R. v. M.D.B., (2003) 187 B.C.A.C. 255 (CA)

• Judge: Esson, Donald and Levine, JJ.A.
• Court: Court of Appeal (British Columbia)
• Case Date: September 23, 2003
• Jurisdiction: British Columbia
• Citations: (2003), 187 B.C.A.C. 255 (CA);2003 BCCA 525

R. v. M.D.B. (2003), 187 B.C.A.C. 255 (CA);

    307 W.A.C. 255

MLB headnote and full text

Temp. Cite: [2003] B.C.A.C. TBEd. OC.021

Regina (respondent) v. M.D.B. (appellant)

(CA029400; 2003 BCCA 525)

Indexed As: R. v. M.D.B.

British Columbia Court of Appeal

Esson, Donald and Levine, JJ.A.

September 26, 2003.

Summary:

The accused was convicted of sexual assault of his former common law wife and her two daughters by a previous marriage, of assault of one daughter and of engaging in an act of anal intercourse with the other daughter when she was under age 18. The accused appealed the convictions.

The British Columbia Court of Appeal allowed the appeal in part, substituting an acquittal for the conviction respecting anal intercourse.

Civil Rights - Topic 1128

Discrimination - Criminal and quasi-crimi­nal law - On basis of age - [See Criminal Law - Topic 704 ].

Civil Rights - Topic 5645

Equality and protection of the law - Par­ticular cases - Sexual offences - [See Criminal Law - Topic 704 ].

Criminal Law - Topic 673

Sexual offences, public morals and dis­orderly conduct - Sexual offences - Sex­ual assault - Jury charge - Section 150.1(1) of the Criminal Code provided that consent was not a defence to sexual assault in respect of a complainant under age 14 - The accused was charged with, inter alia, sexual assault of the two daugh­ters of his former common law wife - He pleaded consent or an honest belief in consent - Neither of the girls could re­member with any degree of certainty when the sexual activity with the accused began - The British Colum­bia Court of Appeal held that the trial judge was not wrong in leaving s. 150.1(1) with the jury - There was evi­dence from which the jury could reasonab­ly conclude that the complainants were under 14 when the assaults began - See paragraphs 4 to 13.

Criminal Law - Topic 673

Sexual offences, public morals and dis­orderly conduct - Sexual offences - Sex­ual assault - Jury charge - Under the Criminal Code, s. 150.1(1), consent was not a defence to sexual assault respecting a complainant under 14 - The accused was charged with sexual assault of two young girls - Neither complainant could remem­ber exactly when the impugned activity began - The accused pleaded consent or honest belief in consent - The British Columbia Court of Appeal held that the trial judge erred in failing to instruct the jury that they had to find the complainants were under 14 beyond a reasonable doubt before they could apply s. 150.1(1) - Proof of age was an essential element in the operation of s. 150.1(1) and must be proved on a criminal standard - However, the omission could not have affected the result - See para­graphs 14 to 20.

Criminal Law - Topic 704

Sexual offences, public morals and dis­orderly conduct - Sexual offences - Par­ticular offences - Anal intercourse - The British Columbia Court of Appeal set aside a conviction for anal intercourse with a person under age 18, contrary to s. 159(1) of the Criminal Code, the Crown conced­ing that the charging section was unconsti­tutional because it discriminated on the basis of age contrary to s. 15 of the Char­ter and could not be justified under s. 1 - See paragraphs 21 to 25.

Cases Noticed:

Halm v. Minister of Employment and Immigration, [1995] 2 F.C. 331; 91 F.T.R. 106 (T.D.), refd to. [para. 23].

R. v. C.M. (1995), 82 O.A.C. 68; 41 C.R.(4th) 134 (C.A.), refd to. [para. 23].

R. v. Roy (1998), 125 C.C.C.(3d) 442 (Que. C.A.), refd to. [para. 23].

R. v. Sharpe (J.R.) (1999), 127 B.C.A.C. 76; 207 W.A.C. 76; 175 D.L.R.(4th) 1; 136 C.C.C.(3d) 97 (C.A.), refd to. [para. 23].

R. v. G.G. (2001), 156 B.C.A.C. 40; 225 W.A.C. 40; 156 C.C.C.(3d) 497 (C.A.), refd to. [para. 23].

Statutes Noticed:

Criminal Code, R.S.C. 1985, c. C-46, sect. 150.1(1) [para. 6]; sect. 159(1) [para. 21].

Counsel:

L. Sears, for the appellant;

W.F. Ehrcke, Q.C., for the respondent.

This appeal was heard before Esson, Donald and Levine, JJ.A., of the British Columbia Court of Appeal, at Vancouver, British Columbia, on September 23, 2003. The decision of the court was delivered orally on September 26, 2003, by Donald, J.A.