R. v. Dumais (C.E.), (2008) 315 Sask.R. 268 (QB)

• Judge: Konkin, J.
• Court: Court of Queen's Bench of Saskatchewan (Canada)
• Case Date: May 08, 2008
• Jurisdiction: Saskatchewan
• Citations: (2008), 315 Sask.R. 268 (QB);2008 SKQB 207

R. v. Dumais (C.E.) (2008), 315 Sask.R. 268 (QB)

MLB headnote and full text

Temp. Cite: [2008] Sask.R. TBEd. JN.010

Carl Ernest Dumais (appellant) v. Her Majesty the Queen (respondent)

(2007 Q.B.A. No. 13; 2008 SKQB 207)

Indexed As: R. v. Dumais (C.E.)

Saskatchewan Court of Queen's Bench

Judicial Centre of Battleford

Konkin, J.

May 8, 2008.

Summary:

The accused was convicted of sexual assault contrary to s. 271(1) of the Criminal Code. The Crown had proceeded on a summary basis. The accused was sentenced to 18 months' incarceration followed by 18 months' probation. He appealed both his conviction and sentence.

The Saskatchewan Court of Queen's Bench dismissed the appeals.

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 complainant went to a bar where she met up with Ballantyne - The accused and his wife were there - The four of them went to the accused's house, where they all consumed alcohol - The complainant laid down in a bedroom - She testified that at one point she woke up and the accused was having intercourse with her, having already penetrated her - She stated that she told him to stop, fought him off, found her clothing and immediately left the house - She stated that she did not want to have sex with the accused and had not had sex with him or Ballantyne before - The accused was convicted of sexual assault - The Saskatchewan Court of Queen's Bench dismissed the accused's conviction appeal - The trial judge did not err in her credibility or fact findings - She found that the complainant went in and out of consciousness and was unconscious at the time that intercourse commenced - She held that the complainant could not consent while semi-conscious or unconscious - Further, where no reasonable steps were taken to ensure that this intoxicated complainant was consenting, the defence of honest but mistaken belief was not available - See paragraphs 1 to 34.

Criminal Law - Topic 5834.1

Sentencing - Considerations on imposing sentence - Seriousness of offence - [See Criminal Law - Topic 5932 ].

Criminal Law - Topic 5849.19

Sentencing - Considerations on imposing sentence - Summary conviction offences - [See Criminal Law - Topic 5932 ].

Criminal Law - Topic 5932

Sentence - Sexual assault - The accused was convicted of sexual assault - The Crown had proceeded on a summary basis - The accused was sentenced to 18 months' incarceration followed by 18 months' probation - The Saskatchewan Court of Queen's Bench held that the trial judge made no error in considering cases that proceeded by indictment when finding the appropriate sentence - The facts fit much more closely into cases which would have proceeded by indictment - The decision to proceed summarily did not impact on the gravity of the facts but only on the possible sentence that could be imposed - The trial judge acknowledged that this was a major sexual offence and noted her reasons why - Had the Crown proceeded by indictment, the court assumed the sentence would have been greater - The trial judge was confined by the maximum sentence of 18 months, chose that sentence and did not err in doing so - See paragraphs 35 to 43.

Cases Noticed:

R. v. S.E.M. (2005), 265 Sask.R. 193; 2005 SKQB 213, refd to. [para. 5].

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. 32].

R. v. Iron (L.J.) (2005), 269 Sask.R. 51; 357 W.A.C. 51; 2005 SKCA 84, refd to. [para. 38].

R. v. Lequiere (R.J.), [2006] B.C.T.C. 668; 42 C.R.(6th) 270; 2006 BCSC 668, refd to. [para. 42].

Counsel:

James T.D. Scott, for the appellant;

Jennifer S. Robertson, for the Crown.

This conviction and sentence appeal were heard by Konkin, J., of the Saskatchewan Court of Queen's Bench, Judicial Centre of Battleford, who delivered the following decision on May 8, 2008.