Court of Appeal

Nova Scotia Court of Appeal

Citation: R. v. Stones, 2024 NSCA 68

Date: 20240712

Docket: CAC 527225

Registry: Halifax

Between:

Andrew Thomas Stones

Appellant

v.

His Majesty the King

Respondent

 

Judge:	The Honourable Justice Carole A. Beaton
Appeal Heard:	June 3, 2024, in Halifax, Nova Scotia
Subject:	Burden of proof; Criminal; Criminal – evidence; Criminal – mistaken belief in age; Criminal – sexual assault; Evidence - misapprehension; Reasons – sufficiency of reasons; Sexual assault; Verdict - reasonableness.
Statute Considered:	Criminal Code, RSC 1985, c. C-46; s. 150.01(4)
Cases Considered:	R. v. George, 2017 SCC 38; R. v. Preston, 2022 NSCA 66; R. v. Dinardo, 2008 SCC 24; R. v. Chambers, 2023 NSCA 29; R. v. Bou-Daher, 2015 NSCA 97; R. v. R.E.M., 2008 SCC 51; R.v. Tayo Tompouba, 2024 SCC 16; R. v. Clement, 2023 ONCA 271; R.v. W.G., 2021 ONCA 578; R. v. Hadvick, 2024 YKCA 2; R. v. Hason, 2024 ONCA 369; R.v. Chapman, 2016 ONCA 310; R.v. Angel, 2019 BCCA 449.
Summary:	The appellant was convicted of sexual assault contrary to s. 271 of the Criminal Code.  He engaged in sexual intercourse with a 15 year old female whom he believed to be 16.  The trial judge applied s. 150.1(4) of the Criminal Code to assess the appellant’s defence he had taken all reasonable steps to ascertain the victim’s age. On the subjective component, the judge accepted the appellant mistakenly believed the victim was 16. On the objective component, the judge did not accept the appellant had taken “all reasonable steps”.  The judge was satisfied the Crown had met its burden to establish beyond a reasonable doubt that the appellant had not taken all such steps.
Issues:	(1)          Did the judge furnish reasons sufficient to permit appellate review? (2)          Did the judge misapprehend the evidence, leading to a miscarriage of justice? (3)          Did the judge’s application of s. 150.1(4) of the Code lead to an unreasonable verdict?
Result:	(1)          The judge’s reasons are sufficient to permit appellate review, and allow the appellant to understand why he was convicted. (2)          The judge did not materially misapprehend the evidence.  Where the evidence was open to more than one interpretation, hers was one available on the evidence put before her. (3)          The verdict was not unreasonable.  The judge’s application of s. 150.1(4) is entitled to deference.   The judge did not commit any of the errors argued by the appellant.  The appeal from conviction is dismissed.

Nova Scotia Court of Appeal

Citation: R. v. Stones, 2024 NSCA 68

Date: 20240712

Docket: CAC 527225

Registry: Halifax

Between:

Andrew Thomas Stones

Appellant

v.

His Majesty the King

Respondent

 

 

Judges:	Wood, C.J.N.S., Beaton and Gogan, JJ.A.
Appeal Heard:	June 3, 2024, in Halifax, Nova Scotia
Held:	Appeal dismissed, per reasons for judgment of Beaton, J.A.; Wood, C.J.N.S. and Gogan, J.A. concurring
Counsel:	James M. C. Giacomantonio, for the appellant Timothy O’Leary, for the respondent

 

 

Order restricting publication - sexual offences

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, 160, 162, 163.1, 170, 171, 171.1, 172, 172.1, 172.2, 173, 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 from time to time before the day on which this subparagraph comes into force, if the conduct alleged would be an offence referred to in subparagraph (i) if it occurred on or after that day; or

(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).

Mandatory order on application

(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.

Victim under 18 - other offences

(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.

Mandatory order on application

(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.

 

Reasons for judgment:

 

[1]             Under Canadian law, it is illegal for an adult to engage in sexual activity with anyone under 16 years of age, with certain narrow exceptions.  None of those exceptions applied to the appellant Mr. Stones when he hooked-up[1] with E.N., whom he believed to be 16.  She was only 15.  Five years later, E.N. complained to police.  The appellant was eventually convicted of sexual assault contrary to section 271 of the Criminal Code, RSC 1985, c. C-46 (the “Code”).

 

[2]             The appellant now appeals from conviction.  For the reasons that follow, I would dismiss the appeal.

 

          Background

 

[3]             The appellant and E.N. met one summer through an online dating app.  Over several days they exchanged messages and photos.  They agreed on a time to meet.  On the appointed evening, she arrived unexpectedly at his place of work, several hours prior to their pre-arranged meeting time.  He recognized her from her photos.  She waited for him to finish his shift and as had been planned, he picked her up at a nearby coffee shop around 1 a.m. He drove them to his apartment, where consensual sexual intercourse eventually took place.  The next morning, he drove her home.  Approximately one year later he saw on Facebook she was then celebrating her 16^th birthday, negating his earlier belief she was already 16 at the time of their encounter.

 

[4]             A trial was held before Judge Claudine MacDonald of the Provincial Court (“the judge”) in June and November of 2022.  E.N. testified she was born in 2000.  She was adamant she had met the appellant during the summer of 2014, when she was 14 years of age, through the dating app “MeetMe”.  She confirmed she had misrepresented her age in order to access the dating app, because it was restricted to those over 18 years of age.  In the app she created her profile, in which she falsely identified herself as being 16 years old.

 

[5]             E.N. described the details of planning for and meeting with the appellant, from their online communications through to the sexual intercourse at his home.  The judge commented the parties’ evidence was “materially consistent” one with the other.  Each had testified to their pre-meeting communications, their in-person meeting, the drive to his residence, their mutual expectation sexual activity would occur, their discussion about the appellant’s apprenticeship as a tattoo artist (the significance of which will be later discussed in more detail) and their respective descriptions of the sexual activity.

 

[6]             E.N.’s evidence mirrored that of the appellant concerning most details, with two exceptions.  He testified the parties had met over a different dating app, “Tinder” during the summer of 2015.  He anchored that evidence to his absence from the province during the summer of 2014.  The judge determined E.N. was “mistaken” about the year in which the events had taken place.  She accepted the appellant’s evidence about their use of Tinder and the ensuing events having occurred in 2015, when E.N. was 15.

 

[7]             The judge also accepted the evidence of the appellant and his witnesses that, contrary to details E.N. had provided about interacting with a pet dog in his home, there had never been a dog in his home.  The judge noted overall “concerns about E.N.’s reliability as a witness”.

 

[8]             The appellant’s defence at trial was that he mistakenly believed E.N. was 16 at the time they had sex, despite having taken steps to ascertain her age.  In facing the s. 271 charge, his evidence and submissions were directed at demonstrating he had complied with s. 150.1(4) of the Code, which provides:

 

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.

 

[Emphasis added]

 

[9]             This provision makes clear that Parliament has placed the critical burden to ascertain age firmly on the shoulders of the adult, with no role for the underage person in the formulation or execution of “all reasonable steps”.

 

[10]         As in all cases where a s. 150.1(4) defence is advanced, the burden rested with the Crown to prove beyond a reasonable doubt the appellant had not taken all reasonable steps to ascertain E.N.’s age before engaging in sexual activity.  In R. v. George, 2017 SCC 38 the Supreme Court of Canada explained:

 

[8]        … 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). …

 

[9]        … Determining what raises a reasonable doubt in respect of the objective element is a highly contextual, fact-specific exercise. … In some cases, it may be reasonable to ask a partner’s age. It would be an error, however, to insist that a reasonable person would ask a partner’s age in every case. … Conversely, it would be an error to assert that a reasonable person would do no more than ask a partner’s age in every case, given the commonly recognized motivation for young people to misrepresent their age. … Such narrow approaches would contradict the open-ended language of the reasonable steps provision. That said, at least one general rule may be recognized: the more reasonable an accused’s perception of the complainant’s age, the fewer steps reasonably required of them. This follows inevitably from the phrasing of the provision (“all reasonable steps”) and reflects the jurisprudence, and academic commentary.

 

[Citations omitted]

 

[11]         At trial it was not disputed, and in her decision the judge accepted the appellant subjectively believed E.N. was 16 when they had contact.  He argued he had taken all reasonable steps to ascertain E.N.’s age.  The judge was not persuaded.

 

[12]         In formulating her reasons, the judge had available to her the appellant’s evidence that it did not occur to him that E.N. might be misrepresenting her age.  The appellant testified that he had:

 

•	relied on E.N.’s Tinder profile stated age of 16;
•	found photos E.N. shared with him on Tinder to be consistent with her stated age of 16;
•	discussed with E.N. that she was going into Grade 11;
•	discussed with E.N., before they met in person, her desire to have a tattoo.  At that time he discussed that if she was between 16 and 18 she would have to secure parental consent;
•	suggested to E.N. they meet face-to-face at lunch time, or for coffee, or when his shift ended.  She wished to meet after his shift ended, after midnight.  He didn’t expect a 14 year old would be “out freely roaming around” at that time of night;
•	considered before they met E.N.’s comment about being nervous about her age and not wanting to “freak him out”, which caused him to confirm with E.N. that she was in fact 16, to which she replied she was;
•	noted when he met E.N. in person that she wore “a bit” of makeup, that she looked her stated age and that she looked consistent with 16 year olds he worked with;
•	noted she had well developed breasts and wide hips; and
•	observed her, with the lights on, in his apartment during the approximate half hour before sexual activity began.

 

[13]         In assessing the Crown’s burden in light of the evidence before her, the judge concluded:

 

What are the steps that were taken? What are the steps? He asked her age. He asked her her age, and he observed her appearance approximately for a half an hour before having sexual ... engaging in sexual activity with her. He had never witnessed her, for example, in a social setting or anything like that, but that ... it's very limited.

And I find that the steps that he took were not reasonable.  Well, in fact, I'm not even sure he took any steps, much less reasonable steps. I'll put it that way. Clearly, the Crown has proven beyond a reasonable doubt that Mr. Stones failed to take all reasonable steps to ascertain the age of the complainant.

 

Issues

 

[14]         The appellant now advances four grounds of appeal, set out in his Notice of Appeal as:

 

1.	The Honourable Trial Judge erred by failing to correctly apply the law concerning Mistake of Age pursuant to s. 150.1(4) of the Criminal Code;
2.	The Honourable Trial Judge erred by unreasonably interpreting the evidence of the Appellant regarding the steps he took to satisfy himself of the age of the complainant in her analysis under s. 150.1(4);
3.	The Honourable Trial Judge erred in law in failing to provide reasons that were sufficiently intelligible on the issues of mens rea to permit appellate review of the decision:
	a.	The Honourable Trial Judge failed to meaningfully apply the evidence to the law from R v. Morrison 2019 SCC 15. As a result, there was a failure of intelligibility as it relates to the critical mens rea analysis.
4.	The trial judge erred by misapprehending evidence.

 

[15]         In his factum and during oral argument, the appellant combined and addressed together Issues 1 and 2.  I will do the same, and I reframe and reorder the issues as follows:

 

1.                 Did the judge furnish sufficient reasons to permit appellate review?

 

2.                 Did the judge misapprehend the evidence, thereby leading to a miscarriage of justice?

 

3.                 Did the judge’s application of s. 150.1(4) of the Code lead to an unreasonable verdict?

 

          Standards of Review

 

[16]         There are several standards of review in play. In R. v. Preston, 2022 NSCA 66, this Court summarized the governing approach on a question of sufficiency of reasons:

 

[65]      The Supreme Court of Canada has repeatedly emphasized that an allegation of insufficient reasons is to be reviewed on appeal using a functional and contextual approach. Reasons must be assessed with reference to the trial record. They must be factually and legally sufficient, explaining what the trial judge decided and why, and enabling a meaningful exercise of the right of appeal.[…]

 

[Emphasis added]

 

[17]         Reasons must respond to the live issues at trial (R. v. Dinardo, 2008 SCC 24 at para. 31).  The reviewing court is required to consider whether the reasons “are sufficient in the context of the case for which they were given” (R. v. G.F., 2021 SCC 20 at para. 68).

 

[18]         The second issue relates to the assertion there was a misapprehension of evidence.  Did the judge misunderstand or misinterpret evidence essential to her legal analysis, thereby leading to a miscarriage of justice?  As recently explained in R. v. Chambers, 2023 NSCA 29:

 

[11]      … As to whether the judge misapprehended the evidence, Mr. Chambers must establish there was a material misapprehension and that it informed the judge’s reasoning.  That misapprehension “must go to a central element of the trial judge’s reasoning on which the conviction is based” and will “amount to a miscarriage of justice only if striking it from the judgement would leave the trial judge’s reasoning on which the conviction is based on unsteady ground” (Sinclair, at para. 56). See also R. v. Delorey, 2010 NSCA 65 at para. 27; Rouse v. Her Majesty the Queen, 2020 NSCA 8 at para. 25.

 

[Emphasis added]

 

[19]         The final issue relates to the judge’s application of s. 150.4(1) of the Code to the facts as she found them, and whether the verdict is unreasonable in light of the evidence the judge accepted.  Is the decision one that a properly instructed judge or jury could reasonably have concluded, not contradicted by or incompatible with the accepted evidence (R. v. Bou-Daher, 2015 NSCA 97 at para. 30 quoting R. v. R.P., 2012 SCC 22)?

 

          Sufficiency of reasons

 

[20]         The judge’s oral, unreported decision may be chronicled as follows.  She first acknowledged the presumption of innocence and the burden of proof.  She then summarized and assessed the evidence of the witnesses, noting where it converged and where it diverged.  That was followed by a discussion of the essential elements of the charge and the evidence to be considered in light of the application of s. 150.1(4) of the Code.  The judge referenced both the subjective component – the appellant’s honestly held but mistaken belief in the victim’s age, and the objective component – whether the appellant took all reasonable steps to ascertain E.N.’s age.  There being no controversy about the appellant’s subjective belief E.N. was 16, the judge then analyzed the evidence in considering the objective component, and included references to applicable jurisprudence.

 

[21]         I am satisfied the judge’s reasons reflect she attended to the issues before her and the defence that was advanced.  Her reasons demonstrate how she reached her conclusions which led to a finding of the appellant’s culpability.  The judge’s reasons do not prevent meaningful appellate review.  To the contrary, they establish the “logical connection between the ‘what’ – the verdict – and the ‘why’ – the basis for the verdict” when assessed “in the context of the evidence, the submissions of counsel and the history of how the trial unfolded” (R. v. R.E.M., 2008 SCC 51 at para. 17).  I would dismiss this argument.

 

          Misapprehension of evidence leading to a miscarriage of justice?

 

[22]         The appellant says the judge misapprehended evidence that informed key aspects of her consideration of whether he had taken all reasonable steps to ascertain E.N.’s age.  This argument centers on two parts of the evidence:  one having to do with the parties’ discussion about tattooing, and the other concerning the appellant’s opportunity to observe E.N.’s physical features before they engaged in sexual intercourse.

 

[23]         The evidence of both the appellant and E.N. was that they had discussed her hope of acquiring a tattoo.  E.N. testified on cross-examination that in their communication prior to meeting face-to-face, she and the appellant had discussed that he was “an apprentice tattooer”, and that she harboured a wish to have a particular tattoo.  E.N. could not recall any of the specifics of the conversation concerning tattoos, even as suggested to her by the appellant’s counsel’s questions.

 

[24]         The appellant testified in some detail about the subject of E.N. acquiring a tattoo:

 

A.                … We talked about tattooing, our mutual attraction for each other, and yeah.  The ... we talked, like I said, about tattoos, that was one thing that kinda gave me an indication of age where she was talking about my apprenticeship and saying how cool it was I was a, you know, a tattoo apprentice and stuff and she told me how she wanted an owl tattoo. I believe at the time she said she wanted it on her side but I don't think she was set on where she wanted it and she was wondering if I could do that for her. And I said well, the conversation came up that since you're 16 you'd have to get your mom to sign for it. I didn't tattoo at my house, I just did ... I wanted to keep talking about, you know, tattoos and her tattoos ideas but I didn't actually want to tattoo her obviously because I wasn't at [L.S.] yet. But I said, you know, if your mom will sign for it, you're 16, you need parental consent and we can talk about it more and she said oh yeah, that shouldn't be a problem, my mom would sign for it.  Again I don't know, at the time, if her mom really would have but that was that and we moved on. …

 

…

 

A.        It was briefly over text I believe the day before and it was just when she brought up that she wanted this tattoo, I said well, 16, 17 and under 18 you have to sign a waiver. You have to sign a waiver anyways for a tattoo but if you're between those ages, you have to get a parent to sign for you, that's the law and if you're younger than that, I believe it's considered like assault or something so I told her if you ... if you can get your mom to sign for you then yeah, it shouldn't be a problem. We can talk more about your ... your ideas.

 

…

 

     A.        I told her that if she wants a tattoo, because she's 16, 16/17-year-olds need to get their mom or dad or parental figure to sign the form for them in their place and if her mom would sign that form because she's 16, she'd be able to get her tattoo and I could keep talking about it but that was the extent of it, we didn't really go further.

 

…

 

            Q.        So that's a question you didn't ask?

 

            A.        What was the question?

 

     Q.        How come your mom hasn't given ... given you permission to get a tattoo yet?

 

            A.        Well, I assumed it was because she didn't get the form yet. She would need the form to sign it.

 

            Q.        Right. She'd need her mom's permission first?

 

            A.        A signed form.

 

            Q.        You didn't say is ... is your mom okay with you getting a tattoo, did you have that conversation?

           

            A.        She said her mom would be okay to sign the form.

 

[Emphasis added]

 

[25]         The appellant argues the judge failed to take from his evidence that he had understood E.N. had parental permission to secure a tattoo, from which he inferred she was over 16.

 

[26]         The judge seized upon this particular evidence as one of the examples of how the appellant had not taken all reasonable steps:

 

            … When E.N. brought up the issue about wanting a tattoo and he was telling her about the ages, 16, 17, and 18, requiring a parent's signature, that would have been an opportunity, for example, to say, Well have you asked your mother or your father or guardian or whoever, anything like that?

 

[27]         The appellant suggests the judge’s comment that he could have asked E.N. whether she had asked a parent for permission demonstrates the judge misunderstood his evidence on the point.

 

[28]         The Crown counters that it is clear the judge concluded the conversation between E.N. and the appellant was ambiguous and should have prompted the appellant to ask E.N. more questions.  The judge was explaining the information the appellant gleaned during the conversation about tattoos was not sufficient, because it was “not the sort of concrete information” he should have been trying to elicit from E.N.

 

[29]         I do not read the judge’s assessment of the tattoo conversation as constituting a mistake.  The appellant’s evidence was that E.N. said her mom “would be okay to sign” the permission form, not that it had already been signed.    The judge concluded that cryptic information was insufficient to allow the appellant to infer from it that E.N. (because she could secure parental permission for a tattoo) was 16.  Such an interpretation was available to the judge on the evidence before her.

 

[30]         The second aspect of the evidence seized upon by the appellant is in relation to the judge’s indication in her reasons that E.N.’s breasts and hips – physical features that would have helped the appellant determine E.N.’s age – were not visible to him until the sexual activity began.  The appellant says the judge was incorrect, as the evidence supports he had ample opportunity to observe physical features.  In particular, he references the evidence of both parties that they had seen photos of one another, they spent time in his vehicle on the way to the appellant’s home, and they talked and watched television for half an hour before sexual activity began.

 

[31]         The appellant asserts this misapprehension is critical, going to the judge’s interpretation of how he synthesized the information available to him regarding E.N.’s age.  The appellant says he was entitled to rely on E.N.’s outward physical sexual development, which was consistent with his belief she was 16, because he had opportunities to observe her before sexual activity began.

 

[32]         While the judge commented on the appellant having “no time to assess” E.N.’s hips and breasts before intercourse began, it was merely that.  I am not persuaded anything turned on it.  I need only observe that elsewhere in her decision, the judge twice noted that the appellant had observed E.N.’s appearance for approximately half an hour before engaging in sexual activity with her.

 

[33]         Read as a whole, the judge’s decision does not support the misapprehensions of evidence the appellant suggests, much less lead to a conclusion of a miscarriage of justice. As the Supreme Court of Canada recently reminded, an assertion of a miscarriage of justice carries a “high bar” (R. v. Tayo Tompouba, 2024 SCC 16 at para. 72).  I do not view either of the examples raised by the appellant to have been material or central to her reasoning process.  The judge was required to “take a holistic, not a piecemeal approach to the evidence” and deference is owed on appeal (R. v. Clement, 2023 ONCA 271 at para. 22).  I would dismiss this ground of appeal.

 

          An unreasonable verdict?

 

[34]         The third issue focuses on the judge’s application of the evidence to reach her determination the Crown had proven beyond a reasonable doubt the appellant failed to take all reasonable steps to ascertain E.N.’s age.  The appellant submits the judge did not consider how the circumstances of the case informed the Crown’s burden.  He argues that from all the information available to him, it was reasonable for him to believe E.N. was 16.  He asks us to conclude the judge did not properly consider as reasonable the steps he took, thus amounting to an error of law.

 

[35]         The appellant illustrates his argument by reference to the judge’s observation that the fact the appellant asked E.N. her age and she told him she was 16 was a “red flag”.  The judge’s view was that information should have caused a heightened uncertainty for the appellant, because he already knew E.N. had lied about her age to access Tinder.  The appellant maintains it is equally plausible to interpret that what he knew, which was that E.N. had misrepresented her age to access Tinder, then permitted him to rely on her “corrected” age on her profile.

 

[36]         I do not disagree the evidence could be open to more than one interpretation, however, that does not render the judge’s view in error.  Again, deference must be shown by this Court.  The judge’s interpretation of the significance of that evidence is not incorrect, despite not being the one the appellant would prefer.  The judge assessed the appellant’s actions from the perspective that his uncovering of one deception was not insurance against another; it was within her purview to interpret the evidence in that manner.

 

[37]         The appellant says the judge did not properly assess whether he had taken all reasonable steps, because the information he had gathered, coupled with E.N.’s appearance when they met in person, supported his conclusion she was 16.  He had no basis to believe she was other than 16, a belief he relied upon to move forward with the sexual activity.  The Crown responds that a person taking all reasonable steps should pursue those that would provide a high level of certainty.  It says because E.N.’s appearance straddled the age of consent, a person in the place of the appellant would not have stopped pursuing inquiries.

 

[38]         Section 150.1(4) arguably leaves narrow scope for a defence advanced pursuant to it, as Parliament has drawn “a bright-line age of protection for children” (R. v. Hadvick, 2024 YKCA 2 at para. 84).  As explained in R. v. W.G., 2021 ONCA 578, the "all reasonable steps" requirement is an "enhanced standard". It requires a "practical, common sense approach", one that is "informed by the overarching purpose of the provision" (para. 62), which is clearly to protect young people by assigning responsibility to ascertain age to the adult. I read the judge's analysis of the appellant's steps as saying that the absence of "external benchmarks" by which the appellant could test E.N.'s representation of her age (W.G. at para. 80) only served to enhance his duty to make further inquiries.

 

[39]         R. v. Hason, 2024 ONCA 369 discusses the onerous nature of the burden upon an adult during steps to ascertain age:

 

[38]      The second element, all reasonable steps, makes adults responsible for preventing adult/youth sexual activity. Assessing this element is challenging because it is contextual and fact-specific. […]

 

[39]      The second element implements Parliament’s protective purpose by setting a high bar: Adults must take all reasonable steps to ascertain the complainant’s age before engaging in sexual activity. Parliament’s choice of the word “all” means what it says: Adults must take all reasonable steps, not merely some. Parliament’s protective purpose drives judges’ assessment of whether adults have met that high bar and favours requiring adults to take more, not fewer steps: George, at para. 2; W.G., at para. 62; R. v. Dragos, 2012 ONCA 538, 111 O.R. (3d) 481 (“Dragos (ONCA)”), at para. 38. This high bar ensures that the “all reasonable steps” element is robust and protects young people as much as reasonably possible: R. v. Hayes, [1991] A.J. No. 1232 (Q.B.), at para. 9.

 

[40]         A judge’s assessment of the reasonableness of an accused’s steps, and that all reasonable steps were taken, will be informed by the context of the circumstances and facts of the particular case (George at para. 9; R. v. Chapman, 2016 ONCA 310 at para. 50).  Whether another judge could potentially have come to a different determination in weighing the same facts, which is the essence of the appellant’s argument, does not drive appellate review.  “A verdict cannot be set aside as unreasonable because a division of this court – without having heard the evidence and observed the witnesses in court…would have reached a different conclusion on the written record” (R. v. Angel, 2019 BCCA 449 at para. 55).  The judge was in the best position to weigh and apply the evidence.  The appellant’s disagreement with her weighing of it does not support a conclusion of legal error by the judge.  I would dismiss this ground of appeal.

 

Conclusion

 

[41]         In summary, the judge’s reasons permit effective appellate review and do not reveal any misapprehension of evidence.  The judge’s verdict was not unreasonable in light of what the record tells us about her application of the facts, as she found them, to the legal issue in play.  On her assessment of the evidence, the judge was satisfied the Crown had discharged its burden to prove the appellant had not taken all reasonable steps. Such a conclusion was available to her and there is no basis upon which this Court should now interfere.

 

[42]         I would dismiss the appeal.

 

Beaton, J.A.

 

Concurred in:

Wood, C.J.N.S.

 

Gogan, J.A.