MAN’S SEX WITH A 14 YEAR OLD WAS LEGAL

This is an interesting case that took place in Canada in which a 27-year-old man had sex with a 14-year-old girl that took place in 1992. 

                                                 

The accused (G) was charged with sexual exploitation of a young teenage girl contrary to what wasn’t then  section 153(1)(a) of the Canadian Criminal Code. A 14-year-old runaway was living with a 27-year-old man in a relationship which she later described as "boyfriend/ girlfriend". He provided her with food and a place to sleep.

The only real issue at his trial was whether the teenage girl was in a relationship of dependency with the accused. The trial judge found that a relationship of dependency had existed because the accused provided the complainant with the necessaries of life. The accused was then convicted and sententenced to two years in a federal penitentiary.  He appealed his conviction.

Strange as it might appear, in 1992 in Canada, the 27-year-old man was legally permitted to have sexual relations with a 14-year-old girl if she gave her consent unless one of three conditions prevailed which were a position of trust, a position of authority or a relationship of dependency. The disentitling condition must exist independently of the sexual relationship.

Currently in Canada, the age of consent is 16 years. This is the age that the criminal law recognizes the legal capacity of a young person to consent to participating in sexual activity. Therefore it is legal for a man to have sexual contact with a teenager who is 16 years or older if the teenager  agrees to have sex with the man.

  

The Canadian Criminal Code now stated that Section 151 was an age-specific charge that criminalizes sexual touching of a person under the age of 16. The manner of touching (termed "interference) is designed to be broad and captures a wide variety of contacts, whether direct or indirect. The section contains mandatory minimums sentences irrespective whether the Crown (prosecutor) proceeds by indictment (felony) or by summary conviction (misdemeanor) process. The maximum penalty is 10 years in prison.

The alleged dependency in this case I am submitting to you was solely economic. That alone is not what was proscribed by the Criminal Code. There was no allegation in this case of any quid pro quo (a favor or advantage granted or expected in return for something such as sex) between the economic support and the sexual relationship. The relationship was therefore not exploitive. There was no obvious power imbalance. The accused did not take the complainant away or keep her away from her home, school, parents or friends. She could have returned home at any point during her stay with the accused. She lived with him because she wanted to and because she preferred living with him to living with her mother.

I will now give you more information about the 14-year-old girl  and the 27-year-old man and how they met. 

G (the accused) worked at a gas station in Toronto and also went to school. He rented the upstairs of a house at 264 Ashdale Avenue with his brother and some friends. The residents of the house paid rent to a landlord in common and shared a common refrigerator for storing food. G stayed on at the house and began living there.  it is not clear who invited JD (the girl to stay with him in the house and if, initially, she was living there with someone other than G. It appears that there was no explicit invitation from either the G or anyone else living at the house. J.D. testified: "Well nobody really said that I could stay, it's just that it happened that I just stayed there." She testified that she initially "dated" another man who was living in the house but this did not last long and, shortly after she came to live at 264 Ashdale, she moved into the G's room. She ended up staying with him for two or three months.

At the time, J.D. had run away from the home where she lived with her mother, stepfather, and three sisters. She was 14 years old and had run away a number of times since she was 13. She kept leaving home because she did not like the house rules imposed by her mother and because she did not get along with her mother and stepfather. There is no suggestion that she was abused at home by anyone or that she was not welcome at home. Indeed, her mother seems to have exerted considerable effort to locate her with a view to persuading her to return home. J.D. had lived with various friends for most of the previous year, and had worked as a prostitute during part of the year. At all times relevant to this charge, she had no source of income.

J.D. described her initial relationship with G as "friends" and later as "boyfriend/girlfriend". It is not clear when the change in status occurred. Approximately three weeks after she moved to 264 Ashdale, she initiated sexual relations with G. The two then had intercourse approximately once a day. G knew that J.D. was 14 years old and a runaway. Through her relationship with the G, the teenager had a place to stay and was provided with food. G also gave her money should she need anything while he was away at work and he bought her a ring. They had their picture taken together in a photo booth. G accompanied J.D. on a visit to her mother towards the end of May. After this visit, J.D. went home for about a week, but then returned to the house at 264 Ashdale. G never asked J.D. to contribute to the rent or the cost of food but did suggest, on one occasion, that she find herself a job so that she could help out with the expenses. She testified that if she had not stayed with G, then she would probably have lived with friends or on the street. She did not want to go home. In fact, while she was residing with G, she did not want her mother to even know where she was living because she feared that her mother would call the police to have them bring her home

During the trial, J.D. was asked to describe how she felt about having intercourse every day with G. She replied: "I don't know. Sometimes I felt obligated, sometimes I wanted to, sometimes I didn't want to." When pressed to explain what she meant by "obligated" she responded: "I don't know. It was a feeling I got. I don't know, 'cause things happened in my past and I just felt those feelings every time."

It appears that J.D. had been sexually abused by her natural father. When asked what she felt would happen if she refused intercourse with G. She replied "I don't know. In little ways I thought I wouldn't be able to stay there for much longer." She testified that G never said anything to her in this regard and did not pressure her to have sex with him.    

It is not clear when or how J.D.'s mother determined where her daughter was living but she must have found out that J.D. was living at 264 Ashdale because she contacted the police and on June 18, 1992 they attended at the house and apprehended J.D. as a child in need of protection. Some two weeks later, they returned to the house and arrested G. He gave a statement in which he admitted having a sexual relationship with J.D. while she was living with him.

Judge Moore convicted the man and sentenced him to two years in a federal penitentiary. He appealed his conviction to the Ontario Court of Appeal.

During the hearing at the Court of Appeal, the lawyers for both parties were in agreement that the word "dependency" is not used in any other section of the Code and they were unable to determine the origin of the word as it relates to this offence. Although the word "dependency" appears in the Law Reform Commission of Canada, Working Paper 22: Criminal Law—Sexual Offences and the Law Reform Commission of Canada, Report 10: Sexual there was no attempt to define or otherwise elucidate this concept. The Report of the Committee on Sexual Offences Against Children and Youth, which is most exhaustive in its study of the need for protection for children and young persons, recommended, as criminal, only sexual activity between a person in a position of trust and a young person. There is no discussion of the meaning of the term "dependency" in the debates of the House of Commons when the amendments to the Code were introduced. We were referred to some cases in which s. 153(1)(a) was invoked but none of them were binding on this court and I did not find them persuasive in deciding this case on its particular facts.

The trial judge dealt with the word,  "dependency" as follows:

“I could find no previous case dealing with this issue and counsel were unable to refer me to any. According to the dictionary "dependency" is defined as a relationship between two persons where one is sustained by another or looks to or relies on the aid of another for support or for reasonable necessaries consistent with the dependant's position in life. The authority for that would be Black's Law Dictionary and the Concise Oxford Dictionary, p. 327.”

As an aside, I was one of the 24 persons who compiled the 140,000 entry words in the Canadian Gage Dictionary in 1982. We defined the word “dependency” as to mean, “a person or thing that depends on existence or help.” If the judge had taken the time to look for our dictionary, he would have also found the description he was looking for.

With great respect to the trial judge, I do not think that a dictionary definition is sufficient to interpret the will of Parliament in this particular case. I start with the proposition that having sexual relations with a young person between the ages of 14 and 18 was not a criminal offence at the time of G’s trial.  Parliament has seen fit to give more sexual freedom to young persons than the Code  permitted previously. Before the enactment of the present section 153, it was an indictable offence for a male person over the age of 14 to have sexual intercourse with a female person who was not his wife and who was between the ages of 14 and 16 if the female person was of previously chaste character. In this particular case, he was not chaste when she met G because prior to her meeting him, she spent some time on the streets as a prostitute.  

The only defence available to an accused in G’s situation was to show that the female person was "more to blame" for the offence. The concept of chastity which had such importance under the former section 146 was not relevant under the present s. 153. Instead, Parliament had focused on prohibiting sexual relations between young persons and persons with whom they share a special type of relationship marked by trust, authority or dependency. The age of G  was not a relevant consideration under section 153. For this reason,  the 27-year-old man was entitled to have sexual relations with the 14-year-old girl unless one of three conditions prevail. They are: a position of trust, a position of authority, or a relationship of dependency.

In my opinion, it is self-evident that the disentitling condition must exist independently of the sexual relationship. Furthermore, the fact that a young girl moves in with a man more than ten years her senior cannot by itself constitute the prohibited relationship; otherwise the Code would have addressed the problem in those terms. Something else must be present before the young person is afforded protection from sexual activity. In this case, the alleged dependency was solely economic, and I have to question if that alone is what is proscribed by the Code. There was no allegation of any quid pro quo between the economic support and the sexual relationship between G and JD.  He obviously gave her meals and gave her a place to sleep but it wasn’t on the condition that she give him sex in return. Hence, no  quid pro quo existed between them. Hence, no crime was committed.

The relationship on appeal was described by J.D. as "boyfriend/ girlfriend" and there is really nothing on the record to contradict this description. However inappropriate the relationship may appear to those of us with a traditional view of the company a 14-year-old should keep, the association does not become criminal without the added ingredient of dependency. After taking a close and hard look at this relationship, I am not convinced that their relationship amounted to a relationship of dependency within the meaning of sections153(1) of the Code.

 The judge in the court of appeal who wrote the decision for the other two judges hearing his appeals said in part;

“I  am unable to conclude that the relationship was exploitative. I do not perceive an obvious power imbalance. There is no suggestion of violence or coercion on the part of the appellant or any indication that he exercised control or domination over J.D. by any means. It has not been alleged that the appellant had an authoritative personality or that he controlled J.D. either physically or psychologically. Any educational disparity between the two was not developed and there is no reason to believe that it was so dramatic as to turn the appellant into an authority figure. There is no evidence that J.D. was addicted to drugs or alcohol and the appellant took advantage of her addiction. He did not force her to work at all, much less with a view to personally receiving the benefit of her earnings. At most he suggested that she find a job to enable her to contribute to her upkeep. He did not take her away or keep her away from home, school, her parents or her friends.”

While Crown counsel on appeal submitted forcefully that J.D. had no choice but to live with the appellant. The evidence however does not support that assertion. She did not want to go back to her mother because she disliked the house rules and felt she did not get along with her mother or stepfather. No evidence was adduced that these rules were onerous or inappropriate. She clearly could have returned home at any point during her stay with the appellant and she did, in fact, go home for a week during this time period. The Crown's suggestion that she had the hard choice of living with JD or working the streets as a prostitute is simply not borne out by the record. The girl lived with the appellant because she wanted to and because she preferred living with him to living with her mother. She testified that JD would not have wanted to do anything to hurt her. The Crown itself conceded in its factum that she liked the appellant and he was good to her. The girl said that if she had not lived with the appellant then she would have lived with friends. She had lived with friends before meeting the appellant and she was living with friends at the time of the trial.

The Crown's argument that J.D. was economically dependent on the appellant for the necessaries of life because she was too young to legally hold a job misrepresents the object of the labour standards laws. Fourteen-year-olds are prohibited from the work-force because society considers that the parents or guardians of young persons should provide for their basic expenses while they attend school and gain an education. There is nothing in the evidence before the trial or the court of appeal which suggests that J.D. had no other reasonable alternative but to live with the appellant.

In my view, "relationship of dependency", the third prohibited relationship in section 153 of the Code, must be looked at with reference to the other two prohibited relationships, namely, positions of trust or authority. My first thought is that "dependency" isthe inverse of the other two relationships and describes the position of the person subject to feelings of trust or the object of the authority. On reflection, however, it seems to me that Parliament, by using the word "dependency", must have added a category which is he same as the first two. That is to say, something that was an extension of the first two categories which have become somewhat circumscribed by traditional legal definition. In my view, what is contemplated by a relationship of dependency is a relationship in which there is a de facto reliance by a young person on a figure who has assumed a position of power, such as trust or authority, over the young person along non-traditional lines.

Sexual relations are prohibited in relationships of trust, authority and dependency because the nature of the relationship makes the young person particularly vulnerable to the influence of the other person. Under these circumstances it has been determined that any sexual activity, even where it is consensual, involves taking advantage of a person in need of protection and merits society's condemnation. Because a relationship of dependency is a de facto one which can only be determined after due consideration of all the circumstances, it is my opinion that the jurisprudence will have to develop on a case-by-case basis to retain the flexibility that the phrase "relationship of dependency" was intended to provide.

The judge that wrote the court of appeal’s ruling said;

“ I am convinced that the facts of the case on appeal fall short of establishing a relationship of dependency. If sexual relations in the context of the relationship between J.D. and the appellant are criminal, then the offence must be commonplace. Would the police have laid this charge against a 19-year-old male university student living with a 17-year-old co-ed simply because she is unable, even temporarily, to pay her share of the living expenses? Did they lay such a charge against J.D.'s current boyfriend who is 20 years old and, according to her, living with J.D. on the same basis as she lived with the appellant? I think not in either case. My instinct tells me that the charges in the instant case arose out of the traditional view that the age disparity between the parties made the relationship unnatural. This is no longer the law, if it ever was.

The Court of appeal ruled that appellant’s appeal was granted and his conviction vacated.