R. v. Faulkner (W.C.), (1997) 104 O.A.C. 290 (CA)

• Judge: Osborne, Doherty and Goudge, JJ.A.
• Court: Court of Appeal (Ontario)
• Case Date: August 21, 1997
• Jurisdiction: Ontario
• Citations: (1997), 104 O.A.C. 290 (CA)

R. v. Faulkner (W.C.) (1997), 104 O.A.C. 290 (CA)

MLB headnote and full text

Temp. Cite: [1997] O.A.C. TBEd. DE.023

Her Majesty the Queen (respondent) v. William Craig Faulkner (appellant)

(C22813)

Indexed As: R. v. Faulkner (W.C.)

Ontario Court of Appeal

Osborne, Doherty and Goudge, JJ.A.

November 11, 1997.

Summary:

The accused appealed his conviction for sexual assault and trafficking in LSD.

The Ontario Court of Appeal allowed the appeal. The court ordered a new trial on the sexual assault charge and entered an acquit­tal on the trafficking charge.

Criminal Law - Topic 666

Sexual offences - Rape or sexual assault - Consent and extorted consent - The 15 year old complainant consumed alcohol, marijuana and a tab of LSD that the 23 year old accused gave her - The accused drove the complainant home - They had sexual intercourse on the way - The trial judge found that the complainant was incapable of consenting and convicted the accused of sexual assault - The Ontario Court of Appeal quashed the conviction - There was no evidence that the complain­ant's ingestion of drugs and alcohol reached the point of rendering her incap­able of consenting - Further, the trial judge did not have regard to evidence that was clearly relevant to the complainant's ca­pacity to consent - The court ordered a new trial to determine whether the com­plainant in fact consented - See para­graphs 6 to 14.

Food and Drug Control - Topic 1203

Drugs - Restricted drugs - Trafficking - What constitutes trafficking - The accused was convicted of trafficking in LSD - He offered, and the complainant accepted, a tab of LSD at a party - The Ontario Court of Appeal entered an acquittal - The ac­tivity did not fall under the definition of trafficking in the Food and Drugs Act - To give to a single person was not to "dis­tribute" - Further, the term "deliver", while not importing a necessary require­ment of commerciality, did not encompass the simple giving, in the context of a party, of one tab of LSD to another person who wanted to try it - See paragraphs 15 to 24.

Words and Phrases

Deliver - The Ontario Court of Appeal discussed the meaning of this word as found in the definition of "traffic" in the Food and Drugs Act, R.S.C. 1985, c. F-27 - See paragraphs 19 to 22.

Cases Noticed:

R. v. Harper (1982), 40 N.R. 255; 65 C.C.C.(2d) 193 (S.C.C.), refd to. [para. 12].

R. v. Morrissey (R.J.) (1995), 80 O.A.C. 161; 97 C.C.C.(3d) 193 refd to. (Ont. C.A.) [para. 12].

R. v. Cole (1981), 64 C.C.C.(2d) 119 (Ont. C.A.), appld. [para. 18].

R. v. Kopach (1980), 22 A.R. 497; 53 C.C.C.(2d) 300 (C.A.), dist. [para. 19].

Statutes Noticed:

Food and Drugs Act, R.S.C. 1985, c. F-27, Part IV [para. 16].

Counsel:

Brian H. Greenspan and Sharon E. Lavine, for the appellant;

M. David Lepofsky and James W. Leising, for the respondent.

This appeal was heard on August 21, 1997, by Osborne, Doherty and Goudge, JJ.A. On November 11, 1997, Goudge, J.A., delivered the following decision for the Ontario Court of Appeal.