oct. 22. 2019

Judge can’t rely on Information to cover for Crown’s case

R. v J.N, 2019 NLCA 65 (CanLII)

J.N. was in a consensual sexual relationship with a 15-year-old. At trial, J.N. was acquitted due to a reasonable doubt that J.N. may have fallen within the Criminal Code exception for consensual sexual activity between someone under the age of 16 and someone who is older than 16, but less than 5 years older that the other party (Criminal Code, section 150.1(2.1)).

The only evidence of the accused’s age came from the mother of the 15-year-old, who was called as a Crown witness. In direct examination, the mother stated that the accused was “like four or five years [older than the 15-year-old].” No follow-up questions on J.N.’s age were asked.

Noting that the burden of proof rested on the Crown to disprove the application of any defence, the Court found that the mother’s evidence was sufficient put the defence into play and trigger the Crown’s onus to disprove the 5-year consent defence.

Given that there was no evidence of J.N.’s age, the Court of Appeal confirmed that the Trial Judge committed no error in finding that there was a reasonable doubt on whether or not the 5-year consent defence applied.

The more interesting aspect of the Crown’s appeal related to what the Trial Judge could have done to address the absence of evidence on the age of the accused.

The Crown argued that the court file contained the original Information, which stated J.N.’s date of birth; presumably, this date of birth would have confirmed that J.N. was more than five years older than the individual they were in a relationship with.

The Court of Appeal accepted that in certain situations, a judge has authority, but not an obligation, to refer to the contents of the court file. This is subject to procedural fairness concerns, which would typically involve a direct request by the Crown for the judge to do so. The request should also be made as part of the Crown’s case, with the defence having a chance to call evidence in response.

While a judge may be able to refer to the court file, the Court of Appeal rejected the notion that the Information can be relied on by the judge, absent consent of both the Crown and the accused.

With the Information similar to the pleadings in a civil matter, the Court found that the Information contains the allegations against an accused, not evidence against an accused.

As such, the Crown appeal was dismissed and the acquittal was upheld.