R. v. Hubert Date:, 2016 BCPC 288

Citation: R. v. Hubert Date: 20160224 2016 BCPC 288 File No: 22822-2-C Registry: Nelson IN THE PROVINCIAL COURT OF BRITISH COLUMBIA REGINA v. GREGORY HUBERT REASONS FOR JUDGMENT OF THE HONOURABLE JUDGE HEWSON Counsel for the Crown: S. Patola Counsel for the Defendant: B. Suffredine, Q.C. Place of Hearing: Nelson , B.C. Date of Hearing: November 14, 2014; March 12, April 22 , September 28, 2015; January 11, 12, 2016

Date of Judgment: February 24, 2016 Introduction [ 1 ] Gregory Hubert is charged with six offences. The first is touching B.B. for a sexual purpose, when B.B. was under 16 years of age. The second offence is touching O.B. for a sexual purpose, when O.B. was under 16 years of age. Touching someone under the age of 16 for a sexual purpose is often referred to as sexual interference. The third offence Mr. Hubert is charged with is sexually assaulting B.B., and the fourth is sexually assaulting O.B.

All four of those offences are alleged to have occurred in October 2010. [ 2 ] The accused was also charged with touching O.B. for a sexual purpose, and with sexually assaulting O.B. in January 2011. I dismissed those counts on a no evidence motion by at the conclusion of the Crown’s case. [ 3 ] The Crown called B.B., and T.B. T.B. is the mother of O.B. O.B. did not testify. [ 4 ] The defence called the accused, as well as his stepmother and two sisters. Background [ 5 ] The evidence on the trial established that Mr. Hubert moved to [omitted for publication] , British Columbia in December 2009.

He was subject to court orders that required him to live under conditions with his father and his stepmother. [omitted for publication] is a town on [omitted for publication] , with a population of less than 1500 people. There is one school, for students from kindergarten to Grade 12. The school is called [omitted for publication] . [ 6 ] Sometime in the summer of 2010, Mr. Hubert met B.B. and O.B. near the waterfront in [omitted for publication] . B.B. was born on [omitted for publication] and was aged 15 during the summer and fall of 2010. O.B. was born on [omitted for publication].

She was also 15 years old at the relevant time period. Both girls were in grade 10. [ 7 ] During the summer and early fall of 2010, B.B., O.B. and Mr. Hubert spent a considerable amount of time together. According to Mr. Hubert, the girls were only two people his parents permitted him to bring to their home. [ 8 ] They frequently drank alcohol when they were with each other. Mr. Hubert described how he and O.B. would go into the liquor store to purchase liquor, while B.B. waited outside. He said that O.B. was able to purchase liquor without showing identification. [ 9 ] Mr.

Hubert’s stepmother testified that she met B.B. on one occasion in the summer of 2010, and that B.B. said that she was 17. Mr. Hubert’s sisters testified that they spoke to B.B. on the telephone, and believed that she was 17 on the basis of what she told them, and on the basis of the photographs of her they saw on Facebook. B.B. denied ever telling anyone she was any age other than her actual age. [ 10 ] One night in October 2010, Mr. Hubert and O.B. purchased alcohol for themselves and for B.B., and the three went together to Mr. Hubert’s bedroom.

The two girls consumed a 2 L bottle of cider, along with some beer and whiskey. Mr. Hubert was also drinking alcohol. Later that evening, he had sexual intercourse with both girls. [ 11 ] Mr. Hubert was 23 at the time. He testified that he believed that both girls were 17 years old, and that both girls were consenting to sexual intercourse. Issues [ 12 ] The issues are: a. What evidence is credible? b.

With respect to the charges of sexual assault against each of the two girls, has the Crown proven beyond reasonable doubt that the accused did not have an honest but mistaken belief that the complainant consenting? c. With respect to all four charges, has the Crown proven beyond reasonable doubt that the accused did not take all reasonable steps to ascertain that O.B.’s age was 16 years or more, or that B.B.’s age was 16 years or more?

Law [ 13 ] The principles of law important to this case involve reasonable doubt, the credibility of evidence, the doctrines of actus reus and mens rea and the defence of mistake of fact. Reasonable Doubt [ 14 ] The accused is presumed to be innocent until the Crown has proven each element of an offence beyond a reasonable doubt. The standard of proof beyond reasonable doubt does not apply to the individual items of evidence in the Crown's case, but to the total body of evidence upon which the Crown relies to prove guilt.

The court must find the accused not guilty if it has a reasonable doubt about his guilt after considering all of the evidence. Furthermore, the Crown must prove beyond a reasonable doubt that any defences cannot succeed. Credibility

[15] The rule of reasonable doubt applies to credibility. [16] In R. v. W.(D.) (1991), (SCC), 63 C.C.C. (3d) 397 (S.C.C.) at 409, Cory J. said, "In a case where credibility isimportant, the trial judge must instruct the jury that the rule of reasonable doubt applies to that issue." He said that a trial judge mightwell instruct a jury on the question of credibility along these lines: First, if you believe the evidence of the accused, obviously you must acquit. Secondly, if you do not believe the testimony of the accused but you are left in reasonable doubt by it, you must acquit.

Thirdly, even if you are not left in doubt by the evidence of the accused, you must ask yourself whether, on the basis of the evidencewhich you do accept, you are convinced beyond a reasonable doubt by that evidence of the guilt of the accused. [17] The second step of the test in W.(D.) means that complete acceptance of the evidence of one party and complete rejection of theevidence of the other is not the only possibility.

There is a less extreme position, which includes being unable to resolve the conflictingevidence and, accordingly, being left in a state of reasonable doubt. [18] I may accept all, some or none of the evidence of any witness. The actus reus of the offences [19] Another principle of our criminal law is that a crime consists of an unlawful act (actus reus) by a person with a guilty mind(mens rea).

That requires a consideration of the actus reus and mens rea for both of the different types of crimes alleged against Mr.Hubert. [20] The actus reus of the offence of sexual assault is the intentional application of force to another person, without that person'sconsent, in circumstances of a sexual nature. [21] The actus reus of the offence of sexual interference is touching, directly or indirectly, with a part of the body or with an object,for a sexual purpose, any part of the body, of a person under the age of 16 years. Consent is not a defence [22] Consent is defined in

section 273.1(1) of the Criminal Code as the complainant's voluntary agreement to engage in theparticular sexual activity in question.

Section 150.1(1) of the Code provides that, “in respect of a complainant under the age of 16 years,it is not a defence that the complainant consented to the activity that forms the subject-matter of the charge." Even if one or both of thecomplainants had voluntarily agreed to be touched by the accused, it would not be a factor when considering the actus reus of theoffences before the court. [23] However, that does not end the discussion of consent because the question of apprehended consent is also a factor in theconsideration of the mens rea of the offence of sexual assault.

The mens rea of the offences [24] Over the centuries, the courts have relied on the doctrine of mens rea as a check against the conviction of those who intended nocrime. The mens rea of the offence of sexual assault is the intent to touch the complainant in a sexual manner, when the accused eitherknew of, was reckless about, or was willfully blind to, the complainant's lack of consent.

When considering the question of consent aspart of the mens rea of the offence, the focus is on what was in the mind of the accused. [25] On a charge of sexual assault against a complainant who was younger than sixteen years of age, the mens rea of sexual assaultmight be negated if two conditions were both met. The first condition is that the accused took all reasonable steps to ascertain the age ofthe complainant, and honestly believed that the complainant was sixteen years or older, so that the possibility of consent was notstatutorily barred by

section 150.1(1). The second condition is that either the complainant did consent in fact to being touched in asexual manner, or the accused had an honest but mistaken belief that the accused consented.

Where there is a reasonable doubt aboutboth of those conditions, the accused could not have had the guilty mind necessary before a conviction could be entered. [26] The mens rea of the offence of sexual interference is the intent to touch the complainant, for a sexual purpose, when theaccused either knew, was reckless about, or was willfully blind to the fact that the complainant was under the age of sixteen years. Whether the accused thought the complainant was consenting is not a factor.

However, the mens rea would be negated if the accusedbelieved the complainant to be sixteen or older, after the accused took all reasonable steps to ascertain the complainant’s age. Mistakes of fact [27] Mr. Hubert advances two defences. With respect to the charges of sexual assault, Mr. Hubert submits that he took allreasonable steps to ascertain the age of the complainants and believed the complainant was sixteen years of age or older, and that he hadan honest but mistaken belief in consent.

With respect to the offences of sexual interference, he submits that he took all reasonable stepsto ascertain the age of the complainants and that he believed the complainants were sixteen years of age or older. [28] Both defences are based on what Mr. Hubert claims were mistakes of fact. Although the two girls were not old enough to beable to consent, he thought they were. [29] The nature of a defence of mistake of fact was explained by Dickson J. (and endorsed by the majority) in R. v.

Pappajohn, (SCC), [1980] 2 S.C.R. 120, at 148: Mistake is a defence, then, where it prevents an accused from having the mens rea which the law requires for the very crime with which

he is charged. Mistake of fact is more accurately seen as a negation of guilty intention than as the affirmation of a positive defence. Itavails an accused who acts innocently, pursuant to a flawed perception of the facts, and nonetheless commits the actus reus of anoffence. Mistake is a defence though, in the sense that it is raised as an issue by an accused. [30] Justice Dickson’s statement of the law in R. v. Pappajohn was discussed further in R. v. Park, (SCC), [1995] 2S.C.R. 836 at para. 15 and cited in R. v.

Ewanchuk, (SCC), [1999] 1 S.C.R. 330 at para. 43. [31] The Criminal Code defines when a mistake of fact with respect to consent is not a defence to a charge of sexual assault. Section273.2 makes the defence unavailable where the accused's belief arose from self-induced intoxication, recklessness or willful blindness, orwhere the accused did not take reasonable steps, in the circumstances known to the accused at the time, to ascertain that the complainantwas consenting. [32] The Criminal Code also defines when a mistake of fact with respect to the age of the complainant is not a defence.

Section150.1(4) says that it is not a defence to any of the offences before this court that the accused believed the complainant was 16 years ofage or more at the time the offence was alleged to have been committed unless the accused took all reasonable steps to ascertain the ageof the complainant. All reasonable steps [33] The British Columbia Court of Appeal considered the defence of honest but mistaken belief that a complainant was of the age ofconsent, in circumstances where

section 150.1 (4) applied, in the decision of R. v. L.T.P., (BC CA), [1997] B.C.J.No. 24 (BCCA). At the time of that decision, the age of consent was 14. At paragraph 19, the Court held that for the defence tosucceed, the accused must point to evidence which raises a reasonable doubt that the accused held the requisite belief and in addition,evidence which gives rise to a reasonable doubt that the accused took all reasonable steps to ascertain the complainant’s age. Inparagraph 20, the Court considered what evidence might give rise to such a reasonable doubt.

It said: 20 In considering whether the Crown has proven beyond a reasonable doubt that the accused has not taken all reasonable steps toascertain the complainant’s age, the Court must ask what steps would have been reasonable for the accused to take in the circumstances. As suggested in R. v. Hayes, supra, sometimes a visual observation alone may suffice.

Whether further steps would be reasonablewould depend upon the apparent indicia of the complainant’s age, and the accused’s knowledge of same, including: the accused’sknowledge of the complainant’s physical appearance and behavior; the ages and appearance of others in whose company the complainantis found; the activities engaged in either by the complainant individually, or as part of a group; and the times, places and othercircumstances in which the complainant and her conduct are observed by the accused.

The Court should ask whether, looking at thoseindicia, a reasonable person would believe that the complainant was 14 years of age or more without further enquiry, and if not, whatfurther steps a reasonable person would take in the circumstances to ascertain her age. Evidence as to the accused’s subjective state ofmind is relevant but not conclusive because, as pointed out in R. v. Hayes at page 11, “[a]n accused may believe that he or she has takenall reasonable steps only to find that the trial judge or jury may find it differently”. [34] In R. v. Osborne, (NL CA), [1992] N.J.

No. 312 (Nfld C.A.) at paragraph 62, the Newfoundland Court ofAppeal concluded, … Parliament requires more than an honest belief; it requires a belief resulting from the taking of “all reasonable steps to ascertain theage of the complainant”. Parliament made the act a crime and expects of citizens engaging in sexual activity with young people to makea reasonable effort to ascertain the age of prospective partners. It is more than a casual requirement. There must be an earnest enquiry orsome other compelling factor that obviates the need for an enquiry. [35] More recently, in the case of R. v.

Saliba, 2013 ONCA 661, the Ontario Court of Appeal underlined the importance ofmaintaining a distinction between the accused’s state of mind with respect to the age of the complainant, and the steps that a reasonableperson would have taken in the circumstances to ascertain the complainant’s age. Evidence Honest but mistaken belief in consent [36] Mr.

Hubert says, with respect to the two sexual assault charges, that in addition to taking all reasonable steps to ascertain theages of the two girls, he had an honest but mistaken belief that they were consenting to have sexual intercourse with him. [37] The evidence with respect to an honest but mistaken belief in consent is limited, but not seriously in dispute. On the night of theincident in October 2010, B.B., O.B. and Mr. Hubert had consumed a considerable amount of alcohol. They returned to his bedroomwhere he had sexual intercourse with both girls. [38] B.B. does not recall arriving at Mr. Hubert’s house.

She remembers waking up naked on his bed. Mr. Hubert and O.B. werehaving sexual intercourse on the bed to her left. She remembers trying to get up and Mr. Hubert pushing her down and asking herwhether she wanted some more, and then having sexual intercourse with her. She does not remember speaking to him or indicatinganything with respect to her consent. She remembers nothing further, until she arrived back at her residence fully dressed. [39] Mr. Hubert’s evidence is consistent, except that he did not think that B.B. had passed out.

He admits having sexual intercoursewith both girls. [40] O.B. did not give evidence. [41] Given the evidence before me, I am satisfied that Mr. Hubert might have had an honest but mistaken belief that B.B. and O.B.were consenting. That, however, does not end the enquiry. Before he is entitled to be acquitted of the two counts of sexual assault, Imust also be satisfied that the crown has failed to prove beyond a reasonable doubt that he did not take all reasonable steps to ascertain

the ages of the two girls. All reasonable steps [ 42 ] Since the accused had sexual intercourse with two girls who were both under the age of 16, the analysis of whether he took all reasonable steps to ascertain the ages of each girl must distinguish between the steps taken in relation to one girl, and the steps taken in relation to the other. [ 43 ] Sometime in the summer of 2010, a brief conversation took place between Mr. Hubert’s stepmother, and one or both of the girls. Mr.

Hubert, his stepmother and B.B. were all questioned about this conversation, but their testimony about it differed in significant respects. [ 44 ] Mr. Hubert’s stepmother, Wendy Zelter, testified that one day that summer, a couple of weeks after Mr. Hubert had told her that B.B. was 17 years old, Breanna was introduced to her by Mr. Hubert. Ms. Zelter said that, in a brief conversation, B.B. told her that she was going to school and that she was 17 years old. Ms. Zelter said she did not disbelieve her, which I took to mean she believed what she was told. Ms.

Zelter had a far more vague recollection of interacting with O.B., and in fact at trial did not initially remember O.B.’s first name. Ms. Zelter knew very little about the court ordered conditions under which Mr. Hubert was living in her home, and testified that there was no need for strict rules about what friends Mr. Hubert could have over to the house. She did not know that Mr. Hubert was drinking in the basement of her house with B.B. and O.B., or that they were having sex. [ 45 ] Mr.

Hubert testified that the first and only time that he heard either girl state her age was when he brought them to his house and they met his parents. He said that he heard his stepmother ask their age, and one of them said 17. He did not know which girl spoke. The other girl did not answer, either to confirm or deny the stated age. Mr. Hubert said that he assumed they were the same age. Mr. Hubert also testified that there were strict rules about who could come to the house. [ 46 ] B.B. testified that she did not know Wendy Zelter, and did not think that she had ever seen her. Counsel for Mr.

Hubert asked B.B. whether she had ever been present when O.B. was asked her age by Ms. Zelter, and B.B. said no. B.B. did not agree with the suggestion that Ms. Zelter had asked B.B. about her age and that she had said she was 17. [ 47 ] It is difficult to make sense of the conflicts in the evidence of the three witnesses with respect to this conversation. The passage of time appears to have affected the memories of all witnesses on this matter. Ms. Zelter showed no bias in favour of her stepson, and in fact testified that she did not like him very much.

She appeared to believe that the girl that she spoke to was B.B., but her certainty about that point is not consistent with the vagueness of her memory about everything else relating to Mr. Hubert in the summer of 2010. She was not questioned about the presence of a second girl during the conversation. Mr. Hubert claimed that both girls were present, but he did not know which one answered the question. B.B. denied being part of any such conversation. [ 48 ] I am satisfied that Ms. Zelter is honestly confused about who answered her question, and that it was O.B. that provided her age.

B.B. may have been present, but did not answer the question, or adopt O.B.’s answer. Just as O.B. was the one who had the confidence and ability to pass herself off as old enough to purchase liquor in the government liquor store with Mr. Hubert, it makes sense that she would be the one to answer the question in the way that his stepmother remembers. This explanation is the only one that comes close to satisfactorily reconciling the differences in the evidence of the three witnesses. I find that B.B. was not asked, and did not say that she was 17 years old. [ 49 ] Both of Mr. Hubert’s sisters testified.

They cast themselves as mother figures for their wayward younger brother. They lived in the lower mainland. Despite their professed concern about their younger brother, neither sister knew much about why he had to live in [omitted for publication]. They both claimed to have been part of a telephone conversation with B.B., during which B.B. said that she was 17. Defence counsel put to B.B. that she had spoken to one of the sisters on the phone, and told the sister that she was 17. B.B. denied that. I accept B.B.’s evidence, and find that the evidence of Mr.

Hubert’s sisters with respect to the detail of that conversation five years ago is unreliable. [ 50 ] After coming to those conclusions, I must remind myself that the focus of the analysis has to remain on whether the Crown has proven beyond a reasonable doubt that Mr. Hubert did not take all reasonable steps to ascertain the age of either or both girls. [ 51 ] With respect to O.B., the circumstances known to Mr. Hubert include the fact that she had told Mr. Hubert’s mother that she was 17, and that she was able to pass herself off as at least 19 years of age in the government liquor store.

He knew that she frequently consumed alcohol and drugs, but that is conduct which is not restricted to people 16 years of age or older. When I consider those circumstances, they leave me with a reasonable doubt about whether Mr. Hubert took all reasonable steps to ascertain O.B.’s age, and I find him not guilty with respect to counts two and four. [ 52 ] The steps that Mr. Hubert took to ascertain the age of B.B. were more limited. He assumed that she was 17, because of something O.B. had said. B.B. did not adopt O.B.’s statement.

He knew that she was going to high school, and could not or would not pass herself off as old enough to buy liquor at the government liquor store. He did not ask his sisters or his mother about anything B.B. said to them about her age. In all of the time they spent together in the summer of 2010, leading up to the sexual contact in October, he did not take the simple step of asking B.B. how old she was. In cross-examination, this exchange occurred: Q. Did they ask you your birthday? A. No. Q. Or how old you were? A. Yes, they asked me. Q. Okay. And did you tell them?

A. Yes. Q. Did you tell them the truth? A. Yes. Q. So after that no further conversation with respect with age? A. No. Q. And as far as you remember no conversation about [omitted for publication]? A. No. Q. Or school? A. No. Q. Teachers? A. No. Q. Grades? A. No. Q. High school friends? A. No. Q. High school activities? A. No. [ 53 ] Mr. Hubert proceeded on an assumption about B.B.’s age, and effectively took no further steps to determine whether his assumption was correct. The law requires more than that of someone who intends to have sexual contact with a young person.

The requirement that one take all reasonable steps to ascertain the age of a person before sexual contact takes place is more than a casual requirement. I find that the Crown has proven beyond a reasonable doubt that Mr. Hubert failed to take all reasonable steps to ascertain B.B.’s age, and accordingly I find him guilty with respect to count one and count three. ________________________________ Richard Hewson, PCJ