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Court of Appeal rules it's up to the Crown, not the judge, to challenge evidence at trial
A woman who was involved in a consensual sexual relationship with a 15-year-old boy and got pregnant didn’t break the law, despite suggestions she was older than is legally permissible, the province’s top court has ruled.
In a decision delivered this week by the Newfoundland and Labrador Court of Appeal in St. John’s, a panel of three judges said Newfoundland and Labrador Supreme Court Justice Kendra Goulding, who presided over the trial, was right to acquit the woman of a sexual interference charge.
Under Canadian law, a person between the ages of 14 and 16 cannot consent to sex with a person who is more than five years older. The woman in this case was charged after a social worker received anonymous information that she was more than five years older than the boy.
The woman — whose name is banned from publication to protect the identity of the boy, now 16 — had no date of birth listed on documents at court when The Telegram checked Friday.
While the woman chose not to testify at her trial, the court heard from the boy’s mother, who knew about the relationship and that the couple planned to be married and considered it appropriate. The mother said the woman was “four or five years older” than her son.
There was no other evidence presented about her age.
Goulding found the mother’s evidence about the woman’s age raised reasonable doubt and found her not guilty.
The Crown appealed, arguing that the judge was wrong to rely on the mother’s evidence about the woman’s age and failed to search out the information in the court file. The Crown argued it was just the mother’s opinion, not evidence that should have been admitted or relied on.
Arguments were presented at Appeals Court on Sept. 9. Arnold Hussey presented for the Crown, while Jason Edwards argued the woman’s case.
However, the three-person appeals panel — Chief Justice Deborah Fry, Justice William Goodridge and Justice F.P. O’Brien — said the mother’s testimony about the woman’s age was admissible, and they found her to be credible and trustworthy.
“There was a factual foundation to the evidence,” the appeal decision read. “(The mother) had a seven-year connection with the woman, as a neighbour,” and as her son’s girlfriend.
But more importantly, the judges noted, the Appeal Court couldn’t determine if the trial properly applied the provisions of the law because the Crown didn’t question the mother’s evidence about the woman’s age at trial.
“The Crown elicited this age evidence from (the mother), did not ask further questions to clarify and did not call further evidence to contradict (her),” the decision states.
“The Crown has the burden, always, to prove the essential elements of an offence.”
The decision said the trial judge doesn’t have a duty to examine the court record and, in fairness to the case, shouldn’t, since the defence wouldn’t have the opportunity to challenge it.
“The Crown had an onus to counter that evidence (from the mother) and prove that the age gap was five years or more,” the decision states. “It failed to do so.”