R. v. Pauloosie, 2021 NUCJ 9

Nunavunmi Maligaliuqtiit NUNAVUT COURT OF JUSTICE Cour de justice du Nunavut Citation: R. v. Pauloosie, 2021 NUCJ 9 Date: 20210212 Docket: 25-19-25 Registry: Iqaluit Crown: Her Majesty the Queen -and- Accused: Darren Pauloosie ________________________________________________________________________ Before: Madam Justice Charlesworth Counsel (Crown): T. Buffalo Counsel (Accused): S. Paddock Location Heard: Taloyoak, Nunavut Date Heard: January 15, 2021 Matters: Trial decision on charges under s. 151 of the Criminal Code of Canada, RSC 1985, c C-46 REASONS FOR JUDGMENT (NOTE: This document may have been edited for publication)

DISCLAIMER PAGE 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section 486.4 of the Criminal Code , “any information that could identify the complainant or a witness shall not be published in any document or broadcast or transmitted in any way.” Anonymized Judgment Disclaimer: This judgment has been anonymized to comply with legislative requirements or at the discretion of the authoring Justice to protect vulnerable parties. Letters have been assigned at random. I.

INTRODUCTION [ 1 ] Darren Pauloosie was charged with four counts of touching for a sexual purpose the body of AA, a person under the age of sixteen years in January and February 2017. [ 2 ] The Crown proceeded by indictment and his trial was held before me in the Hamlet of Taloyoak in January 2021. [ 3 ] Mr. Pauloosie admitted to having sex four times with AA in January and February 2017 when he was 20 and she was 12 years old. In each case, Mr. Pauloosie invited AA to his house over Facebook Messenger late at night. [ 4 ] The only live issue at trial was whether Mr.

Pauloosie had an honest but mistaken belief that AA was at least 16 years of age when the sexual encounters took place. This being the case, s. 150.1(4) of the Criminal Code applies. It provides as follows: 150.1(4) It is not a defence to a charge under

section 151 … 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. [ 5 ] The ages of the accused and complainant at the material time were not in dispute. Nor was it contested that Mr. Pauloosie and AA had sex four times in the early months of 2017. The finding of guilt or innocence thus rests upon whether the Crown has proven that Mr. Pauloosie was reckless as to the age of AA before they had sex. [ 6 ] The Defence argues that Mr. Pauloosie had an honest, though mistaken, belief that AA was over 16 because:

• AA was physically bigger than him and was trying to make him believe she was 16 or 17; • AA went alone to his residence late at night; • AA associated with an older friend, who he thought to be 16 or 17 years of age; • He never saw AA with parents or siblings or younger people; and • AA was in a different grade than him at school. [ 7 ] The Crown’s position was that Mr. Pauloosie knew very little about AA and based his view of her age on physical appearance and her behaviour in coming to his house late at night.

The Crown’s position was that these considerations do not constitute taking all reasonable steps to ascertain AA’s age prior to engaging in sexual relations. II. ANALYSIS [ 8 ] For anyone to be guilty of a criminal offence, they must commit an unlawful act with a guilty mind. The Crown always has the burden of proving the unlawful act and the guilty mind beyond a reasonable doubt. [ 9 ] The unlawful act in this case has been proven beyond a reasonable doubt: Mr. Pauloosie on four occasions had intercourse with AA, who at the time was a person under the age of 16.

Because AA was in fact under the age of 16, her consent to the offences is irrelevant according to s. 150.1(1) of the Criminal Code . [ 10 ] The Crown must next prove that Mr.

Pauloosie had a guilty mind: that he knew (or ought to have known, because he did not take reasonable steps, according to s. 150.1(4) ) that AA was younger than 16 years of age. [ 11 ] Justice Doherty of the Ontario Court of Appeal recently considered the provisions of subsection 150.1(4) in the case of R v Carbone , 2020 ONCA 394 , at paras 128-129 : [128] … To convict, the Crown must prove the accused had the requisite state of mind with respect to the complainant’s underage status.

For the reasons set out above, I am satisfied it includes recklessness as to the age of the complainant. [129] … I suggest the trial judge will proceed along the following lines: Step 1: The trial judge will first determine whether there is an air of reality to the s. 150.1(4) defence, that is, is there a basis in the evidence to support the claim the accused believed the complainant was the required age and took all reasonable steps to determine the complainant’s age.

Step 2: If the answer to step 1 is no, the s. 150.1(4) defence is not in play, and any claim the accused believed the complainant was the required age is removed from the evidentiary mix. If the answer at step 1 is yes, the trial judge will decide whether the Crown has negated the defence by proving beyond a reasonable doubt, either that the accused did not believe the complainant was the required age, or did not take all reasonable steps to determine her age. If the Crown fails to negate the defence, the accused will be acquitted. If the Crown negates the defence, the judge will go on to step 3.

Step 3: The trial judge will consider, having determined there is no basis for the claim the accused believed the complainant was the required age, whether the Crown has proved the accused believed (or was wilfully blind) the complainant was underage, or was reckless as to her underage status. If the answer is yes, the trial judge will convict. If the answer is no, the trial judge will acquit. [ 12 ] In considering this issue, it also helped me to read the words of Justice (now Chief Justice) Sharkey in the case of R v Mr E , 2011

NUCJ 35 , at para 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. [ 13 ] In the circumstances of this case, looking at Step 1 above, I do not believe there is an air of reality to the s. 150.1(4) defence. Mr. Pauloosie did not even ask AA how old she was. That is the absolute least he was required to do before having sex with her, given his very limited knowledge of her. [ 14 ] Having found there is no air of reality, I go to Step 3 in Carbone , above.

According to that step, the Crown has also satisfied me beyond a reasonable doubt that Mr. Pauloosie was reckless as to AA’s underage status. [ 15 ] As Justice Doherty explained in paragraphs 126 and 127 of Carbone: [126] An accused who never turns his mind to the complainant’s age can properly be described as reckless with respect to the complainant’s age in most circumstances. Indifference to the age of the person targeted by sexual activity is a choice by an accused to treat the complainant’s age as irrelevant to his decision to engage in the sexual activity.

In most circumstances, the age of the young person will have obvious relevance, bearing in mind the clear responsibility which the law places upon adults who choose to engage in sexual activity with young persons: see George , at para. 2. [127] Reckless indifference describes a subjective state of mind. It reflects a choice to treat age as irrelevant and to assume the risk associated with that choice.

While this may describe a relatively low level of recklessness, there is nothing in the nature of the conduct engaged in which would warrant any level of risk taking or preclude the imposition of criminal liability based on a reckless indifference to the complainant’s age: see Andrew Ashworth, Principles of Criminal Law , 5th ed. (Oxford: Oxford University Press, 2006) at pp. 181-86, 190-91. [ 16 ] AA was a child at the time Mr. Pauloosie had sex with her. She, like many children, appears to have wanted to act more mature than her age. She had an older friend and wore make-up and tight clothing.

In other words, AA exhibited the behaviour of a healthy average and curious 12-year-old girl. AA should have been free to exhibit such behaviour free from the threat of sexual exploitation from an adult. [ 17 ] I find Mr. Pauloosie guilty of four counts of breaching s. 151 of the Criminal Code . Dated at the City of Iqaluit this 12th day of February, 2021 ___________________ Justice S. Charlesworth Nunavut Court of Justice