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| John L. Hill |
Perhaps there are others responsible for the offence not brought before the court. Perhaps the nature of the crime will be considered so reprehensible, the offender will bear the scars far longer than any sentence a court may impose. This appears to be the situation in R. v. Clement 2023 ONCA 271, an Ontario Appeal Court decision handed down on April 18.
John Clement was a 22-year-old looking to go out on a date in June 2018. He used the social media site Tinder to hook up with a woman calling herself “Anne.” The messaging continued on Snapchat. Only then did the person calling herself “Anne” disclose her real name and state she was 19. The two dated over the summer and the get-togethers included sexual contact on five different occasions and the sharing of nude photos. “Anne” was picked up by Clement at her high school wearing a school uniform. Another time she was picked up at her mother’s house. The fact that Anne wore braces did not dissuade Clement from sexual involvement. “Anne” may have misrepresented herself, but Clement was less than candid as well. He did not reveal he was on probation and required to keep the peace and be of good behaviour. On one of her dates, Anne stated she was 18. Should suspicion be raised?
Finally, the truth came out. “Anne” was 13. She texted Clement and confessed her true age. She then attempted suicide. Her mother rummaged through the daughter’s phone contacts, observed the chats and nude pictures, and reported Clement to police. “Anne” admitted to police that she lied to Clement. Clement was also less than truthful with police. At first, he denied knowing “Anne” or having sexual contact with her. In the alternative he argued that he was lawfully mistaken about the young woman’s age.
Clement did not testify at trial fearing the revelation of a probation order, that was entered into evidence on consent, would be treated as establishing bad character. Nonetheless, the trial judge agreed that the Crown had established beyond a reasonable doubt that Clement had not taken all reasonable steps to establish the complainant’s age as the Supreme Court set out in R. v. George 2017 SCC 38.
The Court of Appeal agreed. It held the trial judge should be given deference and was correct in finding Clement should have looked deeper and been more suspicious when he was told a 19-year-old was still in attendance at a Catholic high school, wearing a school uniform and wearing braces while living at home. Obviously, the sex was non-consensual; the complainant was too young to consent. Clement’s conviction was affirmed.
But was justice done? Should the mother not bear some responsibility for ensuring the cell phone was not being used to line up Tinder contacts? After all, the mother was vigilant in looking into the daughter’s contacts after her suicide attempt. Would earlier intervention have prevented such tragedy? Should we require social media to be rigorous in who signs up. A review of Tinder’s website shows the company is aware of underage usage. The website encourages users to block and report underage users. It says, “You know when someone’s crossed the line and when they do, we want to know about it”. Isn’t this too little too late? Should social media companies be regulated such that underage users are banned from signing on?
The Court of Appeal decision was justified and fully in accordance with a rational interpretation of our laws. The fiction that social order is restored carries on. Clement will bear the effects of having to report that he has a criminal record whenever he applies for a job in future because of his overexuberance as a sexually active young male and not using the caution that the law requires of him. He will be punished. But will others be deterred from repeating the same error? As long as society is content with laissez-faire parenting and the absolute right of social media to carry out their unregulated mission, other young women will attempt suicide and other young men’s futures will be destroyed.
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. He is also the author of Pine Box Parole: Terry Fitzsimmons and the Quest to End Solitary Confinement (Durvile & UpRoute Books), which was published Sept. 1. Contact him at johnlornehill@hotmail.com.
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