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Criminal Code offences - Sexual offences - Sexual interference - Offences against person and reputation - Assaults - Sexual assault

Thursday, January 19, 2017 @ 7:00 PM  

Appeal by the Crown from George’s acquittal for sexual interference and sexual assault. George had sexual intercourse with a 14-year-old friend of her teenage children. George had not known the complaint’s age at the time of the encounter. A couple of months later, George applied to become a member of the RCMP. One question on the application form asked whether she had ever engaged in sexual activity with a person under the age of 16. The question prompted her to take steps to ascertain the complainant’s age for the first time. She testified her son had told her that he thought the complainant was about 15 or 15 and one-half years old. George responded “yes” to the question in the application. The trial judge concluded that the sexual activity had been factually consensual, George had honestly believed the complainant to be age 16 or older, and the Crown had not proven beyond a reasonable doubt that George had failed to take all reasonable steps to ascertain the complainant’s age as per s. 150.1(4) of the Criminal Code. The Crown submitted that the trial judge made errors in his consideration and application of s. 150.1(4).

HELD: Appeal allowed. The acquittals were quashed and a new trial was ordered. The trial judge erred in law by failing to perform the analysis required by s. 150.1(4) in his consideration of whether the Crown had proven George had failed to take all reasonable steps to ascertain the complainant’s age. The trial judge erroneously relied on various considerations arising after the complainant’s liaison with George to decide the “all reasonable steps” issue, when only matters known to George in advance of the encounter could be considered as part of the analysis. The trial judge placed considerable weight on the fact that the complainant was familiar with sexual activity. However, this was not known to George at the time of the incident. Additionally, the fact that a sexual act itself revealed a child to be sexually aware or sexually experienced could not, as a matter of law, have any relevance to the nature of the steps an accused should have taken to ascertain the age of the child in the first place. The trial judge made a similar error in reasoning that the complainant’s physical appearance and demeanor were beyond his years. The trial judge erroneously expressly relied on the complainant’s appearance and conduct at the trial, some three years after the fact, to help determine how he would have looked and acted at the time of the incident involving George. This amounted to using a consideration unknown to George at the time of the incident to determine what steps she should have taken to ascertain his age.