R. v. George, 2017 SCC 38 — Criminal law — Defences — Mistake of age

On appeal from a judgment of the Saskatchewan Court of Appeal (2016 SKCA 155) setting aside the accused’s acquittals for sexual interference and sexual assault entered by Kovach J. and ordering a new trial.

When G was 35 years old, she had sex with C.D., a male youth who was approximately 14 and a half. At the time, she presumed that C.D. was around 17. G was charged with the offences of sexual interference and sexual assault. Her only available defence was mistake of age. Section 150.1(4) of the Criminal Code limits the availability of the mistake of age defence by requiring that the accused took all reasonable steps to ascertain the age of the complainant. The trial judge acquitted G of both offences based on a reasonable doubt about whether the Crown proved that she had failed to take all reasonable steps to determine C.D.’s age. The majority of the Court of Appeal allowed an appeal, quashed the acquittals and ordered a new trial.

Held (5-0): The appeal should be allowed and the acquittals restored.

Crown appeals against acquittals in proceedings by indictment are limited to questions of law alone. The trial judgment concerned indictable offences and contained no errors of law. As a result, the Court of Appeal lacked jurisdiction to interfere.

To convict an accused person who demonstrates an air of reality to the mistake of age defence, the Crown must prove beyond a reasonable doubt either that the accused person did not honestly believe the complainant was at least 16 or did not take all reasonable steps to ascertain the complainant’s age. Determining what raises a reasonable doubt is a highly contextual, fact‑specific exercise. The more reasonable an accused’s perception of the complainant’s age, the fewer steps reasonably required of them. In this case, the trial judge considered various factors, including C.D.’s physical appearance, behaviour and activities, the age and appearance of C.D.’s social group, and the circumstances in which G had observed C.D.

Whether an error is legal generally turns on its character, not its severity. The majority of the Court of Appeal erred by translating strong opposition to the trial judge’s factual inferences into supposed legal errors. The trial judge did not rely on C.D.’s level of sexual experience as revealed by the sexual encounter itself. Rather, the trial judge considered information known to G before sexual contact, such as how C.D. came to her bedroom uninvited and spoke with her for several hours about various topics, many reflecting maturity, others suggestive in nature. No legal error arises from this. This was a reference to C.D.’s conduct in the hours before the sexual contact, a factor reasonably informing G’s perception of C.D.’s age before sexual contact. The trial judge also did not err by considering evidence that did not precede the sexual encounter. Reasonable steps must precede the sexual activity but requiring that the evidence to prove reasonable steps must also precede the sexual activity conflates the fact to be proven with the evidence that may be used to prove it. When determining the relevance of evidence, both its purpose and its timing must be considered. Evidence properly informing the credibility or reliability of any witness, even if that evidence arose after the sexual activity in question, may be considered by the trial judge. Similarly, evidence demonstrating the reasonableness of the accused person’s perception of the complainant’s age before sexual contact is relevant, even if that evidence happens to arise after the sexual activity or was not known to the accused before the sexual activity.

Even if the trial judge had made legal errors, they would not have justified the intervention of the Court of Appeal. The threshold of materiality required to justify appellate intervention in a Crown appeal from an acquittal is an error about which there is a reasonable degree of certainty of its materiality. That threshold is not met in this case. There was no reasonable degree of certainty that the alleged errors were material to the trial judge’s verdict.

Reasons for judgment: Gascon J. (Abella, Moldaver, Karakatsanis and Côté concurring)

Neutral Citation: 2017 SCC 38

Docket Number: 37372