Woman gets 5.5 years for sexual assault and a School Board suspension of trustees unlawful

Legally Speaking with Michael Mulligan

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 or exploitation with them.
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.
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.”
Follow this link for links to the cases discussed.