R. v. C.J.C., 2018 NLCA 68

Her Majesty the Queen (appellant) v. C.J.C. (respondent) (17/30) Indexed As: R. v. C.J.C. 2018 NLCA 68 3 C.A.N.L.R. 568 Court of Appeal of Newfoundland and Labrador Fry C.J.N.L., White and Hoegg JJ.A. November 30, 2018 Restriction on publication : By court order made under

section 486.4(1) of the C riminal Code , information that may identify the person described in this judgment as the complainant or a witness shall not be published in any document, broadcast, or transmitted in any way.

Summary: The Crown appealed after C.J.C., the respondent, was acquitted by the trial judge of one charge of sexual interference and one charge of sexual assault contrary to sections 151 and 271 of the Criminal Code . C.J.C. and the complainant had consensual sexual contact, but due to the complainant being under 16 years of age and there being more than a five-year age difference between her and the respondent, the defence of consent was not available. The respondent successfully argued that he mistakenly believed the complainant was at least 16 years of age.

The Crown appealed arguing that the judge did not give sufficient reasons for acquitting the respondent and that the judge erred in law in finding the respondent had established he had taken all reasonable steps to ascertain the complainant’s age, which is required before mistake of age can be relied on as a defence. Held: Appeal dismissed. Fry C.J.N.L (White and Hoegg JJ.A. concurring): This is a Crown appeal from an acquittal. Both the appellant and the respondent acknowledged that section 676(1) (

a) of the Criminal Code limits Crown appeals against acquittals in proceedings by indictment to questions of law alone. It is within this limited right of appeal that the grounds of appeal brought by the Crown must be viewed. In the context of appeals from acquittals, the standard for the sufficiency of reasons must be viewed in light of the Crown’s limited right of appeal.

While the policy grounds underlying the duty to give reasons apply equally in the context of convictions and acquittals, the significant distinction is that a conviction requires proof, while an acquittal can be founded on the absence of proof. In light of this, and in keeping with the Crown’s limited right of appeal, a trial judge’s reasons for acquitting will only warrant appellate intervention when the reasons are otherwise so inadequate that the Crown’s limited right of appeal was impaired.

The trial judge stated the law, the evidence, and his findings on the law as applied to the evidence, which resulted in his conclusion. The reasons given provide an adequate basis for appellate scrutiny, and there is no basis to conclude that the trial judge failed to provide sufficient reasons. In the circumstances of the case at bar, the trial judge found that the respondent concluded that the complainant was at least 16 years of age on a subjective basis and that he came to that conclusion reasonably.

In effect, the trial judge found that there was an “air of reality” to the defence of mistake of age and that the first part of the test was met. The trial judge then proceeded to consider whether the respondent had taken all reasonable steps to ascertain 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 ascertain the complainant's age, the Court must ask what steps would have been reasonable for the accused to take in the circumstances.

Sometimes a visual observation alone may suffice. Whether further steps would be reasonable would depend upon the apparent indiciaof the complainant's age, and the accused's knowledge of same, including: the accused's knowledge of the complainant's physicalappearance and behaviour; the ages and appearance of others in whose company the complainant is found; the activities engaged ineither by the complainant individually, or as part of a group; and the times, places, and other circumstances in which the complainant andher conduct are observed by the accused.

The onus is on the Crown to prove beyond a reasonable doubt that all reasonable steps were nottaken. The trial judge in this case was able to assess the credibility of the witnesses, including the respondent and the complainant, and to sensethe tone and manner of their testimony. He was able to observe the photographic evidence tendered and the responses of thecomplainant, her mother and the respondent with respect to the physical appearance of the complainant at various ages. He drewinferences when making his findings of fact, which were within his purview to draw.

He assigned weight to various pieces of evidence.A reviewing court should not substitute its own findings of fact or draw different inferences from the facts than that of the trial judge. Itis clear from his decision that the trial judge was alive to the difference in the ages of the complainant and the respondent. The trial judgewas entitled to determine the amount of weight to be placed on that fact, as well as all of the other factors that informed hisdetermination of the ultimate issue.

The Crown argued that the trial judge erred by failing to consider the totality of the evidence with regard to the need for reasonable stepsin deciding whether the defence under

section 150.1(4) of the Criminal Code created a reasonable doubt. The trial judge’s reasons, whilebrief, demonstrate that he was aware of his obligation to consider the totality of the evidence and that he considered all of the evidence asit related to the ultimate issue. He found facts, weighed the evidence and drew inferences from the evidence, all of which he was entitledto do. The trial judge applied the correct law to the evidence and found that the Crown had not proved the respondent’s guilt beyond a reasonable doubt. There is no basis to intervene. Cases cited: R. v.

Graveline, 2006 SCC 16, [2006] 1 S.C.R. 609 R. v. J.M.H., 2011 SCC 45, [2011] 3 S.C.R. 197 R. v. Biniaris, 2000 SCC 15, [2000] 1 S.C.R. 381 R. v. Kent, (SCC), [1994] 3 S.C.R. 133 R. v. Barros, 2011 SCC 51, [2011] 3 S.C.R. 368 R. v. George, 2017 SCC 38, [2017] 1 S.C.R. 1021 R. v. Sheppard, 2002 SCC 26, [2002] 1 S.C.R. 869 R. v. R.E.M., 2008 SCC 51, [2008] 3 S.C.R. 3 Brake-Patten v. Gallant, 2012 NLCA 23, 321 Nfld. & P.E.I.R. 77, leave to appeal to Supreme Court of Canada refused, [2012] S.C.C.A.No. 257 R. v. Walker, 2008 SCC 34, [2008] 2 S.C.R. 245 R. v. Tannas, 2015 SKCA 61, 460 Sask. R. 161 R. v.

Osborne (1992), (NL CA), 102 Nfld. & P.E.I.R. 194, 17 C.R. (4th) 350 (Nfld. C.A.) R. v. L.T.P. (1997), (BC CA), 113 C.C.C. (3d) 42, 86 B.C.A.C. 20 (BCCA) R. v. Saliba, 2013 ONCA 661, 304 C.C.C. (3d) 133 R. v. Duran, 2013 ONCA 343, 3 C.R. (7th) 274 R. v. Morin, (SCC), [1992] 3 S.C.R. 286, 131 A.R. 81 Counsel: Sheldon B. Steeves, for the appellant; Adam J. Crocker, for the respondent.

This appeal was heard on September 19, 2018 before Fry C.J.N.L, White and Hoegg JJ.A. The following judgment was delivered on November 30, 2018 by Fry C.J.N.L. for the Court. ______________________________________________________________ Fry C.J.N.L.: [ 1 ] C.J.C., the respondent, was acquitted by the trial judge on March 2, 2017 of one charge of sexual interference and one charge of sexual assault contrary to sections 151 and 271 of the Criminal Code . [ 2 ] The sexual contact between the complainant and the respondent was consensual.

However, the respondent was prohibited from relying on the complainant’s consent as a defence because the complainant was younger than 16 years of age and the respondent was more than 5 years her senior (section 150.1(2.1)). [ 3 ] The respondent’s defence was based on “mistake of age” in that he believed the complainant was at least 16 years of age at the time of the sexual contact.

Section 150.1(4) of the Code limits the availability of the mistake of age defence by requiring an accused to take “all reasonable steps” to ascertain a complainant’s age. [ 4 ] The Crown’s appeal raises issues on the proper application of the provisions in

section 150.1(4) of the Code . BACKGROUND [ 5 ] The factual findings of the trial judge were not disputed or at issue on appeal. The complainant lived all her life in a small rural community in Newfoundland and Labrador. In the summer of 2014 when the offences were alleged to have occurred, she was 14 years old, with her 15th birthday approaching in October. The respondent grew up in the same small community, moving to Alberta in search of employment in 1995 when he turned 17 years old.

He returned to the community in July 2014 because he was laid off. [ 6 ] The complainant initially contacted the respondent while he was working in Alberta by sending a Facebook “friend” request to him. Before accepting her request, the respondent, then nearly 36 years of age, contacted his 15-year-old niece to find out who the complainant was, as he did not know her. He accepted the friend request after his niece advised that she knew the complainant. [ 7 ] When the respondent returned to the province, he lived with his mother. His sister and her daughters (his nieces) lived nearby.

His nieces were 15 and 13 years old and were friends with the complainant. The complainant visited the respondent’s nieces regularly and the respondent took all three of them on outings, such as swimming, shopping and visits to historic sites during the summer of 2014. [ 8 ] The trial judge made the following findings of fact regarding the respondent’s knowledge of the complainant’s age, and the reasonableness of the steps he had taken: • Prior to any sexual activity occurring, the respondent had a conversation with the complainant about her age. She said she was older than T., his 15 year-old-niece.

This discussion did not relate to an intended relationship between the respondent and the complainant.

The respondent believed her statement as to her age, testifying that he thought she was 16 or 17. • The respondent was aware that the complainant worked as a waitress at her grandmother’s restaurant and was involved in the usual duties including taking orders as well as receiving and recording payment. • During the summer of 2014, the complainant operated an all-terrain vehicle (“quad”) on public roadways. • The complainant told the respondent that she was able to drive a motor vehicle. • The respondent was aware that the complainant organized parties at her parents’ cabin where alcohol was consumed. • The complainant told the respondent she was not getting along with her mother and wanted to move out as soon as it was feasible to do so. [ 9 ] The respondent and the complainant agree that they had three consensual sexual encounters during the months of July and August 2014, all of which occurred after the discussion regarding her age. [ 10 ] The first encounter occurred after a late night bonfire party at the residence of the respondent’s sister.

The respondent and the complainant kissed and the two proceeded to the nearby residence of the respondent’s mother and entered his bedroom. The complainant removed her clothing, assisted him in removing his clothing and they had a sexual encounter, including sexual intercourse. Both the complainant and the respondent described this encounter as voluntary and consensual. [ 11 ] Two further sexual encounters involving sexual intercourse occurred in August of 2014, each time in the respondent’s Jeep. These encounters occurred on a public unpaved road near the residence of the complainant’s parents.

The complainant met the respondent at the location by driving there on her quad. [ 12 ] There were numerous communications during this time by electronic messaging between the two, expressing their love for each other as well as engaging in discussions of a sexual nature. The respondent suggested that they tell her parents about the relationship. The complainant insisted that they keep it secret.

[ 13 ] The complainant’s parents discovered the respondent’s and complainant’s electronic messages related to their sexual encounters on the complainant’s iPad. This led to the criminal charges. [ 14 ] Against this factual backdrop, the trial judge found that the complainant’s appearance and behaviour was not inconsistent with that of older teenagers. [ 15 ] In addition to these findings of fact, the trial judge also found that the respondent subjectively believed the complainant was at least 16 years of age and that the respondent had taken all reasonable steps to ascertain her age. Accordingly, the respondent was acquitted of the charges. ISSUES [ 16 ] The issues to be determined are:

(1) Did the trial judge fail to give sufficient reasons to support his conclusions under

section 150.1(4) of the Criminal Code ?

(2) Did the trial judge make a legal error in his reasonable steps analysis under

section 150.1(4) of the Criminal Code ? ANALYSIS [ 17 ] There was no disagreement at trial or on appeal that the physical act of the offence had been made out. The parties engaged in three consensual sexual encounters, in that each party willingly participated. The complainant was under the age of 16 at the time of these encounters and therefore could not legally consent. [ 18 ]

Section 151 of the Code creates the offence of sexual interference—touching the body of a person under the age of 16 years for a sexual purpose. It reads as follows: 151. Every person who, for a sexual purpose, touches, directly or indirectly, with a part of the body or with an object, any part of the body of a person under the age of 16 years (

a) is guilty of an indictable offence and is liable to imprisonment for a term of not more than 14 years and to a minimum punishment of imprisonment for a term of one year; or (

b) is guilty of an offence punishable on

summary conviction and is liable to imprisonment for a term of not more than two years less a day and to a minimum punishment of imprisonment for a term of 90 days. [ 19 ]

Section 271 of the Code creates the offence of sexual assault: 271. Everyone who commits a sexual assault is guilty of (

a) an indictable offence and is liable to imprisonment for a term of not more than 10 years or, if the complainant is under the age of 16 years, to imprisonment for a term of not more than 14 years and to a minimum punishment of imprisonment for a term of one year; or (

b) an offence punishable on

summary conviction and is liable to imprisonment for a term of not more than 18 months or, if the complainant is under the age of 16 years, to imprisonment for a term of not more than two years less a day and to a minimum punishment of imprisonment for a term of six months. [ 20 ]

Section 150.1(4) provides that a mistake of fact as to the age of the complainant is not a defence to a charge under sections 151 or 271 unless the accused took all reasonable steps to determine the age of the complainant: 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. The Crown’s Right of Appeal [ 21 ] This is a Crown appeal from an acquittal. Both the appellant and the respondent acknowledged that section 676(1)(

a) of the Code limits Crown appeals against acquittals in proceedings by indictment to “questions of law alone” ( R. v. Graveline , 2006 SCC 16 , [2006] 1 S.C.R. 609 at para. 13 ). [ 22 ] The Crown’s position is that the trial judge’s shortcomings in assessing the evidence can constitute an error of law. In R. v.

J.M.H . , 2011 SCC 45 , [2011] 3 S.C.R. 197 at paras. 24-32 , Cromwell J., for the Court, outlined the following circumstances when a trial judge’s alleged shortcomings in assessing the evidence constitute an error of law giving rise to a Crown appeal from an acquittal: (1) making a finding of fact for which there is no supporting evidence, but a conclusion that the trier of fact has a reasonable doubt is not a finding of fact for the purposes of this rule; (2) where the legal effect of findings of fact or of undisputed facts raises a question of law; (3) assessing the evidence based on a wrong legal principle; and (4) failure to consider all of the evidence in relation to the ultimate issue of guilt or “innocence.” [1]

[23] The respondent describes the Crown’s appeal as an attack on the trial judge’s finding with respect to reasonable doubt. Therespondent argues that the Crown’s appeal is essentially alleging an “unreasonable acquittal,” which is outside the scope of permissibleCrown appeals under section 676(1)(a). [24] An appeal on a “question of law” distinguishes the Crown’s limited right of appeal in comparison to that of a convicted person,which extends, more broadly, to questions of law, fact, and mixed fact and law (R. v. Biniaris, 2000 SCC 15, [2000] 1 S.C.R. 381 atpara 30).

The Crown is barred from appealing an acquittal on the sole basis that it is unreasonable, without asserting any other error oflaw leading to it. [25] For example, in R. v. Kent, (SCC), [1994] 3 S.C.R. 133, 117 D.L.R. (4th) 345 at 143, in an appeal from anacquittal, Major J., for the Court said that the question of whether the proper inference has been drawn by a trial judge from the factsestablished in evidence is a question of fact, as is evidentiary sufficiency.

These inferences are within the exclusive jurisdiction of trialjudges, and are not subject to appellate review on a Crown appeal. [26] While the reasonableness of a conviction is inevitably a question of law, an acquittal will only warrant appellate interventionwhen an identifiable legal error has tainted the judge’s finding of reasonable doubt. In R. v. Barros, 2011 SCC 51, [2011] 3 S.C.R. 368,Binnie J. for the majority, made the following comments on appeals of acquittals: [52] It is common ground that no appeal lies from the trial judge's acquittal of Mr.

Barros on the extortion charges except on a questionof law; see s. 676(1)(

a) of the Criminal Code; R. v. Graveline, 2006 SCC 16, [2006] 1 S.C.R. 609. Although in R. v.

Biniaris, 2000 SCC15, [2000] 1 S.C.R. 381, the Court held that the reasonableness of a conviction raised an issue of law ("whether a conviction can be saidto be unreasonable, or not supported by the evidence, imports in every case the application of a legal standard" (para. 23)), there is nocorresponding right of the Crown to appeal what it considers to be an unreasonable acquittal, as Arbour J. made clear in Biniaris itself, atpara. 32: There can be no suggestion that the Crown's right of appeal at first instance is being enlarged or expanded to include "unreasonableacquittals" as a result of the determination that the reasonableness of a verdict is a "question of law" as well as a "question of law alone".As before, the Crown is barred from appealing an acquittal on the sole basis that it is unreasonable, without asserting any other error oflaw leading to it.

However, if a trial judge misdirects himself or herself on the law to be applied to the facts, an error of law will be committed sufficient toground a Crown appeal under s. 676; see R. v. B. (G.), (SCC), [1990] 2 S.C.R. 57: ... the essential caveat [is] that the "misapprehension" or "lack of appreciation" of the relevant evidence must have been the result of thetrial judge's misdirection of himself or herself as to the applicable law .... [p. 75] (Emphasis in original.) [27] In R. v.

George, 2017 SCC 38, [2017] 1 S.C.R. 1021, the 35-year-old accused had consensual sexual intercourse with a 14-year-old and was acquitted at a judge alone trial. The majority of the Court of Appeal overturned the acquittal and ordered a new trial. TheSupreme Court of Canada restored the acquittal, noting that disagreements over the drawing of factual inferences and the weighing ofevidence (with respect to the ultimate issue) do not constitute errors of law (at para. 24). [28] It is within this limited right of appeal that the grounds of appeal brought by the Crown must be viewed.

Failure to Give Sufficient Reasons [29] In R. v. Sheppard, 2002 SCC 26, [2002] 1 S.C.R. 869 the Supreme Court of Canada laid down the foundational principles withrespect to the duty to give reasons. The Supreme Court then expanded on the scope of that duty and commented on the standard forsufficiency of reasons in R. v. R.E.M., 2008 SCC 51, [2008] 3 S.C.R. 3. [30] The principles as stated in Sheppard and R.E.M. were summarized by Hoegg J.A. of this Court in Brake-Patten v. Gallant, 2012NLCA 23, 321 Nfld. & P.E.I.R. 77, leave to appeal to Supreme Court of Canada refused, [2012] S.C.C.A.

No. 257 as follows: [110] In several subsequent cases, the high court expanded on the duty to give reasons and what constitutes their sufficiency. … Themost recent and comprehensive treatment of these issues is found in R.E.M. At paragraph 11 of that case, Chief Justice McLachlinsummarized the three main purposes of reasons: (1) reasons tell the parties why the decision was made, proving that the court heard and considered the evidence and has not takenaccount of extraneous matters; (2) reasons provide public accountability so that justice is seen to be done; and (3) reasons permit effective appellate review.

She further noted that reasons help ensure fair and accurate decision-making by focusing the judge’s attention on the salient issues, andthat reasons help to develop the law in accordance with the principle of stare decisis (paragraph 12). [111] At paragraph 35 of R.E.M., the Chief Justice summarized the test for sufficiency of reasons:

(1) Appellate courts are to take a functional, substantive approach to sufficiency of reasons, reading them as a whole, in the context ofthe evidence, the arguments and the trial, with an appreciation of the purposes or functions for which they are delivered (see Sheppard,at paras. 46 and 50; Morrissey, at p. 524).

(2) The basis for the trial judge's verdict must be "intelligible", or capable of being made out. In other words, a logical connection

between the verdict and the basis for the verdict must be apparent. A detailed description of the judge's process in arriving at the verdictis unnecessary.

(3) In determining whether the logical connection between the verdict and the basis for the verdict is established, one looks to theevidence, the submissions of counsel and the history of the trial to determine the "live" issues as they emerged during the trial. [31] In the context of appeals from acquittals, the standard for the sufficiency of reasons must be viewed in light of the Crown’slimited right of appeal.

While the policy grounds underlying the duty to give reasons apply equally in the context of convictions andacquittals, the significant distinction is that a conviction requires proof, while an acquittal can be founded on the absence of proof (R. v.Walker, 2008 SCC 34, [2008] 2 S.C.R. 245 at paras. 19 and 26). [32] In light of this, and in keeping with the Crown’s limited right of appeal, a trial judge’s reasons for acquitting will only warrantappellate intervention when the reasons are otherwise “so inadequate that the Crown’s limited right of appeal was impaired” (Walker atpara. 27). [33] Applying the “functional, substantive approach” from R.E.M. to the present case, I conclude that the trial judge’s reasonsestablish a logical connection between his verdict, and the basis for reaching that verdict. [34] As discussed in the following section, the trial judge stated the law, the evidence, and his findings on the law as applied to theevidence, which resulted in his conclusion.

The reasons given provide an adequate basis for appellate scrutiny, and I see no basis toconclude that the trial judge failed to provide sufficient reasons. Reasonable Steps Analysis [35] The Supreme Court of Canada discussed the “mistake of age” defence in

section 150.1(4) in the recent George decision. Indescribing the defence, Gascon J. stated: [8] … Parliament has imported an objective element into the fault analysis to enhance protections for youth… As a result, to convictan 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 )… [36] As was stated in R. v.

Tannas, 2015 SKCA 61, 460 Sask. R. 161 at para. 21: [21] …to invoke the defence of mistake of fact, the defendant must meet the minimum evidentiary burden of establishing the defencehas an “air of reality” to it: R v Pappajohn, (SCC), [1980] 2 SCR 120 at 133. Where a defendant’s act would be lawfulaccording to the facts as the defendant believed them to be, the defendant does not have the necessary criminal mind (mens rea) andought not be punished for that act.

In this way, the defence of mistake fact is more properly seen as a negation of guilty intention (mensrea) than as affirmation of a positive defence… On this point, the judge found Mr. Tannas had held an honest belief C.W. was at least 16years old and the Crown has not taken serious issue with that finding. While this might logically seem to end the matter, it does not—byreason of

section 150.1(4) —rather, this is where the analysis must begin. (Emphasis in original.) [37] In the circumstances of the case at bar, the trial judge found that the respondent concluded that the complainant was at least 16years of age on a subjective basis and that he came to that conclusion reasonably. In effect, the trial judge found that there was an “air ofreality” to the defence of mistake of age and that the first part of the test was met. [38] After finding that there was an air of reality to the

section 150.1(4) defence, the trial judge proceeded to consider whether therespondent had taken all reasonable steps to ascertain the complainant’s age. [39] The Crown, while not conceding the respondent’s subjective belief, submits in the factum and argument that the crux of theappeal relates to whether the trial judge erred in concluding that the respondent took all reasonable steps to ascertain the age of thecomplainant.

In this regard, the Crown alleges that the trial judge failed to consider the totality of the evidence and failed to engage in aproper contextual analysis. [40] The trial judge accepted the respondent’s evidence that he asked the complainant how old she was prior to any sexual activityoccurring. He accepted the evidence of the respondent that the complainant had advised that she was older than his niece who wasfifteen years of age. He accepted the respondent’s evidence that when he asked her age he had no intention at that time to involve himselfin a sexual relationship.

He accepted the evidence of the respondent that the complainant was working in a family restaurant, that shedrove a quad and that she stated she was able to drive a car but he knew she did not have a driver’s licence. He accepted the evidence thatshe had parties involving friends and alcohol at her parents’ cabin, and that her appearance was not inconsistent with that of an olderteenager. [41] The trial judge also, in assessing credibility of the witnesses, commented on the evidence of the complainant. He noted thatwhile she did not deny the sexual encounters, her evidence was contradictory.

She admitted that she had lied to the police and at thepreliminary inquiry but provided no explanation. In reviewing the transcript her evidence was replete with “I don’t know” or “I can’tremember.” The judge reasonably concluded he would consider this where there was a conflict between her evidence and that of therespondent. [42] The trial judge referred to the decision in R. v. Osborne (1992), (NL CA), 102 Nfld. & P.E.I.R. 194, 17 C.R.(4th) 350 (Nfld. C.A.) of this Court, upholding an acquittal, where Chief Justice Goodridge outlined the requirements to establish a

defence under

section 150.1(4): [58] All that s. 150.1(4) requires is that there is evidence, which, if true, would entitle the accused to an acquittal. As noted above, it isnot necessary that the facts be true. It is only necessary that the evidence raise a reasonable doubt. [59] A cautionary note should be expressed for those who seek to establish such a defence. The evidentiary onus is to show evidencethat establishes that the accused took all reasonable steps to ascertain the age of the complainant.

The common law defence of honestbelief has thereby been restricted to those entertaining an honest belief who have taken all reasonable steps to ascertain the true age. Theword “all” is important and, while it is only necessary for an accused to create a reasonable doubt, the evidence which he uses toestablish such doubt must be directed to the word “all” as much as to any other part of the subsection. … [61] The onus on the respondent in this case is an evidentiary onus, 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 in original.) [43] Osborne has been cited with approval by a number of appellate courts including the Supreme Court of Canada and establishes afoundation for the reasonable steps analysis. In addition, there are a number of relevant principles arising out of the jurisprudence. In R.v.

L.T.P. (1997), (BC CA), 113 C.C.C. (3d) 42, 86 B.C.A.C. 20 (BCCA) from the British Columbia Court ofAppeal ̶ which cites Osborne and has itself been cited numerous times and recently was cited with approval by the Supreme Court ofCanada in George ̶ the Court stated as follows: [20] In considering whether the Crown has proven beyond a reasonable doubt that the accused has not taken all reasonable steps toascertain the complainant's age, the Court must ask what steps would have been reasonable for the accused to take in the circumstances. As suggested in R. v.

Hayes, supra, sometimes a visual observation alone may suffice. Whether further steps would be reasonable woulddepend upon the apparent indicia of the complainant's age, and the accused's knowledge of same, including: the accused's knowledge ofthe complainant's physical appearance and behaviour; the ages and appearance of others in whose company the complainant is found; theactivities engaged in either by the complainant individually, or as part of a group; and the times, places, and other circumstances in whichthe complainant and her conduct are observed by the accused.

The Court should ask whether, looking at those indicia, a reasonableperson would believe that the complainant was fourteen years of age or more without further inquiry, and if not, what further steps areasonable person would take in the circumstances to ascertain her age. Evidence as to the accused's subjective state of mind is relevantbut not conclusive because, as pointed out in R. v.

Hayes at p.11, "[a]n accused may believe that he or she has taken all reasonable stepsonly to find that the trial judge or jury may find differently". (Emphasis added.) [44] The following principles are drawn from paragraph 9 of the Supreme Court of Canada’s decision in George: 1. Determining what raises a reasonable doubt in respect of the objective element is a highly contextual, fact-specific exercise. 2. In some cases, it may be reasonable to ask a partner’s age. It would be an error, however, to insist that a reasonable person wouldask a partner’s age in every case. 3.

Conversely, it would be an error to assert that a reasonable person would do no more than ask a partner’s age in every case, giventhe commonly recognized motivation for young people to misrepresent their age. 4. Such narrow approaches would contradict the open-ended language of the reasonable steps provision. 5. That said, at least one general rule may be recognized: the more reasonable an accused’s perception of the complainant’s age, thefewer steps reasonably required of them.

This follows inevitably from the phrasing of the provision (“all reasonable steps”) and reflectsthe jurisprudence. (Emphasis in original.) [45] In R. v. Saliba, 2013 ONCA 661, 304 C.C.C. (3d) 133, the Ontario Court of appeal wrote: [28] As explained in R. v. Dragos (2012), 2012 ONCA 538 , 291 C.C.C. (3d) 350, at paras. 29-33 (Ont. C.A.), s. 150.1(4)mandates an inquiry akin to a due diligence inquiry. The trier of fact must compare the steps, if any, taken by an accused to determinethe true age of the complainant with the steps that a reasonable person would have taken in those circumstances.

Of course, unlike themore familiar due diligence inquiry, the s. 150.1(4) analysis does not place any onus on the accused. The onus is on the Crown to provebeyond a reasonable doubt that all reasonable steps were not taken: Duran, at para. 54. [46] In R. v. Duran, 2013 ONCA 343, 3 C.R. (7th) 274 at para. 52, the Ontario Court of Appeal also stated that “[w]hat constitutes ‘allreasonable steps’ depends on the context and the circumstances. There is no automatic checklist of considerations applicable to everycase.

Indeed, in some cases, an accused’s visual observation of the complainant may be enough to constitute reasonable steps.” [47] The Ontario Court of Appeal further stated at paragraph 53: [53] In this case the trial judge should have instructed the jury to determine whether what the appellant knew and observed about thecomplainant were all the steps a reasonable person needed to take or whether a reasonable person ought to have made further inquiries.

In making that determination, the jury should have been told to take account of the following considerations and the evidence on them:the accused’s observations of the complainant; the complainant’s appearance and behaviour; the information the complainant told the

appellant about herself, including any information about her age; and the age differential between the appellant and the complainant. [ 48 ] In the case at bar, the Crown submits that the trial judge erred because he focused on what was relevant to the respondent’s belief as to the complainant’s age but did not focus on what steps, if any, the respondent had taken to ascertain her age. It was argued that he conflated the evidence necessary to find an honest belief with the reasonable steps analysis. The Crown also submits that the trial judge erred because he did not consider whether any further steps were reasonably required. [ 49 ] In addition to the

summary of evidence that the trial judge reviews in his reasons, there are excerpts from the transcript that support the findings of the trial judge that the steps that the accused took were reasonable in the circumstances. In this exchange, it appears that the respondent wanted to be open about the relationship with friends and the complainant’s parents, demonstrating a confidence in the age assessment. Q. And how old did you think [A.] was when you were writing those [Facebook messages]? A.

Well I asked her how old she was, she didn't really give me an answer as on a number but she did say she was older than my niece at the time and my niece was 15, so I just figured she was 16 or 17 years old right. Q. Now, you've heard [A’s] evidence that she wanted to keep this relationship secret from her parents and secret from her friends. What do, what do you know about that? Was it kept secret? A. Yeah, she, she didn’t tell anybody.

I, I wanted to, but I didn't know why she didn't want to, but I, I, I guess I knows now,… (Transcript, Volume II at 12) [ 50 ] With respect to keeping the sexual relationship a secret from her parents, the trial judge wrote: “[h]owever, she indicated that she would not have disclosed the sexual nature of their encounters. This is understandable (2017 NLTD(G) 38 at para. 9).” The Crown asserts that keeping the relationship secret should have caused the judge to infer that the respondent was aware that the complainant was under the age of 16.

The trial judge obviously drew the inference that even if she were 16 she may not have wanted the sexual nature of the relationship disclosed to her parents. [ 51 ] During cross-examination the respondent elaborated on the type of enquiries he made and why they were reasonable in the circumstances. Q. So she said she was older than [T.]? A. Yeah. Q. And you didn't ask her to quantify or qualify or- A.

No, no, no but there was a couple of things, like I mean, learning to drive, wanting to move out and all, all that just, you know, made me think she was older than what she was, right. … Q. … Did you know there was any issue with her age, and what was going on with what you were doing? A. No, my dear, no. Q. Was it a surprise to you – A. Yes. Q. -that you were charged? And now when I say issue with her age, I mean did you know that people of a certain age shouldn't be in sexual contact with adults. A.

Yes. (Transcript, Volume II at 24-25) Q. …that that first night when you say [A.] came in and took off her clothes and you guys kissed and then you had sex. Did you ever think to question if she was too young to be doing that? A. I, I thought she was being honest with me and telling me she was old enough, right. Q. Um-hm. But that's, that's – now you said she said she was older than [T.]? A. Yeah. Q. But she never told you how old? A. She never give me no definitive answer. I did, I did check Facebook and there was no date when she was born or how old she was or anything like that.

Q. Right. A. Never give me no indication she was young, younger than what she had said she was, right .… Q. … And you, so you said you never actually got an answer out of her about her age, just kind of this older than [T.] A. Yeah. Q. And you didn't have any conversation further than that? A. No, I didn't think there would be- Q. Okay. A. I didn't think there was need for it. … Q. So, so, wasn't it true that you didn't, you didn't really care about age, you felt like she was someone- A. No- Q. - you liked. A. - That wasn't the point.

If I knew how old she really was at the time, I, it wouldn't – this wouldn't be happening now, okay. Q. Okay. But you didn't really go to a lot of effort to find out how old she really was? A. I thought I went to enough effort. At the time, I thought I did, but obviously, I didn't. (Transcript, Volume II at 43-45) [ 52 ] The trial judge also found that the respondent’s testimony of the discussion with the complainant about moving out of her parents’ home was relevant to informing his reasonable steps analysis. This exchange during cross-examination provides some context: Q.

And you guys discussed moving – or she, she wanted to move in with you? A. Yes. Q. And then did you think that move meant into your mother's home that you were staying in then? A. No, I was, I was getting ready to buy a house, but I, I lost my job in Rocky Harbour, and I was like kind of low on money, and so I had to take up fishing this year, so, I don't know. Q. Okay. So, so was that more just a conversation that day because she was upset or was that an actual plan that you guys had? A. I – we spoke about it once and that's, that was it, right. There wasn't no plan or nothing it was just – Q.

Did you think maybe she was a bit young to move out from her parents’ house? A. No, I thought she was 16 or 17 years old, you know, like. It's not unheard, unheard of to see a kid move out at that age. I moved out when I was 17, I was working, right. (Transcript, Volume II at 32–33) [ 53 ] The Crown submits that the trial judge did not ascertain or analyze what other steps the respondent should have taken when ascertaining the age of the complainant.

At paragraph 28 of his decision, the trial judge cited L.T.P for the proposition that “[t]he court must ask what steps would have been reasonable for the accused to take in the circumstances." The trial judge was alive to the issue of considering what steps would have been reasonable for a person standing in the shoes of the respondent to take. [ 54 ] The trial judge considered this in his judgment where he stated a t paragraph 30, “[t]here are other steps that may have been explored by the Accused.

In the circumstances they were not reasonably required.” The trial judge concluded that the steps a reasonable person would have taken were those that the respondent took. [ 55 ] The trial judge in this case was able to assess the credibility of the witnesses, including the respondent and the complainant, and to sense the tone and manner of their testimony. He was able to observe the photographic evidence tendered and the responses of the complainant, her mother and the respondent with respect to the physical appearance of the complainant at various ages.

He drew inferences when making his findings of fact, which were within his purview to draw. He assigned weight to various pieces of evidence. A reviewing court should not substitute its own findings of fact or draw different inferences from the facts than that of the trial judge. [ 56 ] Gascon J. in George outlines the proper approach for appellate review in circumstances such as this: [24] While one may disagree with the weight the trial judge gave this evidence, no legal error arises from mere disagreements over factual inferences or the weight of evidence ( J.M.H. , at para. 28 ).

Indeed, many of the majority’s comments reveal that its discomfort with this evidence was not because it was irrelevant (which would have illustrated a misconception of principle, a legal issue: ibid. , at para. 29), but because its relevance was marginal (a factual issue). The trier of fact is best situated to assign weight to evidence. …

[57] The Crown also submits that the trial judge did not place sufficient weight on the age difference between the respondent and thecomplainant. The respondent testified as to his date of birth and the trial judge’s decision refers to that respondent as being in his mid-thirties. It is clear from his decision that the trial judge was alive to the difference in the ages of the complainant and the respondent.

Thetrial judge was entitled to determine the amount of weight to be placed on that fact, as well as all of the other factors that informed hisdetermination of the ultimate issue. [58] The Crown submits that the analysis of all of the individual pieces of evidence and the circumstances referred to by the trialjudge were equivocal and did not on their own demonstrate that the accused had taken reasonable steps to ascertain the age of thecomplainant or that his belief in her age was reasonable. [59] In J.M.H., Cromwell J. reminds us of the principle that a trial judge must not subject individual pieces of evidence to the standardfor proof beyond a reasonable doubt but must consider the evidence as a whole in relation to the ultimate issue.

He also referencesSopinka J.’s statement in R. v.

Morin, (SCC), [1992] 3 S.C.R. 286, 131 A.R. 81 at 296 that “[a] trial judge must considerall of the evidence in relation to the ultimate issue but unless the reasons demonstrate that this was not done, the failure to record the factof it having been done is not a proper basis for concluding that there was an error of law in this respect.” [60] Cromwell J. further stated at paragraphs 31-32: [31] … It is a misapplication of the Morin principle to apply it whenever a trial judge fails to deal with each piece of evidence or recordeach piece of evidence and his or her assessment of it. … [32] A trial judge is not required to refer to every item of evidence considered or to detail the way in which each item of evidence wasassessed. … [61] The Crown argued that the trial judge erred by failing to consider the totality of the evidence with regard to the need forreasonable steps in deciding whether the defence under

section 150.1(4) created a reasonable doubt. The trial judge was aware of hisobligation to consider the totality of the evidence. At paragraph 28, he states: “[o]verall, it must be assessed as to what constitutes ‘allreasonable steps’ for the purpose of s. 150.1(4).” The trial judge’s reasons, while brief, demonstrate that he was aware of his obligationto consider the totality of the evidence and that he considered all of the evidence as it related to the ultimate issue.

SUMMARY AND DISPOSITION [62] In

summary, the trial judge found facts, weighed the evidence and drew inferences from the evidence, all of which he wasentitled to do. The trial judge applied the correct law to the evidence and found that the Crown had not proved the respondent’s guiltbeyond a reasonable doubt. In the absence of demonstrated error, there is no basis for this Court to interfere with his decision. [63] I would dismiss the appeal. Appeal dismissed.