Background
P.Q., then 23, offered a 15-year-old girl a place to stay after she had left home. At his basement apartment, they used marijuana and engaged in oral and vaginal sexual activity. Although the complainant alleged that the activity was non-consensual, her evidence left open the possibility that she had communicated consent. The trial judge therefore had a reasonable doubt about consent and about whether P.Q. was honestly but reasonably mistaken regarding consent.
Because the complainant was under 16, the case turned on P.Q.’s asserted mistaken belief about her age. A text sent from the complainant’s phone said she was 16, but the trial judge found that P.Q. had also received contrary information: the complainant’s mother sent him a Facebook message saying her daughter was 15, and the complainant’s friend had told him she was 15. The trial judge found that P.Q. failed to take all reasonable steps to determine the complainant’s age and was at least reckless about it. He convicted P.Q. of sexual assault and sexual interference and imposed a global sentence of three years’ imprisonment.
P.Q. appealed, alleging that the trial judge misapprehended the evidence about when the Facebook message was sent and that trial counsel was ineffective by failing to call his friend, G.F., and by advising him that testifying would not help. He also sought a conditional sentence of two years less one day, relying on proposed fresh psychiatric evidence that he developed PTSD during the three and a half months he spent in custody before obtaining bail pending appeal.
The Court’s Holding
The Court of Appeal dismissed the conviction appeal. The trial judge expressly recognized the conflicting evidence about the Facebook message’s timing and was entitled to accept the complainant’s testimony that P.Q. received it before the sexual activity. Even without that message, the friend’s statement that the complainant was 15 was an independent warning that required further inquiry. The finding that P.Q. failed to take all reasonable steps to ascertain her age was therefore upheld.
The court also rejected the ineffective-assistance claims after admitting the related fresh evidence. G.F. could not identify which of the three possible nights he had spent with P.Q., and his proposed evidence about P.Q.’s intoxication and how the complainant arrived did not address the decisive issue of whether P.Q. took all reasonable steps concerning her age. Trial counsel’s decision not to call G.F., and her assessment that P.Q.’s testimony would not help because he lacked a relevant recollection and faced damaging cross-examination about statements to police, fell within the range of reasonable professional judgment. P.Q. had received sufficient information to make his own informed decision not to testify.
The court granted leave to appeal sentence but dismissed the appeal and declined to admit the proposed PTSD evidence. The three-year penitentiary sentence was fit given the complainant’s age and vulnerability, the vaginal intercourse, and the harm caused. The psychiatric evidence would not likely have changed the result because it did not establish that P.Q.’s condition could not be treated in custody, and a conditional sentence was not proportionate to the gravity of the offences.
Key Takeaways
- An accused relying on mistaken belief in a complainant’s age must take all reasonable steps to determine age; conflicting information that the complainant may be under 16 requires further inquiry.
- An ineffective-assistance claim requires proof of the underlying facts, professionally unreasonable performance, and resulting prejudice that made the trial unfair or the verdict unreliable.
- Fresh medical evidence arising after sentencing will not justify appellate intervention unless it likely would have affected the sentence; medical hardship does not support a conditional sentence where adequate treatment remains available in custody.
Why It Matters
The decision illustrates that merely asking a young person’s age may not satisfy the Criminal Code when an adult later receives credible, conflicting information. Courts assess the “all reasonable steps” requirement practically and in light of every warning available to the accused.
It also reinforces the deference given to reasonable trial strategy and sentencing decisions. Evidence omitted at trial must bear materially on the issue that determined guilt, while post-sentence health evidence must be sufficiently compelling to alter a proportionate sentence emphasizing denunciation and deterrence for sexual offences against children.