R. v. Z. I. D. Date:, 2012 BCPC 570

Citation: R. v. Z. I. D. Date: 20120926 2012 BCPC 0570 File No: 3433-2-C Registry: Williams Lake IN THE PROVINCIAL COURT OF BRITISH COLUMBIA REGINA v. Z. I. D. REASONS FOR JUDGMENT OF THE HONOURABLE JUDGE E. L. Bayliff Counsel for the Crown: E. Koresawa Counsel for the Defendant: T. Zipp Place of Hearing: Williams Lake , B.C. Dates of Hearing: August 9 and August 10, 2012 Date of Judgment: September 26, 2012 [ 1 ] Z. I. D. (“Z.D.”) is charged with sexually assaulting B.H. and touching B.H. for a sexual purpose contrary to ss. 271 and 151 of

the Criminal Code respectively. [ 2 ] There is no question that Z.D. engaged in sexual intercourse with B.H. on an occasion in late August or early September, 2010. There is also, now, no question that B.H. was only 12 years old at the time, whereas Z.D. was 16 (4 ½ years older). The issues in this case revolve around consent and whether it is even available to Z.D. as a defence given B.H.’s young age. As a result of s. 150.1 of the Criminal Code , the issue becomes whether Z.D. took all reasonable steps to ascertain B.H’s age.

Or, to state the issue more correctly, has the Crown proved beyond a reasonable doubt that Z.D. failed to take all reasonable steps to ascertain the age of B.H. [ 3 ] For the reasons which follow I have decided that I must find Z.D. guilty of count 1, Sexual Assault. I find that B.H. either consented to the sexual activity or that Z.D. had an honest belief, based on reasonable grounds, that she was consenting.

However, I have concluded that this does not amount to a defence for Z.D. because he failed to take all reasonable steps to ascertain the age of B.H. before having sex with her. (S. 150.1(2), (2.1) and (6)). [ 4 ] I will now explain in more detail why I must find Z.D. guilty. I will organize my comments around the two issues in the case: 1. Has the Crown proved beyond a reasonable doubt that B.H. did not consent to sexual activity with Z.D.? And; 2. If not, has the Crown proved beyond a reasonable doubt that Z.D. failed to take reasonable steps to ascertain the age of B.H. prior to having sex with her? 1.

Consent: [ 5 ] The threshold question is whether the Crown has proved beyond a reasonable doubt that B.H. did not consent to sexual activity with Z.D. If the Crown has met this burden then there would be no need to go on to consider the question of age posed by s. 150.1 . [ 6 ] B.H. insisted that she did not consent and that she said things like “No”, “I’m too young” and “this is not something I want to do right now” but Z.D., being older, more assertive and physically taller and heavier than her, just went ahead and had sex with her anyway.

She does not allege that he used violence to achieve his ends but rather that he failed to take “No” for an answer. Z.D. tells a different story.

He says that B.H. was a willing participant throughout and, in fact, that she initiated much of the social and sexual contact they had that evening by texting him and telling him she thought he was “hot”, kissing him on the lips on a dare, rejecting the opportunity to go home on several occasions, removing her own clothes, manipulating his penis, agreeing to “go all the way” and so on. [ 7 ] I may well have been left with a reasonable doubt on the issue of consent simply on the basis of Z.D.’s evidence. As it is, there is also the evidence of A.F.

A.F. was a good friend of B.H. and she was lying on the bunk bed just above and to the side of where B.H. and Z.D. were having sexual intercourse. She was clearly quite embarrassed by what was going on and “tried not to pay attention” but she seems to have felt no sense of urgency or concern for her friend B.H. She heard no scream. She heard no comments such as “No”, “I’m too young”, “stop” or anything like that. After the sexual activity was over and they were getting ready to leave the trailer, A.F. asked B.H. “did that feel good?” and B.H. replied “Yuh”.

In my view, the evidence of A.F. is more consistent with Z.D.’s version of events on the consent issue than with B.H.’s version. [ 8 ] I therefore find that the Crown has failed to prove beyond a reasonable doubt that B.H. did not consent to sexual activity with Z.D. 2. Reasonable steps to ascertain age (s. 150.1(6)) The Law [ 9 ] Parliament has set the minimum age for consent at 16 years (s. 150.1(1)) but has built in certain exceptions such that consent can be a defence where both parties to the sexual activity are relatively close in age.

The exception that is in issue in this case is that set out in s. 150.1(2.1) which reads as follows: “When an accused is charged with an offence under

section 151 …or

section 271 in respect of a complainant who is 14 years of age or more but under the age of 16 years, it is a defence that the complainant consented to the activity that forms the subject matter of the charge if (

a) the accused (

i) Is less than five years older than the complainant; and (ii) Is not in a position of trust or authority towards the complainant, is not a person with whom the complainant is in a relationship of dependency and is not in a relationship with the complainant that is exploitative of the complainant; or (

b) the accused is married to the complainant.”

[10] Although B.H. was actually 12, Z.D. has testified that he honestly believed she was 14 or 15 years old at the time. Therefore(2.1) is the applicable sub-section in this case. [11] Sub-section (6) must also be considered.

It reads as follows: “An accused cannot raise a mistaken belief in the age of the complainant in order to invoke a defense under subsection …(2.1) unless theaccused took all reasonable steps to ascertain the age of the complainant.” [emphasis added] [12] Counsel have cited a number of cases that assist in interpreting sub-section (6) and the meaning of “all reasonable steps toascertain the age of the complainant”. I will review those cases now. [13] R. v. Osborne, [1992] N.J. No. 311 (Nfld. C.A.): This case involved a 19 year old male and a 13, nearly 14 year old female.

The court rejected the notion that it was up to the accused to prove that he took all reasonable steps to ascertain the complainant’s age. The accused is not required to establish anything. There need only be a reasonable doubt that the accused took all reasonable steps inorder for the defence of consent to be available. The court defined the burden of proof as follows as page 11: “The onus on the [accused] respondent in this case is an evidentiary one, not a persuasive onus.

If he identifies evidence which, if true,would entitle him to an acquittal, it is up to the Crown to show beyond a reasonable doubt that he did not take all reasonable steps.”[emphasis added] [14] However, the Newfoundland Court of Appeal also emphasizes that the requirement to take “all reasonable steps” to determinethe age of a young sexual partner is not something to be taken lightly or casually. Parliament’s intention was that persons planning toengage in sexual relations with very young partners must make an “earnest inquiry” into that prospective partner’s age beforeproceeding.

This is how the court put it: “Parliament has decided that a person engaging another who is more than two years younger and under 14 in a sexual encounter is guiltyof a crime, notwithstanding that the encounter may be consensual. The only defence is a belief that the younger is 14 years of age ormore. Parliament requires more than an honest belief; it requires a belief resulting from the taking of “all reasonable steps to ascertainthe age of the complainant”.

Parliament made the act a crime and expects of citizens engaging in sexual activity with young people tomake a reasonable effort to ascertain the age of prospective partners. It is more than a casual requirement. There must be an earnestenquiry or some other compelling factor that obviates the need for enquiry. An accused person can only discharge the requirement byshowing what steps he took and that these steps were all that could be reasonably required of him in the circumstances.

It is notsufficient, for example, to state that further enquiries were not made because they would open the accused to ridicule, embarrassment orrejection.” [emphasis added] [15] R. v. L.T.P., (BC CA), [1997] B.C.J. No. 24: In this case the accused was 16 and the complainant was 13. The trial judge convicted L.T.P. of sexual assault, finding that he simply did not think about the age of the complainant before havingsex with her. On appeal the conviction was overturned and a new trial was ordered. Once again, the emphasis of the appellate decisionis on the burden of proof.

The Crown must prove beyond a reasonable doubt that the accused did not take all reasonable steps toascertain the complainant’s age, or that he did not have an honest belief that her age was 14 years or more.

For the defence to succeed “itmust point to evidence which gives rise to a reasonable doubt that the accused held the requisite belief, and in addition, evidence whichgives rise to a reasonable doubt that the accused took all reasonable steps to ascertain the complainant’s age.” (¶ 19) [16] The court then goes on in ¶ 20 to list some things for a court to consider in assessing whether the Crown has met the burden ofproving that the accused failed to take the necessary steps to determine the complainant’s age: “In considering whether the Crown has proven beyond a reasonable doubt that the accused has not taken all reasonable steps to ascertainthe complainant’s age, the Court must ask what steps would have been reasonable for the accused to take in the circumstances. …[A]visual observation may suffice.

Whether further steps would be reasonable would depend upon the apparent indicia of the complainant’sage, and the accused’s knowledge of same, including: the accused’s knowledge of the complainant’s physical appearance and behavior;the ages and appearance of others in whose company the complainant is found; the activities engaged in by the complainant individuallyor as part of a group; and the times, places, and other circumstances in which the complainant and her conduct are observed by theaccused.

The Court should ask whether, looking at those indicia, a reasonable person would believe that the complainant was 14 yearsof age or more without further inquiry, and, if not, what further steps a reasonable person would take in the circumstances to ascertainher age. Evidence as to the accused’s subjective state of mind is relevant but not conclusive because …”an accused may believe that heor she has taken all reasonable steps only to find that the trial judge or jury may find differently.”’ [emphasis added] [17] In L.T.P.’s case the 13 year old complainant was out after midnight at an outdoor party.

She was with a group of girls, all of whom were 15 or 16 years of age, in grade 10 or 11 at the local high school. She was close to her 14th birthday and was bigger and alittle more developed than most girls of her age. The girls were drinking beer and hanging out with a group of boys, of which L.T.P. wasa member. Most of them knew each other from high school.

There was some evidence that the complainant appeared to be the same ageas the other girls and her behavior was similar in that she was drinking beer from a can and she hugged and flirted with some of the boysincluding L.T.P. (¶ 21 to 25) [18] The trial judge had concluded that L.T.P. simply did not “think about” or “put his mind to” the issue of the complainant’s age. Justice Finch writes that this does not necessarily mean that the accused had not taken all reasonable steps to ascertain her age. The trial

judge ought to have considered that a visual observation alone may be enough in some circumstances. The trial judge ought to haveasked himself “whether the complainant’s appearance, and all of the other circumstances, were such as to give rise to a reasonable doubtas to whether it would have been reasonable for the accused to be put on his inquiry, and whether it was reasonable for him not to put hismind to the complainant’s age in the circumstances.” (¶ 27) [19] R. v. F.A., (ONSC): The accused in this case was 21; the complainant was 13. Their families were friendsand they had known each other for a long time.

F.A. said that he asked her age and she said she was 14 and that she was a virgin. [20] After referring to Osborne, L.T.P. and others, the court concluded that, in these circumstances it was not enough that F.A. askedthe complainant her age and received the answer of “14” and that she was a virgin. Given the knowledge that F.A. had of thecomplainant, more was required.

The knowledge the court found F.A. had about the complainant included the fact that he had knownher since she was an infant and had been present at birthday celebrations for her in the past, that he knew she was at his home becauseshe was being babysat by his parents, that she was not in the company of older friends and was not drinking or carrying on in a way thatmight be associated with older youth and that he knew some students are not yet 14 years old when they enter grade 9. In thesecircumstances, asking the complainant her age did not amount to the “earnest inquiry” the law requires.

At a minimum, F.A. ought tohave asked the complainant her date of birth. [21] R. v. Hudon, [2010] O.J. No. 6023 (ONSC): The age of the accused, Hudon, and of the complainant are not given except thatthe complainant was “under 16”. Hudon was convicted because the court found that the Crown had proven beyond a reasonable doubtthat he failed to make an earnest inquiry as to the complainant’s age – when all the circumstances were considered. Hudon testified thatshe appeared very mature both in the development of her body and in how she was dressed, in the fact that she consumed liquor and inwho she associated with.

The court found this was not sufficient given that he had known the complainant and her father for some time,going back to when the complainant was 10 years old. He did not attempt to calculate how many years had gone by since then, nor didhe ask her age. [22] R. v. Garraway, 2010 ONCJ 642: The accused was 18; the complainant was 13. The accused was a recent immigrant from St.Vincent in the Caribbean.

The complainant had put a false birthdate on two different social media sites indicating that she was 17 or 18and the accused also testified that she told him she was 18 and he believed her because “people don’t lie about their age in St. Vincent”.The court rejected the complainant’s evidence that she had repeatedly told the accused she was 13. The court concluded that, in thesecircumstances, the accused had taken all reasonable steps to ascertain the complainant’s age, or at least, that there was a reasonable doubtabout the issue and Garraway was found not guilty.

The Evidence [23] Turning now to the facts in the case at bar, I find the following facts are relevant to the issue of whether the evidence provesbeyond a reasonable doubt that Z.D. failed to take all reasonable steps to ascertain B.H.’s age: A. Z.D. first met B.H. some months before at the school bus stop outside his high school. He knew that this bus stop was alsoused by students enrolled at the nearby elementary school; B. B.H. was with A.F. at the time of their first meeting. Z.D. knew A.F. well, having grown up next door to her and her oldersister. There is no doubt that he knew A.F. was under the age of 14.

In fact, he confirmed in cross examination that he knew A.F. was12; C. Despite the fact that B.H. was with A.F. at the time, Z.D. testified that he assumed, at this first meeting, that B.H. was a studenteither at his high school or at the other high school in town rather than assuming that she, like A.F., was a student at the nearbyelementary school; D. Z.D.’s evidence was inconsistent about whether he had ever seen B.H. at his high school. In examination in chief and at thebeginning of cross examination he said they had just met the once before - at the bus stop which is shared with the elementary school.

He was specifically asked whether he had ever seen B.H. at his high school and he answered “no”. However, at the very end of hisevidence, in supplementary questions on cross examination, Z.D. was asked again to confirm that he had never seen B.H. at his schooland this time he claimed to have seen her “around” and to have actually seen her in his school: “Q: You had never seen A.[F.] there, she was going to the elementary school? A: Yeah. Q: You had never seen B.H. there? A: I had seen B. like, around, but I didn’t actually see her in classes or anything. Q: Or in the school?

A: Oh, I seen her in the school before.”;

E. Z.D. said B.H.’s FaceBook page showed her age as being 16 but he seemed to be aware that lying about one’s age was a fairly common tactic amongst young people in order to get access to FaceBook: “because at the time she joined you had to be a certain age to join and she wasn’t the right age”; F. Z.D.’s evidence was inconsistent about just when it was that he first accessed B.H.’s FaceBook page.

Initially, in the context of talking about whether or not she had a nose ring back in 2010, he said he looked at pictures on her FaceBook page “like, after I first met her”, “probably the same week she met me”, an apparent reference to their first meeting at the bus stop, several months before their second meeting and sexual encounter. Later in his evidence he said that he had not looked at her page until “after the fact” – which is to say, after the sexual encounter; G. B.H. admitted that she thought Z.D. was “hot” – that is to say, attractive; H.

On the day in question, which was just around the time school started in late August or early September, 2010, B.H. and her two friends, B.M. and A.F., also 12 years of age, got together for a visit and a sleep over at B.H.’s house; I. On their way back from the corner store (where they had been buying “virgin pina coladas”) they encountered Z.D. who was riding his bike. Later in the day, B.H. and B.M. took the initiative to contact Z.D. by text message to tell him they thought he was “hot” and to arrange a meeting late that evening; J.

Z.D. texted back that he was walking around drinking liquor with a friend, T.R.; K. The girls “snuck out” of B.H.’s parents’ home and met up with Z.D. and T.R. about 11 pm. The boys knew that the girls had come out to meet them without their parents’ permission; L. The 5 young people – Z.D., T.R., B.H., B.M. and A.F. – sat around the school yard for an hour and a half to two hours talking. In A.F.’s words: “we basically talked for, like, ever.” The boys were drinking liquor from a 40 oz bottle of Wiser’s whiskey.

Both B.H. and A.F. testified that they took a few “shots” of whiskey themselves, although Z.D. insisted that he was not aware that the girls were consuming any of the liquor; M. Z.D. testified that they were talking about “everything, basically, how the school year went, what we were going to do.”. However, he said they did not talk about what grade the girls were in. He said they already knew what grade he was in because they were talking to A.F. about it while he was present; N.

It was suggested to Z.D. that he did not ask the girls what grade they were in because he assumed they were in the same grade as A.F., who he knew well, but he denied this saying that he assumed something quite different: “…I assumed A. was chilling out with older girls because she always hung out with older people.”; O. It was suggested to Z.D. that he just did not know what grade the girls were in. His response was “I knew A. was in a lower grade but I thought her friends were just going into high school”. Elsewhere, Z.D. acknowledged that you had to be in grade 8 to go into high school; P.

While they were at the school yard, one of the other girls dared B.H. to kiss Z.D. and she did so. Z.D. said she kissed him on the lips; Q. Z.D. said that after B.H. kissed him he asked her how old she was and she told him she was 14, “that she just turned 14 in April”. On cross examination B.H. denied ever telling Z.D. that she was 14. She insisted that she told him she was 12;

R. B.H. has exactly the same birth date as A.F., April 16 th , 1998. B.H. testified that while they were at the school yard, she and A.F. told Z.D. that they had the same birth date. Z.D. recalled this conversation but said that because B.H. had said she was older, he assumed she was born in a different year than A.F., although on the same day; S. While they were still at the school yard, Z.D. said that A.F. was “being kind of grabby and trying to kiss me all the time”; T. The group left the school yard because it started to get really cold and to rain.

Instead of going home to their respective residences, they walked to T.R.’s grandfather’s place and climbed into the living quarters of his horse trailer which was parked in the yard. Z.D. testified that the reason they did not go home was because B.H. said she wasn’t ready to go home; U. Once in the horse trailer they cuddled together on the large bed, trying to get warm. Z.D. testified that B.H. began kissing him on the lips and he was kissing her in return, as they lay there. T.R. and B.M. were lying beside them, also kissing.

A.F., feeling very uncomfortable about what was going on and also very sleepy, climbed up to the top bunk and was “trying not to pay attention to what was going on” and to fall sleep; V. B.H. testified that she said things like “No”, “I’m too young” and “I am really not ready for this” but Z.D. overrode her objections saying “don’t worry, everything will be fine”. On cross examination she said she was sure that she had also said “I’m only 12” at this point. B.H. said Z.D. removed her clothing and proceeded to have intercourse with her.

Z.D. testified that B.H. at no time said “No” or “I’m too young” or made any other sort of verbal or physical indication that she was not consenting or that she was too young. Furthermore, he said she participated actively in the sexual activity by removing her clothes, manipulating his penis with her hand and when he asked if she wanted to “go all the way” she eagerly said “yes”; W. B.H. testified that she was 5’3” to 5’4” tall at the time of the incident and 115 to 125 lbs. She said her breasts were developed though not fully and that she was wearing a ‘C’ cup bra at the time.

Her hair was its natural colour, which is brown. She was wearing “a little bit” of make up; she could not remember if she was wearing any nail polish. She was wearing a nose ring in court but said that was something she acquired on her 13 th birthday, after the incident in question. Z.D. testified that he thought B.H. was “14 or 15”. Although it is not entirely clear, it would appear that, at that point in his evidence, Z.D. was speaking about B.H.’s appearance and that he thought from her appearance that she was “14 or 15”; X.

Z.D. testified that after the incident he found out from T.R. that B.H.’s real age was 12. At the time he had intercourse with B.H. he said he thought she was “at least 14”. He was 16 at the time. Analysis [ 24 ] I will begin my analysis with the evidence about what was said verbally about B.H.’s age. [ 25 ] The evidence of the two key players, B.H. and Z.D., is in total conflict on this issue. B.H. testified that she told him she was 12. Z.D. denied that she ever said this. Z.D. testified that she told him she was 14. B.H. denied that she ever said this.

The one thing they do agree on is that, during the conversation in the school yard, B.H. and A.F. told Z.D. that they were born on the same day. [ 26 ] First, as it concerns whether B.H. told Z.D. that she was 12 years old, I am left with at least a reasonable doubt about whether B.H. actually said this to Z.D. in so many words. Her testimony on the point went as follows on cross examination: “Q: He at that point asked you how old you were? A: I was 12 at the time. Q: We know that now, but he at the time asked you how old you were? A: And I said 12. Q: I’m going to suggest that you said you had just turned 14?

A: No. I told him I was 12 and he knew A. and he knew how old A. was and we told him we were born on the same day, same year. Q: I am going to suggest to you that you said you were born on the same day but that you were older than her? A: That is not correct, that is not what I said.”

[ 27 ] I note that her first answer in this exchange was not responsive to the question asked but was more in the nature of an assertion “I was 12 at the time.” She seems so anxious to assert that fact to the court that it may have caused her to lose focus on the questions that were actually being asked during this interchange which were directed at what she told Z.D. concerning her age, not on what her age actually was. Also, it seemed to me that B.H. may have been embellishing her evidence on this point. Certainly she and A.F. told Z.D. that they were born on the same day.

This is one of the few things both B.H. and Z.D. both agree on. But, I think it likely that this was all that was said concerning B.H.’s age – it was a matter of inference that she was 12, because she was born on the same day as A.F. – but her precise age was never clearly spelled out to Z.D. I find that she did not ever, actually say “I am 12 years old” even though she now insists that she did. [ 28 ] Another example of what I believe is embellishment on the part of B.H. on this point is found in her evidence later in cross examination.

She testified that, just prior to sexual intercourse taking place in the trailer, she told Z.D. that she was “only 12”. The interchange went as follows: “Q: You told us earlier that you said to him “no”, “stop”, “I don’t want this”? A: I told him “No I was too young, I was only 12”. Q: Are you sure about that? A: Yes, I am sure about that.” [ 29 ] This was the first time, in either examination or cross-examination, that B.H. mentioned having told Z.D. at this rather advanced stage of proceedings that she was “only 12”.

I frankly find it unlikely that she would have made that sort of assertion at that stage given that she was, by her own admission, willingly lying with Z.D. on the bed, engaging in mutual kissing at this point. [ 30 ] In

summary, as it concerns what B.H. told Z.D., I conclude that she told him she was born on the same day as A.F. I cannot find that it has been proven beyond a reasonable doubt that she said anything more specific about her age than that. [ 31 ] Turning now to Z.D.’s evidence. He insisted that after B.H. kissed him in the school yard on a dare he asked her how old she was and she told him she turned 14 in April. The following is what he said about this on examination in chief: “Q: So you sit there at the school for a couple of hours and then where did you go?

A: Well we were sitting there for awhile and after she had kissed me I asked her how old she was and she told me she was 14. That she just turned 14 in April and … Q: We heard BH tell us that she told you her birthday was the same day as A.’s – did she say that? A: She said it was the same day but she did not clarify that it was the same year. Q: Did she say anything about whether she was older or younger than A.?

A: She said she was older than A.” [ 32 ] As noted, B.H. denies ever telling Z.D. that she was 14, (see her cross examination quoted at ¶ 26 above). [ 33 ] Although, for various reasons, I am skeptical about the truthfulness of Z.D.’s evidence that B.H. told him, in so many words, that she was 14, his evidence does leave me with a reasonable doubt on the point.

Put another way, the evidence fails to prove beyond a reasonable doubt that she did not tell him this and so I will proceed with my analysis pursuant to s. 150.1(6) with the perspective that B.H. did, in fact, tell Z.D. she was 14. [ 34 ] Z.D. also testified that from her appearance he concluded that B.H. was “14 or 15”. [ 35 ] I remind myself of the guidance provided in L.T.P. at ¶ 20 . See ¶ 16 above.

I will now review the indicia of B.H’s age which, on the evidence, were available to Z.D. at the time, with the goal of determining whether a reasonable person would believe that B.H. was 14 years of age or more without further inquiry, and, if not, what further steps a reasonable person would take in the circumstances to ascertain her age. [ 36 ] The indicia Z.D. had before him were that he had been told by B.H. that she was 14 and he thought from her appearance that she was “14 or 15”.

She had taken the initiative to contact him, telling him she thought he was “hot” and she had snuck out of her house late at night, along with her two friends, to meet up with him and his friend, T.R. He and T.R. were drinking liquor and the girls knew that although, according to Z.D., he did not believe the girls were consuming any of that liquor themselves. B.H. had kissed him on the lips in front of the others on a dare from her friends.

She was getting “kind of grabby” in the school yard and trying to kiss him on other occasions. [ 37 ] Against this, though, Z.D. was also aware of indicia that pointed away from a conclusion that she was “at least 14” and towards a conclusion that B.H. was part of A.F.’s peer group and the same age as her. A.F., once again, was a child that Z.D. had known all his

life. He knew A.F. was 4 or 5 years his junior and no more than 12 years of age. [ 38 ] Those indicia are firstly, the fact that the only two times he met B.H. she was in the company of A.F. who was clearly her friend. The first time he met B.H. it was at the school bus stop which is shared with students from the elementary school next door – the elementary school that he knew A.F. attended. The obvious assumption would surely have been that A.F. and B.H. were school mates and were both enrolled at the elementary school.

However, Z.D. says he made quite a different assumption – that B.H. was actually a high school student either from his school or the other high school in town. In furtherance of this topic Z.D. was questioned about whether he had ever seen B.H. around his high school. At first, as one might expect, (given that she was, in fact, still in elementary school) he said that he had not. He later changed his evidence and said he had seen B.H. “around” and had actually seen her in his high school at some point. I do not believe him.

This latter version of events appears to me to be an embellishment added at the last minute. [ 39 ] The second time Z.D. met B.H. was on the date of the incident. Once again she was with A.F. who he knew to be 12 years old and still in elementary school. The obvious assumption would surely have been that both girls were similar in age and in the same grade. However, once again, Z.D. says that he made quite a different assumption from the obvious one.

He said he assumed that A.F. was “chilling out with older girls because she always hung out with older people.” There is really no other evidence to provide support for Z.D.’s stated conclusion that A.F. was the sort of girl who “always hung around with older people” and therefore, that her friend, B.H., must be “older”. In fact, his assumption – that A.F. would not be hanging around with girls of her own age – seems counter intuitive.

In the language of L.T.P., it is not what a reasonable person would have believed if confronted with these facts. [ 40 ] Another key indicia that Z.D. was aware of and which pointed away from the conclusion that B.H. was “at least 14” was the fact that B.H. and A.F. told him, during the long conversation in the school yard, that they had the same birth date. The obvious assumption, it seems to me, is that the girls were the same age. However, again, Z.D. says that he made quite a different assumption. He assumed the girls were born on the same day but in different years.

He made this assumption because B.H. had said she was “older”. Once again, I find that this is not what a reasonable person would have believed if confronted with these facts. [ 41 ] B.H.’s Face Book page was information which, I conclude, was also available to Z.D. at the time although I think it is much less significant as an indicator of her age than her evident friendship and close association with 12 year old A.F. Z.D. testified that when he checked out B.H.’s Face Book page he noted that her profile said she was 16.

However, he does not seem to have regarded this as the truth since it was common to lie about your age in order to meet the minimum age requirement of 16 which existed for Face Book at that time. [ 42 ] There are two issues concerning Z.D.’s evidence about B.H.’s Face Book page. First, there is the factual issue of when he first looked at it. Second, if I conclude that he did look at it before their sexual encounter, what is the significance of that fact to the s. 150.1(2.1) analysis? [ 43 ] Z.D.’s evidence was inconsistent on when he first looked at B.H.’s Face Book page.

When talking about whether B.H. had a nose ring at the time of their sexual encounter, Z.D. testified that he had looked at her pictures on Face Book and was on Face Book with her not long after they first met at the school bus stop – “probably the same week she met me”.

Later, in the context of questions about why he would be surprised that B.H. was lying when she told him she was 14 at the time they had sex since he already knew from her Face Book page that she was someone who lied about her age, Z.D. insisted that he did not look at B.H.’s Face Book page (and see that she had lied about her age) until after the sexual encounter. [ 44 ] Initially I wondered whether this inconsistency about when Z.D. first accessed B.H.’s Face Book page might be the product of misunderstanding on my part (or on his part) as to the questions asked and the answers given.

However, after listening again to the recording of the evidence and carefully updating my notes to accord with the precise details of what was said, I have concluded that the inconsistency is real.

The conclusion I am left with is that Z.D. altered his evidence on the second occasion when this topic came up because he felt uncomfortable admitting that, at the time B.H. told him she was 14 in the school yard, he already knew she was someone who lied about her age. [ 45 ] The second issue concerning the Face Book “indicia” is what significance it has in determining whether the evidence proves, beyond a reasonable doubt, that Z.D. failed to take “all reasonable steps to ascertain the age” of B.H. [ 46 ] The significance, in my view, is simply the point that I think Z.D. shied away from admitting in cross examination and that is B.H. was someone who had lied on a previous occasion about her age.

In my view, a reasonable person would have kept this in mind when that same young person - a young person who he had only ever seen in the company of 12 year old A.F. – then claimed to be 14 years old. [ 47 ] Although this Face Book “indicia” deserves to be noted I don’t attribute a lot of weight to it in the s. 150.1(6) analysis given that it was apparently a common tactic for youth to lie about their age at that time in order to get access to Face Book.

In other words, it was not something that was particularly probative of dishonesty on the part of B.H. and I am sure that it was not seen as such by Z.D. [ 48 ] In

summary, given the indicia present to Z.D. as he sat around the school yard with B.H. and the other girls and as they walked to the trailer and began cuddling on the bed, it is my view that a reasonable person would not have believed that B.H. was 14 years or more without further inquiry such as, at a minimum, pinning down the year of her birth. The critical evidence is B.H.’s obvious friendship with and close association with A.F., a child who Z.D. knew from long acquaintance was 4 or 5 years his junior, still in elementary school and no more than 12 years old.

Z.D. made at least three assumptions which find little or no support in the evidence. He assumed B.H. was in high school; he assumed A.F. was hanging around with children older than she was; and he assumed the girls were born in different years even though they said they had the same birth date. These assumptions were counter-intuitive – they were not the obvious assumptions that a reasonable person would make in those circumstances.

As well, the fact that B.H. had lied on her Face Book page about her age ought to have made Z.D. more cautious in accepting at face value her assertion, on the night of the incident, that she was 14. [ 49 ] Finally, after a careful review of the court record I have concluded that there were internal inconsistencies in Z.D.’s evidence on the issues of whether or not he had ever seen B.H. in his high school before and just when, in relation to the incident, he first accessed

her Face Book page. These inconsistencies damage the credibility of Z.D.’s assertions that he truly believed B.H. was “at least 14” when they had sex together. [ 50 ] I note as well, Z.D.’s brief remark during cross examination that even though he knew A.F. was in elementary school, he thought her friends, B.H. and B.M. were “going into high school”. Z.D. knew that high school starts in grade 8 in this area and I take judicial notice of the fact that children in the B.C. school system generally enter grade 8 in the year they turn 13.

Therefore, if Z.D. thought B.H. and her friend B.M. were “going into high school” this would be a piece of evidence – “indicia” – that B.H. was actually 13 rather than 14 as he elsewhere claimed.

This reference to believing B.H. was “going into high school” that fall is also inconsistent with his assertion that when he had seen B.H. at the bus stop months earlier, at the end of the previous school year, he assumed she was already in one of the high schools. [ 51 ] I find that the evidence proves beyond a reasonable doubt that Z.D. failed to take all reasonable steps to ascertain the age of B.H. before having sex with her. Even though she consented to the sexual activity, Z.D. must still be convicted because of B.H.’s very young age at the time and the provisions of s. 150.1 of the Criminal Code .

I find Z.D. guilty of count # 1 (Sexual Assault of B.H.) and direct a conditional stay of proceedings on count # 2. _________________________ E. L. Bayliff Provincial Court Judge