The Crown prosecutor in the B.C. Supreme Court trial of Kasimir Tyabji-Sandana told a B.C. Supreme Court judge and 10-member jury in Powell River on Oct. 11 that he was wilfully blind when he chose to have sex with an underage girl in September 2016.
Tyabji-Sandana, the 35-year-old son of former Okanagan East BC Liberal MLA Judi Tyabji, is accused of committing sexual interference of a person under 16 and invitation to sexual touching of a person under 16. If convicted, he could face a maximum 14 years in jail.
In his closing arguments, prosecutor Jeffrey Young said Tyabji-Sandana knew the girl was 16 and that he “willfully blinded himself to the fact that [she] was under the age of 16.”
“That is to say, that Mr. Tyabji-Sandana was aware that he should inquire about [her] age, and deliberately decided not to inquire because he simply preferred not to know,” Young said.
Young said that if the jury finds Tyabji-Sandana had an honest, but mistaken belief that the girl was 16 years or older, he was still required to take all reasonable steps to confirm her age.
“This is the second pathway to finding Mr. Tyabji-Sandana guilty,” Young said. “If you find that the Crown has proven beyond a reasonable doubt that Mr. Tyabji-Sandana did not take all reasonable steps to ascertain her age, it would suggest that you must find him guilty.”
He said there is no “magic number” of reasonable steps nor is there an exhaustive list on which to rely, because it depends on the circumstances of the case.
“Mr. Tyabji-Sandana was 28-years-old when he touched [her] and invited her to touch him for a sexual purpose. [She] was actually 15-years-old when this took place. Any reasonable person, any reasonable person, in those circumstances that Mr. Tyabji-Sandana was in, would have taken very significant steps to ensure that they knew the age of [the girl].”
A key piece of evidence was an email from late August 2016 in which Tyabji-Sandana sent her a link to a Justice Canada website that said the legal age of consent is 16. Young said it is important to note that there was no subsequent discussion of age nor did Tyabji-Sandana simply ask the girl for her age.
Defence lawyer David Tarnow pointed to the same email as a reason to acquit his client because it was among the contradictions in the Crown’s case.
The alleged victim, who is now 22, testified that she told Tyabji-Sandana after their first kiss that she was 15, but her statement to police said she thought she told him that she was just “young.” She also did not reply to the late August 2016 email, which Tyabji-Sandana had titled “good news.”
“How about telling Mr. Tyabji that I’m, like 15-and-a-half, stop?” Tarnow said to the jury. “Why isn’t there a reply?”
He also told the jury that had she told Tyabji-Sandana her true age, then he would have stopped seeing her because she was too young.
Tarnow called Tyabji-Sandana a “most-reasonable young man” for researching the age of consent and called it “the most-reasonable step.”
“He honestly believed that she was 16, he told you why: a mature, ambitious, smart, grown woman, looking for credits to graduate, he checked the law to confirm 16 was okay,” Tarnow said.
Tyabji-Sandana originally met the girl when she came to volunteer on Tyabji and then-husband Gordon Wilson’s sheep farm in January 2016. Tyabji and Wilson, the former BC Liberal leader, both testified that they assumed the girl was a senior high school student.
Young called Tyabji’s testimony evasive and argumentative. “This is not the hallmark of a credible witness,” he said.
He also said Wilson was also not an unbiased witness and that they both did nothing to investigate the age of the girl.
Wilson testified that he had a policy against anyone under 16 working on the farm, but, Young said, “he relies upon a rule that is neither shared with anyone nor anything is done to enforce it.”
Justice Peter Edelmann is scheduled to instruct the jury on Oct. 12 before it begins deliberations. He dismissed two jurors on Oct. 6 for undertaking independent research about the case, contrary to his instructions to ignore anything about the case when outside the courtroom.
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