A B.C. Supreme Court Justice has upheld a lower court finding that a man committed a sexual assault when he pushed the bottoms of three preteen girls to get them out of his way while progressing along the lazy river at the Prince George Aquatic Centre.
James Allan Prince, 67, was sentenced in September 2021 to a 40-day conditional sentence order followed by one year of probation and his name being added to the national sex offender registry for the eight years.
Prince would have been issued a stiffer sentence if not for the fact that while his actions constituted sexual assault, Provincial Court Judge Peter McDermick found they were not sexual in intent.
During an evening in November 2017, Prince became upset with the girls, ages 11-12, as he tried to make his way around the lazy river at the PGAC and repeatedly put his hand on their bottoms to push them out of the way.
Counsel for Prince appealed the verdict, arguing that the judge erred in applying the proper standard of proof in finding there was touching and that, if there was, it constituted sexual assault.
In a decision issued February 25, Justice Marguerite Church disagreed with both grounds.
On the first, Church said defence focused on McDermick's use of the words "preponderance of evidence" regarding two of the girls and a failure to mention proof beyond reasonable doubt during that portion of his reasons for judgment.
Church went on to cite a decision from the Ontario Court of Appeal that states it is wrong to analyze a trial judge's reasons by dissecting them into small pieces and rather, the judgment must be read as a whole.
"When the reasons for judgment are read as a whole, it is apparent that the trial judge (McDermick) explicitly instructed himself on the standard of proof of beyond reasonable doubt and applies that standard throughout the judgment," Church said. "The trial judge did not err by applying the wrong standard of proof."
On whether the touching constituted sexual assault, Church noted in part that when one of the girls told Prince that what he was doing was inappropriate, he replied "it was supposed to be."
Church went on to agree with McDermick's finding that the "sexual context of the impugned conduct was visible to a reasonable observer and that the impugned conduct for each complainant violated their sexual integrity."
