WARNING: This story contains graphic details of sexual assault allegations between minors.
He was a little past 13. And she was just shy of her 12th birthday.
They connected on social media, arranging a middle school meet up that ended in sexual contact. After, they both said “I love you.”
Two days later, she accused him of sexual assault — a charge he denied.
The age of consent
The trial that followed saw the boy acquitted in a shocking case that highlights issues of sex between minors and exceptions to the age of consent in Canada.
The details are contained in a provincial court decision handed down this July, but only recently posted online. The location of the court and the city where the incident happened — somewhere in B.C. — 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 sex with a person in a position of authority or in relation to an activity involving exploitation.
In order to recognize the realities of modern life, Parliament has carved out exceptions to consent laws where an older accused is “close in age” to an alleged victim.
The Criminal Code says 14 and 15 year olds can consent to sex with someone up to five years older. And 12 and 13 year olds can consent to sex with someone two years older. Children below the age of 12 cannot consent to sexual activity.
But in the B.C. case, the boy argued he thought the girl was older than 11.
While Judge Danny Sudeyko said the “non-consensual sexual contact” alleged by the girl “may have occurred,” the boy’s “straightforward” testimony, combined with texts and other evidence left reasonable doubt as to whether a sexual assault took place.
And as for consent — even though the girl was 11, the judge concluded the Crown had failed to prove the boy knew she was under 12. And they were close enough in age that the accused could argue he thought she was old enough to say yes.
‘Sort of dating’
According to the decision, the two “connected on social media” in late April 2023. They attended different middle schools.
The boy — known as G.E. — was in Grade 7 and the girl — S.M. — was in Grade 6.
“In addition to significant ‘chatting’ on social media, G.E. and S.M. saw each other a couple of times in the company of others, and were briefly alone on one or perhaps, two occasions,” Sudeyko wrote.
“They had kissed. S.M. described this as ‘sort of dating’ but ‘not really official.'”
The pair met up at the end of May 2023 in an area between a recreation centre and another building. As a result, much of what happened next was caught on CCTV cameras.
According to the ruling, G.E. and S.M. “kissed and embraced” in a first encounter, and “G.E. also touched or put his lips or mouth on S.M.’s breast and touched her buttocks.”
“That initial sexual encounter was mostly captured and the video was played for the court,” Sudeyko wrote, noting that the video showed S.M. noticing the presence of the camera.
“That discovery was also captured by the CCTV, with S.M. showing the camera above them to G.E., following which — what looked to be some embarrassment — they moved away.”
‘Forceful in his conduct’
The next encounter happened in a stairwell only partially covered by CCTV, which caught the pair entering, leaving and “standing together on the stairs and looking at their phones.”
Away from the camera’s eye, S.M. claimed G.E. exposed his penis, pulled down her tights and “pushed or slapped his penis against the cheek of her exposed buttocks, skin to skin.”
“S.M. says that aside from some consensual kissing and hugging, G.E. was forceful in his conduct towards her. At one point she wanted to leave, but says he said no,” the judge wrote.
“G.E. says that he did not force S.M. to go to, or remain in the stairwell, and that all sexual contact that occurred was with her consent.”
According to the ruling, “G.E. said S.M. said ‘I love you’ as she left, and he said that back” — a claim S.M. acknowledged in cross-examination after initially telling police otherwise.
The day after the encounter, S.M.’s friends suggested G.E. was cheating on her, forwarding a video showing him with other girls. He denied the allegation.
The next day, S.M. spoke about what had happened with her grandmother, who took her to a police station.
“Her age and incapacity to provide consent was not seemingly considered by the police officer performing the interview, focusing on the issue of subjective consent during the sexual encounter,” the judge wrote.
“There was no reference to her age, or to her having informed G.E. of her age or grade. However, when asked by the police officer about G.E.’s age, S.M. said he had ‘just turned 13.'”
By contrast, the question of S.M.’s age — and how old G.E. believed her to be — occupied his trial.
‘Close-in-age’ exception
Even though Sudeyko said the Crown had failed to prove G.E. was “either reckless or willfully blind to a lack of consent from S.M.,” prosecutors still argued the boy failed to take reasonable steps to ascertain her age.
Neither G.E. or S.M. “directly informed or directly discussed their respective ages or grades,” but Sudeyko said he believed G.E’s claim that S.M. told him she was older than 11.
Even so, the Crown claimed the “close-in-age” exception should not apply when the complainant is under the age of 12 — the youngest age contemplated in the laws surrounding consent.
But Sudeyko said the law was written to prevent an accused having sex with someone they “knew or believed to be 11 years old.”
And that wouldn’t apply to a 13-year-old who “genuinely” believed the girl he met on social media was “at least 12.”
If you’re in immediate danger or fear for your safety or that of others around you, please call 911. For support in your area, you can look for crisis lines and local services via the Ending Sexual Violence Association of Canada database.
