R. v. A.G., 2015 ONCA 292

JudgeDoherty, Rouleau and Watt, JJ.A.
CourtCourt of Appeal (Ontario)
Case DateJanuary 08, 2015
JurisdictionOntario
Citations2015 ONCA 292;(2015), 334 O.A.C. 249 (CA)

R. v. A.G. (2015), 334 O.A.C. 249 (CA)

MLB headnote and full text

Temp. Cite: [2015] O.A.C. TBEd. AP.044

Her Majesty the Queen (respondent) v. A.G. (appellant)

(C57095; 2015 ONCA 292)

Indexed As: R. v. A.G.

Ontario Court of Appeal

Doherty, Rouleau and Watt, JJ.A.

April 30, 2015.

Summary:

The accused was convicted of sexual assault on the basis that the teenage victim's consent to the sexual activity was vitiated by the accused's "exercise of authority" over the victim (Criminal Code, s. 265(3)(d)). The accused appealed.

The Ontario Court of Appeal dismissed the 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 a restriction on publication under s. 486(1), s. 486(2) or s. 486(3) of the Criminal Code and Maritime Law Book's editorial policy.

Criminal Law - Topic 666

Sexual offences - Rape or sexual assault - Consent and extorted consent - The accused was convicted of sexual assault on the basis that the teenage victim's consent to the sexual activity was vitiated by the accused's "exercise of authority" over the victim (Criminal Code, s. 265(3)(d)) - The Ontario Court of Appeal, in dismissing the accused's appeal, saw no reason to interfere with the trial judge's finding that the accused, who was in his forties, had assumed parental responsibility when he took the victim skiing and on other trips - The victim's mother made it clear that the accused sought her permission to take her son skiing and on other trips on the basis that he was a good person with experience in taking children on various recreational outings - In those circumstances, a reasonable parent would assume that a person in the accused's position would take responsibility for and protect their 14-year old child while he was with him - The judge's finding did not go beyond that reasonable inference - The judge did not find that the accused was in a position of authority based exclusively on any de facto parental responsibility he had for the victim - Nor did the judge find that the accused gained the victim's consent to the sexual activity by exercising any de facto parental authority - The accused's responsibility for the victim when they were on various trips together and the relationship he established with the victim's mother were two factors, among many, that the judge properly looked to in determining the nature of the accused's relationship with the victim - See paragraphs 28 and 29.

Criminal Law - Topic 666

Sexual offences - Rape or sexual assault - Consent - Section 265(3)(d) of the Criminal Code addressed the meaning of consent in the context of the definition of assaults (including sexual assault) - It provided that "For the purposes of [the section defining assault], no consent is obtained where the complainant submits or does not resist by reason of ... the exercise of authority." - The Ontario Court of Appeal reviewed the law respecting the meaning of "the exercise of authority" in s. 265(3)(d) - See paragraphs 30 to 37.

Criminal Law - Topic 666

Sexual offences - Rape or sexual assault - Consent and extorted consent - The accused was convicted of sexual assault on the basis that the teenage victim's consent to the sexual activity was vitiated by the accused's "exercise of authority" over the victim (Criminal Code, s. 265(3)(d)) - The Ontario Court of Appeal stated that the trial judge did not use the word "coercive" in describing the nature or extent of the accused's influence over the victim - However, the judge's findings as a whole described a thoroughly coercive relationship in which the accused used coercion to secure the victim's consent to repeated sexual activity - The judge referred to the "clear power imbalance" between the accused, who was in his forties, and the victim - That imbalance arose not only from the age difference, but also from the accused's ability to provide the victim with material things that he could not otherwise afford - The accused used the power imbalance to manipulate the victim - By treating the victim as "a buddy" rather than a young person under his care, the accused fashioned a strong emotional bond between himself and the victim - By giving the victim many gifts, the accused established himself as the victim's benefactor - He spent about a year developing the buddy/benefactor relationship before he introduced the prospect of sexual activity - He did so in a way that suggested that sex between them was a normal and accepted part of their relationship - The accused persisted in his sexual demands even when the victim declined to engage in that activity - The accused's persistence, combined with threats to end the relationship and discontinue the benefits flowing from that relationship, manipulated the victim into sexual activity which he did not want - For those reasons, the court dismissed the appeal - See paragraphs 38 to 41.

Criminal Law - Topic 1422

Assaults - Defence - Consent - [See second Criminal Law - Topic 666 ].

Cases Noticed:

R. v. Audet (Y.), [1996] 2 S.C.R. 171; 197 N.R. 172; 175 N.B.R.(2d) 81; 446 A.P.R. 81, refd to. [para. 9, footnote 1].

R. v. Lutoslawski (J.) (2010), 260 O.A.C. 161; 258 C.C.C.(3d) 1; 2010 ONCA 207, affd. [2010] 3 S.C.R. 60; 408 N.R. 138; 269 O.A.C. 44; 2010 SCC 49, refd to. [para. 21].

R. v. Hutchinson (C.J.), [2014] 1 S.C.R. 346; 454 N.R. 247; 342 N.S.R.(2d) 348; 1083 A.P.R. 348; 2014 SCC 19, refd to. [para. 24].

R. v. Matheson (G.C.) (1999), 119 O.A.C. 1; 44 O.R.(3d) 557 (C.A.), refd to. [para. 27].

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. 31].

R. v. Jobidon, [1991] 2 S.C.R. 714; 128 N.R. 321; 49 O.A.C. 83; 66 C.C.C.(3d) 454, refd to. [para. 32].

Norberg v. Wynrib, [1992] 2 S.C.R. 226; 138 N.R. 81; 9 B.C.A.C. 1; 19 W.A.C. 1, refd to. [para. 32].

R. v. A.S., [2008] O.A.C. Uned. 130; 2008 ONCA 192, refd to. [para. 36].

R. v. T.C.F. (2013), 326 N.S.R.(2d) 255; 1033 A.P.R. 255; 2013 NSCA 13, refd to. [para. 36].

Statutes Noticed:

Criminal Code, R.S.C. 1995, c. C-46, sect. 265(3)(d) [para. 20].

Counsel:

Philip Campbell, for the appellant;

Melissa Adams, for the respondent.

This appeal was heard on January 8, 2015, by Doherty, Rouleau and Watt, JJ.A., of the Ontario Court of Appeal. Doherty, J.A., released the following judgment for the court on April 30, 2015.

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13 practice notes
  • R. v. Snelgrove, 2018 NLCA 59
    • Canada
    • Court of Appeal (Newfoundland)
    • 17 Octubre 2018
    ...at paragraph 4, where reference is made to vitiation of apparent consent pursuant to both sections 265(3) and 273.1(2); R. v. Geddes, 2015 ONCA 292, 322 C.C.C. (3d) 414, in which the Court commented that the “exercise of influence to the point of coercion constitutes “the exer......
  • R. v. Jones, 2017 ONSC 7442
    • Canada
    • Superior Court of Justice of Ontario (Canada)
    • 14 Diciembre 2017
    ...must be in a position to command the complainant: R. v. Matheson (1999), 44 O.R. (3d) 557 (Ont. C.A.), at pp. 587-88; R. v. Geddes, 2015 ONCA 292, 322 C.C.C. (3d) 414, at paras. 33-6.[124] The determination of whether consent is vitiated by abuse of trust, power or authority is not confined......
  • R. v. J.T.B., 2017 SKQB 121
    • Canada
    • Court of Queen's Bench of Saskatchewan (Canada)
    • 28 Abril 2017
    ...apparent consent to sexual activity is vitiated by an accused`s exercise of authority rests with the Crown. (Hutchinson; R v Geddes, 2015 ONCA 292, 322 CCC (3d) 414 [218]                    As for what......
  • R. v. P.S., 2021 ONSC 1388
    • Canada
    • Superior Court of Justice of Ontario (Canada)
    • 23 Febrero 2021
    ...was, and still is, no mention of a position of trust.  [223]     This section was discussed in R. v. Geddes, 2015 ONCA 292.  The Court [34]  I do not read Matheson as holding that the power of one person to influence another to any extent establishes ......
  • Request a trial to view additional results
13 cases
  • R. v. Snelgrove, 2018 NLCA 59
    • Canada
    • Court of Appeal (Newfoundland)
    • 17 Octubre 2018
    ...at paragraph 4, where reference is made to vitiation of apparent consent pursuant to both sections 265(3) and 273.1(2); R. v. Geddes, 2015 ONCA 292, 322 C.C.C. (3d) 414, in which the Court commented that the “exercise of influence to the point of coercion constitutes “the exer......
  • R. v. Jones, 2017 ONSC 7442
    • Canada
    • Superior Court of Justice of Ontario (Canada)
    • 14 Diciembre 2017
    ...must be in a position to command the complainant: R. v. Matheson (1999), 44 O.R. (3d) 557 (Ont. C.A.), at pp. 587-88; R. v. Geddes, 2015 ONCA 292, 322 C.C.C. (3d) 414, at paras. 33-6.[124] The determination of whether consent is vitiated by abuse of trust, power or authority is not confined......
  • R. v. J.T.B., 2017 SKQB 121
    • Canada
    • Court of Queen's Bench of Saskatchewan (Canada)
    • 28 Abril 2017
    ...apparent consent to sexual activity is vitiated by an accused`s exercise of authority rests with the Crown. (Hutchinson; R v Geddes, 2015 ONCA 292, 322 CCC (3d) 414 [218]                    As for what......
  • R. v. P.S., 2021 ONSC 1388
    • Canada
    • Superior Court of Justice of Ontario (Canada)
    • 23 Febrero 2021
    ...was, and still is, no mention of a position of trust.  [223]     This section was discussed in R. v. Geddes, 2015 ONCA 292.  The Court [34]  I do not read Matheson as holding that the power of one person to influence another to any extent establishes ......
  • Request a trial to view additional results

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