



COURT OF APPEAL FOR ONTARIO

CITATION: R. v. Duran, 2013
    ONCA 343

DATE: 20130527

DOCKET: C54468

Laskin, Juriansz and Tulloch JJ.A.

BETWEEN

Her Majesty the Queen

Respondent

and

Ricky Duran

Appellant

Michael W. Lacy and Anida Chiodo, for the appellant

Amy Alyea, for the respondent

Heard: November 2, 2012

On appeal from the conviction entered on February 8, 2011
    and the sentence imposed on May 17, 2011 by Justice Janet M. Wilson of the Superior
    Court of Justice, sitting with a jury.

Laskin J.A.:

[1]

After a jury trial, the appellant Ricky Duran was convicted of sexual
    interference and sexual assault.
[1]
He was sentenced to one year in custody, followed by three years probation. 
    He appeals his convictions.  The overriding question on his appeal is whether
    he received a fair trial.  I have concluded that he did not receive a fair
    trial and would, therefore, set aside the convictions and order a new trial.

A.

overview

[2]

The incident that gave rise to the charges against the appellant
    occurred on August 4, 2008.  The complainant and the appellant had met at least
    once before.

[3]

On August 4, the complainant walked past the appellants apartment,
    where he was sitting on the porch with some friends.  They struck up a
    conversation.  The appellant invited her into the house.  They sat in the
    backyard, drank beer and talked for a while.  Eventually, they went into the
    bedroom and had sex, including sexual intercourse.  At the time of the incident,
    the appellant was 27 years old; the complainant was 15 years and 4 months old.

[4]

There were two main issues at trial: the first issue was whether the
    appellant honestly believed that the complainant was over 16 and had taken all
    reasonable steps to ascertain her age.  By convicting the appellant of sexual
    interference, the jury rejected his defence of mistaken belief in the
    complainants age.  The second issue was whether the complainant consented to
    all of the sexual activity.  The appellant said that she did consent; the
    complainant said that she was intoxicated and did not consent to sexual
    intercourse.

[5]

The appellant raises numerous grounds of appeal.  I need only deal with
    three of them.  The appellant submits:

(1)

The trial judge improperly curtailed defence counsels cross-examination
    of the complainant on the issue of whether she had previously lied about her
    age;

(2)

The trial judge erred by admitting prejudicial hearsay evidence about an
    incident that occurred after the incident giving rise to the charges.  The
    trial judges instructions did not cure the prejudice, and the prejudice was
    magnified by the Crowns reliance on the evidence during his closing
    submissions; and

(3)

The trial judge did not adequately instruct the jury on the defence of
    mistake of age.

[6]

I agree with these submissions.  Cumulatively these errors deprived the
    appellant of a fair trial.

B.

the charges

[7]

The appellant was charged with sexual interference and sexual assault. 
    Sexual interference is the touching for a sexual purpose of any part of the
    body of a person under the age of 16.  Sexual assault is the intentional
    application of force without consent in circumstances of a sexual nature.

[8]

For both offences, the complainants consent is not a defence if the
    complainant is under the age of 16.  However, s. 150.1(4) of the
Criminal
    Code
provides an accused with a defence to these charges if the accused
    believed that the complainant was 16 years of age or more at the time the
    offence was alleged to have been committed and took all reasonable steps to
    ascertain the age of the complainant.  Whether the appellant took all
    reasonable steps was thus a pivotal issue in this trial.

C.

the evidence

[9]

Only two witnesses testified at the trial: the complainant and the
    appellant.  They gave very different accounts of what occurred.  Especially
    pertinent to this appeal, they gave contradictory testimony about whether the
    complainant disclosed her age to the appellant.  The credibility of their
    evidence was, therefore, central to the jurys deliberation.  I will summarize
    their accounts in order to put the appellants submissions in a proper
    context.

(a)

How the complainant and the appellant met

(1)

The complainants version

[10]

The
    complainant said that she first met the appellant in July 2008.  At the time,
    she was 15 years old, in grade nine, and living in a nearby group home.  She
    walked past the house where the appellant lived on Dupont Street near the
    University of Toronto.  She saw him sitting on the front porch.  She stopped,
    and they chatted briefly.

[11]

Over
    the next three weeks, while walking past the house, the complainant saw the appellant
    five or six times.  They engaged in small talk.  According to the complainant,
    they did not discuss her age.

(2)

The appellants version

[12]

The
    appellant testified that in July 2008 he was renting a room in the basement of
    a rooming house on Dupont Street near the University.  One afternoon in late
    July, the complainant walked by.  The appellant said hi.  The complainant
    stopped, and they had a brief conversation.

[13]

The
    complainant said that she was a student a George Brown College, that she lived
    in a sorority rooming house around the corner, and that she was 19 years old. 
    They talked about what she did in her spare time.  The appellant testified that
    the complainant presented herself as a 19-year-old college student.

[14]

According
    to the appellant, this was the only time he spoke to the complainant before
    August 4, the date of the incident.

(b)

The incident on August 4, 2008

(1)

The complainants version

[15]

The
    complainant testified that she was walking by the Dupont Street house at about
    2:30 p.m.  The appellant was sitting on the front porch and noticed her walking
    by.  They struck up a conversation, and he invited her inside.  The appellant
    and the complainant sat on the back porch for 30 to 60 minutes.  The appellant
    offered her a beer.  She said that she drank four beers; the appellant had only
    one.

[16]

According
    to the complainant, the appellant asked her where she lived, where she went to
    school, and what she did in her spare time.  She gave the appellant her name
    and some information about her background.  She said she was in school but did
    not specify where, and when he asked what she was studying, she said, I dont
    know.

[17]

The
    appellant also asked her about her age.  The complainant said that she replied,
    Its rude to ask a lady how old she is.  The complainant testified this was
    to keep her age from the appellant.  The complainant agreed that the appellant
    was polite and respectful to her.

[18]

The
    complainant testified, however, that after drinking four beers she began to
    feel dizzy.  The appellant asked her if she wanted to go inside and lie down in
    bed.  She said yes.

[19]

The
    appellant started kissing the complainant.  He then tried to take her clothes
    off.  She told him no, but he would not stop or listen to her.  So she stopped
    arguing.  Instead, she just kind of gave up.

[20]

According
    to the complainant, they lay in bed naked for two hours.  They engaged both in
    oral sex and sexual intercourse.  In response to the question whether she
    consented to the sexual activity, the complainant answered, I would say I had
    consensual sex for two, for two hours under the influence

[21]

When
    the sex was over, the complainant got dressed and went outside to have a
    cigarette and clear her mind.  She and the appellant smoked some marijuana
    together.  Then she left.

(2)

The appellants version

[22]

By
    August 2008, the appellant was no longer living on Dupont Street.  However, he
    returned there over the civic holiday weekend to hang out with his old
    roommates.  On the afternoon of August 4, he was on the front porch, drinking
    beer and smoking cigarettes.  The complainant walked by and waived to him. 
    When he realized who she was, he invited her up to the porch.  They spoke for a
    few minutes and then went to the back patio.

[23]

The
    appellant offered her a beer and cigarettes.  She accepted the beer but pulled
    out one of her own cigarettes.  They sat in the back, talking and smoking
    cigarettes for about 20 to 40 minutes.  They spoke casually about different
    things: music, personal interests, parties, friends, and what they did on
    weekends.  They exchanged anecdotes and talked about relationships.  The
    complainant drank only one beer and took her time doing so.  She did not seem
    intoxicated or dizzy.

[24]

Eventually,
    the appellant and the complainant started kissing.  The appellant testified
    that the complainant seemed to enjoy the intimacy.  The appellant took the
    complainant to one of the bedrooms and began to remove her clothes.  She did
    not show any signs of resistance.  Instead, she let him continue.  He went to
    get a condom.  He then asked the complainant to perform oral sex, and she did. 
    After more fondling and kissing, they had sexual intercourse, which was
    unprotected, as the appellant forgot to use his condom.  The intercourse lasted
    for about 20 minutes.  The appellant maintained that it was consensual, as he
    had no contrary indication from the complainant.

[25]

After
    their sexual activity, the complainant and the appellant talked briefly in bed
    and then got dressed.  After 10 minutes, the complainant left.  The appellant
    never saw her again.

D.

discussion

[26]

As
    I said in the overview, three aspects of the trial deprived the appellant of a
    fair trial: defence counsels cross-examination was improperly curtailed;
    prejudicial hearsay evidence was admitted; and the instructions on the mistake
    of age defence were inadequate.

I.

Defence counsels cross-examination was improperly curtailed

[27]

The
    complainant gave false testimony about the extent to which she misrepresented
    her age.  Defence counsel sought to cross-examine on this false testimony but
    the trial judge curtailed him from doing so.

[28]

The
    context in which this issue arose is as follows.  At the preliminary inquiry
    and again in her examination-in-chief, the complainant testified that the only
    time she had lied about her age and represented to others that she was over 16
    was when she bought cigarettes.  This testimony was a lie.  Since 2007, the
    complainant had created online social networking accounts on MySpace where
    she presented herself as a 19 or 20 year old who had completed four years of
    high school.  Defence counsel sought to cross-examine the complainant on her
    false testimony.  He began as follows:

Q.      So Im
    going to ask you to look at your pre-lim testimony again at page 50, lines 14
    to 20.  Are you there with me?

A.      Page 50?

Q.      Page five zero.

A.      Yeah.

Q.      At line 14, were you asked the question:

        All right,
    do you sometimes pretend to be older than you are?

        Answer: No.

        Question: Never?

        Answer: No.

        Question: Are you sure?

        Answer: Only when I go to buy cigarettes.

        Question: Or when you buy alcohol?

        Answer: I dont buy alcohol.

Q.      So, Ms. R.,
    14 days after you logged on to MySpace page where you were lying about your
    age, under oath you testified that you never lie about your age.  Isnt that
    the case?

A.      It appears to be.

Defence counsel then asked:

Q.      Okay. And
    here in court I gave you another opportunity to tell the truth, and instead you
    lied again.

[29]

The
    trial judge did not allow the complainant to answer this question.  Instead,
    she abruptly curtailed the cross-examination and sent the jury away for the
    rest of the day.  She told defence counsel that because the appellant did not
    know about the MySpace account, cross-examination in this area was very, very
    tangential, only of marginal relevance, and pursuing it was unfair to the
    complainant.

[30]

The
    next day, defence counsel returned to the subject of the complainants MySpace
    account and sought to challenge her explanation for why she had falsely
    represented her age.  She had said that she did so because she believed that
    she had to be of age to set up an account.  Defence counsel, however, told
    the court MySpaces policy allowed persons as young as 13 or 14 to set up an
    account.  He asked the trial judge for permission to cross-examine the
    complainant on the policy in order to challenge her explanation.  The trial
    judge only permitted defence counsel to ask the complainant whether she was
    aware of the terms of MySpaces policy.  The complainant replied: It might
    have just been, like, something my mom put on the computer.

[31]

In
    my opinion, the trial judges intervention to curtail defence counsels
    cross-examination  especially on the complainants lie about how often she had
    misrepresented her age  was improper and unfair to the appellant.  I would
    make four points in support of my opinion.

[32]

First,
    the trial judges concern that the cross-examination was very, very
    tangential because the appellant did not know about the complainants MySpace
    account overlooks the valid purpose of the cross-examination:  to challenge the
    complainants credibility and specifically to show that she had misrepresented
    her age on other occasions, thus bolstering the appellants evidence that she
    told him she was 19.  The complainants credibility and whether she had
    represented herself as over 16 were crucial issues at trial.  Far from being
    tangential, the cross-examination was directly relevant to these issues.

[33]

Second,
    although a trial judge has a responsibility to protect a witness from
    harassing, repetitive or irrelevant cross-examination, defence counsels
    cross-examination of the complainant was none of these things.  The question
    itself that the trial judge stopped the complainant from answering  and here
    in court I gave you another opportunity to tell the truth, and instead you lied
    again  was an entirely proper question.  It seems to me a trial judge should
    be very cautious about limiting cross-examination that goes directly to a
    witness credibility.

[34]

Third,
    although defence counsel did obtain the complainants acknowledgement that she
    had lied about her age on her MySpace account, the trial judge prevented him
    from obtaining the complainants explicit admission that she had perjured
    herself in her testimony at the preliminary inquiry and in her
    examination-in-chief at trial.  A witness lie under oath on an important
    matter is a powerful weapon in a cross-examiners arsenal.  Defence counsel was
    entitled to bring out the complainants lie and emphasize it for the jury.  He
    was prevented from doing so.

[35]

Fourth,
    the trial judges instructions to the jury on the complainants MySpace account
    exacerbated the unfairness to the appellant.  The trial judge said:

Defence counsel introduced as exhibits documents posted by Ms.
    R. in the My Space site.  This site allows friends to communicate.

Clearly, Mr. D. did not review the information on this site as
    part of the reasonable inquiry into Ms. R.s age.  The document was discovered
    after the fact.  Therefore, this document is not directly relevant to the
    question of whether Mr. D. made all reasonable steps to ascertain Ms. R.s age.

This documentation is relevant to whether Ms. R., in other
    contexts, misrepresented her age as more than 15, as her age on these posting
    is 19 and 20.  There is also a photograph of Ms. R. taken on October 13, 2008,
    some two-plus months after this incident, that is posted and is filed as
    Exhibit 3B.

Ms. R. explained that she used this site to communicate with
    her friends, that only her friends had access to her profile, but that to
    participate in the site you had to be at least 18 years of age and finished
    highschool.  Therefore she posted the information that you see.  In
    cross-examination, she was challenged about the age restriction, but testified
    that when she tried to join she could not log in showing her real age.

[36]

That
    the appellant did not know about the complainants MySpace account until after
    the fact was irrelevant.  Defence counsel did not cross-examine on the account
    to show the appellants efforts to ascertain the complainants age.  He
    cross-examined on the account to attack the complainants credibility and to
    show that she had perjured herself.  Indeed, the trial judge ought to have told
    the jury that the complainants lie about when she misrepresented her age was
    very relevant to her credibility.

II.

Prejudicial hearsay evidence was admitted

[37]

During
    his cross-examination of the appellant, Crown counsel elicited hearsay
    evidence, which was inadmissible and prejudicial.  The Crown then relied on
    this evidence in his closing address to the jury.  The trial judge gave both
    mid-trial and final instructions to the jury about the limited way they could
    use this evidence but neither instruction alleviated the prejudice.

[38]

The
    evidence concerned an incident that took place several weeks
after
the
    incident giving rise to the charges.  Crown counsel asked the appellant whether
    he knew about the allegations against him before he turned himself in to the
    police.  Defence counsel objected to the relevance of the question, but the
    trial judge ruled that it was a fair question.  The appellant answered:

A.

Okay.  So at the end of the month, I go back looking for some mail.  I
    say hi to Piero.  Were on the porch just talking, and then these two girls
    come by and they start screaming and yelling about shes only fifteen.  They
    were just yelling and screaming for about a minute: she was only fifteen.  You
    drugged her.  You raped her



Q.      What did they say?

A.      You raped
    her. You drugged her.  Shes only fifteen.  Shes only fifteen.  Thats all I
    remember.

[39]

The
    trial judge then gave the jury mid-trial instructions on this evidence, which
    she repeated during her final instructions.  She told the jury that the
    evidence of these two girls could not be considered for the truth of its
    contents but that it was relevant to the chronology and the appellants state
    of mind at the time:

The second caution is you heard some evidence late in the day
    yesterday from Mr. D. about an incident that took place at 245 Dupont in late
    August, 2008, or early September, when two girls came to the house and were
    yelling at Mr. D. and making accusations. This evidence is relevant and may be
    considered by you, but only for a limited purpose.  You may not consider the
    evidence of what the girls were shouting for the truth of what they were
    saying.  You may consider the evidence as being relevant to the chronology of
    how this story spun out, number one, and number two, its relevant to Mr. D.s
    state of mind because as of that date he knew there was a problem with the
    issue of [Ms. R.]s age.  But the statement made by the two girls, who are not
    witnesses, is not admissible for the truth of what they may have been shouting
    at Mr. D., and this evidence may not be considered by you to bolster the
    credibility of Ms. R. I repeat.  The only relevance is, as of that date its
    part of the chronology, and its also relevant to what Mr. D. knew, and it was
    clear that as of that date he knew there was an issue with respect to [Ms. R.]s
    age.  Okay? So on that basis, we can proceed,

[40]

Respectfully,
    this evidence was not relevant for any purpose.  The appellants state of mind
    weeks after the August 4, 2008 incident had no bearing whatsoever on his belief
    or his efforts to ascertain the complainants age before he engaged in sexual
    activity with her.

[41]

Moreover,
    the evidence was obviously hearsay.  The two girls were not called as
    witnesses; they were not even identified by name.  Their evidence was not
    admissible on any basis.

[42]

Most
    important, the evidence was highly prejudicial to the appellant, a prejudice
    made worse by the inflammatory nature of the actual words  shes only fifteen.
    You drugged her.  You raped her.  The trial judges instructions did not
    entirely alleviate the prejudice.  Despite these instructions, there remained a
    real risk that the jury would use this evidence to find that the appellant was
    not credible.

[43]

Finally,
    the Crown magnified the prejudice by relying on the evidence to attack the
    appellants credibility in his closing address.  He said:

Also, when you consider his credibility, consider that at one
    point he talked about, on the first day when I got to ask him questions, I
    didnt know anything about this until the police officer called me, and the
    next day I turned myself in. The on the second day, Mr. D. on his own brings up
    the fact that these girls had come to the house about a week or so before and
    were shouting at him, and he understood they were shouting at him because of
    this incident with [Ms. R].  He didnt tell you that through his lawyer
    in-chief. It only came up in cross-examination on the first day, and then it
    was on the second day that he went back and brought that out.  Well, which one
    is it? What does he want you to believe?

[44]

The
    admission of this prejudicial hearsay evidence and the Crowns use of it in
    closing were most unfair to the appellant, an unfairness that was not cured by
    the trial judges instructions.

III.      The instructions on the mistake of age defence were
    inadequate

[45]

The
    appellant defended the charges against him on the basis that he mistakenly
    believed the complainant was over 16 years old and he took all reasonable steps
    to ascertain her age.  The mistake of age defence is set out in s. 150.1(4) of
    the
Criminal Code
:

It is not a defence to a charge
    under section 151 or 152, subsection 160(3) or 173(2), or section 271, 272 or
    273 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.

[46]

The appellant gave evidence to support his defence.  He claimed that
    the complainant told him she was 19 years old, went to George Brown College,
    and live in a nearby sorority house.  He testified that he had no reason to
    doubt her age or the information she gave him.  George Brown was near the
    rooming house on Dupont Street where he was staying and there were numerous
    sorority houses in the
neighbourhood
.  The complainants
    appearance, her interests, the way she dressed, and the way she spoke all led
    him to believe she was 19 years old.  Because there was evidence to support the
    appellants defence and because the question whether he took all reasonable
    steps to ascertain the complainants age was the pivotal issue at trial, it was
    especially important that the trial judge adequately instruct the jury on this
    defence.  I am not persuaded that she did so.

[47]

In fairness, the trial judge did review extensively the evidence
    supporting the appellants defence, as well as the contradictory evidence.  For
    example, she properly told the jury that according to the appellants evidence,
    the complainant told him she was 19; but according to the complainants
    evidence, she never disclosed her age to the appellant.

[48]

However, adequate instructions require more than a review of the
    evidence.  Numerous decisions of the Supreme Court of Canada and provincial
    appellate courts have discussed the elements of adequate jury instructions. 
    Doherty J.A. reviewed several of these cases in
R. v. MacKinnon
(1999), 43 O.R. (3d) 378 (C.A.).  At pp. 385-6, he noted that no
    particular approach or formula is required, but that whatever approach is used,
    adequate instructions should contain four elements:

·

The factual issues to be resolved;

·

The law to be applied to those issues and the
    evidence;

·

The positions of the parties; and

·

The evidence relevant to the positions of the
    parties on the issues.

[49]

In the present case, I am not satisfied that the trial judge adequately
    explained the legal principles to be applied to the mistake of age defence and
    how the evidence related to these principles. As a consequence, her
    instructions may have left the jury with the wrong impression of what was
    required to make out the defence.

[50]

When the trial judge came to the part of her charge dealing with s.
    150.1(4) of the
Criminal Code
, she did no more
    than read out the words of the section and tell the jury that the test was
    objective.  In my opinion, more was required for two reasons: first, to assist
    the jury in assessing the defence and second, to avoid misleading the jury
    about the steps the appellant had to take.

[51]

The trial judge should first have told the jury it was the appellants
    position that he honestly believed the complainant was over 16 years of age;
    and the trial judge should have reviewed the evidence for and against that
    position: see
R. v. Wasser
, 2010 ONCA 429, at
    para. 13.  But, as the appellants subjective belief was not determinative, the
    trial judge should then have instructed the jury on whether the accuseds
    belief was objectively reasonable and specifically on whether the accused took
    all reasonable steps to ascertain the complainants age.

[52]

What constitutes all reasonable steps depends on the context and the
    circumstances.  There is no automatic checklist of considerations applicable to
    every case.  Indeed, in some cases, an accuseds visual observation of the
    complainant may be enough to constitute reasonable steps.

[53]

In this case, the trial judge should have instructed the jury to
    determine whether what the appellant knew and observed about the complainant
    were all the steps a reasonable person needed to take or whether a reasonable person
    ought to have made further inquiries.  In making that determination, the jury
    should have been told to take account of the following considerations and the
    evidence on them: the accuseds observation of the complainant; the
    complainants appearance and behaviour; the information the complainant told
    the appellant about herself, including any information about her age; and the
    age differential between the appellant and the complainant.

[54]

These suggested instructions find support in
CRIMJI:
    Canadian Criminal Jury Instructions
, Gerry Ferguson, Michael
    Dambrot, and Elizabeth Bennett, 4th ed., looseleaf, (Vancouver: The Continuing
    Legal Education Society of British Columbia, 2005), vol. 2, 2011 update, at section
    6.67A, paras. 23-24,
[2]
and in the reasons of the British Columbia Court of Appeal in
R. v.
    L.T.P.
(1997), 113 C.C.C. (3d) 42, where Finch J.A. said, at
    para. 20:

In considering whether the Crown has proven
    beyond a reasonable doubt that the accused has not taken all reasonable steps
    to ascertain the complainant's age, the Court must ask what steps would have
    been reasonable for the accused to take in the circumstances.  As
    suggested in
R. v. Hayes
,
supra
, sometimes a visual observation alone may suffice.  Whether further
    steps would be reasonable would depend upon the apparent indicia of the
    complainant's age, and the accuseds knowledge of same, including: the accuseds
    knowledge of the complainants physical appearance and behaviour; the ages and appearance
    of others in whose company the complainant is found; the activities engaged in
    either by the complainant individually, or as part of a group; and the times,
    places, and other circumstances in which the complainant and her conduct are
    observed by the accused.  The Court should ask whether, looking at those
    indicia, a reasonable person would believe that the complainant was fourteen
    years of age or more without further inquiry, and if not, what further steps a
    reasonable person would take in the circumstances to ascertain her age.  Evidence
    as to the accuseds subjective state of mind is relevant but not conclusive
    because, as pointed out in
R. v. Hayes
at p.11, [a]n
    accused may believe that he or she has taken all reasonable steps only to find
    that the trial judge or jury may find differently.

[55]

Instructions along the lines proposed in
CRIMJI
and
LTP
would not only have assisted the
    jury in assessing the pivotal issue in this case, they would have avoided
    potentially misleading the jury.  The
CRIMJI
and
LTP
instructions focus the jurys deliberations on the question whether
    the steps the appellant had already taken  what he had observed and what he
    knew  were sufficient without further inquiry.  Simply reading out the words
    in s. 150.1(4), without more, implicitly invites the jury to bypass this
    question and instead to focus on whether the appellant was required to take
    further steps.

[56]

For these reason the trial judges instructions on the mistake of age
    defence were not adequate.

E.

conclusion

[57]

The trial judge erred in curtailing defence counsels cross-examination
    of the complainant, in admitting prejudicial hearsay evidence, and in her
    instructions on the mistake of age defence.  These errors were not harmless. 
    They may well have affected the jurys assessment of the credibility of the
    complainant and the appellant.  This is therefore not a case to apply the curative
    proviso as it cannot be said that despite the errors no substantial wrong or
    miscarriage of justice has occurred.

[58]

I would allow the appeal, set aside the appellants convictions, and
    order a new trial.

Released: May 27, 2013                                         John
    Laskin J.A.

JL                                                                     I
    agree R.G. Juriansz J.A.

I
    agree M. Tulloch J.A.

APPENDIX  A

23.   At this point, you may be wondering what constitutes
    all reasonable steps. There is no checklist of reasonable steps; what is
    required will depend on what is reasonable in the particular circumstances.
    Generally, as the difference in age between the accused and complainant
    increases, the accused is required to take more steps to ascertain the age of
    the complainant. In some situations, observations of _________________ [THE
    COMPLAINANT] by ____________ [THE ACCUSED] may be sufficient to constitute
    reasonable steps.  Such observations may include ___________s [THE
    COMPLAINANTS] appearance and behaviour and the age of the people (he/she)
    normally associates with.  You should also consider any personal knowledge
    _____________ [THE ACCUSED] had of ___________ [THE COMPLAINANT], the nature of
    the relationship between ___________ [THE ACCUSED] and _________ [THE
    COMPLAINANT], and the environment where the incident took place.

24.   However,
    in some circumstances, observations may be insufficient and you may conclude
    that it was reasonable for ____________ [THE ACCUSED] to ask ____________ [THE
    COMPLAINANT] or someone who knew ________________ [THE COMPLAINANT] (his/her)
    age.  However, even if _____________ [THE COMPLAINANT] told ___________ [THE
    ACCUSED] (he/she) was 16 years of age or more, ___________ [THE ACCUSED] may
    still have needed to make further inquiries, depending on the circumstances.





[1]
The conviction for sexual assault was conditionally stayed.



[2]
See Appendix A.
The
CRIMJI
model charge was not given to the trial judge.


