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CRIMINAL CODE OFFENCES - Sexual offences - Sexual interference - Offences against person and reputation - Assaults - Sexual assault

Monday, July 10, 2017 @ 9:48 AM  

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Appeal by George from the judgment of the Saskatchewan Court of Appeal setting aside her acquittals for sexual interference and sexual assault entered by the trial judge and ordering a new trial. George had sex with an adolescent boy, who was 14 years old, while she was herself 35 years old. The sexual activity happened after George’s son, who was 17 at the time, hosted a party at their apartment. After the party ended, the adolescent came to George’s bedroom, where they spoke for several hours. The adolescent instigated the sexual encounter, despite George’s genuine protestations. Although reluctant at first, George was a willing participant. The adolescent was incapable of legally consenting to the sexual encounter because of the combination of his young age and his age disparity with George. At trial, the judge acquitted George, ruling that there remained a reasonable doubt about whether the Crown had proved George’s failure to take all reasonable steps to determine the adolescent’s age. The Court of Appeal quashed the acquittals, holding that the trial judge had erred by considering evidence from during or after the sexual encounter in assessing the reasonableness of the steps taken by George before the encounter; and by relying on questionable factual inferences regarding whether the adolescent could have looked mature for his age at the time of the sexual activity.

HELD: Appeal allowed. The Court of Appeal held that the trial judge had improperly relied on the adolescent’s level of sexual experience as revealed by the sexual encounter itself in determining whether George had taken all reasonable steps before the sexual activity. This misconstrued the trial judge’s reasons. What the trial judge recognized was the adolescent’s “obvious level of comfort” with how he approached the encounter. This could refer to how the adolescent came to George’s bedroom uninvited and spoke with her for several hours about various topics, many reflecting maturity, and others suggestive in nature. All of this information was known to George before the sexual contact. According to the trial judge, this was one of many factors reasonably informing her perception of the adolescent’s age before the sexual contact. No legal error arose from this. George’s reasonable steps were required to precede her sexual activity with the adolescent, which the trial judge expressly recognized. However, it did not follow that the evidence tendered by George was also required to precede her sexual activity with the adolescent. Such an interpretation conflated the fact to be proven with the evidence that could be used to prove it. The evidence arising after the sexual activity considered by the trial judge did not detract from and was consistent with George’s testimony as to how the adolescent appeared to her and acted in her presence during the several months they knew each other before the sexual encounter. To that extent, it was admissible for the purpose of assessing her credibility at large, which included her testimony as to how the adolescent appeared to her in the months preceding the sexual activity. George’s acquittals were restored.

R. v. George, [2017] S.C.J. No. 100, Supreme Court of Canada, R.S. Abella, M.J. Moldaver, A. Karakatsanis, C. Gascon, and S. Côté JJ. Reasons delivered: July 7, 2017. Digest No. TLD-July102017001SCC