R v DS, 2023 ABKB 154

Court of King’s Bench of Alberta Citation: R v DS, 2023 ABKB 154 Date: 20230315 Docket: 210756920Q1 Registry: Edmonton Between: His Majesty the King Crown - and - DS Accused Restriction on Publication Identification Ban – See the Criminal Code ,

section 486.4 . By Court Order, information that could identify the accused, victim and any witness must not be published, broadcast, or transmitted in any way. NOTE: Identifying information has been removed from this judgment to comply with the ban so that it may be published. _______________________________________________________ Memorandum of Decision of the Honourable Justice M. J. Lema _______________________________________________________ I. Introduction [ 1 ] Did DS, 19 and 20 years old during the key year, take “all reasonable steps” to verify the age of HK, 14 and 15 during that year, before having sexual relations with her?

[ 2 ] Per DS, HK represented herself throughout as 18 and appeared to be that old (or at least 16), and nothing in the circumstances raised an age red flag. He believed she was 18 throughout their relationship and took all reasonable age-verification steps in the circumstances. [ 3 ] Per HK, while acknowledging initial “18” representations, she disclosed her true age (14) in spring 2018 and her summer (turning 15) birthday i.e. DS knew she was initially 14 and then 15 during their time together.

Per the Crown, DS knew she was under 16 or, in any case, he failed to take all reasonable steps to verify her age. [ 4 ] I find that DS believed HK was 18 throughout and that he took all reasonable steps required in these circumstances. II. Applicable law [ 5 ] The parties disagreed about the proper

interpretation of ss. 150.1(4) (reproduced below), which provides a mistake-of-age defence. [ 6 ] The Crown argued that R v George , 2017 SCC 38 governs here. Here is its central ruling on what the Crown described as the “two pathways” to conviction: … the Criminal Code barred Ms. George from relying on C.D.’s consent as a defence, because C.D. was younger than 16 (s. 150.1(1)) and Ms. George was more than five years his senior (s. 150.1(2.1)). Accordingly, her only available defence — or, more accurately, her only available means of negating her criminal intent ( mens rea ) to have sex with a minor (H. C.

Stewart, Sexual Offences in Canadian Law (loose-leaf), at p. 4-24) — was “mistake of age”, i.e. Ms. George believing that C.D. was at least 16. However, the Criminal Code limits the availability of the mistake of age defence by requiring that “all reasonable steps” be taken to ascertain the complainant’s age : [150.1](4 ) 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 believed that 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. At common law, “true crimes” — like those at issue here — would have a purely subjective fault element. However, through statutory intervention, Parliament has imported an objective element into the fault analysis to enhance protections for youth (Stewart, at pp. 4-23 and 4-24).

As a result, to convict an accused person who demonstrates an “air of reality” to the mistake of age defence, the Crown must prove, beyond a reasonable doubt, either that the accused person (1) did not honestly believe the complainant was at least 16 (the subjective element); or (2) did not take “all reasonable steps” to ascertain the complainant’s age (the objective element ) ( Stewart , at p. 4-24; M. Manning, Q.C., and P.

Sankoff, Manning, Mewett & Sankoff: Criminal Law (5th ed. 2015), at p. 1113 (“ Manning, Mewett & Sankoff ”)). [paras 7 and 8] [bold emphasis added] [ 7 ] I note the following comments about R v George by Moldaver J. (for himself and six other justices) in R v Morrison , 2019 SCC 15 : … I am not unmindful of the comments in R. v.

George , 2017 SCC 38 [2017] 1 S.C.R. 1021, at para. 8 , upon which Justice Abella relies by way of analogy to hold that in the present context the Crown can obtain a “conviction if [it] proves beyond a reasonable doubt that the accused failed to take reasonable steps to ascertain age (the objective path to liability)”: paras. 213-14. Paragraph 8 of George reads as follows: At common law, “true crimes” — like those at issue here — would have a purely subjective fault element.

However, through statutory intervention, Parliament has imported an objective element into the fault analysis to enhance protections for youth (Stewart, at pp. 4-23 and 4-24). As a result, to convict an accused person who demonstrates an “air of reality” to the mistake of age defence, the Crown must prove, beyond a reasonable doubt, either that the accused person (1) did not honestly believe the complainant was at least 16 (the subjective element); or (2) did not take “all reasonable steps” to ascertain the complainant’s age (the objective element) (Stewart, at p. 4- 24; M. Manning, Q.C., and P.

Sankoff, Manning, Mewett & Sankoff: Criminal Law (5th ed. 2015), at p. 1113 (“ Manning, Mewett & Sankoff ”)). With respect, I am unable to adopt my colleague’s analysis. In George , Ms. George was charged with sexual interference and sexual assault of a person under the age of 16. Given that the complainant was legally incapable of consenting, Ms. George’s sole defence was that she believed, albeit mistakenly, that the 14-year-old complainant was at least 16 years old. In those circumstances, if the trier of fact were to find or have a reasonable doubt that Ms.

George honestly believed the complainant was at least 16, she would be entitled to an acquittal. Put differently, if the Crown hoped to obtain a conviction, it had to overcome her defence of mistaken belief. Against this backdrop, the passage in question at para. 8 of George explains that there were two alternate ways by which the Crown could negate the defence of mistaken belief in age once the air of reality test had been met.

First, the Crown could prove that the accused did not honestly believe the complainant was at least 16; or, second, the Crown could prove that the accused did not take “all reasonable steps” to ascertain the complainant’s age. While the Crown had to prove at least one of these propositions to negate the defence of mistaken belief, doing so would not, from a legal perspective, inevitably lead to a conviction.

As a legal matter, to obtain a conviction for sexual interference or sexual assault of a person under the age of 16, the Crown had to go further and prove beyond a reasonable doubt that the accused believed the complainant was under 16 . As a practical matter, once Ms.

George’s sole defence was negated, her conviction was a virtual certainty. [ 8 ] Per the Crown (per its written brief on this point), those observations did not affect the “two pathways” ruling in R v George : The Crown acknowledges that there are competing lines of provincial appellate authority in determining how to assess the mens rea element for sexual interference.

The Crown submits that the proper approach is the “two pathway approach” as adopted in R v Gashikanyi, 2015 ABCA 1, R v George[cited above], R v Angel, 2019 BCCA 449, R v Jerace, 2021 BCCA 94 and R v Power Romero, 2022 ABPC 214. The Crown is cognizant of the decision in R v Morrison [cited above] and R v Carbone, 2020 ONCA 394 but would suggest that theMorrison decision is confined to the unique offence of child luring under

section 172.1 and does not overrule the binding precedent of Rv George which specifically dealt with

section 151 [i.e. sexual interference]. If the Supreme Court of Canada in Morrison had intendedto overturn the binding precedent of George, it would have done so explicitly rather than simply addressing potential issues in obiterdicta. It is respectfully submitted that the Carbone

interpretation insofar as it incorporates the Morrison ratio as applying to

section 151offences is incorrect in law. The mistake in age defence is separated into different Code sections and worded differently in the respective sections depending on theoffence in question. The mistake in age defence in

section 172.1(4) requires the accused to take “reasonable steps”, whereas the mistakein age defence in

section 150.1(4) requires the accused to take “all reasonable steps” [emphasis added] The Crown submits not only are the sections separate and the wording different but there is a higher threshold in the analysis of [a]mistake in age defence on sexual interfence offences than child luring[,] and this requires courts to analyze these sections separately. The Crown submits that the Morrison decision dealing as it did with child luring, did not overrule the ratio from George which dealtspecifically with the offence of sexual interference. True crimes are presumed to involve subjective mens rea.

However that is a presumption that can be rebutted. [FN: R v Sault Ste Marie (SCC), [1978] 2 SCR 1299 at 1303; R v Hess; Nguyen (SCC), [1990] 2 SCR 906 at 913-914] TheCrown submits that the enactment of

section 150.1(4) is a clear [Parliamentary] intention to rebut that presumption with respect to theoffence of sexual interference. It creates not an absolute liability offence but rather a strict liability offence where there is a due diligencedefence available to the accused. If the Crown proves beyond a reasonable doubt that the accused did not exercise due diligence by nottaking all reasonable steps[,] a conviction ought to follow. As a fundamental principle of statutory

interpretation, the “all reasonable steps” requirement rebuts the presumption of a fully subjectivemens rea for the offence of sexual interference. As a result, contrary to the Carbone

interpretation, the analysis need not go further if thecourt is satisfied the accused did not take all reasonable steps. The correct approach to apply in assessing the mens rea in a

section 151 offence is the “two pathway approach” as outlined at paragraph40 of R v Jerace [cited above].

If the court is satisfied that [DS] either had the requisite knowledge (knew, was willfully blind, or reckless) of the true age of [HK] orthat in the circumstances known to him, he failed to take all reasonable steps to ascertain her age, it should return a finding of guilt.[paras 10-18] [9] Per the defence, Morrison in fact changed the George ruling, as explained by the Ontario Court of Appeal in Carbone.However, the defence did not explain or offer any reason why Carbone should be preferred to Jerace. [10] In any case, per the defence, it does not actually matter which line of authority is viewed as correct: whichever test is applied,DS should be acquitted, since he both believed that HK was 16 or older (18 per his understanding), was neither willfully blind norreckless as to HK’s age, and took all reasonable steps to ascertain her age. [11] For the reasons outlined in Angel (paras 22-52) and Jerace (paras 34-41), and noting that the SCC denied leave in both cases( and , respectively), and emphasizing that George and Morrison involved provisions withdifferent wording (the latter addressing para 172.1(1)(

b) of the Criminal Code i.e. child luring), and finding that Carbone undulynarrows the failure-to-take-all-reasonable-steps pathway to conviction, contrary to the clear (two-pathway) wording of ss. 150.1(4) (aswell explained by Professor Isabel Grant in The Slow Death of the Reasonable Steps Requirement for the Mistake of Age Defence, (2021)44 Man LJ 4 at 1-31), I find that George still applies, with full force, to the mistake-of-age defence in a sexual interference context i.e. itstwo-pathways approach continues to be correct notwithstanding Morrison. [12] Turning to the application of the George framework here, the first question is whether DS believed HK was 16 or over.

III. Did DS believe HK was 16 or over? [13] I find that he did, as explained below. A. Credibility of HK [14] The first reason is that I reject HK’s account of having told DS, about two months into their sexual relationship, that she was13. (Note: HK appeared to be off with her dates, and thus her own age, by one year, testifying that the relationship began in early 2017when, in fact, the bulk of the evidence showed, and convinced me, that it ran from late 2017 (first connection online) until December2018.

Hence her evidence that her initial true-age disclosure was in late winter or early spring 2017 i.e. when she indeed would havebeen 13, given her birth in September 2003. In any case, adjusting for her year error, her true-age disclosure, if it occurred, in late winteror spring 2018 would have been “14.”) [15] Here is HK’s evidence (drawn from my trial notes) on this disclosure (per her): Q: At any point after entering the relationship did you advise [DS] as to your true age? Yes.

Q: Okay. How long after the relationship became intimate, in February 2017, did you advise him of your true age? Around April … a couple of months after February. Q: What was the age you advised him of? 13. Q: Can you advise were this conversation occurred when you said you were 13. In the back of his Jeep … down the road from my house. … Q: Describe how the conversation occurred. … What was his reaction? Um … I think it started off with … um … him saying he needed to be honest with me about something, and I told him the same – I needed to be honest about something, because our ages kept on jumping around.

His got higher, and mine got lower in age. So, I thought it was time to tell him my true age [because] our ages kept jumping around. … Both of us kept on, and started off with “I am 18, and I am 16, and later I am 15”, and he [turned to] “I am 18” and … then … yeah. Q: So at this conversation in April in the back of his Jeep, you advised him of your real age of 13. What was his reaction to that? Uh … telling me that if [we were] within 5 years, I [could] consent to being with him. Q: And your response?

Um … I was happy because I thought at that time we were within 5 years [of each other]. [ 16 ] HK did not provide any dates or other time markers for when the asserted incremental disclosures occurred. Or explain what prompted them when they occurred. Or give reasons for an “incremental” approach to age disclosure.

Or what in particular prompted her to “come clean” with a true-age disclosure when she did, compared to whatever had motivated her to make the incremental disclosures i.e. the different motivation on the true-age occasion. [ 17 ] Plus, her description of the disclosed ages “jumping around” did not match her description of “her age dropping” and “his going up.” [ 18 ] Even more problematically, despite her reference to their ages having “jump[ed] around” before this point (i.e. with each (per her) having offered various ages), her earlier testimony about age disclosures had been limited (a minute or two earlier in direct) to “neither of us gave each other proper ages in those first few months” and, when asked what age she had represented herself to be, “I think 18 at first”, and, when asked what age DS had said he was, “17, 18.” In other words, her (above-noted) later account of “jumping around” or at least shifting ages included more details of such than her first description of that phenomenon.

In yet other words, she was adding details as she went along . [ 19 ] And no evidence showed that DS had any familiarity with para 150.1(2)(

a) of the Criminal Code ( consent possible where complainant 14 or 15 and accused less than five years older ) or that concept generally. [ 20 ] In contrast to most of her testimony, where HK offered immediate and direct responses to questions, many of her responses in this

section opened with pauses and “ums” , as if she needed to ponder her response before offering it. [ 21 ] Later in her direct examination, after describing being in Grade 9 at the local junior high at one stage in their relationship and saying that DS was aware of that, she was asked “when did [DS] became aware of you being in school at [the junior high]?” She responded: “Early on, I’m pretty sure. It was when I told him my age.

I told him what school and grade .” Tellingly, she did not include that detail when first describing the asserted true-age disclosure (see above). [ 22 ] Beyond the age-disclosure aspect, I have concerns about HK’s overall credibility and reliability.

For instance, in direct she testified that DS picked her up “once” at her junior high and “once” at her high school. (The weight of the evidence shows that she was in junior high (in Grade 9) from the start of their relationship (late 2017 or early 2018 until June 2018) and in high school (Grade 10) from September 2018 until their break-up in December 2018.) However, when asked in cross “is it fair to say that [DS] picked you up once from [the high school]?”, she replied: “Uh .. rethinking this … it could have been more than once .

Most definitely more than once ”, with no explanation for her initial (“once”) evidence or for the instant shift from “could have been more than once” to “definitely more than once.” [ 23 ] Asked in cross whether she had a number of Instagram accounts in 2017 and 2018, she replied “Yeah, a couple .” She was then asked if she recalled testifying at the preliminary inquiry that she had more than 4 such accounts. Response: “Possibly.

Yes.” [ 24 ] In cross, HK said that, at one point in their relationship, DS gave her two pieces of his “ID” for her to keep , because she liked his pictures on them. (The evidence did not extend to whether these ID documents were current or expired.) At this point, the following exchange occurred: Q: You never presented him with any ID, right? Yes I did. Q: You did? When? Uh .. the same time he presented me with them … [we were] showing each other [our] school IDs.

Q: Do you agree with me that, what you just said, that is the first time you’ve said that … that you never told the police that in [your] police interview? Possibly, yes … this is the first time I’ve been asked. Q: Do you agree with me you never said it before to anybody? Uh, no. Q: Do you agree with me? Yes. Q: You never told us that at the preliminary inquiry on March 3, 2022 or when interviewed by police in June 2021. I was never asked. [ 25 ] Defence did not refer to any segments of either earlier step where HK had been asked if she had shown any ID to DS.

Accordingly, I proceed on the basis that HK had indeed not been asked about that. [ 26 ] However, given the centrality of DS’s understanding of her true age during their relationship, it is surprising, at minimum, that HK apparently never raised or disclosed that aspect at any stage of either earlier step , whether volunteering that information to support or explain other responses by her or simply as something possibly important to raise e.g. in response to questions like “anything else to add?” or just at the close of the interview or the inquiry (“here is something else that may be important”). [ 27 ] Shortly after, defence asked “you said you showed him your ID … from which school?” HK responded: “Um … [pausing] … um … I believe from [the high school].

My Grade 10 ID. No, it was my [junior high] ID. My Grade 9 ID. ” Defence: “Again, this is something new you’re telling us, correct?

You never said to police or … [this is] something new you are telling us.” HK: “Yep, as a matter of fact.” I see HK’s pauses here as once again signaling a material risk of concoction , particularly with her sudden jump from “Grade 10” to “Grade 9” ID shown. [ 28 ] I note as well that HK did not produce that ID document at the trial or apparently any earlier. [ 29 ] Asked whether she had sent a text to DS about 2.5 years after their break-up saying “I know where you live”, HK said “ No, but it could have been my ex at the time ” i.e. her then-(now-ex)-boyfriend. “He might have sent a text … possibly.” [ 30 ] Referred to her preliminary-inquiry responses to questions whether she sent that text (“ may have done so”, “not that I recall”, and “possibly” ) and asked again if she sent the text, she said no.

Asked why she had said “possibly” at the preliminary, she said “I thought about it for a few years, to possibly text him and say something to him, for what he put me through, but I never carried it out.

But my partner knew about it, and he had a strong dislike for [DS].” [ 31 ] HK’s answer was not responsive to the question. [ 32 ] At one point in cross, referred to a statement she had made to police about having sent a message (post-break-up) to DS to the effect of “do you know how old I was when you did that stuff to me?”, HK acknowledged that she had made that statement and said that “I was also intoxicated at the time .” Defence: “You were intoxicated when interviewed by the police?” HK: “ Yes, heavily .” [ 33 ] At that point, we watched the opening two minutes and a bit of the videorecording of that interview, to gauge (as possible) HK’s condition.

She did not appear to be intoxicated or otherwise impaired to any degree, responding to questions directly, coherently and logically, seemingly lucid, self-possessed, and calm. As defence noted, it is unlikely the attending officer(

s) would have continued the interview with a “heavily intoxicated” HK or would have done so without asking her about her condition. [ 34 ] I find that HK sensed that her statement was somehow prejudicial to her and, on the spot, tried to resile from it via a spontaneous assertion she was not usual self in the interview. [ 35 ] In redirect, the Crown asked HK: “At what point after the commencement of the boyfriend-girlfriend relationship [i.e. approx.

January or February 2018] did the “ID exchange” happen?” HK responded: “About two months after.” [ 36 ] Tellingly, as noted above, she also “time-marked” the true-age disclosure (per her) to the same period (“about two months into the relationship”). If the ID exchange came first , there would have been no need for the “true-age disclosure.” If this all happened at the same time (i.e. same meeting), presumably HK would have included the “ID exchange” details as part of her true-age disclosure story.

If the asserted ID exchange came afterwards , one questions why it would have been necessary , at least for HK to show her ID i.e. with (per her) her true age already disclosed and no evidence that DS had asked for “age ID” or had “wanted her picture” or anything akin to her stated reason for keeping two pieces of his ID. [ 37 ] In direct, HK said that she met and communicated with DL, one of DS’s friends at school, who put DS and HK into contact, on “Instagram and Snapchat.” And that she met and communicated with DS via Snapchat . In cross, HK was adamant that she did not first meet DL or DS on Tinde r.

She acknowledged one contact with DS on Tinder post-break-up (when they “matched”). [ 38 ] In contrast, DS testified that he came into contact with HK on Tinder , after DL (who he understood also met her on Tinder) put the two of them together on Tinder. DL testified for the defence, giving clear, straightforward and logical evidence. He did not appear to be in DS’s “corner”, in the sense of being prepared to invent, slant, tailor or otherwise craft his evidence to assist DS.

He said that he indeed first met HK on Tinder and that he put DS and HK into contact on that platform . [ 39 ] Here I accept DS’s evidence, corroborated by DL, that he (DS) and HK came into contact on Tinder . I infer that HK wanted

to distance herself from the Tinder platform and her self-description on it, as of December 2017, as “18 years old” , which she acknowledged in cross. [ 40 ] HK acknowledged having a Tinder account, from as young as 12 or 13, and misrepresenting her age on that account , including (as noted) describing herself as 18 on it as of late 2017 (when she was 14 and came into contact with DS) and continuing to so misrepresent her age on Tinder post-break-up i.e. describing herself as 18 when actually 15 or (later) 16. [ 41 ] Further in cross, HK was shown four screen-shot photos of herself .

She said that she posted the first on Facebook in 2022 , the second on TikTok the same year , the third on TikTok in 2021 , and the fourth, on TikTok, in 2021 (“possibly” ). [ 42 ] By contrast, LW, DS’s mother, who testified for the defence and who took the screen shots, described taking them (or at least the first three of them) in early (“January”) 2019 i.e. shortly after DS’s and HK’s break-up , after (per LW) DS had described the break-up to her, including (per him) it being precipitated by HK disclosing her true age (then 15) to him in December 2018, with DS breaking up with her immediately and becoming distressed over (per him) HK’s long-running deception as to her age (all as discussed further below in my review of DS’s evidence).

LW said she took the fourth screen shot later (2022). [ 43 ] I accept LW’s evidence of the timing of the screen shots.

First, she testified that she took the first three “shortly after the breakup … beginning of 2019” and that she did so to “see what [HK] is about [and] to see what is going on … [and also] to show how out of the world she is.” I find that, in the short-term aftermath of DS’s conversation with LW about HK’s “15” declaration, LW effectively decided to do some “investigating” of HK on her own , with the first three photos found and screen-shot in that initial period. [ 44 ] Backing this up is LW’s acknowledgement that the fourth photo came later (2022) i.e. she was willing to acknowledge that one of the screen-shot photos came much later and probably would not yield much useful on the “age issue.

B.

Conclusion on HK’s credibility [ 45 ] HK was a very problematic witness, one whose credibility was sorely lacking, as explored above. [ 46 ] In light of the identified credibility concerns surrounding HK’s evidence of both “early true-age disclosure” and “Grade 9 ID shown” and my general concerns about her credibility, I reject her accounts on both aspects , accepting DS’s evidence that neither event occurred. (My analysis of his credibility is found below.) [ 47 ] In light of all of those HK-credibility concerns, I also accept DS’s evidence over HK’s on whether he ever picked her up from the junior-high school i.e. he never did . [ 48 ] On another asserted-by-Crown “age marker”, HK gave evidence about receiving a dog from DS as a birthday present in summer or early fall 2018 (i.e. for her 15 th birthday) and receiving a birthday cake and card from him for the same birthday. [ 49 ] However, her evidence did not include “age-turning details” i.e. anything to show that DS was or should have been aware that she was 14 heading into that birthday and 15 on it. (For instance, she did not produce the birthday card, which (in theory) might have said “Happy 15 th birthday!” or a photograph of the cake with (in theory) the same message.) [ 50 ] In any case, I find that DS’s “dog not a birthday present” account is correct , given my overall concerns about HK’s credibility and LW’s clear and convincing evidence that DS came to visit her with the dog (in or around the time he presented it to HK) in spring 2018 (“no snow on ground; no green grass yet”). [ 51 ] On the “cake” aspect, here again I accept DS’s evidence (“no cake” ), with HK providing no context with her evidence i.e. to give reality to her account of a birthday cake brought to her at the high school e.g. how and where it was consumed, and with whom, and aided by what supplies (plates, etc.). [ 52 ] HK’s remaining “age evidence” (i.e. focusing on statements by her as to her age) narrows to her “per Tinder” and “per Tinder message to DS” age, both saying “18” and later her “18 and in Grade 12” statement in October 2018.

C. Credibility of DS [ 53 ] Focusing first on his understanding of HK’s age, I find that DS’s evidence was largely clear, consistent, and logical. [ 54 ] Per his account, he first met HK on the Tinder platform, where he noted her age description (“ 18 ”) and on which platform she messaged him saying that she was 18 .

He testified that he understood Tinder was an “ 18 and over only ” platform. [ 55 ] He said the subject of HK’s age did not come up again until sometime in summer 2018, when he asked her how old she was, with her responding “ 18 .” [ 56 ] He denied that HK told him she was 13, or 14 , about two months into their relationship, or at any point until the end (see below), and that HK showed him her ID at any stage. [ 57 ] Per him, it was not until December 2018, in their final conversation, that HK revealed her true age (then 15) to him. [ 58 ] Per him, this was shocking and distressing news , sparking an immediate break-up , over the phone, with DS and HK never seeing each other again (until these proceedings).

Here is how he described his reaction to HK’s “15” declaration:

It felt like a waste of a relationship, honestly. I was not very happy … was upset, and I broke up with her right then. I blocked her on everything, to the best of my ability. … I knew it was a … terrible idea, terrible to go on with that [i.e. to continue the relationship in light of HK’s age revelation]. I blocked her on everything and the same day [December 11, 2018] I texted my mom to let her know [that I had] broken up with her. [ 59 ] He then described seeing his mother in person a couple of days later.

He said that he told her that “[HK] lied to me … she [told me] she was 15 years of age … I put all that work into that relationship … all for nothing, honestly. I felt betrayed and upset about it.” [ 60 ] According to his mother LW, who testified for the defence, DS was indeed upset when he came to see her. Per her: The second he walked in, I could see from his face …. He told me he broke up with her because [per him] she lied to him about her age. I said “what do you mean?” I was shocked and did not understand. He just lost it ….

I was just shocked, seeing how upset he was …. [and later, asked what DS’s demeanor was during this conversation]: “Distraught, like, traumatized, almost. [ 61 ] Here I address a peripheral aspect, namely, whether DS had begun a relationship with another person before breaking up with HK on December 11, 2018. Per HK, a third party had advised her around that time that DS was seeing someone else, which sparked the conversation between HK and DS on that date, with HK (per her) confronting DS about his apparent new relationship and him denying that.

Per DS at trial, he was not in a new relationship on that date, albeit was in one “a little bit” after that. [ 62 ] In his December 11, 2018 text to his mother, in addition to telling her that he had broken up with HK, DS said that he was “hanging with a new chick.” [ 63 ] Asked about this in cross, DS said that he was just trying to appear “cool” and “not upset” to his mom i.e. effectively that everything was okay with him, presumably to keep her from worrying about him. [ 64 ] DS did not need to “manufacture” a new relationship to try to reassure his mother.

I find that his reference to “hanging with a new chick” in his December 11, 2018 text to his mother, combined with HK having shortly before received intelligence of a new relationship for DS, confirm that he was indeed in a new relationship, whether embryonic or ripened into “boyfriend-girlfriend” as of that date. [ 65 ] In other words, DS was not candid when he said that he was not in a relationship (even in the preliminary “getting to know you” stages of one) with another person while he was still in a boyfriend-girlfriend relationship with HK. [ 66 ] However, as noted, this is a peripheral aspect .

It does not actually matter whether HK’s upset was due to DS being in a full- blown new relationship, an embryonic one, or a new friendship with the potential for more. [ 67 ] In other words, I do not regard DS’s lack of candour on the “new relationship” timing as casting a material, or any, shadow on his overall “age” evidence. [ 68 ] On another aspect of DS’s “age” evidence, Crown said it was implausible for DS to believe , per Tinder and per HK’s (DS- described) “18” declaration to him on that platform, that HK was 18 in December 2017 (i.e. the month of their first contact), for her to have a birthday in the summer (with DS testifying that HK told him her birthday was in August), and for him to continue to believe that HK was still 18 in October 2018 i.e. as reflected in DS’s account of picking HK up at the high school in that month and HK telling him she was in Grade 12 and 18 then (as acknowledged by DS). [ 69 ] It may be that DS should have realized , based on his initial “18” understanding and HK having a summertime birthday, that she would have been 19 in October 2018 i.e. not still 18.

However, no evidence I accepted here shows that DS was part of any birthday celebration for HK at or around her birthday (actually not August (as HK told DS) but early September) or that HK’s birthday was otherwise a memorable or distinct event for DS. I find that DS not putting “2 and 2” (or “18 and 1”) together here is an understandable lapse in the circumstances here.

Particularly when a full year had not yet elapsed since they first connected i.e. depending on her birthday, HK could have been 18 when they first connected on Tinder (December 2017) and still 18 in October 2018 e.g. with a November or December birthday. [ 70 ] To the extent the Crown point here is the implausibility of HK being 19 and still in Grade 12 , the Crown did not lead any evidence showing that HK’s high school was limited to 18-and-under students or, generally, that 19-year-olds, by definition, cannot be in Grade 12. [ 71 ] I do not see HK’s “Grade 12” statement to DS as raising a red flag for DS in these circumstances i.e. as constituting a reason for him to doubt the accuracy of HK’s “18” representations from December 2017.

D.

Conclusion on DS’s belief as to HK’s age [ 72 ] I believe that HK had indeed came to learn of at least a possible new relationship for DS and that their December 11, 2018 call largely featured that subject, that even with DS’s denials of a new relationship during that conversation HK was upset and made her one and only “true age” declaration (“15”) to him during that call as a result, and that that declaration indeed was news to DS, causing the dismay and upset he described and that was perceived by his mother a couple of days later. [ 73 ] In any case, in light of my serious concerns about the credibility of HK’s “age” evidence (reflected in my conclusion above that HK did not make any true-age declaration until the day of their break-up), and the absence of other evidence casting any shadow on DS’s evidence that he believed DS was 18 at the start of their relationship, I have at least a reasonable doubt on the first branch of the “mistake of age” defence i.e. there is at the very least a material possibility that, until their break-up, DS believed HK was 18 or, in any case, 16 or over.

[74] Following the two-pathway approach from George and Jerace, the next and final step is the “all reasonable steps” inquiry i.e.with no separate exploration of recklessness or willful blindness i.e. with those inquiries supplanted by the “all reasonable steps” inquiry:here see George at paras 7 and 8; Jerace at paras 22-27; R v Piche, 2018 ABQB 980 (Inglis J.) at paras 1 and 38-49; and R v PowerRomero, 2022 ABPC 214 (B Fraser J.) at paras 24 and 25. [75] Accordingly, I move to the “all reasonable steps” branch of the defence. IV. Did DS take “all reasonable steps” to verify HK’sage? A.

Analysis [76] I find that he did. Here are the key factors: 1. HK reported her age as “18” on her Tinder account; 2. DS first came into contact with her via Tinder and noted that age report; 3. she messaged him via the Tinder platform that she was 18; 4. his understanding of her age (18) did not change when they first met in person i.e. nothing in her physical appearance, demeanor,dress or otherwise caused him to think she was not 18 i.e. he still understood that she was 18.

The visual appearance of the complainant,as a factor on its own, may be sufficient, in some cases, to obviate the need for age-verification inquiries: see, for example, R v RAK, (NBCA) at para 10. Here, as noted, defence also points to HK’s own “18” and “in Grade 12” statements. In anycase, George (cited above) confirms that physical appearance is at least a factor in the “all reasonable steps” equation (paras 22-24 and28); 5.

HK misrepresented her age again (effectively) in October 2018 by telling DS she was in “Grade 12”, when she was actually inGrade 10; 6. as already explained, his learning HK was in Grade 12 (per her) when she was (by his understanding) then 19 was not shown bythe Crown to be a red flag for DS here; 7. the fact his outings with HK were “going to the mall, movies, garage sales, and fishing” -- i.e. did not include going to licensedpremises and ordering drinks -- is neutral, in light of DS’s uncontradicted and in fact confirmed-by-DL evidence of being a verymoderate drinker (“three times a year”) and, in any case, no evidence of any pattern of DS visiting bars or ordering drinks in restaurantswith any girlfriends before HK or even of DS having a girlfriend before HK. (DS’s evidence of very occasionally having restaurantdinners with drinks with his current girlfriend is equally neutral here); 8. same for HK “not doing any of the driving” or even (apparently) not having a driver’s licence or even a learner’s permit: theCrown did not introduce any expert or in any case statistical evidence, or ask me to take judicial notice, of the percentage of persons, ofany given age (14, 15, 16, 17 or 18) who do not have a regular or learner’s license or, in any case, who do not drive; 9. it was common ground between the parties that DS spent considerable time with HK’s family and, as noted above, that DSintroduced HK to his mother.

Unlike in many “all reasonable steps” cases, where the accused (and sometimes the complainant too)place a premium on secrecy, HK and DS were open about their relationship with their families. No evidence showed that HK’sparents ever expressed any concern to her or to DS directly about their relationship (even if they were not necessarily privy to itssexual dimension or all aspects of it).

Further, DS’s uncontradicted evidence was that HK’s parents knew he was working full-time at aconcrete operation and generally (as DS put it) that “[he] was of age.” On the apparent absence of “parental objection” to a relationship,see R v MB, 2017 ONSC 4163 (B.A.

Allen J.) at para 193; As noted earlier, DS introduced HK to his mother, and she did not voice or even perceive any “age” concerns about HK, who she took tobe “of age” i.e. not under 16; 10. as for DS deciding to ask HK her age in “summer 2018” (“June?”), before an occasion of sexual intercourse, I accept his evidencethat he asked effectively to confirm her age (“wanted to make sure”) i.e. this was a “for greater certainty” request. No evidence showedthat anything in particular had happened between HK and DS or that DS had learned something in particular about her that sparked thatquestion.

On this occasion, HK (again) told him that she was 18; 11. the fact DS did not follow up that question by asking for HK’s actual birthday (month and day) or birth year is not damaging to DS’sposition: with him continuing to believe she was 18 and with no signals blinking “young than 18” (or, in fact, “younger than 16”), DSwas not obliged to effectively cross-examine HK about her age; 12. while DS and HK were more than five years apart in age, the gap was not much larger (5 years, 10 months, 22 days).

The caselaw confirms that, the greater the age difference, the higher the onus on the accused to take verification steps.

See, for example, R vRAK, cited above, at para 10; 13. as for HK’s evidence (not contradicted by DS) of always (or at least often) exiting her family home via a window to connect withhim for sexual encounters in his parked-down-the-road vehicle, plus her evidence that this was “due to our ages and … it so it washidden … so my parents would not know”, no evidence was presented on the attitudes, if any, of HK’s parents towards actual orperceived sexual activity by her at any particular age or in any particular (new, long-standing or otherwise) relationship or with any

particular people e.g. that they would have been fine, or indifferent, or at least not objected to her having sexual activity if she were older(e.g. at least 16, or 18, or some other age). In other words, it may well have been the case that HK would have felt compelled to besurreptitious with her parents if she were 16 or even 18.

In any case, as discussed above, HK and DS’s relationship itself was not kept secret from HK’s family (with him meeting her parents,including about the dog, and participating in (at minimum) a family fishing trip); 14. as for DS asking HK’s father, and asking her to check with her mother, about the possibility of DS giving HK a GermanShepherd puppy, while DS might equally have asked HK to check with both of her parents, I see DS’s direct contact with her father asequally reasonable: a reasonable person does not surprise a family (and, as noted, HK was living with her parents) with a pet i.e. thisrequest for advance approval sheds no light on the reasonableness of DS’s perception that HK was 18 around this time. (And I do not seeDS’s lack of precision on when the dog was given (May?

June?

July? 2018) as material here: his point, which I accept, is that the dogwas not a birthday gift); 15. as for whether DS should have been expected to ask HK to show her ID and confirm her age on the occasion when he gave hertwo (expired?) pieces of his ID, DS’s evidence here (which I accept over HK’s, as explained above) did not show that the focus of thatinteraction was “age confirmation.” Instead, however DS’s ID came to be seen by HK, she wanted to keep it because she “liked hispictures on it.” In any case, as noted above, with no “under 18” or even “under 16” signals blinking, nothing triggered any reasonable-inquiry need for DS to dig into HK’s age on this occasion; 16.

DS acknowledged understanding that Tinder age representations are “self-reported” and are not verified by that platform. He alsoacknowledged an awareness that some people misstate their age on that platform. Against that, as noted, he had two “direct reports”(albeit still “self reports”) by HK i.e. that she was 18. And later her “in Grade 12” statement. And her apparent age, as he gauged it,matching that stated age (18), as discussed above; 17. on the subject of perceived age, DS’s reading of HK as 18 receives a degree of corroboration by LW’s reading of her age, from theone occasion they met, in “fall 2018”.

Per LW: [Impression of her age?] I did not question her age at all. When she talked, she was very polite … not shy … not immature acting. …She acted how I would act, asking questions for the majority of the conversation, mostly about our dogs …. [Seem immature?] [Not from] how she acted … I would have asked questions if she did.

But the way she looked and the way sheacted, [there was] nothing out of sorts to me; 18. as well, the first three (“no later than early 2019”) photographs of HK, which do not necessarily show HK’s appearance in Januaryor February 2018 (when DS first saw her in person), since those photographs may have been taken as much as year after (i.e. as late asearly 2019), they do show HK’s appearance at the close of the relationship and presumably some months before that, if not as of the startof the relationship here.

From those photos, I find some corroboration of DS’s reading of her age as 18 or at least as later teens (16or 17), at minimum. I also note, in the second photograph, the caption “What I was wearing that night when I was 17” superimposedon the photo i.e. with HK appearing to confirm, via the caption, that she was already 17 at some earlier point; 19. at trial we watched just over two minutes of the video of HK’s police interview from June 26, 2021 i.e. when HK was actually 17(about 1.5 months from turning 18).

The purpose of watching the opening segment was to assist in gauging HK’s claim that she was“heavily intoxicated” during that interview. (As explored above, she did not appear so.) As for any “age” insights from the video (i.e.from assessing her “appearance age” then and possibly extrapolating to between 2.5 and 3.5 years earlier), as the Crown urged (“look at… how young she looked in June 2021”), it is somewhat difficult to estimate HK’s “appearance age” at the time of the video, given thather face was partially masked (presumably Covid-19 precaution), she was wearing bulky clothing, and she was “folded in on herself” formost of the opening segment.

HK does seem to have an “appearance age” more closely resembling her actual (17-almost-18) age than 21or older. However, I also note that, at the time of the video, HK’s hair (not “done”), make-up (none apparent), and dress (bulky, asnoted) were markedly different than her “photos appearance” and her appearance as described (for instance) by LW (including“done” hair and make-up) i.e.

HK presenting in the video was not manifesting as she appeared at least some of the time during therelationship; and 20. as for DS’s “failure” (per the Crown) on the occasion of his one time picking up HK at her high school, to go into the school inseek confirmation of her grade (“actually in Grade 12?”) and age (“actually 19?”), I doubt any school would disclose anyinformation about any of its students to a stranger walking in to ask. B.

Conclusion on “all reasonable steps” [77] In all the circumstances here, including HK’s self-reporting as 18 (on both her Tinder profile and in her Tinder-platformmessage to DS) at the outset (and on this aspect, see the “reasonable reliance” analysis in R v Garraway, 2010 ONCJ 642 (Caldwell J.)at paras 19 and 25), her summer-2018 declaration to the same effect, her later “in Grade 12” statement, DS’s plausible reading of HK inperson as being 18 (corroborated in part by LW’s similar assessment (or, at minimum, that HK was “of age”) and also the no-later-than-end-of-relationship photos), and given the absence of indicators signalling “under 16” or even “under 18” here, including DS spendingconsiderable time with HK’s family (with apparently no expression of HK-parental concern about their relationship), I find, at minimum,a reasonable doubt on “all reasonable steps” i.e. the Crown did not prove beyond a reasonable doubt that DS did not take all reasonableage-verification steps in the circumstances here. [78] Here I adopt and accept the Court of Appeal’s observation in R v Gashikanyi, 2015 ABCA 1 that “the case law requires, atminimum, “earnest inquiry or something that obviates the need for such inquiry”: R v Osborne, (NLCA) …” (para14). [79] Fundamentally, HK succeeded in her efforts to appear 18 i.e. to appear as old as her represented age.

On the relevance of a

young person’s efforts to appear older, see R v Chapman , 2016 ONCA 310 at paras 45 (4), (8) and (10), 52 and 53. [ 80 ] And nothing in the circumstances was at odds, or at least necessarily, at odds with her representations and her apparent age. [ 81 ] Nothing happened along the way that should have caused DS to re-evaluate HK’s age representations and his own reading of her age. [ 82 ] When HK revealed her true age (15) to DS in December 2018, he discontinued their relationship immediately. V.

Conclusion [ 83 ] Given that the Crown did not prove beyond a reasonable doubt that DS knew HK was 15 or younger or that he did not take all reasonable steps to verify her age, DS is entitled to an acquittal on the charge of sexual interference under s. 151 of the Criminal Code . Heard in Edmonton, Alberta on February 23 rd – 24 th and March 1, 2023. Delivered orally at Edmonton, Alberta on March 14, 2023. Dated at Edmonton, Alberta on March 15, 2023. M. J. Lema J.C.K.B.A. Appearances: Ian Ross Alberta Justice for the Crown Darin H. Slaferek Slaferek Law for the Accused