R. v. G.B.

2009 BCCA 88 R. v. G.B.

COURT OF APPEAL FOR BRITISH COLUMBIA Citation: R. v. G.B., 2009 BCCA 88 Date: 20090227 Docket: CA36105 Between: Regina Appellant And G.B. Respondent Before: The Honourable Mr. Justice Low The Honourable Madam Justice Kirkpatrick The Honourable Mr. Justice Groberman A. Clark Counsel for the Appellant I. Lawson Counsel for the Respondent Place and Date of Hearing: Vancouver, British Columbia 21 January 2009 Place and Date of Judgment: Vancouver, British Columbia 27 February 2009 Written Reasons by: The Honourable Madam Justice Kirkpatrick Concurred in by: The Honourable Mr. Justice Low The Honourable Mr. Justice Groberman Reasons for Judgment of the Honourable Madam Justice Kirkpatrick: [1] This is a Crown appeal from the acquittal of G.B. on 24 April 2008 in the Supreme Court on a charge that he, as a person in a position of trust or authority towards a young person, D.W., did for a sexual purpose, touch D.W., contrary to s. 153(1)(a) of the Criminal Code, R.S.C. 1985, c. C-46. The sole issue on appeal is whether the trial judge erred in law in acquitting the respondent on the basis that the mens rea of the offence required the respondent to be sexually gratified by the touching. I. BACKGROUND A. Facts [2] The respondent was at the relevant time the foster father of the complainant, D.W., who was temporarily with the respondent and his wife. D.W. has significant intellectual and

developmental impairments. He was 17½ years of age at the time and was sexually mature; in the trial judge's words he wished to "vigorously explore his sexuality", which included a preference for homosexual activity. The respondent masturbated D.W. on three occasions over approximately a three-week period. The trial judge accepted G.B.'s explanation that D.W. persistently "pestered" the respondent to touch him. [3] The Crown's case was principally founded on the accused's statements made to the RCMP following a report from the Ministry of Children and Family Development that D.W. had disclosed to a worker the sexual interaction with the respondent. D.W. was found incompetent to testify at trial. [4] The first incident took place in D.W.'s bedroom. The respondent stated that D.W. was "luring" him to masturbate him. He acknowledged that it was a "mistake" to show D.W. his penis and to then masturbate D.W. [5] The second incident occurred at a shed located about a mile from the respondent's home. The respondent took D.W. to the shed so that D.W. could help him to tear it down. He testified at trial that although he "knew what was coming", the respondent took D.W. with him. They exposed themselves to one another and the respondent masturbated D.W. "to get him relieved". [6] The third incident was described by the respondent only at trial. The respondent was very intoxicated and

invited D.W. to come to the respondent's bedroom. The respondent masturbated him. After that incident, the respondent told D.W. that "this has got to stop", after which time D.W. made his disclosure. [7] G.B. testified that as a child, he was sexually abused by a parish priest over a three-year period when he was pressured by the priest to masturbate him. The relevance of that evidence relates to the respondent's explanation for masturbating D.W. The respondent explained that D.W.'s pressure on him to engage in sexual activity was reminiscent of the abuse he experienced in childhood. The trial judge accepted that to escape the pressure, the respondent simply masturbated D.W. to "release him". B. The Decision of the Trial Judge [8] Central to the trial judge's conclusions were the findings of fact that G. B. gained no sexual gratification from the incidents, that G. B. was motivated in part by his own childhood experience of sexual abuse, and that he knew the masturbation was for the purpose of gratifying D.W.'s needs. As these findings are central to the issue on appeal, I have reproduced the relevant passage from the trial judge's reasons below: [8] I accept Mr. [B]'s version of how and why the incidents occurred, wherein Mr. [B] crossed the line of appropriate handling of this situation to engage in actually touching [D]. I accept as more probable than not, that when these

incidents occurred, not only was Mr. [B] not the pursuer, he gained no sexual gratification, did not have erections himself, and was not seeking sexual release at any time. I accept as more probable than not that the motivation, as strange as it sounds, was to escape the pressure of being harassed by [D] for a sexual relationship, aided by drinking and reliving his nightmare of sexual abuse of almost 50 years before. [9] Thus, I find that the weight of the evidence is that Mr. [B] knew that the purpose of the masturbation was sexual in nature - that is, for the gratification of [D]'s needs - but was not motivated in any way by his own sexual needs; in fact, to the contrary. [9] The trial judge summarized the issue and the positions of the Crown and defence at paras. 11-12, noting their opposing views on the legal relevance of the accused's motivation: [11] This case poses a significant question of the scope of the meaning and application of "for sexual purpose" in s. 153(1)(a) of the Criminal Code. Section 153(1)(a) reads as follows: (a) for a sexual purpose, touches, directly or indirectly, with a part of the body or with an object, any part of the body of the young person; It is contended by the defence that where there is a clear finding that an admitted sexual act, in this case masturbating the victim at the victim's urging, is not done for the sexual gratification and has

no sexual purpose for the accused, that the necessary mens rea is absent and there must be an acquittal. [12] The Crown submits that where the accused knows that there is a sexual purpose to the act of masturbation which he performs on the victim, then the motivation of the accused is irrelevant. The offence is proved. The mens rea element is satisfied by a finding that the accused knows and intends the act to have a sexual purpose. [10] The defence provided the trial judge with two Ontario trial court decisions that considered the meaning of "for a sexual purpose" in relation to ss. 151 and 152 of the Criminal Code: R. v. R.E.E., [2007] O.J. No. 694 (Ont. S.C.J.), and R. v. A.G., [2007] O.J. No. 2370 (Ont. C.J.), which the trial judge ultimately found persuasive. [11] In R. v. R.E.E., a grandfather was acquitted of a charge that he touched his five-year-old grandson in circumstances in which the sexually precocious grandson lay naked with an erect penis behind his grandfather, on the factual basis that there was no evidence that the grandfather actually touched his grandson for a sexual purpose. [12] On appeal to the Ontario Superior Court of Justice, the appeal was dismissed on the ground that "[t]he facts of this case were somewhat unusual as it involved a sexually curious five year old and a grandfather that, although exercising poor judgment, did no acts for a sexual

purpose" (para. 17). [13] In R. v. A.G., an uncle by marriage sought to discipline the complainant for her apparent removal of condoms and a vibrator from the uncle's bedroom by sending the complainant inappropriate suggestive e-mails which invited the complainant to touch herself sexually. The defence was that the emails were sent to shock the complainant and for her to admit that she had taken the items and not "for a sexual purpose". The trial judge acquitted the accused. On appeal, the Crown argued that the meaning of "for a sexual purpose" in s. 152 relates to the kind of touch that is requested. The appeal judge rejected the Crown's argument on the basis that it is the accused who must have the sexual purpose: [23] It is my conclusion that the Crown is wrong in its interpretation of the "for a sexual purpose" element. To me, it is the accused who must have the sexual purpose, and the Crown must make out that element of the offences with its evidence. Usually, of course, the e‑mails or other materials will speak out loudly and justify a strong inference that the accused was seeking sexual gratification, however twisted, from what he did or sent out, but in this case, the defence evidence raised a reasonable doubt in the trial judge's mind and I cannot interfere with that finding. It is not for an appellate judge to tread on the factual turf of the trial judge absent

palpable error. [14] The trial judge in the case at bar was also referred to the decision of the Supreme Court of Canada in R. v. Audet, [1996] 2 S.C.R. 171, 135 D.L.R. (4th) 20 [cited to S.C.R.]. The primary issue in Audet was whether a 22-year-old teacher was in a position of trust or authority in circumstances in which he engaged in a consensual sexual act with a 14-year-old student. [15] The trial judge also recited the following passage from Audet, which emphasizes the obligations of an adult in a position of trust under s. 153: 23 Clearly, Parliament wanted to afford greater protection to young persons. It chose harsher means by criminalizing the activity itself, regardless of whether it is consensual (s. 150.1(1) of the Code), in so far as it involves a person who is in a position or relationship referred to in s. 153(1) with respect to the young person. As Woolridge J. eloquently stated in Hann (No. 2), supra, at p. 36: The implication from the wording of s. 153 is that notwithstanding the consent, desire or wishes of the young person, it is the adult in the position of trust who has the responsibility to decline having any sexual contact whatsoever with that young person. (Emphasis added.) It thus seems evident to me that the respondent's argument is incorrect and that the Crown does not have to establish that the accused actually abused his or her position towards or

relationship with the young person in order to obtain the young person's consent to the alleged sexual activities. [Emphasis in original] [16] The trial judge correctly observed that consent was not in issue in this case. Citing R. v. Audet, the trial judge noted that the Crown must prove four elements beyond a reasonable double. First, it must show that the complainant is a young person within the meaning of s. 153(2). Second, it must show that the accused engaged in one of the activities referred to in s. 153(1). The third element requires the Crown to show that at the time the acts in question were committed, the accused was in a position of trust or authority towards the young person, or the young person was in a relationship of dependency with the accused. The fourth element, the mens rea of the offence, is the one in issue in this appeal. Again citing R. v. Audet, the trial judge noted that the Crown must show that the accused has the mens rea required for each element of the offence, although this does not require proof that the accused actually exploited his or her privileged position. Finally, the trial judge again noted the intent of Parliament to criminalize the sexual activity itself, irrespective of whether it was consensual. [17] The trial judge ultimately concluded that the Crown did not prove beyond a reasonable doubt that the accused committed the acts for a

sexual purpose. In making this conclusion, the trial judge was of the view that the motive of the accused in this case was central to the analysis of mens rea: [31] [T]he legal issue in this case remains to be decided on its unique facts. ls the mens rea to be proved in s. 153(1)(a) one where the motive of the accused is irrelevant? Is there essentially no difference between the knowledge element of the acteus reas and the mens rea of this offence? [32] In my view, to find as contended for by the Crown would be to render this offence one of, at least, strict liability and arguably absolute liability. [33] This case is closer on its facts to those in R. v. E.E. and R. v. A.G. than any others referred to. I find that I do have a reasonable doubt that Mr. [B] committed the three sexual acts with the victim for a sexual purpose, as that phrase is captured by s. 153(1). I acquit him of Count 1. II. DISCUSSION A. The Positions of the Parties on Appeal [18] The Crown contends that the trial judge erred in law in acquitting the respondent by finding that the mens rea of the offence required the respondent to be sexually gratified by the touching. The Crown argues that having found the respondent to be in a position of trust or authority toward a young person, and having found the respondent touched the young person's penis and masturbated him knowing the purpose of the masturbation was

sexual in nature, the trial judge ought to have found the respondent guilty. [19] The Crown submits that the trial judge erred in law by confusing the respondent's explanation for his actions - his motive - with what he knew or intended to do. The Crown emphasizes that the mens rea of the offence is that the accused intended the touching to be for a sexual purpose. [20] The respondent contends that the sexual purpose required to be proved is the accused's purpose in performing the impugned act. The respondent says that in this case the purpose of the contact was not sexual but rather to have the complainant stop pestering him. The respondent argues that if the Crown need only prove that the contact was sexual in nature then, for example, parents who wash their children's genital area would be guilty of the offence on the basis that the required mens rea is an intention to touch the genital area. [21] The respondent takes the position that the sexual conduct in question must be initiated for the accused's own sexual gratification. Thus, the respondent argues the sexual purpose to be proved under s. 153 must be focused on the accused's subjective intention. To support this argument the respondent relies on the decision of the Manitoba Court of Appeal in R. v. Sears (1990), 58 C.C.C. (3d) 62, 66 Man. R. (2d) 47 [cited to C.C.C.]. In that case, a 12 year old girl asked the accused

if she could give him sexual favours in return for money. The accused appealed his conviction for sexual interference on the basis that he was not the primary instigator of the sexual contact. While the court ultimately dismissed the appeal, the respondent contends the emphasized portions of the following passage support his position on appeal (at 64): Although the complainant in this case suggested the sexual interaction, the accused, for his own sexual gratification, made himself available for bodily contact with the complainant. The payment to the complainant by the accused of the $10 establishes the actions by the complainant were for the accused's sexual satisfaction. He was not a passive, unsuspecting recipient of sexual advances by an aggressive child. In reading this section as a whole, it is clear that an accused who intends sexual interaction of any kind with a child and with that intent makes contact with the body of a child "touches" the child and is guilty of an offence. The section addresses not the instigator of the sexual conduct but rather the adult who for his or her own sexual purposes makes contact, whether as a primary actor or not, with the body of a child. [italic emphasis in original; underline emphasis added] [22] The respondent says that in his case, the conduct was not for his own sexual gratification. B. Analysis [23] I would reject the respondent's

arguments in their entirety, on the basis that it is clear the touching was for a sexual purpose. [24] The intent required in s. 153 is that the touching be for a sexual purpose. In the case at bar, the accused's admitted subjective intent was to provide "sexual release" for D.W. There can be no doubt that the act in issue, masturbation, was sexual in nature. There can also be no doubt that the purpose of the touching was sexual in nature. [25] In my opinion, the trial judge erred in implicitly finding that the Crown must prove the accused touched the complainant for his or her own sexual gratification as an element of the offence. All the Crown must prove is that the touching be for a sexual purpose. In this case, no matter how one views the facts, the touching was for a sexual purpose. [26] In my opinion, the cases relied upon by the trial judge, R. v. R.E.E. and R. v. A.G., are factually distinguishable from the case at bar and therefore of limited assistance. [27] Even assuming for the sake of argument that the remarks in Sears support the respondent's position, it is apparent that such remarks have been overtaken by the decision of the Supreme Court of Canada in Audet. In that case the Court made it clear that the section is aimed at the protection of the sexual integrity of children. The forceful remarks at para. 25, while made in the context of the issue of consent, make

it plain that a person in a position of trust or authority is prohibited from engaging in sexual activity with a child: Finally, it is important to note, as Ayles J.A. did, that the courts have up to now consistently rejected any argument similar to that proposed by the respondent. In G. (T.F.), supra, the Ontario Court of Appeal, referring to the Alberta Court of Appeal's decision in Dunk, supra, expressed its complete agreement with this at pp. 222-23: Counsel for the appellant concedes that, on the facts of this case, the appellant was in a position of authority with respect to the complainant. He contends, however, that under s. 153 there must be a nexus between the position of authority and the giving of consent by the young person to the sexual activity; and since there was no proof of any such nexus in this case, the appellant should not have been convicted. With respect we do not agree. The purpose of s. 153 is to make it clear that a person in a position of authority or trust towards a young person is not to engage in sexual activity with that person, even though there is apparent consent. We agree with the interpretation of the section given by Mr. Justice Kerans speaking for the Alberta Court of Appeal in R. v. Dunk, an unreported judgment dated June 3, 1991, (now reported at (1991), 117 A.R. 161, 2 W.A.C. 161) where he said: "The section under review commands

citizens dealing with children in a relationship of trust or authority not to act on apparent consent of that child to any sexual activity. That duty is not limited to cases where the Crown can show some relationship between the trust and consent. Therefore, the learned trial judge was correct not to charge the jury to assess the significance of the factor on the question of consent." [italic emphasis in original; underline emphasis added] [28] From these remarks it is also clear that the section does not prohibit non-sexual contact with children. The sexual nature of the contact is not defined by the area of the body that is touched, but rather by the sexual nature of the touching. Thus, innocent contact such as an inadvertent touching of a sexual area, or contact while at play, or contact while bathing a child would, so long as the touching is not for a sexual purpose, not be prohibited. The determination of whether the touching is for a sexual purpose will be disclosed by the proven circumstances. [29] The respondent's contention that criminal charges will follow whenever an adult bathes their child is entirely without merit. It is obvious that the context of a parent bathing a child's genitals is far removed from the context of a foster parent intentionally masturbating a child in his care. The intent required to be proved was that the touch was for a sexual purpose. The

bathing of a child's genitals is not for a sexual purpose if, in the surrounding circumstances, it is for the purpose of hygiene. The sexual purpose in this case was amply defined by the nature and circumstances of the acts intentionally performed by the respondent. [30] While it may be relevant on a sentencing hearing, in my opinion the respondent's motive was irrelevant to the Crown's proof of the essential elements of the offence. [31] Since I have found the Crown met its burden of proof for each element of the offence, the next matter to consider is whether this Court should enter a verdict of guilty. [32] The Crown submits that but for the trial judge's error of law, the respondent would have been found guilty, since the accused's mens rea was the only constituent element of the offence not proven. The Crown thus urges us to find the respondent guilty pursuant to s. 686(4) of the Criminal Code. [33] The respondent submits that, although not argued at trial, defences of justification or necessity were available and could, if applied, result in an acquittal. [34] In my opinion, there is simply no air of reality to those potential defences in this case. [35] In my opinion, the Crown has satisfied the requirement enunciated in R. v. Cassidy, [1989] 2 S.C.R. 345, 61 D.L.R. (4th) 480, that, had there been a proper application of the law, an acquittal would not have been entered. In my opinion, all the findings necessary to support a verdict of guilty have been made. III. DISPOSITION [36] I would allow the appeal, enter a verdict of guilty, and remit the matter to the Supreme Court for sentencing. "The Honourable Madam Justice Kirkpatrick" I agree: "The Honourable Mr. Justice Low" I agree: "The Honourable Mr. Justice Groberman"