KITCHENER — The acquittal of a 40-year-old man who had sexual intercourse with two underage girls in Kitchener has been upheld by Ontario's highest court.

The Ontario Court of Appeal ruled the trial judge was justified in concluding that a reasonable person would have believed the girls were at least 16 "without the need for further inquiry."

The man said he didn't ask their ages but believed they were at least 17. They were actually 14½ and 15½ years old but portrayed themselves as being older.

The girls willingly participated in sex. The man, who was married with young children, was charged with six sexual offences, including two counts of sexual assault and two counts of sexual interference.

Superior Court Justice Andrew Goodman acquitted him in April 2015. The Appeal Court dismissed an appeal by the prosecution this week.

The girls were hitchhiking on Dec. 2, 2013, in Kitchener when the man picked them up.

They told him they had been at a "college party" and missed their ride home. They said they wanted to go somewhere warm and have "fun."

Inside his car, the girls made "unsolicited, sexually suggestive comments and engaged in conversation with (the man) about sex, partying, drinking and smoking," Ontario Court of Appeal Justice Eleanore Cronk wrote in a ruling.

The man drove the girls to his parents' home in Kitchener. They drank alcohol and went into a backyard hot tub, where he had sex with the 15-year-old. Later, he had sex with the other girl in a bedroom.

Although they willingly participated, "since both girls were under the age of 16 years, as a matter of law, they could not consent to sexual acts," Cronk wrote.

The man, who lived in Waterloo, didn't ask their ages and they didn't tell. He assumed they were older than 16, the age of consent.

The prosecution maintained a reasonable person would have made further inquiries about their age.

Goodman ruled the girls' actions, demeanour and portrayal of being older than they were did not require further inquiries.

Goodman found the girls "essentially admitted at trial that they had engaged in a deliberate, premeditated and successful attempt to present themselves as older than 16," Cronk wrote. "Further, their appearance, actions and words … were specifically designed to achieve this end."

Both girls felt looking mature was "some badge of honour," Goodman said.

The man's counsel, Brian Greenspan and Naomi Lutes, noted the girls told him they finished high school, enjoyed partying and were sexually experienced and intended to have sex that night.

"Their appearance, including their makeup, dress and comportment, was consistent with the information provided," the counsel said.

"When they returned to (his) parents' home, the complainants were sexually forward and acted in a way that was consistent with the ages they portrayed."

Cronk wrote: "Of course, this does not mean that a complainant's conduct and appearance will always (eliminate) the need for further inquiry about the complainant's age. A reasonable person would appreciate that underage children may apply makeup and dress and act so as to appear older."

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But it was open to Goodman to conclude that "a reasonable person would have been satisfied that the complainants were over the age of 16, just as the complainants intended, without the need for further inquiry," Cronk wrote.

Goodman noted the huge difference in the age of the man and the age of the girls.

"The accused testified that he was married at the time with young children. I am not here to judge his morality. However, the accused's age and the discrepancy here is not lost on me."