B.C. Appeal Court measures relevance of honest but mistaken belief in victim’s age

Law360 Canada (January 22, 2025, 1:56 PM EST) --

John L. Hill

Kyle Knight was charged with sexually interfering with E.M. and touching her body for a sexual purpose with a part of his body when she was one month short of turning 16. At trial, the key issue was whether the defence of honest but mistaken belief in age had been made out.

Was there evidence that raised a reasonable doubt about whether Knight failed to take all reasonable steps to ascertain E.M.’s age? Knight testified on his own behalf, but E.M. did not testify. Knight, then 22, acknowledged that E.M. performed oral sex on him and that his penis touched her vagina, but he believed E.M. was older than 16 years old and provided his reasons for that belief.

Knight was sentenced to three years imprisonment on Aug. 8, 2023 (R. v. Knight, 2023 BCSC 1748) and given credit for 275 days of pre-trial custody.

Knight appealed his sentence, claiming it was demonstrably unfit (R. v. Knight, [2024] B.C.J. No. 2174). He asked that it be reduced to two years less pre-trial custody credit. The argument on appeal was that the sentencing judge erred in principle in that (1) the judge gave insufficient mitigating weight to the appellant's youthfulness and the fact that he experienced sexual abuse as a child; (2) she erred in her application of the sentencing principle of parity; and (3) she erred in her application of the principle of proportionality. The appellant said three years' imprisonment was a demonstrably unfit sentence.

To prove sexual interference, the Crown must prove Knight intentionally used his body to touch the complainant’s body for a sexual purpose and that the complainant was under 16 years of age (R. v. G.B.,2009 BCCA 88, R. v. P.R.J., 2023 BCCA 13). Consent is not a defence. Knight’s belief that E.M. was older is also not a defence unless he can show he took all reasonable steps to ascertain her age.

The trial judge found that Knight had met E.M. and her friends on a bus. He made no inquiries with her or her friends about her age or where she went to school. He never even asked her name. One of E.M.’s friends, V.P., looked like he was 12 years old. It would have been reasonable for Knight to ask how old E.M. was before having sexual contact with her.

The Crown had asked for a three-to-four-year sentence, but the defence submitted that a provincial reformatory sentence was adequate.

The judge also took notice of Knight’s troubled background. He was 26 when sentenced and had been diagnosed with attention deficit hyperactivity disorder and anxiety as a child. He struggled during his teenage years with intermittent employment and periods of homelessness.

Before sentencing, the appellant disclosed multiple instances of sexual abuse as a child. He had a lengthy history of substance abuse, starting in his early teens. He also has a relatively lengthy criminal record.

In passing the sentence, the judge prioritized denunciation and deterrence as the key sentencing principles. The victim was under 18 and had significant emotional distress and psychological harm following the incident. The trial judge had considered R. v. Angel, 2018 BCSC 1751, where an accused who failed to take reasonable steps to ascertain age may have a lower moral culpability than someone lacking an honest belief the victim could consent. However, R. v. Friesen, 2020 SCC 9 emphasized the harmfulness and wrongfulness of child sexual abuse.

Even though the victim was only days away from her 16th birthday, she was still entitled to the protection of the law (R. v. Brozer, 2023 BCSC 134).

Deference is owed to the trial judge’s sentence unless that sentence is demonstrably unfit or departs from the principle of proportionality (R. v. Lacasse, 2015 SCC 64).

The offender's personal circumstances do not affect the gravity of the offence (R. v. Ellis, 2022 BCCA 278 and R. v. Maslehati, 2024 BCCA 207). There was no contributory linkage between the sexual abuse Knight experienced as a child and that which he inflicted on E.M. Such previous abuse had not affected his ability to appreciate the harm he was doing (R. v. C.K., 2023 BCCA 468 and R. v. Hurley, 2024 BCCA 259).

Sentencing is an individualized process. The British Columbia Court of Appeal considered aggravating (prior conviction for violence) and mitigating circumstances (Knight’s youthfulness and brief duration of the sexual encounter) and applied reasonable weight to these factors. The Appeal Court did not find the sentence unfit and dismissed the appeal.

John L. Hill practised and taught prison law until his retirement. He holds a J.D. from Queen’s and an 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) and The Rest of the (True Crime) Story (AOS Publishing). Contact him at johnlornehill@hotmail.com.

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