R. v. Crespo (F.), 2016 ONCA 454

JudgeLaskin, Cronk and Miller, JJ.A.
CourtCourt of Appeal (Ontario)
Case DateJune 10, 2016
JurisdictionOntario
Citations2016 ONCA 454;(2016), 350 O.A.C. 180 (CA)

R. v. Crespo (F.) (2016), 350 O.A.C. 180 (CA)

MLB headnote and full text

Temp. Cite: [2016] O.A.C. TBEd. JN.013

Her Majesty the Queen (respondent) v. Fernando Crespo (appellant)

(C59193; 2016 ONCA 454)

Indexed As: R. v. Crespo (F.)

Ontario Court of Appeal

Laskin, Cronk and Miller, JJ.A.

June 10, 2016.

Summary:

The accused was convicted of sexual assault and sentenced to 15 months' imprisonment. The complainant was asleep and awoke to find the accused having sexual intercourse with her. Because the accused was a permanent resident of Canada and not a citizen, a consequence of the sentence was that he would be subject to removal from Canada at the conclusion of his custodial sentence. He appealed the conviction, arguing that the trial judge erred in finding that the complainant did not consent to sex with him, in not considering the defence of honest but mistaken belief in consent, and by admitting into evidence text messages from the complainant, her friend and the accused. He also appealed the sentence, arguing that the trial judge erred in not considering the immigration consequences to the accused in sentencing and failing to consider a conditional sentence.

The Ontario Court of Appeal dismissed both the conviction and sentence appeal.

Editor's Note: Certain names in the following case have been initialized or the case otherwise edited to prevent the disclosure of identities where required by law, publication ban, Maritime Law Book's editorial policy or otherwise.

Criminal Law - Topic 666

Sexual offences - Rape or sexual assault - Consent and extorted consent - See paragraphs 8 and 9.

Criminal Law - Topic 674

Sexual offences - Rape or sexual assault - Defences - Mistake of fact - See paragraphs 10 to 22.

Criminal Law - Topic 5383

Evidence and witnesses - Documents and reports - Telephone records (incl. text messages) - See paragraphs 23 to 26.

Criminal Law - Topic 5932

Sentence - Sexual assault - See paragraphs 27 to 31.

Counsel:

Najma Jamaldin, for the appellant;

Mary-Ellen Hurman, for the respondent.

This appeal was heard on March 8 and 9, 2016, before Laskin, Cronk and Miller, JJ.A., of the Ontario Court of Appeal. The following decision was delivered for the court by Miller, J.A., on June 10, 2016.

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14 practice notes
  • Court Of Appeal Summaries (June 10-14)
    • Canada
    • Mondaq Canada
    • 4 Julio 2019
    ...R v. Merritt, [2004] O.J. No. 1295 (Ont. Sup. Ct.), R v. Powers, 1999 CanLII 7332 (Ont. C.A.), R v. Dixon, 2018 ONCA 949, R v. Crespo, 2016 ONCA 454, R v. Barton, 2019 SCC 33 United States v. Viscomi , 2019 ONCA 0490 Keywords: Criminal Law, Extradition, Child Exploitation, Internet Child Ab......
  • R. v. F.I.,
    • Canada
    • Court of Queen's Bench of Saskatchewan (Canada)
    • 8 Octubre 2021
    ...Vlaski, 2019 ONCA 927 at para. 31; R. v. Nwoko, 2019 ONSC 2430 at paras. 28-35; R. v. Gordon, 2018 ONSC 2702 at para. 68; R. v. Crespo, 2016 ONCA 454 at para. 26; R. v. R.M., 2014 ONCA 785 at paras. 62, 102  …It was appropriate for him to use the post-visit text messages to asse......
  • R. v. Langan, 2019 BCCA 467
    • Canada
    • Court of Appeal (British Columbia)
    • 19 Diciembre 2019
    ...the messages, in the words of the Court of Appeal, “for the limited purpose of assessing that argument”: paras. 22, 31. In R. v. Crespo, 2016 ONCA 454, the court said only that a review of the trial judge’s reasons (which are not published) did not support the appellant’s argument that the ......
  • R. v. Mugabo, 2019 ONSC 6526
    • Canada
    • Superior Court of Justice of Ontario (Canada)
    • 4 Diciembre 2019
    ...will achieve the relevant objectives.” Immigration consequences cannot justify an otherwise inadequate sentence (see R. v. Crespo, 2016 ONCA 454, 132 O.R. (3d) 287 at para. 29). A prior criminal record amounts to an aggravating factor in sentencing; however, an offender is not to be re-puni......
  • Request a trial to view additional results
12 cases
  • R. v. F.I.,
    • Canada
    • Court of Queen's Bench of Saskatchewan (Canada)
    • 8 Octubre 2021
    ...Vlaski, 2019 ONCA 927 at para. 31; R. v. Nwoko, 2019 ONSC 2430 at paras. 28-35; R. v. Gordon, 2018 ONSC 2702 at para. 68; R. v. Crespo, 2016 ONCA 454 at para. 26; R. v. R.M., 2014 ONCA 785 at paras. 62, 102  …It was appropriate for him to use the post-visit text messages to asse......
  • R. v. Langan, 2019 BCCA 467
    • Canada
    • Court of Appeal (British Columbia)
    • 19 Diciembre 2019
    ...the messages, in the words of the Court of Appeal, “for the limited purpose of assessing that argument”: paras. 22, 31. In R. v. Crespo, 2016 ONCA 454, the court said only that a review of the trial judge’s reasons (which are not published) did not support the appellant’s argument that the ......
  • R. v. Mugabo, 2019 ONSC 6526
    • Canada
    • Superior Court of Justice of Ontario (Canada)
    • 4 Diciembre 2019
    ...will achieve the relevant objectives.” Immigration consequences cannot justify an otherwise inadequate sentence (see R. v. Crespo, 2016 ONCA 454, 132 O.R. (3d) 287 at para. 29). A prior criminal record amounts to an aggravating factor in sentencing; however, an offender is not to be re-puni......
  • R. v. McKenzie, 2017 ONCA 128
    • Canada
    • Court of Appeal (Ontario)
    • 15 Febrero 2017
    ...this analysis and imposed a sentence that is supported by other decisions of this court: see Garrett, at paras. 15-23; R. v. Crespo, 2016 ONCA 454, 337 C.C.C. (3d) 439; and R. v. R. (C.), 2010 ONCA 176, 260 O.A.C. 52. (2) Immigration Consequences: Applying Pham [24] The immigration conseque......
  • Request a trial to view additional results
2 firm's commentaries
  • Court Of Appeal Summaries (June 10-14)
    • Canada
    • Mondaq Canada
    • 4 Julio 2019
    ...R v. Merritt, [2004] O.J. No. 1295 (Ont. Sup. Ct.), R v. Powers, 1999 CanLII 7332 (Ont. C.A.), R v. Dixon, 2018 ONCA 949, R v. Crespo, 2016 ONCA 454, R v. Barton, 2019 SCC 33 United States v. Viscomi , 2019 ONCA 0490 Keywords: Criminal Law, Extradition, Child Exploitation, Internet Child Ab......
  • Court Of Appeal Summaries (June 6 – 10)
    • Canada
    • Mondaq Canada
    • 17 Junio 2016
    ...Keywords: Criminal Law, Second Degree Murder, Aggravated Assault, Witness Testimony, R. v. Hall, R. v. Gladue v. Crespo (Publication Ban) 2016 ONCA 454 [Laskin, Cronk and Miller JJ.A.] Counsel: Najma Jamaldin, for the appellant Mary-Ellen Hurman, for the respondent Keywords: Criminal Law, S......

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