Digest: R v T.A.S., 2018 SKQB 143

• Date: May 04, 2018

Reported as: 2018 SKQB 143

Docket Number: CRIM 12/16 JCY , QB17529

Court: Court of Queen's Bench

Date: 2018-05-04

Judges:

• Barrington-Foote

Subjects:

• Criminal Law � Assault � Sexual Assault ��Sentencing�

Digest: The accused was charged with sexual assault, sexual touching and invitation to sexual touching, contrary to ss. 271, 151 and 152 respectively of the Criminal Code. At the time of the offence he was 22 and the victim was 14. As he was more than five years older than the victim, she was unable to consent. The accused challenged the constitutionality of the close-in-age exception in s. 150.1 of the Code and a voir dire was held. The only evidence led at the hearing was led by the accused who was the primary witness. He described his relationship with the victim, the events and communication leading to the sexual encounters forming the basis of the charges. He testified that the victim initiated their sexual contacts. Although the court believed the accused�s evidence, the constitutional challenge was dismissed and the court convicted the accused of sexual assault and sexual touching on the basis of his evidence at the voir dire. He was found not guilty of the invitation charge (see: 2017 SKQB 339). Later, the court concluded that there had been no agreement that the evidence on the voir dire would be evidence on the trial. The matter was reviewed with Crown and defence counsel and they each advised that they had not intended to call further evidence and agreed that the evidence on the voir dire should be evidence on the trial. The court then confirmed the accused�s convictions. At the subsequent sentencing hearing the Crown sought to call evidence from the victim to prove certain aggravating circumstances. The evidence would be intended to prove such facts that the accused had: been the victim�s bus driver for four years leading up to the sexual encounters and was in a position of trust; been the aggressor in several of the encounters, rather than a passive participant; and groomed the victim. The offender did not admit the disputed facts. He argued that the evidence was inadmissible. The disputed facts were dealt with in the evidence at trial and were the subject of the findings of facts in the decision. If the Crown took issue with the accused�s evidence about the disputed facts, it was obliged to call evidence at trial. As it had not done so, it could not now lead evidence at the sentencing hearing to...