R. v. L.B., 2023 BCPC 112

Citation: R. v. L.B. 2023 BCPC 112 Date: 20230428 File No: 5260 Registry: Prince George IN THE PROVINCIAL COURT OF BRITISH COLUMBIA YOUTH CRIMINAL JUSTICE ACT REX v. L.B. BAN ON PUBLICATION YOUTH MATTER – RESTRICTION ON ACCESS ss. 110, 111 and 118 of the Youth Criminal Justice Act s. 486.4 (1) of the Criminal Code of Canada REASONS FOR JUDGMENT OF THE HONOURABLE JUDGE J.T. DOULIS Counsel for the Crown: A. Baines Counsel for the Defendant: K. Jones Place of Hearing: Prince George , B.C. Dates of Hearing: March 13, 14, 2023

Date of Judgment: April 28, 2023 INTRODUCTION [ 1 ] L.B. is before the court with respect to Information 5260-1, charging him with sexually assaulting and sexually interfering with S.P. between August 1, 2018, and January 31, 2019, at or near Prince George, BC. During the offending period, S.P. was 13 and 14 years old; L.B. was 16. They had a five to six month intimate relationship that ended when L.B. moved to Kamloops, BC, to attend a treatment centre. S.P. was a willing participant to some but not all of the sexual activity. Moreover, for the first few months of their relationship, S.P. was only 13 years old.

As she was approximately two-and-one-half years younger than L.B., S.P. was statutorily incapable of consenting to the sexual activity prior to her fourteenth birthday at the end of [omitted for publication] 2018. ISSUES [ 2 ] The issues before the court are whether the Crown has proven beyond a reasonable doubt: a. .L.B. sexually touched S.P. when she was statutorily incapable of consenting; b. Whether L.B. is entitled to rely on a “mistake-of-age” defence; and c.

L.B. engaged in sexual activity with S.P. without her consent. [ 3 ] This matter came to me for trial in Prince George Provincial Court on March 13 and 14, 2023. The Crown called S.P. as its only witness; the defence called L.B. as its only witness. At the conclusion of the trial, I reserved my decision. These are my Reasons for Judgment. BACKGROUND FACTS [ 4 ] L.B. was born on [omitted for publication]; he is now 20 years old. L.B. lives in Prince George, BC. He was born and raised in his early years in [omitted for publication], BC.

When he was 13 or 14, he was placed in a group home in [omitted for publication] and then in Prince George, BC. As L.B.’s family resides in the reserve community of [omitted for publication], I gather L.B. is a member of the [omitted for publication] First Nation. [ 5 ] At the time of the offences, L.B. lived in “[omitted for publication]”, a group home in Prince George situated near [omitted for publication]. [ 6 ] At the time of the offence, S.P. lived with her family in Prince George, BC. She was born on [omitted for publication]. [ 7 ] S.P. and L.B. first met in August 2018.

S.P. accompanied her Uncle G.M. and her cousin A.T. to an outing on the Nechako River off Ospika Boulevard. L.B. was present. All partygoers were drinking alcohol, including S.P. and L.B. [ 8 ] Following the river outing, S.P. and L.B. began communicating with each other on Facebook or Snapchat or other social media platforms. S.P.’s EVIDENCE [ 9 ] S.P. says she and L.B. first met at the river outing on August 30, 2018. She had quite a lot to drink and was “kinda falling over.” After the outing, the partygoers went to A.T.’s residence. L.B. was present. He sat down beside her and started tickling her.

S.P. says: “One thing led to another. We ended up having intercourse”. She says the intercourse was “vagina and penis” intercourse and was consensual. [ 10 ] S.P. says after, they met up again. L.B. invited S.P. to go drinking with him. She thinks it may have been at his Uncle W.’s apartment. L.B. and S.P. were in what S.P. thought was L.B.’s parents’ vehicle outside Uncle W.’s apartment. Both were drinking alcohol. She is not sure if they went inside the apartment.

She does not remember if anything sexual happened on that occasion. [ 11 ] S.P. says over the next five months or so, she and L.B. engaged in both consensual and non-consensual sexual activity. She gave the following examples of when she did not consent to sexual activity and what happened: a. S.P. said on the evening when they first met, L.B. was having oral sex with her and that it hurt because he bit her vagina and he was “really rough with it.” She did not complain verbally, but tried to push L.B.’s head away, which he resisted; b.

On Christmas Eve 2018, S.P. was staying with L.B. and his family on the [omitted for publication] Reserve (about [omitted for publication], BC). S.P. said L.B. “tried to get something started,” but because it was the first-year anniversary of when she had been previously sexually assaulted, she kept telling L.B.: “No. [She] wasn’t feeling it.” She “didn’t want to.” He kept pushing her to agree to sexual activity, until she started crying, then L.B. left for hours; c. On one occasion, at her home, L.B. grabbed a hairbrush and told her to bend over.

She said “No.” because she “didn’t want that to happen.” He told her to do it anyways. He was getting upset. She bent over and he stuck the brush handle inside her vagina; d. At one time they were at his friend C.’s place in [omitted for publication]; e. S.P. and L.B. were drinking alcohol. Both became “kind of drunk but still aware.” L.B. brought her downstairs to the basement. They

had consensual vaginal intercourse. L.B. asked S.P. if he could “do anal,” which she understood meant putting his penis inside her “butthole.” She refused. She said, “I told him no many times before that.” L.B. had anal sex with her despite her refusal. He did so withoutlubricant or a condom. She tried pulling away, but he held her. She was injured as a result of this activity and began bleeding. He askedher why she was bleeding. S.P. said she became angry; and f. There were a few other occasions when L.B. put his hand down her pants and felt her vagina.

He said, “Why are you wet, are youfucking other guys?” S.P. said L.B. began accusing her and calling her down. This occurred at or near the baseball park and at her home. [12] S.P. does not recall L.B. ever asking her age. On one occasion, L.B. invited her to his group home. She said before they left to goto the group home or before they arrived, L.B. asked her to lie to the workers about her age. L.B. told S.P. to say she was 14 years old. Atthe time, she was 13.

L.B.’S EVIDENCE [13] L.B. testified he first met S.P. around the “middle of August something” in “2017 or 2018.” As he was 16 years old at the time, itmust have been in 2018. L.B. remembers meeting S.P. at an outing at the river with S.P.’s Uncle G.M. They were all drinking alcohol. [14] When asked in his examination in chief, “Do you know how old [S.P.] would have been?” L.B. initially responded, “Not really.No. She didn’t tell me her age at the time”.

Later, when defence counsel repeated this question, L.B. said he “presumed” S.P. was 14, butdid not explain the basis for this presumption. [15] L.B. denies having sexual intercourse with S.P. the day they first met at the river. He says they kept in touch after that outing, onsocial media such as Facebook and Snapchat. About two or three weeks after the river outing, L.B. and S.P. got together at [omitted forpublication]. L.B. brought a “2-6” (750 ml) of whiskey, from which they took turns drinking straight from the bottle. S.P. did not bringany alcohol.

About three hours later, L.B. and S.P. left [omitted for publication]. They went to the 7-Eleven and then to S.P.’s aunt’shome. By that time, L.B. and S.P. had consumed a little more than half of the bottle of whiskey. L.B. says they began watching televisionfor a bit and then he started tickling S.P. They went downstairs and began “making out,” meaning they had “penis in vagina” sexualintercourse. [16] L.B. says that he and S.P. started “hanging out” quite a bit. In the beginning, they got together two or three days per week. Aftera “month or two,” they got together every day.

They listened to music, watched television. They consumed alcohol a couple of days perweek. They also engaged in sexual activity frequently, although not every time they got together. L.B. estimates that he had sex with S.P.about 30 times over the course of their relationship. He says the sexual activity started out as “vagina and penis” and then they tried“anal” intercourse about three or four times. L.B. says that sometimes he and S.P. would discuss what sexual activities they wouldengage in before it happened.

He estimates out of the 30 times they engaged in sexual activities, they discussed it before hand on ten to15 occasions. [17] L.B. claims the anal intercourse was always consensual. He agreed he checked S.P.’s anus at her request to see if she suffered anyinjury or bleeding. L.B. denies having seen any bleeding. [18] In cross-examination, L.B. admitted putting his hands down the front of S.P.’s pants and touching her vagina in a public placeand that S.P. did not consent to him doing so. [19] L.B. claims his relationship with S.P. ended on unfriendly terms when he moved to Kamloops in January 2019.

He claims S.P.got a new boyfriend and S.P. blocked L.B. “on everything.” He did not dispute S.P.’s allegation that he told her he had cheated on her. LEGISLATIVE FRAMEWORK Sexual interference [20] L.B. is charged with sexual interference, an offence under s. 151 of the Criminal Code, which states: Sexual interference 151 Every person who, for a sexual purpose, touches, directly or indirectly, with a part of the body or with an object, any part of the bodyof a person under the age of 16 years (

a) is guilty of an indictable offence and is liable to imprisonment for a term of not more than 14 years and to a minimum punishment ofimprisonment for a term of one year; or (

b) is guilty of an offence punishable on

summary conviction and is liable to imprisonment for a term of not more than two years less aday and to a minimum punishment of imprisonment for a term of 90 days. [21] Sexual interference is a specific-intent offence: R. v. Michel, (BCCA). The Crown must prove the accusedtouched the body of the complainant for a sexual purpose. In other words, the touching was not accidental. In R. v. T.L.P., 2015 BCSC618 , Mr. Justice Davies states “for a sexual purpose" means for one or more of the following: (

a) sexual gratification; (

b) theviolating of the complainant's sexual integrity; or (

c) the sexual domination of the complainant. [22] L.B. is also charged with sexual assault under s. 271 of the Criminal Code, which states: Sexual assault 271 Everyone who commits a sexual assault is guilty of (

a) an indictable offence and is liable to imprisonment for a term of not more than 10 years or, if the complainant is under the age of 16

years, to imprisonment for a term of not more than 14 years and to a minimum punishment of imprisonment for a term of one year; or (

b) an offence punishable on

summary conviction and is liable to imprisonment for a term of not more than 18 months or, if the complainant is under the age of 16 years, to imprisonment for a term of not more than two years less a day and to a minimum punishment of imprisonment for a term of six months. . . . Meaning of consent 273.1

(1) Subject to subsection (2) and subsection 265(3) , consent means, for the purposes of sections 271 , 272 and 273 , the voluntary agreement of the complainant to engage in the sexual activity in question. Consent

(1.1) Consent must be present at the time the sexual activity in question takes place. . . . No consent obtained

(2) For the purpose of subsection (1), no consent is obtained if (

a) the agreement is expressed by the words or conduct of a person other than the complainant; ( a.1 ) the complainant is unconscious; (

b) the complainant is incapable of consenting to the activity for any reason other than the one referred to in paragraph ( a.1 ); (

c) the accused induces the complainant to engage in the activity by abusing a position of trust, power or authority; (

d) the complainant expresses, by words or conduct, a lack of agreement to engage in the activity; or (

e) the complainant, having consented to engage in sexual activity, expresses, by words or conduct, a lack of agreement to continue to engage in the activity. Subsection (2) not limiting

(3) Nothing in subsection (2) shall be construed as limiting the circumstances in which no consent is obtained. Where belief in consent not a defence 273.2 It is not a defence to a charge under

section 271 , 272 or 273 that the accused believed that the complainant consented to the activity that forms the subject-matter of the charge, where (

a) the accused’s belief arose from (

i) the accused’s self-induced intoxication, (ii) the accused’s recklessness or wilful blindness, or . . . (

b) the accused did not take reasonable steps, in the circumstances known to the accused at the time, to ascertain that the complainant was consenting. . . . [ 23 ] Pursuant to s. 150.1 of the Criminal Code , consent is not a defence to a charge of sexual assault against a complainant under the age of 16 years except in certain limited circumstances.

Section 150.1 of the Criminal Code provides, in relevant part, as follows: Consent no defence 150.1

(1) Subject to subsections (2) to (2.2), when an accused is charged with an offence under

section 151 or 152 or subsection 153(1) , 160(3) or 173(2) or is charged with an offence under

section 271 , 272 or 273 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. Exception — complainant aged 12 or 13

(2) When an accused is charged with an offence under

section 151 or 152, subsection 173(2) or

section 271 in respect of a complainant who is 12 years of age or more but under the age of 14 years, it is a defence that the complainant consented to the activity that forms the subject-matter of the charge if the accused (

a) is less than two years older than the complainant; and (

b) is not in a position of trust or authority towards the complainant, is not a person with whom the complainant is in a relationship of

dependency and is not in a relationship with the complainant that is exploitative of the complainant. Exception — complainant aged 14 or 15

(2.1) If an accused is charged with an offence under

section 151 or 152, subsection 173(2) or

section 271 in respect of a complainant who is 14 years of age or more but under the age of 16 years, it is a defence that the complainant consented to the activity that forms the subject-matter of the charge if the accused (

a) is less than five years older than the complainant; and (

b) is not in a position of trust or authority towards the complainant, is not a person with whom the complainant is in a relationship of dependency and is not in a relationship with the complainant that is exploitative of the complainant. . . . Mistake of age

(4) It is not a defence to a charge under

section 151 or 52 , subsection 160(3) or 173(2) , or

section 271 , 272 or 273 that the accused believed that the complainant was 16 years of age or more at the time the offence is alleged to have been committed unless the accused took all reasonable steps to ascertain the age of the complainant. . . .

(6) An accused cannot raise a mistaken belief in the age of the complainant in order to invoke a defence under subsection (2) or (2.1) unless the accused took all reasonable steps to ascertain the age of the complainant. ELEMENTS OF THE OFFENCE OF SEXUAL ASSAULT AND SEXUAL INTERFERENCE Static elements [ 24 ] The Crown must prove all the elements of the offence of sexual assault beyond a reasonable doubt before the court can make a finding of guilt. The static elements for any criminal offence are: (

a) the identity in the sense that the person standing in the courtroom is the person who is alleged to have committed the offence; (

b) the jurisdiction of the court over the person accused; and (

c) the timing of the offence. In this, I am satisfied the Crown has proven the static elements: a. The offences charged are alleged to have occurred from August 1, 2018, to January 31, 2019; b. The offences charged are alleged to have occurred at or near Prince George, British Columbia, which is within the jurisdiction of the Prince George Provincial Court; c. The offences charged on Information 5260-1 are alleged to have been committed by L.B., born [omitted for publication]; and d. The L.B. appearing before the court on March 13 and 14, 2023, is the same L.B. charged on Information 5260-1 .

ESSENTIAL ELEMENTS OF THE OFFENCE OF SEXUAL INTERFERENCE (S. 151) [ 25 ] In the circumstances of this case, where S.P. was approximately two and one-half years younger than L.B., the Crown must prove: a. S.P. was under 14 years old at the time; b. L.B. touched S.P.; and c. the touching was for a sexual purpose. [ 26 ] For the sexual activity alleged to have occurred after S.P. turned 14 on [omitted for publication], 2018, the Crown must also prove the absence of consent. I have addressed the element of consent to sexual contact below.

ESSENTIAL ELEMENTS OF SEXUAL ASSAULT [ 27 ] The five essential elements of the offence of sexual assault are as follows:

a) three criminal act ( actus reus ) elements: i. touching; ii. the sexual nature of the contact; and iii. the absence of consent;

b) two criminal intent ( mens rea ) elements: i. intention to touch; and ii. knowledge, recklessness or wilful blindness about the lack of consent.

(R. v. Ewanchuk, (SCC), [1999] 1 S.C.R. 330, at para. 23.) [28] In this case, the touching and intention to touch and the sexual nature of the contact is not in issue. What is contested is S.P.’sabsence of consent. [29] In R. v. J.A., 2011 SCC 28 , McLachlin C.J. stated: “It is a fundamental principle of Canadian law that a person isentitled to refuse sexual contact.” [30] Recently in R. v. Comin, 2022 BCSC 530 , Justice Ker (at paras. 40-41) summarized the Supreme Court of Canada’srecent jurisprudence on consent in sexual offences: [40] . . .

Specifically, consent: • is the conscious, voluntary agreement of the complainant to engage in every sexual act in a particular encounter: R v JA, 2011SCC 28 at para 31; see also s 273.1(1) of the Criminal Code; • must be freely given: R v Ewanchuk, (SCC), [1999] 1 SCR 330 at para 36; • must exist at the time the sexual activity in question occurs: JA at para 34, citing Ewanchuk at para 26; • can be revoked at any time; JA, at paras 40 and 43; s. 273.1(2)(

e) of the Criminal Code; and • is not considered in the abstract and must be linked to the “sexual activity in question”, which encompasses “the specific physicalsex act”, “the sexual nature of the activity”, and “the identity of the partner”: R v Hutchinson, 2014 SCC 19 at paras 54 and 57. [41] Importantly, consent is subjective to the complainant: Ewanchuk at paras 26-30.

Therefore, consent cannot be found in externalfactors such as the relationship between the parties or the complainant’s words or conduct on a different occasion: JA at para 47. [Emphasis in original.] [31] Justice Ker goes on to discuss the defence of honest but mistaken belief in consent: [42] A number of key principles guide the operation of the defence of honest but mistaken belief in communicated consent.

Theseinclude that: • the accused must demonstrate an air of reality to this defence before it will be considered by the trier of fact: Barton, at para 121; • the accused must take reasonable steps to determine the presence of consent: s 273.2(b); • the accused’s belief must be about communicated consent.

The analysis asks whether the accused honestly believed "thecomplainant effectively said 'yes' through her words and/or actions": Barton at para 90 citing Ewanchuk at para 47; • this defence is not available to the accused where “there is no evidence that the complainant’s voluntary agreement to the activitywas affirmatively expressed by words or actively expressed by conduct”: s 273.2 (c); • the test for whether an accused took reasonable steps to ascertain consent is an objective/subjective one.

The steps taken by theaccused must be objectively reasonable in light of what he personally knew at the time Barton at para 104; and • passivity is not consent and a belief in silence as consent is a mistake of law and no defence: Ewanchuk at para 51; Barton atparas 105-107. [Emphasis in original.] ASSESSING RELIABILITY AND CREDIBILITY [32] At trial, I received evidence from the complainant S.P. and the accused L.B. As the trial judge, I must assess the reliability andcredibility of those witnesses. This is a contextual, fact-specific exercise.

I can believe none, part, or all of a witness' evidence and mayattach different weight to different parts of that evidence: R. v. S.(R.D.), (SCC). As Justice Cory commented in S.(R.D.), assessing the credibility of a witness is more of an “art than a science.” It is a task that can be particularly daunting where a courtmust assess the credibility of two witnesses whose testimony is diametrically opposed. [33] Reliability and credibility are not the same. “Reliability” involves the accuracy of the witness’ testimony.

It engagesconsideration of the witness’ ability to observe, recall and recount. “Credibility”, on the other hand, concerns the witness’ veracity – tospeak the truth as the witness believes it to be: R. v. Morrissey, (ONCA), at p. 526. Simply put, credibility addresseswhether a witness is lying, whereas, reliability is about honest mistakes. [34] Assessing credibility engages a number of factors, including: (

a) the plausibility of the witness’ evidence; (

b) any independentsupporting or contradicting evidence; (

c) the external consistency of the evidence; (

d) the internal consistency of the evidence; (

e) the“balance” of the evidence, meaning the witness’ apparent willingness to be fair and forthright without any personal motive or agenda;and to a lesser extent (f), the witness’ demeanour while testifying, meaning not so much what is said but how it is said. [35] It goes without saying that evidence that is not credible is not reliable; however, the corollary is not true: evidence that is crediblemay nevertheless be unreliable: R. v. G.F., 2021 SCC 20 , para. 82. [36] I am acutely aware that L.B. and S.P. were adolescents at the time of the offence. When they testified at trial, L.B. was 20 years

old and S.P. was 18. They were testifying to experiences that happened about four and one-half years ago. The Supreme Court of Canadainstructs trial judges that when an adult testifies about what occurred as a child, their credibility is to be assessed according to the criteriaapplicable to adults. With an adult’s evidence regarding events that occurred in childhood, the presence of inconsistences, particularlyperipheral matters such as time and location, should be considered in the context of the age of the witness at the time the events tookplace: R. v. W.(R.), (SCC), p. 134.

ASSESSING THE RELIABILITY OF S.P.’S EVIDENCE [37] S.P. freely admitted that at various times she was intoxicated in L.B.’s company. For example: a. In cross-examination, S.P. testified that she recalls only bits and pieces of her sexual activity with L.B. the evening when they firstmet at the river because of her level of intoxication. She remembers the oral sex because he bit her vagina and it hurt. She believed theyhad vaginal intercourse after the oral sex, but she could not remember the rest of the night and believed she blacked out; and b.

S.P. was unable to say whether she engaged in sexual activity with L.B. when they were drinking inside his parent’s vehicle at hisUncle W.’s house because she was intoxicated. [38] I find S.P. was frank about her intoxication and conceded at times her ability to accurately or fully or clearly recall an event wascompromised by her level of intoxication. I therefore find S.P. a reliable witness to those events she did profess to remember. ASSESSING THE CREDIBILITY OF S.P.’S EVIDENCE (

a) the plausibility of the witness’ evidence [39] There is nothing inherently implausible about S.P.’s evidence. She testified that she consented to some, but not to all the sexualactivity. There is nothing implausible about her assertion she consented to the vaginal intercourse, but not to anal intercourse or to L.B.biting her vagina, or putting his hand down her pants and touching her vagina in a public space, or to inserting a hairbrush into hervagina. (

b) any independent supporting or contradicting evidence [40] Salient parts of S.P.’s evidence were corroborated in whole or in part by L.B., including: a. L.B. never asked S.P. how old she was; b. L.B. first had sexual intercourse with S.P. when she was 13 years old; c. On five occasions, L.B. had intercourse with S.P. when they were both intoxicated; d. L.B. invited S.P. to come to his group home; e. L.B. initiated his first sexual encounter with S.P. by tickling her; and f.

L.B. inserted his hand down S.P.’s pants and touched her vagina in a public place (by baseball diamond) against her will. [41] L.B. testified, giving contradictory evidence, as follows: a. L.B. says that he never had sexual intercourse with S.P. on the day they first met in mid-August 2018, but rather, two or three weekslater. Although the Crown did not object, I do note defence counsel never confronted S.P. with L.B.’s evidence in this regard; b. L.B. denied putting his hands inside S.P.’s vagina while she was sleeping; c.

In cross-examination, defence counsel said to S.P. that he was told that on every occasion before they had sexual intercourse, that sheand L.B. talked about what would happen before it happened, to which S.P. responded, “I don’t remember that.” In his directexamination, L.B. did not remember having any discussions with S.P. before their first sexual encounter. He went on to testify that theyhad discussions about what sexual activity they would engage in before it happened about 10–15 times of the 30 times they had sexualintercourse; d.

L.B. denies S.P. saying she did not want to engage in anal sex and in fact, they had consensual anal sex three or four times over thecourse of their relationship after discussing when that was to happen; e. L.B. said S.P. was never injured as a result of the anal sex. Specifically, she was not bleeding from her anus after this activity; and f.

L.B. flatly denied inserting a hairbrush handle into S.P.’s vagina. [42] Although she was not cross-examined on this point, S.P.’s evidence that she attended L.B.’s group home for his birthday iscontradicted by the fact that L.B.’s birthday was on [omitted for publication] and S.P. and L.B.’s relationship began in August 2018 andended in January 2019. As L.B. agreed S.P. went to his group home on at least one occasion, the reason she did so is not material to hercredibility. (

c) the external consistency of the evidence [43] In his cross-examination of S.P., defence counsel did not suggest she gave a different version of events in any out-of-courtstatement than she had in the witness box.

(

d) the internal consistency of the evidence [44] I find S.P.’s evidence was internally consistent. When challenged in cross-examination, S.P. was steadfast that L.B. forced analintercourse on her and inserted a hairbrush in her vagina against her will. [45] When defence counsel suggested to S.P. that there were three or four occasions when she and L.B. had consensual analintercourse, S.P. responded: I say that is a lie. And – if or when that happen, I must have been black out drunk so I could not have given consent. . . .

But being blackout drunk and 13 years old, that is not consent. [46] When defence counsel challenged S.P.’s evidence that L.B.“stuck the brush handle inside my vagina,” S.P. responded as follows: Q. You told her Honour about an event where you say [L.B.] put a hair brush in your vagina? A. Yes, I did. Q. I am told that never happened. What do you say about that? A. I say, I am angry because I remember that happened. There was nothing clouding my memory in my system at the time.

I was notintoxicated; I was not stoned; I was not drunk. [47] Defence counsel did not challenge the accuracy or veracity of S.P.’s evidence with respect to: a. When performing oral sex on S.P., L.B. bit her and when she tried to push his head away, he resisted; and b. When she was in [omitted for publication] at Christmas, L.B. continued to pressure S.P. to have sex with him until she started to cry,and then he left for hours. [48] I do not find there is any point in S.P.’s testimony when she contradicts or resiles from what she had said previously. (

e) the “balance” of the evidence, meaning the witness’ apparent willingness to be fair and forthright without any personalmotive or agenda [49] The fact S.P. is the complainant in these proceedings does not support an inference she may be less than truthful. In R. v.Laboucan, 2010 SCC 12, Justice Charron states: [11] The fact that a witness has an interest in the outcome of the proceedings is, as a matter of common sense, a relevant factor, amongothers, to take into account when assessing the credibility of the witness’s testimony.

A trier of fact, however, should not place undueweight on the status of a person in the proceedings as a factor going to credibility. For example, it would be improper to base a finding ofcredibility regarding a parent’s or a spouse’s testimony solely on the basis of the witness’s relationship to the complainant or to theaccused. Regard should be given to all relevant factors in assessing credibility. [50] L.B. and S.P. separated when L.B. moved to Kamloops, BC, in January 2019. S.P. says they had a falling out when L.B. told herhe had cheated on her.

Defence counsel did not suggest to S.P. that she had fabricated her evidence in retaliation to L.B. “cheating onher.” To the contrary, L.B. says they remained friends after he moved to Kamloops. Their relationship ended when S.P. found a newboyfriend and she “blocked [L.B.]” on “everything.” L.B.’s version of their separation wherein S.P. was the instigator does not supportany inference she had a motive to lie. [51] L.B. bears no burden to prove S.P. has a motive to lie. Recently, in R. v. B.T.D., 2022 ONCA 732 , L.B.

Roberts J.A. forthe Ontario Court of Appeal explained the approach courts must take when assessing motive (citations omitted): [82] As this court recently instructed in R. v. G.B., 2021 ONCA 675, at para. 18, “trial judges must approach an apparent lack of motiveto fabricate with great caution when assessing the credibility of a complainant.” This caution arises out of the well-established distinctionbetween an absence of evidence of a motive to fabricate on the one hand, and, on the other hand, a proven absence of a motive tofabricate.

While the proven absence of motive might give affirmative weight to a witness’s testimony in a trial judge’s credibilityassessment, the absence of any evidence of a motive to fabricate is a neutral factor and cannot be used to enhance a witness’s credibility.This is because the fact that a complainant has no apparent motive to fabricate does not mean that a complainant has no motive tofabricate.

Reasoning from the apparent absence of a motive to fabricate undermines the presumption of innocence by reversing theburden of proof and fails to recognize that motives to mislead can be hidden. . . . [Emphasis in original.] (

f) the witness’ demeanour while testifying, meaning not so much what is said but how it is said [52] There is nothing about S.P.’s demeanour while testifying that detracted from her credibility. Although she became emotional attimes when testifying about distressing incidents, S.P. testified in a straightforward manner, without drama or exaggeration orembellishment. ASSESSING THE RELIABILITY OF L.B.’S EVIDENCE [53] L.B. admitted that on at least five occasions when he had sex with S.P., they were intoxicated. S.P. says that they separated when

L.B. went to a treatment facility in Kamloops, which he does not deny. It is a safe inference that L.B. was suffering from some substance misuse during the currency of his relationship with S.P. ASSESSING THE CREDIBILITY OF L.B.’S EVIDENCE (

a) the plausibility of the witness’ evidence [ 54 ] There are certain aspects of L.B.’s evidence I find implausible. Specifically: a. Initially, when asked when he met S.P., L.B. could not remember if it was in 2017 or 2018, yet he claims to have remembered discussing beforehand what sort of sexual activity in which they would engage 10 to 15 times.

Despite the fact S.P. had alleged she did not consent to certain incidents of sexual activity, L.B. did not particularize any of these “discussions.” Specifically, he did not say when they occurred in relation to the activity, what S.P. said or did, or what he said or did; b. That S.P. did not complain of any pain or discomfort as a result of the anal sex, yet asked him to examine her anus “just to check to see if there was cuts or anything”; c. L.B. denied in cross-examination that he told S.P. to tell the workers at his group home ([omitted for publication]) she was 14.

When the Crown suggested he did this because the group home had a prohibition against visitors under 14 years old, L.B. responded, “I am not sure what conditions were back then”. By August 2018, L.B. would have been in [omitted for publication] for three years. He remembered that he was not permitted to stay overnight outside elsewhere. His evidence he engaged in anal sex with S.P. after her birthday suggests that he was aware she had a birthday on [omitted for publication], 2018. (

b) any independent supporting or contradicting evidence [ 55 ] S.P. agrees with L.B. that the vaginal intercourse was consensual. [ 56 ] S.P. disputes L.B.’s evidence that she consented to the anal intercourse. She says L.B. asked her many times to agree to anal intercourse before he forced himself on her and she had always told him no. L.B. claims they “tried anal” three or four times and when asked what he meant by “tried,” L.B. says they “talked about it and found out when.” L.B. does not describe the conversations beyond asserting they occurred.

He did not say when these conversations occurred in relation to the actual event or what was said. [ 57 ] L.B.’s assertion that he never forced himself on S.P. against her will is also contradicted by S.P.’s evidence that: a. L.B. resisted her attempts to move his head during oral sex because he was hurting her. Although L.B. claims they had no sexual contact after the river outing, he did not deny the incident S.P. described ever occurred; b. L.B. continued to pressure S.P. to have sex on Christmas Eve until she started crying.

Although he gave up and left for hours when S.P. began crying, L.B. does not dispute this incident occurred; and c. L.B. admits to inserting his hands down S.P.’s pants and touching her vagina while in public spaces. He admitted he did not ask S.P. if “that was okay with her,” and he did not think she wanted him to engage in that activity. L.B. did not deny saying to S.P. at the time, “Why are you wet, are you fucking other guys?” (

c) the external consistency of the evidence [ 58 ] The Crown did not adduce any evidence at trial of any out-of-court statements. (

d) the internal consistency of the evidence [ 59 ] L.B.’s evidence was internally inconsistent with respect to his knowledge of S.P.’s age. Initially, when asked in direct examination if he knew S.P.’s age, he said he did not know how old she was and that S.P. never told him her age.

When his counsel asked him the same question again after a 40-minute break, L.B. said without elaboration, “I assumed she was 14”. [ 60 ] In his direct examination when asked if there was ever an occasion in their relationship that he had “forced himself” on S.P. against her will, L.B. said: “No.” In cross-examination, he agreed that S.P. did not want him putting his hands down her pants in public and touching her vagina, but he did so anyway. (

e) the “balance” of the evidence, meaning the witness’ apparent willingness to be fair and forthright without any personal motive or agenda [ 61 ] L.B. is the person before the court accused of sexual offences against the complainant S.P. He pled not guilty to these offences. Obviously, L.B. has an interest in being acquitted of these offences. Still, the court cannot assume L.B. must lie in order to be acquitted.

In Laboucan , Justice Charron, for the Supreme Court of Canada, states: [12] The common sense proposition that a witness’s interest in the proceedings may have an impact on credibility also applies to an accused person who testifies in his or her defence. The fact that the witness is the accused, however, raises a specific concern. The concern arises from the fact that both innocent and guilty accused have an interest in not being convicted. Indeed, the innocent accused has a greater interest in securing an acquittal.

Therefore, any assumption that an accused will lie to secure his or her acquittal flies in the face of the presumption of innocence, as an innocent person, presumably, need only tell the truth to achieve this outcome. . . . [Emphasis in original.] (

f) the witness’ demeanour while testifying, meaning not so much what is said, but how it is said

[62] There is nothing about L.B.’s demeanour that detracts from his credibility. Issue #1: Did L.B. sexually touch S.P. when she was statutorily incapable of consenting? [63] In this case, it is uncontested that: a. The complainant S.P. was born [omitted for publication]; b. The accused L.B. was born [omitted for publication]; c. Between August 1, 2018 and [omitted for publication], 2018, S.P. was 13 years old; d. Between [omitted for publication], 2018 and January 31, 2019, S.P. was 14 years old; e.

The age difference between L.B. and S.P. is two and one-half years, or specifically, two years, five months and 27 days; f. L.B. and S.P. engaged in sexual intercourse between August 1, 2018 and [omitted for publication], 2018, when S.P. was 13 yearsold; and g. When engaging in vaginal sexual intercourse, L.B. would insert his penis into S.P.’s vagina. [64] The inescapable conclusion based solely on uncontested facts is that L.B. did sexually interfere with S.P. between August 1,2018, and [omitted for publication], 2018, when she was 13 years old and he was 16.

As a result of L.B.’s admissions while testifying,the Crown has proven beyond a reasonable doubt many of the essential elements of the offences of sexual interference and sexualassault, namely: a. L.B. touched S.P. in a sexual nature; b. L.B. intended to touch S.P. in a sexual nature; and c. When she was 13 years old, S.P. was “statutorily incapable” of providing lawful consent to the sexual activity: R. v.

W.L.S., 2019SCC 27, at para. 5. [65] Had the age gap between S.P. and L.B. been less than two years, L.B. could have relied on the “close in-age exception” set out ins. 150.1(2.1) of the Criminal Code with respect to consensual sexual activity. Pursuant to s. 150.1(6), L.B. can still raise the defence hemistakenly believed S.P. was at least 14 years old. This defence is only viable if L.B. took all reasonable steps to ascertain S.P.’s age. Ofcourse, this defence is not available to any sexual activity to which S.P. did not consent.

Issue #2: Can L.B. rely on a mistake-of-age defence? [66] L.B. has raised the defence of “mistake of age,” contending that at the time of his sexual encounters with S.P., he “assumed” shewas 14 years old. At one time, it would suffice for L.B. to establish he had an honest but mistaken belief in age; however, as the SupremeCourt of Canada noted in R. v. George, 2017 SCC 38, “through statutory intervention, Parliament has imported an objective element intothe fault analysis to enhance protections for youth.” In George, the 35-year-old accused had sex with the 14-year-old complainant, whowas a willing participant.

The accused was charged with sexual interference and sexual assault. The accused raised a defence of mistakeof age set out in s. 150.1(2.1) of the Criminal Code. [67] George holds that before the court can consider a mistake-of-age defence, the accused must demonstrate there is an air of realityto the defence. This assessment demands the trial judge consider the totality of the evidence and assume the evidence relied upon by theaccused to be true.

In assessing whether there is an air of reality to the defence, the trial judge does not determine the credibility ofwitnesses, weigh the evidence, make findings of fact, or draw determinate factual inferences: R. v. Cinous, 2002 SCC 29 . [68] The accused in George had not taken any proactive steps to determine the complainant’s age. She relied solely on the context andher knowledge of certain pre-existing circumstances.

The Supreme Court held the “all reasonable steps” inquiry is contextual andincludes such considerations as the complainant’s physical appearance, behaviour, activities, the age and appearance of thecomplainant’s social group and circumstances in which the accused observed the complainant.

In George, the accused also consideredthe complainant’s comfort in approaching the sexual encounter, which suggested a level of maturity. [69] Where an accused demonstrates an air of reality to the mistake-of-age defence under s. 150.1(4), they are entitled to an acquittalunless the Crown proves, beyond a reasonable doubt, one of two things: (

a) the accused did not honestly believe the complainant was atleast old enough to consent; or (

b) the accused did not take “all reasonable steps” to ascertain the complainant's age: George, para. 8. Thefirst of these two elements is subjective; the second is objective. [70] Gascon J. explains the assessment of reasonable doubt is highly contextual and fact specific: [9] Determining what raises a reasonable doubt in respect of the objective element is a highly contextual, fact-specific exercise . . . Insome cases, it may be reasonable to ask a partner’s age. It would be an error, however, to insist that a reasonable person would ask apartner’s age in every case . . .

Conversely, it would be an error to assert that a reasonable person would do no more than ask a partner’sage in every case, given the commonly recognized motivation for young people to misrepresent their age . . . Such narrow approacheswould contradict the open-ended language of the reasonable steps provision. That said, at least one general rule may be recognized: themore reasonable an accused’s perception of the complainant’s age, the fewer steps reasonably required of them.

This follows inevitablyfrom the phrasing of the provision (“all reasonable steps”) and reflects the jurisprudence . . . [Emphasis in original.]

[71] In R. v. Jerace, 2021 BCCA 94, leave to appeal to SCC refused in (SCC), the accused was charged with thesexual assault and sexual interference of a 14-year-old child. The British Columbia Court of Appeal considered the Crown’s burden toprove the mens rea of the offences in light of the due diligence defence. The appellate court states at para. 22: [22]

Section 150.1(4) provides a due diligence defence to charges under both ss. 151 and 271.

Honest but mistaken belief as to age willprovide a defence to either charge, but only if “the accused took all reasonable steps to ascertain the age of the complainant.” Thequestion that has arisen recently, and is the focus of the appellant’s fifth ground of appeal, is the precise burden on the Crown to provethe mental element (or mens rea) of the offences in light of this due diligence defence. . . . [40] Accordingly, in the absence of a special defence that has an air of reality, once the actus reus and the intention to touch thecomplainant for a sexual purpose have been established, the Crown can prove the offence under s. 151 or s. 271 by showing either thatthe accused had the requisite knowledge of the complainant’s age, or that in the circumstances known to the accused at the time, theaccused failed to take all reasonable steps to ascertain her age. [72] Where the mistake-of-age exception is in play, once the Crown proves beyond a reasonable doubt that the accused was notmistaken or did not take all reasonable steps, conviction will follow: R. v.

Angel, 2019 BCCA 449; R. v. Jerace, 2021 BCCA 94. DOES L.B.’S DEFENCE OF MISTAKE OF AGE HAVE AN AIR OF REALITY? [73] Before the court can consider a mistake-of-age defence, the accused must demonstrate there is an air of reality to the defence:George. It bears reiterating that L.B. does not have to prove he took all reasonable steps. He need only present sufficient evidence to givethe mistake-of-age defence an “air of reality,” after which the Crown must negate the applicability of the defence beyond a reasonabledoubt.

In other words, L.B. bears a threshold evidential burden, but not a persuasive burden. [74] In assessing whether there is an air of reality to L.B.’s mistake-of-age defence, I must consider the totality of the evidence andassume the evidence relied upon by the accused to be true. I do not make determinations about the credibility of witnesses, weigh theevidence, make findings of fact, or draw determinate factual inferences: R. v.

Cinous, 2002 SCC 29 . [75] In this case, L.B. did not testify to having taken any steps to determine S.P.’s age before engaging in sexual activity with her.Initially, when asked if he knew S.P.’s age when he first met her in August 2018, L.B. said, “Not really, no . . .

She didn’t tell me her ageat the time.” When his counsel repeated this question after a break, L.B. said, “I assumed she was 14.” Solely for assessing whether thereis an air of reality to the mistake-of-age defence, I will accept as true, L.B. assumed S.P. was 14 years old. [76] L.B. says he first met S.P. in August 2018 at the river where she was present and drinking with her uncle and cousin. He did notprovide any further information about S.P.’s Uncle G.M. or her cousin A.T. L.B. did not say the fact S.P. was drinking alcohol fuelledhis assumption she was a year older than her actual age.

L.B. did not provide any explanation as to why he assumed S.P. was 14 yearsold. L.B. admits the first time they had sexual intercourse was after he had shared with S.P. half of his “two-six” bottle of whiskey at[omitted for publication]. They returned to S.P.’s aunt’s home. L.B. agrees he began tickling S.P., after which they started “making out.”They went downstairs where they had sexual intercourse.

When asked in his examination in chief if they had any discussions beforehaving sexual intercourse, L.B. replied, “No, not really.” [77] L.B. provided little information about what he knew of S.P.’s circumstances prior to engaging in sexual activity with her, beyondthe fact that on about five occasions, S.P. was intoxicated. He did not say he knew what grade S.P. was in, what school she attended, herfriend group, her associates, other than some of her family members. L.B. did not describe S.P.’s appearance, activities, habits, orbehaviours, which might inform any reasonable belief about her age at the time.

Instead, he said he asked her to go drinking with him andhe supplied the liquor. [78] In George, the Supreme Court held that the “all reasonable steps” analysis required under s. 150.1(4) is contextual and factspecific. As Justice Gascon indicated (at para. 9), the more reasonable an accused’s perception of the complainant’s age, the fewer stepsrequired of the accused to satisfy the standard of diligence imposed.

In this case, L.B. took no steps to determine S.P.’s age. [79] On the other hand, when asked in cross-examination whether he engaged in anal intercourse with S.P. before or after herbirthday, L.B. said it was after her birthday. This suggests L.B. was aware that S.P. became a year older on [omitted for publication],2018. Still, L.B. did not say if he acknowledged or celebrated S.P.’s birthday in any way. [80] In my view, L.B. was wilfully blind or recklessly indifferent to S.P.’s legal capacity to consent to sexual activity.

I say thisrecognizing that taking “all reasonable steps” for a 16-year-old-boy having sex with a 13-year-old girl is a lesser standard than thatimposed on an adult. Still, making no inquiries into her age does not satisfy the intent of s. 150.1(6), even where the accused himself is ayouth. Hence, I conclude on the totality of the evidence, without assessing the credibility of witnesses or weighing the evidence ormaking any findings of fact, or drawing factual inferences, the defence of mistake of age does not have an air of reality.

Consequently, inthe circumstances, the Crown is not required to prove L.B. took all reasonable steps to ascertain S.P.’s age before engaging in sex. [81] In the event I am wrong on this issue and L.B.’s mistake-of-age defence does have an air of reality, I find the Crown has provenbeyond a reasonable doubt that L.B. did not take “all reasonable steps” to ascertain S.P.’s age before engaging with her in sexual activity.Moreover, I believe S.P.’s evidence that L.B. told her to lie about her age to his group-home workers and say she was 14.

This supports areasonable if not inescapable inference that L.B. knew S.P. was underage when he made this request. Issue #3: Did L.B. engage in sexual activity with S.P. without her consent? [82] L.B. and S.P. both testified as to their sexual relationship. They agree it occurred; they agree much of it was consensual; theydisagree it was always consensual.

[83] S.P. testified to only one incident of anal intercourse. She said she did not consent to anal intercourse and that she hadcommunicated this to L.B. on a number of occasions. She says that if L.B. did perform anal intercourse on her “three or four times” asL.B. suggests, then it must have been when she was “black out drunk.” L.B. led no evidence supporting his assertion that S.P. expressedand communicated her consent to anal sex at the time it occurred or that S.P. was not otherwise incapacitated by insobriety.

Even if L.B.and S.P. discussed the sexual activity beforehand as he asserts, consent can be withdrawn at any time and it can be limited to specificsexual acts. This means that S.P. could not give consent in advance to any type of sexual activity, especially that which occurred whileshe was unconscious: J.A. at para. 34, citing Ewanchuk at para. 26. [84] S.P. asserts the hairbrush incident occurred and L.B. said it did not. These are two diametrically opposed versions of one incidentof a sexual assault.

Either S.P. is telling the truth about this incident and L.B. is not, or L.B. is telling the truth and S.P. is not. I amacutely aware that I am not presiding over a simple credibility contest and I cannot determine L.B.’s guilt by determining who tells themore believable story. In a case such as this, I must consider the evidence as a whole: M.R.E., citing R. v. MacKenzie, (SCC), [1993] 1 S.C.R. 212, R. v. J.W.A., 2010 ABCA 406, P.W. [85] Upon considering the evidence as a whole, I find S.P. a credible witness on whose evidence I can generally rely.

In consideringL.B.’s evidence within the context of all of the evidence presented in its entirety, I do not find him a credible witness. The evidenceclearly shows that although he was only 16 and one-half years old at the relevant time, L.B. demonstrated a marked indifference to S.P.’syouth, her bodily integrity and her emotional well-being. From his own evidence, L.B. plied a young girl with hard liquor beforeinitiating sexual contact with her. He did not make any effort to find out her age.

He asserted sexual dominance over S.P. in disturbingways, including forcing her to endure sexual activity she found hurtful or objectionable or humiliating. When she became distraught inhis family’s home on Christmas Eve, he simply walked away and left her for hours. ASSESSING REASONABLE DOUBT [86] The principal safeguard to ensure no innocent person is convicted is the presumption of innocence and the burden on the Crownto prove the essential elements of the offences charged beyond a reasonable doubt.

Although the standard is not absolute certainty, proofbeyond a reasonable doubt is much closer to absolute certainty than to a balance of probabilities: R. v. Starr, [2000] S.C.R. 144. [87] In R. v. W.(D.), , the Supreme Court of Canada provided the trial courts with an analytical framework to assessreasonable doubt in the context of conflicting testimony in a criminal trial. It is intended to assist judges in properly applying the conceptof reasonable doubt to issues of credibility. It provides: 1. If I believe the evidence of the accused, I must acquit. 2.

If I do not believe the testimony of the accused but it leaves me in reasonable doubt as to the guilt of the accused, I must acquit. 3. Even though I am not left in doubt by the evidence of the accused, on the basis of the evidence I do accept, I must be convincedbeyond a reasonable doubt by that evidence of the guilt of the accused. 4. If, after careful consideration of all the evidence, I am unable to decide whom to believe, I must acquit: R. v. C.W.H., . [88] In W.(D.), Cory J. cautions trial judges that an accused’s evidence is not examined in isolation.

Reasonable doubt as to theaccused’s evidence must be determined “in the context of the evidence as a whole”. When assessing L.B.’s evidence, I must consider itin light of the evidence of all the witnesses, including the evidence of S.P.: R. v. J.J.R.D., (ON CA), leave to appeal. DISPOSITION [89] I do not believe L.B.’s evidence that: (

a) S.P. consented to his having anal intercourse with her at any time; (

b) he did not insert ahairbrush handle in her vagina. [90] I am not left with any doubt that L.B.: a. engaged in sexual activity with S.P. when she was 13 years old and he was more than two years older than S.P.; b.

L.B. had no honest or mistaken belief at the time of engaging in sexual activity with S.P. that she was more than 13 years old; c. engaged in anal intercourse upon S.P. without her consent; d. inserted a hairbrush handle in S.P.’s vagina without her consent; e. put his hands down S.P.’s pants and touched her vagina in public places as she described, including saying to her, “Why are you wet,are you fucking other guys?” [91] I am satisfied beyond a reasonable doubt by the evidence that L.B. is guilty of the offences charged under Information 5260-1and I find him guilty of those offences, namely: Count 1 [L.B.], from the 1st day of August, 2018, to the 31st day of January, 2019, inclusive, at or near Prince George, in the Province of BritishColumbia, did sexually assault [S.P.], contrary to

Section 271 of the Criminal Code. Count 2 [L.B.], from the 1st day of August, 2018 to the 31st day of January, 2019, inclusive, at or near Prince George, in the Province of British

Columbia, did, for a sexual purpose, touch, directly or indirectly, with a part of his body or with an object, the body of [S.P.], a person under the age of 16 years, contrary to

Section 151 of the Criminal Code . _____________________________ The Honourable Judge J.T. Doulis Provincial Court of British Columbia