Nunavunmi Maligaliuqtiit

NUNAVUT COURT OF JUSTICE

Cour de justice du Nunavut

Citation: R. v. Pauloosie, 2021 NUCJ 9

Date: 20210212
Docket: 25-19-25
Registry: Iqaluit

Crown: Her Majesty the Queen

-and-

Accused: Darren Pauloosie

________________________________________________________________________

Before: Madam Justice Charlesworth

Counsel (Crown): T. Buffalo

Counsel (Accused): S. Paddock

Location Heard: Taloyoak, Nunavut

Date Heard: January 15, 2021
Matters: Trial decision on charges under s. 151 of the Criminal
Code of Canada, RSC 1985, c C-46

REASONS FOR JUDGMENT

(NOTE: This document may have been edited for publication)

 2

DISCLAIMER PAGE

Restriction on Publication:

By court order made under section 486.4 of the Criminal Code, “any
information that could identify the complainant or a witness shall not be
published in any document or broadcast or transmitted in any way.”

Anonymized Judgment Disclaimer:

This judgment has been anonymized to comply with legislative

requirements or at the discretion of the authoring Justice to protect
vulnerable parties. Letters have been assigned at random.
 3

I. INTRODUCTION

[1] Darren Pauloosie was charged with four counts of touching for a
sexual purpose the body of AA, a person under the age of sixteen
years in January and February 2017.

[2] The Crown proceeded by indictment and his trial was held before me
in the Hamlet of Taloyoak in January 2021.

[3] Mr. Pauloosie admitted to having sex four times with AA in January
and February 2017 when he was 20 and she was 12 years old. In
each case, Mr. Pauloosie invited AA to his house over Facebook
Messenger late at night.

[4] The only live issue at trial was whether Mr. Pauloosie had an honest
but mistaken belief that AA was at least 16 years of age when the
sexual encounters took place. This being the case, s. 150.1(4) of the
Criminal Code applies. It provides as follows:

150.1(4) It is not a defence to a charge under section 151 … that the

accused believed that the complainant was 16 years of age or more
at the time the offence is alleged to have been committed unless the
accused took all reasonable steps to ascertain the age of the
complainant.

[5] The ages of the accused and complainant at the material time were
not in dispute. Nor was it contested that Mr. Pauloosie and AA had
sex four times in the early months of 2017. The finding of guilt or
innocence thus rests upon whether the Crown has proven that Mr.
Pauloosie was reckless as to the age of AA before they had sex.

[6] The Defence argues that Mr. Pauloosie had an honest, though
mistaken, belief that AA was over 16 because:

• AA was physically bigger than him and was trying to make him
believe she was 16 or 17;
• AA went alone to his residence late at night;
• AA associated with an older friend, who he thought to be 16 or 17
years of age;
• He never saw AA with parents or siblings or younger people; and
• AA was in a different grade than him at school.
 4

[7] The Crown’s position was that Mr. Pauloosie knew very little about AA
and based his view of her age on physical appearance and her
behaviour in coming to his house late at night. The Crown’s position
was that these considerations do not constitute taking all reasonable
steps to ascertain AA’s age prior to engaging in sexual relations.

II. ANALYSIS

[8] For anyone to be guilty of a criminal offence, they must commit an

unlawful act with a guilty mind. The Crown always has the burden of
proving the unlawful act and the guilty mind beyond a reasonable
doubt.

[9] The unlawful act in this case has been proven beyond a reasonable
doubt: Mr. Pauloosie on four occasions had intercourse with AA, who
at the time was a person under the age of 16. Because AA was in fact
under the age of 16, her consent to the offences is irrelevant
according to s. 150.1(1) of the Criminal Code.

[10] The Crown must next prove that Mr. Pauloosie had a guilty mind: that
he knew (or ought to have known, because he did not take
reasonable steps, according to s. 150.1(4)) that AA was younger than
16 years of age.

[11] Justice Doherty of the Ontario Court of Appeal recently considered

the provisions of subsection 150.1(4) in the case of R v Carbone,
2020 ONCA 394, at paras 128-129:

[128] … To convict, the Crown must prove the accused had the
requisite state of mind with respect to the complainant’s underage
status. For the reasons set out above, I am satisfied it includes
recklessness as to the age of the complainant.

[129] … I suggest the trial judge will proceed along the following
lines:

Step 1: The trial judge will first determine whether there is an air
of reality to the s. 150.1(4) defence, that is, is there a basis in the
evidence to support the claim the accused believed the
complainant was the required age and took all reasonable steps
to determine the complainant’s age.
 5

Step 2: If the answer to step 1 is no, the s. 150.1(4) defence is

not in play, and any claim the accused believed the complainant
was the required age is removed from the evidentiary mix. If the
answer at step 1 is yes, the trial judge will decide whether the
Crown has negated the defence by proving beyond a reasonable
doubt, either that the accused did not believe the complainant
was the required age, or did not take all reasonable steps to
determine her age. If the Crown fails to negate the defence, the
accused will be acquitted. If the Crown negates the defence, the
judge will go on to step 3.

Step 3: The trial judge will consider, having determined there is

no basis for the claim the accused believed the complainant was
the required age, whether the Crown has proved the accused
believed (or was wilfully blind) the complainant was underage,
or was reckless as to her underage status. If the answer is yes, the
trial judge will convict. If the answer is no, the trial judge will
acquit.

[12] In considering this issue, it also helped me to read the words of

Justice (now Chief Justice) Sharkey in the case of R v Mr E, 2011
NUCJ 35, at para 6:

The Criminal Code provisions which prohibit sexual activity with

children under a certain age do so, of course, to protect children - both
from sexual predators as well as from their own sexual indiscretion.

[13] In the circumstances of this case, looking at Step 1 above, I do not

believe there is an air of reality to the s. 150.1(4) defence. Mr.
Pauloosie did not even ask AA how old she was. That is the absolute
least he was required to do before having sex with her, given his very
limited knowledge of her.

[14] Having found there is no air of reality, I go to Step 3 in Carbone,

above. According to that step, the Crown has also satisfied me
beyond a reasonable doubt that Mr. Pauloosie was reckless as to
AA’s underage status.
 6

[15] As Justice Doherty explained in paragraphs 126 and 127 of Carbone:

[126] An accused who never turns his mind to the complainant’s age
can properly be described as reckless with respect to the complainant’s
age in most circumstances. Indifference to the age of the person
targeted by sexual activity is a choice by an accused to treat the
complainant’s age as irrelevant to his decision to engage in the sexual
activity. In most circumstances, the age of the young person will have
obvious relevance, bearing in mind the clear responsibility which the
law places upon adults who choose to engage in sexual activity with
young persons: see George, at para. 2.

[127] Reckless indifference describes a subjective state of mind. It

reflects a choice to treat age as irrelevant and to assume the risk
associated with that choice. While this may describe a relatively low
level of recklessness, there is nothing in the nature of the conduct
engaged in which would warrant any level of risk taking or preclude
the imposition of criminal liability based on a reckless indifference to
the complainant’s age: see Andrew Ashworth, Principles of Criminal
Law, 5th ed. (Oxford: Oxford University Press, 2006) at pp. 181-86,
190-91.

[16] AA was a child at the time Mr. Pauloosie had sex with her. She, like
many children, appears to have wanted to act more mature than her
age. She had an older friend and wore make-up and tight clothing. In
other words, AA exhibited the behaviour of a healthy average and
curious 12-year-old girl. AA should have been free to exhibit such
behaviour free from the threat of sexual exploitation from an adult.

[17] I find Mr. Pauloosie guilty of four counts of breaching s. 151 of the
Criminal Code.

Dated at the City of Iqaluit this 12th day of February, 2021

___________________
Justice S. Charlesworth
Nunavut Court of Justice