R. v. Quash, 2013 BCSC 2499

IN THE SUPREME COURT OF BRITISH COLUMBIA Citation: R. v. Quash, 2013 BCSC 2499 Date: 20130618 Docket: 30122-3 Registry: Terrace Regina v. Kelly David Quash Restriction on publication of the names of the complainants: Pursuant to ss. 486.4(1) and 486.4(2) of the Criminal Code of Canada Before: The Honourable Madam Justice S. Griffin Oral Ruling on No-Evidence Application Counsel for the Crown: Barry N. Zacharias Counsel for the Accused: Timothy D. Klaassen Place and Dates of Voir Dire : Terrace, B.C. June 3-6, 2013 Place and Dates of Trial: Terrace, B.C.

June 6-7, 10-14, 17-21, 2013 Place and Date of Ruling: Terrace, B.C. June 18, 2013 [ 1 ] THE COURT: The defence has made submissions regarding charging the jury at the close of all evidence in this case in relation to counts involving the complainant S.R.

There are three counts in relation to S.R.: Count 1, sexual assault, contrary to s. 271 in the time period June 1, 2007, to October 27, 2011; Count 2 is sexual interference with a person under age 14, contrary to s. 151, in the time period June 1, 2007, to April 30, 2008; and Count 3 is sexual interference with a person under age 16, contrary to s. 151, in the time period May 1, 2008, to October 27, 2011. [ 2 ] The evidence is that the complainant S.R. was born October 29, 1995. There was no contrary evidence, and she was not challenged on her birth date.

Defence counsel has not argued that her age is at issue. [ 3 ] The defence advances two arguments. First, there should be a directed verdict of acquittal on Count 2 because there is no evidence of any sexual interaction between the accused and S.R. before May 1, 2008, and second, that Count 1 should be quashed because it covers a time period beginning June 1, 2007, when consent was a defence if the complainant was aged 14 or over, and S.R. turned 14 as of October 29, 2009, with the time period of the count continuing after that until just before she turned 16. Count 2 [ 4 ] I will start with Count 2.

The defence argues that S.R.'s evidence was consistent that the first time she had a sexual interaction with Kelly Quash was in the summer of 2008 when she was 12. The defence concedes that she never varied from this start date as the earliest occasion of sexual interaction with the accused. One of the things S.R. pointed to in her evidence was that A.B., the accused's cousin, was visiting at the time. Also, it was her evidence that C.R., her cousin, was pregnant.

The evidence is that the baby was born in October of 2008. [ 5 ] Since Count 2 covers a time frame ending prior to the summer of 2008, as it ends April 30, 2008, then according to the defence there is no evidence to put to the jury on that count. [ 6 ] Let me pause to explain why Counts 2 and 3 are in separate counts. [ 7 ] As of May 1, 2008, Parliament changed the age of the victim in the offence of sexual interference, s. 151 of the Criminal Code , R.S.C. 1985, c. C-46 [the “ Code” ], from under 14 years of age to under 16 years of age.

To reflect this age division, Crown advanced the two counts, Counts 2 and 3. [ 8 ] The accused denies any sexual interaction with the complainant S.R. The accused did testify that A.B. visited in the summers of 2007 and 2008. Also, the cross-examination of the complainant challenged her not just on the fact of the incidents occurring but also on the dates of the incidents. Nevertheless, the defence assures me that he does not consider that the complainant's evidence is capable of being interpreted as though a sexual incident might have occurred before May 1, 2008.

[9] The question then is, is there sufficient evidence to put Count 2 to the jury in line with the test in R. v. Charemski, (SCC), [1998] 1 S.C.R. 679? The Crown concedes there is not. [10] I accept the parties' submissions in this regard. There is no evidence of any sexual interaction between the accused and thecomplainant S.R. taking place before May 1, 2008. As such, I will direct a verdict of acquittal with respect to Count 2.

Count 1 [11] That takes me to the next stage of the defence application, respecting Count 1. [12] The time period covered by Count 1 begins June 1, 2007, and runs to October 27, 2011, ending just before S.R. turned 16 yearsold. [13] Effective May 1, 1989, s. 150.1 of the Code set out that consent was not a defence to an accused charged with an offence unders. 151 or s. 271, as well as other sexual offences, if the complainant was under 14 years of age.

This changed to 16 years of age on May1, 2008. [14] I note that s. 150.1 also sets out certain exceptions to this bar on consent acting as a defence based on the complainant's agewhere the accused is close in age, but these exceptions do not apply here. The accused's date of birth is January 10, 1987. He wasroughly eight years older than S.R. [15] Based on the evidence, S.R. would have turned 14 years old on October 29, 2009. She would have turned 16 years old onOctober 29, 2011.

This means that she was under 14 at the time of any sexual activity in the time period covered by the count when theCode treated the age of consent as 14 (which was prior to May 1, 2008), and she continued being under age 14 until October 29, 2009.

She was under age 16 after the time period when the Code changed and treated the age of consent as 16 (which was after May 1, 2008). [16] Thus the timespan of Count 1 in relation to S.R. covers a time when she was always under the age when her consent to thesexual activity would be a defence, even taking into account the change in the Code from age 14 to age 16 as of May 1, 2008. [17] Nevertheless, the defence argues that because the timespan of the single count starts on June 1, 2007, starting at a time whenthe defence of consent was available where the complainant was 14 years old or older, that the accused is entitled to the benefit of thatdefence once the complainant turned age 14.

The defence argues that Count 1 should be quashed because it straddles the two timeperiods, part of which covers when she may have consented to the sexual activity after she turned 14 and before she turned 16. [18] To put it another way, the defence argues that after S.R. turned 14 on October 29, 2009, her consent to sexual activity will be acomplete defence to the charge of sexual assault for any sexual activity that occurred thereafter.

This is so even though the Code at thattime treated the age of consent as 16 based on the amendment that occurred on May 1, 2008. [19] The defence seems to be relying on the well-established concept that an accused must be tried and punished under the law inforce at the time the offence is committed: see R. v. Geransky Bros. Construction Ltd., 2011 SKQB 88 at para. 13, citing from R. v.Gamble, (SCC), [1988] 2 S.C.R. 595. [20] As well, the defence says it is relying on s. 11(

i) of the Canadian Charter of Rights and Freedoms,

Part I of the ConstitutionAct, 1982, being

Schedule B to the Canada Act 1982 (U.K.), 1982, c. 11, which states that any person charged with a criminal offencehas the right: (

i) if found guilty of the offence and if the punishment for the offence has been varied between the time of commission and the time ofsentencing, to the benefit of the lesser punishment. [21] Mr. Quash is charged with one count of sexual assault against S.R., but the evidence of S.R. was that they had sex several timesover a long period. The law is clear that this may be treated as a single transaction for the purposes of an indictment. Nevertheless, Ifind that it may assist the analysis to conceptualize two possible sexual assaults by Mr. Quash in two counts. [22] If Mr.

Quash had sexual interactions with S.R. before her fourteenth birthday, consent would be no defence under either versionof the Code pre- or post-May 1, 2008. So if Count 1 in the indictment covered the time period from June 1, 2007, to October 28, 2009,one day prior to her fourteenth birthday, consent would be no defence. [23] If Mr. Quash sexually assaulted S.R. after her fourteenth birthday and was charged in a separate count, the time period wouldrun from October 29, 2009, until October 27, 2011, just before she turned 16 and the end of what is currently Count 1.

In that timeperiod, s. 150.1 of the Code provided that consent was not a defence in respect of a complainant under age 16. [24] Indeed, the defence concedes that if Count 1 was amended into two counts covering the two separate time periods, consentwould be no defence.

But the defence argues because the time period in the count starts as of June 7, 2007, that start date, in effect,freezes any defence available throughout the time period covered by the count even if the offence was committed at a later time in thetimespan covered by the count when that defence was not available. [25] The defence could point to no authority in support of this proposition. [26] With respect, the defence argument makes no sense to me as it is not based on the principle that an accused should not beconvicted of an offence that did not exist at the time of commission of an offence, or to put the same concept on the flip side, that theaccused should not be deprived of a defence that existed at the time of the commission of an offence. [27] If Mr.

Quash had sex with S.R. later in the time period covered by Count 1, and at that time the defence that she was over 14 but

under 16 was not available, he has not been deprived of any defence available to him at the time of commission of an offence. [ 28 ] Regardless of what time period Mr. Quash might have had sex with S.R., in the time period covered by Count 1, he has never had available to him the defence of consent pursuant to s. 150.1 of the Code due to her age. Her age did not stay static nor did the defence of consent. [ 29 ] In other words, the Crown does not have to prove a lack of consent as an element of the offence no matter when it occurred within the time frame of Count 1.

This does not change by reason of the fact that the accused is charged in a single count. The single count has not deprived the accused of a defence that would have otherwise been available to him at the time of the conduct constituting the offence. [ 30 ] I point out that the defence argument is purely technical. There is no prejudice to Mr. Quash as a result of the way in which Count 1 is framed.

He has long known the Crown case as to S.R.’s age at least since approximately February 2012. [ 31 ] I have considered whether or not there might be two paths to conviction if a jury was to consider Count 1, which was the problem in R. v. Sharpe , 2007 BCCA 191 [ Sharpe ]. In that case, the indictment spanned a date when the complainant turned 14 such that lack of consent became an element that the Crown had to prove after that date. This was in a time period before the change of the age of consent in the Code .

The Court of Appeal found that the jurors could have been split on the elements of the offence necessary to convict: those that found that the complainant was 13 at the time of the sexual incident may have felt there was consent but it was no defence; those that found the complainant was 14 at the time of the sexual incident would have to conclude that there was no consent and thus no defence. [ 32 ] In Sharpe , the Court of Appeal held, at para. 35: The principle that emerges from these cases is, first and foremost, that the jury must unanimously agree that the Crown has made out the essential elements or ingredients of the offence.

The corollary is that the count must be framed so that there is a single set of elements upon which the jury can be unanimous. [ 33 ] The problem in Sharpe does not exist here. There is only one path to conviction, even if some jurors might think a sexual incident happened before the complainant turned 14, and others might think a sexual incident happened after she turned 14 but still would have been when she was under 16 based on the end date in the count.

Either way, the lack of consent is not an element of the offence that the Crown must prove, given her age at the time and the available defences at the time of the commission of the offence. [ 34 ] Likewise, I find that the problem that existed in R. v. Evans , 2013 BCSC 462 [ Evans ], does not apply here. In Evans , the law on self-defence changed after the time of the offence. The court held that the legislation applied prospectively only. For a different view, see R. v. Pandurevic , 2013 ONSC 2978 . [ 35 ] The key to the analysis in Evans was the fact that the law changed after the commission of the offence.

This is not the situation in the case at bar. The law did not change after the commission of the offence in any way that affects the elements of the offence in this case given that the complainant's age paralleled the changes in the law. She was under 14 when the age of consent was 14; she was under 16 when the age of consent was 16. [ 36 ] The Crown points out that what the defence requests is quite inconsistent with the directed verdict of acquittal that the defence seeks in respect of Count 2. The defence position is that any evidence of sexual contact between the accused and S.R. occurred after May 1, 2008.

After this date, she had to be aged 16 to consent, and she was not. [ 37 ] I conclude that there is no basis for quashing Count 1. Based on her date of birth, S.R.’s consent to sexual activity with Mr. Quash cannot be a defence to a charge of sexual assault throughout the time period of Count 1. [ 38 ] The Crown, in submissions, did suggest an alternative or additional approach which I have considered may be of assistance here in instructing the jury. Pursuant to s. 601 of the Code , Count 1 could be amended so that the start date is May 1, 2008.

This could be done without injustice to the accused and would prevent any confusion for the jury. I agree that this is a suitable course here as the jury will have to focus on the same time period for Count 1 as Count 3, and it is the same sexual conduct underlying both charges. If I give a directed verdict for Count 2 and at the same time tell the jury that Count 1 is amended to start with the time period of May 1, 2008, it will make the instructions to them less confusing and it will match the evidence at trial.

This is the course I will adopt. _________________________________________ The Honourable Madam Justice Susan A. Griffin