This week on Legally Speaking with Michael Mulligan:
In 2008 the age at which someone can consent to sexual activity was raised from 14 to 16.
Some exceptions permit people younger than 16 to consent to sexual activity with someone close in age. A 12- or 13-year-old can consent to sexual activity with someone who is less than two years older. A 14- or 15-year-old can consent to sexual activity with someone who is less than five years older.
The close-in-age exceptions do not apply if the other person is in a position of trust or authority towards the complaint or if the complaint is in a relationship of dependency on the other person or is in an exploitative relationship with the other person.
It is also a defence to a charge of sexual assault based on an inability to consent because of age, where the accused person mistakenly believed the complaint was old enough to consent, assuming the accused person took all reasonable steps to confirm the age of the complaint.
What “all reasonable steps” will amount to will depend on the circumstances. If someone looked to be 50 years old, nothing but looking at them would likely be sufficient. If, on the other hand, the complaint looked young and was attending an elementary school, all reasonable steps might include checking ID and making multiple independent inquiries to confirm the person’s age.
In the case discussed, a woman who was 24 or 25 years old at the time engaged in sexual activity with a boy who was, in fact, 15 years old but, according to the accused, claimed to be 18 years old.
The judge hearing the case convicted her on the basis that she needed to make inquiries to confirm the boy’s stated age beyond asking him how old he was.
The woman, who had no criminal record, and was deemed a low risk of reoffending, was sentenced to 5.5 years in jail.
The judge found it would be unfair to male offenders convicted of a similar offence if the woman received a lower sentence than would have been imposed on a male. The judge further concluded that the fact the woman had a 6-year-old son or that she had been sexually assaulted as a child were not reasons to reduce the sentence.
Also, on the show, a case involving the suspension of two elected school trustees is discussed.
The school board in question had 9 members who were divided into two factions on many issued. The majority faction had 5 members and the minority 4.
The majority faction of the board concluded that two members of the minority faction had engaged in a “workplace bullying” of school board employees by statements at meetings and online postings that would cause the employees to be “humiliated or intimidated.” As a punishment, the majority purported to suspend the two members and did not permit them to attend meetings.
On judicial review, the judge hearing the case concluded that the school board had no authority to suspend elected members from attending meetings. She concluded that the School Act, which governs school boards, was a complete code setting out when an elected member could be suspended, and there was no implied authority to do so for other reasons.
Finally, on the show, a case involving a dismissed human rights complaint is discussed. The complainant was fired from his job as a student advisor at the University of BC because he had been using a dating app for gay men to meet people, including 20 university students.
While the student advisor believed that he was discriminated against because of his sexual orientation, he did not have evidence to support this contention. The Court of Appeal concluded that a “mere possibility [of discrimination] … cannot be enough to require a hearing.”
An automated transcript of the show:
Legally Speaking Sep 29, 2022
Adam Stirling [00:00:00] It’s time for our regular segment, Legally Speaking. Joined by Michael Mulligan Barrister and Solicitor with Mulligan Defence Lawyers. Good morning, Michael. How are we doing?
Michael T. Mulligan [00:00:08] Good morning. I’m doing great. Always good to be here.
Adam Stirling [00:00:10] There are some contentious and interesting stories on the docket this week, including a matter involving a woman in her twenties engaging in sexual relations with a teenage boy in the sentence handed down following those encounters. What can you tell us?
Michael T. Mulligan [00:00:25] Yes, indeed. And this is a local case from Western Communities. The first thing to be aware of by way of background is that in Canada there was a change in 2008 to the age of consent for sexual activity. Prior to the change in 2008, the age that somebody was allowed to legally consent to sexual activity was fourteen and in 2008 they increased that from 14 to 16. But they did include a couple of exceptions. There are exceptions, including what are sometimes referred to as close in age exceptions. And that would mean that somebody who is within two years of somebody who’s 12 or 13. Right, there could be consent for, you know, you don’t want to be prosecuting two young people who are consensually doing something.
Adam Stirling [00:01:17] Yes.
Michael T. Mulligan [00:01:18] And as well, there’s an exception for closing the age of five years, for where the complainant is 14 or 15 years of age. So that would allow a 15-year-old to consent to activity. For somebody who’s up to 20, you would depending on it’s just look at their birthdays.
Adam Stirling [00:01:36] Yeah.
Michael T. Mulligan [00:01:37] Now those don’t always apply. They wouldn’t apply if there was some position of trust or authority. So, it is not, you have to be careful with that. And then there’s another issue, which is an issue involving mistaken belief in somebody’s age,.
Adam Stirling [00:01:52] hmm.
Michael T. Mulligan [00:01:52] Because in the criminal law, we punish people who knowingly do something wrong.
Adam Stirling [00:01:56] yes.
Michael T. Mulligan [00:01:56] We don’t generally punish people for mistakes. But with respect to age and ability to consent, there’s a special provision in the Criminal Code that provides that if somebody is relying upon a mistake in age, they are required to take all reasonable steps to determine the age of the person. Now that can be a sliding scale of requires.
Adam Stirling [00:02:22] All steps
Michael T. Mulligan [00:02:24] such as the fact of the case we are dealing with…. (indiscernible)
Adam Stirling [00:02:24] Yeah. The word all we all. Yeah….
Michael T. Mulligan [00:02:26] Now. There could be some circumstances where all reasonable steps would be nothing more than looking at the person. Right. You know, no offence, but I’m sure if somebody looked at you, they would need to take no other steps to determine that you’re over the age of 16.
[00:02:39] Indeed. Yes.
[00:02:40] You look anything, okay, that’s all you need to do. Right. But if you ran into somebody at the junior high school, well, you better be checking birth certificates, getting affidavits, you know, lie detector tests to get there. But, boy, you better be thorough. Now. That brings us to the case that the local case we’re dealing with. And one of the interesting things about it are the gender roles, because the accused in this case was a 24- or 25-year-old woman, a little unclear on the evidence.
Adam Stirling [00:03:14] hmm.
Michael T. Mulligan [00:03:14] And the complainant was a 15-year-old. And the context was that the 15-year-old was some other young people met the accused and another woman and offered to swap marijuana for alcohol. And they wound up having a party together. And the party led to lap dancing and clothes coming off. And eventually, sexual activity between the either, it was unclear, 24- or 25-year-old woman and the 15-year-old. And there was also evidence in this case that the 15-year-old may have claimed to have been 18 years of age. And as well, there was evidence that the woman had asked him about that. Are you sure you’re 18?
Adam Stirling [00:03:58] hmm.
Michael T. Mulligan [00:03:58] And again, the answer was yes. And then her evidence was he said, I wouldn’t be here if I wasn’t.
Adam Stirling [00:04:03] Hmm.
Michael T. Mulligan [00:04:04] And then also the evidence was that not only was there in a not an illegal way, but in a sort of factual way, the 15-year-old boy was very eager to engage in the sexual activity. But that doesn’t matter from a legal perspective. If the person isn’t of age where they are as a matter of law able to consent no matter how willing the person might appear.
Adam Stirling [00:04:31] Yeah.
Michael T. Mulligan [00:04:32] That’s not sufficient. And here the judge found that the onus, of course, remains on the adult. And even where you’ve got somebody who’s very eager and even where they may have claimed to have been older. The judge found that the woman had not taken all reasonable steps to enquire, and the judge took into account things like there was a doubt in her mind because she asked him, Are you sure you’re 18? Right.
Adam Stirling [00:05:00] Yeah.
Michael T. Mulligan [00:05:00] While she said there was yes, but you know, there’s also. Well, yes. Right. But, you know, on the circumstances and fact pattern here, that wasn’t enough.
Adam Stirling [00:05:08] Wow.
Michael T. Mulligan [00:05:08] And so the woman was convicted of sexual assault for engaging in this activity with the 15-year-old, then Internet luring, because she sent a text message to him a short time later saying, you want to come over for a hot make out sesh?
Adam Stirling [00:05:22] Wow.
Michael T. Mulligan [00:05:22] That was Internet luring. And then he did come over and then engage in sexual activity again. And he was, she was sentenced to this despite the fact that she had no previous record, that the judge found she was a low risk to re-offend. The fact that she had been sexually assaulted when she was a child and the fact that she had herself a child that she took care of.
Adam Stirling [00:05:45] ahh.
Michael T. Mulligan [00:05:45] Despite all those factors, the judge sentenced her to five and a half years in the penitentiary.
Adam Stirling [00:05:49] Wow.
Michael T. Mulligan [00:05:50] And in so doing, the judge made reference to the fact that there is a Supreme Court of Canada case dealing with sentencing where the court said mid-range penitentiary terms should be not exceptional, where there’s a conviction for sexual assault involving a child. And the judge concluded that it would be, and this is sort of an interesting analysis of it. He said it would be unfair to men who are convicted to not impose such a long sentence on a woman.
Adam Stirling [00:06:19] Huh.
Michael T. Mulligan [00:06:20] Which is an interesting analysis. I am not sure how, So I scratch my head a little bit at that. I’m not sure that the fairness to other people necessarily would be an element in sentencing, but the judge found that it was not, I suppose, a mitigating or a factor, that the accused was female and not male. And as well, the judge found that it would not be appropriate to reduce the sentence, taking into account that the woman who was convicted was the mother of a child who she took care of. And she said, look, the judge said, look, there are other people the father could take care of the child or relative. And so, a very substantial penitentiary sentence handed out on that fact pattern, which has a number of thought-provoking elements to it. People should be aware of, starting with that issue of taking all reasonable steps. And even though in this case the evidence seems to be that the 15-year-old claimed to be older, and she may have even asked him again about that. And there were some other elements. Of course, this person’s got marijuana that might be some indication of something.
Adam Stirling [00:07:28] yeah.
Michael T. Mulligan [00:07:28] Because there’s a desire to do that. But none of that was enough. More was required. And then even though this person could have consented if it occurred in 2008, that doesn’t matter. The law changed. Interestingly, there was another woman who was also charged. She was acquitted and it would appear she didn’t testify. And the reason for the acquittal, she engaged allegedly in some sexual activity with another young person. There was no evidence as to how old she was.
Adam Stirling [00:07:58] Hmm.
Michael T. Mulligan [00:07:59] And so the problem became it was unclear to the judge whether the there was a gap of less than five years between her and the other person.
Adam Stirling [00:08:09] interesting.
Michael T. Mulligan [00:08:09] Because if somebody is 15, you could consent to sexual activity with somebody who’s 19, for example. And if you don’t know how old the accused is, you can’t tell that. Interesting. And so, in that case, the judge acquitted. But this woman, this accused, testified, and she wanted to give the evidence, I suppose, about asking him his age and him confirming the age and so on. But in so doing, she had to provide her own age. And so, the result for her was a conviction and now a very long penitentiary sentence.
Adam Stirling [00:08:40] All right. Let’s take our first break hereat CFAX 1070, Legally Speaking. We’ll continue with analysis of a recent decision involving Victoria School Board trustees. I’m very interested to hear Michael’s thoughts on this matter right after this.
Adam Stirling [00:08:55] Back on the air here at CFAX 1070, as we continue with, Legally Speaking, Michael Mulligan Barrister and Solicitor with Mulligan Defence Lawyers helping us better understand recent legal decisions and their implications in the community. Now, Michael, this next one is one that I actually was asked about on the program and I declined to comment because the legalities of it were beyond my ability to understand. It involves the Greater Victoria School Board and whether or not authority existed to suspend two elected trustees. Help us understand all this.
Michael T. Mulligan [00:09:23] Yes, indeed. So, first of all, I should say thank you to everyone who’s doing things like serving on the school boards or running for municipal office. I’m sure in many cases it’s a pretty thankless task. In Victoria, the background of this, according to the decision that just came out, was that there had been for some period of time a split on the school board, school district 61 in Victoria, a five-trustee majority and a four-trustee minority on the board who had apparently disagreements about things.
Adam Stirling [00:09:56] Yes.
Michael T. Mulligan [00:09:57] And the case involved two of the minority, And the there were allegations made that the two members of the minority group before in the school board had engaged in behaviour that was harassing or disrespectful with respect to staff members. Staff members of the board. And it was alleged those occurred online and at meetings. That was the essence of it.
Adam Stirling [00:10:24] Yes.
Michael T. Mulligan [00:10:25] And so the majority of the board had an investigation done into that, found that these the two minority members had done that in their view, and decided to suspend them from continuing to sit on the board.
Adam Stirling [00:10:40] Yes.
Michael T. Mulligan [00:10:41] And so that decision to suspend the two, would not let them attend meetings, went to court, not surprisingly. And the B.C. Supreme Court judge concluded that the board lacked legal authority to do what they did. They simply weren’t permitted to suspend elected members on that basis. And the legal analysis involved the judge analyzing the School Act. We even asked for everything, including the School Act and the approach that the board, the majority of the board took, what they argued was, even though the school act doesn’t have any specific provision that allows for the majority to suspend elected representatives because of alleged misconduct, they argued that by necessary implication, that must be allowed. And so, when that kind of an argument is made, what a judge is doing is they’re looking at the legislation and trying to figure out, is this something which is required by necessary implications? Right. Sometimes if legislation says you can do X, it’s sort of implied, it must have meant the legislature included, you know, contemplated doing Y to allow you to do X. Right. And so that’s how that’s what the judge was analyzing. But ultimately, the judge concluded that, no, the School Act had amounted to what the judge found to be a complete code dealing with when somebody could be disqualified from holding office. Like, for example, the school act provides that if a trustee refuses to take the oath of office, they’re disqualified. Or if a trustee is continually absent from board meetings for a period of three consecutive months, unless that’s a result of illness, they could be disqualified and so on. And so, the judge said, look, the legislature passing the School Act did contemplate various circumstances in which somebody could be disqualified. They failed to show up. They wont’s take their oath of office, etc.. And so that’s it. You can’t have a circumstance where the majority decides to prevent the elected representatives from showing up and, you know, performing their elected roles. Right. You can imagine what mischief could come of that.
Adam Stirling [00:13:09] Yeah.
Michael T. Mulligan [00:13:10] Right. So, you know, you just can’t have a circumstance where a government says, for example, we’re a majority. We are going to exclude the opposition from the legislature.
Adam Stirling [00:13:19] Well Exactly.
Michael T. Mulligan [00:13:20] It is disrespectful. The system can’t function that way. And well, I appreciate the argument about sort of necessary implication. And I appreciate as well sort of the arguments about, you know, boy, we have to somehow keep control of things, right?
Adam Stirling [00:13:34] Yes.
Michael T. Mulligan [00:13:35] The and in some cases, I should say and it’s not an argument which is completely from left field, because the school board referenced circumstances where city councils had taken some steps when members had, for example, one case involved a member, it looked like releasing confidential information.
Adam Stirling [00:13:56] Yes.
Michael T. Mulligan [00:13:58] And in that case, the city council removed, passed a motion of censure, as sort of a domino thing, and then removed the individual from sitting on particular committees, for example, for a period of time. But it wasn’t as if they were, you know, removed entirely from city council because they didn’t like how they conducted themselves. And so that was an example of something which the in the context of local government and a different piece of legislation found that that was by necessary implication, the kind of thing that could be done to censure somebody for some serious misconduct. But that’s a different thing from, you know, not allowing the person to act in their elected role at all. Right. That would be sort of in the legislative example. It would be like saying, okay, we don’t want this MLA to be on the, you know, Vacation Committee or something. And we’re going to pass a resolution saying your behaviour is inappropriate. That’s a different thing from telling an elected person you can’t participate at all because you’ve just disenfranchised all the people who voted for that person. Right.
Adam Stirling [00:15:06] Yeah, yeah.
Michael T. Mulligan [00:15:07] And so it’s not as if there is a circumstance where nothing can be done. But what was done here, the judge found was not authorized by the legislation, is obviously has a possibility of pretty serious mischief if you have elected people unable to continue and as well I suppose my other you know what I read this decision is you know, I think we do sometimes have this sort of expectation that a person’s going to be completely cancelled as a result of some behaviour that, you know, he may or may not have been appropriate. I don’t form any judgement on that. I don’t it’s not even clear here precisely what these people did or were alleged to have done. Right. But it’s not always necessary, at least in my view, that the response to, even if conduct was not appropriate in some ways, saying we want to completely cancel this person so they can’t show up at all. That seems like it may be over the top, but the judge here found that they didn’t need to get into an analysis of procedural fairness or any of those things simply because the board lacked the authority to do what it did. And so, these two people are now back on the board right before the election, and the school board has been ordered to pay the legal costs resulting from this decision.
Adam Stirling [00:16:28] Okay.
Michael T. Mulligan [00:16:28] So the two-minority people are back, and we’ll see what the voters think in the upcoming election.
Adam Stirling [00:16:34] All right. Thanks for helping us understand that one, because it was a complicated one. And now, again, I know people who are involved, like Ryan Painter, the chair of the board, has been on these airwaves any number of times over the years. So, I didn’t really want to get into trying to analyze this one. So, I really appreciate your analysis. Michael Thank you.
Michael T. Mulligan [00:16:49] And once again, thank you for everyone. It’s amazing to me for some of these positions which would be time consuming and pay little to spend a whole bunch of time working on issues that could be important to a lot of people. It’s amazing to me that there is an election for school board and that there are more people than our seats willing to do that work.
Adam Stirling [00:17:11] Yeah.
Michael T. Mulligan [00:17:11] would have though, some of these positions, it would be a matter of sending you to a dragnet, trying to dragoon people into spending their evenings.
Adam Stirling [00:17:18] It’s a punishment.
Michael T. Mulligan [00:17:19] That’s not a, you know, hotly contested matter with factions and so on. But anyway, it isn’t a good sign for democracy, and I suppose bodes well for volunteerism generally that you’ve got people willing to spend their time doing it. So, thank you to everyone who’s been serving in that way and are running and volunteering to do it. It’s pretty remarkable.
Adam Stirling [00:17:40] Absolutely. We have 5 minutes remaining in our segment. And one more story. An appeal of a decision dismissing a human rights tribunal claim of discrimination. And there’s a firing, an academic adviser, there’s a dating app involved here. What’s this all about?
Michael T. Mulligan [00:17:53] Yeah. So, this was a person who was an academic advisor at UBC, and the academic advisor was using a dating app for gay men. And the dating app is one which would be based on your geographical location, like you would, I guess, trying to hook people up who were nearby. And the challenge for the academic advisor, I guess, were twofold. One, was that he at some point had linked up, that he was enlisted, that he was in fact a UBC academic advisor on the app. And then he had his address where all the students were and he wound up through the app meeting, I think it was 20 students, one of whom was somebody he had advised, although that person at some meeting arranged, but that person didn’t show up and UBC got wind of this, and they fired him, and he made a human rights complaint. And his human rights complaint was that he alleged he had been discriminated against based on his sexual orientation.
Adam Stirling [00:19:05] Hmm.
Michael T. Mulligan [00:19:05] Because he said, well, you wouldn’t have done this, where he didn’t think that would have happened if somebody was using a dating app for people who weren’t gay. And so that was the issue for the Human Rights Tribunal. Now, the University of British Columbia applied to the Human Rights Tribunal to have the claim dismissed without even having a hearing. And they succeeded. And so that resulted in the fired academic advisor bringing a judicial review first to the B.C. Supreme Court and then to the B.C. Court of Appeal, which is what brought us to the decision that just came out. And the fired academic advisor was arguing that there would be some reason to believe that his sexual orientation was at least part of or may have played a part in the decision to fire him rather than impose some lesser penalty.
Adam Stirling [00:20:04] hmm.
Michael T. Mulligan [00:20:05] And he pointed out that there were other people who worked at the university who were on other dating apps, and they weren’t fired. And he pointed out as well that at the time there was no express provision in the UBC Code of conduct that said an employee could not engage in intimate activity with a student. There were provisions that talked about not using inherent power imbalance or for personal benefits or the more generic terminology.
Adam Stirling [00:20:33] Yes.
Michael T. Mulligan [00:20:33] But he pointed out there wasn’t an express prohibition on that. And so, he wanted to have an opportunity to, I suppose, at a hearing, be able to ask questions and try to explore whether there was some element of discrimination based on sexual orientation. And that’s an interesting argument. When the case was struck out by the Human Rights Tribunal without even having a hearing, they just said, look, this cannot succeed. And ultimately, the way the Court of Appeal approached it is that they were looking at what is the appropriate test for the Human Rights Tribunal, dismissing an application outright without first conducting a hearing. And then was their exercise of discretion in that regard unreasonable in a way that a court could interfere with it? And the Court of Appeals concluded and stressed, referencing an earlier decision, that the mere possibility of discrimination cannot be enough to require a hearing. And they said, well, you know, there can be circumstances where you can point to reasonable inferences that can be drawn that might make it past that test. But mere speculation that that might have been a factor isn’t going to be enough to get you a hearing. So. Right. There’s no doubt that those sort of basic facts aren’t, just aren’t disputed. He was using a gay dating app. There are other people that used other apps that weren’t aimed at gay men that weren’t fired. But on the other hand, there were some elements here, like, you know, evidence that he posted on his profile, that he worked at UBC, and he was connecting with students. And one of the students he connected with was somebody he had counselled.
Adam Stirling [00:22:15] Yes.
Michael T. Mulligan [00:22:15] so the point that the Court of Appeal made was that the original tribunal decision dismissing it was a reasonable one because speculation is not enough. Right. You can’t just say, well, I think this was a factor. I believe it could have been. And so, I want a hearing to be able to explore whether it was. And so, the Court of Appeal upheld both the tribunal decision, the judicial review. And this is, as a result, likely the end of it, finding that this fact pattern was not enough to proceed, and the decision made by the tribunal to dismiss it was an appropriate one.
Adam Stirling [00:22:56] Michael Mulligan, a pleasure, as always. Thanks for your time.
Michael T. Mulligan [00:22:59] Thank you so much. Have a great day.
Adam Stirling [00:23:01] All right. During the second half of our second hour, every Thursday on CFAX 1070 Legally Speaking with Michael Mulligan, Barrister and Solicitor with Mulligan Defence Lawyers. We’ll be right back.
Automatically Transcribed on October 11, 2022 – MULLIGAN DEFENCE LAWYERS