17-year-old gets probation for sexual assault
Offender was 15 when he had sex with a 12-year-old girl incapable of consenting to such physical intimacy, and it resulted in a pregnancy
A Fredericton teenager who had sex with a girl who was only 12 years old at the time will be on probation for the next year and a half and must attend counselling sessions as part of his sentence.
The 17-year-old boy - whose identity is protected by the provisions of the Youth Criminal Justice Act - was found guilty in February following a trial on charges of sexual assault and sexual interference, otherwise known as touching a minor for a sexual purpose.
The facts before youth court Judge Cameron Gunn were largely agreed to, save for the accused teen's testimony about consent and his belief about her age.
At trial, court heard the defendant, then 15 years old, and a girl, then 12, met in July 2020.
"After an initial in-person meeting and subsequent contact on Facebook Messenger, there were two instances of sexual contact. The parties disagree on the details, but not that the incidents occurred," Gunn said in his decision Feb. 8.
"[The defendant] denied the allegation [of criminal conduct,] admitting that there was sexual activity but claiming that it was consensual and that he had an honest but mistaken belief that [the girl] was 15 at the time of their encounters."
The judge noted the entire case came down to the differing testimony of the accused and the victim, so assessments of credibility were essential in arriving at a decision.
"The accused testified that when he met the [victim], she told him she was born in March 2005 and that he believed them to be of the same age. He said that he checked her on her Facebook profile and it was consistent with what she had told him," Gunn said.
"He testified that he only learned the complainant was 12 when she messaged him and told him she was pregnant."
The girl admitted on the witness stand she had listed the wrong birthdate on Facebook, and she also testified she wasn't really on board with the sexual encounters that occurred.
"With respect to her active, willing participation in the sexual activity, there are aspects of her testimony which cause me doubt about her veracity on that issue," the judge said.
"Some of the evidence suggests her to be a more willing participant than she revealed."
Nevertheless, Gunn said, he did believe portions of her testimony, including the assertion that she and the defendant discussed her age and grade level. They didn't attend the same school, the judge said, so it stood to reason that when they talked about school, where she attended and what grade she was in would logically have come up.
Accused’s story ‘makes no sense’
The defendant, conversely, admitted they talked about how they both hated school but claimed they'd never discussed teachers, courses or the fact the girl was in middle school, the court noted.
Gunn said he didn't believe the accused's testimony that they never discussed where she went to school, what grade she was in or how old she was.
He noted the defendant didn't confront the victim about her lie about her age once he said he learned about it.
"While he said he was focused on the pregnancy, which is understandable, it is simply unbelievable that he would not have asked her about the supposed deception as to age, particularly given his later suggestion that he spoke to a guidance counsellor because 12-year-olds should not be having sex," Gunn said.
"His suggestion that he and the [complainant] talked about school, how they hated it and what classes they hated but never discussed the schools they attended makes no sense."
The judge said even in the event he's mistaken in that assessment, he also found the accused didn't take all reasonable steps to determine the girl's age before engaging in sexual contact with her, noting there were several red flags that would have led him to suspect there was something off about the girl's claim of being 15.
Because the girl was only 12, Gunn said, she didn't have the legal capacity to consent to sex. He found the boy guilty as a result of both counts.
Sentencing hearing
At the boy’s sentencing hearing Wednesday, prosecutor Rebecca Butler noted the defendant has no prior criminal record and has had a hard time during his adolescence.
“He struggled with a number of mental-health issues,” she said, noting the boy suffers from a sense of isolation, in part from recent moves and the separation of his parents.
Court heard that during his pre-sentence report interview, the teenager said, “From the age of 13, my life has kind of sucked.”
The prosecutor said the youth worker who prepared the boy’s report recommended supervised probation as a sentence, and the Crown accepted that, asking the court to impose a period of 18-24 months.
Sentences of probation are commonplace for sexual assaults in youth court, as only the rarest and most extreme of cases tend to result in incarceration for underage offenders.
Defence lawyer Alex Pate said probation and the recommended conditions were acceptable, but he asked the court to consider only 12 months for the probationary period.
“He’s been on conditions now for 2½ years, and there’s been no issues,” Pate said.
His client is employed, completed school early through an equivalency program and plans to pursue a career in the military once he turns 18, he said.
“He appears to be taking the right path here,” Pate said.
Gunn told the offender he realizes the teen has had a difficult time as of late, and that he doesn’t agree with his conviction.
However, the judge said, he gives the boy credit for his efforts to get his education and for working to contribute to his household income.
“It shows drive and determination,” Gunn said.
He imposed an 18-month probation order, noting the length was to ensure the defendant would get access to the full array of counselling and program options available to him, and time to complete them.
Other conditions of the probation order are to have no contact with the victim and to continue to maintain employment.
The judge also ordered him to submit a DNA sample for inclusion in a criminal database.
Gunn inquired of counsel as to whether he should impose an order under the Sex Offender Information Registration Act, but Butler and Pate both noted that order, normally mandatory for sex offences, doesn’t apply to youths under the age of 18.
Don MacPherson can be contacted at ftonindependent@gmail.com.