R v George

R. v. George

2017 SCC 38
Supreme Court of Canada — Gascon J. (Abella, Moldaver, Karakatsanis and Côté JJ. concurring) | July 7, 2017

Background

Barbara George was 35 when she had sex with C.D., a 14-and-a-half-year-old boy she genuinely believed was around 17. The encounter happened after her 17-year-old son hosted a party at their apartment. C.D. came to her bedroom afterward, they talked for hours about mature topics, and despite her protests, he initiated sexual contact. George had known C.D. for months — he looked mature, shaved, smoked cigarettes openly, bought cigarettes easily, and hung out with her older son's peer group.

The twist? Nobody reported this. George only got caught because she applied to join the RCMP. During screening, she was asked if she'd ever had sex with someone under 16. She inquired about C.D.'s exact age, discovered he'd actually been 14, felt panic, but honestly disclosed everything on her application. She was charged with sexual interference and sexual assault.

Issues

1. Did the trial judge make legal errors in analyzing whether George took "all reasonable steps" to ascertain C.D.'s age under s. 150.1(4) of the Criminal Code?
2. If so, were those errors sufficiently material to justify the Court of Appeal overturning her acquittal?

The "All Reasonable Steps" Defence

George's only available defence was mistake of age under s. 150.1(4) of the Criminal Code. This defence requires that an accused person "took all reasonable steps to ascertain the age of the complainant" before sexual contact. The trial judge acquitted George, finding reasonable doubt about whether the Crown proved she failed to take all reasonable steps.

The Saskatchewan Court of Appeal majority overturned this, claiming the trial judge made two legal errors: considering evidence from during/after the sexual encounter, and relying on questionable inferences about C.D.'s mature appearance. But the Supreme Court said this was wrong — the majority confused factual disagreements with legal errors.

The key principle: the more reasonable an accused's perception of the complainant's age, the fewer steps reasonably required of them. Evidence that supports the reasonableness of that perception can be considered even if it arose after the sexual activity, as long as it's not being used to prove steps taken after the fact.

Crown Appeals Are Limited

Crucially, the Court emphasized that Crown appeals from acquittals in indictable proceedings are limited to "questions of law alone" under s. 676(1)(a) of the Criminal Code. Strong disagreement with a trial judge's factual findings doesn't create legal errors. The Court of Appeal lacked jurisdiction to interfere because no actual legal errors occurred.

Key Takeaway

Factual disagreements with a trial judge's reasoning don't automatically become legal errors just because an appeal court feels strongly about them.

This case demonstrates the high bar for Crown appeals and shows that courts will closely examine whether an accused's perception of age was reasonable in determining what steps were required under the Criminal Code's youth protection provisions.