R. v. Morrisey<\/em>\u00a0(1995), 97 C.C.C. (3d) 193, at pp. 203-204). The trial judge explained:<\/p>\nThe most compelling activity engaged in by [C.D.] suggestive of a level of maturity beyond his years, was the sexual encounter itself.\u00a0Not the mere fact of sexual intercourse with a significantly older female partner, but, rather, the obvious level of comfort with which he approached the encounter<\/u>. [Emphasis added.]<\/p>\n
<\/p>\n
(Trial Transcript, A.R., at p. 11)<\/p>\n
[19]\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0Considered in conjunction with the trial judge\u2019s unambiguous recognition that all reasonable steps must precede sexual contact, C.D.\u2019s \u201cobvious level of comfort\u201d with how he \u201capproached\u201d the encounter must refer to how C.D. came to Ms.\u00a0George\u2019s 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 Ms. George before the sexual contact. According to the trial judge, this was one of many factors reasonably informing her perception of C.D.\u2019s age before sexual contact. No legal error arises from this.<\/p>\n
[20]\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0Admittedly, the trial judge considered other evidence that did not precede the sexual encounter. The majority considered this to be a further legal error. But it is not. As noted, Ms. George\u2019s reasonable steps must precede her sexual activity with C.D.; the trial judge expressly recognized this. But it does not follow that the evidence she tenders must also precede her sexual activity with C.D. Such an interpretation conflates the fact to be proven with the evidence that may be used to prove it.<\/p>\n
[21]\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0When determining the relevance of evidence in this context, both its purpose and its timing must be considered. Evidence demonstrating steps taken after the sexual activity to ascertain a complainant\u2019s age \u2014 for example, the accused person checking the complainant\u2019s photographic identification immediately after the sexual activity \u2014 is irrelevant to the reasonable steps inquiry. As a result, considering such evidence would amount to a legal error, as it reveals a \u201cmisapprehension of . . . legal principle\u201d (J.M.H.<\/em>, at para. 29). However, 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\u2019s perception of the complainant\u2019s age before sexual contact is relevant to adjudicating the reasonableness of the steps taken by the accused person (Duran<\/em>, at paras. 51-54), even if that evidence happens to arise after the sexual activity or was not known to the accused before the sexual activity (see e.g.\u00a0Osborne<\/em>, at paras. 22(4) to (5)).<\/p>\n[22]\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0For example, consider a photograph of an underage complainant taken a week after impugned sexual activity, in which the complainant looks as old as 21. The adult charged with assaulting the complainant could not have relied on viewing the photograph itself as one of their reasonable steps, because it was taken after the sexual activity occurred. But that is not the purpose for which the photograph would be tendered as evidence. Rather, the photograph would be tendered as evidence for the purpose of proving the complainant\u2019s physical appearance around the time of the sexual activity, which could, depending on the circumstances, be relevant to the reasonableness of the accused person\u2019s perception of the complainant\u2019s age.<\/p>\n
[23]\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0The evidence arising after the sexual activity considered by the trial judge in this case, to which the majority objected (at para. 34), did not detract from and was consistent with Ms. George\u2019s testimony as to how C.D. 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 complainant appeared to her in the months preceding the sexual activity.<\/p>\n
[24]\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0While one may disagree with the weight the trial judge gave this evidence, no legal error arises from mere disagreements over factual inferences or the weight of evidence (J.M.H.<\/em>, at para. 28). Indeed, many of the majority\u2019s comments reveal that its discomfort with this evidence was not because it was irrelevant (which would have illustrated a misconception of principle, a legal issue:\u00a0ibid.<\/em>, at para. 29), but because its relevance was marginal (a factual issue). The trier of fact is best situated to assign weight to evidence. In any event, if the Crown objects to inferences about a complainant\u2019s physical appearance at a younger age, it is permitted to tender direct evidence of that physical appearance (for example, a photograph). The majority\u2019s view that the trial judge could not draw such an inference because Ms. George had failed to tender evidence proving that C.D.\u2019s appearance \u201chad not changed\u201d between ages 14 and 17 (para. 46) suggests that the trier of fact is prohibited from drawing factual inferences. To the contrary, factual inferences are a necessary means through which triers of fact consider all of the evidence (direct and indirect) before them.<\/p>\n[25]\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0Given the above, the Court of Appeal lacked jurisdiction to review the trial judge\u2019s decision. On that basis, the Court allowed the appeal. That said, two final points arising from the dissent merit brief consideration.<\/p>\n
[26]\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0First, the dissenting judge felt it necessary to comment on how this case lacks the hallmarks of sex crimes against children, including grooming and exploitation of vulnerability (paras. 65-67, 96(d) to (f) and 97). But no such hallmarks are required for the offences at issue. It is a criminal offence to sexually touch a child who is 14 years of age or more but younger than 16 when you are five or more years their senior, even if you honestly believe they are older than 16, unless you have taken \u201call reasonable steps\u201d to ascertain their age; nothing more is required (Benedet, at p. 167). Indeed, to suggest that exploitation is a requirement for the offence belies (1) the scheme of the\u00a0Criminal Code\u00a0<\/a><\/em>, which already prohibits sexual exploitation (s. 153\u00a0<\/a>) and sexual activity where \u201cconsent\u201d is procured through abuse of trust, power or authority (s. 273.1(2)\u00a0<\/a>(c)); and (2) Parliament\u2019s recognition that adult\/youth sexual relationships are inherently exploitative. To the extent that the dissent was suggesting that such ancillary considerations are necessary in proving all sex crimes against children, I reject that proposition. To be clear, overt indicia of exploitation may diminish the credibility of an accused person\u2019s purported mistaken belief in the complainant\u2019s age, or the reasonableness of the steps taken by that accused person (see e.g.\u00a0Dragos<\/em>, at para. 52;\u00a0R. v. Mastel<\/em>, 2011 SKCA 16, 84 C.R. (6th) 405, at para. 18; J. Benedet, Annotation to R. v. Mastel (2015), 84 C.R. (6th) 405, at p. 406), but they are not required for the offence itself to be made out.<\/p>\n[27]\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0Second, the dissent stated that, to overturn an acquittal, an appellate court must be satisfied that the verdict would \u201cnot necessarily have been the same\u201d without the trial judge\u2019s legal errors (paras. 74 and 99, see also paras. 73 and 94). If the dissent was implying that an appellate court can overturn an acquittal where it is merely possible that the verdict would have changed, that is too low a threshold. This Court has used various phrasings to articulate the threshold of materiality required to justify appellate intervention in a Crown appeal from an acquittal. An \u201cabstract or purely hypothetical possibility\u201d of materiality is below the threshold (Graveline<\/em>, at para. 14). An error that \u201cwould necessarily\u201d have been material is above the threshold (ibid.<\/em>, at paras. 14-15;\u00a0R. v. Morin<\/em>, [1988] 2 S.C.R. 345, at p. 374 (\u201cMorin<\/em>\u201d)). And an error about which there is a \u201creasonable degree of certainty\u201d of its materiality is at the required threshold (Graveline<\/em>, at paras. 14-15;\u00a0Morin<\/em>, at p. 374).<\/p>\n[28]\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0That threshold is not met here. The allegations of errors on the trial judge\u2019s part that have arguable merit relate to two pieces of corroborative evidence. Further, that evidence was surrounded by alternate evidence \u2014 including C.D.\u2019s physical appearance, behaviour and activities, the age and appearance of C.D.\u2019s social group, and the circumstances in which Ms. George had observed C.D. \u2014 all of which supported the trial judge\u2019s view that reasonable doubt remained in respect of whether the Crown had proven that Ms. George failed to meet the reasonable steps requirement. In my view, there was no reasonable degree of certainty that the trial judge\u2019s controversial inferences were material to his verdict. It follows that, even if these inferences had amounted to legal errors, they would not have justified appellate intervention in any event.<\/p>\n
\n- Conclusion<\/li>\n<\/ol>\n
[29]\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0As explained in these reasons, the trial judge\u2019s factual inferences did not amount to legal errors conferring appellate jurisdiction in this case. This is why, at the hearing, the Court allowed the appeal, and restored Ms. George\u2019s acquittals.<\/p>\n
<\/p>\n
Appeal allowed.<\/em><\/p>\nSolicitors for the appellant:\u00a0Gerrand Rath Johnson, Regina.<\/p>\n
Solicitor for the respondent:\u00a0Attorney General of Saskatchewan, Regina.<\/p>\n
<\/p>\n","protected":false},"excerpt":{"rendered":"
It is important that all RCMP officers display candor when completing forms and testifying. In this case, an RCMP applicant was\u00a0arrested for being too honest, according to some women. Ms. Barbara George applied to join the RCMP. Part of the screening process involved a questionnaire which asked if she had \u201cever engaged in sexual activity […]<\/p>\n","protected":false},"author":2,"featured_media":0,"comment_status":"closed","ping_status":"open","sticky":false,"template":"","format":"standard","meta":{"footnotes":""},"categories":[5],"tags":[],"class_list":["post-51","post","type-post","status-publish","format-standard","hentry","category-criminal-cases"],"_links":{"self":[{"href":"https:\/\/canlawblog.com\/index.php\/wp-json\/wp\/v2\/posts\/51","targetHints":{"allow":["GET"]}}],"collection":[{"href":"https:\/\/canlawblog.com\/index.php\/wp-json\/wp\/v2\/posts"}],"about":[{"href":"https:\/\/canlawblog.com\/index.php\/wp-json\/wp\/v2\/types\/post"}],"author":[{"embeddable":true,"href":"https:\/\/canlawblog.com\/index.php\/wp-json\/wp\/v2\/users\/2"}],"replies":[{"embeddable":true,"href":"https:\/\/canlawblog.com\/index.php\/wp-json\/wp\/v2\/comments?post=51"}],"version-history":[{"count":0,"href":"https:\/\/canlawblog.com\/index.php\/wp-json\/wp\/v2\/posts\/51\/revisions"}],"wp:attachment":[{"href":"https:\/\/canlawblog.com\/index.php\/wp-json\/wp\/v2\/media?parent=51"}],"wp:term":[{"taxonomy":"category","embeddable":true,"href":"https:\/\/canlawblog.com\/index.php\/wp-json\/wp\/v2\/categories?post=51"},{"taxonomy":"post_tag","embeddable":true,"href":"https:\/\/canlawblog.com\/index.php\/wp-json\/wp\/v2\/tags?post=51"}],"curies":[{"name":"wp","href":"https:\/\/api.w.org\/{rel}","templated":true}]}}