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| John L. Hill |
The full facts are meticulously laid out in the decisions written by Justice Brian Burrows of the Alberta Court of Queen’s Bench first in the reasons for conviction (R. v. E.F. 2021 ABQB 209) and in his reasons for sentence (R. v. E.F. 2021 ABQB 272). The actus reus was not in issue: All parties conceded sexual intercourse, computer luring and that A.B. was actually 14, the same age as E.F.’s own daughter.
On appeal, E.F. argued that his lack of mens rea (i.e., his belief he was not doing wrong) was shown because A.B. had told other men with whom she had sexual relations that she was 18 and was believed. The Court of Appeal found this to be an evidential argument and the admissibility of evidence to bolster this contention was raised and ruled inadmissible at a voir dire at trial. It would be improper for an appeal court to hear evidence not proffered at the court below in order to overturn a ruling on admissibility.
A more substantial ground of appeal was whether the trial judge erred in believing the complainant when she stated that E.F. knew she was underage. Rather than engaging on an analysis of how the trial judge came to believe the complainant, it was sufficient to accept the Supreme Court of Canada’s finding that an appellate court should defer to a trier of fact’s findings as to credibility and reliability absent palpable and overriding error.
A third ground was raised: Did the trial judge err in failing to consider A.B.’s computer profile stating her age as 18 and E.F.’s failure to recognize that A.B. being a resident of a group home was inconsistent with his considering her to be of age. At trial, evidence put on record that A.B.’s texts to E.F. noted that she be back at her group home by a particular time. These items were canvassed in cross-examination and the trial judge made the rational decision in finding E.F.’s contention he did not know A.B. was underage simply lacked credibility.
The end result was the Court of Appeal dismissing the appellant’s case. The punishment meted out in the Queen’s Bench sentencing stands: four years for sexual interference and 18 months consecutive for the child luring offence. The cumulative sentence amounts to five and a half years in penitentiary. Additionally, E.F. will be subject to ancillary orders including a lifetime SOIRA (registration as a sexual offender) order, a prohibition of visits or contact with A.B, while in custody, a 10-year weapons prohibition, and non-association with persons under 16 for life whether or not for employment purposes.
The unanimous decision of the Alberta Court of Appeal means that E.F.’s life is effectively ruined. The insistence there was a lack of mens rea was clearly the best (albeit the only) option for defence counsel to use in defending E.F.
However, this case demonstrates that, as we become more accustomed to virtual meeting sites and expecting that similar cases will arise, defence counsel would be wise to demonstrate, in the course of presenting the accused before the court, what precautions the accused used to take responsibility to ensure lawful conduct.
John L. Hill practised and taught prison law until his retirement. He holds a J.D. from Queen’s and LL.M. in constitutional law from Osgoode Hall. Contact him at johnlornehill@hotmail.com.
Photo credit / Rattankun Thongbun ISTOCKPHOTO.COM
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