R. v. Despins (D.A.), (2007) 299 Sask.R. 249 (CA)

• Judge: Klebuc, C.J.S., Jackson and Smith, JJ.A.
• Court: Court of Appeal (Saskatchewan)
• Case Date: June 06, 2007
• Jurisdiction: Saskatchewan
• Citations: (2007), 299 Sask.R. 249 (CA);2007 SKCA 119

R. v. Despins (D.A.) (2007), 299 Sask.R. 249 (CA);

      408 W.A.C. 249

MLB headnote and full text

Temp. Cite: [2007] Sask.R. TBEd. NO.010

Her Majesty the Queen (appellant) v. David Allan Despins (respondent)

(No. 1205; 2007 SKCA 119)

Indexed As: R. v. Despins (D.A.)

Saskatchewan Court of Appeal

Klebuc, C.J.S., Jackson and Smith, JJ.A.

November 2, 2007.

Summary:

The accused was acquitted of sexual assault. The Crown appealed.

The Saskatchewan Court of Appeal, Smith, J.A., dissenting, allowed the appeal and ordered a new trial. The court held that the trial judge erred in leaving the defence of honest but mistaken belief in consent with the jury because there was no evidence upon which a reasonable trier of fact could acquit the accused on the basis of the defence or because the defence was barred by s. 273.2 of the Criminal Code.

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 - The accused and the complainant attended the same party - They had not previously known each other - They had no individual contact at the party, which the complainant attended with her boyfriend - Everyone had been drinking to excess - The complainant, her boyfriend and the accused ended up sleeping at a mutual friend's apartment - The complainant and her boyfriend, both fully clothed, were sleeping on a single mattress on the floor - The complainant testified that she awoke to find someone touching her vagina - She assumed that it was her boyfriend but when he penetrated her vagina with his penis she realized that it was not her boyfriend - Her underwear and skirt had been removed - The Saskatchewan Court of Appeal held that the trial judge erred in leaving the accused's defence of honest but mistaken belief in consent with the jury because there was no evidence upon which a reasonable trier of fact could acquit the accused on that basis or because the defence was barred by s. 273.2 of the Criminal Code - The accused testified that he did not know how he came to be on the mattress with the complainant or how his clothes came to be removed - When an accused was unable to recall what happened, it was the equivalent of the accused not testifying - Thus, there was no air of reality to the defence respecting the time before the accused had any recollection - As he had no knowledge of events up to the point that he actually began to have sexual relations with the complainant, there was no evidence that he took reasonable steps to ascertain that she was consenting - The time after he gained memory could not be divorced from the prior time period - It had to be assessed in light of the fact that he had no recollection of what led him to remove his clothes and move to the bed of a woman he did not know, who was lying asleep on a single mattress next to her boyfriend and engage in sexual relations with her - The circumstances called out for the accused to have taken reasonable steps to ascertain consent - Looking for signs of responsiveness after the complainant became conscious did not meet the test - See paragraphs 1 to 11.

Criminal Law - Topic 674

Sexual offences - Rape or sexual assault - Defences - Mistake of fact - [See Criminal Law - Topic 666 ].

Criminal Law - Topic 4951

Appeals - Indictable offences - New trials - Grounds - Misdirection by trial judge - Appeal by Crown from acquittal - The Saskatchewan Court of Appeal, in a sexual assault case, discussed the Crown's burden when seeking to justify a new trial under s. 676(1)(a) of the Criminal Code - Having concluded that a trial judge erred in leaving the defence of honest but mistaken belief in consent with the jury, the court also concluded that it had no way of knowing whether the jury acquitted on the basis of a defence that should not have been left with them - The court held that the Crown had satisfied its burden that the verdict would not necessarily have been the same if the trial judge had properly directed the jury - See paragraphs 14 to 28.

Criminal Law - Topic 4951

Appeals - Indictable offences - New trials - Grounds - Misdirection by trial judge - Appeal by Crown from acquittal - The Saskatchewan Court of Appeal stated that "... the law is clear. While the burden on the Crown appealing an acquittal is a heavy one, the Crown is not required to persuade the court that the verdict would necessarily have been different. The obligation on the Crown is to satisfy the court that the verdict would not necessarily have been the same if the trial judge had properly directed the jury." - See paragraph 18.

Cases Noticed:

R. v. Park (D.G.), [1995] 2 S.C.R. 836; 183 N.R. 81; 169 A.R. 241; 97 W.A.C. 241; 99 C.C.C.(3d) 1, refd to. [paras. 2, 3].

R. v. Sinclair (A.W.), [1998] 4 W.W.R. 364; 126 Man.R.(2d) 51; 167 W.A.C. 51 (C.A.), refd to. [para. 2].

R. v. Ewanchuk (S.B.), [1999] 1 S.C.R. 330; 235 N.R. 323; 232 A.R. 1; 195 W.A.C. 1, refd to. [para. 2].

R. v. Davis (G.N.), [1999] 3 S.C.R. 759; 248 N.R. 44; 182 Nfld. & P.E.I.R. 78; 554 A.P.R. 78, refd to. [paras. 2, 4].

R. v. Cornejo (L.) (2003), 179 O.A.C. 182; 181 C.C.C.(3d) 206 (C.A.), refd to. [para. 2].

R. v. Vezeau, [1977] 2 S.C.R. 277; 8 N.R. 235, refd to. [para. 15].

R. v. Morin (K.M.), [1992] 3 S.C.R. 286; 142 N.R. 141; 131 A.R. 81; 25 W.A.C. 81, refd to. [para. 15].

R. v. Graveline (R.), [2006] 1 S.C.R. 609; 347 N.R. 268; 207 C.C.C.(3d) 481; 266 D.L.R.(4th) 42; 2006 CarswellQue 3399; 2006 SCC 16, dist. [para. 15].

Cullen v. R., [1949] S.C.R. 658, refd to. [para. 16].

White v. R., [1947] S.C.R. 268, refd to. [para. 16].

R. v. Livermore (C.), [1995] 4 S.C.R. 123; 189 N.R. 126; 87 O.A.C. 81; 102 C.C.C.(3d) 212, refd to. [para. 23].

R. v. Malcolm (R.E.) (2000), 148 Man.R.(2d) 143; 224 W.A.C. 143 (C.A.), refd to. [para. 23].

Statutes Noticed:

Criminal Code, R.S.C. 1985, c. C-46, sect. 676(1)(a) [para. 15].

Counsel:

Beverly L. Klatt, for the Crown;

Greg A. Chovin, for the respondent.

This appeal was heard on June 6, 2007, by Klebuc, C.J.S., Jackson and Smith, JJ.A., of the Saskatchewan Court of Appeal. The court delivered its decision on November 2, 2007, including the following opinions:

Jackson, J.A. (Klebuc, J.A., concurring) - see paragraphs 1 to 29;

Smith, J.A., dissenting - see paragraphs 30 to 55.