SELECTED CASE LAW
NEWFOUNDLAND AND LABRADOR:
In 2015 NLCA 19, the Crown appealed Ms. B’s sentence on the sexual assault conviction and the length of the sexual offender registration.
Ms. B was convicted of sexual assault and sexually touching a child at trial. She was acquitted of invitation to sexual touching.
Ms. B, a 23-year-old woman at the time of the offence, sexually assaulted her neighbour, a 12-year-old boy. She touched his genitals on several occasions and had sexual intercourse with him on two separate occasions. The two were in contact via text message, including to arrange sexual contact, and the boy believed they were in a romantic relationship. He believed Ms. B was going to break up with her boyfriend so the boy could move in with her. However, the boy was too young to legally sexually consent to the sexual contact. Ms. B showed no remorse for her actions and denied sexually assaulting the boy.
An aggravating factor included their text messaging, which the trial judge found “akin to luring”. Ms. B had asked the boy if he loved her, told him to text her when he was alone, and complained that he was not responding to her messages because his mother told him not to, among other things. This along with their frequent meetings added up to “a pattern of manipulation of the boy for the purpose of Ms. B’s sexual gratification.” [1] But the court did note that she did not explicitly ask the boy to sexually touch her via text.
At trial, she was sentenced to two years less a day in jail (12 months for each offence) and two years’ probation for both offences. Additional orders included a 20-year registration as a sex offender and a DNA order.
On the issue of the gender of the child and Ms. B, and the child’s willingness to participate in the sexual contact, the court of appeal said this:
Regarding the first issue, there was no evidence tendered to support the proposition that more severe sentences should be imposed where a man sexually assaults a girl as opposed to a woman sexually assaulting a boy. The Criminal Code makes no such distinction. No evidence was provided to demonstrate that the psychological or other impact on boys as victims is less serious than on girls. In this case, the trial judge commented on the long-term effect on the complainant who is undergoing counselling.
Regarding the second issue, the willingness of the child to participate in the offending conduct cannot be equated with consent. Parliament has specified that children below a certain age lack sufficient maturity and are mentally and psychologically incapable of consenting. Further, psychological manipulation of the child by grooming or luring may lead the child to a false understanding or naïve perception of the relationship with the adult.[2]
The Appeal Court found that Ms. B’s 12-month jail sentence for sexual assault against a child where there is intercourse was too short. Her sentence for this offence was increased to 20 months to be served concurrently with a reduced sentence of a four month sentence for sexually touching a child. The two years’ probation remained the same. Her sexual offender registration was increased to a lifetime registration.
Also see: 2017 NLCA 11 (Application for legal aid); 2016 NLTD(G) 160 (Sentencing); 2016 NLTD(G) 149 (Trial).
[1] At para 34
[2] At para 28-29.
Criminal Offence(s): Sexual Assault