WARNING

The court hearing this matter directs that the following notice be attached to the file:

A non-publication and non-broadcast order in this proceeding has been issued under subsection 539(1) of the Criminal Code. This subsection and subsection 539(3) of the Criminal Code, which is concerned with the consequence of failure to comply with an order made under subsection (1), read as follows:

539. Order restricting publication of evidence taken at preliminary inquiry.—

(1) Prior to the commencement of the taking of evidence at a preliminary inquiry, the justice holding the inquiry

(a) may, if application therefor is made by the prosecutor, and

(b) shall, if application therefor is made by any of the accused,

make an order directing that the evidence taken at the inquiry shall not be published in any document or broadcast or transmitted in any way before such time as, in respect of each of the accused,

(c) he or she is discharged, or

(d) if he or she is ordered to stand trial, the trial is ended.

(3) Failure to comply with order.— Every one who fails to comply with an order made pursuant to subsection (1) is guilty of an offence punishable on summary conviction.

A non-publication and non-broadcast order in this proceeding has also been issued under subsection 486.4(1) of the Criminal Code. This subsection restricts publication of any information that could identify the complainant W.G. An order made under this section does not apply in respect of the disclosure of information in the course of the administration of justice when it is not the purpose of the disclosure to make the information known in the community. Failure to comply with an order made under this section is a summary conviction offence under section 486.6.

Court Information

Ontario Court of Justice

Date: May 2, 2013

Court File No.: Toronto

Between:

Her Majesty the Queen

— And —

David LePage

Before: Justice L. Pringle

Heard on: November 28, 2012; November 30, 2012; February 27, 2013

Reasons for Judgment released on: May 2, 2013

Counsel:

• Mr. A. Hannah-Suarez — counsel for the Crown
• Mr. B. Bytensky — counsel for the accused David LePage

PRINGLE J.:

1. Introduction and Overview

[1] This is a preliminary inquiry.

[2] David LePage is charged with allegations of historical sexual assault against W.G. in the summer of 1970. The charges arise out of one incident during which Mr. LePage allegedly fondled W.G.'s penis to give him an erection, and then suggested that W.G. insert his penis into Mr. LePage's anus. W.G. testified that he did that, but when his penis was part way in, it came to his mind, "No this is wrong, just stop. Get up, get out of here", and he left. At the time, W.G. was 15 years old and Mr. LePage was 27.

[3] Back in 1970, the age of consent for indecent assault was 14 years of age: see sections 148 and 132 of the 1970 Criminal Code. The Crown seeks a committal for trial on two charges of indecent assault on the basis that it can be inferred that W.G. was not consenting. The Defence submits that at its highest for the Crown, W.G. was a hesitant participant in consensual sexual activity until he decided to stop and left of his own free will.

[4] The Crown also seeks a committal for trial on two charges of gross indecency. For acts of gross indecency, the age of consent for two consenting adults in private was 21 years of age: see sections 149 and 149A of the 1970 Criminal Code. It is agreed that since he was only 15, W.G. could not have consented to acts of gross indecency. However, the Defence submits that there is no evidence that the acts complained of would have been grossly indecent according to the law at the time.

[5] Both Mr. Hannah-Suarez for the Crown and Mr. Bytensky for the Defence provided helpful, focused and persuasive submissions in this case, for which I am grateful. For reasons that I will explain, I have determined that there is no evidence upon which a reasonable jury, properly instructed, could convict Mr. LePage of indecent assault. However, I am satisfied that there is evidence upon which a jury could find that the acts were grossly indecent according to the law at the time. Accordingly, there will be a committal for trial on two counts of gross indecency.

[6] These are my reasons.

2. Indecent Assault

[7] In 1970, Section 148 of the Criminal Code stipulated that:

Every male person who assaults another person with intent to commit buggery or who indecently assaults another male person is guilty of an indictable offence and is liable to imprisonment for ten years and to be whipped.

[8] In his book, Sexual Offences in Canadian Law (Thomson Reuters Canada Ltd., 2012), at p.2-15, Professor Hamish Stewart explains that in order to amount to an indecent assault, an indecent act had to be accompanied by an "assault", that is, it had to be an indecent act carried out without consent or one that was induced by force or threats of force.

[9] In this case, the parties agreed that the defining issue is whether the Crown can show that there was any evidence of an absence of consent to the sexual activity from W.G.'s perspective. If there was, there must be a committal for trial.

[10] It was further agreed as set out in R. v. Ewanchuk, [1999] S.C.J. No. 10, that absence of consent is purely subjective and determined by reference to the complainant's subjective, internal state of mind towards the touching at the time it occurred (see para. 26).

[11] Here, there was no direct evidence of non-consent and it was not clear what W.G.'s subjective, internal state of mind was. W.G. said:

• "my mind was open to the situation because there had been a curiosity in the first place but that was – and, and here I was in, in a – a position now that I felt trapped";

• "… it was so new. I didn't know. I didn't have the courage at that point or the wits to say get out of here, and I basically was frozen where I was. He was a much bigger person than I, so the physical size intimidated me to react one way or the other";

• When asked how he felt when Mr. LePage touched his penis, "No one had done that before and so it was a shock. It made me feel uncomfortable. But it was as though the voice that was in me was silent, it was trapped, and I was now naked and how could I run so I basically had to stay"; and

• Mr. LePage did not ask for permission before touching him.

[12] In order to appreciate each of Mr. Hannah-Suarez's argument that the totality of the evidence gave rise to a reasonable inference of an absence of consent, and Mr. Bytensky's submission that it did not, it is necessary to understand W.G.'s evidence about what happened between him and Mr. LePage.

[13] W.G. testified that he first met David LePage in the summer after Grade 9 when he was 15 years old, likely at a get-together at LePage's home with other people. Nothing suggested that Mr. LePage was someone to be fearful of, and he discovered that they had some interests in common. In around June, Mr. LePage invited him to come and do some flower deliveries with him at his employment around the city, and they did that once a week for a number of weeks. On one occasion Mr. LePage gave W.G. a cigarette which he accepted and smoked. It was his first cigarette. On another occasion they went with a group of kids to a river, and while the younger kids went swimming naked, Mr. LePage offered to let W.G. take his car for a spin, and the two went driving together. W.G. had never driven before.

[14] W.G. testified that at 15, he had no familiarity with sex at all, not even the basics. On the day of the encounter giving rise to these charges, he was accompanying Mr. LePage on his flower deliveries, and LePage asked him if ever wet his underwear sexually, and talked to him about girls. LePage offered to educate him by taking him to a place to meet some girls, but when they arrived, the girls weren't there. When they got back in the van to finish the flower deliveries, Mr. LePage asked W.G. if he ever wondered what sex was like, and W.G. said no, but how do you know where the part goes. Mr. LePage said he could help him to figure that out and W.G. agreed. W.G. said he thought Mr. LePage meant he would show him some magazines or something.

[15] After the deliveries were finished they went back to Mr. LePage's home and he invited W.G. in. He offered him a cool drink (not alcohol), and then they went downstairs to a guest bedroom. Mr. LePage told W.G. to sit down and referred back to the conversation in the van about finding out about sex and said to W.G., well, here, let me show you what happens. W.G. said ok. LePage then took off his shirt and pants, and had an erection, but W.G. didn't. LePage said take off your clothes, and W.G. took off his clothes.

[16] Mr. LePage told W.G. that he needed to have an erection for anything to happen, so LePage took W.G.'s penis and stroked it to get an erection. Mr. LePage then moved onto the bed and lay on his stomach, and encouraged W.G. to come over, and said I'll show you now. He took W.G.'s penis and lubricated it with saliva and said lay on top, and move it around till it finds the hole. LePage said just push it in, and W.G. did, but once the end of his penis was part way in, it came to his mind that it was wrong, and to get out of there. Mr. LePage tried to encourage him and calm his angst, and said it was ok, but W.G. said no, it's not. He felt ashamed and overcome with guilt, and he got dressed and left.

[17] W.G. agreed that Mr. LePage never threatened him and he went willingly into the bedroom. When Mr. LePage said you remember how we were talking about sex and suggested let me show you, W.G. said "ok". After Mr. LePage took his own clothes off, W.G. took his clothes off too, and they were both naked. Then when Mr. LePage said you have to have an erection, W.G. again said "ok". Once W.G. had an erection, Mr. LePage moved onto the bed and said come and lay on top of me, and W.G. acknowledged the request and moved over to him. LePage suggested that he put his penis in the hole, and W.G. said he was stunned and puzzled but he said ok and he put his penis in. Then when he felt guilty and said I can't do this, Mr. LePage said ok and didn't try to talk him into continuing, and didn't stop him from leaving.

[18] Mr. Hannah-Suarez submitted that putting W.G.'s evidence about what happened together with the confused emotions that he was experiencing, there is a reasonable inference of non-consent. He argued that considering the age difference between them, and taking into account W.G.'s complete absence of sexual experience, there was a power imbalance. The Crown also suggested that a jury could find that Mr. LePage engaged in a "bait and switch" by talking about girls and showing W.G. about sex, but later presenting him with a physical act between the two of them that W.G. wasn't expecting. In the context of W.G. saying it was all new, that he felt trapped, that he was uncomfortable and Mr. LePage didn't ask for permission, Mr. Hannah-Suarez submitted a jury could infer non-consent. In short, he said that although W.G. went along with it, a jury could infer he didn't want to do it.

[19] For his part, Mr. Bytensky stressed the lack of threats or coercion, and the fact that when W.G. said he wanted to end it, it ended. He submitted that W.G. was not misled by the situation – W.G. himself testified that he understood when Mr. LePage said let me show you about sex and took his clothes off, he was referring back to the conversation in the van about what happens and where the parts go. While W.G. may have been hesitant and a follower as opposed to the leader, he agreed that his mind was open, he was curious, and he himself furthered the acts by taking off his own clothes and going to the bed and lying on top of Mr. LePage. In these circumstances, Mr. Bytensky urged me to find that while the consent may have been reluctant or hesitant, it was voluntary.

[20] My function as a preliminary inquiry judge is to consider whether there is evidence upon which a reasonable jury, properly instructed, could return a verdict of guilty against Mr. LePage: see U.S.A. v. Sheppard (1976), 30 C.C.C. (2d) 424 (S.C.C.). In order to commit for trial, I must conclude that there is evidence of each essential element of the offence, including an absence of consent.

[21] I am required to consider the direct evidence before me at its highest, without weighing credibility. I must also consider the circumstantial evidence and inferences arising out of the totality of the evidence. In relation to circumstantial evidence, Chief Justice McLachlin said in R. v. Arcuri (2001), 2001 SCC 54, 157 C.C.C. (3d) 21 (S.C.C.) at para. 23:

The question then becomes whether the remaining elements of the offence -- that is, those elements as to which the Crown has not advanced direct evidence -- may reasonably be inferred from the circumstantial evidence. Answering this question inevitably requires the judge to engage in a limited weighing of the evidence because, with circumstantial evidence, there is, by definition, an inferential gap between the evidence and the matter to be established -- that is, an inferential gap beyond the question of whether the evidence should be believed. …The judge must therefore weigh the evidence, in the sense of assessing whether it is reasonably capable of supporting the inferences that the Crown asks the jury to draw. This weighing, however, is limited. The judge does not ask whether she herself would conclude that the accused is guilty. Nor does the judge draw factual inferences or assess credibility. The judge asks only whether the evidence, if believed, could reasonably support an inference of guilt.

[22] Where there are competing inferences that may reasonably be drawn, the final weighing and determination of the matter must be left for the jury: see R. v. Magno and McMaster, [2006] O.J. No. 2590 (Ont. C.A.) at para. 15; R. v. Campbell, [2007] O.J. No. 2578 (S.C.J.) at para. 7; and R. v. Alexander, [2006] O.J. No. 3173 (S.C.J.) at paras. 16-20.

[23] "Consent" means the voluntary agreement of the complainant to engage in the sexual activity in question. There is no consent if the complainant's agreement was motivated by fear, fraud or the exercise of authority or an abuse of a position of trust, power or authority. In this regard, the issue is whether the complainant freely made up his mind about the conduct in question. This question is different from whether he would have preferred not to engage in the sexual activity: see R. v. Ewanchuk, cited above, at paras. 36-40.

[24] In this case, I have no difficulty taking W.G.'s evidence at its highest; while it is not my function to assess credibility, it seemed to me that W.G. was an unflinchingly honest witness.

[25] On W.G.'s own account, he was naïve but also curious, with an open mind. He was confused and at one point "frozen", and he also felt "trapped" by his nakedness; but it is significant that there was no evidence of any threats, coercion or abuse of a position of authority to get there. While it is true that W.G. said that Mr. LePage's physical size intimidated him, I don't think that W.G. was saying that this is what influenced him to participate.

[26] I also do not agree that the evidence supports a "bait and switch" approach – W.G. agreed that Mr. LePage referred back to the conversation in the van about finding out about sex and said let me show you, and W.G. said ok.

[27] At each stage of the way, W.G. knew what was happening before it happened and said ok or acted of his own volition to continue. He wasn't rushed or pushed or coerced. There was no alcohol involved. When W.G. himself decided to end it, it ended, and he left of his own free will.

[28] In these circumstances, I agree with Mr. Bytensky that W.G. may have been reluctant and hesitant, but his actions were voluntary. Therefore, based on the limited weighing of inferences mandated by the Arcuri test, I do not find that a jury could reasonably find there was an absence of consent.[1]

3. Gross Indecency

[29] Professor Stewart explains the historical offence of gross indecency in his book at page 2-29 as follows:

Under section 149 of the Criminal Code, an act of gross indecency was one which constituted "a marked departure from decent conduct expected of the average Canadian in the circumstances that existed": see R. v. Quesnel (1979), 51 C.C.C. (2d) 270 (Ont. C.A.) at p.280…. Some cases suggested that certain acts, such as buggery, heterosexual fellatio, and heterosexual cunnilingus were per se grossly indecent regardless of the circumstances.

[30] In the case before me, Mr. Bytensky submitted that in the absence of expert evidence or case law about what constituted gross indecency according to the norms of the day, there was no basis upon which I could conclude that the acts between Mr. LePage and W.G. were grossly indecent.

[31] However, I find that the case law provides a pretty clear view of what was considered "indecent" at the time. There is no doubt that it was a very different view than the one which prevails now, but it was the law at the time. Therefore, I believe I am bound to consider it in relation to offences that were alleged in 1970.[2]

[32] Consider, for example, that in R. v. K and H, [1957] A.J. No. 43 (Alta. S.C.) at paras. 6-7, Egbert J. made the following comments about an act of anal intercourse between two consenting male adults:

…It is quite true that in other lands and at other times, for example ancient Greece, such an act would not be considered indecent. …But Parliament in s.149 must be deemed to have enacted it with the morality not of ancient Greece in mind at all, but the morality of our own times, and to have enacted it solely with a view to the state of our public morals, and it is inconceivable that in these times the act performed by the accused could be considered as otherwise than grossly indecent.

…I cannot believe that buggery, or acts akin thereto, can ever be anything but grossly indecent, whatever the circumstances under which they are performed. (my emphasis)

[33] Similarly, in R. v. Davis, [1969] A.J. No. 16 (C.A.), the court found that private and consensual acts of fellatio, cunnilingus and anal intercourse between two adults and photographed by a 16 year old girl under the influence of L.S.D. were "clearly indecent" and both adults were found guilty of gross indecency.

[34] Taking into account these cases on the prevailing view of "indecency" at that time, it appears that according to the law as it existed in 1970, a jury could find that acts of fondling and anal intercourse between two males, even if consenting, were grossly indecent acts.

[35] However, beyond that, I agree with Mr. Hannah-Suarez that a jury could take into account the other circumstances surrounding the acts in this case, in order to determine if they were grossly indecent. In other words, I don't agree with Mr. Bytensky that a finding of consent is dispositive of the issue. Even if W.G. was acting voluntarily and in that sense was legally consenting, there are other aspects of the encounter that a jury must consider in determining if the acts were grossly indecent: see R. v. St. Pierre, [1974] O.J. No. 1898 (C.A.) and R. v. Sharpe, 2007 BCCA 191, 2007 B.C.C.A. 191.

[36] In this regard, the jury could consider the age difference between W.G. and Mr. LePage, and take into account that Mr. LePage was an adult who was working, living in his own home and professed to have some sexual experience, compared to W.G. who was a Grade 9 student, lived with his family and had no sexual knowledge, not even of the basics. Although I would not go so far as to say there was a position of authority or trust in these circumstances, I believe it would be open to a jury to find that there was a power imbalance between this man and this boy.

[37] In the context of W.G.'s naiveté and hesitancy about what was happening, the age difference and power imbalance were significant factors. Indeed as I noted in footnote 1, even on today's standards, the age difference between W.G. and Mr. LePage would mean that, if believed, the sexual activity described by W.G. would amount to a criminal offence by Mr. LePage.

[38] Therefore, I find that there is some evidence upon which a jury could find that the fondling and anal intercourse initiated by Mr. LePage with W.G. was a marked departure from decent conduct expected of the average Canadian in 1970.

[39] Therefore, there will be a committal for trial on gross indecency.

Justice Leslie Pringle

Released: to the parties April 18, 2013; in court on May 2, 2013

Footnotes

[1] This situation would be different under the current law: by virtue of the age differences between W.G. and Mr. LePage, there would be a statutory bar to consent pursuant to s.150.1(2.1).

[2] Professor Stewart notes that in his view, there are serious constitutional concerns about charging a person with gross indecency for conduct occurring after the advent of the Charter. However, the Charter has been held not to have retrospective effect, and therefore does not affect offences of gross indecency committed prior to its coming into force: R. v. Hall, [1993] O.J. No. 3344 (C.A.) at paras. 199-233.