R. v. Gale Date:, 2012 BCPC 456

Citation: R. v. Gale Date: 20121217 2012 BCPC 0456 File No: 16151-1 Registry: Sechelt IN THE PROVINCIAL COURT OF BRITISH COLUMBIA REGINA v. HAYDEN ACE GALE EXCERPTS FROM PROCEEDINGS REASONS FOR JUDGMENT OF THE HONOURABLE JUDGE S. M. MERRICK BAN ON PUBLICATION 486.4(2) CCC Counsel for the Crown: M. West

Counsel for the Defendant: D. Fairweather Place of Hearing: Sechelt, B.C. Date of Judgment: December 17, 2012 [1] THE COURT: Hayden Gale is charged with sexually assaulting M.M. and touching M.M. for a sexual purpose. [2] In late 2011 or early 2012, Ms. M. dated a friend of Mr. Gale's. It was through that friend that Ms. M. and Mr. Gale wereintroduced. [3] Ms. M. and Mr. Gale communicated with each other via Facebook and text, culminating with the two meeting in Gibsons onJanuary 14, 2012. They met at Mr.

Gale's brother's house, and at his brother's house there was consensual sexual contact between thetwo of them. Ms. M. was 13 years old at the time. [4] Ms. M. testified that via text, she told Mr. Gale she was 13 years old, and he replied, "That is awkward." [5] Mr. Gale testified and denied that Ms. M. told him she was 13. He further testified that he took steps to determine Ms. M.'s ageand that he believed she was 17 or 18. [6] The issues before me are (1) credibility, and (2) has the Crown proven beyond a reasonable doubt that Mr.

Gale did not take allreasonable steps to ascertain the complainant's age or that he did not have an honest belief as to the complainant's age? [7] When assessing a witness's credibility and reliability, I consider their testimony from three perspectives: (1) their truthfulness,(2) their objectivity, and (3) the accuracy of their observations (see R. v. Gladue, 2005 BCPC 365 , a decision of my colleagueJudge Rounthwaite). [8] With respect to Ms.

M.'s testimony, there were numerous contradictions in her testimony, and as a result, while I accept someof her evidence, due to the numerous contradictions, I specifically reject her testimony that she told Mr. Gale how old she was and that hetexted, "That is awkward." [9] With respect to Mr. Gale's testimony and the testimony of M.S., Mr. Gale's friend who introduced Ms. M. to Mr. Gale, I accepttheir evidence. I have reached this conclusion after considering their testimony from the three perspectives previously mentioned. [10] However, the issue remains: Has the Crown proven beyond a reasonable doubt that Mr.

Gale did not take all reasonable steps toascertain Ms. M.'s age? [11] I must determine what steps would have been reasonable for Mr. Gale to take in the circumstances.

While in certaincircumstances a visual observation may suffice, where it does not, further reasonable steps should be considered having regard to thecomplainant's physical appearance; her behaviour; the ages and appearance of those in her company; the activities engaged in; the times,places, and other circumstances in which the accused observes the complainant; and her conduct. [12] The accused's subjective belief is relevant but not conclusive of this determination: see R. v. P.(L.T.), , adecision of our Court of Appeal; and R. v. Quinones, 2012 BCCA 94 . [13] Mr. Gale did not ask Ms.

M. how old she was nor did he ask what grade she was in. He was not aware of the age of consent andacknowledged people lie in text communications. He was aware that Ms. M. could not travel on the ferry to meet him, that she had sleptover at a friend's, and that the friend that accompanied Ms. M. to meet Mr. Gale had to leave early because her mom told her she had to. [14] There was also a suggestion that Ms. M., her friend, and Mr. Gale would go swimming or skating. [15] Mr. Gale was told by his friend Mr. S. that Ms. M. was his age, 15 or 16. Mr. Gale testified he thought Ms.

M. looked 17 or 18and presented as being older. Ms. M. acknowledged that she appears older than she is and that she talks in a fashion in which peoplethink she is older. I agree with those assessments. [16] Significantly, Mr. Gale asked Ms. M. if she had her "L" licence, to which Ms. M. replied she was too nervous to apply. She didnot tell Mr. Gale she was too young to apply for the "L" licence. [17] The fact that Ms. M. could not travel on the ferry to see Mr.

Gale, the fact she was at a sleepover, the fact she was with a friendwho was 14, and the fact that there was a suggestion that the three go swimming or skating, while all of those are factors which suggestMs. M. was a teenager, none of those, either individually or collectively, suggest that Ms. M. was of a particular age, just that she was ina certain age range. [18] Given the inquiries Mr. Gale made with his friend M. regarding Ms. M.'s age, the fact she looks and presents older than her age,his belief that Ms. M. was 17 or 18, and the fact he asked Ms.

M. if she had her "L" licence, a requirement of which is that you are 16years or older, and Ms. M.'s response, I am satisfied that Mr. Gale took all reasonable steps to ascertain Ms. M.'s age. [19] It is my judgment the Crown has failed to prove beyond a reasonable doubt that Mr. Gale did not take all reasonable steps toascertain Ms. M.'s age in accordance with s. 150.1(4) of the Criminal Code. I therefore find Mr. Gale not guilty of both counts onInformation 16151. (REASONS CONCLUDED)