R. v. G.D.G., 2013 MBQB 244

• Judge: Mainella, J.
• Court: Court of Queen's Bench of Manitoba (Canada)
• Case Date: October 15, 2013
• Jurisdiction: Manitoba
• Citations: 2013 MBQB 244;(2013), 298 Man.R.(2d) 119 (QB)

R. v. G.D.G. (2013), 298 Man.R.(2d) 119 (QB)

MLB headnote and full text

Temp. Cite: [2013] Man.R.(2d) TBEd. NO.024

Her Majesty The Queen (respondent) v. G.D.G. (accused/appellant)

(CR 12-01-31804; 2013 MBQB 244)

Indexed As: R. v. G.D.G.

Manitoba Court of Queen's Bench

Winnipeg Centre

Mainella, J.

October 15, 2013.

Summary:

While babysitting his girlfriend's eight year old daughter (the child), the accused suggested to the child that the loser of a game place an electric vibrator in his or her pants. The accused was charged with invitation to sexual touching (s. 152 of the Criminal Code).

The Manitoba Provincial Court, in a decision not reported in this series of reports, convicted the accused. He appealed.

The Manitoba Court of Queen's Bench dismissed the appeal.

Editor's Note: Certain names in the following case have been initialized or the case otherwise edited to prevent the disclosure of identities where required by law, publication ban, Maritime Law Book's editorial policy or otherwise.

Civil Rights - Topic 3160

Trials - Due process, fundamental justice and fair hearings - Criminal and quasi-criminal proceedings - Right to remain silent and protection against self-incrimination - [See first Civil Rights - Topic 4604 ].

Civil Rights - Topic 4601

Right to counsel - General (incl. nature and purpose of) - [See first Civil Rights - Topic 4604 ].

Civil Rights - Topic 4604

Right to counsel - General - Denial of or interference with - What constitutes - The accused was informed of the reason for his arrest, advised of his right to counsel and was allowed to exercise that right by 2:46 p.m. - His interrogation with police progressed - At 6:12 p.m., he asked to speak with counsel again - The officer told him that nothing had changed and the interrogation continued - The accused made a statement - At his trial on a charge of invitation to sexual touching, the accused asserted that the statement had been obtained in violation of his s. 10(b) Charter right to counsel and should be excluded - The trial judge admitted the statement on the basis that the officer had satisfied the information and implementation requirements of s. 10(b) and there had been no change in jeopardy that would have given rise to a right to consult counsel again - The accused was convicted - The Manitoba Court of Queen's Bench dismissed the accused's appeal - The purpose of s. 10(b) was not to protect an accused from self-incrimination, but to support the accused's decision regarding whether or not to cooperate with police - The accused knew his jeopardy before the interrogation and understood throughout it that he had the right to remain silent - His jeopardy did not change during the interrogation - The officer's duties under s. 10(b) were not reactivated during the interrogation - There was no error in admitting the accused's statement to police - See paragraphs 67 to 78.

Civil Rights - Topic 4604

Right to counsel - General - Denial of or interference with - What constitutes - The accused was informed of the reason for his arrest, advised of his right to counsel and was allowed to exercise that right by 2:46 p.m. - His interrogation with police progressed - At 6:12 p.m., he asked to speak with counsel again - The officer told him that nothing had changed and the interrogation continued - The accused made a statement - At his trial on a charge of invitation to sexual touching, the accused asserted that the statement had been obtained in violation of his s. 10(b) Charter right to counsel and should be excluded - The statement was admitted and the accused was convicted - In dismissing the accused's appeal, the Manitoba Court of Queen's Bench stated, "Section 10(b) of the Charter normally affords a detained suspect a single consultation with counsel on request. Subsequent access to counsel is required to be allowed by police only when changed circumstances dictate that the initial legal advice may no longer be adequate for the suspect to be able to decide whether to choose to cooperate with police or not. ...  Changed circumstances that re-activate s. 10(b) duties on police during an interrogation include: (a) a new procedure involving a detainee, such as participating in a line-up, (b) a significant change of the investigation, such that the detainee becomes a suspect for a different and more serious crime than the initial warning due to new circumstances coming to the attention of police, and (c) police have reason to believe the detained suspect did not understand their s. 10(b) right when initially warned." - See paragraphs 74 and 75.

Civil Rights - Topic 4609.1

Right to counsel - General - Duty of police investigators (incl. undercover officers) - [See both Civil Rights - Topic 4604 ].

Courts - Topic 583

Judges - Duties - Re reasons for decisions - [See both Criminal Law - Topic 4687 ].

Courts - Topic 590

Judges - Duties - Duty to appear just and impartial - [See second Criminal Law - Topic 4687 ].

Criminal Law - Topic 708

Sexual offences, public morals and disorderly conduct - Sexual offences - Particular offences - Inviting sexual touching - The Manitoba Court of Queen's Bench discussed the elements of the offence of invitation to sexual touching (s. 152 of the Criminal Code) - Invitation to sexual touching was a crime of communication, not of assault - The actus reus was the communication, which could be implied - The touching could be direct or indirect - The offence was complete even if no touching occurred - The mens rea was two-part: (1) an accused knowingly communicated for a sexual purpose with a child under the age of 16 and (2) an intention that the child would receive the communication as an invitation or the knowledge that there was a substantial and unjustified risk that the child would receive the communication as an invitation - The mental element had to be present when the communication was made - See paragraphs 93 to 96.

Criminal Law - Topic 708

Sexual offences, public morals and disorderly conduct - Sexual offences - Particular offences - Inviting sexual touching - While babysitting his girlfriend's eight year old daughter (the child), the accused suggested to the child that the loser of a game place an electric vibrator in his or her pants - The accused was convicted of invitation to sexual touching (s. 152 of the Criminal Code) - On appeal, the accused asserted, inter alia, that this was not a crime because there was no sexual purpose in having the vibrator visible to the child - The Manitoba Court of Queen's Bench dismissed the appeal - The court rejected the accused's argument that the Crown had to prove as part of the mens rea that the sexual purpose behind the offence was the accused's sexual gratification - This interpretation of s. 152 was too restrictive - When s. 152 was read in context and in light of related sexual offences regarding children and Parliament's intention, the ordinary sense of "for a sexual purpose" did not limit the sexual purpose to be related to the accused only - While the trial judge did accept that what occurred here was intended for the accused's sexual gratification, the reasonableness of the verdict did not rely on that - Parliament's purpose in enacting s. 152 was to prevent sexual exploitation of, and interference with, young children - Section 152 had to be construed in light of that purpose and related provisions such as sexual interference (s. 151) and sexual exploitation (ss. 153 and 153.1) - Parliament created these offences as part of a comprehensive approach to modernize the criminal law to protect children from the increasing occurrence of child sexual abuse and exploitation - The words "for a sexual purpose" had been interpreted to include touching done for an accused's own gratification, the gratification of a complainant, or such touching that, objectively considered, violated the sexual integrity of a child - See paragraphs 97 to 100.

Criminal Law - Topic 708

Sexual offences, public morals and disorderly conduct - Sexual offences - Particular offences - Inviting sexual touching - While babysitting his girlfriend's eight year old daughter (the child), the accused suggested to the child that the loser of a game place an electric vibrator in his or her pants - The accused was convicted of invitation to sexual touching (s. 152 of the Criminal Code) - On appeal, the accused asserted, inter alia, that this was not a crime because there was no sexual purpose in having the vibrator visible to the child - The Manitoba Court of Queen's Bench dismissed the appeal - The debate as to the significance of whether or not the accused had an erection during the game was superfluous given the gravamen of the offence and what was going on during the babysitting - The reasonable observer considering the evidence could conclude beyond a reasonable doubt that an adult babysitter telling an eight year old to put such a sexual object down her pants as a competitive feature to a children's game was, at a minimum, conduct that, if it occurred, would have violated the child's sexual integrity - Inviting or counselling such touching was, therefore, for a sexual purpose, regardless of whether or not it was also done for the accused's own sexual gratification - See paragraphs 101 to 103.

Criminal Law - Topic 4300

Procedure - Trial judge - Duties and functions of - Respecting credibility of witnesses (incl. accused) - [See Criminal Law - Topic 4377 ].

Criminal Law - Topic 4377

Procedure - Charge or directions - Jury or judge alone - Directions regarding credibility of witnesses - While babysitting his girlfriend's eight year old daughter (the child), the accused suggested to the child that the loser of a game place an electric vibrator in his or her pants - The accused was convicted of invitation to sexual touching (s. 152 of the Criminal Code) - On appeal, the accused challenged the trial judge's credibility findings - The Manitoba Court of Queen's Bench dismissed the appeal - There were three reasons why the verdict could have been rendered: (1) The child was consistent in her description of the communication that was the essence of the offence; (2) although it was not necessary, there was evidence confirming the child's evidence; and (3) it was not the case that the trial judge's credibility assessment of the child could not be supported on any reasonable view of the evidence - While there was an inconsistency in the evidence of the child and her mother regarding what the accused was wearing when the mother arrived home, the mere presence of a contradiction in a witness's evidence did not necessarily make a verdict unreasonable - The trial judge addressed the inconsistency and assessed it as having no impact - The law allowed the trial judge to use a flexible, common sense approach to the child's evidence - There was no basis on which to interfere with either his assessment of the child's credibility or the negative assessment of the accused's credibility - The accused's statement to police and his trial testimony were replete with contradictions - See paragraphs 104 to 124.

Criminal Law - Topic 4379

Procedure - Charge or directions - Jury or judge alone - Directions re evidence of character or credibility of accused - [See Criminal Law - Topic 4377 ].

Criminal Law - Topic 4687

Procedure - Judgments and reasons for judgment - Reasons for judgment - Time for - The accused was convicted of invitation to sexual touching - At issue on the appeal was the effect of the trial judge's 32 month delay in providing written reasons following his oral reasons regarding the admissibility of the accused's statement to police - The Manitoba Court of Queen's Bench stated, "If a judge announces a decision with written reasons to follow, the correct approach to ensure the appearance of justice for the parties, the public, and the overall integrity of the justice system is for the judge to fulfill that promise in a timely way, or alternatively contact the parties at the earliest opportunity and explain in a manner that forms part of the record of a change of course. Candour to the parties and transparency of the record are the overriding principles." - See paragraph 54.

Criminal Law - Topic 4687

Procedure - Judgments and reasons for judgment - Reasons for judgment - Time for - The accused was convicted of invitation to sexual touching - At issue on the appeal was the effect of the trial judge's 32 month delay in providing written reasons following his oral reasons regarding the admissibility of the accused's statement to police - The accused asserted that the trial judge had not acted impartially or with integrity and that, therefore, the court should not consider the written reasons - The Manitoba Court of Queen's Bench rejected the argument - Trial judges enjoyed a presumption of integrity and impartiality when there was a delay in rendering reasons - The presumption was a high one that could only be rebutted by cogent evidence - While the unexplained delay of 32 months was remarkable, delay, by itself, was not sufficient to rebut the presumption - Counterbalancing the accused's assertion were the following factors: (1) the trial judge had no difficulty making his oral decision; (2) the oral reasons were adequate and addressed the issue on appeal; (3) there was no suggestion that the written reasons were tailored to the appeal; and (4) the issue regarding the statement's admissibility was primarily a legal one - Taking the necessary holistic and contextual approach, the court was satisfied that the accused had not demonstrated that a reasonable person would conclude that the trial judge had not acted impartially and with integrity - The accused's request that the court only consider the oral reasons was dismissed - See paragraphs 52 to 66.

Criminal Law - Topic 5462

Evidence and witnesses - Evidence of children - Credibility - [See Criminal Law - Topic 4377 ].

Criminal Law - Topic 7659

Summary conviction proceedings - Appeals - Grounds - Verdict unreasonable or unsupported by evidence - [See second Criminal Law - Topic 708 and Criminal Law - Topic 4377 ].

Police - Topic 3107

Powers - Investigation - Questioning of suspects and witnesses - [See both Civil Rights - Topic 4604 ].

Statutes - Topic 501

Interpretation - General principles - Purpose of legislation - Duty to promote object of statute - [See second Criminal Law - Topic 708 ].

Statutes - Topic 502

Interpretation - General principles - Intention of Parliament or legislature - [See second Criminal Law - Topic 708 ].

Statutes - Topic 516

Interpretation - General principles - Ordinary meaning of words - [See second Criminal Law - Topic 708 ].

Statutes - Topic 2605

Interpretation - Interpretation of words and phrases - Modern rule (incl. interpretation by context) - Intention from related provisions - [See second Criminal Law - Topic 708 ].

Words and Phrases

For a sexual purpose - The Manitoba Court of Queen's Bench considered the interpretation of the phrase "for a sexual purpose" as found in s. 152 of the Criminal Code, R.S.C. 1985, c. C-46 - See paragraphs 97 to 100.

Cases Noticed:

R. v. Grant (D.), [2009] 2 S.C.R. 353; 391 N.R. 1; 253 O.A.C. 124; 2009 SCC 32, refd to. [para. 41].

R. v. Shepherd (C.), [2009] 2 S.C.R. 527; 391 N.R. 132; 331 Sask.R. 306; 460 W.A.C. 306; 2009 SCC 35, refd to. [para. 41].

R. v. Teskey (L.M.), [2007] 2 S.C.R. 267; 364 N.R. 164; 412 A.R. 361; 404 W.A.C. 361; 2007 SCC 25, dist. [para. 42].

R. v. Sheppard (C.), [2002] 1 S.C.R. 869; 284 N.R. 342; 211 Nfld. & P.E.I.R. 50; 633 A.P.R. 50; 2002 SCC 26, refd to. [para. 52].

R. v. Wang (Z.) (2010), 263 O.A.C. 194; 256 C.C.C.(3d) 225; 2010 ONCA 435, refd to. [para. 54].

Cojocaru v. British Columbia Women's Hospital and Health Center et al. (2013), 445 N.R. 138; 336 B.C.A.C. 1; 574 W.A.C. 1; 2013 SCC 30, refd to. [para. 56].

R. v. Cunningham (K.) (2011), 281 O.A.C. 7; 106 O.R.(3d) 641; 2011 ONCA 543, dist. [para. 57].

R. v. R.E.M., [2008] 3 S.C.R. 3; 380 N.R. 47; 260 B.C.A.C. 40; 439 W.A.C. 40; 2008 SCC 51, refd to. [para. 57].

R. v. Vuradin (F.) (2013), 446 N.R. 53; 553 A.R. 1; 583 W.A.C. 1; 2013 SCC 38, refd to. [para. 57].

R. v. Singh (J.), [2007] 3 S.C.R. 405; 369 N.R. 1; 249 B.C.A.C. 1; 414 W.A.C. 1; 2007 SCC 48, refd to. [para. 67].

R. v. Oickle (R.F.), [2000] 2 S.C.R. 3; 259 N.R. 227; 187 N.S.R.(2d) 201; 585 A.P.R. 201; 2000 SCC 38, refd to. [para. 69].

R. v. Evans (W.G.), [1991] 1 S.C.R. 869; 124 N.R. 278, refd to. [para. 72].

R. v. Sinclair (T.T.), [2010] 2 S.C.R. 310; 406 N.R. 1; 293 B.C.A.C. 36; 496 W.A.C. 36; 2010 SCC 35, refd to. [para. 73].

R. v. McCrimmon (D.R.), [2010] 2 S.C.R. 402; 406 N.R. 152; 293 B.C.A.C. 144; 496 W.A.C. 144; 2010 SCC 36, refd to. [para. 76].

R. v. Wood (D.A.) (1994), 135 N.S.R.(2d) 334; 386 A.P.R. 334 (C.A.), leave to appeal refused (1995), 193 N.R. 238; 145 N.S.R.(2d) 80; 418 A.P.R. 80, refd to. [para. 77].

R. v. R.W., [1992] 2 S.C.R. 122; 137 N.R. 214; 54 O.A.C. 164, refd to. [para. 83].

R. v. R.P., [2012] 1 S.C.R. 746; 429 N.R. 361; 2012 SCC 22, refd to. [para. 91].

R. v. Legare (C.B.) (2008), 429 A.R. 271; 421 W.A.C. 271; 236 C.C.C.(3d) 380; 2008 ABCA 138, affd. in part [2009] 3 S.C.R. 551; 396 N.R. 98; 469 A.R. 168; 470 W.A.C. 168; 2009 SCC 56, refd to. [para. 93].

R. v. Rhynes (C.M.) (2004), 239 Nfld. & P.E.I.R. 89; 709 A.P.R. 89; 2004 PESCAD 15, refd to. [para. 94].

R. v. Fong (S.W.H.) (1994), 157 A.R. 73; 77 W.A.C. 73 (C.A.), leave to appeal refused (1995), 188 N.R. 236; 174 A.R. 398; 102 W.A.C. 398 (S.C.C.), refd to. [para. 99].

R. v. S.G. (2004), 190 O.A.C. 319 (C.A.), refd to. [para. 99].

R. v. Sears (1990), 66 Man.R.(2d) 47 (C.A.), refd to. [para. 99].

R. v. G.B. (2009), 267 B.C.A.C. 69; 450 W.A.C. 69; 244 C.C.C.(3d) 185; 2009 BCCA 88, refd to. [para. 100].

R. v. B.M., [2011] A.R. Uned. 115; 2011 ABCA 150, refd to. [para. 100].

R. v. Khan, [1990] 2 S.C.R. 531; 113 N.R. 53; 41 O.A.C. 353, refd to. [para. 106].

R. v. D.C.B. (1994), 95 Man.R.(2d) 220; 70 W.A.C. 220 (C.A.), refd to. [para. 106].

R. v. D.G.S. (2013), 294 Man.R.(2d) 217; 581 W.A.C. 217; 2013 MBCA 69, refd to. [para. 107].

F.H. v. McDougall, [2008] 3 S.C.R. 41; 380 N.R. 82; 260 B.C.A.C. 74; 439 W.A.C. 74; 2008 SCC 53, refd to. [para. 114].

R. v. François (L.), [1994] 2 S.C.R. 827; 169 N.R. 241; 73 O.A.C. 161, refd to. [para. 117].

R. v. A.F.V.D.A. (1995), 102 Man.R.(2d) 19; 93 W.A.C. 19 (C.A.), affd. [1996] 1 S.C.R. 471; 195 N.R. 398; 110 Man.R.(2d) 157; 118 W.A.C. 157, refd to. [para. 118].

R. v. L.A.P. (2000), 150 Man.R.(2d) 247; 230 W.A.C. 247; 2000 MBCA 109, affd. [2001] 1 S.C.R. 757; 268 N.R. 201; 156 Man.R.(2d) 163; 246 W.A.C. 163; 2001 SCC 28, refd to. [para. 120].

Statutes Noticed:

Criminal Code, R.S.C. 1985, c. C-46, sect. 152 [para. 98].

Authors and Works Noticed:

Ratushny, Edward, Self-incrimination in the Canadian Criminal Process (1979), p. 4 [para. 68].

Roberts, Paul, and Zuckerman, Adrian, Criminal Evidence (2004), p. 394 [para. 71].

Counsel:

Robert M. Gosman, for the Crown;

Josh A. Weinstein, for the accused/appellant.

This appeal was heard by Mainella, J., of the Manitoba Court of Queen's Bench, Winnipeg Centre, who delivered the following judgment on October 15, 2013.