



WARNING

The President of the panel
    hearing this appeal directs that the following should be attached to the file:

An order restricting
    publication in this proceeding under ss. 486.4(1), (2), (2.1), (2.2), (3) or
    (4) or 486.6(1) or (2) of the
Criminal Code
shall continue.  These
    sections of
the Criminal Code
provide:

486.4(1)       Subject
    to subsection (2), the presiding judge or justice may make an order directing
    that any information that could identify the victim or a witness shall not be
    published in any document or broadcast or transmitted in any way, in
    proceedings in respect of

(a)     any of the
    following offences;

(i)      an offence
    under section 151, 152, 153, 153.1, 155, 159, 160, 162, 163.1, 170, 171, 171.1,
    172, 172.1, 172.2, 173, 210, 211, 213, 271, 272, 273, 279.01, 279.011, 279.02,
    279.03, 280, 281, 286.1, 286.2, 286.3, 346 or 347, or

(ii)      any offence
    under this Act, as it read at any time before the day on which this
    subparagraph comes into force, if the conduct alleged involves a violation of
    the complainants sexual integrity and that conduct would be an offence
    referred to in subparagraph (i) if it occurred on or after that day; or

(iii)     REPEALED: S.C.
    2014, c. 25, s. 22(2), effective December 6, 2014 (Act, s. 49).

(b)     two or more offences being dealt
    with in the same proceeding, at least one of which is an offence referred to in
    paragraph (a).

(2)     In proceedings
    in respect of the offences referred to in paragraph (1)(a) or (b), the
    presiding judge or justice shall

(a)     at the first
    reasonable opportunity, inform any witness under the age of eighteen years and
    the victim of the right to make an application for the order; and

(b)     on application
    made by the victim, the prosecutor or any such witness, make the order.

(2.1) Subject to
    subsection (2.2), in proceedings in respect of an offence other than an offence
    referred to in subsection (1), if the victim is under the age of 18 years, the
    presiding judge or justice may make an order directing that any information
    that could identify the victim shall not be published in any document or
    broadcast or transmitted in any way.

(2.2) In proceedings in
    respect of an offence other than an offence referred to in subsection (1), if
    the victim is under the age of 18 years, the presiding judge or justice shall

(a) as soon as feasible,
    inform the victim of their right to make an application for the order; and

(b) on application of
    the victim or the prosecutor, make the order.

(3)     In proceedings
    in respect of an offence under section 163.1, a judge or justice shall make an
    order directing that any information that could identify a witness who is under
    the age of eighteen years, or any person who is the subject of a
    representation, written material or a recording that constitutes child
    pornography within the meaning of that section, shall not be published in any
    document or broadcast or transmitted in any way.

(4)     An order made
    under this section does not apply in respect of the disclosure of information
    in the course of the administration of justice when it is not the purpose of
    the disclosure to make the information known in the community. 2005, c. 32, s.
    15; 2005, c. 43, s. 8(3)(b); 2010, c. 3, s. 5; 2012, c. 1, s. 29; 2014, c. 25,
    ss. 22, 48; 2015, c. 13, s. 18.

486.6(1)       Every
    person who fails to comply with an order made under subsection 486.4(1), (2) or
    (3) or 486.5(1) or (2) is guilty of an offence punishable on summary conviction.

(2)     For greater
    certainty, an order referred to in subsection (1) applies to prohibit, in
    relation to proceedings taken against any person who fails to comply with the
    order, the publication in any document or the broadcasting or transmission in
    any way of information that could identify a victim, witness or justice system
    participant whose identity is protected by the order. 2005, c. 32, s. 15.




COURT OF APPEAL FOR ONTARIO

CITATION: R. v. W.G., 2021 ONCA 578

DATE: 20210824

DOCKET: C66451

Fairburn A.C.J.O., Watt and
    Huscroft JJ.A.

BETWEEN

Her Majesty the Queen

Respondent

and

W.G.

Appellant

Brian H. Greenspan and Naomi Lutes
, for the appellant

Christine Bartlett-Hughes
, for the respondent

Heard: January 27, 2021 by videoconference

On appeal from the conviction entered by Justice Douglas K. Gray of the
    Superior Court of Justice on September 20, 2018, with reasons reported at 2018
    ONSC 5404.

Watt J.A.:


[1]

They met first on a dating app where both had an
    account. They chatted.

[2]

Then they met at a hotel. This was their first
    meeting in person. They had sex.

[3]

The relationship continued for a few weeks.
    Virtually and in person. Usually sexual. But at other times, not. Interrupted
    by various events.

[4]

After the relationship ended, the appellant was
    arrested on charges of sexual interference and sexual assault. A judge of the
    Superior Court of Justice found both charges proven beyond a reasonable doubt.
    The judge entered a conviction on the count of sexual interference and a
    conditional stay on that of sexual assault.

[5]

The appellant appeals his conviction. These
    reasons explain why I would dismiss the appeal and affirm the conviction
    entered at trial.

The Background Facts

[6]

The issues raised in this court do not require
    any detailed reference to the evidence adduced at trial. A brief overview of
    the underlying circumstances will provide the background necessary to
    understand the claims of error advanced and how I propose to resolve them.

The Principals

[7]

L.S. was born female. Early in high school, L.S.
    began to identify as male. At all material times, L.S. was 15 years old.

[8]

The appellant was a married father of two
    children. Self-employed, he was 50 years old when the offences alleged were
    committed.

The Grindr App

[9]

Grindr is a dating app used by gay men. Its account
    holders must be 18 or older, but the service does not verify any information
    its account holders provide. Despite the age requirement, an account holder
    need not disclose their age.

[10]

L.S. left his age blank on his Grindr profile.
    He included a photograph of his eye. An account holder could indicate the type
    of gay subculture with which he identified. L.S. did so. He indicated twink,
    a younger man with a boyish look.

[11]

The appellant used the name Tom on his Grindr
    profile. He listed his age as 48. This was a lie. He was actually 50 years old
    and did not go by the name of Tom in his daily activities. The appellant knew
    that information provided in Grindr profiles was not verified.

The Grindr Chats

[12]

L.S. and the appellant chatted on Grindr for about
    two or three weeks before they actually met. L.S. said he was 18. He had been
    born female but was transitioning to male. L.S. claimed he was doing a lap
    year at high school. He lived at home with his parents and a sibling.

[13]

During their chats on Grindr, L.S. did not tell
    the appellant that he (L.S.) was seeing an older man, Steven.

The First In-Person Meeting

[14]

Early in the month following their virtual
    meetings, the appellant and L.S. met in person. The appellant picked up L.S. at
    school. They drove in the appellants truck to a nearby hotel. There they
    engaged in various forms of sexual activity before the appellant drove L.S.
    back to the parking lot of his high school.

[15]

The appellant proposed another meeting the next
    day. L.S. demurred because he was seeing another man, Steven.

The Later Meetings

[16]

Over the next several weeks, the appellant and
    L.S. continued to chat and to meet. In most of their meetings, they had sex.

[17]

Later in the month of their first in-person
    meeting, L.S. told the appellant that he (L.S.) had chlamydia. He advised the
    appellant that he should be examined by a doctor. The appellant did so. The
    examination confirmed that the appellant also had chlamydia. Both received medical
    treatment. Their sexual activity ceased during the period of treatment.

[18]

The appellant believed that Steven was the
    source of the chlamydia that he (the appellant) had contracted from L.S. The
    appellant told L.S. that their relationship was over if L.S. continued to see
    other men.

[19]

The day following this ultimatum, L.S. told the
    appellant that he would end his relationship with Steven.

[20]

The relationship between L.S. and the appellant
    continued over a few more weeks. They chatted and met. Medical treatment, and
    vacations interrupted their sexual activity.

The Confession about Age

[21]

On April 7, 2015, as the appellant and L.S.
    returned from sexual activity, the appellant asked L.S. what he proposed to do
    after completion of his lap year. L.S. paused as he had when Steven had
    asked him the same question. L.S. then told the appellant that he was only 15 
    not 18, as he had said in their early meeting.

[22]

L.S. and the appellant diverged in their
    accounts of what happened after L.S. disclosed his true age  15  to the
    appellant.

[23]

L.S. testified that the relationship continued
    after his age disclosure. This included sexual activity. He was challenged on
    this issue in cross-examination. Among other suggestions put to him was that he
    had confused what had happened after he had made a similar disclosure to
    Steven with what had occurred with the appellant.

[24]

The appellant gave evidence that once L.S.
    disclosed his true age, they agreed that they could no longer see each other.
    Their only further contact, about which they were also agreed, was that the
    appellant could wish L.S. happy birthday when L.S. turned 16. The appellant
    extended his best wishes. L.S. did not reply.

The Appellants State of Mind

[25]

The appellant testified that until L.S. told him
    that he was only 15, he (the appellant) believed that L.S. was 18. L.S. had
    told him so as their virtual relationship began and, according to the
    appellant, had said nothing to the contrary until their relationship ended.

[26]

The appellant recounted several factors that
    confirmed his belief that L.S. was 18 during their sexual relationship. L.S.
    said he was 18 and used the Grindr app which required account holders to be 18.
    L.S. said that he was doing a lap year at high school, meaning Grade 13. L.S.
    demonstrated maturity in their conversations and assuredness in his sexual
    preferences. L.S.s demeanour and physical appearance, which were consistent
    with his photograph, confirmed his stated age.

The Appellants Inquiries

[27]

The appellant was cross-examined about what
    steps he had taken to confirm his belief that L.S. was 18. He acknowledged that
    he only asked L.S. his age once, when they first met over Grindr. He did not
    inquire about why L.S. was doing a lap year at high school. Nor did the
    appellant tell anyone about their relationship. After they met in person, the
    appellant did not ask L.S. for any identification or whether he had a drivers
    licence. The appellant did not inquire about the age of L.S.s brother or ask
    to meet L.S.s parents. They never met at L.S.s home. The appellant picked up
    L.S. and dropped him off after their meetings some distance away from his home.
    The appellant acknowledged that people lie about their age and other things on
    Grindr. Indeed, he had lied about his own age in creating his profile on the
    Grindr app.

The Positions at Trial

[28]

The trial Crown advanced two alternative bases
    upon which the appellants guilt could be proven. First, he submitted that the
    appellant could be found guilty on the basis that the appellant continued his
    sexual relationship with L.S. after L.S. had disclosed his true age as 15.

[29]

Second, even if the appellant honestly believed
    that L.S. was at least 16, the Crown contended that it was proven beyond a reasonable
    doubt under s. 150.1(4) of the
Criminal Code,
R.S.C. 1985, c. C-46,
that the appellant
    had not taken all reasonable steps to ascertain L.S.s age. The Crown advanced
    this as an alternative path to conviction and as the principal basis of liability.

[30]

For the appellant, defence counsel submitted
    that the trial judge should have a reasonable doubt that any sexual activity
    took place between the parties after L.S. told the appellant that he was 15. In
    the alternative, trial counsel argued that, throughout, the appellant honestly
    believed that L.S. was 18. Further, Crown counsel had failed to prove beyond a
    reasonable doubt, as he was required to do, that the appellant did not take all
    reasonable steps to ascertain L.S.s age. It followed, defence counsel urged,
    that the appellant should be acquitted.

The Reasons of the Trial Judge

[31]

Considering the first basis of liability
    advanced by the Crown, the trial judge was not satisfied beyond a reasonable
    doubt that the sexual relationship of the appellant and L.S. continued after
    L.S. told the appellant that he was 15.

[32]

Turning to the alternative basis of liability,
    the trial judge was satisfied that the appellant had an honest but mistaken
    belief throughout the sexual relationship that L.S. was 18, or at least 16.
    However, the trial judge was persuaded beyond a reasonable doubt that the
    appellant did not take all reasonable steps to ascertain L.S.s age. He
    expressed his conclusion in these terms:

In the final analysis,
    W.G. simply took L.S.s word that he was 18 years old, and he made assumptions
    that were not warranted in the particular circumstances. While concrete steps
    are not required in every case, they were clearly required in this case.
The simplest step would have been to ask for identification. That
    was not done.

In the final analysis, I am satisfied beyond a
    reasonable doubt that W.G. did not take all reasonable steps to ascertain the
    age of L.S. before he engaged in sexual activity with him. Thus, as specified
    in s. 150.1(4) of the
Code
, it is not a defence to the charges under
    s. 151 or s. 271 that W.G. believed that L.S. was 16 years of age or more.

The Grounds of Appeal

[33]

The appellant identifies three errors in the
    trial judges analysis which he says warrant entry of an acquittal, or at
    worst, an order for a new trial. He says that the trial judge erred:

i.

in finding the fault element in sexual
    interference satisfied on the basis of the appellants failure to take all
    reasonable steps to ascertain the true age of L.S.;

ii.

in his interpretation of the all reasonable
    steps requirement in s. 150.1(4); and

iii.

in misapprehending the evidence about L.S.s online dating profile
    on Grindr.

[34]

The first two grounds of appeal are related and
    can be combined for the purpose of analysis.

Ground #1: The Fault Element in Sexual Interference

[35]

The argument advanced in support of this ground
    of appeal does not require further reference to the evidence adduced at trial
    or the reasons of the trial judge. A canvass of the arguments advanced in this
    court is sufficient prelude to the discussion that follows.

The Arguments on Appeal

[36]

The appellant begins with the unassailable:
    subjective fault is a bedrock principle of the criminal law in Canada. Yet
    here, the appellant says, the trial judge failed to give effect to that
    principle. This is because the judge, having found that the appellant honestly
    believed L.S. was over 16, nonetheless convicted the appellant because he
    failed to take all reasonable steps to ascertain L.S.s age.

[37]

The failure to take all reasonable steps
    requirement in s. 150.1(4) of the
Criminal Code
, the appellant says,
    simply bars an accused from raising a positive defence  mistaken belief in age
     in answer to a charge of sexual interference. The failure does not provide, and
    thus cannot be invoked, as an independent pathway to conviction as occurred
    here. Previous authority notwithstanding, no longer can the Crown establish an
    accuseds guilt of sexual interference on either of two bases  actual
    knowledge of the complainants underage status, or the failure to take all reasonable
    steps to ascertain the complainants true age. Only actual knowledge of the
    complainants underage status will suffice.

[38]

Here, the appellant continues, the trial judge
    required him to show not only that he honestly but mistakenly believed that
    L.S. was at least 16 years old, but also that he had taken all reasonable steps
    to ascertain L.S.s age. But the onus is on the Crown to disprove the defence
    for which s. 150.1(4) provides, by proving beyond a reasonable doubt that the
    appellant either did not honestly believe L.S. was of age, or that he failed to
    take all reasonable steps to ascertain L.S.s true age.

[39]

The trial judges findings, according to the
    appellant, require entry of an acquittal or, at the very least, a new trial. To
    establish the fault element of sexual interference, the Crown had to prove
    beyond a reasonable doubt that the appellant believed, was wilfully blind, or
    was reckless as to whether L.S. was under 16. The trial judge found that the
    appellant honestly believed that L.S. was 18, thus not under 16 years of age.
    On this finding, the appellant was entitled to an acquittal.

[40]

Even if the appellant is not entitled to an
    acquittal under the new sexual assault fault regime, a new trial is required. The
    trial judge, the appellant contends, failed to consider and decide whether the
    Crown had proven beyond a reasonable doubt that the appellant had the state of
    mind necessary to establish guilt. The trial judge found that there was an air
    of reality to the appellants assertion that he had taken all reasonable steps
    to ascertain L.S.s true age. Even if the trial judge was satisfied beyond a
    reasonable doubt that the appellant had not taken all reasonable steps as
    required by s. 150.1(4), it remained incumbent on the Crown to prove beyond a
    reasonable doubt that the appellant believed, was wilfully blind to, or was
    reckless as to whether L.S. was under 16. But the trial judge never adverted
    to, much less decided whether the Crown had proven the required fault element
    beyond a reasonable doubt. Thus, the need for a new trial.

[41]

In addition to the above, the appellant also challenges
    the trial judges interpretation and approach to the all reasonable steps
    element in s. 150.1(4) of the
Criminal Code
. The trial judge, the
    appellant complains, failed to conduct the assessment contextually, in
    particular, by failing to take into account the appellants subjective belief
    that L.S. was over 16. What constitutes all reasonable steps depends on the
    context of each case and requires an assessment of all the circumstances. The
    term steps has two modifiers: all and reasonable. The trial judge read
    all as every, thus approaching the requirement as a checklist, contrary to
    what the authorities teach. Steps that are not reasonably necessary in the
    circumstances need not be taken.

[42]

The subjective belief of an accused informs but
    is not determinative of the contextual all reasonable steps inquiry under s.
    150.1(4). Here, the trial judges failure to consider the appellants belief in
    L.S.s age resulted in a disproportionate focus on the positive steps taken,
    rather than whether the context required
any
further inquiries. An
    honest belief not based on ignorance, but as here, grounded on L.S.s own
    representation may obviate the need for further inquiry. Indeed, the appellant
    engaged the very inquiry necessitated by the circumstances. His conduct belies
    the states of mind required to establish the fault element in sexual
    interference.

[43]

The respondent disagrees. The Crown rejects any
    suggestion of legal error in the trial judges analysis and conclusion. Admittedly,
    the analysis did not conform to what is now required because the trial judge
    did not have the teachings of those cases to guide him. But once the trial
    judge found that the Crown had proven beyond a reasonable doubt that the
    appellant had not taken all reasonable steps required by the circumstances to
    ascertain L.S.s true age, the appellant was not entitled to rely on the
    mistaken belief in age defence. The appellants conviction, in turn, was
    inevitable.

[44]

In several pages of her factum, the respondent
    articulated her concern with the reasoning of the majority of the Supreme Court
    of Canada in
R. v. Morrison
, 2019 SCC 15, [2019] 2 S.C.R. 3. The
    purpose of this critical analysis, she indicated, is to preserve a right of
    appeal to the Supreme Court of Canada on this basis. These submissions are best
    left to another place, at another time.

[45]

When s. 150.1(4) is properly interpreted, the
    respondent contends, the subsection does not overlay a discrete mistaken belief
    in age defence on top of a fault element with respect to age for offences
    involving sexual activity with children. Instead, the
mens rea
component requires the Crown to prove beyond a reasonable doubt the absence of
    a reasonable mistaken belief with respect to the complainants age. However,
    even accepting that disproof of a mistaken belief of age is an inquiry distinct
    from that involving proof of the elements of an offence, negating mistaken
    belief in age to the extent of reasonable doubt is tantamount to proof of the
    culpable mental state required for offences such as sexual interference. A
    conviction of that offence is inevitable.

[46]

The all reasonable steps requirement in s.
    150.1(4) obliges an accused who advances a mistaken belief in age defence to
    have exercised the same degree of care in ascertaining a complainants age that
    a reasonable person would exercise in equivalent circumstances. This inquiry is
    a highly contextual, fact-specific exercise. It includes both objective and
    subjective components. When the Crown proves beyond a reasonable doubt that an
    accused did not take all reasonable steps to ascertain the complainants age,
    the defence of mistaken belief in consent is no longer available for the trier
    of fact to consider.

[47]

Although rejection of the mistaken belief
    defence in s. 150.1(4) and the nature of the fault element required in respect
    of the age-specific sexual offences remain closely associated, the fault
    element must be defined in terms of the accuseds state of mind. The fault
    element in s. 151 includes actual knowledge or belief and wilful blindness. But
    it also extends to recklessness, that is to say, an awareness of some level of
    risk and a determination to proceed despite that risk. An accused who decides
    to proceed with sexual activity with an underage complainant after adverting to
    the possibility that the complainant was underage, is reckless with respect to
    the complainants age, even if the risk that the complainant is underage is
    low. Where an accused cannot rely on his evidence about mistaken belief in age
    because he has not taken reasonable steps to ascertain the complainants age,
    no reasonable doubt can arise with respect to proof of the fault element of the
    offence.

[48]

In this case, the respondent argues, the
    appellant did advert to the question of L.S.s age. If the trial judge
    correctly concluded that the appellant failed to take all reasonable steps in
    the circumstances as he knew them, then he cannot rely on the defence of
    mistaken belief and his claim in that respect is of no legal effect. The trial
    judge made no error in his all reasonable steps analysis. The appellant was
    properly convicted.

The Governing Principles

[49]

The principles that control our decision are of
    recent origin. They differ from those applicable when the trial judge rendered
    his decision.

[50]

The principles at work have to do with the
    essential elements of the offence of sexual interference; the mistaken belief
    in age defence in s. 150.1(4); and the combined effect of these principles in
    the circumstances of this case. Those circumstances include two findings of
    fact made by the trial judge:

i.

that the appellant honestly believed L.S. was
    18; and

ii.

the appellant failed to take all reasonable
    steps to ascertain L.S.s age as required by s. 150.1(4) of the
Criminal
    Code
.

The Offence Charged: Sexual Interference

[51]

The appellant was charged with sexual
    interference, an age-specific offence created by s. 151 of the
Criminal
    Code
prohibiting defined sexual conduct with a prescribed class or group
    of persons. To establish this offence in the circumstances of this case, the
    Crown had to prove beyond a reasonable doubt:

i.

L.S. was under 16;

ii.

the appellant touched L.S.; and

iii.

the touching was for a sexual purpose.

[52]

Like the cognate offence of invitation to sexual
    touching in s. 152, the language of the section creating the offence of sexual
    interference says nothing expressly about the
mens rea
requirement or
    fault element as it relates to an accuseds belief about the age of the
    complainant: see
R. v. Carbone
, 2020 ONCA 394, 150 O.R. (3d) 758, at
    para. 67. See also
R. v. B.J.T
., 2019 ONCA 694, 378 C.C.C. (3d) 238,
    at para. 37.

[53]

The language in s. 151 does
not
track
    the formula expressed in s. 172.1(1) requiring that the complainant be a
    person who is, or who the accused believes is,  under a specified age: see
Carbone
,
    at paras. 98-99. Thus, the fault element in s. 151 would appear to be the
    intention to touch the body of a person under 16 with a part of the accuseds
    own body for a sexual purpose.

Mistaken Belief in Age: Section 150.1(4)

[54]

Section 150.1(4) applies to the sexual
    interference offence of s. 151. Section 150.1(4) refers to a defence and
    imposes restrictions upon its availability. The defence, absent the statutory
    restrictions, has its roots in the common law which permit a defence of mistake
    about an essential element of an offence requiring proof of
mens rea
. The
    section precludes the defence of an honest but mistaken belief that the complainant
    was at least 16 years old unless the accused took all reasonable steps to
    ascertain the complainants age. A similar statutory provision appears in s.
    172.1(4) which, like s. 150.1(4), forecloses the defence where the claim is
    entirely devoid of an objective basis:
Morrison
at para. 45;
Carbone
,
    at para. 67.

[55]

Substantive defences like s. 150.1(4) have
    implications for the burden of proof. An evidentiary burden is imposed on the
    accused. A persuasive burden on the Crown. The threshold evidentiary burden on
    the accused is to adduce evidence sufficient to give the defence an air of
    reality:
Morrison
, at paras. 84, 118;
R. v. Levigne
, 2010 SCC
    25, [2010] 2 S.C.R. 3, at para. 32(3); and
Carbone
, at para. 129. This
    requires the introduction of evidence that would permit the trier of fact to
    find that the accused believed the complainant was the required age and took
    all reasonable steps to determine the complainants age:
Morrison
, at
    paras. 119-120;
Carbone
, at para. 129. This is consistent with general
    principles:
R. v. Cinous
, 2002 SCC 29, [2002] 2 S.C.R. 3, at paras. 2,
    50-54.

[56]

Where an accused fails to meet the evidentiary
    burden under s. 150.1(4), the defence available under that section fails
in
    limine
in accordance with general principle. However, where the
    evidentiary burden is met, the defence is in play and becomes available for the
    trier of fact to consider in accordance with its terms. Once the defence is in
    play, the burden settles upon the Crown to negate the defence for which the
    subsection provides. This too accords with general principle, except for those
    few defences where the legal burden also falls upon the accused.

[57]

Where the defence of s. 150.1(4) is in play, the
    Crown may negate it in either of two ways. The Crown may prove that the accused
    did not honestly believe that the complainant was at least 16 years old at the
    time of the alleged offence. Or the Crown may prove that, despite the accuseds
    claim that they honestly believed that the complainant was at least 16, the
    accused did not take all reasonable steps to ascertain the complainants age:
Morrison
,
    at para. 88;
Carbone
, at para. 118. See also
R. v. Saliba
,
    2013 ONCA 661, 304 C.C.C. (3d) 133, at paras. 26-28;
R. v. Duran
, 2013
    ONCA 343, 306 O.A.C. 301, at para. 51.

[58]

The all reasonable steps analysis required
    under s. 150.1(4) is highly contextual and fact specific. As a general rule,
    the more reasonable an accuseds perception of the complainants age, the fewer
    steps required of the accused to satisfy the standard of diligence imposed:
R.
    v. George
, 2017 SCC 38, [2017] 1 S.C.R. 1021, at para. 9.

[59]

Some steps are of no avail in the all
    reasonable steps analysis. The sexual activity itself cannot be summoned in
    support because the steps must precede the activity which forms the subject matter
    of the charge. Equally unavailing are steps taken
after
the alleged
    interference, although these steps may have purchase on an assessment of the
    credibility and reliability of a witness. The steps must precede the conduct in
    issue:
George
, at paras. 18-21.

[60]

Reasonable steps are steps that a reasonable
    person would take, in the same circumstances known to the accused at the time,
    to ascertain the complainants age. The reasonable steps requirement includes
    both objective and subjective elements. The steps, viewed objectively, must be
    reasonable. And the reasonableness of those steps must be asserted in the
    circumstances known to the accused:
Morrison
, at para. 105.

[61]

Reasonable steps are steps that provide
    information reasonably capable of supporting an accuseds belief that the
    complainant is of legal age. In other words, the steps must be meaningful.
    Steps that solicit information that does not reasonably support a belief in
    legal age are not reasonable steps. Relevant considerations include not only
    the nature of the steps themselves, but also the information that those steps
    solicit. The steps need not always be active. However, where the early steps of
    an accused could reasonably support a belief that the other person is of legal
    age, but later events raise red flags that the other person may not be of
    legal age, additional steps may be required to meet the standard of s.
    150.1(4):
Morrison
, at paras. 106-109.

[62]

There is no magic number or exhaustive list of
    steps that an accused must take to satisfy the all reasonable steps
    requirement in s. 150.1(4). A practical, common sense approach should prevail,
    informed by the overarching purpose of the provision  to protect vulnerable
    young people from sexual crimes by assigning responsibility for preventing
    adult/youth sexual activity on adults. And by an enhanced standard. Not simply
    reasonable steps, but all reasonable steps to ascertain the age of the
    complainant.

Section 150.1(4) and Proof of Guilt

[63]

Where a substantive defence to a charge is in
    play, but disproved by the Crown, the consequences for proof of the essential
    elements of the offence vary. To illustrate what I mean, consider the offence
    of second degree murder and the defences of self-defence, alibi, and
    provocation.

[64]

When the Crown disproves a defence of
    self-defence that is advanced as the sole defence to a charge of second degree
    murder, the Crown has established an essential element of the offence  an
    unlawful killing  but not the offence itself. This is because rebuttal of the
    defence says nothing about proof of the fault element in second degree murder.

[65]

Where an accused advances a defence of alibi and
    the Crown disproves it beyond a reasonable doubt, the effect is of no
    consequence to proof of any essential element of second degree murder. It does
    not establish the accuseds presence when and where the offence was committed,
    only that they were not elsewhere as they claimed.

[66]

Where the Crown proves beyond a reasonable doubt
    that the accused was not acting under provocation, the effect is that the
    accused committed murder. This is because provocation only enters the picture
    when murder has been proven. When provocation is negated, murder remains
    proven.

[67]

Where the defence of honest belief in age is in
    play in a prosecution for sexual interference and the Crown proves beyond a
    reasonable doubt that the accused did not take all reasonable steps to
    ascertain the complainants age, this means that the defence is unavailing. But
    it does not mean that, on this basis alone, the offence charged has been proven
    beyond a reasonable doubt. Whether the offence charged has been so proven
    depends on whether the trier of fact concludes that the Crown has proven beyond
    a reasonable doubt that the accused believed that the complainant was underage:
Morrison
, at para. 129.

[68]

Where the Crown has disproven the honest belief
    in age defence in s. 150.1(4), the trier of fact is left with three possible
    states of mind. The accused may have believed or have been wilfully blind to
    the fact that the complainant was under 16. The accused may have appreciated
    that there was a risk that the complainant was under 16 but decided to go ahead
    anyway despite that risk. Or the accused may never have adverted to the
    complainants age and chose to proceed with the touching:
Carbone
, at
    para. 122.

[69]

The fault element under s. 151 may be proven by
    establishing that the accused believed that the complainant was under 16, or
    that the accused was wilfully blind to the fact that the complainant was under
    16. The Crown may also establish the fault element by proving beyond a
    reasonable doubt that the accused believed that there was a risk that the complainant
    was under 16, but went ahead anyway, choosing to do so despite the risk. In
    other words, the accused was reckless as to the complainants true age. And the
    Crown may also demonstrate that the accused never turned their mind to the
    complainants age as they proceeded. This too may establish recklessness on the
    accuseds part with respect to the complainants age. Reckless indifference is
    a subjective state of mind bespeaking a choice on the part of an accused to
    treat the complainants age as irrelevant and to assume the risk associated
    with their choice:
Carbone
, at paras. 123, 126-127.

[70]

As
Carbone
teaches, the fault element
    of recklessness is subjective. It involves the appreciation of some level of
    risk coupled with the conscious decision to take that risk. Under s. 151, an
    accused who chooses to proceed with the activity the section prohibits  sexual
    activity with young persons  after having adverted to the possibility that the
    complainant was underage, will inevitably be found to have been reckless with
    respect to the complainants age:
Carbone
, at para. 125. So too, at
    least in most cases, indifference to the complainants age, a state of mind
    that reflects a positive choice by an accused to treat the complainants age as
    irrelevant to their decision to engage in the sexual activity:
Carbone
,
    at paras. 126-127.

The Principles Applied

[71]

I would not give effect to this ground of
    appeal. To explain why, I begin with some background.

[72]

At trial, several circumstances were
    uncontroversial. The sexual activity which the appellant and L.S. participated
    took place within the time period alleged in the indictment and amounted to the
    external circumstances or
actus reus
of the offences charged. The
    appellant touched the body of L.S. with a part of his own body. The touching
    was for a sexual purpose. L.S. was 15.

[73]

The defence the appellant advanced at trial was
    that he honestly believed that L.S. was 18, thus not under 16 as the
    offence-creating provision requires, and that he had taken all reasonable steps
    in the circumstances as he knew them to ascertain L.S.s age. In other words,
    the appellant had satisfied all the requirements of s. 150.1(4) of the
Criminal
    Code
.

[74]

In his reasons for judgment, the trial judge
    made two findings of fact upon which he rested his decision that the Crown had
    proven the appellants guilt beyond a reasonable doubt. He found that the
    appellant honestly believed that L.S. was 18 and would have made the same
    finding even if the appellant had to establish this fact beyond a reasonable
    doubt. The trial judge also found that the Crown had proven beyond a reasonable
    doubt that the appellant failed to take all reasonable steps the circumstances
    required to ascertain L.S.s true age. On the basis of the then existing
    authorities, these two findings together established the appellants guilt of
    both offences charged.

[75]

We now know that this reasoning, which treats
    the failure to take all reasonable steps to ascertain a complainants age as a
    discrete pathway to conviction, is erroneous. This is because this reasoning
    fails to take into account the fault element the Crown is required to prove in
    cases of sexual interference where the mistaken belief in age defence of s.
    150.1(4) has failed for want of all reasonable steps.

[76]

To establish the requisite fault element in the
    circumstances of this case, the Crown had a suite of options. Actual belief
    that L.S. was under 16. Wilful blindness as to whether L.S. was under 16. And
    recklessness, either through the appellants appreciation of the risk that L.S.
    was under 16 and proceeding anyway in spite of that risk, or in never turning
    his mind to L.S.s age.

[77]

This court has indicated that this additional
    step  assessing the adequacy of the proof of the fault element  will have
    little practical effect on verdicts rendered on the basis of the former
    alternative pathway analysis. This is so because removal of the positive belief
    that the complainant was the required age, in tandem with recklessness as a
    basis for a finding of
mens rea
, will leave little room for a
    conclusion other than that an accused was, at minimum, reckless as to the
    complainants true age:
Carbone
, at para. 130.

[78]

Whether the result would have been the same
    under the additional step now required in the
mens rea
analysis under
    the alternative pathway approach, which this court has said is likely to be the
    case in the majority of instances, will turn largely on the trial judges
    analysis of the failure of the accused to take all reasonable steps to
    determine the age of the complainant.

[79]

In this case, the trial judge likened the
    analysis required as akin to an inquiry into the exercise of due diligence.
    There was no checklist of factors dipositive of the issue. The benchmark was
    what steps a reasonable person in equivalent circumstances would have
    undertaken to determine the complainants age. The analysis was highly
    contextual and fact specific. The trial judge then listed the factors upon
    which the appellant relied and rejected the submission that they met the
    standard required by s. 150.1(4). He concluded that the appellant essentially
    accepted L.S.s statement about his age without further meaningful inquiry.

[80]

Here, contrary to the position advanced by the
    appellant, the trial judge specifically rejected a checklist approach to the
    issue framed by s. 150.1(4). He did not require a standard of perfection. The
    offences charged were complete within minutes of the first actual meeting
    between the parties. The appellant relied on what L.S. had said on his Grindr
    profile and in their chats. He well knew that things were not as advertised on
    Grindr. Account holders lied about many things. Their identity. Their age, as
    he did himself. The age gap between the parties was three decades. This is not
    a case where L.S.s physical appearance showed him to be clearly of age. The
    appellant had no external benchmarks against which to test L.S.s
    representation about his age. He made no request for identification, simply took
    L.S. at his word and made unwarranted assumptions.

[81]

In the circumstances of this case, I am
    satisfied that, had he had the benefit of the later authorities, the trial
    judge would have reached the same conclusion. The trial judge rejected the
    single defence advanced, that is to say, that the appellant honestly believed
    L.S. was over 16 when the sexual activity prohibited by s. 151 took place. The
    rejection was grounded on the appellants failure to take all reasonable steps
    to ascertain L.S.s true age. This rejection took the appellants claim that he
    believed L.S. was at least 16 out of the evidentiary mix. This rejection, on
    these facts, left only two possibilities.
Either the
    appellant actually knew or was wilfully blind as to whether L.S. was under 16,
    or that he was reckless about L.S.s true age
. Either is sufficient to
    establish the
mens rea
required by s. 151.

Ground #2: Misapprehension of Evidence

[82]

The appellant urges a second ground of appeal.
    He says that the trial judge misapprehended evidence that was material to the
    finding of guilt. This misapprehension provided context to the reasonableness
    of the appellants inquiries and his perception of L.S.s appearance. It was thus
    important to the all reasonable steps analysis under s. 150.1(4) that led the
    trial judge to reject the only defence put forward at trial.

The Essential Background

[83]

The misapprehensions in this case include a
    mistake about the substance of evidence and the failure to consider evidence
    about L.S.s representation that he was 18.

The Online Dating Profile

[84]

In his online dating profile on Grindr, L.S. indicated
    he identified as a twink, a younger gay man who had a boyish look. Briefly, a
    boyish gay man. This attracted plenty of attention on Grindr from older men.

[85]

In examination-in-chief, the appellant testified
    that on Grindr L.S. also associated himself with an older guy tribe.
    Selection of a tribe indicated a persons preference of what he liked, things
    of interest to the account holder.

The Age Representation

[86]

As he began his relationship with the appellant
    and Steven, L.S. represented himself as 18.

[87]

In cross-examination, it was suggested to L.S.
    that when he met others in person, they accepted or appeared to accept that he
    was 18. He agreed. He was not asked and gave no evidence about having or using
    fake identification documents describing his age as 18. No submissions were
    made about him having or using fake identification.

The Reasons of the Trial Judge

[88]

In his written reasons, the trial judge referred
    to evidence that on his Grindr profile, the appellant indicated his interest in
    two tribes: The

twink tribe (being younger-looking
    men) and another tribe, being older men.

[89]

The trial judge made no reference to any evidence
    about the appellant being accepted by others as older than his true age or his
    possession or use of false identification.

The Arguments on Appeal

[90]

In brief submissions on this issue, the
    appellant contended that the trial judge was in error about the substance of
    the evidence about the online Grindr profile of L.S. His designation of the
    tribe twink did
not
indicate his interest in younger men, as the
    trial judge recounted it, but that he was someone who had a youthful
    appearance. This misapprehension was material because it provided further
    context to the reasonableness of the appellants inquiries and his perception of
    L.S.s appearance.

[91]

In addition, the appellant says that the trial
    judge failed to consider evidence that others accepted that the complainant was
    18 and that he had used fake identification in the past. This evidence
    indicated that the appellants failure to cross-examine L.S. about his age or
    to ask for identification were unlikely to produce any truthful response about
    his actual age. It follows that the appellants failure to do so should not
    have tolled against him in the all reasonable steps analysis
.

[92]

The respondent demurs. There was no
    misapprehension of evidence, in either sense advanced by the appellant,
    material to the reasoning process that led to the findings of guilt. This is a
    stringent test. The misapprehension must be an essential, rather than
    peripheral, part of the reasoning process leading to the finding of guilt. For
    it to amount to a miscarriage of justice, the misapprehension must leave the
    balance of the reasoning on shaky ground when struck from the determination of
    guilt.

[93]

First, the respondent submits, the trial judge
    was not mistaken about the substance of the evidence about the twink tribe
    selected on L.S.s Grindr profile. L.S. explained its meaning. The tribe twink
    referred to younger gay men. This comported with his youthful appearance and reinforced
    his later representations that he was 18.

[94]

Second, the trial judges failure to refer to
    evidence that others accepted that L.S. was 18, including others on Grindr such
    as Steven, was of no consequence to the trial judges findings of guilt. Neither
    was it of consequence that the trial judge failed to refer to evidence that
    L.S. had apparently used or tried to use fake identification, and thus might
    have done so if asked by the appellant for identification. None of these steps
    were taken by the appellant.

The Governing Principles

[95]

The principles governing appellate review of
    claims of misapprehension of evidence are well established in our
    jurisprudence.

[96]

A misapprehension of evidence includes a mistake
    about the substance of evidence, a failure to consider evidence relevant to
    decide a material issue, or a failure to give proper effect to evidence:
R.
    v. Morrissey
(1995), 22 O.R. (3d) 514 (C.A.), at pp. 217-218.

[97]

For a misapprehension of evidence to vitiate a
    conviction on the ground of a miscarriage of justice, the misapprehension must
    have to do with the substance of the evidence, not merely its details. The
    misapprehension must be material, not merely peripheral, and the error must
    play an essential part in the reasoning process leading to conviction, not just
    in the narrative of the judgment:
R. v. Lohrer
, 2004 SCC 80, [2004] 3
    S.C.R. 732, at para. 2. An error in the assessment of evidence amounts to a
    miscarriage of justice only if striking it from the judgment leaves the reasoning
    leading to the finding of guilt on shaky ground:
R. v. Sinclair
, 2011
    SCC 40, [2011] 3 S.C.R. 3, at para. 56.

The Principles Applied

[98]

In my respectful view, this ground of appeal
    fails. As I will explain, the claims of misapprehension advanced here, whether
    considered individually or in combination, simply do not ascend to the
    stringent threshold required to warrant our intervention.

[99]

First, the evidence about L.S.s Grindr profile.

[100]

The reasons of the trial judge include two references to the
    tribes included in L.S.s Grindr profile. Each refers to twink and another
    tribe with interest in older men. The profile itself was not tendered or filed
    as an exhibit.

[101]

The initial reference to another tribe, being older men appears
    under the heading Background. This is a narrative part of the judgment. It
    informs no part of the reasoning process leading to conviction. The second
    reference is contained in a summary of the appellants testimony at trial,
    recounting the factors upon which the appellant relied on to found his belief
    that L.S. was 18. The reference is faithful to the appellants testimony that
    the designation of a tribe reflected the account holders sexual preferences,
    things that youre interested in.

[102]

To the extent that the submission about misapprehension of evidence
    is grounded on a mistake about the substance of this evidence, the argument
    fails.

[103]

Nor am I persuaded that the omission of references to the acceptance
    by others of L.S.s representations that he was 18, or that he had used fake
    identification in the past, contaminated the judges conclusion that the
    appellant failed to take all reasonable steps to ascertain L.S.s true age.

[104]

The evidence was of doubtful admissibility  at least to the extent
    that it consisted of a witness reporting what others had said about acceptance
    of L.S.s age-related representations as evidence of actual acceptance, or L.S.s
    possession or use of false identification. It would appear to offend the
    hearsay rule and fall well short of admission by exception. Even received as
    non-hearsay, there was no evidence that it formed part of the appellants
    consideration. Similar admissibility concerns emerged when L.S. was asked in
    cross-examination whether others accepted that he was 18. That they did so was
    scarcely something about which he could testify, all the more so when the
    circumstances of such acceptance were not disclosed.

Disposition

[105]

For these reasons, I would dismiss the appeal.

Released: MJF August 24, 2021

David Watt J.A.

I agree. Fairburn J.A.

I agree. Grant Huscroft J.A.


