R. v. W.S., 2015 ONCJ 744

WARNING The court hearing this matter directs that the following notice be attached to the file: A non-publication and non-broadcast order in this proceeding has been issued under subsection 486.4(1) of the Criminal Code . This subsection and subsection 486.6(1) of the Criminal Code, which is concerned with the consequence of failure to comply with an order made under subsection 486.4(1) , read as follows: 486.4 Order restricting publication — sexual offences. —

(1) Subject to subsection (2), the presiding judge or justice may make an order directing that any information that could identify the complainant or a witness shall not be published in any document or broadcast or transmitted in any way, in proceedings in respect of (

a) any of the following offences: (

i) an offence under

section 151, 152, 153, 153.1, 155, 159, 160, 162, 163.1, 170, 171, 172, 172.1, 173, 210, 211, 212, 213, 271, 272, 273, 279.01, 279.02, 279.03, 346 or 347, (ii) an offence under

section 144 (rape), 145 (attempt to commit rape), 149 (indecent assault on female), 156 (indecent assault on male) or 245 (common assault) or subsection 246(1) (assault with intent) of the Criminal Code ,

chapter C-34 of the Revised Statutes of Canada, 1970, as it read immediately before January 4, 1983, or (iii) an offence under subsection 146(1) (sexual intercourse with a female under 14) or (2) (sexual intercourse with a female between 14 and 16) or

section 151 (seduction of a female between 16 and 18), 153 (sexual intercourse with step-daughter), 155 (buggery or bestiality), 157 (gross indecency), 166 (parent or guardian procuring defilement) or 167 (householder permitting defilement) of the Criminal Code ,

chapter C-34 of the Revised Statutes of Canada, 1970, as it read immediately before January 1, 1988; or (

b) two or more offences being dealt with in the same proceeding, at least one of which is an offence referred to in any of subparagraphs ( a )(

i) to (iii).

(2) Mandatory order on application. — In proceedings in respect of the offences referred to in paragraph (1)(

a) or ( b ), the presiding judge or justice shall (

a) at the first reasonable opportunity, inform any witness under the age of eighteen years and the complainant of the right to make an application for the order; and (

b) on application made by the complainant, the prosecutor or any such witness, make the order. . . . 486.6 Offence. —

(1) Every person who fails to comply with an order made under subsection 486.4(1) , (2) or (3) or 486.5(1) or (2) is guilty of an offence punishable on

summary conviction. CITATION: R. v. W.S. , 2015 ONCJ 744 ONTARIO COURT OF JUSTICE (East Region) Her Majesty the Queen v. W.S. Before Justice David M. Paciocco – Ottawa, ON Reasons for Decision Released September 28, 2015 Ms. K. McVey …..………………………………………………………………….for the Crown Mr. C. Nahum ………..………………………………………………. for W.S., a young person Paciocco J.

[1] Standing alone, the offence of sexual interference contrary to

section 151 of the Criminal Code does not include a “consentelement,” such as the one that forms part of the actus reus for the offence of sexual assault, contrary to

section 271. This is becausesection 151 addresses the sexual exploitation of children. The exclusion of consent is based on concern that children generally lack thematurity to make an integral decision to voluntarily choose to consent to sexual activity, something potentially harmful to them, with aperson holding a balance of power over them, such as adults. [2]

Section 150.1 does, however, bring the issue of consent into issue in a

section 151 prosecution in some cases where there is notapt to be a material power imbalance. Of particular relevance to this case,

section 150.1 provides in relevant part:

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

section 151 or 152, subsection 173(2), or

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

a) the accused (

i) is less than five years older than the complainant; and (ii) is not in a position of trust or authority towards the complainant, is not a person with whom the complainant is in a relationship ofdependency and is not in a relationship with the complainant that is exploitive of the complainant; or (iii) the accused is married to the complainant. [3] It is alleged in this case that at the time of the alleged offence W.S. was 16 years of age. The evidence before me is that thecomplainant, C.B, was 15 years of age.

W.S. is therefore less than 5 years older than the complainant and there is no relationship ofdependency or exploitation at play. The issue of consent is therefore a live one before me, not only on the

section 271 charge of sexualassault, but also the

section 151 charge of sexual interference. [4] Counsel for W.S., wanting to ensure that the ground-rules were clear before electing whether to call defence evidence aboutconsent, raised the question of who bears the onus on the issue of consent under

section 150.1, given that

section 150.1 refers to a“defence” of consent. Ordinarily, where an affirmative[1] or procedural defence[2] applies, depending on which defence is used, theaccused bears either an evidentiary or legal burden of proof.[3] Counsel for W.S. contends that, in spite of this, where consent does ariseas an issue in a sexual interference prosecution, the ordinary burdens of proof apply requiring the Crown to disprove consent beyond areasonable doubt. [5] The Crown offered helpful submissions in framing the debate by suggesting that there are two ways to view

section 150.1. First,section 150.1 can be seen as an exception available to the accused to put the issue of consent into issue, as a defence. On this view,section 150.1 would impose a burden of proof on the accused relating to “consent.”[4] Alternatively,

section 150.1 can be understood tobe a provision that, for some offences in some circumstances, adds consent to the elements of the offence the Crown must prove.Specifically, where the accused shows that the circumstances set out in sub-sections 150.1(2)-(2.2) apply, to succeed in prosecutingsection 151, 153 or 173(2) offences, the Crown must also prove that the complainant did not consent. [6] The proper approach to statutory

interpretation was identified by the Supreme Court of Canada in Bell ExpressVu LimitedPartnership v. R. 2002 SCC 42 , [2002] S.C.J. No. 43 at para 26: Today there is only one principle or approach, namely, the words of

an Act are to be read in their entire context and in their grammaticaland ordinary sense harmoniously with the scheme of the Act, the object of the Act, and the intention of Parliament. This issue is not resolved, in my view, by applying the grammatical and ordinary reading of the phrase, “defence that the complainantconsented.” The term “defence” does aptly describe affirmative and procedural defences, but it is also used notoriously in criminal law torefer to cases where the accused counters a prosecution by contending that the Crown has not proved an element of the offence.

It iscommon, for example, to hear of the “defence of identity” where identity is in issue, even though the Crown bears the burden of provingidentity. It is even common to hear reference to the “defence of consent” in sexual and other assault cases notwithstanding that theCrown bears the burden of proof on that issue beyond a reasonable doubt: see, for example, the sexual assault case of R. v. Zhao [2013]O.J. No. 2010 at para 4 (Ont.C.A.) and the aggravated assault decision in R. v. McDonald 2012 ONCA 379 , [2012] O.J. No.2504 at para 1(Ont.C.A.).

This issue must necessarily be resolved by examining the scheme of the Act, the object of the Act includingfoundational criminal law principles, and the intention of Parliament. The “intention of Parliament” has been described by JusticeCromwell as “a shorthand reference to the intention which the court reasonably imputes to Parliament.”[5] [7] The Crown suggested that what makes it possible to treat

section 150.1(2- 2.2) as an exception available to the accused to bringconsent into issue, is the structure of the Act, read as a whole. Specifically, sections 151, 152 and 173(2) set out the elements of therelevant offences, and do not include “non-consent” as something that must be established. In effect, the suggested theory posits thatoffence provisions should be treated as the exhaustive legislated source for elements of an offence. This thinking does not commenditself.

A statute is to be read as a whole, and there is no reason why two or more provisions cannot work in tandem to identify theelements of an offence, as they apply in different or particular circumstances. This is done, for example, in section 85(1). This provisionmakes it an offence to use a firearm while committing an indictable offence. It is only through the combination of that

section and theprovision defining the alleged indictable offence that the elements of the offence required to be proved by the Crown in a section 85(1)prosecution can be identified. [8] Ultimately, there are a number of material reasons why it is problematic to read

section 150.1(2-2.2) as providing an affirmativedefence. [9] First, subsections 150.1(2-2.2) apply not only to sections 151, 152 and 173(2). They apply, as well, to sexual assault prosecutions

under

section 271, where non-consent is specifically made an element of the offence. It cannot be said in the case of

section 271 that subsections 150.1(2-22) operate as exceptions available to the accused to put the issue of consent into issue, since consent is already an element of that offence. [ 10 ] Second, as defence counsel pointed out, it is common for young offenders to be charged with sexual offences involving those youthful complainants who are protected by sections 151, 152 and 173(2). This is because the typical sexual contact experienced by a person protected by these provisions is likely to involve another young person.

It is clearly in the public interest to regulate sexual conduct involving young persons, even criminally. It does not seem to be in the public interest, however, to have a provision that can be used to prosecute sexual offences involving young people more aggressively than sexual activity between adults. That would be the result of requiring young persons who are close in age to a complainant to prove consent in order to avoid conviction, while adults accused of committing sexual offences against other adults have the protection of requiring the Crown to prove non-consent beyond a reasonable doubt.

This is not an intention that can reasonably be imputed to Parliament. Meanwhile, the manifestly reasonable intention of removing the need to prove non-consent of a minor where there is a material power imbalance between the minor and the accused actor can fully be achieved by treating sections 150.1(2-2.2) as working in tandem with the relevant provisions to require the Crown to prove non-consent, only where there is no material power imbalance at play. [ 11 ] Third, these provisions should be interpreted in light of the presumption of innocence.

Of course, both evidential and persuasive burdens are placed on the accused on some issues, but this is exceptional. It is one thing, in my view, to expect an accused person to show that they qualify to have consent placed in issue by

section 150.1(2-2.2). It is quite another to require the accused to prove the state of mind of another person in order to avoid conviction. The language and context is not clear enough, in my view, to infer that Parliament intended to impose a burden on the accused relating to consent. [ 12 ] Finally, interpreting

section 150.1 as imposing the burden on the accused relating to consent can produce inconsistent verdicts. If

section 150.1 imposes a burden on the accused, then in cases where the evidence relating to consent remains unclear or non-existent at the end of a trial, an accused person could be convicted of an offence under

section 150.1 but acquitted of the offence of sexual assault as a result of inconsistent findings relating to the same element of the offence, consent. [ 13 ] Perhaps, not surprisingly, the parties were unable to identify any authority supporting the view that a burden rests on the accused to prove consent, where consent is put into issue pursuant to sections 150.1(2-2.2). There are cases to the contrary. In R. v. Thompson [2994] O.J. No. 2255 (Ont.C.J.(G.D.)), for example, the accused was charged with both sexual assault contrary to

section 151 and sexual assault contrary to

section 271. He raised the defence of mistake of fact relating to the age of the complainant, who he claimed he thought to be 14 years of age or older, the “age of consent” at the time. In setting out the law Justice Hill commented at para 59 that even if this defence succeeded, the accused could still be convicted “if the prosecution establishes that the ‘under-age’ complainant was not consenting to the activity in question, in the sense of voluntary agreement and participation.” In R. v. J.J.A. [2012] O.J.

No. 2309 (Ont.C.J.) the accused was acquitted by Justice De Filippis of both sexual assault and sexual interference charges involving the complainant M.R., who was under 14 but less than 2 years younger than the accused. The reason for the acquittals, offered at para 67 of the decision, was “[i]t has not been proved beyond a reasonable doubt that the defendant forced MR to participate in these sexual acts.” [ 14 ] I am therefore persuaded that to succeed in prosecuting, either under

section 151 or

section 271 where

section 150.1(2.1) applies, the Crown must prove the absence of consent by the complainant beyond a reasonable doubt. Dated in Ottawa this 28 th day of September 2015, _________________________________________ Justice D.M. Paciocco