IN THE PROVINCIAL COURT OF BRITISH COLUMBIA

[1]         C.J.J. is before the court today with respect to Information 35589-1-K charging him with sexually assaulting J.P. between December 1, 2017 and February 28, 2018, at or near [omitted for publication], B.C. At the time of the offence, J.P. was 14 and 15 years old; C.J.J. was 20. They had a brief intimate relationship until J.P.’s mother learned of it and complained to the police. Although J.P. was a willing participant, she was five years and two months younger than C.J.J. and thus statutorily unable to consent to the sexual activity.

[2]         The issues before the court are as follows:

[3]         This matter came to me for trial in Fort St. John Provincial Court on October 3 and 4, 2019. The Crown entered into evidence with the consent of the defence the following exhibits:

[4]         The Crown called two witnesses, J.P. and her mother, C.R. The Defence called C.J.J. as its only witness. At the conclusion of the trial, I reserved my decision. My decision was scheduled for November 20, 2019. C.J.J. did not appear in court on that day, and it was rescheduled for January 8, 2020. These are my Reasons for Judgment.

[5]         C.J.J. was born on [omitted for publication]; he is now 22 years old. C.J.J. lives at [omitted for publication], a small community [omitted for publication] kilometres west of Fort St. John, B.C. He now works as a swamper. In 2017, he worked for the Coca-Cola Company, a job he had held for some time.

[6]         C.J.J. has his own residence at [omitted for publication]. He also has a driver’s licence and owns a black Ford Focus sedan.

[7]         One of C.J.J.’s duties as an employee of Coca-Cola was to stock shelves in various grocery stores around Fort St. John. In the course of doing so at the [omitted for publication] grocery store in Fort St. John, C.J.J. came to know H., a 16 or 17-year-old girl who worked in that store. C.J.J. became friends with H. and her boyfriend T. H. was in Grade 11 and T. was 18, 19 or 20.

[8]         J.P. moved to Fort St. John in 2016 with her mother, C.R. At the end of that year, in middle school, J.P. met H. and they became very close friends.

[9]         In 2017, J.P. was in Grade 9. She took courses two days a week from the on-line learning centre. She no longer attended a “bricks and mortar school.”

[10]      J.P. obtained a Facebook account in the summer of 2017. She did not include much personal information in her profile. She did include a photograph of herself and information as to where she was born and went to school.

[11]      In early December 2017, C.J.J. received a notification on Facebook that he and J.P. shared mutual friends. He had never met J.P. before; however, he contacted her via Facebook messenger. J.P. believes it was H. who was their mutual Facebook friend.

[12]      When C.J.J. first contacted J.P., he had recently turned 20 years old (on [omitted for publication],) and J.P. was three weeks shy of her 15^th birthday ([omitted for publication], 2017).

[13]      C.J.J. and J.P. also became Facebook friends. They soon arranged to meet each other in person. C.J.J. picked up J.P., H. and T. He drove them to his house where they all watched television and socialized. After a couple of hours, C.J.J. drove all his guests home. At this point C.J.J. and J.P. were merely “platonic acquaintances.”

[14]      After a week or two of meeting, C.J.J. and J.P.’s relationship became intimate and sexual. They texted each other on Facebook messenger expressing their mutual affection and desire to be together.

[15]      C.J.J. and J.P. consumed marijuana together. As she had expressed a preference for a bong over smoking marijuana, C.J.J. bought J.P. a bong for her birthday.

[16]      Although C.J.J. and J.P. spent time together, she never stayed overnight at his residence. In fact, J.P. had a curfew of which C.J.J. was aware. The text messages photographed on Exhibit 2, p. 71, suggest J.P.’s curfew was somewhere around 9:30 p.m.

[17]      C.J.J. often picked up J.P.’s in his vehicle at her home. He also gave her and C.R., a ride to J.P.’s medical appointment. I note on page 47 of Exhibit 2, the text messages exchanged on December 29, 2017, relate to C.J.J. picking up J.P. to give her a ride to her doctor’s appointment.

[18]      Initially J.P. denied to her mother that she and C.J.J. were in a relationship, insisting they were just friends. Eventually she admitted C.J.J. was 20 years old and they were in an intimate relationship. C.R. arranged to meet C.J.J. at Tim Horton’s. At their meeting, C.R. told C.J.J. that given the age gap his relationship with J.P. was inappropriate.

[19]      C.J.J. and J.P.’s relationship continued until January 19, 2018, when C.R. demanded it terminate because of their age disparity.

[20]      When she learned C.J.J. continued to contact J.P. after their meeting in Tim Horton’s, C.R. grounded J.P. and confiscated her cell phone. C.R. demanded J.P. disclose her passwords and viewed the text messages C.J.J. and J.P. had exchanged since the beginning of December 2017.

[21]      C.R. says in one of the text messages exchanged between C.J.J. and J.P. in the first week of December 2017, J.P. disclosed to C.J.J. that she was 14 years old. C.J.J. texted J.P. that he was 20 and asked her if his age bothered her. J.P. replied, “No.” These messages do not appear in Exhibit 2, as the first message the police photographed is dated December 9, 2017.

[22]      C.R. reported to the Royal Canadian Mounted Police (“RCMP”) that C.J.J. was having a sexual relationship with her daughter, who at that time was only 15, and he was 20.

[23]      C.R. went to the Fort St. John RCMP station and gave Officer Nicole Campbell J.P.’s cell phone. The officer declined to read or record the messages on the phone without a warrant.

[24]      C.R. says, as it was her cell phone, she read to the officer the messages exchanged between C.J.J. and J.P.

[25]      C.R. demanded J.P. go to the RCMP station and provide a statement with respect to her relationship with C.J.J. J.P. was reluctant to do so, but complied with her mother’s directive.

[26]      I understand the RCMP eventually got a warrant and on March 16, 2018, seized from J.P. two Samsung cell phones, one black and one white.

[27]      On June 11, 2018, Constable Campbell photographed the black Samsung cell phone. These photographs were admitted into evidence as Exhibit 2 at trial.

[28]      J.P. and C.J.J. continued to communicate with each other until sometimes in March 2018, however, their physical relationship effectively ended on January 19, 2018.

[29]      C.J.J. denied knowing J.P. actual age when they first began their relationship. He claims he learned J.P.’s actual age when he met with C.R. at Tim Horton’s in January 2018.

[30]      C.J.J. is charged with sexual assault of:

[31]      Pursuant to s. 150.1 of the Criminal Code, consent is not a defence to a charge of sexual assault against a complainant under the age of 16 years, except in certain limited circumstances. Section 150.1 of the Criminal Code provides, in relevant part, as follows:

[32]      The Crown must prove all the elements of the offence of sexual assault beyond a reasonable doubt before the court can make a finding of guilt. The static elements for any criminal offence are: (a) the identity in the sense that the person standing in the courtroom is the person who is alleged to have committed the offence; (b) the jurisdiction of the court over the person accused; and (c) the timing of the offence. In this case the Defence has admitted the static elements in Exhibit 1:

[33]      The five essential elements of the offence of sexual assault are as follows:

[34]      In this case, the Defence admits:

[35]      It is uncontested J.P. was a willing participant in the sexual activity.

[36]      As a result of the Defence’s admissions, the Crown has proven beyond a reasonable doubt all the essential elements of the offence of sexual assault, namely: (a) C.J.J. touched J.P. in a sexual nature; (b) C.J.J. intended to touch J.P. in a sexual nature; and (c) because she was under 16 years old, J.P. was unable to legally consent to the sexual touching.

[37]      Had the age gap between C.J.J. and J.P. been less than 5 years, C.J.J. could have evaded a conviction by virtue of s. 150.1(2.1). Because he was more than 5 years older than J.P. (albeit barely), C.J.J. relies s. 150.1(4), for the defence that he believed J.P. was at least 16 years old. This defence is only viable if C.J.J. he took all reasonable steps to ascertain her age.

[38]      C.J.J. has raised the defence of mistake of age contending that at the time of his sexual encounters with J.P., he believed she was 16 years of age or more. At one time it would have suffice for C.J.J. to establish he had an honest but mistaken belief in age. However, as noted in R. v. George, 2017 SCC 38, “through statutory intervention, Parliament has imported an objective element into the fault analysis to enhance protections for youth.” Gascon J., for the Court, sets out the following principles with respect to the framework pursuant to which the trial judge should now assess a defence of mistake of age [citations omitted]:

[39]      In George, at para. 9, Gascon J. explains the assessment of reasonable doubt is highly contextual and fact specific:

[40]      In the recent decision of R. v. Silavi, 2019 BCCA 366 (CanLII), Madam Justice Newbury for the appellate court commented on the constitutionality of ss. 273.2 and s. 150.1 of the Criminal Code [some citations omitted]:

[41]      In R. v Alfred, 2019 BCSC 261 (CanLII), Justice Williams dismissed a constitutional challenge to s. 150.1 under s. 7 of the Canadian Charter of Rights and Freedoms, which guarantees to all persons “the right to life, liberty and security of the person and the right not to be deprived thereof except in accordance with the principles of fundamental justice”. The defence challenged the constitutionality of the bright line exception set out in s. 150.1, between an accused and complainant close in age. Justice Williams considered and followed R. v. A.B., 2015 ONCA 803 (CanLII) and R. v. T.A.S., 2017 SKQB 339 (CanLII). He states at para. 44:

[42]      Before the Court can consider a mistake of age defence, C.J.J. must demonstrate there is an air of reality to the defence: Silavi, para. 35, citing George. This assessment demands, I consider the totality of the evidence, and assume the evidence relied upon by the accused to be true. I do not make determinations about the credibility of witnesses, weight the evidence, make findings of fact, or draw determinate factual inferences: R. v. Cinous, 2002 SCC 29 (CanLII).

[43]      George makes it clear that the defence of mistake of age is available where the context reveals circumstances that could have led to a mistaken belief in age. In this case, C.J.J. himself is very young looking. His friend H. was only 16 or 17. C.J.J. says that in December 2017, J.P. looked as portrayed in the photographs in Exhibit 2, p. 25. These photographs depict a teenager who, to some viewers, looked somewhat older than her actual age of 14 years. J.P. testified she told C.J.J. she was turning 15 years old before her birthday, but she did not recall if their ages were brought up as a subject of conversation about having sex. C.R.’s evidence that she read messages exchanged between J.P. and C.J.J. in which they disclose their respective ages is not corroborated by the photographs in Exhibit 2.

[44]      I conclude on the totality of the evidence, without assessing the credibility of witnesses or weighing the evidence or making any finding of findings of fact, or drawing factual inferences, the defence of mistake of age does have an air of reality.

[45]      It bears reiteration that to convict an accused person who demonstrates an “air of reality” to the mistake of age defence, the Crown must prove, beyond a reasonable doubt, either that the accused person: (1) did not honestly believe the complainant was at least 16 (the subjective element); or (2) did not take ‘all reasonable steps’ to ascertain the complainant’s age (the objective element)” (para. 8 in George; Silavi, para.35).

[46]      As the Supreme Court noted in George, this is a highly contextual, fact-specific exercise requiring me to assess what evidence I find reliable and credible. Reliability and credibility are not the same. Reliability involves the accuracy of the witness’s testimony. It engages consideration of the witness’s ability to observe, recall and recount. Credibility, on the other hand, concerns the veracity of a witness. Simply put, credibility addresses whether a witness is lying, whereas reliability is about honest mistakes.

[47]      Assessing credibility engages a number of factors, including: (a) the plausibility of the witness’s evidence; (b) any independent supporting or contradicting evidence; (c) the external consistency of the evidence; (d) the internal consistency of the evidence; (e) the “balance” of the evidence, meaning the witness’s apparent willingness to be fair and forthright without any personal motive or agenda; and to a lesser extent (f) the witness’s demeanour while testifying, meaning not so much what is said but how it is said.

[48]      It goes without saying that evidence that is not credible is not reliable; however, the corollary is not true. Evidence that is credible may nevertheless be unreliable: R. v. H.C., 2009 ONCA 56 (CanLII) at para. 41 citing R. v. Morrissey, 1995 CanLII 3498 (ONCA).

[49]      I am mindful J.P. is 16 years old testifying to experiences that happened almost two years ago. The Supreme Court of Canada has cautioned trial judges are not to impose the same “exacting standards” in assessing the evidence of a child witness as the court imposes in assessing the testimony of an adult: R. v. B. (G), 1990 CanLII 7308 (SCC), [1990] 2 S.C.R. 30, para. 48. This is not to say the court lowers the standard of proof when dealing with a youth. It remains the same proof beyond a reasonable doubt. Still, when assessing the credibility of a youth, the court must take a common sense approach. When considering inconsistencies, particularly as to “peripheral matters” such as time and location, the court should consider these in the context of the age of the witness. A flaw in a youthful witness’s testimony should not be given the same effect as a similar flaw in an adult witness: R. v. O.M., 2014 ONCA 503, para. 51 – 53.

[50]      The principal safeguard to ensure no innocent person is convicted is the presumption of innocence and the burden on the Crown to prove the essential elements of the offences charged beyond a reasonable doubt. Although the standard is not absolute certainty, proof beyond a reasonable doubt is much closer to absolute certainty than to a balance of probabilities: R. v. Starr, [2000] S.C.R. 144.

[51]      In R. v. W.(D), 1991 CanLII 93, the Supreme Court of Canada provided the trial Courts with an analytical framework to assess reasonable doubt in the context of conflicting testimony in a criminal trial. It is intended to assist judges in properly applying the concept of reasonable doubt to issues of credibility. It provides:

[52]      In W.(D), Cory J. cautions trial judges that an accused’s evidence is not examined in isolation. Reasonable doubt as to the accused’s evidence must be determined “in the context of the evidence as a whole.” When assessing C.J.J.’s evidence, I must consider it in light of the evidence of all the witnesses, including the evidence of J.P. and C.R.: R. v. J.J.R.D., 2006 CanLII 4008 (ON CA), leave to appeal to S.C.C. dismissed, [2007] S.C.C.A. No. 69.

[53]      In determining what to believe, I may accept all, some, or none of a witness’s testimony; furthermore, I may accord different weight to different parts of the evidence that I have accepted: R. v. R.E.M., 2004 BCPS 1679, at para. 44.

[54]      I accept all the witnesses who appeared before me had the capacity to observe, recall and recount the events to which they testified; however, this does not mean that I accept they always did so truthfully or accurately.

[55]      C.J.J. testified that when he first started his relationship with J.P. he did not know how old she was. Initially he said he learned J.P.’s actual age closer to her birthday, but subsequently resiled from that statement. I do not find it implausible that C.J.J. did not know J.P.’s age when they first met and began an intimate relationship. They were both relatively young and had a mutual friend, H., who was 16 or 17. I accept J.P. acted and looked somewhat older than her 14 or 15 years. Conversely, C.J.J. looks and presents younger than his actual age, which was 21 at trial. However, I do not find it plausible that C.J.J. celebrated J.P.’s 15^th birthday with her on [omitted for publication], 2017, and never learned her age.

[56]      C.J.J.’s evidence as to his knowledge of J.P.’s age is contradicted by C.R. and J.P. C.R. claims she read text messages exchanged between C.J.J. and J.P. the first week in December 2017, wherein they disclosed to each other their respective ages, then 20 and 14. J.P. testified she told C.J.J. her age before her birthday and that she would be turning 15.

[57]      I am not aware of C.J.J. providing any out of court statements which contradict his in court testimony.

[58]      C.J.J.’s evidence is internally inconsistent because when initially asked in direct examination if he knew how old J.P. was, C.J.J. said, “at the time I did not, then further – then I did.” When asked when he found out of J.P.’s age, C.J.J. said, “It would have been closer to her birthday,” and confirmed J.P.’s birthday was [omitted for publication]. C.J.J. then testified he could not actually recall whether he learned of J.P.’s age closer to her birthday. He clarified that he only found out it was J.P.’s birthday on [omitted for publication], but he did not learn how old she was turning. C.J.J. says he thought J.P.’s was older than 15 because she was mature and shared his interests. For an example, she had used marijuana to the point that she had formed a preference for a bong over smoking a joint.

[59]      C.J.J. did not demonstrate any animus toward J.P. or C.R. He does, however, admit only to remember “liking” J.P., professing no recollection of having being in love with her even after been confronted with his text messages comprising Exhibit 1.

[60]      A witness’ motive to give evidence is a relevant factor in assessing his or her credibility. This raises special concerns where the witness is an accused because his or her entitlement to the presumption of innocence. In R. v. Laboucan, 2010 SCC 12 (CanLII), Justice Charron for the Court stated:

[61]      There is nothing about C.J.J.’s demeanour while testifying that detracts from his credibility. He appeared nervous and upset, which is perfectly understandable given he was a young man on trial for a serious offence.

[62]      I found J.P.’s evidence spartan, but plausible. She says she met C.J.J. in December 2017, through their mutual friend H. C.J.J. was someone with whom she was interested in cultivating a relationship. Their relationship became sexual after a week or so. J.P. agrees she was a willing participant in the sexual activity. She further acknowledges that she and C.J.J. used marijuana together. She celebrated her birthday with C.J.J. and she says she told him her age before her birthday. They had sexual intercourse both before and after her birthday. J.P. made a statement to the police on her mother’s insistence. J.P. did not want to meet with the police and she did not want anything bad to happen to C.J.J. She knew their relationship could get C.J.J. into trouble.

[63]      J.P.’s evidence of her disclosing to C.J.J. her age or their celebrating her birthday together is not supported by the text messages photographed and entered into evidence as Exhibit 2. There are no text messages before December 9, 2017, although it is clear by this time C.J.J. and J.P. were already in the throes of an intimate relationship. Clearly, December 9, was not the first time C.J.J. and J.P. had exchanged messages. Further, there is a gap in the text messages between December 25, 2017, at 3:53 p.m. and December 29, 2017, at 9:47 a.m. This means there are no text messages in evidence on J.P.’s actual birthday, namely, [omitted for publication], 2017. I note neither C.J.J. nor J.P. was questioned at trial about these messaging gaps. J.P. was not asked if she had deleted any of the messages prior to giving the phone to the police. C.R.’s evidence was that she read messages that had been exchanged between C.J.J. and J.P. between December 1 to 8, 2017.

[64]      J.P. testified she provided a statement to the police on January 19, 2018, the day C.R. ordered her to come home. There is no evidence indicating J.P.’s evidence at trial varied significantly from what she said in any out-of-court statements, to the RCMP or anyone else.

[65]      I don’t find any significant inconsistency in J.P.’s evidence.

[66]      J.P. did not demonstrate any animus toward C.J.J. It was apparent she was not fanning the prosecutorial flames. J.P. testified she really did not want to go to the police; she wanted to be left alone and for her and C.J.J. to move on and live their lives. She did not want anything bad to happen to C.J.J. J.P.’s reluctant participation in prosecuting C.J.J. is evident from her repeatedly denying recollection of details which might have exacerbated C.J.J.’s legal predicament.

[67]      J.P. did not exaggerate or embellish evidence to make things worse for C.J.J. She did not minimize her role in the relationship or her willingness to participate in the sexual activity. I accept that to C.J.J., J.P. seemed older than her actual age; however, I also accept J.P. considered herself as looking her actual age. Their differing viewpoints are purely subjective and hence not mutually incompatible.

[68]      There was nothing about J.P.’s demeanour which detracted from her credibility.

[69]      Overall, I find C.R. a credible witness, although I found her evidence as to when various events occurred unreliable. Notwithstanding having initiated these proceedings in January 2018, and recently reviewing her statement to the police, C.R. testified the events took place in 2016 – 2017 and she was uncertain whether her daughter was in Grade 8 or 9.

[70]      C.R. initiated the investigation into this matter because she did not want her daughter in an intimate relationship with a 20 year old. She thought J.P. ought to be given the opportunity to mature organically into adulthood rather than been raced into it by C.J.J. Although I am somewhat confused as to exactly when C.R. learned the true nature of her daughter’s relationship with C.J.J., I accept C.R. initiated the complaint to the police because she was upset her daughter was having a sexual relationship with a young man five years her senior. In this respect there is nothing implausible of C.R.’s evidence.

[71]      C.R.’s testified she only reported the matter to the police because C.J.J. continued to contact J.P. after C.R. had met him at Tim Horton’s and asked him to terminate the relationship. J.P. testified her mother complained to the police immediately upon learning of her relationship with C.J.J. J.P. confirmed she went to the police on January 19, 2018, the day her mother texted her and ordered her to come home.

[72]      C.R.’s evidence she read text messages exchanged between J.P. and C.J.J. discussing their age gap is not corroborated by Exhibit 2 or by C.J.J. or J.P.’s evidence. However, C.R.’s evidence is not contradicted, as the text messages comprising Exhibit 2 begin on December 9, 2017, which is obviously sometime after C.J.J. and J.P.’s relationship became intimate.

[73]      C.R.’s evidence she told the officer the content of the text messages exchanged between J.P. and C.J.J. is not corroborated by her statement. However, C.R. said the police refused to search the cell phone without a warrant or J.P.’s permission. C.R. asserts her police statement as reproduced omits her reading out the content of the text messages between C.J.J. and J.P. Ordinarily, I would find it highly unusual for the RCMP to redact out portions of a recorded statement. In this case, however, I accept it is possible the RCMP did not record or reproduce that portion of C.R.’s complaint as to the verbatim content of the text messages because it predated the RCMP’s legal authority to examine J.P.’s cell phone.

[74]      Other that her confusion as when various incidents occurred, I did not find anything particularly inconsistent in C.R.’s evidence at trial.

[75]      I was not left with the impression that C.R. sought to demonize C.J.J. She obviously believed her daughter was too young to have a relationship with someone of C.J.J.’s age and was determined to put a stop to it. I accept C.R. acted out of what she considered to be her daughter’s best interests rather than for some ulterior motive.

[76]      There is nothing about C.R.’s demeanour while testifying that detracts from her credibility.

[77]      Whether C.J.J. honestly believed J.P. was 16 years old is a subjective element. On the evidence before me, I am satisfied beyond a reasonable doubt that C.J.J. knew J.P.’s actual age and therefore did not believe she was at least 16 years old while they were sexually active. J.P., who denied recollection of many details of her interactions with C.J.J., was unequivocal that she told him her age prior her 15^th birthday. She said in cross-examination, “He was aware of my age the whole time.”

[78]      C.J.J. and J.P.’s mutual friend H. also knew J.P.’s age. I do not believe C.J.J. did not know J.P. was under 16 years old. Even if he did not know J.P. was 14 at the beginning of their relationship, I find C.J.J. learned sometime in December 2017, J.P. was too young to consent, but proceeded or continued with the sexual activity in any event. The relevant time as to when C.J.J. mistakenly believed J.P. was 16 years or older, was at the time the sexual activity took place. In Exhibit 1, C.J.J. admits to having sexual intercourse with J.P. approximately once per week between December 7, 2017 to February 1, 2018. C.J.J. admits that during sexual intercourse he placed his penis in J.P.’s vagina. So even if C.J.J. could not recall at trial exactly when he learned J.P.’s actual age, I find as fact he did so prior to ceasing the sexual activity.

[79]      If the Crown can show beyond a reasonable doubt the accused did not honestly believe the complainant was of appropriate age, the defence is not available. In the event I am wrong and C.J.J. did not honestly believe J.P. was 16 or older, then I will consider whether C.J.J. took “all reasonable steps” to ascertain J.P.’s age.

[80]      Whereas the “honest but mistaken belief” element is subjective, the second element is subjective-objective. In assessing whether C.J.J. took “reasonable steps” to ascertain J.P.’s age I must consider what steps a reasonable person would take in light of the circumstances known to C.J.J. at the time: George, para. 9. Gascon J. in George commented that in some, but not all cases, it may be reasonable to ask a partner’s age. “The more reasonable an accused’s perception of the complainant’s age, the fewer steps reasonably required of them”: George at para. 9.

[81]      As to the steps that should be taken, Gascon J. instructed:

[82]      The question is whether, in the context of this case and considering all the circumstances, a reasonable person would have done more than what C.J.J. did to ground his belief J.P. was of age. If so, the defence fails. If not, it succeeds.

[83]      In this case the Defence has underpinned its defence of mistaken belief on J.P.’s perceived maturity. I find the following facts militate towards the reasonableness of C.J.J.’s perception of J.P. being older than she was during the offending period:

[84]      Of course, none of the above factors provided C.J.J. with any concrete information as to J.P.’s actual age; however, they did mould his assumptions.

[85]      I cannot find particularly relevant the fact J.P. shared many of C.J.J.’s interests (except for marijuana consumption), because he did not elaborate on the nature of those interests. Moreover, J.P. was not asked in cross-examination about those interests.

[86]      I find the following facts militates against C.J.J. having taken “reasonable steps” to ensure J.P. was of legal age to consent to sexual activity:

[87]      In my view, s. 150.1 imposes an obligation on an adult to do more than simply passively observe the appearance and habits of a potential youthful sexual partner. In George, (at para. 2), the Supreme Court of Canada recognized the legislative provisions seeking to protect young people from sexual crimes do so by placing the responsibility for preventing adults/youth sexual activity with adults. Teenagers can and do pass for older persons. The courts have held that the greater the age difference, the higher the onus on the adult to make inquiries about age: R. v. Saliba, 2013 ONCA 661 (CanLII) at para. 21 and R. v. Dragos, 2012 ONCA 538 (CanLII) at paras. 46 and 53. Having observed C.J.J. and J.P. in court and having read their text messages [Exhibit 2], there is nothing about their appearance, demeanour, and level of sophistication or vocabulary which would suggest they were not close in age. Nevertheless, C.J.J. was the adult and bore the responsibility of exercising due diligence to ensure J.P. was of legal age to consent to sexual activity with a 20 year old partner. Taking C.J.J.’s evidence at its best, the fact he never asked J.P. her age or what Grade she was in at school, falls significantly short of “taking all reasonable steps.”

[88]      In sum, even if C.J.J. did honestly believe J.P. was at least 16 years old, which I do not find, he did not take reasonable steps to ascertain her actual age.

[89]      C.J.J. with respect to the sole count on Information 35589-1-K., charging you with sexually assaulting J.P. I find you guilty.