Supreme Court of Canada: Whether an error is “legal” generally turns on its character, not its severity

Supreme Court of Canada: The Canadian Supreme Court was recently dealing with a case of sexual offence in which a 35 years old woman had sex with a male youth- C.D who was 14-and-a-half years old. As per Criminal Code (R.S.C, 1985), Part V dealing with Sexual Offences, any kind of sexual activity with a person of less than 16 years of age is an offence irrespective of the gender of the offender. However, it has a few exceptions. One of those exceptions is that the accused had mistaken the age of the victim as per Section 150.1(4) of the Criminal Code. At the same time, 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.

In this case, the trial Judge had acquitted the accused on the sole ground that the Crown was unable to prove beyond reasonable doubt that she did not take reasonable steps to determine the age of the complainant. The Crown appealed the acquittal, arguing that the trial Judge erred in his consideration and application of S. 150.1(4). The Court of Appeal allowed the appeal and ordered a new trial. This was then further appealed in the Supreme Court by the acquitted Ms. George.

The Supreme Court raised two issues pertaining to this set of facts (1) whether the trial Judge made any legal errors in his reasonable steps analysis; and (2) if he did, whether those errors were sufficiently material to justify appellate intervention.

To carefully review the errors (if any) in the trial Judge’s reasons for acquittal of the lady, the Bench considered the very first principle that an accused person cannot rely on the impugned sexual activity itself as a reasonable step in ascertaining the complainant’s age before the sexual activity. Keeping this principle in mind, the Court went on to observe and find out whether Ms. George had taken all reasonable steps before the sexual activity to ascertain the age of C.D. The Court like the trial judge as well considered certain pertinent facts like C.D’s “obvious level of comfort” with how he “approached” the encounter, his hanging out with her son who was 17 years old and so on.

However, while giving the judgment, the trial Judge considered the evidence of C.D’s age after the sexual activity. To this, the Supreme Court noted down that while one may disagree with the weight the trial Judge gave that evidence, no legal error arises from mere disagreements over factual inferences or the weight of evidence. Gascon, J. went on to say that there is a particular threshold required to justify appellate intervention in a Crown appeal from an acquittal and the reasons given by the trial Judge do not meet that threshold when he considered the circumstances in which Ms. George had met C.D and observed him and his actions. The Court held that though there was no reasonable degree of certainty that the trial Judge’s controversial inferences were material to his verdict inferring that it would amount to legal error, but still would not require or justify appellate intervention.

Finally, the Court allowed the appeal and restored Ms. George’s acquittal holding that whether an error is “legal” generally turns on its character, not its severity. [Barbara George v. Her Majesty the Queen, 2017 SCC OnLine Can SC 2 : 2017 SCC 38, decided on 07.07.2017]

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