R. v. Bell (J.), (2007) 223 O.A.C. 243 (CA)

• Judge: Laskin, MacPherson and Cronk, JJ.A.
• Court: Court of Appeal (Ontario)
• Case Date: February 19, 2007
• Jurisdiction: Ontario
• Citations: (2007), 223 O.A.C. 243 (CA);2007 ONCA 320

R. v. Bell (J.) (2007), 223 O.A.C. 243 (CA)

MLB headnote and full text

Temp. Cite: [2007] O.A.C. TBEd. MY.014

Her Majesty the Queen (respondent) v. Jermaine Bell (appellant)

(C42905; 2007 ONCA 320)

Indexed As: R. v. Bell (J.)

Ontario Court of Appeal

Laskin, MacPherson and Cronk, JJ.A.

May 2, 2007.

Summary:

The accused was charged with two counts of sexual assault and two counts of administering a stupefying substance.

The Ontario Superior Court, in a decision reported at [2004] O.T.C. Uned. A61, entered convictions. The accused appealed.

The Ontario Court of Appeal dismissed the appeal.

Criminal Law - Topic 666

Sexual offences, public morals and disorderly conduct - Sexual offences - Rape or sexual assault - Consent and extorted consent - A female and male complainant were at the accused's apartment consuming alcohol - The accused brought the complainants each a bottle of Rev with the caps already removed - The accused told them that there was "special stuff" in the drinks - The complainants subsequently experienced several symptoms, such as blurred vision, loss of motor skills, hallucinations and loss of memory - They drifted in and out of consciousness - For the brief periods of time they were awake, the accused was engaging in sexual acts with them - The trial judge accepted the complainants' evidence that they were drugged and that they did not consent to the sexual assaults - He found the accused guilty of two counts of sexual assault and two counts of administering a stupefying substance - The accused appealed the convictions, asserting that the complainants consented to the sexual acts - The Ontario Court of Appeal affirmed the convictions - Because the trial judge accepted that a stupefying substance caused the complainants to go in and out of consciousness while the sexual activity was taking place, it followed that the complainants were not capable of providing the necessary consent - See paragraphs 42 to 48.

Criminal Law - Topic 1335.5

Offences against person and reputation - Administering stupefying or overpowering drug - Evidence and proof - A female and male complainant were at the accused's apartment consuming alcohol - The accused brought the complainants each a bottle of Rev (alcohol cooler) with the caps already removed - The accused told them that there was "special stuff" in the drinks - The complainants subsequently experienced several symptoms, such as blurred vision, loss of motor skills, hallucinations and loss of memory - They drifted in and out of consciousness - For the brief periods of time they were awake, the accused was engaging in sexual acts with them - A few days later, they provided urine samples for drug testing - The results revealed trace amounts of ecstasy, which they admitted to having consumed, but no "date rape drugs" - The trial judge accepted the complainants' evidence that they were drugged and that they did not consent to the sexual assaults - He found the accused guilty of two counts of sexual assault and two counts of administering a stupefying substance - The accused appealed the convictions, asserting that the convictions for administering a stupefying substance were unreasonable - The Ontario Court of Appeal affirmed the convictions - The trial judge reasonably accepted the complainants' evidence regarding their alcohol consumption and the symptoms and concluded that the complainants' symptoms were not caused by alcohol or by ecstasy - Having made those conclusions, it was reasonable for him to find that the complainants had been drugged - Finally, given the evidence, it was reasonable to conclude that the accused had placed a stupefying substance in the Revs given to the complainants - See paragraphs 15 to 36.

Cases Noticed:

R. v. Corbett (1973), 1 N.R. 258; 14 C.C.C.(2d) 385 (S.C.C.), refd to. [para. 15].

R. v. Yebes (1987), 78 N.R. 351; 36 C.C.C.(3d) 417 (S.C.C.), refd to. [para. 15].

R. v. Biniaris (J.), [2000] 1 S.C.R. 381; 252 N.R. 204; 134 B.C.A.C. 161; 219 W.A.C. 161; 143 C.C.C.(3d) 1, refd to. [para. 16].

R. v. Beaudry (A.) (2007), 356 N.R. 323; 2007 SCC 5, refd to. [para. 16].

R. v. Seaboyer and Gayme, [1991] 2 S.C.R. 577; 128 N.R. 81; 48 O.A.C. 81; 66 C.C.C.(3d) 321, refd to. [para. 43].

R. v. Ewanchuk (S.B.) (1999), 235 N.R. 323; 232 A.R. 1; 195 W.A.C. 1; 131 C.C.C.(3d) 481 (S.C.C.), refd to. [para. 46].

R. v. Daigle (S.) (1997), 127 C.C.C.(3d) 130 (Que. C.A.), affd. (1998), 228 N.R. 201; 127 C.C.C.(3d) 129 (S.C.C.), refd to. [para. 46].

R. v. Saint-Laurent (1993), 90 C.C.C.(3d) 291 (Que. C.A.), refd to. [para. 46].

R. v. Humphrey (C.) (2001), 143 O.A.C. 151 (C.A.), refd to. [para. 47].

Counsel:

Elise Nakelsky, for the respondent;

Boris Bytensky, for the appellant.

This appeal was heard on February 19, 2007, by Laskin, MacPherson and Cronk, JJ.A., of the Ontario Court of Appeal. MacPherson, J.A., delivered the following judgment for the court on May 2, 2007.