CALGARY -- He may be a creep, but a fired Calgary Handi-Bus driver who fondled a disabled passenger isn't a sex offender, his lawyer said yesterday.

Defence counsel Pat Flynn admitted Francis Colin Harvey's conduct in the circumstances was improper, but it didn't cross the line into criminal behaviour.

Flynn told provincial court Judge Gary Cioni his client had a reasonable belief the woman was consenting to his touching after they hugged and then kissed.

"A reasonable man in the same circumstances, I would suggest, would have done the same things as Mr. Harvey," Flynn said, of the test for mistaken belief in consent.

"I admit it's creepy, but it's not criminal."

Harvey, 49, is charged with sexual assault in connection with a May 25, 2007, incident in which he fondled a wheelchair-bound victim of cerebral palsy in the back of his bus.

The woman testified Harvey asked her if she wanted a hug, to which she replied yes and when he embraced her she hugged him back.

He then kissed her on the mouth, which caused her to involuntarily kiss back because of her disability, she said.

When Harvey placed his hand on her chest and then reached down as if to lift her top, she protested and he stopped, said the woman, whose physical disability is so severe she needed a "translator" to help her testify.

Crown prosecutor Carla MacPhail said Harvey should have known the woman, in a vulnerable position strapped into the back of his bus, would be easy prey to his advances.

A date to continue will be set tomorrow.

KEVIN.MARTIN@SUNMEDIA.CA