R. v. Gratton, 2022 MBPC 38

CITATION: R. v. Gratton, 2022 MBPC 38 IN THE PROVINCIAL COURT OF MANITOBA Brandon Centre BETWEEN: Her Majesty the Queen ) J. Mays ) for the Crown -and- ) ) Timothy A. Gratton ) A. Claros ) for the Accused Accused ) ) ) ) Reasons for Decision ) Delivered: July 27, 2022 at ) the City of Brandon, in the ) Province of Manitoba Restriction on Publication: pursuant to s. 486.4 of the Criminal Code of Canada , any information that could identify the victim shall not be published in any document, broadcast, or transmitted in any way. S.

Hewitt-Michta, J INTRODUCTION [ 1 ] The accused admits exchanging text messages of a sexual nature and engaging a vulnerable twelve-year-old girl in sexual activity. He denies knowing A.S. was only twelve, insisting he believed she was old enough to consent. For the reasons that follow, I find him guilty of sexual assault and sexual interference but acquit him on the luring charge.

EVIDENCE AND CREDIBILITY Child and Family Services [CFS] Worker [ 2 ] A.S. was twelve years-old and a permanent ward of Peguis CFS, residing in a Brandon group home during the relevant period in 2020. [ 3 ] The worker had regular contact with A.S. whom the agency considered high risk for substance abuse, behavioural issues, running away, and suffering exploitation. She was impressionable and easily manipulated. [ 4 ] The worker described A.S. as 5’2” to 5’3” tall, weighing 130 to 140 pounds at the relevant time. She was slightly “ chubby ” with a “ baby face ”.

She evidenced early breast development but much less than late adolescence or early adulthood. She was “ pre or early adolescent ” in appearance. She sometimes wore light makeup. The crown tendered photographs of A.S. from 2020, which the worker confirmed accurately depict her appearance at the time [see Exhibit 1]. [ 5 ] The worker did not agree with defence counsel’s suggestion that A.S. presented maturely. The agency was in the process of obtaining a psychological assessment for A.S. in 2020, suspecting neurological impact arising from the mother’s consumption of alcohol or drugs while pregnant.

She struggled to comprehend concepts and her vocabulary was not well developed. [ 6 ] The worker became aware of sexually explicit messages exchanged between A.S. and the accused. Those messages referenced an in-person sexual encounter.

[ 7 ] The text messages, identified by the worker in court, include photographs of an erect penis; invitations to come to the accused’s home to engage in sexual activity; direction to say she was eighteen if anyone asked; and reference to an incident of cunnilingus. [See Exhibit 2] [ 8 ] I have no concerns with the credibility of the CFS worker and accept his evidence as reliable. Sergeant Bradshaw [ 9 ] Sergeant Bradshaw interviewed the accused under caution. Initially, the accused denied knowing A.S. followed by an admission he knew her a little bit but did not know she was in CFS care.

There is no disclosure by the officer in the statement that A.S. was a ward of CFS. When asked about her age, the accused said A.S. told him she was “ seventeen or eighteen ”. He admitted exchanging text messages with A.S. and having sex with her “ once ”. He admitted sending her a picture of his penis. He admitted directing her to lie about her age; to tell anyone who asked that she was eighteen. [ 10 ] Sergeant Bradshaw was familiar with A.S. in 2020. He testified she looked like a twelve-year-old child, small in stature, and of Indigenous heritage.

The officer has experience dealing with teenagers in the course of his employment as a police officer and has a daughter who was sixteen at about the same time. He opined A.S. appeared much younger than sixteen. [ 11 ] I have no concerns about the credibility of Sergeant Bradshaw and accept his evidence as reliable. Accused [ 12 ] The accused testified. He is twenty-eight-years-old. He met A.S. at his friend Shane’s home. They first met in late August of 2020. They talked and watched a movie for three or four hours. A day or two later, they began messaging each other. He invited her to his house to have sex.

They used marijuana and engaged in “ oral sex ”, which was his idea. Before attending, he told her to say she was eighteen if anyone asked. He did this because his mother has a house rule prohibiting him from having minors over. [ 13 ] With respect to A.S.’s age, the accused’s evidence fluctuated. In direct examination, he said A.S. mentioned at Shane’s house that she was “ sixteen or seventeen”. It was not clear whether he meant A.S. literally identified herself as “sixteen or seventeen” or whether she provided one of those ages and he could not remember whether it was sixteen or seventeen.

It would be unusual for an individual to identify their age as “sixteen or seventeen” so it seems likely the accused meant she provided one of those ages and he is not sure which. Defence counsel twice more asked the accused how old he believed A.S. was and he said “ at least seventeen ” and later “ at least sixteen or seventeen”. [ 14 ] In terms of A.S.’s appearance, the accused described her as 5’5” or 5’6” tall and “ a little bit chubby ”. He said she was wearing a lot of makeup when they first met and had dyed hair.

When shown Exhibit 1, photographs of A.S. without makeup, he said she looks “ at least sixteen ”. [ 15 ] I have serious concerns about the credibility of the accused, except where other reliable evidence corroborates his version. The accused’s evidence lacked detail, was inconsistent, and self-serving. [ 16 ] There were contradictions between the accused’s statement to police and his evidence in court. He told police A.S. told him she was seventeen or eighteen. In court, he testified she told him she was sixteen or seventeen. He admitted to police the pictures sent to A.S. were of his own penis.

In court, he testified the photos did not depict his own genitals. [ 17 ] There were inconsistencies within the accused’s evidence in court. He testified A.S. told him she was sixteen or seventeen. He later said he believed she was at least seventeen. When asked if he took any other steps to ascertain her age, the accused said “ not that I recall ”. He subsequently claimed to have asked Shane about A.S.’s age. Near the end of direct examination, he said he believed A.S. was at least sixteen or seventeen.

When asked why he believed this, he referenced her personality, actions, appearance, and maturity but made no mention of her telling him how old she was. Under cross-examination, he asserted for the first time that he specifically asked A.S. about her age during their conversation at Shane’s house. [ 18 ] The accused’s evidence lacked context and supporting details. He testified to a conversation with A.S. during which she mentioned her age. He was unable to provide any other detail about that aspect of the conversation or explanation for how the issue of her age arose.

The accused testified he believed A.S. was at least sixteen because she “ was being mature” around him but he was unable to identify any actions or observations in support of that assertion. [ 19 ] The accused’s evidence seemed illogical in at least one respect. He denied suspecting A.S. was underage yet admitted he questioned both Shane and A.S. about her age, attempting to confirm it. [ 20 ] The accused lied to Sergeant Bradshaw when first confronted about A.S. He denied knowing A.S. He said he did not know anyone by that name.

When confronted with the fact someone was monitoring A.S.’s social media, the accused said, “ I thought I didn’t [know her] but I guess I do…a little bit. Not really. ” Only when the officer revealed a copy of the text communication did the accused admit he knew A.S. [ 21 ] The accused did not provide his evidence in a straightforward or particularly convincing manner. There were long pauses throughout his evidence. He sat with his head down or with his hands covering his face through much of his evidence. He was barely responsive to some of the questions put to him.

I draw no inference from the accused’s demeanor. He seemed unsophisticated and testifying in court is a stressful ordeal for most. I do note that his unresponsiveness to some questions did nothing to bolster his credibility. Accused’s Mother [ 22 ] Defence counsel subpoenaed the mother of the accused but counsel ultimately presented an agreed statement of her evidence. She

has a house rule prohibiting the accused from having underage people in their home. THE LAW [23] Luring criminalizes communication intended to facilitate a sexual offence. If the crown proves the accused did not take reasonablesteps to ascertain A.S.’s age, the defence of mistaken belief is unavailable. To obtain a conviction, the crown must further prove beyonda reasonable doubt that the accused believed A.S. was underage. The Court cannot convict the accused of luring based on negligence orrecklessness about A.S’s age. [See R. v. Legare 2009 SCC 56 and R. v. Morrison 2019 SCC 15] [24] Pursuant to

section 150.1(4) of the Criminal Code R.S.C. 1985, c. C-46, it is not a defence to the sexual interference and sexualassault charges that the accused believed A.S. was sixteen years of age or older unless he took all reasonable steps to ascertain her age.There is an evidentiary burden on the accused to demonstrate an air of reality to the mistaken belief defence following which the crownbears the persuasive burden of establishing beyond a reasonable doubt that the accused did not believe A.S. was at least sixteen or did nottake all reasonable steps to ascertain A.S.’s age. [See R. v. George 2017 SCC 38; R. v.

W.G. 2021 ONCA 578] ANALYSIS [25] The accused testified so R. v. W.D. (SCC), [1991] 1 S.C.R. 742 is instructive. If I believe the accused’s denials orthey leave me in doubt about his guilt, I must acquit. If I do not believe him and his evidence does not raise a reasonable doubt, I mustconsider whether the evidence I accept establishes his guilt beyond a reasonable doubt. [26] For the reasons already indicated, I do not believe the accused’s claim that A.S. told him she was sixteen or seventeen, nor do Iaccept his assertion that he subjectively believed A.S. was at least sixteen.

I do not believe his evidence about asking Shane or A.S. abouther age. These aspects of the accused’s evidence were so unbelievable they do not inspire reasonable doubt nor do they found an air ofreality for the proffered mistaken belief defence. [27] Even if I found an air of reality to the mistaken belief defence, the accused did not take any reasonable steps to ascertain A.S.’sage. The worker and the officer both provided credible evidence about A.S.’s physical appearance and maturity. There are photographsin evidence, which corroborate that evidence.

A.S. looks much younger than sixteen in the photographs. [28] The accused conceded it occurred to him the makeup A.S. was wearing might make her look older than she was. He admittedA.S.’s request that he “pull” for her (i.e. purchase alcohol for her because she was too young) should have caused concern about her age. [29] Given all of these factors, the mere assertion A.S. looked sixteen or seventeen is insufficient. Actual inquiries or other steps todiscover her age were necessary in the circumstances. The accused’s claim he asked A.S. and Shane about her age was unbelievable.

Hetook no other steps. [30] The accused cannot rely on a mistaken belief defence and I therefore find the crown has proven the sexual assault and sexualinterference charges beyond any reasonable doubt. [31] While I do not believe the accused’s denials or find his evidence raised reasonable doubt about his guilt, I am not satisfied theevidence I do accept proves beyond a reasonable doubt the accused had a subjective belief A.S. was under sixteen. I am very suspiciousthe accused knew A.S. was underage.

The evidence certainly proves beyond a reasonable doubt that the accused was reckless andnegligent with respect to ascertaining her age. The available evidence falls just short of proving the requisite mens rea for the luringoffence and for that reason, I acquit him of that offence. “original signed by Judge Hewitt-Michta” Judge S. Hewitt-Michta