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In 2011 in Saskatchewan, the complainant C.D. was 14 years old, although according to the evidentiary record he looked older (R v George, 2017 SCC 38 at para 10 [“SCC”]). He engaged in intimate activity with George, a 35-year-old female acquaintance. C.D. never complained to the authorities about the sexual encounter; rather, it came onto the RCMP’s radar when Ms. George filled out an application to join the force. On her application form, she answered in the affirmative to the prompt, “Have you ever engaged in intimate relations with someone under the age of 16?” She was subsequently charged with sexual interference and sexual assault against a minor, and ignited renewed debate about the efficacy of Canada’s age of consent law (SCC, para 6).
Facts/ Judicial History
At trial, Ms. George successfully relied on the mistake of age defence and was acquitted. The Criminal Code, RSC 1985, c C-46 ?section 150.1(4) requires that an accused person who is more than five years older than a complainant who is 14 or 15 years old take “all reasonable steps to ascertain the age of the complainant” before sexual contact. If “all reasonable steps” have been taken and the accused genuinely, but mistakenly, believed that the complainant was over 16 before the sexual encounter took place, the accused may rely on the mistake of age defence. If successful, the defence negates the accused’s mens rea to engage in sexual activity with a minor (SCC, para 7). The trial judge accepted Ms. George’s defence on the basis that the complainant looked and acted older than his 14 years, refrained from drinking but smoked cigarettes, had a mature demeanour, took care of his younger siblings, and was part of her son’s social group, comprised mainly of 17-year-olds (SCC, para 10). While the trial judge wrote that she showed an “appalling lack of judgment,” there was not enough evidence to show that she deliberately intended to have sex with a minor.
Saskatchewan Court of Appeal
The Crown appealed, arguing that the trial judge had erroneously relied on information that Ms. George had collected about the complainant after the sexual encounter to determine his actual age. For obvious reasons, in order to meet the “reasonable steps” analysis, an accused person must take reasonable steps to ascertain the complainant’s age prior to the sexual encounter taking place.
On appeal, the Saskatchewan Court of Appeal (“SKCA”) agreed with the Crown: trial judge Justice Kovach had erred in relying on evidence gathered by Ms. George after the imprudent encounter (R v George, 2016 SKCA 155?[“SKCA”]) . In particular, the SKCA?held that the trial judge had made two legal errors:
- Relying on “questionable factual inferences” regarding whether C.D. may have looked mature for his age at the time of the encounter; and
- Considering evidence tendered during or after the event in question in assessing the reasonableness of the steps taken by Ms. George before the encounter. This was ostensibly a legal error because a “reasonable steps” analysis should focus on information available to the accused before the sexual event in question (SKCA, paras 41-46)
The SKCA allowed the Crown’s appeal, quashed the acquittals, and sent Ms. George back for a new trial. Justice Georgina Jackson dissented, arguing that the trial judge had made no errors of law (SKCA, para 89). In particular, Justice Jackson argued that what the SKCA determined to be dubious factual inferences about C.D.’s appearance were, in truth, disagreements about the inferences that should be drawn (SKCA, paras 77-80, 85-88, and 92). Trial judges are typically given deference by appellate courts in their factual findings, and this was the response that Justice Jackson pushed for in her dissent.
Supreme Court of Canada
At the Supreme Court, the SCC unanimously acquitted Ms. George. The Court agreed with trial judge Justice Kovach that the Crown had failed to discharge its burden: it could not prove that Ms. George had not taken all reasonable steps to ascertain the complainant’s age prior to engaging in sexual activity (SCC, para 24). The Court also agreed with Justice Kovach that Ms. George satisfied the “reasonably steps” inquiry, and that her belief that the complainant was over 16 was both subjectively and objectively reasonable (SCC, para 24).
The SCC decision also included a procedural component: it clarified that Crown appeals against acquittals in proceedings by indictment are limited to questions of law (Criminal Code, section 676(1)(a)). The SCC agreed with Justice Jackson’s finding at the appellate level that the trial judgment contained no errors of law. As such, the SCC found that the SKCA lacked jurisdiction to review the trial judgment (para 15). Responding to the SKCA’s majority decision, the SCC pointed out that the question of whether a judicial error is “legal” in nature turns on its character, not on its severity (para 17). The SCC took the view that the SKCA majority had confused character for severity, “translating strong opposition to the trial judge’s factual inferences into supposed legal errors” (SCC, headnote).
R v George is an important case because it offers charged commentary from various benches about age, consent, and the criminalization of certain sexual relationships. The case is worth pondering because there seems to be no lack of consent issue present on the facts. C.D. initiated the sexual encounter with Ms. George, showed no signs of being coerced or harmed, and suggested that they repeat the encounter weekly (SCC, para 6). Yet the law is clear that consent is vitiated in the case of intimate activity between a 14-year-old and a 35-year-old. As Justice Gascon, writing for the SCC majority, pointed out, coercion is not an element of the offences in question. Parliament assumes that adult-youth relationships are “inherently exploitative,” and violating the age of consent law is a form of strict liability (SCC, para 26). George is an important case because it raises difficult questions about how and when youth can validly consent to sexual activity, and whether imposing age restrictions on youth sexual activity is the best way to keep young people safe.
Parliament’s Perspective: Privileging the Protection of Youth
At their core, age of consent laws are intended to protect minors from sexual harm. The underlying rationale is that youth are unable, due to their relative inexperience, to validly consent to sexual activity with partners who are more than a few years older than themselves. From a legislative perspective, imposing an age restriction on youth sexual activity seems to be a valid way to protect young people from sexual exploitation. It goes without saying that any consent given should be free, full, and informed, and young people may not be of sufficient knowledge or experience to fully understand the sexual activities that they “consent” to. This risk is particularly pressing in adult-youth relationships, where the age gap between partners creates a power imbalance that is ripe for sexual exploitation.[As a side note, the Criminal Code includes several “close in age” exceptions for youth engaging in intimate activity with other youth close to them in age. For example, youth who are 14 or 15 years old can validly consent to intimate activity with partners who are less than 5 years older than them. If an individual is 14, their partner can have a maximum age of 18; if an individual is 15, their partner can be at most 19 (Criminal Code,?section 150.1(2.1)). The law is more stringent in the case of individuals who are 12 or 13 years old. In these cases, individuals who are 12 or 13 can only consent to intimate activity with partners who are less than 2 years older than them (so 13 or 14 years old) (Criminal Code,?section 150.1(2)). These exceptions do not apply to the facts in George.]
Alternative Perspectives: Challenging the Age of Consent Law
Is it true that age of consent laws are a good way to protect young people from sexual harm? Is the state taking a paternalistic approach to youth sexual activity, and if so, is that approach justified? On one hand, it goes without saying that youth deserve to be protected from sexual interference. On the other hand, age of consent laws may unnecessarily restrict the rights of youth wanting to engage in consensual sexual behaviour. Youth are young, but they are not always as na?ve about sex as the law seems to think. They are also entitled to pursue their own sexual inclinations, so long as the ways in which they do so are consensual and safe. In 2008, when former Prime Minister Stephen Harper upped Canada’s age of consent law from 14 to 16 years old, several youth-centric and sexual health organizations made the latter argument while opposing the new law. [NB: It was not until Prime Minister Trudeau’s Liberal cabinet came into power in 2015 that the governing party repealed the one exception to former PM Harper’s new rule, which had remained at 18 years old.] This was the first time Canada’s age of consent laws had been raised since 1892, and the policy debates sparked by the change continue to this day.
Many of the aforementioned policy debates focus on where to put the cut-off point. Like most age-based laws, the age of consent law seems to smack of arbitrariness. As with the laws around driving, drinking, joining the military, and owning a gun, one is tempted to question the validity of the cut-off point. Is there a meaningful difference between a 15-year-old engaging in intimate activity with a 19-year-old versus a 21-year old? In both cases, the age gap between the partners is significant, but our current regime criminalizes only the latter. From an empirical perspective, does this make sense? More research is needed on this point.
It is also worth questioning whether the age of consent law, whether it is set at age 14 or 16, reflects how Canadian youth actually live their lives. At Planned Parenthood Toronto, where I volunteer, a lot of our youth clients express surprise and confusion when we discuss the “close in age” exceptions. If I’m 15, what’s the difference, they ask, between a partner who is 19 and a partner who is 21? In their view, the way the law has drawn the line between “acceptable” and “unacceptable” sexual behaviour seems redundant. Their incredulity begs the question of whether imposing age-based restrictions on youth sexual activity actually reflects the ways that youth choose their sexual partners. If youth don’t see a meaningful difference between being with a 19-year-old and a 21-year-old, should law-makers? Does our clients’ surprise reflect a reality that the age of consent law doesn’t matter that much to youth? One answer to this question is to point out that the age of consent law is not aimed exclusively at youth – rather, it is targeted at adults. The age of consent law draws a firm line in the sand between acceptable and unacceptable sexual interactions between adults and minors. Criminalizing adults who violate age of consent laws hopefully has a deterrent effect on predatory adult behaviour, and increases the protections that the law can offer to youth.
It is clear that the age of consent law exists for good reason, but it is also necessary to question whether it has some unintended consequences. In the workshops I teach on sexual assault law and consent, discussions about the age of consent provisions tend to provoke an unsettling reaction: silence. I read this reaction as a concern that youth have broken the law in the past, or are breaking it in the present, by engaging in a prohibited relationship. Understandably, they respond by clamming up. From a sexual health perspective, this reaction troubles me. Age of consent laws are designed to protect children and youth, but they can also have the unintended consequence of driving youth sexual behaviour underground. If youth fear getting into trouble with the law, they may be more reluctant to seek out sexual health services that can help prevent unwanted pregnancies and STI transmission. Perversely, youth may also be disincentivized from disclosing sexual harm if they are being hurt by their partners, for fear of getting into trouble with the law.
Illegality vs Moral Condemnation of Adult-Youth Relationships
The SCC found in their decision that the SKCA demonstrated “strong opposition” to the trial judge’s factual findings (SCC, para 17). These findings included the fact that C.D. had initiated the sexual encounter, and presented both in appearance and demeanour as significantly older than his actual age (SCC, para 10). The SCC’s reasons imply that the SKCA questioned the trial judge’s findings not on the basis of legal error, but rather as a moral reaction to his acquittal of Ms. George. In other words, the SKCA’s decision to re-try Ms. George was fueled not by legal analysis, but rather by moral condemnation of her relationship with C.D.
This is an interesting feature of the case because it goes to show how much moral opinion can factor into judicial decision-making. It is one thing to disapprove socially or morally of a May-December relationship, but it is another to find that encounter contrary to the law if no indications of illegality are present on the facts. In her dissenting reasons, Justice Jackson on the SKCA pointed out more that this case lacked the hallmarks of sex crimes targeting children, including grooming and the deliberate exploitation of vulnerability (SKCA paras 65-67, 96(d) to (f), 97). However, the Supreme Court rejected this portion of the dissenting judge’s reasons, pointing out that “no such hallmarks are required for the offences at issue [sexual exploitation and sexual interference]” (SCC, para 26).
The age of consent law is mired in legal and ethical difficulties. On one hand, we want to protect vulnerable youth from harm. On the other hand, age of consent provisions may have unintended consequences, including encouraging youth to hide their sexual behaviour. As with all age-based laws, there is also the problem of arbitrariness to reckon with. Going forward, my take-away question is, what do youth think about all this? I would love an opportunity to discuss the age of consent laws with young people, and to gain a better understanding of whether it is an effective way to protect youth.