WARNING: This story contains graphic details of allegations of child sexual assault.
He was just over 13 years old. And she was about to turn 12 years old.
They connected on social media and arranged a high school reunion that ended in sexual contact. Then they both said “I love you.”
Two days later, she accused him of sexual assault, a charge he denied.
The age of consent
In the trial that followed, the boy was acquitted in a shocking case that highlights issues of underage sex and exceptions to the age of consent in Canada.
The details are contained in a provincial court decision handed down in July of this year, but recently posted online. The location of the court and the city where the incident occurred (somewhere in British Columbia) have been redacted in accordance with the Youth Criminal Justice Act.
The legal age of consent in Canada is 16, although no one under the age of 18 can consent to having sexual relations with a person in a position of authority or in connection with an activity that involves exploitation.
To recognize the realities of modern life, Parliament created an exceptionna consent laws where an older defendant is “close in age” to an alleged victim.
The Penal Code says that 14- and 15-year-olds can give consent to have sexual relations with someone up to five years older. And 12- and 13-year-olds can consent to have sex with someone two years older. Children under 12 years of age cannot consent to sexual activity.
But in the BC case, the boy argued that he thought the girl was over 11 years old.
While Judge Danny Sudeyko said the “non-consensual sexual contact” alleged by the girl “may have occurred,” the boy’s “plain” testimony, combined with texts and other evidence, left reasonable doubt about whether a sexual assault took place.
And as for consent, although the girl was 11 years old, the judge concluded that the Crown had failed to prove that the boy knew she was under 12 years old. And they were close enough in age that the defendant could argue that he thought she was old enough to say yes.
‘Some sort of date’
According to the decision, the two “connected on social media” in late April 2023. They attended different high schools.
The boy, known as GE, was in seventh grade and the girl, SM, was in sixth grade.
“In addition to significantly ‘chatting’ on social media, GE and SM saw each other a couple of times in each other’s company, and were briefly alone on one or perhaps two occasions,” Sudeyko wrote.
“They had kissed. SM described this as ‘kind of a date’ but ‘not really official’.”
The couple met at the end of May 2023 in an area between a recreation center and another building. As a result, much of what happened next was caught on CCTV cameras.
According to the ruling, GE and SM “kissed and hugged” in a first encounter, and “GE also touched or put his lips or mouth on SM’s chest and touched his buttocks.”
“That initial sexual encounter was captured for the most part and the video was played in court,” Sudeyko wrote, noting that the video showed SM noticing the presence of the camera.
“That discovery was also captured on CCTV, with SM showing the camera above them to GE, after which, in what appeared to be somewhat embarrassing, they walked away.”
‘Forceful in his conduct’
The next encounter occurred on a staircase partially covered by CCTV, which captured the couple entering, exiting and “standing together on the stairs and looking at their phones”.
Away from the camera’s eye, SM claimed that GE exposed his penis, pulled down his stockings and “pushed or slammed his penis against the cheek of his exposed buttocks, skin to skin.”
“SM says that, apart from some consensual kisses and hugs, GE was forceful in his behavior toward her. At one point she wanted to leave, but she says he said no,” the judge wrote.
“GE says it did not force SM to go or stay on the staircase, and that any sexual contact that occurred was with her consent.”
According to the ruling, “GE said SM said ‘I love you’ when she left, and he responded the same,” a claim SM acknowledged on cross-examination after initially telling police otherwise.
The day after the encounter, SM’s friends suggested that GE was cheating on her and sent her a video showing him with other girls. He denied the accusation.
The next day, SM spoke about what happened with her grandmother, who took her to a police station.
“His age and inability to consent were apparently not considered by the police officer who conducted the interview, focusing on the issue of subjective consent during the sexual encounter,” the judge wrote.
“There was no reference to her age, nor to her having informed GE of her age or grade. However, when asked by the police officer about GE’s age, SM said that ‘she had just turned 13’.”
Instead, the question of SM’s age (and the age GE believed him to be) occupied his judgment.
Exception for close ages
Although Sudeyko said the Crown had failed to prove GE was “reckless or willfully blind to SM’s lack of consent,” prosecutors still argued the boy failed to take reasonable steps to determine his age.
Neither GE nor SM “directly reported or discussed their respective ages or grades,” but Sudeyko said he believed GE’s claim that SM told him he was over 11 years old.
Still, the Crown said the “near age” exception should not apply when the complainant is under 12, the youngest age covered by consent laws.
But Sudeyko said the law was written to prevent a defendant from having sexual relations with someone he “knew or believed was 11 years old.”
And that wouldn’t apply to a 13-year-old boy who “truly” believed the girl he met on social media was “at least 12.”
If you are in immediate danger or fear for your safety or the safety of others around you, call 911. For help in your area, you can search for crisis lines and local services through Partnership to End Sexual Violence Canada Database.
