) ) HER MAJESTY THE QUEEN – v. –, 2017 ONSC 2027

CITATION : R. v. D.O., 2017 ONSC 2027 COURT FILE NO.: 15-51 DATE: 2017/03/31 ONTARIO SUPERIOR COURT OF JUSTICE INFORMATION CONTAINED HEREIN REGARDING THE IDENTITY OF THE COMPLAINANT AND/OR WITNESS IS PROHIBITED FROM PUBLICATION BY ANY METHOD BY ORDER DATED THE 16 th DAY OF JULY, 2014 PURSUANT TO

SECTION 486.4 OF THE CRIMINAL CODE OF CANADA. BETWEEN: ) ) HER MAJESTY THE QUEEN – and – D.O. ) ) ) ) ) ) ) ) M. Purcell, counsel for the Crown M. Crystal , counsel for the Accused ) ) HEARD: March 20-23, 2017 reasons for judgment Lacelle, J Introduction [ 1 ] The accused D.O. and the complainant had sexual intercourse in the summer of 2014. At the time, D.O. was eighteen years old, while the complainant was twelve. While the complainant voluntarily engaged in this sexual activity, because of her age, she was unable legally to provide consent.

Consequently, D.O. was charged with two sexual offences under ss. 151 and 271 of the Criminal Code . [ 2 ] D.O. says at the time that he and the complainant had sex, he believed she was fifteen years old, and that he took all reasonable steps to determine the complainant’s age. By virtue of the combined operation of ss. 150.1(2.1) and s. 150.1(6), he says he should be acquitted of both charges. [ 3 ] The Crown argues that D.O. knew the complainant’s actual age when he had sex with her, and did not mistakenly hold a belief that she was fifteen.

In the event the Court finds otherwise, the Crown’s position is that it has proved beyond a reasonable doubt that D.O. did not take all reasonable steps to determine the complainant’s age. [ 4 ] The issues I have to decide are as follows. First, has the accused met his evidentiary burden in pointing to some evidence of his mistaken belief and that he took all reasonable steps to ascertain the complainant’s age.

If so, the court must determine the following two issues: 1) Has the Crown proved beyond a reasonable doubt that the accused did not have a mistaken belief in the complainant’s age; and 2) Has the Crown proved beyond a reasonable doubt that the accused failed to take all reasonable steps to ascertain the age of the complainant.

Overview of the evidence The interaction between the complainant and the accused [ 5 ] The complainant and the accused both testified, and gave largely consistent accounts of their brief relationship with one another. [ 6 ] The accused and the complainant attended the same school, although they were in different grades. The complainant was in grade seven, while the accused had returned to school after completing his grade twelve to participate in the school play and take

additional courses. It was common ground in the evidence of all witnesses that the grade seven and eight students occupied a designated part of the school, and had a different

schedule from the senior students. Over the school year, the pair had limited interaction with each other, which appears to have been limited to smiling at one another in the hallway and possibly saying hello. The accused recalled one such occasion, while the complainant described a few. [ 7 ] The first conversation that took place between the complainant and the accused was at the graduation for senior students at the end of June. The complainant was there to support her older sister, A. who was graduating, while the accused was there to support his friends who were graduating.

At graduation, the pair engaged in small talk after the complainant approached the accused to speak with him. She approached him because he had been in the school musical that year, she had talked to the teacher who ran it a lot, and she “kind of knew him from there”. She agreed in cross-examination that she had seen the accused at school a few times and liked him. She said he seemed like a calm person to talk to, and she was trying to get to know him. [ 8 ] Sometime after the graduation, the complainant sent a friend request to the accused on Facebook which he accepted.

The two had a number of conversations on Facebook after that. Each witness testified during the trial as to their recollections of their conversations. The complainant testified that while they rarely talked about school, she did remember a discussion where she mentioned she was going into grade eight, and that they discussed the fact that he was going to college. She recalled saying that she wasn’t looking forward to going into grade eight, or back to school in general.

The accused’s recollection was that the complainant initiated all their Facebook conversations, and that they largely consisted of her asking questions about him. He said that the complainant did not mention her grade level. [ 9 ] The next interaction they had in person was a short while later, when the complainant was out running at about ten o’clock at night, and she came upon the accused who was walking. The complainant recalls she said hi while she was going by, and he said hey back.

The accused recalled a more detailed conversation, and that the complainant mentioned she had a birthday coming up in a few days. He did not ask which birthday it would be, but did ask what day it was on. The birth date she provided matched up with the information on her Facebook profile. [ 10 ] About a week into July, and after the two in person meetings, the complainant initiated a conversation with the accused on Facebook after seeing that he was online. After some initial small talk, she was pretty sure that she asked the accused if he wanted to hang out, and he said sure.

As far as she remembered, the pair only discussed hanging out and playing x-box. [ 11 ] Following that conversation, the complainant left her grandparents’ residence to meet the accused. She told her grandparents that she was going back to her father’s residence. While the accused lived across the street from her grandparents, she took a detour so as not to be seen attending there. The accused met her at his back door. [ 12 ] Once in the residence, the two engaged in some small talk, including talking about the accused’s plans to leave for college the following week.

When she was asked if they had discussed age at all, the complainant responded that she was pretty sure she had mentioned her upcoming birthday and that she told the accused she was excited to be turning thirteen. The accused denies that the complainant told him her age in this conversation. [ 13 ] Following their brief conversation, and a period of being silent and looking at one another, the witnesses engaged in some mutual touching and kissing before having intercourse. At some point they had some additional conversation about having sex.

The complainant recalls that she told the accused that she would only have sex if he wore a condom, which he did. She also recalled that the accused said it might hurt. The accused agrees he said this. He says he did so because he knew sex had been painful for the girl with whom he had lost his virginity at fourteen, and he was telling the complainant this out of consideration for her because he did not want her to do anything she did not want to do.

While the complainant had not said she was a virgin, he thought that since she was fifteen she might be. [ 14 ] Afterward, they played x-box, and then the complainant returned to her father’s house. The accused’s account of his belief the complainant was fifteen [ 15 ] The accused testified that the first time he spoke with the complainant at the high school graduation, she was dressed more formally with her hair done up and she was wearing make-up. He believed she was close to his own age, possibly fifteen or sixteen.

He didn’t know who she was, or that she was the younger sister of A., who was also a senior student. [ 16 ] After the graduation, the accused received the complainant’s friend request on Facebook. He recognized her photo. Based on her photo, he thought she was fifteen or sixteen. He accepted her friend request, and then he looked at her profile. Her profile contained information about her date of birth, which confirmed she was fifteen, and soon turning sixteen. He also was able to view her friends on Facebook, and recognized some mutual friends, who were around his age.

The people he could see she was communicating with were all around sixteen or seventeen. [ 17 ] The accused testified that there was nothing that he saw or learned about the complainant which was inconsistent with his impression that she was fifteen or sixteen.

He says a number of things confirmed this belief, including her appearance, the way she presented herself, her use of language, the fact that she was always approaching him, the fact that she was out jogging late at night, her Facebook profile, their mutual friends on Facebook, and the complainant’s confirmation that the day listed as her birthday on her Facebook profile was her birthday. The accused said that when they had sex, because he knew how old the complainant was, there was no need for him to ask her again.

He also said that the complainant never told him her actual age, or mentioned she was going into grade eight. The Facebook profile [ 18 ] As far as the Facebook profile is concerned, the complainant agreed at trial that she had correctly listed the day and month of her birthday, but that she used a different year than the year of her birth. She explained that she did so because she joined Facebook when she was eleven and needed to be older in order to activate an account. She agreed that at the time she sent the friend request to the

accused, her profile information indicated that she was fifteen years old, about to turn sixteen. Issue #1: has the accused met his evidentiary burden in pointing to some evidence of his mistaken belief and that he took all reasonable steps to ascertain the complainant’s age [ 19 ] Where a mistake of age defence is raised under s. 150.1(2.1), the accused must point to some evidence that he honestly believed the complainant was between fourteen and sixteen years of age and that he or she took all reasonable steps to ascertain the complainant’s age.

If the accused meets this evidentiary burden, and assuming he is himself of an age to invoke that defence, the Crown is required to prove beyond a reasonable doubt that the accused did not have the requisite belief or that he failed to take all reasonable steps to ascertain the complainant’s age: R. v. Chapman , 2016 ONCA 310 at para. 36 . [ 20 ] No submissions on this issue were made by the parties, who appear to agree that the accused has met his onus.

In any case, on the record here, I find that the accused has met his evidentiary burden of pointing to some evidence of his honest but mistaken belief and that he took all reasonable steps to ascertain the complainant’s age. The evidence regarding the complainant’s Facebook profile and the accused’s testimony explaining the reasons for his belief about the complainant’s age meet that evidentiary threshold. Accordingly, the onus shifts to the Crown on the central issues to be decided in this trial.

Issue #2: Has the Crown proved beyond a reasonable doubt that the accused did not subjectively hold a mistaken belief that the complainant was 15? The positions of the parties [ 21 ] The Crown argues that the accused knew the complainant’s age at the time they had intercourse. The Crown points to the evidence of the complainant that she had told the accused on Facebook that she was going into grade eight, as well as her evidence that in the conversation leading up to intercourse with the accused, she talked about her upcoming birthday and being excited to turn thirteen.

He argues the complainant’s evidence on this issue should be accepted by the court, while the accused’s evidence should be disbelieved. In contrast to the complainant, who was not impeached on any significant issue, Crown counsel argues that the accused’s evidence was incredible and unreliable. Counsel says he displayed all the signs of an evasive witness, particularly in his recollection of details that assist his case, and his lack of memory about details that might not assist him. [ 22 ] The defence argues that there is no reason for rejecting the evidence of the accused on this issue or overall.

He argues that portions of the complainant’s evidence are not credible or reliable. He points to evidence showing the complainant did engage in deception of her family, and says her evidence at times was not accurate. Further, since she deleted the Facebook messages between her and the accused, the accuracy of her evidence about their Facebook conversations cannot be tested.

The defence also argues that it does not make sense that the complainant would tell the accused she was turning thirteen, since she was interested in the accused, she knew that her family disapproved of her having contact with an older boy, and she had taken steps to ensure they were not aware of her contact with the accused. In these circumstances the defence says it is counter-intuitive that she would disclose to him that she was thirteen since this might end her interaction with him.

Analysis [ 23 ] After considering the totality of the evidence on the issue, I am left with a reasonable doubt that the complainant told the accused she was turning thirteen, or that she was going into grade eight. I will explain my reasons for arriving at this conclusion. [ 24 ] Overall, I found the complainant to be a credible witness. She presented as a likeable teen-aged girl. I do not think she was intentionally evasive or misleading in her evidence.

At the same time, I find that certain details in her evidence, considered in the context of the evidence as a whole, are not so persuasive that I am able to accept beyond a reasonable doubt that they occurred. [ 25 ] For instance, when the complainant was asked about certain events, she frequently answered by prefacing that she thought something had happened in a certain way, or that she was “pretty sure” something had happened. I am mindful that the complainant was testifying as a fifteen year old, about events when she was twelve, and that her evidence needs to be assessed with that context in mind.

It is entirely understandable that she does not have a perfect recollection of various events and conversations. I also understand that as a teen-ager, her use of language like I think this happened, or I am pretty sure it did, may simply reflect the sentence construction of a young person.

All the same, this language alerts the court to the need for some caution before accepting the reliability of the recollection. [ 26 ] This issue was addressed by the Crown in follow up questions with the witness with respect to her evidence that she was pretty sure she had told the accused in the conversation leading up to intercourse that she was looking forward to turning thirteen. When asked what pretty sure meant and how sure she was, she said she was ninety-nine percent sure.

When asked what made her that sure, she answered that it was because several people think she is older than she is, “so it was a common thing to come up when I say my age”. I am not entirely sure what the witness meant by this answer. In any case, it does not provide me with great assurance that the witness actually recalled the conversation. Her explanation for why she remembers seems to reference something that commonly occurred. It does not explain why she is sure it did occur on this occasion.

When I consider this evidence in conjunction with the accused’s denial that it occurred, I am left with a reasonable doubt that it did occur. [ 27 ] I have considered the Crown’s arguments that it would be entirely plausible for a conversation about what birthday was coming up for the complainant to occur, and that it makes sense that she would specifically mention which birthday was coming up because she was excited about it. I do not disagree that this is plausible.

On the other hand, so is the defence suggestion that it would make no sense for the witness to disclose her age to the accused since this might put an end to her spending time with an older boy that she liked. I cannot say that either scenario is more likely given the evidence before me. [ 28 ] As regards the conversation on Facebook about the complainant’s grade level, I consider this evidence in the context of the complainant’s evidence as a whole. She was sometimes either unclear or mistaken in her recollections.

For instance, her evidence about how many times the pair saw each other at school and smiled at one another or engaged in pleasantries was difficult to follow, and did not seem based in a clear recollection of each of these events. This is perfectly understandable given the passage of time, but it suggests

that some of her evidence may not be rooted in specific memories as opposed to a general recollection. [29] I also consider that some of the complainant’s recollections of events of some significance were not consistent with those ofother witnesses. The most significant example of this was the complainant’s certain recollection that she admitted to having had sex withthe accused immediately when confronted by her sister, as opposed to her sister’s testimony that the complainant denied she had done soat first, before then admitting intercourse had occurred.

I think it is more likely that the complainant is mistaken in her recollection of thisevent than her sister, given the complainant’s admitted efforts to hide her contact with the accused from her grandparents and her father.I also prefer the evidence of the complainant’s sister that she and the complainant had discussed the fact that she was communicatingwith older boys on Facebook, which was denied by the complainant, for the same reason. [30] These features of the complainant’s evidence do not cause me to reject her account outright, but they show me that she can beinaccurate in her recollections.

No record of the Facebook chat exists. The accused denies the complainant disclosed her grade level, andgiven the complainant’s interest in spending time with the accused, it is at least plausible that she would not make this disclosure to him.Given the overall record on this issue, I cannot find beyond a reasonable doubt that she did. [31] I have also considered the arguments made by the Crown that the evidence of the accused should be rejected.

While I agreewith the Crown that the accused’s recollections of his conversations with the complainant relate primarily to what they discussed abouthim, which may well have been self-serving testimony, I do not find this to be a sufficient reason to reject the accused’s evidenceentirely.

Overall, he appeared to me to be a responsive witness, and he was not shown to be contradictory in any aspect of his account.Nor can I conclude that his account is so fundamentally implausible that it should be rejected. [32] At the end of the day, I am unable to conclude with sufficient certainty that the complainant did disclose her age or grade levelto the accused. On the other hand, there was evidence capable of supporting the accused’s belief the complainant was fifteen.

Mostsignificantly, there was the information in the complainant’s Facebook profile which gave a date of birth that suggested she was fifteenyears old. [33] Given the totality of the evidence, I do not reject the accused’s evidence that he believed the complainant was fifteen yearsold. I am not satisfied that the Crown has proved beyond a reasonable doubt that the accused did not believe the complainant was fifteen.I turn therefore to the next issue.

Issue #3: Has the Crown proved beyond a reasonable doubt that the accused failed to take all reasonable steps to ascertain the age ofthe complainant The legal principles [34] The

interpretation of the phrase “all reasonable steps” has been considered in a number of cases. The following principleshave emerged from the case law: a. The reasonable steps requirement mandates an inquiry akin to a due diligence inquiry. The trier of fact must compare the steps, ifany, taken by the accused to determine the true age of the complainant with the steps that a reasonable person would have taken in thosecircumstances, bearing in mind that the onus is on the Crown to prove beyond a reasonable doubt that all reasonable steps were nottaken: R. v. Saliba, 2013 ONCA 661 at para. 28; R. v.

Dragos (2012), 2012 ONCA 538 , 291 C.C.C. (3d) 350 (Ont. C.A.) atparas. 29-33; R. v. Duran, 2013 ONCA 343 at para. 54; Chapman at para. 40. b. In performing that inquiry, there is no automatic checklist of considerations applicable to every case. In some cases, the trial judgemay consider that a visual observation alone may suffice.

Whether further steps would be reasonable depends 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 Court should ask whether, looking at those indicia, a reasonable person would believe thatthe complainant was the age she was believed to be by the accused without further inquiry, and if not, what further steps a reasonableperson would take in the circumstances to ascertain her age: Chapman at para. 42; Duran at paras. 52 and 54; R. v. P.(L.T.)(1997), (BC CA), 113 C.C.C. (3d) 42 (B.C.C.A.) at para. 20. c. The accused is not required to make every possible inquiry to ascertain a complainant’s age in order to successfully mount amistake of age defence.

Nor must the accused always expressly question a complainant about his or her age, or otherwise seek to obtainconclusive proof of age. What is required is that all reasonable steps be taken. What is “reasonable” will vary, depending on the contextand all the circumstances: see Chapman at para. 50. d. The greater the disparity in age between the accused and the complainant, the more inquiry will be expected. Similarly, where theaccused is older and relatively more sophisticated than the complainant, more inquiry will be required than if the accused were merely ayouth: R. v. Cunninghan, [1996] O.J.

No. 4306 at para. 22. e. The requirement that an accused ascertain all reasonable steps is more than casual. There must be an earnest inquiry or some othercompelling factor which negates the need for an inquiry: R. v. Ayer, [2008] O.J. No. 3611at para. 37; R. v. Dragos, 2010 ONSC 3093, [2010] O.J. No. 2764 at para. 51. The positions of the parties [35] The defence says that the reasonable steps analysis must be contextual. In this case, he argues that there is no evidence theaccused was pursuing a relationship with the complainant. Rather, the evidence is that their contact was initiated by her.

When the sexualactivity occurred, he says it was like a “summer squall” which came out of nowhere and ended quickly. In this context, the defence

argues that the steps taken by the accused were reasonable. The defence argues that significant information was available to the accusedabout the complainant on Facebook. Since everything else about his observations of the complainant confirmed his belief that she wasfifteen, as indicated on Facebook, there was no need to make further inquiries of her to confirm her age. In all the circumstances, thedefence says it was reasonable for the accused to rely on the information contained on Facebook.

What would have been problematic,according to the defence, was if the accused had not taken the steps he did to learn more about the complainant on Facebook. He alsopoints out that the Crown has not identified what additional steps the accused might have taken, other than to ask her about her agedirectly. [36] The Crown argues that the accused did not take any reasonable steps, let alone all reasonable steps.

The Crown submits that itwould be obvious to the reasonable person that information contained on Facebook is not sufficiently reliable to be accepted as true, andthat the accused’s conduct in checking the complainant’s Facebook profile did not relieve him of the obligation to take additional steps todetermine the complainant’s age.

In this case, he says there were “red flags” which called for greater inquiry on the part of the accused.He also submits that because the accused was six years older than the complainant, and because of the red flags, he needed to takegreater caution in ascertaining the complainant’s age. The Crown says those inquiries should have gone beyond the superficial relianceon Facebook to an earnest effort to learn the complainant’s age.

Counsel argues that the day the complainant came to the accused’s houseand engaged in sexual touching with him was too good to be true, and that he at least should have asked her to confirm her age beforehaving intercourse with her. Ultimately, the Crown submits that the accused’s state of mind most closely resembles wilful blindnessbecause he was aware of the need for greater inquiry but he chose not to make it. Analysis [37] My previous findings about the credibility and reliability of the evidence of the accused also bear on this issue. As I have said,I have no compelling reason to reject his evidence.

I therefore accept the accused’s evidence about what he knew and observed about thecomplainant prior to having sex with her. [38] Accordingly, for the purposes of this analysis, the information available to the accused consisted of his knowledge of thecomplainant’s appearance, the manner in which she conducted herself (including her use of language and her persistence in her interest ingetting to know him), the information on her Facebook profile, and her confirmation that the day and month listed as her birthday wereaccurate.

He took the step of seeking out information about the complainant on Facebook when she first sent her friend request. Thisincluded reading her profile, looking at photos of the complainant, and examining her list of friends on Facebook, some of whom weremutual friends.

No further steps were taken by the accused because everything else he learned or knew about the complainant in theirbrief interaction afterward was consistent with her Facebook profile and his first and continuing impression that she was fifteen or sixteenyears old. [39] The question of whether a reasonable person would have taken additional steps to ascertain the age of the complainant in thiscase is the more difficult question.

In the end, I conclude that the Crown has not proved beyond a reasonable doubt that a reasonableperson in the same circumstances would have taken additional steps to determine the complainant’s age. I arrive at this conclusion afterconsideration of a number of factors. [40] One factor is the absence of evidence on certain issues that might sway the analysis. In particular, I consider that there is noevidence the accused and the complainant ever saw each other in the company of their friends or other people who might have signalledto the accused that the complainant was younger than he believed.

While there was evidence that these events transpired in a small town,there was no compelling evidence adduced during the trial that the accused knew the complainant was the younger sister of A., who wascloser to his own age, or that he knew the complainant’s family well enough to have some idea of her age.

There is also no compellingevidence that the accused saw the complainant in the part of the school designated for the middle-school students, and that he shouldhave inferred her age from that circumstance. [41] I consider too that there was evidence from the complainant herself that people often thought she was older than she was.Given this evidence, and the photo of the complainant on Facebook adduced in evidence, I am unable to conclude that it wasunreasonable for the accused to conclude from his assessment of the complainant’s appearance that she was fifteen. [42] As far as the Facebook evidence is concerned, I tend to agree with the defence that had the accused not checked thecomplainant’s profile upon receiving her friend request, his conduct in continuing a relationship with her without doing so would be opento criticism.

Here, the accused did investigate the information on Facebook about the complainant. He had some confirmation of theveracity of that information. While it would be sensible for young people and others to be skeptical about information on the internet, Icannot conclude that the information people put on Facebook is so manifestly unreliable that no reasonable person would have relied onit in the circumstances of the accused. [43] I also consider that this is not a case like Dragos where the “red flags” mandating further inquiry by the twenty four year oldaccused were overwhelming.

In that case, the accused had received a warning from the complainant’s mother that the complainant was“way too young”, and warned him that if he ever contacted the complainant again she would contact the police: see para. 46.Additionally, the complainant was very small and had the body weight of an eleven year old, which the trial judge found was reasonalone to raise a suspicion about whether she was fourteen. Further, the accused had met her on an anonymous internet chat site.

Thesingle inquiry by the accused when online with the thirteen year old complainant was found to be pro forma, and not an “earnestinquiry”: see R. v. Dragos, 2010 ONSC 3093 , [2010] O.J. No. 2764 at para. 51. [44] In this case, the red flags that might have suggested a need for further inquiry by the accused were of a different quality.

Asargued by the Crown, they included the fact that the accused had no idea who the complainant was when he began to interact with herfollowing the graduation, the absence of compelling evidence that the complainant was involved with any of his friends outside of aFacebook connection (particularly given the fact that they were in a very small town), and the fact that the accused knew that thecomplainant had come to his house by way of a detour so as to avoid detection by her grandmother.

I consider too the evidence that theaccused told the complainant sex might hurt and the accused’s evidence that he said this because of his assumption that the complainantwas a virgin who might not enjoy her first sexual experience. These features of the evidence lend some force to the Crown’s argument

that the accused was at least wilfully blind about the complainant’s actual age. But given the totality of the evidence, including the accused’s explanations for his continued belief in the age of the complainant, I am not convinced beyond a reasonable doubt that they would have caused a reasonable person in the accused’s circumstances to engage in further inquiry.

While there is reason to suspect that the accused was wilfully blind in this case, I find that the evidence does not rise to the level of proof beyond a reasonable doubt that he was. [ 45 ] I have also considered the Crown’s argument that there was a need for a greater inquiry on the part of this accused because of the difference in age between him and the complainant. I note that this principle has generally been applied in cases where the age difference exceeds the difference here. In any case, I also consider the level of sophistication of the accused.

At eighteen years old he had returned to high school to participate in the school play and get extra credits. While legally an adult, he was still a high school student. The fact of his return to high school when he might have gone on to college says something about his relative immaturity as compared to his peers.

In these circumstances, the principle relied upon by the Crown has considerably less force. [ 46 ] At the end of the day, given the evidence before me, I cannot conclude that what the accused knew and observed about the complainant was manifestly inconsistent with the information on her Facebook profile, or that there were other circumstances that should have suggested to the accused that she was not fifteen years old as he believed her to be.

I am not convinced beyond a reasonable doubt that a reasonable person in the circumstances of the accused would have made further inquiries. [ 47 ] The Crown has therefore not proved beyond a reasonable doubt that the accused failed to take all reasonable steps to ascertain the age of the complainant. Conclusion [ 48 ] Before concluding my reasons, I will address the issue of the accused’s alleged spontaneous utterance. There was evidence and argument during the trial about an alleged spontaneous utterance by the accused upon being confronted by the complainant’s father.

This utterance was made after the accused and the complainant had intercourse, and I have not considered it in assessing the issues in this case. It is not necessary to determine its admissibility for the purpose sought by defence since I would dispose of the case without reliance on that evidence. [ 49 ] As the Crown argued in his submissions, for sound policy reasons, the law at issue in this case seeks to protect persons who are presumptively vulnerable. That is as it should be.

Nothing in this decision should be taken as indicating that the complainant in this case was any less deserving of the protection of the law. She was a vulnerable child on the verge of her teen-age years when these events occurred. Children on the verge of becoming teen-agers sometimes want to grow up more quickly than they should, but they are still children. Because of their immaturity and presumed vulnerability, they are not legally able to make the decision to engage in sexual activity.

The Crown is correct that the law at issue in this case exists to protect young people in circumstances like these where significantly older individuals might otherwise take advantage of them. [ 50 ] But the primary principle of our criminal law is that no accused person can be convicted of a crime unless the Crown meets the very heavy onus of proving its case beyond a reasonable doubt. For the reasons I have given, I find that this did not happen in this case. The accused is therefore entitled to an acquittal, and is acquitted on both counts. Madam Justice Laurie Lacelle Released: March 31, 2017 CITATION : R. v.

D.O, 2017 ONSC 2027 COURT FILE NO.: 15-51 DATE: 2017/03/31

ONTARIO SUPERIOR COURT OF JUSTICE HER MAJESTY THE QUEEN – and – D.O REASONS FOR JUDGMENT Madam Justice Laurie Lacelle Released: March 31, 2017