Even though accused’s conduct unconscionable, that did not make it criminal

Ontario criminal | Appeal

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Even though accused’s conduct unconscionable, that did not make it criminal

Appeal by accused from conviction for sexual assault. Accused was 51 and complainant was 33 and she suffered from cerebral palsy. Complainant was hearing, vision and speech impaired since birth. She testified that she did not consent to accused’s sexual activities with her. When she was cross-examined her evidence became much more equivocal. Trial judge found that there was no consent. This was based not only on accused’s breach of his position of trust and authority and because such consent was legally ineffective. Appeal allowed. Accused acquitted. There was no evidence that accused exercised authority over complainant or that he was in that position. Court agreed that objectively accused and complainant formed trust relationship. Judge however did not go forward and consider whether evidence disclosed how trust impacted upon complainant’s reaction to accused’s sexual conduct. This step was essential if trust relationship was to vitiate consent. Creation of relationship itself was not enough. Crown prosecuted this matter on basis of complete lack of consent. Once reasonable doubt on that issue was created record did not disclose any effect of accused’s position upon response of complainant to his advances. Having found lack of authority and absence of evidence regarding subjective impact of trust, judge’s position that consent was vitiated by ss. 265(3) and 271.1(2)(c) of Criminal Code could not stand. Even though accused’s conduct was unconscionable, that did not make it criminal, nor was complainant any less a potentially willing participant. In absence of relationship of authority and with complete lack of evidence regarding subjective impact of complainant’s trust in accused it was an error in law to conclude that consent was vitiated. Conviction could not reasonably be supported by evidence. Since verdict was unreasonable it would be inappropriate in law and unfair to accused and to complainant to return matter for new trial. Acquittal flowed inexorably from findings of fact made by judge on issue of consent.

R. v. T. (D.) (Apr. 13, 2012, Ont. S.C.J., Thomas J., File No. CR-11-2411AP) Decision at 93 W.C.B. (2d) 898 was reversed. 101 W.C.B. (2d) 3 (14 pp.).

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