The Alberta Court of Appeal has set out to erase what it calls the myth that a child's seeming consent to sex with an adult reduces the seriousness of the crime.
In a case in which a 20-year-old man engaged in an unforced, one-time act of oral sex with a 14-year-old girl, the province's highest court has established a starting point for sentencing at three years in prison.
That puts "major sexual interference," even with a seemingly willing child, on the same footing as a severe adult sexual assault in Alberta. And, it is two years longer than the mandatory minimum sentence set for sexual interference by the former Conservative government.
The appeal court said some judges, and the public at large, still put some of the blame on the young for underage sex with adults, despite the former Conservative government's 2008 legislation to raise the age of consent to 16 from 14. (The law contains a five-year "close-in-age" defence.)
"Judges are not immune from this attitude. It can be summed up in four words: 's/he asked for it,'" Chief Justice Catherine Fraser, Justice Marina Paperny and Justice Jack Watson wrote in the case of R v Hajar in late July. A fourth judge agreed to the three-year starting point, and a fifth dissented.
The decision is yet another example of Alberta higher courts challenging myths in sexual-assault cases. In at least five sex-assault cases, lower-court judges have relied on discredited stereotypes about complainants to acquit accused men. In one case, Federal Court Justice Robin Camp, formerly a member of the Alberta Provincial Court, faces dismissal for asking an alleged rape victim why she didn't keep her knees together. In two other cases, Provincial Court judges are under review by the Chief Judge. In all five, the acquittals have been thrown out.
Already, the Manitoba Court of Appeal has cited Alberta's ruling in R v Hajar as it set three years as a starting point for major sexual interference, with or without a seemingly willing partner. Newfoundland and Labrador and Saskatchewan also have three-year starting points, according to the Manitoba appeal court. Ontario sets four to five years as a starting point where a trust relationship exists between adult and child.
The Alberta appeal court said Parliament raised the age of consent "to establish a bright line age below which children would be off limits to adults for all sexual activity."
But the court said that "what frequently causes judges to stumble and thereby subverts sentencing is the concept of de facto consent." By de facto consent, they mean that children who cannot legally consent may appear to engage in sex voluntarily. "This notion is not just morally wrong. It is factually wrong, conducive to abuse and trivializes the rights of children."
But the court said, "de facto consent and other irrelevant considerations … have led to wide unjustified sentencing disparity in sentencing those convicted of sexual interference – and will continue to do so absent sentencing guidance."
The appeal court cited five of its own rulings between 2005 and 2013 in which sentences for sexual interference involving de facto consent have been "all over the place," and said there have been more cases from lower courts.
The Hajar case was the first in Alberta, the court said, in which a trial judge had called expert evidence (from University of Calgary psychologist Mike Boyes) on the severe harm to children of having sex with an adult, even where the child seemingly gives consent.
In 2014, Justice Eric Macklin of the Court of Queen's Bench in Edmonton had sentenced Omar Hajar to 15 months in prison for sexual interference and an additional three months for Internet luring. (The judge had discussed de facto consent but said it should be not used to reduce the sentence.) The appeal court said Mr. Hajar, who pleaded guilty, should have received 2 1/2 years for sexual interference and an additional year for Internet luring. But because his case had taken too long to reach trial, they did not raise his actual sentence.
Five judges of the appeal court, rather than the usual three, heard the case, a recognition of its importance. One judge wrote a separate judgment agreeing for the most part with the other three judges. The sole dissenter, Justice Frans Slatter, said the one-year mandatory minimum should be the starting point.
"Parliament was not so naive as to think there is no such thing as de facto consent." He added that the key to the sentence should be the level of exploitation. In relationships of "genuine affection," sentences might be at the lower end, he said.
The majority of the Alberta appeal court suggested that notions of de facto consent are deeply rooted in a legal history that at one time protected girls between 14 and 16 if they were of "previous chaste character."
"There is a durability to rape myths and the predatory behaviour which spawns them that undermine fundamental norms and values in our society," the three judges wrote. "It falls to each generation of judges to ensure that … rape myths not be allowed to poison the fair and impartial application of the criminal law.