R. v. Alsadi (M.F.), 2012 BCCA 183

• Judge: Chiasson, Groberman and MacKenzie, JJ.A.
• Court: Court of Appeal (British Columbia)
• Case Date: April 03, 2012
• Jurisdiction: British Columbia
• Citations: 2012 BCCA 183;(2012), 320 B.C.A.C. 149 (CA)

R. v. Alsadi (M.F.) (2012), 320 B.C.A.C. 149 (CA);

    543 W.A.C. 149

MLB headnote and full text

Temp. Cite: [2012] B.C.A.C. TBEd. MY.004

Regina (appellant) v. Mohammad Rafe Alsadi (respondent)

(CA039304; 2012 BCCA 183)

Indexed As: R. v. Alsadi (M.F.)

British Columbia Court of Appeal

Chiasson, Groberman and MacKenzie, JJ.A.

May 1, 2012.

Summary:

Alsadi was acquitted by a Provincial Court judge on charges of sexually exploiting a mentally disabled person (Criminal Code, s. 153.1), and of sexual assault (s. 271). At the time of the incident, Alsadi was a 29-year old security guard for the hospital in which the 49-year old complainant had been involuntarily admitted. She suffered from schizophrenia. The Crown had conceded that the complainant was capable of consenting to sexual activity. The trial judge concluded she had done so and found that Alsadi was not in a position of trust, power or authority at the time of the incident. The Crown appealed from the acquittal.

The British Columbia Court of Appeal allowed the appeal, set aside the acquittal and ordered a new trial.

Criminal Law - Topic 666

Sexual offences - Rape or sexual assault - Consent and extorted consent - The accused, a security guard at a hospital, was charged with sexual assault under s. 271 of the Criminal Code and with inciting the complainant, a psychiatric patient, to touch him for a sexual purpose, under s. 153.1(1) - The trial judge concluded that the complainant was a willing participant and found that the accused was not in a position of trust, power or authority relative to the complainant - The Crown appealed from the acquittal - The British Columbia Court of Appeal allowed the appeal - The trial judge did not address the question whether the accused "incited" or "induced" the complainant to engage in the sexual activity by abusing a position of trust, power or authority - Instead, he focused on the nature and extent of the accused's authority and the fact the complainant was a willing participant - That focus led to observations of the trial judge which were "problematic or irrelevant" - See paragraphs 15, 20 to 22.

Criminal Law - Topic 666

Sexual offences - Rape or sexual assault - Consent and extorted consent - The Crown appealed from the accused's acquittal on charges of sexually exploiting a mentally disabled person under s. 153.1 of the Criminal Code and of sexual assault under s. 271 - At the time of the incident, the accused was a security guard at a hospital - The complainant had been involuntarily admitted to the hospital's psychiatric ward - The Crown had conceded that the complainant was capable of consenting to sexual activity - The trial judge concluded she had done so and found that the accused was not in a position of trust, power or authority relative to the complainant - The British Columbia Court of Appeal, in allowing the appeal, addressed the distinction between ss. 273.1(2)(c) and 265(3)(d) - "Section 265, which defines assault, provides in s. (3)(d) that no consent is obtained where a 'complainant submits or does not resist by reason of ... the exercise of authority'. In my view, s. 265(3)(d) is not relevant on the facts of this case, but I am concerned that the judge's analysis was based on this provision. In my view, a conclusion that the respondent did not exercise authority over the complainant so as to cause her to submit or not to resist him would not be determinative of whether her consent was vitiated in this case" - See paragraphs 17 and 18.

Criminal Law - Topic 666

Sexual offences - Rape or sexual assault - Consent and extorted consent - The Crown appealed from the accused's acquittal by a Provincial Court judge on charges of sexually exploiting a mentally disabled person under s. 153.1 of the Criminal Code, and of sexual assault under s. 271 - Reference was made by the judge to the Crown's reliance on s. 273.2 - The British Columbia Court of Appeal, in allowing the appeal, stated that s. 273.2, the operative provisions of which were also found in s. 153.1(5), "was of no significance in the circumstances of this case. The section provides that the belief of an accused that a complainant has consented is not a defence where the accused is reckless or willfully blind, or does not take reasonable steps to ascertain that the complainant consented. On the judge's finding of fact, the complainant did consent; she was a willing participant. Whether the respondent believed she consented was not relevant. It seems to me that the section pertains to cases where the complainant did not consent" - See paragraph 35.

Criminal Law - Topic 708

Sexual offences, public morals and disorderly conduct - Sexual offences - Particular offences - Inviting sexual touching - [See all Criminal Law - Topic 666 ].

Criminal Law - Topic 4951

Appeals - Indictable offences - New trials - Grounds - Misdirection by trial judge - Appeal by Crown from acquittal - [See Criminal Law - Topic 4975 ].

Criminal Law - Topic 4975

Appeals - Indictable offences - Powers of Court of Appeal - Appeal from an acquittal - The Crown appealed from the accused's acquittal by a Provincial Court judge on charges of sexually exploiting a mentally disabled person under s. 153.1 of the Criminal Code, and of sexual assault under s. 271 - At the time of the incident, the accused was a security guard at a hospital - The complainant had been involuntarily admitted to the hospital's psychiatric ward - The British Columbia Court of Appeal allowed the appeal, set aside the acquittal and ordered a new trial - "The judge did not analyze whether security guards are in a position of trust or power. Even if it were held that they are, the question would remain whether the respondent incited or induced the complainant to participate in the sexual activity by abusing this position. In my view, these are determinations of fact that should be made by a trial judge and not by this Court in the circumstances of this case" - See paragraph 34.

Cases Noticed:

R. v. Lutoslawski (J.) (2010), 260 O.A.C. 161; 326 D.L.R.(4th) 637; 2010 ONCA 207, affd. [2010] S.C.R. 60; 408 N.R. 138; 269 O.A.C. 44; 2010 SCC 49, appld. [para. 19].

R. v. Audet (Y.), [1996] 2 S.C.R. 171; 197 N.R. 172; 175 N.B.R.(2d) 81; 446 A.P.R. 81, appld. [para. 27].

R. v. Kiared (L.), [2008] A.R. Uned. 744; 2008 ABQB 767, refd to. [para. 28].

R. v. Poncelet (L.S.), [2008] B.C.T.C. Uned. A62; 77 W.C.B.(2d) 400; 2008 BCSC 201, refd to. [para. 28].

R. v. D.B.L. (1995), 83 O.A.C. 374; 25 O.R.(3d) 649; 101 C.C.C.(3d) 406 (C.A.), refd to. [para. 29].

R. v. P.S., [1993] O.J. No. 704; 19 W.C.B.(2d) 256 (Ont. Gen. Div.), affd. [1994] O.J. No. 3775 (C.A.), refd to. [para. 29].

Statutes Noticed:

Criminal Code, R.S.C., 1985, c. C-46, sect. 153.1(1), sect. 273.1(2)(c) [para. 15].

Counsel:

G.D. McKinnon, Q.C., for the appellant;

D.A. Birch, for the respondent.

This appeal was heard on April 3, 2012, at Vancouver, British Columbia, before Chiasson, Groberman and MacKenzie, JJ.A., of the British Columbia Court of Appeal. In reasons written by Chiasson, J.A., the Court delivered the following judgment, dated May 1, 2012.