R. v. A.(D.), 2011 ONCJ 130

WARNING The court hearing this matter directs that the following notice should be attached to the file: This is a case under the Youth Criminal Justice Act and is subject to subsections 110(1) and 111(1) and

section 129 of the Act. These provisions read as follows: 110. Identity of offender not to be published. —

(1) Subject to this section, no person shall publish the name of a young person, or any other information related to a young person, if it would identify the young person as a young person dealt with under this Act. . . . 111. Identity of victim or witness not to be published.—

(1) Subject to this section, no person shall publish the name of a child or young person, or any other information related to a child or a young person, if it would identify the child or young person as having been a victim of, or as having appeared as a witness in connection with, an offence committed or alleged to have been committed by a young person. . . . 129. No subsequent disclosure.— No person who is given access to a record or to whom information is disclosed under this Act shall disclose that information to any person unless the disclosure is authorized under this Act.

Subsection 138(1) of the Youth Criminal Justice Act , which deals with the consequences of failure to comply with these provisions, states as follows: 138. Offences.—

(1) Every person who contravenes subsection 110(1) (identity of offender not to be published), 111(1) (identity of victim or witness not to be published) . . . or

section 129 (no subsequent disclosure) . . . (

a) is guilty of an indictable offence and liable to imprisonment for a term not exceeding two years; or (

b) is guilty of an offence punishable on

summary conviction. ONTARIO COURT OF JUSTICE COURT FILE No.: Toronto Region Citation: R. v. A.(D.) , 2011 ONCJ 130 BETWEEN: ) ) HER MAJESTY THE QUEEN ) B. Olesko, ) for the Crown ) — AND — ) ) ) D.A. ) L. Walker, ) for the accused ) ) ) ) HEARD: May 10, August 30, October 25, 2010, February 10, 2011 FELDMAN J.: Introduction [ 1 ] D. A., a youth, entered not guilty pleas to sexual assault and sexual interference with S. C., a then 12-year old whom he engaged on the street. Mr. A. was 17 years old at the time.

[ 2 ] It is alleged that a number of days after meeting S. and having obtained her phone number, the defendant arranged to meet her one evening. The complainant says he took her to a park and then to his apartment where he forced her to have sexual intercourse with him. [ 3 ] The Crown called the complainant and three police officers in support of its case. Mr. A. testified in his own behalf and, as well, relied on the evidence of his friend, G. S., who was with him during the evening in question. [ 4 ] The Crown submits that given the age of the complainant, her consent is no defence to the sexual acts.

The accused says he had an honest, but mistaken belief S. was at least 16 years old, so that consent is available as a defence, and that, in addition, there is a reasonable doubt she did not agree to have sex. [ 5 ] I must weigh the evidence and the credibility of the witnesses in making my findings of fact. I am mindful of the burden of proof on the prosecution. The Evidence [ 6 ] The complainant spoke to the police on June 10, 2009, four days after the alleged events. She described walking with a friend, K., near Gilder Dr. in Scarborough, some days prior to Saturday, June 6, when she met Mr.

A., who called himself G., and one of his friends. She said she gave him her name and phone number when he asked for it because she thought he wanted to get to know her. She later testified she provided it without thinking although she indicated, incongruously, that she was not interested in getting to know him. [ 7 ] The defendant called S. three times before they met. She said he mostly talked about himself and never asked what school she attended. She also said she never told him her age, but assumed he thought she was about 16. They both discussed knowing S.

M., although S. indicated she was not really a friend. She told the police she thought he was 15 years of age and was surprised to learn he was 17. [ 8 ] S. told the court that during the last of 3 phone calls the defendant suggested they meet. She told him she was not sure she could go out and needed to be home at 8:30 p.m. She said he told her he would have her home in time and is not sure why she agreed beyond poor judgment and because she thought he just wanted to be friends. When she met him, he was with an acquaintance. This troubled her, but she said he told her to get in the car, which she did.

She told the police she was scared and felt something bad would happen. While her conduct appears reckless, I am mindful she was then only 12 years old. [ 9 ] The defendant drove to a park near a lake where he only spoke briefly to the complainant and spent time throwing rocks in the water wetting his jeans and sandals. Mr. A. wanted to return home to change his clothes. When they arrived at the accused’s apartment building, the complainant said she wished to wait downstairs and to be taken home but succumbed to the accused’s entreaties to come up to his residence.

She said he never changed his clothes. [ 10 ] While the defendant’s friend, G. S., used the computer, D. asked to show the complainant around the apartment. They ended up in his bedroom and sat on the bed. She said he asked her to give him a massage under his shirt. She complied. He then gave her a brief massage but in his own evidence denied, implausibly, having any sexual thoughts. After that, she told the court he asked for a kiss and proceeded to kiss her on her neck, cheek and lips.

She resisted initially but then went along with what she described as “fooling around”. [ 11 ] S. testified that it was when the accused got on top of her and his clothes started coming off that things became serious in her mind and she felt uncomfortable. She said she objected, but to no avail. She told the court she was unable to prevent him from pulling her pants down below her knees. She said he claimed wanting only to rub her legs and promised not to do anything improper.

S. gave evidence, however, that he used his own knees to prevent her from pulling up her pants. [ 12 ] The complainant told the court he then took his shirt off and undid his belt letting his baggy pants slide off as he wiggled out of them. He pulled down his boxer shorts. She said he then moved her panties to the side and tried twice to put his penis inside her vagina despite her objection. She said she then pushed his penis to the side, but he put his fingers inside her while pushing her hands away.

She found him too heavy to move. [ 13 ] S. testified that the defendant again moved her panties to the side and tried to enter her but she resisted and told him to stop. He ignored her. The room was dark leaving her unaware he had put on a condom. Despite struggling with him, she said he was too strong and ultimately succeeded in entering her. She said she was crying. After he was finished and while he was still on top of her she saw him throw his condom on the floor. [ 14 ] On June 8, P.C. Richard Schoch observed bruising on S’s neck that could have been the result of one or more hickeys. On June 11, Det. Const.

Robert Arnott found a black condom and wrapper on the floor of the bedroom, a silicon rubber sleeve, a sex aide, under the mattress and two other condom wrappers in the bedroom. [ 15 ] S. recalled that the accused stopped what he was doing when they heard knocking on the front door. She said she was bleeding from what she described as her first sexual experience. She went to the washroom and cleaned herself up. She was crying. The bleeding continued the next day. [ 16 ] S. returned to the bedroom where she said she waited while the defendant spoke to his friends.

After that she wanted to go home but D. indicated he was hungry. Because of the late hour, he told her to phone her father and say she was sleeping at a friend’s home. She did as he instructed. He then had G. drive them to get some fast food. The complainant said she didn’t eat anything. She was then dropped off near her home. [ 17 ] S. never learned the defendant’s real name. On Monday, after a teacher saw the marks on her neck, apparent in photographic exhibits, she broke down and told her what happened. The school then involved the police and the C.A.S. She was not

initially truthful with the police about who she was with when she met the accused. She explained she was then afraid she would get in trouble. She told the court she wanted to forget about it. [ 18 ] The complainant’s father convinced her that reporting what happened was the right thing for her to do and that she should not leave it inside. She attended the hospital and then provided a video statement to the authorities. [ 19 ] S. insisted the defendant never asked her age. She guessed he assumed she was 16 years old as she looked older than her years.

Having regard to her clothing, use of makeup and initiative in meeting an older boy, that is a reasonable inference. [ 20 ] By contrast, it was the position of the accused that S. was at all times receptive to being with him and was a willing participant in their intimacy. He said he found her pretty and was able to get her phone number. He told the court Shyanne called him two of the three times they spoke on the phone before they met. This was not put to the complainant in cross-examination. [ 21 ] D. gave evidence that S. told him she was 16 but that when he first saw her he thought she was 18 or 19.

Interestingly, during the course of these calls, the defendant testified that S. refused to tell him which school she attended, described his former girlfriend, S.M., as a big sister, told him her father wouldn’t let her go out past 8:30 p.m. and that she could not receive phone calls past 9:30 p.m. as she had a bed time.

This was information that ought to have raised red flags about her age and tended to render exaggerated and self-serving the accused’s evidence about his initial perception of her age, one particularly absurd given his own age at the time. [ 22 ] The accused said that he relied in part on believing she was at least 16 when she told him over the phone she had just broken up with her boyfriend and thought most guys were jerks and immature.

As in other of his self-serving evidence, this was not put to her in cross-examination. [ 23 ] When S. met him, he said he “proposed” she get in his car, suggesting he left it up to her, and that he planned to get to know her better, which he surely did a short time later in his bedroom. On the evidence, these are minimizing words that suggest he was not aggressive, as, for example, when he got her phone number and called her a number times pushing for a get together.

I infer he was similarly pressing in getting the young complainant into his car. [ 24 ] It is apparent that the defendant made almost no effort while in his vehicle and then later at the park to “get to know her better”, but changed course in not taking her home afterwards and again pressing her to come up to his apartment where he quickly manoeuvered her, a near-stranger, into his bedroom and was very soon physically engaged with her, a clear indication of how he intended to better know her. [ 25 ] To testify, as he did, that he did not recall the complainant asking to be taken home, then telling the court he requested she come up to his apartment so he could change his clothes after which they would leave to do something else reflects self-serving evidence undermined by contradiction.

He was aware S. had a curfew. It is probable she wanted to meet it and, as well, would be hesitant to be vulnerable in an apartment with two older boys. On the evidence I infer the complainant asked to go home on time as required by her father, something D. would recall. I view his answer as disingenuous as I do his explanation for staying at the apartment because he had no other plan. It would appear getting S. into his bed was the plan. [ 26 ] From this point, the defendant’s discussion of his sexual conquest lacks plausibility.

He suggests he did not manipulate or overwhelm the complainant who, he says was compliant every step of the way. The plan to leave to do something else quickly became having S. ensconced on his bed giving him a massage behind a closed door, kissing him, consenting to her being disrobed, stopping to require that he use a condom and laughing at how quickly it appeared, moaning while he fingered her vagina and consenting to intercourse.

This, from a naïve 12-year old probable virgin, one who the defendant self-servingly says afterwards made a bet with him about whether her father would consent to the lie that she would be sleeping over at a friend’s home. [ 27 ] As noted earlier, the defendant’s plan to leave the apartment became having no plan to having sex in his bedroom. The defendant’s claim that in initiating the mutual massages and in their application sex was not in his mind, nor was he aroused, is as a matter of common sense incredulous.

On the evidence, I infer he was falsely cavalier in testifying that he did not think a massage was a big deal, that he could get one from anyone. In addition, any weight to the suggestion S. agreed to the massage on one of their phone calls is diminished by failure to confront the complainant about this in her evidence. [ 28 ] Equally incredulous is his assertion he only became aroused after 10 minutes of kissing, but that afterwards the complainant was a willing participant.

He says he cannot recall if he touched S.’s breasts or other body parts when on top of her, just as he can’t recall her response when he began to slowly pull down her pants, indicating in my view a convenient lack of memory. [ 29 ] Although he agreed he did not know her well, D. insists this young person helped remove her own pants. He did not confront the complainant in her evidence with his own testimony that she refused to take off her bra because she didn’t like her breasts. He illogically claimed no erection when he was on top of her, nor could he recall where his legs were positioned at that time.

He couldn’t explain why he did not remove her panties. He said she never complained or told him to stop. [ 30 ] The accused told the court he joined S. in the washroom where she was fixing her makeup and was angry about the hickeys. He indicated that she was not crying. He also said later on they were laughing together while sharing fast food. [ 31 ] G. S. supported the accused’s testimony on all the material elements of his evidence that would tend to raise a reasonable doubt both in relation to D’s perception of the complainant’s age and on the issue of consent.

On the evidence, G. was neither an independent nor objective witness. He demonstrated advocacy in parroting the defendant’s line. There was symmetry and consistent detail in the evidence of these two friends. [ 32 ] I will make reference to the relevant evidence in this regard later on in this judgement in a discussion of the credibility of the witnesses during the fact finding analysis. Honest Mistake of Fact

[33] The accused says that before having sexual relations with the complainant he had in the circumstances an honest andreasonable belief she was at least 16 years of age and that the evidence backs him up. [34] In respect of a complainant under the age of 16 years, it is not a defence that he or she consented to the activity that formsthe subject-matter of the charge: see Code s. 150.1(1).

In addition, as set out in ss. (4), it is not a defence in these circumstances unlessthe accused took all reasonable steps to ascertain the age of the complainant, nor, as indicated in ss. (6) can the accused raise a mistakenbelief in the complainant’s age unless he or she took all reasonable steps to determine it. [35] The accused does not have a persuasive burden in relation to this special defence. Rather, it is the Crown that has theburden of proving beyond a reasonable doubt that the defendant failed to take all reasonable steps to ascertain the complainant’s age inthe particular circumstances.

The accused has only an evidentiary onus to adduce evidence in support of his position. The court is toapply an objective standard: R. v. L.T.P. (1997), (BC CA), 113 C.C.C. (3d) 42 (B.C.C.A.). [36] In L.T.P., the 16 year old defendant had consensual sex with a complainant who was 13 years of age. She appeared moredeveloped for her age, drank beer, flirted and was part of a group of girls who were 15 or 16 years of age. [37] Finch J.A. was of the view that it may not necessarily be unreasonable for the accused to rely only on a visual observation.

Whether further steps would be reasonable would depend upon the apparent indicia of the complainant’s age and the defendant’sknowledge in this regard, including her physical appearance and either her individual behaviour or as part of a group. [38] In her dress and demeanour, as in the photographs adduced in evidence, S. appeared, as was her intention, older than heryears. She was socially curious and forward. It is significant that she believed the accused probably thought she was 16 years old. Helooked 15 years old to her.

At the same time, by contrast, and as noted earlier, D., heard the complainant describe their 16 year oldmutual friend, S.M., as a “big” sister and learned S. had to be home at 8:30 p.m., had a bed time and could not receive calls after 9:30p.m. [39] The defendant testified the complainant told him she was 16 years old, but that she appeared to him to be 18 or 19 years.

He said she informed him she had just broken up with her boyfriend. [40] In considering whether the Crown has proven beyond a reasonable doubt that the accused did not take all reasonable stepsto ascertain the complainant’s age, I must weigh the evidence and credibility of the witnesses in the process of applying an objectivestandard to this question. The Reasonable Doubt Standard [41] The standard of proof beyond a reasonable doubt is bound up with the fundamental principle in criminal trials of thepresumption of innocence. This standard of proof has been described as proof to a near certainty: R. v.

Starr, 2000 SCC 40. [42] Where credibility is important, as in this case, the Supreme Court requires that the rule of reasonable doubt be applied tothat issue: R. v. W.(D.) (1991), (SCC), 63 C.C.C. (3d) 397. In W.(D.), Cory J. directed trial judges to acquit if theevidence of the accused is believed or if he is left in reasonable doubt by it even if he does not believe that evidence.

The third elementin this analysis obliges the judge to ask himself, even if he is not left in reasonable doubt by the evidence of the accused, whether he isconvinced beyond a reasonable doubt of the guilt of the accused on the balance of the evidence which he does accept. [43] In this analysis, rejection of an accused’s evidence may be derived from “a considered and reasoned acceptance beyond areasonable doubt of the truth of conflicting credible evidence”, but not on the basis of preferring the worth of one over the other: R. v.J.J.R.D., (ON CA), 2006 O.J. No. 4749 (Ont. C.A.); R. v.

Maharaj (2004), (ON CA), 186C.C.C. (3d) 247 (Ont. C.A.). [44] The trier of fact is entitled to assess an accused’s testimony in light of the whole evidence, including the testimony of thecomplainant, and in so doing comparing the evidence of the witnesses: R. v. Hull, (ON CA), 2006 O.J. No. 3177(Ont. C.A.).

In fact, the court made reference in this regard to the “positive duty to carry out such an assessment”, given the possibilitythat the judge may be left in reasonable doubt concerning the guilt of the accused. [45] In a thoughtful review of these authorities and this issue, given the difficult application of W.(D.) principles to the standardof proof in cases involving one complainant and one accused (and his witnesses), Justice Duncan, in R. v.

Jaura, 2006 ONCJ 385, cameto a conclusion, with which I agree both in logic and principle, that “a trial judge can reject the evidence of an accused and convict solelyon the basis of his acceptance of the evidence of the complainant, provided that he also gives the evidence of the defendant a fairassessment and allows for the possibility of being left in doubt, notwithstanding his acceptance of the complainant’s evidence. Findings of Credibility and Fact [46] In weighing the complainant’s evidence, I am mindful of the direction by Wilson J. in G.B., A.B. and C.S. v.

The Queen(1990), (SCC), 56 C.C.C. (3d) 200 (S.C.C.), that the court should apply common sense when dealing with thetestimony of younger persons that may raise reliability concerns by not imposing “the same exacting standard on them as it does onadults” without lowering the standard of proof. This has some, but limited, application, to this socially interested complainant. [47] On the evidence, I found S’s testimony to be given in a straightforward, if understated, manner. She demonstrated noanimus. She was not seriously challenged on the material issues of fact.

I view any of her inconsistencies as mostly peripheral in natureand reflective of the effect on perception and memory of fast-moving and traumatic events and the passage of time, particularly in lighther age and experience. I relate her initial reluctance to cooperate with the investigation to her youth and embarrassment and think itprobable she blames herself in part for her poor judgment. [48] I view her providing the defendant her phone number and succumbing to his entreaties to meet up with him as indicating

she was socially curious and forward, as I do her use of makeup and manner of dress intended to make her look older than her years. I accept that she assumed the defendant thought she might be 16 years as reflective of her generally fair and direct testimony. I sensed no embellishment on her

part in favour of the Crown. I logically infer from this that the complainant’s evidence that D. never asked about her age or school is credible in contrast to his own. [ 49 ] In agreeing to drive off with two male strangers and then going up to the defendant’s apartment, she demonstrated naïvety in thinking he just wanted to be friends. Given her lack of experience and size, she was at a distinct disadvantage in the bedroom of the persistent accused.

I draw no inference on the evidence that the complainant took any initiative beyond consenting to “fooling around” in the bedroom but was quickly overwhelmed by an unrelenting young man with an agenda. On the evidence, I accept she was uncomfortable when D. got on top of her but ineffective in her resistance. It is improbable she chose to brazenly miss the curfew set by her father. [ 50 ] I apply diminished weight to the assertions in the defendant’s examination directed at the complainant’s credibility, but in relation to which she was not subject to cross-examination: Browne v.

Dunn (1893), 1893 CanLII 65 (FOREP) , 6 R. 67 (H.L.). [ 51 ] I would rely on the material elements of the complainant’s evidence. [ 52 ] By contrast, for reasons given earlier, I consider the defendant’s evidence to be unreliable. His self-serving contention that he thought S. might be 18 or 19 years old is incredible having regard to her quite youthful appearance in the photographs, his awareness of her curfew and the social limitations imposed by her father, as well as D’s purported experience with an older woman.

He was disingenuous in suggesting he wanted to get to known the complainant despite barely speaking to her at the park and in his apartment before manoeuvring her into his bed. [ 53 ] Even less credible are the defendant’s claims that while massaging and kissing the complainant sex was not on his mind, that he cannot recall touching Shyanne’s body parts nor her response to his pulling down her pants and that he had no erection when he was on top of her despite the fact he did not even wait to pull off her panties before attempting intercourse. This latter evidence, in particular, is unworthy of belief.

I reject the accused’s evidence, as well, in part, because I accept that of the complainant on the material issues of fact. S. 150.1 - Did the Defendant take all reasonable steps to ascertain the complainant’s age? [ 54 ] On the evidence, I don’t accept the defendant’s estimate of the complainant’s age or the assertion he inquired after her age and school. There were also indications she was younger than S.M. and subject to home rules inconsistent with being 16 years old. [ 55 ] At the same time, S. made every effort to appear older. Her manner of dress and conduct tend to support that intention.

I must view the 17-year old defendant’s impression of her appearance in that context, although to this court she did not look close to 16 years. It is probable that in his haste to seduce the complainant, D. was at least wilful blind, if not indifferent, to her being underage. But on all the evidence, I cannot disregard S’s attempt to create the perception she was older and its likely impression on the accused. I am left in reasonable doubt on the issue of whether it was necessary for D. to take further steps in ascertaining the complainant’s age. In the result, consent as a defence remains open to the accused.

Consent [ 56 ] It is my view of the evidence that in permitting herself to be led into a private residence with a near stranger, the young complainant demonstrated poor judgement and lost control of her circumstances. I consider her decision to enter the defendant’s bedroom and allow some “fooling around” to be a function of her curiosity and naivete.

She was, however, entitled, but in this case not able, to stop the defendant’s predatory behaviour. [ 57 ] For reasons noted earlier, I reject the defendant’s testimony that S. never objected to his overtures and was at ease, even light hearted, during their sexual tryst. The fact that D. did not or was unable to remove the complainant’s panties prior to intercourse supports the inference he was quickly aroused and made haste in satisfying his urges indifferent to her response.

The multiple condom wrappers and sex aide discovered by the police belie the assertion he did not have sex on his mind when leading the complainant into his bedroom. [ 58 ] I accept that S. felt concern when the defendant got onto top of her and began to remove his clothing. I am not left in reasonable doubt on all the evidence that the defendant chose to ignore S’s objections and resistance after the initial petting and instead used his size to satisfy himself against her wishes. I have no doubt he understood he was imposing his will on the complainant without her consent. [ 59 ] Mr.

A, will be found guilty on both counts. Released: March 21, 2011 Signed: “Justice L. Feldman”