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The Court of Appeal for Ontario allowed the conviction appeal in part, set aside the sexual exploitation-related convictions, ordered a new trial, and upheld the possession sentence.
The Court of Appeal held the trial judge provided sufficient reasons, did not materially misapprehend the evidence and reasonably concluded on the facts she found that the Crown proved beyond a reasonable doubt that the accused failed to take all reasonable steps to ascertain the complainant's age under s.150.1(4), therefore the conviction was upheld.
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El acusado fue sentenciado por agresión sexual a dos años menos un día en la comunidad, con libertad condicional, órdenes de ADN, SOIRA y otras condiciones estrictas.
The appeal is dismissed because the RPD correctly found that Mumbai and New Delhi constitute viable internal flight alternatives: police in those IFAs are not established as agents of harm, state protection is available and adequate on the evidence, and the appellant did not rebut the presumption of protection with clear and convincing evidence or demonstrate that relocation would be unduly harsh.
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The court convicted Peter John Hooper of sexual touching in an exploitative relationship and sexual assault, and acquitted him on the remaining counts.
The Court upheld the trial judge's exercise of discretion to allow the Crown's amendment because the amendment merely articulated an alternate legal label for the same conduct central to the Crown's case and caused no irreparable prejudice to the appellant; the trial judge permissibly relied on A.L.S.'s evidence as circumstantial proof of the family dynamics and the appellant's position of trust; the sentence was varied to reflect that the SOIRA order should run for 20 years (linked to the maximum term of imprisonment) and the mandatory victim fine surcharge was set aside per Boudreault.
Source excerpt
The prosecution proved beyond a reasonable doubt that the accused failed to take all reasonable steps to ascertain the complainants' ages, the accused suspected they were under 16 and proceeded regardless (recklessness), and the electronic photographs and admissions established a sexual purpose for the touching; accordingly the accused is guilty of the s.151 and s.271 offences and breach of probation, with the s.271 convictions conditionally stayed under Kienapple and sentencing adjourned.
Source excerpt
The trial judge's credibility findings were reasonable and supported by the evidence; the appellant did not honestly believe the complainant was at least 16 and, in any event, did not take all reasonable steps to ascertain her age (demonstrating reckless indifference), therefore the s.150.1(4) defence failed and the convictions are upheld.
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The RAD dismissed the appeal and confirmed the RPD: there are serious reasons for considering the appellant committed a serious non-political crime (sexual interference/sexual assault) by engaging in sexual intercourse with a 13-year-old; he did not take 'all reasonable steps' to ascertain age, the Jayasekara factors when balanced support seriousness, mitigating factors were insufficient or extraneous, and thus the appellant is excluded under Article 1F(b) and s.98 IRPA.
Source excerpt
Appeal dismissed. The court rejected a Charter overbreadth challenge to s. 150.1 of the Criminal Code, holding children under 16 cannot consent to sexual activity with adults.
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