Supreme Court says trial judge made no legal error in acquitting woman who had sex with 14-year-old boy

The Supreme Court of Canada says the trial judge who acquitted a 35-year-old woman of sexual assault charges for having sex with a 14-year-old boy did not make any error in law.

35-year-old Saskatchewan woman assumed boy was older because he was mature, had facial hair

The Supreme Court of Canada has released reasons for its earlier ruling that tossed out charges against a Saskatchewan woman who had sex with a 14-year-old boy. (Mike dePaul/CBC)

The Supreme Court of Canada says the trial judge who acquitted a 35-year-old woman of sexual assault charges for having sex with a 14-year-old boy did not make any error in law.

On Friday, the Supreme Court released written reasons for its May ruling where justices said Saskatchewan resident Barbara George should not face a new trial on sexual interference and sexual assault charges.

The five-member panel said a majority on the appeals court "confused" the issue of disputing the trial judge's findings of facts with whether he actually made an error in law. The Crown is permitted to appeal an acquittal only if there is an error in law.

"It translated its strong opposition to the trial judge's factual inferences into supposed legal errors," the written decision reads. "Here, that was an improper approach, and it disregarded the restraint required by Parliament's choice to limit Crown appeals from acquittals in proceedings by indictment to questions of law alone."

The case involves Canada's laws on age of consent, and a section of the Criminal Code that requires an adult to take "reasonable steps" to determine the age of a person before engaging in sex with them.

Initial acquittal

George was acquitted of the charges because the trial judge found the sexual activity was "factually consensual" — that she honestly believed the boy was at least 16, and there was reasonable doubt she had not taken all reasonable steps to determine the age of the boy, called "C.D." His full name is protected by a publication ban.

He was attending a party at her home the night of the encounter.

She did not ask the boy his age. But the Supreme Court said "reasonable steps" is open-ended language and that determining age is a "highly contextual, fact-specific exercise."

According to documents filed by the appellant with the Supreme Court, George assumed C.D. was over the age of 16 because he had facial hair, a mature demeanour and apparent sexual experience. He also smoked and took care of his younger siblings.

Today the Supreme Court reasoned that, "the more reasonable an accused's perception of the complainant's age, the fewer steps reasonably required of them."

"In some cases, it may be reasonable to ask a partner's age. It would be an error, however, to insist that a reasonable person would ask a partner's age in every case," the decision reads. "Conversely, it would be an error to assert that a reasonable person would do no more than ask a partner's age in every case, given the commonly recognized motivation for young people to misrepresent their age." 

According to the documents, George did not realize how old he was until several months later, when she applied to become an RCMP officer. One of the questions on the questionnaire asked if she had ever had sexual activity with someone under 16.

RCMP application leads to charges

After checking with her son about the age of C.D., she answered the form in the affirmative. 

That led to an RCMP investigation and subsequent charges laid against her.

George was acquitted at trial. While the judge said she exhibited an "appalling lack of judgment" by talking to the complainant in her bedroom for several hours that night, there was not enough evidence to show she deliberately broke the law.

The Saskatchewan Court of Appeal, in a majority decision, allowed the Crown's subsequent appeal, sending the matter to the country's highest court.

"This case involves a 35-year-old woman who was the sole parent and adult at a high school party when she had sexual intercourse with a boy who was half her age and young enough to be her teenage son," reads a court document filed by the respondent, the Attorney General of Saskatchewan. 

"Despite all of that, she took no steps to ascertain the complainant's age before she had sex with him. In fact, she did not turn her mind to the issue of the complainant's age at all until months later." 

Dean Sinclair, a Crown attorney with the Saskatchewan government, said the decision makes clear that if the trial judge made errors, they were not errors of law. But the high court also stressed the explicit responsibility of adults to determine the age of a sex partner.

"I think the court was trying to say that all of this is very case-specific," he told CBC News.

"The issues will be different in each and every case. The legal issues will be the same, but the evidence will be different, and how that's resolved will be different."

But he said the notion of whether someone should ascertain a potential sex partner's age by the fact they smoke cigarettes will likely be a subject for continuing debate.

In 2008, the Conservative government led by Stephen Harper raised the legal age of consent in Canada from 14 to 16, the first change to the law since 1892. 

The Criminal Code amendment allowed for "close in age" or "peer group" exceptions. That means a 14- or 15-year-old can consent as long as the partner is less than five years older, and a 12- or 13-year-old can consent if the partner is less than two years older.

The age of consent remained 18 if the sexual activity involves someone in a position of authority, trust or dependency, or involves exploitation such as pornography or prostitution.

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