time, as the accused said in his evidence. [ 54 ] About a month or so after this first encounter, the complainant contacted the accused again online, by way of MSN Messenger. [ 55 ] Once again, the complainant was insistent with regard to coming over to the accused's house. And once again, the accused, Mr.

E., was initially reluctant to have her over — this time, he said he had heard from people that she had been partying or drinking quite a bit so he didn't really want her over. [ 56 ] Nonetheless, shortly afterwards, she did come over, a little tipsy according to Mr. E. — and again, when no one was home. And, once again, the two had sexual intercourse. [ 57 ] The third and last time they had sex was in the summer of 2009, likely in late July or early August, shortly before the accused, Mr. E., was arrested.

On this occasion, the complainant, D.A., had telephoned ahead of time insisting that she wanted to come over, and Mr. E. agreed that she could visit. [ 58 ] Each of these three sexual encounters was brief, and each time the complainant, D.A., initiated the sex — sometimes being "bossy" about it. There was little said between them, even about when to have sex again, and certainly nothing about a relationship. [ 59 ] Over the course of these 3 sexual encounters, the accused, Mr.

E., would see the complainant, D.A. from time to time at parties, as he said "hanging out with people my age...19, 20". [ 60 ] The accused, Mr. E., testified that he believed the complainant, D.A., was 16. He said that she told him that she was 16 and that he believed her. Mr. E.'s lawyer asked him the question:"how old did she look to you?" Mr. E. answered, quite simply,"16, 17." [ 61 ] Mr. E. told his lawyer in court that there was nothing that caused him to doubt D.A. was 16. Mr. E. said that some of the people he

saw the complainant hang out with "had moustaches, they were buying bottles, they were out drinking". [ 62 ] Mr. E.'s lawyer asked the question: "Would you have had sex with her if you'd known she was 12?" He answered: "If I knew right then and there she was 12, I wouldn't—we wouldn't even come to talk." [ 63 ] Mr.

E. said that he learned the complainant's true age only when he was arrested by the police. [ 64 ] It is clear that the subject of age only came up once between the accused and the complainant, and that that was when D.A. made her first online contact in late 2008 and told him online that she was 16 years old. The accused never asked her how old she was, nor did they discuss the subject of her age. [ 65 ] And, when cross-examined by the Crown Mr. E. readily acknowledged this; that, for example, he never asked D.A. about her age at his house, or on any of the occasions when they had sex. [ 66 ] Mr.

E. also acknowledged under cross-examination that some kids look younger than they really are, and some kids pretend to be older than they really are. He also agreed that sometimes teenagers will "fudge" about their age—for example say they are 16 when they are, in fact, "almost" 16. Mr.

E. also agreed with the Crown that he never 'pushed' the complainant about her age, for example by asking whether she was “really 16." [ 67 ] The accused maintained that the person he saw on the video which was played in court and who he thought was 16 or 17, looked the same as the person he saw when he met her and was having sex with her. [ 68 ] I pause here to comment on the video: it is not particularly helpful in determining how old the complainant may have looked in August of 2009 — some 8 months after the first of the 3 sexual encounters, and likely a month after the last encounter. [ 69 ] There are cases in which such visual or photographic evidence of the complainant at the relevant time can be helpful to the Court in assessing a complainant's age and, in turn, assessing what steps one would reasonably expect an accused person to take in order to ascertain the complainant's age.

But this is also an area where judges must exercise caution with regard to their own subjective views. [ 70 ] In this case, however, I agree with Defence counsel, Ms. Stevens, that the video certainly does not portray, as Counsel puts it, "the body of a child". [ 71 ] Ms.

Stevens asked the complainant whether she had developed breasts back in late 2008, and D.A. answered that yes, she had. [ 72 ] I agree, therefore, that the video does portray a girl who had the anatomical development of breasts consistent with teenage years, and that this is something which would have been obvious to the accused as a visual impression. [ 73 ] Beyond that, however, the actual video portrayal is not particularly enlightening. [ 74 ] In cross-examination, the complainant readily acknowledged that she not only initiated the sexual contact with the accused, but was persistent in pursing it and "bossy" in directing it. [ 75 ] She said that she was drinking alcohol quite a bit between December of 2008 and August 2009, and that she was doing this out on the street where she could be seen.

She said she did have some friends her own age, but that she hung out "a lot" with guys who were over 18.

[ 76 ] The complainant reaffirmed what she had said to the investigating officer on the video that "most guys" thought she was 18. As noted earlier, she said she had developed breasts and admitted that she actually tried to present herself to these young men as 18. III. ANALYSIS A. Position of the parties (i). Defence [ 77 ] The Defence position is clear: Counsel says that there is more than an air of reality to Mr.

E.'s claim that he had an honest but mistaken belief that the complainant, D.A., was 16; and further, that the Crown is unable to prove beyond a reasonable doubt that the accused did not take all reasonable steps, under the circumstances as they presented to him, to ascertain the age of the complainant. [ 78 ] First, says Counsel, the complainant told the accused that she was 16 and he believed her.

Counsel notes that there is no visual evidence to contradict his visual impression at the time, for example, no photographs taken of the complainant at the relevant time to assist the Court. [ 79 ] Counsel says further that there is no evidence to suggest that her client was willfully blind to the complainant's age, or even disinterested or negligent with regard to what it was. [ 80 ] Counsel says that there is no evidence of any so-called red flags which would alert the accused and trigger a requirement that he do something to determine her age. [ 81 ] In fact, Counsel argues, all signals or flags point or fly in the opposite direction: for example, the accused had never seen the complainant at or near a school, but had seen her out in the street drinking and hanging out with older males his own age or older.

Counsel cites the complainant's own evidence that she wanted people to believe she was older than she was, and suggests that this makes it more likely that she would appear to the accused to be what she told him she was, namely, 16.

Counsel cites the complainant's choice of an "older" lifestyle, which, accompanied by an aggressive sexual pursuit of the accused is more consistent with the behaviour of an older person than a younger person. [ 82 ] Counsel says that it is easy, after the fact, when one discovers the true age of a complainant, to suggest that "something more could have been done" by an accused to ascertain her age. Counsel suggests, however, that this argument is problematic since s. 150.1(4) requires only that the accused take all reasonable steps to ascertain the complainant's age under the circumstances.

Counsel argues that to suggest "more" could have been done by the accused is not relevant to a proper application of the burden of proof—the accused is only required to establish that there is some evidence that, if true, would entitle him to an acquittal. It is not necessary that these facts be true, only that they raise a reasonable doubt. (ii). Crown [ 83 ] The Crown's position is also clear.

The Crown suggests that once it is established that a complainant is under the legal age of consent then it must (or would need to be) obvious — either from the appearance of the complainant or some other outstanding obvious features in the case — that there would be no need for the accused to make an inquiry about the complainant's age. [ 84 ] There would need to be, as Crown counsel has put it, a constellation of factors at work to show that, obviously, there was no need for an inquiry about the age of the complainant.

And, says Crown counsel, absent such obvious circumstances which would obviate the need for such inquiry, the law is clear that the defence of honest but mistaken belief is only available where the defendant can show that he took all reasonable steps to ascertain the age of the complainant. [ 85 ] The Crown says further that in assessing whether an accused took all reasonable steps required to ascertain the age of the

complainant, the Court must look at the age discrepancy between the complainant and the accused.

I pause to note that this argument is supported by common sense as well as legal authority — namely, the older or more mature the accused, the more the law ought to expect of that accused in terms of assessing the situation when contemplating something as intimate as sexual relations with a young person who might be under the legal age of consent. [ 86 ] In this case, the Crown says that there is no constellation of factors which would obviate the need for the accused to inquire into the complainant's age; indeed, as required by law, to take all reasonable steps to ascertain her age. [ 87 ] The Crown says that just because somebody tells you that they are 16 years old, does not make it obvious that they are 16.

This is especially true, says the Crown, in a small hamlet such as Community X. [ 88 ] The Crown notes that s. 150.1(4) puts a positive obligation on the accused, and that it is not sufficient for an accused to say "she told me that was her age" and, as the Crown suggests, just "end it there". [ 89 ] The Crown emphasizes the need for the accused to make an earnest inquiry to ascertain the age of a complainant, and that the accused can only discharge this requirement by showing (1) what steps he took, and (2) that these steps were all that could reasonably be required of him in the circumstances. [ 90 ] Moreover, the Crown says that that there were sufficient red flags to alert a 19-year-old to question the complainant's age — especially, as the Crown suggests, where the accused acknowledged that teenagers sometimes lie about their age, and where, as here, the complainant said she was precisely 16, and not, for example, 16 and 1/2. [ 91 ] The Crown says the accused knew who the complainant was before he even met her because he had heard people talk about her.

The Crown notes that the accused readily acknowledged that he could have made inquiries to find out, for example, who her family was. [ 92 ] The Crown suggests that under these circumstances, as a 19 and 20-year-old, he should have been alert enough to make some inquiry about the complainant's age rather than simply to accept her word. The Crown suggests that the fact the complainant may be in the habit of hanging out with an older group of people should not relieve the accused from making an earnest inquiry to ascertain her age in a community where it would be easy to do so. IV.

CONCLUSION [ 93 ] The complainant repeatedly pursued the accused as the target of her sexual interest. She did so within a context — and that context was one where she presented herself to the accused as well as others as someone much older than her real age.

Moreover, she was confident that such a presentation was successful as is evidenced by her statement to the investigating officer (on the video) that "most guys think I'm 18." [ 94 ] It is within this context that she told the accused she was 16 when she first contacted him online. [ 95 ] Further, and before the complainant even made contact with him online, Mr. E. had seen her 'operate' within this context, out on the street, sometimes under the influence of alcohol, exhibiting the behaviour of a girl much older than her years by associating with males around Mr.

E.'s age. [ 96 ] After the complainant first had sex with the accused, and during the course of their sexual encounters, she continued to hang around with older people and present herself to the world as an older person. And the accused occasionally saw her at parties, hanging out with young men who had moustaches; males his own age; males who drank beer. One of Mr. E.'s buddies had mentioned to him that the complainant "got around". This was her social milieu, and it was in this context that the accused formed his initial impressions of the complainant.

[ 97 ] And so, it is within this context, where the complainant made it a lifestyle choice to present herself to and habitually socialize with older people as an older person herself, that the Court must assess whether there is traction to the defence which Mr. E. advances — that of an honest but mistaken belief about the complainant's age. [ 98 ] With respect, I find it hard to accept the Crown's suggestion that Mr. E. should have done more than simply accept the complainant's word that she was 16 — that Mr.

E. should have 'pushed' D.A. about her age by probing as to whether she really was 16. [ 99 ] I am persuaded to the contrary by Counsel's argument that it is simply not fruitful to insist that Mr. E. should have asked the complainant about her age. As counsel suggests, rhetorically, what would be gained if her client were to ask the complainant about her age? [ 100 ] Surely, as Counsel says, given the complainant's persistent interest in sex, she would have continued to lie — as she had lied to other males about her age.

And, as Counsel suggests, given her lifestyle associations, why would the accused have any reason to doubt her? She was obviously accomplished at presenting herself as older and it she who was pursuing the accused, not the other way around. [ 101 ] Similarly, and again with respect, I understand the Crown's position that Mr.

E. could have easily made inquiries about the complainant's age in a small town such as Community X —where he knew so many people and where he had seen the complainant before he met her. [ 102 ] These aspects of the Crown's argument are true, to be sure, but they beg the very question at issue: the question is not the ease with which such inquiries could have been made, but rather whether such enquiries were necessary given the situation as it presented itself to the accused. [ 103 ] I am, frankly, more persuaded by the Defence argument that because the complainant wanted people to believe she was older than she really was, and because she believed her efforts in this regard were effective, it is much more likely she appeared to the accused to be the age she told him she was. [ 104 ] Respectfully, I do not share the Crown's skepticism respecting the accused's testimony: under cross-examination the accused was not evasive at all and quite forthcoming in acknowledging that he could have asked someone about the complainant's age, but he was equally unshaken in his assertion that he had believed her to be 16. [ 105 ] I accept his testimony that when she contacted him online, "I believed everything she told me." This, of course, included the fact that she told him she was 16. [ 106 ] In my view this case parallels, somewhat, the facts in Osborne, supra.

It is true that the accused, Osborne, unlike Mr. E., did ask the complainant how old she was. However, Osborne was not present at the party, initially, when the complainant had made the unprompted announcement that she was "17, nearly 18." [ 107 ] I find that this accused had an honest belief that the complainant was 16 years old.

I also find that the overall situation which presented itself to the accused — the complaint's social and party associations with males around his own age, together with her confidence and ability in passing herself off as an older girl to the accused and others — was such that a reasonable person, viewing the situation objectively, would conclude that the accused was entitled to rely upon the complainant's statement about her age. [ 108 ] In my view the factors which I have articulated respecting the complainant's activities, associations, and her method of presenting herself to the world were sufficiently compelling to obviate the need for further inquiry on the part of the accused to ascertain the age of this complainant. [ 109 ] The accused has laid the foundation — at the evidentiary standard of proof required — for the defence of an honest but mistaken belief in the complainant's age which has not been overcome by the Crown.

I am left with a reasonable doubt about his guilt. The accused is accordingly entitled to an acquittal.

[ 110 ] Finally, I would be remiss if I did not acknowledge the fine arguments of both Crown and Defence Counsel in this case. In addition, and especially since cases involving the issue of mistaken belief in age require such a detailed application of the law to the facts, I thank both Counsel for the many instructive authorities provided. Dated at the City of Iqaluit this 22nd day of December, 2011 ___________________ Justice N. Sharkey Nunavut Court of Justice ______________________________________________________ Amendment of the Reasons for Judgment Reserved of The Honourable Mr.

Justice Sharkey _______________________________________________________ In paragraph [68] –the final sentence has been changed from “and likely a month before the last encounter” to “and likely a month after the last encounter”. Please replace the amended pages in your hard copy of the judgment.