R. v. L.B., (1998) 106 B.C.A.C. 154 (YukCA)

• Judge: McEachern, C.J.B.C., Esson and Ryan, JJ.A.
• Court: Court of Appeal (Yukon Territory)
• Case Date: October 03, 1997
• Jurisdiction: Yukon
• Citations: (1998), 106 B.C.A.C. 154 (YukCA)

R. v. L.B. (1998), 106 B.C.A.C. 154 (YukCA);

   172 W.A.C. 154

MLB headnote and full text

Temp. Cite: [1998] B.C.A.C. TBEd. MY.056

Regina (respondent) v. L.B. (appellant)

(96-YU351)

Indexed As: R. v. L.B.

Yukon Court of Appeal

McEachern, C.J.B.C., Esson and Ryan, JJ.A.

April 8, 1998.

Summary:

The accused was convicted of indecent assault and sexual assault respecting the same com­plainant. The accused appealed his convictions.

The Yukon Court of Appeal allowed the appeal, set aside the convictions on both counts and ordered a new trial.

Criminal Law - Topic 666

Sexual offences - Sex­ual assault - Con­sent and extorted consent - The Yukon Court of Appeal stated that the lack of resistance did not necessarily constitute consent - See paragraph 30.

Criminal Law - Topic 666

Sexual offences - Sex­ual assault - Con­sent and extorted consent - The accused was charged with indecent assault between January 1/80 and January 3/83 and with sexual assault between January 4/83 and April 1/93 - The com­plainant was the then 17 year old male friend of the accused's son - The issue was consent - The Yukon Court of Appeal held that the trial judge erred in failing to ana­lyze the two counts separately to deter­mine the questions of consent based on the different Criminal Code provisions before and after January 4/83 - See paragraphs 31 to 34 - The court held that the judge also failed to consider all the circum­stances surrounding the question of con­sent in dealing with the count of sexual assault - See paragraphs 40 to 42.

Criminal Law - Topic 674

Sexual offences - Sex­ual assault - De­fences - Mistake of fact - Mistaken but honest belief - The accused was charged with indecent assault between January 1/80 and January 3/83 and with sexual assault between January 4/83 and April 1/93 - The complainant was the then 17 year old male friend of the accused's son - The issue was consent - The Yukon Court of Appeal held that the trial judge applied an objective rather than a subjec­tive test in determining the issue of honest but mis­taken belief as it related to both counts in the indictment - See paragraphs 36 to 39.

Cases Noticed:

R. v. M.L.M., [1994] 2 S.C.R. 3; 166 N.R. 241; 89 C.C.C.(3d) 96, refd to. [para. 30].

R. v. O'Connor (H.P.) (1998), 105 B.C.A.C. 56; 171 W.A.C. 56, refd to. [para. 31].

Statutes Noticed:

Criminal Code, R.S.C. 1985, c. C-46, sect. 156 [para. 21]; sect. 244 [para. 24]; sect. 244(a) [para. 22]; sect. 246.1(1) [para. 23].

Counsel:

Paul S. O'Brien, for the appellant;

Peter La Prairie, for the respondent.

This appeal was heard before McEachern, C.J.B.C., Esson and Ryan, JJ.A., of the Yukon Court of Appeal at Vancouver, Brit­ish Columbia on October 3, 1997. The decision of the Court of Appeal was delivered by Ryan, J.A., on April 8, 1998.