R. v. J.N., 2019 NLCA 65

Her Majesty the Queen (appellant) v. J.N. (respondent) (18/16) Indexed As: R. v. J.N. 2019 NLCA 65 5 C.A.N.L.R. 85 Court of Appeal of Newfoundland and Labrador Fry C.J.N.L., O’Brien and Goodridge JJ.A. October 9, 2019

Summary: J.N. was charged with sexual interference against her boyfriend, A, who was under the age of 16. The relationship between J.N. and A commenced shortly before A’s 16th birthday. It was not disputed that the sexual activity had occurred. Both J.N. and A considered therelationship to be appropriate, were expecting a child, and were planning to be married with the consent of A’s parents. A social worker,upon receipt of anonymous information, notified the RCMP about the relationship, and J.N. was charged. At trial, the judge consideredthe defence of consent under

section 150.1(2.1) of the Criminal Code, which provides that a person between the ages of 14 and 16 canconsent to the sexual activity if the accused is less than five years older. The trial judge held that there was some evidence that J.N. wasless than five years older than A which gave rise to a reasonable doubt. As such, J.N. was acquitted at trial. The Crown appealed,arguing that the trial judge erred with respect to the evidence regarding J.N.’s age. Held: Appeal dismissed.

Goodridge J.A. (Fry C.J.N.L. and O’Brien J.A. concurring): The trial judge did not err in accepting evidence from the complainant’smother that the accused was “four or five years” older than the complainant. A non-expert witness may give opinion evidence regardingthe apparent age of another (paragraphs 8-14). Consent can be a defence to a charge under

section 151 of the Criminal Code (sexual assault) if the complainant is less than 16, but morethan 14, years of age, and the accused is less than five years older than the complainant (section 150.1(2.1) (paragraphs 15-16). Once the accused identifies evidence which, if true, would entitle him or her to an acquittal based on the defence of age, then the burdenshifts to the Crown to show beyond a reasonable doubt that the defence does not apply (paragraphs 17-21). The judge has authority to refer to the court file, but there is no duty to do so.

In this case, it was an error to refer to the Informationsworn against the accused in order to determine her age. The Information contains allegations against the accused. It does not serve asevidence (paragraphs 22-35). Cases cited: R. v. Cox, [1898] 1 Q.B. 179 (U.K. C.C.R.) R. v. Lachapelle (1977), (QC CA), 38 C.C.C. (2d) 369 (Que. C.A.) Graat v. The Queen, (SCC), [1982] 2 S.C.R. 819 (S.C.C.) R. v. K.S., 2019 ONCA 474 R. v. Thompson (1992), 1992 ABCA 259 , 131 A.R 317, 76 C.C.C. (3d) 142 (Alta. C.A.) R. v. P.A.K. (1992), (NL SC), 103 Nfld. & P.E.I.R. 343 (Nfld. S.C. (T.D.))

R. v. Osborne (1992), (NL CA), 102 Nfld. & P.E.I.R. 194 (Nfld. C.A.) R. v. Holmes, (SCC), [1988] 1 S.C.R. 914 (S.C.

C) R. v. Waffle, 2014 SKPC 79 R. v. Truong, 2008 BCSC 1151 R. v. Tkachuk, 2009 BCSC 834 R. v. Evaglok, 2010 NWTCA 12 R. v. Poole, 2014 BCSC 102 R. v. Wellman, 2017 NLTD(G) 5 Statutes considered: Criminal Code, sections 150.1(2.1) and 151 Counsel: Arnold Hussey Q.C., for the appellant; Jason Edwards, for the respondent. The appeal was heard on September 9, 2019 before Fry C.J.N.L, O’Brien and Goodridge JJ.A.

The following judgment was filed on October 9, 2019 by Goodridge J.A. for the Court. ______________________________________________________________ Goodridge J.A.: INTRODUCTION [1] J.N. was charged with sexual interference (section 151 of the Criminal Code) of her boyfriend, A, who was under the age of 16.The dating relationship between J.N. and A became a consensual sexual relationship two or three months prior to A’s 16th birthday. Therelationship was known to, and considered appropriate by A’s parents.

A social worker, receiving anonymous information, notified theR.C.M.P. about the relationship, and J.N. was charged. At the time she was charged, J.N. was pregnant with A’s child, and they wereplanning to be married with the consent of A’s parents. [2] J.N. was acquitted, following a judge alone trial. The defence of consent, available under

section 150.1(2.1) of the Code, was inplay. The

section provides that if the person under the age of 16 years is 14 years of age or more, it can be a defence that he or sheconsented to the activity if the accused is less than five years older. There was some evidence that J.N. was less than five years older,and that gave rise to a reasonable doubt, resulting in the acquittal. [3] The Crown appeals the acquittal, and argues that the trial judge erred in relying on evidence from A’s mother regarding J.N.’sage, and in failing to search out information in the court file regarding J.N.’s date of birth.

ISSUES [4] It is not disputed that sexual activity occurred between J.N. and A, that A consented, and that A was 15 years old at the time. Usually a 15-year-old cannot provide a valid consent to sexual activity, but there is an exception under

section 150.1(2.1) if the otherperson is less than five years older. The only issues on this appeal relate to the trial judge’s treatment of evidence about J.N.’s age. [5]

Section 150.1(2.1) provides as follows: Exception — complainant aged 14 or 15

(2.1) If an accused is charged with an offence under

section 151 … in respect of a complainant who is 14 years of age or more but underthe age of 16 years, it is a defence that the complainant consented to the activity that forms the subject-matter of the charge if theaccused (

a) is less than five years older than the complainant; and … [6] The evidence about J.N.’s age came from the testimony of A’s mother, who I will refer to as B. She was called as a witness bythe Crown, and testified that J.N. was four or five years older than A. There was no other evidence touching on J.N.’s age. The trialjudge found that the evidence of B, with respect to J.N.’s age, gave rise to a reasonable doubt, and acquitted the accused.

[7] The issues that arise can be addressed by answering three questions: - Did the trial judge err in admitting and relying on the testimony of B regarding J.N.’s age? - Did the trial judge err in relying on B’s evidence regarding J.N.’s age, to establish a reasonable doubt? - Did the trial judge err by not reviewing and relying on the court file that included, on the Information, J.N.’s date of birth?

ANALYSIS Did the trial judge err in admitting and relying on the testimony of B regarding J.N.’s age? [8] B testified, during examination-in-chief by the Crown, that J.N. was four or five years older than B’s son, A. The Crown arguesthat this testimony was an opinion as to apparent age, or a guess, and that the trial judge erred in admitting and relying on it. [9] In R. v. Cox, [1898] 1 Q.B. 179, the only evidence that the victim was under the age of 16 were statements by a social workerand a schoolmistress to the effect that they believed her to be so. The Court held that this evidence was sufficient.

Lord Russell, C.J.,writing for the unanimous five-member appeal panel, stated at page 180: “The fact that the child is under the age of sixteen may beproved by any lawful evidence”. [10] In R. v. Lachapelle (1977), (QC CA), 38 C.C.C. (2d) 369 (Que. C.A.), Kaufman J.A. stated at paragraph26: “The simple statement by a witness as to his belief concerning the age of another person is evidence of such age”. [11] In Graat v.

The Queen, (SCC), [1982] 2 S.C.R. 819, Dickson J., writing for a unanimous seven member panel,recognized that a non-expert witness may give opinion evidence as to apparent age of another (see also para. 10 in R. v. K.S., 2019ONCA 474). At page 835 of Graat, Dickson J. stated: The list of subjects upon which the non-expert witness is allowed to give opinion evidence is a lengthy one. The list mentioned inSherrard v. Jacob, supra, is by no means exhaustive: [it includes] (ii) apparent age … [12] B’s opinion evidence as to the apparent age of J.N. was admissible evidence.

There was a factual foundation to the evidence. Bhad a seven-year connection with J.N., as a neighbor, and as the mother of A who was J.N.’s boyfriend. Based on this, B stated that shewas aware of J.N.’s age. [13] The Crown elicited this age evidence from B, did not ask further questions to clarify, and did not call further evidence tocontradict. The relevant exchange was as follows: Q. How do you know [J.N.]? A. … I met her when we first moved to [this town] … I think we are going on seven years. … Q. Were you aware of her age? A. Yes. Q. … [M]y next question was going to be if that caused you any concern? A.

No, her age wasn’t a concern, no. Q. You were aware, were you aware, if she was the same age or older than [your son, A]? A. I knew she was older. Q. Okay, how much older? A. I guess like four or five years. [14] In accepting and relying on B’s evidence of J.N.’s age, and the age gap, the trial judge found that B was a credible andtrustworthy witness and was very familiar with J.N., having known her for seven years. There was no error by the trial judge acceptingand relying on this evidence.

Did the trial judge err in relying on B’s evidence regarding J.N.’s age, to establish a reasonable doubt? [15] To answer this question it is necessary to determine whether the trial judge properly applied the provisions of

section 150.1(2.1). As noted above, that

section of the Code provides that consent can be a defence to a charge under

section 151, if the person under the ageof 16 years is 14 years of age or more, and the accused is less than five years older. [16] The Crown has the burden, always, to prove the essential elements of an offence. For this offence of sexual interference, those

essential elements include that A was less than sixteen years old at the time, that J.N. intentionally touched A, and that the touching wasfor a sexual purpose. The age of an accused is not an essential element of the offence (see paragraph 6 of R. v. Thompson (1992) 1992ABCA 259 , 131 A.R 317, 76 C.C.C. (3d) 142 (Alta. C.A.)). However, where the

section 150.1(2.1) defence is raised, as here,age of the accused can become relevant and the Crown has the added burden of disproving the defence beyond a reasonable doubt. In thismatter the

section 150.1(2.1) defence was raised by J.N.’s counsel pointing to B’s evidence of J.N.’s age. The Crown argues that thetrial judge erred in relying on B’s evidence of J.N.’s age. [17] In her analysis the trial judge quoted from R. v. P.A.K. (1992), (NL SC), 103 Nfld. & P.E.I.R. 343. In thatcase Green J. was considering the onus of proof on an accused who was advancing an equivalent to the

section 150.1(2.1) defence, as wehave under consideration here. Green J. found that an accused, in those circumstances, was required only to meet an evidentiary burden.An evidentiary burden is simply putting the defence in play by reference to evidence before the court. [18] P.A.K. followed and applied R. v. Osborne (1992), (NL CA), 102 Nfld. & P.E.I.R. 194 (Nfld.C.A.) where ananalogous type consent defence was raised by a person accused of sexually assaulting an underage adolescent.

Goodridge, C.J.N.,writing for a unanimous panel, found that the onus of proof on an accused in that situation was an evidentiary onus. Once the accusedidentifies evidence which, if true, would entitle him or her to an acquittal, then the burden shifts to the Crown to show beyond areasonable doubt that the defence does not apply. At paragraph 49 of Osborne, Goodridge C.J.N. stated: The evidentiary onus requires that the accused adduce evidence or identify Crown evidence, or both, which, if true, would entitle theaccused to an acquittal.

For the accused to succeed, such evidence need not be believed; it is only necessary that it create a reasonabledoubt in the mind of the trier of fact. [19] Osborne referred to page 935 of R. v. Holmes, (SCC), [1988] 1 S.C.R. 914 where Dickson C.J.C. (dissenting inpart) stated the basic common law principle that the accused need not prove a defence: The basic principle of the common law has been that the accused need not prove a defence.

Once an accused raises the possibility that adefence exists, whether by pointing to some fact in the Crown evidence or by leading defence evidence, the Crown is required todisprove the defence beyond a reasonable doubt. … … [A]ll that the accused need do is point to some evidence which supports the defence. The Crown is then required to disprove thedefence beyond a reasonable doubt. [20] In this matter the defence identified Crown evidence which, if true, would allow an acquittal under

section 150.1(2.1), based onconsent. There was no contrary evidence, in fact no other evidence, addressing J.N.’s age. It was only necessary that the age evidenceidentified by the defence created a reasonable doubt.

The trial judge found that testimony of B regarding J.N.’s age created this reasonable doubt, and dismissed the charge: [O]n the basis of the testimony of [B], as elicited by the Crown, her testimony that [J.N.] is four years, maybe five years older than [A], Iam left in reasonable doubt that [J.N.] is at least five years older than [A], and therefore, on the basis of that reasonable doubt, the chargeagainst [J.N.] is dismissed. [21] There was no error by the trial judge in relying on B’s evidence regarding J.N.’s age, to satisfy J.N.’s evidentiary burden, andestablish a reasonable doubt.

Did the trial judge err by not reviewing and relying on the court file that included, on the Information, J.N.’s date of birth? [22] The Crown argues that the trial judge erred in not reviewing and relying on the Information, in the court file, that containedJ.N.’s date of birth.

The Information was not entered as an exhibit and was never part of the evidence; it was not referred to during thequestioning of witnesses; there was no direct request that the trial judge refer to it for purposes of satisfying the Crown’s onus of proof;and the Crown had not accessed or produced the Information during trial. [23] There was a reference to the Information during closing submissions by the Crown, but no direct request that the Information berelied upon to supplement the Crown’s evidence.

The relevant Crown submission, which mentioned the Information, is as follows: It is my understanding, and I could be wrong on this, but it is my understanding that once the Warrant of Committal comes over fromProvincial Court to the Supreme, the Information comes with it. So the Information in this case would form part of the court record and,like I said, I could be wrong on that. [24] Crown counsel, also in closing submissions at trial, referred to R. v. Waffle, 2014 SKPC 79.

That case involved a charge ofsexual interference of an underage adolescent, where the trial judge made a passing reference to date of birth from the Information. Dateof birth of the accused was not relevant to the Crown’s case in Waffle (see paragraph 34) and accordingly Waffle does not suggest that anInformation, not introduced at trial, can be relied upon the supplement the Crown’s evidence. [25] In the factums for this appeal, the parties identified five cases where trial judges considered and relied upon documents in thecourt file for relevant evidence. [26] In R. v.

Truong, 2008 BCSC 1151, Smart J., in obiter comments at paragraph 60, recognized the authority of a trial judge toexamine the court file in a context where the Crown had made a request. The charge was one of breaching a court order and the Crownhad urged the trial judge to refer to the court file to confirm that a condition on the court order remained in effect on the date of thecharge.

Smart J. suggested a process, in the interests of preserving trial fairness, which included production of the original relevantdocument from the court file, entering the document as an exhibit, reviewing the document in court in the presence of the accused andboth counsel, and receiving submissions from both counsel with respect to interpreting the document.

[ 27 ] In R. v. Tkachuk , 2009 BCSC 834 , the accused was charged with failure to attend court. At the outset of trial, the Crown sought to tender public documents contained in the court file to establish one of the essential elements of offence. The judge declined the request. On

summary appeal, Chamberlist J. found at paragraph 13 that “ [t]he learned trial judge erred in law when he refused to consider the relevant and admissible evidence contained in the court file”. At paragraph 19 Chamberlist J. added that “[a]bsent extraordinary circumstances the court is mandated to take notice of its records when asked to do so by one of the parties appearing before it”.

In Tkachuk there was a request by the Crown that the trial judge consider the court file; the request was made at the outset of trial; and there was an opportunity for the accused to respond. [ 28 ] These trial fairness features were not present for J.N. where there was no direct request that the trial judge consider the court file. The first mention, indirect as it was, of the possibility of the judge looking at the court file, occurred after the Crown had closed its case, and after the defence had announced its decision to call no evidence. [ 29 ] In R. v.

Evaglok , 2010 NWTCA 12 , Vertes J.A. was considering an application for leave to appeal the dismissal of a

summary conviction appeal from a conviction for assault with a weapon. One of the grounds of appeal was that the trial judge erred in taking judicial notice of the court record and process regarding proof of the accused's identity . Appellant's counsel submitted that the law concerning the issue – that is whether a court is entitled to take judicial notice of its records and process – is unsettled and controversial. Vertes J.A. rejected that argument and stated at paragraph 14: That jurisprudence [relied upon by the

summary conviction appeal court] clearly establishes that a trial judge is entitled to look at the court record and take judicial notice of it. [ 30 ] Vertes J.A. recognized the authority of a trial judge to examine the court record, but he does not suggest that there is a duty on the trial judge to do so. It will always be a case specific exercise and done in a way that preserves trial fairness. [ 31 ] In R. v. Poole , 2014 BCSC 102 , Butler J., sitting as a

summary conviction appeal court judge, recognized the authority of a trial judge to examine the court file, but qualified it on the basis that trial fairness must not be compromised. The context was that the trial judge looked at the Designation of Counsel and a Summons in the court file to make a handwriting comparison. Butler J., in allowing the appeal and ordering a new trial, found that trial fairness had been compromised because defence counsel had no opportunity to challenge the evidence or make submissions.

Smart J. set out a recommended procedure to preserve trial fairness that included a request from the Crown (not present here), submissions on the issue from both counsel (not present here), and the option for adjournment if there is possibility of prejudice (not present here). The procedure is outlined at paragraphs 19 and 20 of the reasons: 19 A review of these cases confirms the ability of a judge to review the court file, but also the necessity of preserving a fair trial process when that step is taken. The recommended practice as set out in Truong is directed at the preservation of that process.

The first step in the process is for one party, typically the Crown, to ask the trial judge to look at the court file. If he or she agrees to do so, then:

a) the judge should look at the documents in the court file in the presence of the accused and counsel; and

b) the judge should invite submissions from counsel with respect to interpreting the court documents. 20 As noted in Staples , if there is a possibility of prejudice arising from the review of the court documents, the defence should be afforded the opportunity to seek an adjournment. [ 32 ] In R. v. Wellman, 2017 NLTD(G) 5, Goulding J., sitting as a

summary conviction appeal court judge, considered whether a trial judge is permitted to take notice of information in the court file to infer the identity of an accused.

She agreed that it was permissible in the context of the matter before her, but cautioned that “[i]t is very much a case specific exercise” (paragraph 44). [ 33 ] These five decisions ( Truong , Tkachuk , Evaglok, Poole , and Wellman ) recognize the authority of a trial judge to refer to the court file, but do not create a duty to do so, depending on the context. [ 34 ] In the context of this matter, there was no error by the trial judge in not viewing and relying on the court file that included, on the Information, J.N.’s date of birth. The context is especially important.

The consent defence was in play because of evidence indicating an age gap of only four or five years. The Crown had an onus to counter that evidence and prove that the age gap was five years or more. It failed to do so.

An indirect and vague reference to an Information that might be in the file – made after the close of the Crown’s case and after the defence chose to call no evidence – without production of that Information, and without a direct request for the trial judge to inspect the Information, does not discharge the Crown’s onus. [ 35 ] I add that it would be inappropriate for the Crown to rely on anything in the Information as evidence to prove its case, except with consent of the accused. The Information contains the allegations against an accused, and does not serve as evidence to prove the Crown’s case.

CONCLUSION [ 36 ] The trial judge did not err in admitting and relying on the evidence of B regarding J.N.’s age and the age gap between J.N. and A. [ 37 ] The trial judge did not err in relying on B’s evidence regarding J.N.’s age, to satisfy J.N.’s evidentiary burden, and establish a reasonable doubt. [ 38 ] The trial judge did not err in not reviewing and relying on the court file, in the context of this case. [ 39 ] The Crown has not established any error by the trial judge.

[ 40 ] I would dismiss the appeal. Appeal dismissed.