R. v. J.A., 2010 ONCA 226

• Judge: Simmons, Juriansz and LaForme, JJ.A.
• Court: Court of Appeal (Ontario)
• Case Date: September 28, 2009
• Jurisdiction: Ontario
• Citations: 2010 ONCA 226;(2010), 260 O.A.C. 248 (CA)

R. v. J.A. (2010), 260 O.A.C. 248 (CA)

MLB headnote and full text

Temp. Cite: [2010] O.A.C. TBEd. MR.116

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

(C49920; 2010 ONCA 226)

Indexed As: R. v. J.A.

Ontario Court of Appeal

Simmons, Juriansz and LaForme, JJ.A.

March 26, 2010.

Summary:

The accused was charged with aggravated assault, attempting to render the complainant unconscious to enable him to sexually assault her, sexual assault and breach of probation. The complainant testified that she had consented to her intimate partner (the accused) choking her into unconsciousness, tying her up and penetrating her anally with a dildo while she remained unconscious. However, she later complained to police. Issues arose as to whether choking the complainant into a state of unconsciousness constituted bodily harm and vitiated any consent she might have given to erotic asphyxiation, and whether, as a matter of law, a complainant could consent in advance to sexual activity while unconscious. The trial judge acquitted the accused of aggravated assault, finding that while choking into unconsciousness constituted bodily harm, consent was not vitiated because the harm was transient. The accused was also acquitted of attempting to render the complainant unconscious to enable him to sexually assault her. He was, however, convicted of sexual assault and breach of probation (see 2008 ONCJ 195). The trial judge held that the complainant did not in fact consent to penetration with the dildo while unconscious and, in any event, could not consent in advance to sexual activity which was to take place while she was unconscious. The accused appealed the sexual assault and breach of probation convictions.

The Ontario Court of Appeal, LaForme, J.A., dissenting, allowed the appeal, set aside the accused's convictions and dismissed the charges. The majority held that the trial judge erred in finding as a fact that the complainant did not consent in advance to the sexual activity that occurred while she was unconscious. Further, the trial judge erred in reaching the broad conclusion that a person could not legally consent in advance to sexual activity expected to occur while unconscious.

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 - The complainant testified that she consented to her intimate partner choking her into unconsciousness, tying her up and penetrating her anally with a dildo while she remained unconscious - She later complained to police about the dildo incident - The accused was convicted of sexual assault - The trial judge held that the complainant did not consent in advance to the sexual activity that occurred while she was unconscious, and in any event, the complainant could not as a matter of law consent in advance to sexual activity while unconscious - The accused appealed - The Ontario Court of Appeal allowed the appeal and acquitted the accused of sexual assault - The court held that the trial judge erred in finding as a fact that the complainant did not consent in advance to the sexual activity that occurred while she was unconscious (i.e., the anal penetration with the dildo) - The record was not capable of supporting that finding of fact - Further, the trial judge erred in reaching the broad conclusion that a person could not legally consent in advance to sexual activity expected to occur while unconscious - The court stated that depending on the offence charged, a more appropriate inquiry was whether the complainant's consent given in advance to sexual acts performed while unconscious was vitiated in the particular circumstances of the case - See paragraphs 1 to 91.

Criminal Law - Topic 666

Sexual offences - Rape or sexual assault - Consent - The Ontario Court of Appeal discussed whether choking a complainant into unconsciousness (erotic asphyxiation) constituted bodily harm such as to vitiate consent in a sexual assault case - See paragraphs 92 to 110.

Cases Noticed:

R. v. K.G.B., [1993] 1 S.C.R. 740; 148 N.R. 241; 61 O.A.C. 1, refd to. [para. 21].

R. v. Jobidon, [1991] 2 S.C.R. 714; 128 N.R. 321; 49 O.A.C. 83, refd to. [para. 27].

R. v. Welch (J.) (1995), 86 O.A.C. 200; 25 O.R.(3d) 665 (C.A.), refd to. [para. 29].

R. v. Robinson (J.R.) (2001), 143 O.A.C. 80; 53 O.R.(3d) 448 (C.A.), refd to. [para. 29].

R. v. Cooper, [1993] 1 S.C.R. 146; 146 N.R. 367; 103 Nfld. & P.E.I.R. 209; 326 A.P.R. 209, refd to. [para. 29].

R. v. Donovan, [1934] 2 K.B. 498 (C.A.), refd to. [para. 41].

R. v. Boyea (1992), 156 J.P. 505 (C.A.), refd to. [para. 41].

R. v. Brown et al., [1994] 1 A.C. 212; 151 N.R. 321 (H.L.), refd to. [para. 41].

R. v. Amos (D.), [1998] O.A.C. Uned. 335; 1998 CanLII 2814 (C.A.), refd to. [para. 41].

R. v. Quashie (S.) (2005), 200 O.A.C. 65; 198 C.C.C.(3d) 337 (C.A.), refd to. [para. 41].

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. 46].

R. v. Pedden (B.A.), 2000 BCPC 13, affd. (2003), 186 B.C.A.C. 260; 306 W.A.C. 260 (C.A.), refd to. [para. 46].

R. v. Ashlee (G.A.) et al. (2006), 391 A.R. 62; 377 W.A.C. 62; 212 C.C.C.(3d) 477 (C.A.), leave to appeal refused (2006), 363 N.R. 393; 412 A.R. 396; 404 W.A.C. 396 (S.C.C.), refd to. [paras. 46 and 121].

R. v. A.A. (2001), 144 O.A.C. 382; 155 C.C.C.(3d) 279 (C.A.), refd to. [para. 46].

R. v. Esau (A.J.), [1997] 2 S.C.R. 777; 214 N.R. 241, refd to. [paras. 46, 125].

R. v. Humphrey (C.) (2001), 143 O.A.C. 151; 43 C.R.(5th) 258 (C.A.), refd to. [paras. 46, 128].

R. v. Stanley (1977), 36 C.C.C.(2d) 216 (B.C.C.A.), refd to. [para. 46].

R. v. D.W., [1991] 1 S.C.R. 742; 122 N.R. 277; 46 O.A.C. 352, refd to. [para. 54].

R. v. J.R. and J.D., [2008] O.J. No. 1054 (C.A.), leave to appeal denied [2008] S.C.C.A. No. 231, refd to. [para. 68].

R. v. Bell (J.) (2007), 223 O.A.C. 243 (C.A.), refd to. [para. 68].

Bell ExpressVu Limited Partnership v. Rex et al., [2002] 2 S.C.R. 559; 287 N.R. 248; 166 B.C.A.C. 1; 271 W.A.C. 1, refd to. [para. 100].

R. v. Maloney (1976), 28 C.C.C.(2d) 323 (Ont. Co. Ct.), refd to. [para. 104].

R. v. Garrett (M.G.) (1995), 169 A.R. 394; 97 W.A.C. 394 (C.A.), refd to. [para. 107].

R. v. Bruce (M.J.) (1995), 55 B.C.A.C. 62; 90 W.A.C. 62 (C.A.), refd to. [para. 110, footnote 3].

R. v. Shand (P.M.) (1997), 164 N.S.R.(2d) 252; 491 A.P.R. 252 (S.C.), refd to. [para. 110, footnote 3].

Statutes Noticed:

Criminal Code, R.S.C. 1985, c. C-46, sect. 2 [para. 26]; sect. 265(3) [para. 24]; sect. 273.1(1), sect. 273.1(2), sect. 273.1(3) [para. 25].

Authors and Works Noticed:

Canada, Standing Committee on Justice and Legal Affairs, Minutes of Proceedings and Evidence, Issue No. 97, 1st Sess., 32nd Parliament (June 15, 1982), p. 56 [para. 105].

Driedger, Elmer A., Construction of Statutes (2nd Ed. 1983), p. 83 [para. 100].

Counsel:

Howard L. Krongold, for the appellant;

Christine Bartlett-Hughes, for the respondent.

This appeal was heard on September 28, 2009, by Simmons, Juriansz and LaForme, JJ.A., of the Ontario Court of Appeal. The decision of the court was released on March 26, 2010, including the following opinions:

Simmons, J.A. (Juriansz, J.A., concurring) - see paragraphs 1 to 111;

LaForme, J.A., dissenting - see paragraphs 112 to 141.