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Restriction on Publication |
An order has
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Court of Appeal for Saskatchewan Docket: CACR2557 |
Citation: R v Clarke, 2016 SKCA 80 |
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Date: 2016-06-30 |
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Between: |
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Randy Joseph Clarke |
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Appellant |
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And |
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Her Majesty the Queen |
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Respondent |
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Before: |
Jackson, Caldwell and Whitmore JJ.A. |
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Disposition: |
Application to adduce fresh evidence dismissed; conviction appeals dismissed; sentence appeal allowed, sentence varied |
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Written reasons by: |
The Court |
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On Appeal From: |
Provincial Court, North Battleford |
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Appeal Heard: |
November 25, 2015 |
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Counsel: |
Ammy S. Murray for the Appellant |
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Erin L. Bartsch for the Respondent |
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The Court
I. Introduction
[1]
This appeal is about the obligation Parliament
has placed on men and women who have sexual relations with an individual who, by
virtue of age, cannot legally consent. In this case, the evidence was such that
the complainant told the accused she was 17 years old. The fact the complainant
told the accused her age is an important circumstance, and sets this case apart
from many of the other decided cases, but it is only one of the circumstances
that must be considered. The issue is still whether the accused took “all
reasonable steps” in all of the circumstances “to ascertain the age of the
complainant” (s.
[2]
By way of brief background, Randy Clarke (the
appellant), aged 34 years at the time of the offence, had sexual intercourse
with the complainant, X, when she would have been 15 years old, and thus legally
unable to consent to such acts with him (s. 150.1(2.1)). As a result, Mr. Clarke
was charged with sexual assault under s.
[3]
Following the incident, Mr. Clarke sent
sexually explicit messages to the complainant’s Facebook account, inviting the
recipient to continue what they had begun. As a result of these additional
actions, he was charged under s.
[4] The judge sentenced Mr. Clarke to three years of incarceration for the s. 271 offence and six months consecutive for the offence under s. 152. He credited Mr. Clarke with seven months for pre-sentence custody, resulting in a total global sentence of 35 months.
[5] Mr. Clarke appeals both his convictions and his overall sentence. As part of his appeal, he applies to adduce fresh evidence composed of a previously unavailable Facebook account showing the complainant had indicated her age as having been 18 at some point in time.
[6] For the reasons that follow, the fresh evidence application and the appeals from conviction are dismissed. The sentence appeal is allowed.
II. Overview of the Evidence and the Trial Judge’s Reasons
[7] The trial judge heard from four witnesses: the complainant (X), the complainant’s cousin (A.H.), the police officer in charge (Cst. Chafe), and Mr. Clarke.
[8] The s. 271 offence took place on March 19, 2014, and the complainant contacted the police approximately one week later. Constable Chafe immediately arrested Mr. Clarke and obtained a warned statement from him, which was admitted as part of the Crown’s case and used to cross-examine Mr. Clarke.
[9] In March of 2014, the complainant was approximately 15 years old, with a birthday in mid-February; A.H. was 22 years old; and Mr. Clarke was 34 years old.
[10] The Crown called A.H. to testify before calling the complainant. A.H. clearly had difficulty understanding the questions. She responded to most questions with “I don’t know” or “I don’t remember” and she contradicted previous answers given (see T39-T42).
[11] When the complainant testified, she contradicted much of what A.H. had said, but she also presented the trial judge with credibility issues.
[12] When Cst. Chafe testified, he advised the Court that he had searched Mr. Clarke’s phone where he found a number of messages ostensibly from the complainant that caused him some concern. In addition to the messages of sexual invitation from Mr. Clarke to the complainant (dated March 20, 2014), and messages from the complainant asking Mr. Clarke to “leave me alome” [sic], there were messages like the following, which were ostensibly from the complainant to Mr. Clarke and sent after March 21, 2014: messages inviting him over, saying “hey sexy i want u,” “[A.H.] not home nd im so horny come over baby” and asking him to text her on Facebook.
[13] These messages caused Cst. Chafe to re-interview A.H. and the complainant. As a result of that interview, he learned that the complainant had deleted all of her messages with Mr. Clarke and blocked him from her Facebook account. Constable Chafe also learned from Mr. Clarke that the complainant and A.H. were using the latter’s phone and a device called “Magic Jack.” According to the evidence, Magic Jack can be installed on a phone allowing the user to call anonymously. Constable Chafe subpoenaed A.H.’s phone but, after four attempts to serve the subpoena and seize the phone, he discontinued his efforts.
[14] Mr. Clarke testified in his own defence. He presented with a clear memory of the events, but he also contradicted himself at several points.
[15] As a result of all of this, the trial judge found A.H. “unbelievable” and the complainant “somewhat more believable” but he also found Mr. Clarke’s testimony to be contradictory and unsatisfactory. He also was not satisfied that he had heard the full story.
[16] The trial judge had to do the best he could with this evidence, ultimately making these findings of fact with respect to the background to the offences before the Court:
(a) A.H. met Mr. Clarke on the online dating site known as Plenty of Fish;
(b) the complainant was living with A.H.;
(c) on March 18, 2014, A.H. invited Mr. Clarke over to eat some pizza and watch movies;
(d) the complainant told Mr. Clarke that she was 18 years old and then told him she was 17;
(e) Mr. Clarke took no steps to verify her age;
(f) between 30 to 45 minutes later, the three of them were lying on the only bed; A.H. was asleep and Mr. Clarke had sexual intercourse with the complainant, lasting about 30 seconds;
(g) A.H. woke up and told Mr. Clarke that the complainant was 15 years of age; the accused was ashamed and was mad at himself;
(h) within less than a day, Mr. Clarke texted the complainant to say he would like to finish what they had started the night before;
(i) the complainant texted Mr. Clarke, “your like 35 im 15”; the accused replied, “So one more hott fuk and no more,” and later “K no sexx just let me eat ur sexxy litlle pusyy”; and
(j) on March 23, 2014, the complainant and A.H. sent Facebook messages of a sexually provocative nature to Mr. Clarke.
[17] As to the legal consequences of these facts, the trial judge found that the complainant had consented in fact to the sexual intercourse. The March 23rd exchange of messages caused him particular concern on the issue of consent in fact:
What is striking throughout this case, is the course of events that transpired. Once Constable Chafe read the messages on the accused’s phone, he was quite rightly concerned. He took photos of these messages, and because they raised concerns or questions about what [A.H.] and [X] had originally alleged, the -- he decided to get further statements from the two of them. The overall tenure of the evidence, including how the investigation unfolded, the reaction of [X] and [A.H.] is demonstrated in the Facebook messages, all leave me with the unsettling feeling that there is more to this story than has been told in the courtroom. Therefore, on all of the evidence, I have a reasonable doubt as to whether the accused had forced sexual intercourse with the complainant, and I cannot find beyond a reasonable doubt that he did.
(Emphasis added, T212)
[18] For the same reasons regarding the credibility of A.H. and the complainant that the trial judge had in relation to consent, he also had a reasonable doubt about whether the accused believed the complainant was 16 years of age or older:
With regards to whether or not the accused had a reasonable belief that [X] was 16 years of age or over, I must find that the Crown’s case does not convince me otherwise. Given the contradictory nature of the evidence of [A.H.], [X] and the accused, I must accept the accused’s evidence that [X] had told him she was 17. After all, [A.H.] testified that she heard [X] telling the accused this. Even though I give little weight to [A.H.]’s evidence, this does raise a reasonable doubt in my mind that the accused could have had an honest, but mistaken belief that [X] was 16 years of age or over.
(Emphasis added, T214)
[19] At this point, the Crown’s case turned on the proper application of s. 150.1(4), which the trial judge cited:
Mistake of age
150.1(4) It is not a defence to a charge under section
152 or… section 271 … that the accused believed that the complainant was 16
years of age or more at the time the offence is alleged to have been committed
unless the accused took all reasonable steps to ascertain the age of the
complainant.
[20] As this appeal requires the Court to examine the trial judge’s reasons closely, and the trial judge gave oral reasons for verdict, we will quote all of his reasons pertaining to his finding that Mr. Clarke did not take all reasonable steps as required under s. 150.1(4):
I must ask what steps would have been reasonable for the accused to have taken in all of the circumstances. In this case, the accused had known the complainant for only a short period of time. He had met her through her aunt, whom he had made contact with through a dating site. And on the second occasion he was at [A.H.]’s house when [X] was there, the incident occurred. So it was only the second occasion that he had contact with this youth, that he had intercourse with her. And according to him, it was only 30 to 45 minutes after [X] had told him she was 17 years of age.
During the trial on September the 24th, 2014, he was asked by the Crown if he was surprised when [X] told him she was 17. At about 5:38, on the recording of the trial, he responds that it really made no difference at that time, as they were at the table eating pizza and there was no plan to hook-up or to have a relationship or to have sex. He goes on to say, and I quote, “It was sort of a flat line thing”. And further he states, “I didn’t look into it”. And then at 5:38 and 42 seconds, he states, “I didn’t look into a whole bunch”. In other words, he didn’t look into her age a whole bunch. And then 30 to 45 minutes later, he was having sexual intercourse with her.
On his own evidence, it is doubtful whether the accused took all reasonable steps to ascertain her age. This, combined with the 19 year age difference, the young visual appearance of the complainant, as she presented herself in court, even though she may have been wearing make-up and provocative clothing, and twerking on the night -- twerking, as the accused said, on the night in question, all of the circumstances would require more. In fact, a great deal more than not looking into it a whole bunch.
This sort of behaviour on her part, the twerking, if true, and the wearing of makeup, would cause a right thinking man to question even further, the age of the complainant. It was the second time he had met her after having contact with [A.H.], the caregiver and aunt, an obviously older female, and he had that contact through a dating site. I am satisfied that a much deeper inquiry was required. The complainant was living at the residence the accused was at. Inquiries could have been made and should have been made further to ascertain her age. Asking for identification, whether she drove a vehicle or had a driver’s license. Whether she worked or went to school, and if so, what grade was she in. Her date of birth. The accused made simply no inquiries. In fact, he not only didn’t look into it a whole bunch, he didn’t look into it at all. He took no steps to ascertain her age. He simply accepted her assertion that she was 17 years of age.
(T214-T215)
Having regard for these reasons, he entered a conviction with respect to the charge under s. 271.
[21] With respect to the charge under s. 152, the trial judge was satisfied beyond a reasonable doubt that all of the elements of the offence had been proven. He said the following:
I am satisfied that this charge is made out beyond a reasonable doubt. Immediately after he had had intercourse with [X], the accused admits that [A.H.], the aunt of the complainant, told him that [X] was 15 years of age. The accused testified that he was ashamed and mad at himself. Yet within less than a day, he texts [X] to say he would like to finish what they started the night before. The only thing they had started the night before was the sexual contact, which was cut short either by [A.H.] waking up, as he says, or the accused quitting the act because he was looking [A.H.] in the eyes while having sex on the same bed.
(Emphasis added, T215)
[22] On the question of the appropriate sentence, after listing all of the mitigating and aggravating factors, the trial judge imposed the following custodial sentence:
In considering all of
the above, I am not convinced that the three year benchmark or starting point,
as enunciated in R. v. Revet [R v Revet,
(T242)
He also made orders pertaining to DNA, the Sex Offender Information Registration Act, SC 2004, c 10 and firearms.
[23] Mr. Clarke appeals his convictions under s. 271 and s. 152 and the custodial portion of his sentence.
III. Application to Adduce Fresh Evidence
[24] On behalf of her client, Ms. Murray applied to adduce fresh evidence in relation to both convictions. In support of the application, she filed an affidavit of trial counsel, Robert F.L. Feist. In his sworn affidavit, Mr. Feist states he had looked, without success, for Facebook information before trial that would have assisted Mr. Clarke:
2. In preparing for trial, I did make a search of Facebook.com and found [X]’s Facebook profile page. I searched this page specifically looking for information that would have been of assistance to Mr. Clarke at trial. This included any indications of representations [X] made about her age. The link to this Facebook page is found at:
[a Facebook address is provided].
3. A summary of this page is attached as Exhibit “A” to this my Affidavit. I found no evidence that would be of assistance to Mr. Clark, including an indication of [X]’s age, and moved on.
4. I was not aware that [X] had either a second Facebook page, or that her Facebook page was not public.
[25] Mr. Feist then recounts that, when she came on file, Ms. Murray found a second Facebook account under a slightly different name than the complainant’s name that may have only recently been made public. Trial counsel describes what he did with that information:
6. After discussions with Ms. Murray, I made a second search of Facebook.com for [X]. I found a second profile page, attached as Exhibit “B” to this my Affidavit. On this page, [X] is listed as being born on February 11, 1996. Her age is now listed as 19 years old, not her true age of 16. [X]’s actual birthdate is […], 1999. Thus, on the offence date of March 20, 2014, Facebook would have listed [X’s] age as 18.
[26] Exhibit B to Mr. Feist’s affidavit lists the complainant’s birthday differently than on Exhibit A, which could mean that at the date of the incident, the complainant could have been represented - on one Facebook account at least - as 18. In relation to this information, trial counsel specifically attests to the following: “Of significance, I specifically sought out this information, but was unable to find it” (at para 8).
[27] As to the basis of his belief that the complainant’s second Facebook account could have shown the complainant’s age as 18 on the date of the offence, trial counsel states his understanding regarding Facebook policy with respect to changing an account holder’s date of birth:
7. It is my understanding that Facebook.com has stringent policies about listing one’s authentic date of birth. If one wishes to change one’s date of birth, one risks having their account suspended, and must provide Facebook with a reason for changing the date of birth. Facebook must then approve this age change, and it is only at that point the age will be changed. Therefore, it is entirely possible that [X]’s year of birth has been listed as 1996 for quite some time. A summary of the form to be submitted for a change of age on Facebook is attached as Exhibit “C” to this my Affidavit.
IV. Analysis
[28] We have concluded that the fresh evidence application must be rejected and that the conviction appeals should be dismissed. It has been necessary to consider Mr. Clarke’s appeal from conviction first. This is so because Mr. Clarke challenges his conviction on a number of bases, including challenging factual findings, which have a bearing on his fresh evidence application. It is also necessarily important to keep the charges under s. 271 and s. 152 separate because, by the time Mr. Clarke sent the text messages to the complainant’s phone, he knew the owner of the Facebook account to whom he was sending messages was 15 years old. In sum, the fresh evidence application plays out differently in relation to that charge.
A. Conviction appeal in relation to s. 271
[29] Mr. Clarke invokes the Court’s authority to allow an appeal from conviction under s. 686(1)(a) of the Criminal Code:
Powers
686(1) On the hearing of an appeal against a
conviction or against a verdict that the appellant is unfit to stand trial
or not criminally responsible on account of mental disorder, the court of
appeal
(a) may allow the appeal where it is of the opinion that
(i) the verdict should be set aside on the ground that it is unreasonable or cannot be supported by the evidence,
(ii) the judgment of the trial court should be set aside on the ground of a wrong decision on a question of law, or
(iii) on any ground there was a miscarriage of justice … .
(Emphasis added)
[30]
Mr. Clarke argues that the trial judge (a) committed
palpable and overriding errors of fact in assessing his and the other witnesses’
credibility and thereby arrived at a verdict that is unreasonable; (b) misapprehended
material aspects of the evidence leading to an unreasonable verdict or a
miscarriage of justice; and (c) committed errors of law in relation to his
interpretation and application of s.
1. Did the trial judge make a palpable and overriding error of fact in relation to the credibility of Mr. Clarke, A.H. or the complainant?
[31]
In R v Cote,
[65] … A witness’s
credibility is a question of fact, and therefore attracts a deferential
standard of review. As Bastarache and Abella JJ., writing for a majority of
the Court in R v Gagnon,
There is general agreement on the test applicable to a
review of a finding of credibility by a trial judge: the appeal court must
defer to the conclusions of the trial judge unless a palpable and overriding
error can be shown. It is
not enough that there is a difference of opinion with the trial judge (Schwartz
v. Canada,
[66] This deferential
standard of review is appropriate because “of the advantages enjoyed by the
trier of fact” and his or her “special position” in assessing witness
credibility. (See: R v Burke,
[67] In light of
the deferential standard of review, “[r]arely will the deficiencies in the trial
judge’s credibility analysis, as expressed in the reasons for judgment, merit
intervention on appeal” (Dinardo [
(Emphasis added)
[32] The use of the standard of review of “palpable and overriding error of fact” in relation to credibility findings shows the level of deference owed to a trial judge’s findings of fact. Unless an appeal court can point to the obvious nature of an error, and its centrality to the verdict, there is no basis to intervene. It is this standard of review that must be applied to the trial judge’s assessment of credibility in this case.
[33] The trial judge described Mr. Clarke’s evidence as “contradictory at times and self-serving” (T212, 18-19). According to Mr. Clarke, the trial judge made errors in rejecting his evidence by finding contradictions in the evidence where there were none, amounting to a palpable and overriding error of fact.
[34] Mr. Clarke gave a detailed statement to the police in which he was very candid. This statement was admitted as an exhibit at trial and used to test his credibility during cross-examination. At several points in his testimony, Mr. Clarke recounted matters differently to the trial judge than he had to the examining officer. The trial judge mentioned two of the instances of contradiction in support of his conclusion that Mr. Clarke’s testimony was self-serving and contradictory.
[35] First, Mr. Clarke testified in chief “that once he had begun the sexual intercourse with [X], he discovered [A.H] looking him in the eyes. It rubbed, him the wrong way, so they stopped and laid there for a couple of minutes” (T212, 19-22). However, in his statement to the RCMP, Mr. Clarke said the following:
We fucked for a few minutes there and then went to sleep. Uh I fell asleep and then [A.H.] woke up a little while later and said fuck you guys were moving the bed and woke me up and it was this big joke and everything and I was like well whatever I’m going home so I went home and then the next day I woke up to her texts on the phone mouthing off I can’t believe you’d do that to me, you’re supposed to be here to see me and you ended up sleeping with my cousin.
(Exhibit P-4 at 7)
[36] Later in his statement to the RCMP, Mr. Clarke told the officer the following:
Well we had sex and then we laid there for probably about fifteen or twenty minutes and then I fell asleep and [A.H.] was awake and moving around then I woke up and uh we went out in the living room and had a cigarette and she’s like fuck you guys fucking kept me up with the moving the bed and shit so once [A.H.] found out about it she just kept on kept on pushing it she was mad cause I I was over there, supposed to be going to see her.
(at 13)
[37] The trial judge found that this is “contradicted very on -- early on in his cross-examination” (T213, 6-7) where Mr. Clarke “admits” that the period of time during which the intercourse took place was around 30 seconds.
[38] The second contradiction mentioned by the trial judge, to underpin his assessment of Mr. Clarke, stems from Mr. Clarke’s evidence regarding his level of intoxication. At trial, Mr. Clarke “testified he had been drinking beer with a girl named Brandy” (T213, 8) but there had been no mention of either beer or Brandy in his statement given to the RCMP (T131-T132). In cross-examination, Mr. Clarke “first states that he had never really been a drinker. And then, within a few minutes, he told the Prosecutor that before his incarceration, he had been staying in a work camp, trying to maintain sobriety” (T213, 10-14).
[39] The trial judge’s clear articulation in his reasons for disbelieving Mr. Clarke leaves this Court no room to intervene, but having reached this conclusion, it is important to note that Mr. Clarke’s conviction does not turn on Mr. Clarke being disbelieved on any crucial point - at least in relation to the application of s. 150.1(4) as it relates to the s. 271 charge. Indeed, there was very little disagreement between the three witnesses, including Mr. Clarke, as to what the circumstances were that were relevant to s. 150.1(4). And any differences were resolved in Mr. Clarke’s favour, including having a reasonable doubt about whether the complainant told him her age and whether the sexual act was consensual in fact.
[40] Where matters were in issue with respect to s. 150.1(4) - for example, as to the complainant’s appearance - the trial judge took, and accepted, Mr. Clarke’s evidence. In that regard, it is helpful to review the critical part of the trial judge’s reasons again:
On his own evidence, it is doubtful whether the accused took all reasonable steps to ascertain her age. This, combined with the 19 year age difference, the young visual appearance of the complainant, as she presented herself in court, even though she may have been wearing make-up and provocative clothing, and twerking on the night -- twerking, as the accused said, on the night in question, all of the circumstances would require more. In fact, a great deal more than not looking into it a whole bunch.
This sort of behaviour on her part, the twerking, if true, and the wearing of make-up, would cause a right thinking man to question even further, the age of the complainant. It was the second time he had met her after having contact with [A.H.], the caregiver and aunt, an obviously older female, and he had that contact through a dating site.
(Emphasis added, T214)
[41] Applying the standard of review from Cote to the trial judge’s assessment of Mr. Clarke’s credibility, we cannot find a “palpable and overriding” error.
[42] In relation to A.H.’s and the complainant’s evidence, the trial judge found that “much of” A.H.’s evidence was “simply unbelievable, or at best, suspect” (T211, 12-13). He described how the complainant’s evidence was “somewhat more believable” (ln 28), and that he still had “to consider that some of her evidence just simply was not that believable” (ln 29-30). Following each of these determinations, the trial judge provided examples of the inconsistencies underlying his determination (see T211-T212). According to Mr. Clarke, since the trial judge found both A.H. and the complainant not to be credible, he made “very few findings of fact” and, as a result, “there is no evidence upon which the Trial Judge could have found that Mr. Clarke either did or did not take all reasonable steps to ascertain the complainant’s age.” In short, Mr. Clarke takes issue with the fact that the trial judge’s reasons do not delineate the evidence he accepted or rejected from each witness, or whether one witness’s evidence was preferred over another.
[43] While Mr. Clarke’s first argument is that there was “no evidence” upon which the trial judge could have made a determination of what the reasonable steps argument required, there was clearly evidence - and much of it came from him. It was Mr. Clarke who described the complainant’s appearance, and what she was doing just before they found themselves in bed, and he indicated that he paid no attention to how old she was.
[44] By way of one example, we will repeat Mr. Clarke’s testimony as to how he described the complainant’s appearance:
Q Can you describe [X]’s appearance on that evening?
A When I first went over there, she apparently had a boyfriend in North Battleford sometime back and made friends with a friend of his. This boyfriend she had was no longer, but the friend of hers just popped up on Facebook and they were out for coffee. So she was dolled up in a pair of blue jeans earlier. She had blue jeans, a high pair of shoes, and I don’t know -- I don’t know if I’m old fashioned, but I call it all dolled up when a girl has got make-up, and she was pretty poor at doing it, so she was pretty colourful, and had her hair in these big curls and -- and -- when she started mentioning that she was -- volunteering that she was 18, and then corrected herself and said she was 17, I had no -- no -- nothing to say anything else. I didn’t believe that she was older or younger, I didn’t put any thought into it, at all, at that point.
…
Q Okay. And in that time, you’d agree that you had pretty limited conversation with her?
A Yeah.
Q Okay. And would you also agree that most of your attention was focused on [A.H.] during that time?
A Her and I engaged in probably 80 percent of the conversation.
(Emphasis added, T134, 19-30; and T139, 12-18)
[45] Thus, we conclude that the trial judge made no “palpable and overriding error” in relation to the evidence of A.H. or the complainant, either. Mr. Clarke’s conviction turned on the trial judge’s assessment as to whether, in all of the circumstances as he found them, Mr. Clarke had taken all reasonable steps to ascertain the age of the complainant. This conclusion takes us to the next set of issues regarding whether the trial judge made any reversible errors with respect to his assessment of the evidence.
2. Did the trial judge misapprehend material aspects of the evidence leading to an unreasonable verdict or a miscarriage of justice?
[46]
Mr. Clarke submits that the trial judge
misapprehended material aspects of the evidence thereby giving rise to an
unreasonable verdict or a miscarriage of justice. In R v R.P.,
[9] … The appellate
court may also find a verdict unreasonable if the trial judge has drawn an
inference or made a finding of fact essential to the verdict that (1) is
plainly contradicted by the evidence relied on by the trial judge in support of
that inference or finding, or (2) is shown to be incompatible with evidence
that has not otherwise been contradicted or rejected by the trial judge (R.
v. Sinclair,
[47] Mr. Clarke states the trial judge made the following errors in the assessment of evidence that justify intervention in this appeal:
(a) the trial judge found A.H. “was the complainant’s aunt” when, in fact, she was her older cousin. According to Mr. Clarke, “this aunt-niece relationship” was the basis upon which the trial judge inferred that A.H. was the complainant’s “de facto caregiver.” Mr. Clarke alleges that both A.H. (who the trial judge described as giving “simply unbelievable, or at best, incredible” evidence) and the complainant’s testimony should have led the trial judge to conclude they were “more like … two roommates” (T17). Mr. Clarke asserts that “it was never made clear to Mr. Clarke that [X] was a child under [A.H.]’s guardianship … and nothing from the conduct of the cousins made such a conclusion obvious”;
(b) the trial judge erroneously construed his reference to the complainant “being ‘the little cousin’ or ‘the tiny cousin’ as a reference to age, rather than size”;
(c) the trial judge found that the twerking and wearing of makeup were behaviours that would cause a reasonable person to question the age of the complainant (T214, 39-40). Mr. Clarke testified that “twerking” was popularized by Miley Cyrus, and the trial judge erred in failing to take judicial notice of the fact that Miley Cyrus was 22 years old in March of 2014. Mr. Clarke asserts that the trial judge’s reasoning on this point in particular is “confusing”;
(d) the trial judge ignored the context of the conversation where the complainant revealed her age to be 17, which involved a discussion about “the club scene” and drinking; and
(e) the trial judge writes that A.H. not being upset to discover “that a 34 year old male had just engaged in sex with the 15 year old child in her care, simply offends the sensibilities” (T211, 25-26). Mr. Clarke suggests that “not tak[ing] this to be a factor supporting his belief that the complainant was 17, or obviating the need for further inquiry” was an error.
[48] The Court clearly has the jurisdiction to review a conviction under s. 271 on the basis the trial judge misinterpreted the evidence as part of the reasoning process under s. 150.1(4), but it is not possible to divorce the review of the verdict from the s. 150.1(4) analysis. Unlike other criminal appeals where the question of guilt or innocence is determined on the basis of whether the accused committed the criminal act with the requisite intent, the verdict depends on whether the accused “took all reasonable steps to ascertain the age of the complainant” within the meaning of s. 150.1(4). According to the case law, the resolution of this question requires a finding as to what was reasonable in all of the circumstances.
[49]
Significantly, in R v Tannas,
[50] In determining whether the trial judge misapprehended the evidence so as to justify a new trial, the criteria set out in R.P. requires a consideration of whether the trial judge has drawn an inference or made a finding of fact essential to the verdict that (a) is plainly contradicted by the evidence relied on by the trial judge in support of that inference or finding; or (b) is shown to be incompatible with evidence that has not otherwise been contradicted or rejected by the trial judge. When Mr. Clarke’s arguments are viewed through these lenses, only one of them might be considered to fall into the first category, and that is the trial judge’s understanding of the relationship between A.H. and the complainant.
[51] The trial judge erroneously found that A.H. was the complainant’s aunt when in fact A.H. was her older cousin. The Crown has acknowledged this mistake in its factum. According to Mr. Clarke, “this aunt-niece relationship” was the basis upon which the trial judge inferred that A.H. was the complainant’s “de facto caregiver.”
[52] It is clear from the trial judge’s reasons that the relationship between A.H. and the complainant is significant to his “all reasonable steps” assessment. The trial judge mentions the fact of A.H. being the complainant’s “aunt” five times:
The first witness called by the Crown was [A.H.], the 22 year old aunt of the complainant. She was also the de facto caregiver and guardian of the 15 year old complainant at the time of these occurrences [T211].
…
Also, on March the 23rd of 2014, her and -- excuse me -- her and her aunt, [A.H.], are sending Facebook messages of a sexually provocative nature to the accused [T212].
…
He had met her through her aunt, whom he had made contact with through a dating site [T214].
…
It was the second time he had met her after having contact with [A.H.], the caregiver and aunt, an obviously older female, and he had that contact through a dating site [T214-T215].
…
Immediately after he had had intercourse with [X], the accused admits that [A.H.], the aunt of the complainant, told him that [X] was 15 years of age [T215].
[53] This is the type of error that could lead to a finding of misapprehension of evidence and an unreasonable verdict. The “all reasonable steps” inquiry under s. 150.1(4) requires the trier of fact to consider all of the circumstances. The complainant’s associates at the time of the incident are highly relevant to that inquiry. If a complainant is with an aunt, as opposed to a same-age cousin or friend, such a finding can significantly influence the analysis.
[54] In this case, A.H. was not the complainant’s aunt, she was her cousin. The trial judge concluded she was her aunt and her de facto caregiver and guardian. We would have been prepared to order a new trial on this finding but for the following factors.
[55] Mr. Clarke’s counsel at trial did not take issue with A.H. being the complainant’s guardian and appeared to build part of his defence around this very issue. In examination-in-chief, A.H. was asked how the complainant came to be living with her:
Q Your cousin? Okay. And I mean, how well do you know her? I know I have cousins I don’t know all that well, so --
A She lived with me at one point.
Q And when was that?
A From late February, early March, off and on til a few weeks ago.
Q Okay. Was this something that you had arranged with [X]’s parents?
A No.
Q No? Okay. So how did --
A Spur of the moment.
Q Okay. Whose idea was that?
A She had no home and I gave her a home.
Q That’s very generous of you. [A.H.], how old are you?
A Twenty-two.
Q Twenty-two, okay. Do you know how old [X] is?
A Fifteen.
(T5)
[56] And, then in cross-examination, Mr. Clarke’s trial counsel explored the matter further:
Q Now, at the time of the alleged occurrence, you were acting as her guardian? You’re --
A Yes.
Q -- you’re [X]’s guardian? Okay.
(T25)
[57] Mr. Clarke’s trial counsel used the “guardian” status to permit him to cross-examine A.H. about whether the complainant had told Mr. Clarke she was 17. As it turns out, A.H. was not present when such a conversation took place, but the complainant told her subsequently that she had told Mr. Clarke she was 17: A.H. testified, “Oh, no. It wasn’t like person-to-person. She told me that she told him” (T27, 11). When Crown counsel objected to this line of questioning, Mr. Clarke’s trial counsel said he should be permitted to pursue the line of questioning: “I think that it’s highly relevant, probative, made by a child to someone who was her guardian, and goes to what [A.H.] knew about the relationship between Mr. Clarke and [X] … .” (emphasis added, ln 22-25). The trial judge permitted trial counsel to pursue the line of inquiry. Defence counsel obtained nothing further from the questioning, but the trial judge relied on the evidence already elicited when finding he had a reasonable doubt about whether Mr. Clarke knew she was under 16.
[58] Later in his cross-examination, Mr. Clarke’s trial counsel pursued a line of questioning with A.H. tending to show Mr. Clarke and the complainant could not have engaged in non-consensual sex because A.H., as the complainant’s guardian, had little or no reaction to what had transpired in her bed while she was present and did not take the complainant to the hospital until five days later (T35-36). And then, following along this line of thought, the trial judge was not satisfied the Crown had proven beyond a reasonable doubt that it had not been a consent in fact encounter.
[59] In his brief, Mr. Clarke’s trial counsel also referred to A.H. as the complainant’s guardian: “you say at page 3(b), ‘[A.H.] lived with her cousin, [X], the complainant, and was her guardian in fact, at all relevant times’” (T177, 6-8). In fairness, the thrust of the submissions at this point was to disabuse the trial judge of any notion that Mr. Clarke should have been alerted to the complainant’s youthfulness because she had a guardian - because of how A.H. had behaved.
[60] Having identified and relied upon A.H.’s status as a guardian at trial, it is difficult for Mr. Clarke to resile from that position on appeal, particularly when the position taken at trial may have influenced the trial judge with respect to two critical matters resolved in Mr. Clarke’s favour: (a) whether there was consent in fact; and (b) whether Mr. Clarke knew the complainant was under the age of 16.
[61] In light of the position taken at trial, the Court cannot intervene on the basis the trial judge mistakenly stated the complainant’s cousin was her aunt and caregiver. Further, there was other evidence that would support the trial judge’s conclusion that A.H. stood in the role of guardian or caregiver. That evidence revealed that A.H. was 22 years old at the time. She was living on her own and she had the capacity to take in her 15-year-old cousin and did so. The evidence also demonstrated to the trial judge that A.H. looked considerably older than her cousin.
[62] With respect to all of Mr. Clarke’s remaining arguments, none of them refer to findings of fact that the trial judge was compelled by the evidence to make or that were plainly contradicted by the evidence. It was open in each instance for the trial judge to reach the conclusion that he did:
(a) he could extrapolate from the complainant’s size and Mr. Clarke’s acknowledgment of it that she was young and Mr. Clarke should have been put on guard;
(b) he could conclude that “twerking” was something that young girls do; and
(c) he could conclude on the whole of the evidence that it was irrelevant that the complainant said she would like to go to clubs - particularly when in the same conversation she said she was 18 and then changed it to 17.
[63] As to the trial judge’s assessment of A.H.’s reaction to the fact her cousin had just had sex with a 34-year-old male, it must be pointed out that the trial judge used this example to explain why A.H. was “simply unbelievable, or at best, suspect.” This finding of a lack of credibility actually worked in Mr. Clarke’s favour because A.H. had testified to non-consensual sex and that she had told Mr. Clarke the complainant was 15 before the sexual act took place. The trial judge did not accept this evidence - instead, he had a reasonable doubt about what had been said regarding the complainant’s age and to whom it had been said.
[64] For these reasons, we have concluded that the trial judge made no findings of fact and drew no inferences of fact that would justify intervention on the basis of a misapprehension of evidence.
3. Did the trial judge properly interpret and apply s. 150.1(4)?
[65] While repetitive, it is useful to quote s. 150.1(4) again:
Mistake of age
150.1(4) It is not a defence to a charge under …
section 271… that the accused believed that the complainant was 16 years of age
or more at the time the offence is alleged to have been committed unless the
accused took all reasonable steps to ascertain the age of the complainant.
[66]
This Court has considered and applied s. 150.1(4)
and a similar provision in the following decisions: R v Slater, 2005
SKCA 87 at para 23, 201 CCC (3d) 85 [Slater]; R v Mastel,
[23] In R v
Levigne,
[24] In ordinary terms, this means the evidence must bear out a defendant’s honest belief that the complainant was over 16 years of age (i.e., legally able to consent). If it does, then it cannot be said the defendant intended to have sex with a minor.
[25] In terms of
trial, the court’s inquiry into the nature of a defendant’s belief plays out as
a procedural onus on the Crown to prove beyond a reasonable doubt that the
defendant has failed to take all reasonable steps to ascertain the complainant’s
age (see: R v Mastel,
[26] In its assessment of this, a court will look to the circumstances and measure the steps that were taken by the defendant to ascertain the complainant’s age against the steps that a reasonable person would have taken to do so in the same circumstances: R v L.T.P. (1997), 113 CCC (3d) 42 at para 20; R v Saliba at para. 28; and R v Dragos at paras. 29-33. And, if the court finds a reasonable step was not taken by the defendant, the defence of mistake of fact will not be available to the defendant, even though it might have an “air of reality” to it. What this means - in practical terms - is that anyone intending to engage in sexual activities with someone who might be under 16 years of age must earnestly consider and then take all steps that might be reasonable in the circumstances to ascertain that person’s age.
(Emphasis added)
[67] With this by way of legal background, it is necessary to assess Mr. Clarke’s arguments to the effect that the trial judge misapplied s. 150.1(4). Mr. Clarke argues that the trial judge made these errors of law or principle:
(a) he reversed the onus, calling upon Mr. Clarke to prove that he had taken all reasonable steps rather than leaving the burden on the Crown to prove that he had not;
(b) he assessed the complainant’s appearance as of the date of trial rather than at the date of the incident;
(c) he conducted the “all reasonable steps” assessment as of when the complainant told Mr. Clarke she was 17 rather than as of when the parties engaged in sexual intercourse; and
(d) the trial judge did not conduct an analysis of the circumstances to determine whether they obviated the need for further inquiry and, if he had done so, this case would be indistinguishable from Tannas.
a. The onus question
[68]
It would have been helpful if the trial judge
had referred to the governing principles underlying the burden and standard of
proof, but having said that it is also quite clear that a failure to do so does
not determine whether the trial judge has made an error of this fundamental
nature. An allegation of this kind requires a “functional” analysis. The issue
is whether the trial judge’s reasons disclose that he placed the burden on the
accused to prove that he took all reasonable steps. As the Supreme Court of
Canada has recently stated, trial judges sitting alone must be “presumed to
know a principle as elementary as the presumption of innocence” (R v C.L.Y.,
[69] Clearly, the trial judge demonstrated he understood the governing principles. He had a reasonable doubt as to whether the complainant had told Mr. Clarke she was 17. The complainant said she had not, and Mr. Clarke said she had. A.H.’s testimony on the point was inconsistent. The trial judge said the conflicting testimony “does raise a reasonable doubt in my mind that the accused could have had an honest, but mistaken belief that [X] was 16 years of age or over” (T214, 7-9).
[70] The trial judge also had a reasonable doubt about the consent in fact nature of the sexual act. He listed the various inconsistencies in the evidence and then stated, “Regardless of this, on all of the evidence, we have to have a reasonable doubt as to whether the sexual contact was forced” (T213, 12-14).
[71] He asked himself the question raised by s. 150.1(4) on two occasions: “But as to -- but as to whether he took all reasonable steps to ascertain the age of the complainant, I am satisfied in law he did not” (T214, 9-10) and “I accept the law as outlined in Ms. Findlay’s Brief. I must ask what steps would have been reasonable for the accused to have taken in all of the circumstances” (ln 12-13). There is nothing in the trial judge’s reasons that speaks to Mr. Clarke “persuading” him that he took all reasonable steps. The trial judge articulated the following: “On his own evidence, it is doubtful whether the accused took all reasonable steps to ascertain her age” (emphasis added, ln 31-32). He then proceeded to review the evidence. This indicates that the trial judge understood that he must look at the evidence as a whole.
[72] When the charge turns on “all reasonable steps,” and the accused has taken no steps to test the foundation of that belief, the fact the trial judge observes that no steps were taken does not mean that the trial judge has reversed the onus (Slater at para 25). While the accused does not bear the burden of persuasion, he or she does have an evidentiary burden. In order for an accused to be acquitted when relying on a defence under s. 150.1(4), there must be some evidence capable of sustaining a reasonable doubt.
b. The trial judge’s assessment of the complainant’s appearance as of the date of trial
[73] Mr. Clarke argues that the trial judge made an error of law by considering how the complainant looked at the date of trial rather than at the date of the offence.
[74] As part of his inquiry as to whether the Crown had proven Mr. Clarke had not taken all reasonable steps, the trial judge referred to “the young visual appearance of the complainant, as she presented herself in court, even though she may have been wearing make-up and provocative clothing, and twerking on the night … in question” (T214, 32-35).
[75] Quite clearly, if a trial judge restricted the assessment of appearance to how the complainant appeared at trial, this would be an error of law. Subsection 150.1(4) mandates an assessment of all reasonable steps at the time of the offence. A trial judge determining whether an accused has taken all reasonable steps to ascertain a sexual partner’s age must do so according to the circumstances as of the time of the offence and not at the time of trial. Having said that, it is obvious some people look younger than others of the same age. The trial judge’s impression of this may be materially relevant.
[76] In this case, trial counsel invited the trial judge to consider the complainant’s appearance at trial - saying that the difference between a girl who is a month or two over her 15th birthday and one who is 16 will be subtle:
[MR. FEIST, defense counsel:] As far as the comments about “the little cousin”, or “the tiny cousin”, he didn’t say underage or minor, or use any other choice of words. The Court saw, and I mean, I don’t mean to be insulting towards [A.H.], but she’s a bigger -- sorry, [A.H.], she’s a bigger girl, and [X], comparatively, is a smaller girl. So there’s a big and little cousin in the physical sense, and I don’t think we should take that interpretation of those words --
THE COURT: No, I’m not taking it that way, but I’m wondering if it goes to the reasonable steps that should have been taken to ascertain or determine the age of the complainant?
MR. FEIST: Sure. And, certainly -- certainly, and I -- I think that the size of the smaller cousin, when we look at her comparatively, yes, she was little compared to the larger of the two girls, significantly -- significantly smaller. But when we look at her appearance, and I think I raised this in my Brief, when we look at her appearance, certainly, we’re not looking at a girl who looks like she’s 12, or 11, or 10, or even 13 or 14. I would peg her -- you know, I mean, I looked at her, and the Court looked at her, and we might be different judgments there. You know --
…
MR. FEIST: -- girls who look like that who are 22. I mean, realistically. So what I’m saying is, when we situate -- that -- that certainly doesn’t, and I’ve said this, that doesn’t take the onus off of Mr. Clarke. But there is certainly a reduced onus, as opposed to someone -- if she looked like she was 11, well, yeah, there is a problem there, if he proceeds without making those further inquiries. She’s 10 months away from the age of consent. She looks like she very well could be over the age of consent. In the circumstances that Mr. Clarke is provided, with the impression that Mr. Clarke is left with, we have to think about whether, beyond a reasonable doubt, the Crown has proven that he did not take all reasonable steps. And the onus shifts back to the Crown to say he did not take all reasonable steps. The benefit of the doubt remains with the defendant.
(Emphasis added, T178-T179, 26-41, 1-3, and 16-26)
Notably, the incident took place on March 19, 2014, and the trial took place on October 9, 2014, such that the complainant was still under the age of 16 when she testified.
[77] Further, the police took a picture of the complainant five days after the incident. While there was no examination or cross-examination as to whether she looked different at trial than she did in her picture, it seemed to be accepted that how she appeared in the picture is how she appeared at trial. The real issue was how she would have looked wearing skimpy clothing, “wearing lots of make-up … done poorly” (T146, 1-2), and with poorly styled hair.
[78] Mr. Clarke was adamant that she had looked different on the night in question than she did at trial because of the skimpy clothing, her makeup and her hair, but it was also he who referred to her makeup and hair as having been poorly done. He described her appearance:
Q Can you describe [X]’s appearance on that evening?
A When I first went over there, she apparently had a boyfriend in North Battleford sometime back and made friends with a friend of his. This boyfriend she had was no longer, but the friend of hers just popped up on Facebook and they were out for coffee. So she was dolled up in a pair of blue jeans earlier. She had blue jeans, a high pair of shoes, and I don’t know -- I don’t know if I’m old fashioned, but I call it all dolled up when a girl has got make-up, and she was pretty poor at doing it, so she was pretty colourful, and had her hair in these big curls and -- and -- when she started mentioning that she was -- volunteering that she was 18, and then corrected herself and said she was 17, I had no -- no -- nothing to say anything else. I didn’t believe that she was older or younger, I didn’t put any thought into it, at all, at that point.
(Emphasis added, T134)
[79] As the Court made clear in Slater, appearance is only one aspect of the analysis (para 21). The trial judge accounted for the differences between what she was wearing and how she had portrayed herself, saying they would have made no difference to his assessment of how the complainant would have appeared on the night in question - and most importantly, no difference to his determination of the obligation on the accused to take all reasonable steps to ascertain the complainant’s age.
c. All circumstances must be assessed as of the time of the incident
[80] Mr. Clarke submits that the “circumstances” to be considered under the reasonable inquiry analysis must be “sufficiently narrowed to the time where sexual activity was contemplated.” According to this argument, it was irrelevant that he made no inquiries earlier when she said she was 17. He says he was “entitled to rely on the information he [had] already been provided, all of which [went] to suggest the complainant [was] of age” just before he decided to engage in sexual relations.
[81] Mr. Clarke submits the trial judge seemingly accepted his testimony that he had no intention of engaging in sexual activity with the complainant at the time she stated her age to him during their earlier conversation. In Mr. Clarke’s view, this lack of sexual intention must circumscribe the circumstances under consideration in the reasonable inquiry analysis. In that regard, he argues that this case is more like Tannas, where the accused did not make contact with the complainant “with the express purpose of engaging in sexual activity or dating relationships” (emphasis in original) than Slater where the accused sought out the girls for sex. In a case such as Slater - from the point of contact - the accused had to determine whether the girls were legally able to engage in sexual relations because that was the accused’s intention.
[82] A trial judge conducting a reasonable steps analysis under s. 150.1(4) is required to assess all of the circumstances that have a bearing on the issue, but we do not take the trial judge as having done anything less than this. Similarly, in Tannas, the Court looked to the “circumstances” presented from Mr. Tannas’s arrival at the complainant C.W.’s party, even though they “had very little to do with each other at the first party” (at para 33). Neither the Court in Tannas nor the trial decision here suggests that the circumstances under consideration are pinpointed to the moment where a “sexual intention” or motivation on the part of the accused can be said to have been kindled.
[83] Having said that, it would be clearly contrary to Parliament’s intention to interpret s. 150.1(4) as permitting a person to make no inquiry about a young person’s age and then to rely on that failure as justification for not doing so where sexual intercourse has arisen spontaneously. This is clearly not the law. The whole point of s. 150.1(4) is to place responsibility on the older person to take “all reasonable steps” to ascertain the age of the younger party. Using the vehicle of s. 150.1(4), Parliament has placed an obligation on men and women dealing with the sexually vulnerable to take all reasonable steps to ascertain a young person’s age before engaging in sexual relations.
d. Whether the trial judge’s s. 150.1(4) analysis is correct
[84] Mr. Clarke argues that this Court should take the same approach that it took in Tannas and apply an objective analysis and set aside the verdict, particularly in light of the trial judge’s error about the status of A.H.
[85] On the facts of this case, the trial judge had a reasonable doubt about whether Mr. Clarke had been told the complainant’s age. While the evidence was not without its problems, there was some evidence that the complainant had told Mr. Clarke she was 18. Later she corrected herself to say she was 17.
[86] Mr. Clarke submits that his case is similar to that of Mr. Tannas and, because he had been told the complainant’s age, his defence was even stronger and should, similarly, have led to an acquittal. Specifically, Mr. Clarke makes these comparisons: (a) as in Tannas, he and the complainant had just met; (b) in Tannas, this Court found the trial judge placed “undue weight on the age disparity between Mr. Tannas and C.W. thereby overlooking or overriding other circumstances relevant to an objective assessment of C.W.’s apparent age in the circumstances” (at para 30) - in this case, the trial judge placed a great deal of weight on the 19-year age difference between the complainant and Mr. Clarke; (c) in Tannas, “C.W.’s apparent age, her physical appearance and her behaviour at the two parties, the apparent ages and appearances of the other partygoers, the other activities in which C.W and the other partygoers engaged” (at para 34) were all relevant to the reasonable steps inquiry - in Mr. Clarke’s case, the complainant’s supposed “guardian” made no efforts to curb sexual behaviour on the part of the complainant; (d) in Tannas, two other witnesses both testified that they estimated C.W. to be at least 16 year old, including one witness who was 18 and “with whom Mr. Tannas could legitimately have had romantic interest or sexual involvement” (at para 32) - in Mr. Clarke’s case, the complainant told him she was 17 and her guardian, who did have a romantic interest in Mr. Clarke, did not disabuse him of that notion.
[87] It is on the basis of Mr. Clarke’s testimony that this appeal is distinguishable from Tannas. As the trial judge said, “on his own evidence” something more was required. As the Court indicated in Slater, being told the complainant’s age does not insulate an accused from being charged with having sexual relations with someone who cannot consent. The issue is still whether the accused took “all reasonable steps” to ascertain the age of the complainant (s. 150.1(4)). The fact the complainant tells the accused his or her age is an important circumstance, but it is only one of the circumstances that must be considered. In Slater, for example, the evidence was that the accused asked the complainant’s age and received a pro forma answer in circumstances that should have alerted the accused of the need to make further inquiries.
[88] Here, too, the accused made no inquiries after being told the complainant’s age. Mr. Clarke “simply accepted her assertion that she was 17 years of age” (T215, 8-9). This is clearly borne out by the evidence:
Q Okay. So there was no real time for an inquiry into her age?
A Well, I -- I believe that -- that the discussion we had at the table earlier that night, where she started volunteering that she was 18, and went back and corrected herself and said that she was 17, about to be 18 --
Q Mmhmm.
A -- I -- I would say that that is a reasonable amount of inquiry, you know?
Q Okay.
A I would -- I would say. But --
Q So from that statement, you decided that you were good?
A Well, I didn’t -- like I said, there was no decision making process behind this.
…
Q MR. FEIST: You stated as far as [X]’s age, and I think you stated something to the effect of after the conversation about 17 and 18, whatever age she was presenting to you, you didn’t look into it a whole bunch. Why didn’t you look into it any further?
A I didn’t feel there was a need to. Mind you, I was making decisions based on being at about a level five of buzzed. I didn’t feel there was any need to after that point. Like I said, we had just discussed the fact that she was whatever age, at that point, and then she started dancing all provocatively and stuff, and there is just -- there wasn’t probably -- I don’t know, to offer some humor to it, there wasn’t any good decision making happening after that point, you know?
(Emphasis added, T161-162, 31-40 and 1-2; T166, 16-25)
An important aspect of the trial judge’s reasons was that, rather than these circumstances obviating the need for inquiry, the circumstances should have caused a 34-year-old to make inquiries. For Mr. Clarke, there is very little answer to this. He himself testified that he should have been put on guard: “now to go back and what I should have -- you know, in hindsight, there should have been a lot of changes I missed” (emphasis added, T148, 15-16). See also T182, 33.
[89] Further, he did not know that the age of consent is now 16 (see T181, 4-5), As to his knowledge of the age of consent, Crown counsel at trial elicited this admission during Mr. Clarke’s cross-examination:
Q So am I correctly interpreting it, that you did not, in fact, know at this time, what the legal age was for somebody to consent to sex?
A I’ve never -- like I -- like I said, I -- I don’t -- I don’t enjoy -- I don’t enjoy teenage girl’s company, or even girls 20 to 25, and I don’t know what the consensual age is. I don’t know any of it at that point, so --
Q Okay. But you thought it was possible that 15 was -- that you were okay if she was 15?
A I had no idea what I -- what -- what I accurately thought. It wasn’t until he corrected me, that I realized that -- like, he mentioned 16 is the legal age, and that -- and that I had sex with a 15 year old girl and that was true.
Q Mmhmm. But you’ll agree with me that you said that even if she was 15, that’s still not under age?
A Yeah, I did say that. I didn’t know what I was -- I didn’t know what I was comparing it to, or -- or what, at that point. But, yeah, I did say that.
(Emphasis added, T152, 9-24)
[90] His lack of knowledge left his decision-making at the most basic level - that of sexual gratification:
Q Okay. But it’s not something that you really thought about? It was just - the thought never occurred to you?
A I didn’t feel like there was -- this whole concept of inquiries -- inquiries that just -- you know, at that point, I had smoked a bunch of pot and she was rubbing her butt up against me. I had an erection --
Q Yeah.
A -- and the only thing going through my head at that point was sex, to be honest with you. So --
(ln 4-12)
The complainant’s statement that she was 17 years old was irrelevant to Mr. Clarke; he did not think about it.
[91] The circumstances the trial judge found to be pertinent to the inquiry under s. 150.1(4) are these:
(a) the cousin (A.H.) was the de facto caregiver and guardian of the 15-year-old complainant at the time of the events;
(b) Mr. Clarke said the complainant was wearing poorly applied makeup and dancing around in a “twerking” manner and wearing provocative clothing;
(c) the complainant’s “young visual appearance … as she presented herself in court, even though she may have been wearing make-up and provocative clothing, and twerking on the night … in question”;
(d) the 19-year age difference between the complainant and Mr. Clarke; and
(e) the short period of time Mr. Clarke had known the complainant in circumstances where it would have been possible for him to make inquiries about her age.
[92] Knowing that the trial judge made an error with respect to A.H. being the aunt and caregiver does not give a basis to intervene when we factor in Mr. Clarke’s evidence that he should have been alerted by the circumstances that were presented to him. Mr. Clarke testified that the sole basis of how he came to believe the complainant was 17 was because of what she told him. And, he did not say it was the surrounding circumstances. Thus, in relation to the s. 271 charge, there is no error that would permit intervention.
[93] The trial judge listed examples of inquiries that a reasonable person should have made in the circumstances, including “Whether she worked or went to school, and if so, what grade she was in” (T215, 5-6). In his factum, Mr. Clarke suggests that this would not be a reasonable inquiry because “it was clear in [X]’s evidence that she was not going to school.” But, at the time of the incident, Mr. Clarke did not know whether she was going to school or not: “She was either … gone to school, or wherever she was …” (T137, 5-7).
[94] Mr. Clarke further notes that “a person attending school the next morning would not be up after midnight, smoking marijuana.” The trial judge, however, did not accept that the complainant was smoking marihuana.
[95] The trial judge clearly turned his mind to a consideration of all the relevant circumstances, and, having regard for Mr. Clarke’s testimony, his conclusion is correct.
4. Should the fresh evidence be admitted?
[96] In approaching the resolution of this appeal, it is important to leave the question of whether to admit the fresh evidence to the end of the assessment of the verdict because of the trial judge’s seeming errors with respect to the “aunt-cousin” issue and what he said regarding the complainant’s appearance at trial.
[97]
As to the applicable law, the Court in R v
Hay,
[63] … This requires consideration of the following principles:
(1) The evidence should generally not be admitted if, by due
diligence, it could have been adduced at trial provided that this general
principle will not be applied as strictly in a criminal case as in civil cases:
see McMartin v. The Queen,
(2) The evidence must be relevant in the sense that it bears upon a decisive or potentially decisive issue in the trial.
(3) The evidence must be credible in the sense that it is reasonably capable of belief, and
(4) It must be such that if believed it could reasonably, when taken with the other evidence adduced at trial, be expected to have affected the result.
[98] Crown counsel does not take issue with the credibility of the evidence or with its relevance. This would seem to be appropriate given its source from an officer of the Court and the nature of the evidence. She does argue that Mr. Clarke has not met the obligation of “due diligence” and, in any event, she submits the evidence could not be expected to have affected the result.
[99] We will address the question of due diligence first. The Facebook account, as it turns out, is the account that Mr. Clarke used to send texts to the complainant’s phone. After the exchange of messages between Mr. Clarke and the complainant, she blocked him from that account. When Mr. Feist went looking for an account at the time of trial, the account he found was one showing her actual age. The existence of the other account was not known to the Crown or the defence - it would have been known to Mr. Clarke - if he had turned his mind to it, but he did not do so.
[100] On this basis, it is arguable whether Mr. Clarke has shown due diligence, but we would prefer to decide this particular issue in his favour, largely due to the words of Rothstein J. in Hay:
[67] In general, mere lack of knowledge on the part of trial counsel without any indication that he inquired into the possibility of obtaining and presenting the evidence is a factor against admitting the evidence for the first time on appeal: McMartin, at pp. 490-91. However, in view of the fact that this is a criminal case, involving charges of the most serious nature, I would not allow the evidence to be excluded solely on the basis of a lack of diligence.
[101] Here, of course, we have an affidavit from the trial counsel who attests that he inquired into the possibility of obtaining and presenting the evidence but could not find it. Applying Hay, the requirement of due diligence is met.
[102] The real issue is whether the evidence could be reasonably expected, when taken with the other evidence adduced at trial, to have affected the result. We say this because of Mr. Clarke’s testimony at trial. He never indicated, either in his statement or in his testimony at trial, that he believed she was over the age of 16 because her second Facebook account said she was 18, or that he had even seen a Facebook account profile page. Further, and most importantly, whether she said she was 17 while sitting at the table eating pizza or said she was 18 in a Facebook account, it would still be necessary to test the foundation of his belief, which takes us back to the inquiry under s. 150.1(4). Under that inquiry, a judge would be entitled to consider all of the same evidence considered by the trial judge and reviewed in these reasons including, in particular, Mr. Clarke’s testimony. Thus, we have concluded the fresh evidence should not be admitted because, when taken with the other evidence adduced at trial, it could not be reasonably expected to have affected the result.
[103] The fresh evidence should not be admitted in relation to the s. 271 conviction. The conviction must be sustained.
B. Conviction appeal in relation to the s. 152 charge
[104] The issues with respect to this charge are as follows:
(a) Did the trial judge err by not accepting Mr. Clarke’s evidence that the text messages were not intended for the complainant or only for her?
(b) Should the fresh evidence be admitted?
1. Did the trial judge err by not accepting Mr. Clarke’s evidence that the text messages were not intended for the complainant or only for her?
[105] In addition to being charged under s. 271, Mr. Clarke was
charged with sexual interference under s.
Invitation
to sexual touching
152. Every person who, for a sexual purpose,
invites, counsels or incites a person under the age of 16 years to touch,
directly or indirectly, with a part of the body or with an object, the body of
any person, including the body of the person who so invites, counsels o incites
and the body of the person under the age of 16 years,
(a) is guilty of an indictable offence and is liable to imprisonment for a term of not more than 10 years and to a minimum punishment of imprisonment for a term of one year; or
(b) is guilty of an offence punishable on summary conviction and is liable to imprisonment for a term of not more than 18 months and to a minimum punishment of imprisonment for a term of 90 days.
The Crown proceeded by way of summary conviction.
[106] Mr. Clarke submits that the messages were not sent with a bona fide intention to invite further sexual contact but in order to “ascertain the depth of deception he was under.” Mr. Clarke further submits that he was “perfectly aware” that invitations were being read and responded to by both the complainant and her cousin. At trial, Mr. Clarke testified that he did not really want to have sex with the complainant again.
[107] The trial judge obviously did not accept these submissions and we can
see no error in his not accepting them. As we have stated earlier, the trial
judge did not find Mr. Clarke to be a credible witness. Further, the
mental element of the s. 152 conviction does not turn on Mr. Clarke’s
subjective intention. On this point, we would adopt the words of Watson J.A. in
R v Legare,
[41] For s. 152, the Crown must show that the accused knowingly communicated for a sexual purpose with a child under the age of fourteen [this is the age of sixteen under the current legislation], and that the accused either intended that the child would receive that communication as being an invitation, incitement or counselling to do the physical conduct s. 152 would avoid, or that the accused knew that there was a substantial and unjustified risk that the child would receive that communication as being an invitation, incitement or counselling to do that physical conduct. The actus reus and mens rea must co-exist, so in that sense the mens rea must be present when the communication occurs.[1]
[108] There is no question that Mr. Clarke committed the actus reus of the offence. The only issue for the trial judge was whether or not the Crown had proven beyond a reasonable doubt that he had sent the messages with the requisite intent - that is to say, either with the intention that the complainant would receive that communication as being an invitation, incitement or counselling to do the physical conduct s. 152 would avoid, or that he knew that there was a substantial and unjustified risk that she would receive that communication as being an invitation.
[109] In light of the evidence pertaining to the possible use of the complainant’s phone by A.H. in the days following the sexual assault, the trial judge could have found that the messages were either not sent to the complainant or that they were sent for the purpose of provoking A.H. Saying that a finding is available is not the same as saying a contrary finding is unreasonable. It was reasonable for the trial judge to conclude that the first set of messages on the day following the day of the assault were intended to be an invitation to the complainant and their purpose was sexual. The invitation to sexual acts followed the complainant’s statement of “your like 35 im 15.”
[110] Thus, we conclude the trial judge did not err with respect to the s. 152 charge.
2. Should the fresh evidence be admitted with regard to the s. 152 conviction?
[111] Mr. Clarke’s defence to the sexual invitation offence had nothing to do with the complainant’s age listed on Facebook. Mr. Clarke’s counsel urged the trial judge to find Mr. Clarke’s messages were not meant to be taken seriously and, therefore, that he had no intention to invite a minor to have sex. Evidence that the complainant may have advertised she was older than 16 on Facebook had nothing to do with Mr. Clarke’s defence in relation to the s. 152 charge.
[112] Further, at that point, Mr. Clarke had been told in no uncertain terms by A.H. that the complainant was 15. Any other impressions left by what the complainant had said to him about her age, either orally or on her Facebook account, would be unlikely to overcome Mr. Clarke’s clear understanding that the complainant was 15.
[113] The fresh evidence should not be admitted in relation to the s. 152 charge either. His conviction must be sustained.
C. Sentence Appeal
[114] Mr. Clarke submits that the 35-month penitentiary term imposed by the sentencing judge does not meet the objectives and principles of sentencing, fails to take into account the recommendations made by the pre-sentence report writer, does not appropriately provide credit for pre-sentence custody, and is unjust and unfit in all of the circumstances. In particular, Mr. Clarke argues that the sentencing judge did not properly “consider proportionality, as it applied to similar offenders in similar circumstances … Gladue factors, and … the principle of totality.”
[115]
Mr. Clarke argues that the sentencing judge
improperly relied on R v Revet,
[116]
Mr. Clarke contends that the sentencing judge
outlined his Gladue factors and connected them to his criminal history
and drug use but later relied on these circumstances as aggravating factors, ultimately
resulting in a “greatly disproportionate” sentence. Mr. Clarke was not
“raised with traditional aboriginal beliefs” and began to discover them while
incarcerated. Growing up in northern Saskatchewan, he spoke about the negative
influences on his life, including those coming from his father, who contributed
to his “dependency and addiction.” Since Mr. Clarke’s appeal was argued,
this Court has released R v Chanalquay,
[117] Further, Mr. Clarke was in custody from March 24, 2014, until he was sentenced on December 22, 2014. From March 24, 2014, to July 30, 2014, he was serving a sentence for a prior conviction and, for which at some point his parole had been revoked. Mr. Clarke indicates he was placed in 23.5 hour lock-up for approximately eight months because of the nature of the charges, and when he was released into the general population he alleged he was beaten three times with a lock embedded in a sock. As a result, Mr. Clarke suggests at the least he should receive 1.5 credit for the eight months and 12 days remand he served (12.5 months) rather than the seven months that the sentencing judge granted him.
[118] There is some force to some aspects of Mr. Clarke’s arguments that
would justify intervention pursuant to R v Lacasse,
[119] Therefore, having regard for all of the circumstances, we are of the view the appropriate disposition is to vary the sentence of 35 months by imposing one of 27 months. This will permit the Parole Board of Canada to release Mr. Clarke - should he be eligible - in short order, but allow him to remain subject to its continued parole supervision, which will presumably include elements of rehabilitation and addictions treatments.
V. Conclusion
[120] The application to adduce fresh evidence is dismissed. The conviction appeals are dismissed. The custodial portion of the sentence is varied and a global sentence of 27 months is imposed.
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“Jackson J.A.” |
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Jackson J.A. |
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“Caldwell J.A.” |
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Caldwell J.A. |
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“Jackson J.A.” |
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Whitmore J.A. |
AVIS :
Le lecteur doit s'assurer que les décisions consultées sont finales et sans
appel; la consultation
du plumitif s'avère une précaution utile.