Barbara George v. Her Majesty the Queen

(Saskatchewan) (Criminal) (As of Right)


Criminal law.


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Criminal law - Sexual interference - Sexual assault - Accused taking reasonable steps to ascertain age of complainant - Whether the Court of Appeal erred in finding that the trial judge failed to perform the analysis required by s. 150.1(4) of the Criminal Code, R.S.C. 1985, c. C-46 - Whether the Court of Appeal erred in finding that the Crown had raised a question of law - If the Crown had raised a question of law, whether the Court of Appeal erred in setting aside the acquittals.

The appellant had sexual intercourse with the 14 year old complainant. At trial, she was acquitted of sexual interference and sexual assault, because the trial judge found that the sexual activity had been factually consensual, that the appellant had honestly believed that the complainant was legally able to consent, and that the Crown had not proven that the appellant failed to take all reasonable steps to ascertain the complainant’s age (s. 150.1(4) of the Criminal Code). 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. Jackson J.A., dissenting, would have dismissed the appeal on the basis of lack of jurisdiction, because the Crown had not raised a question of law as required by s. 676(1)(a) of the Criminal Code. Jackson J.A. concluded that in any event, had the trial judge erred in law, the error would not have had a material bearing on the verdict.