R. v. L.G.,

• Jurisdiction: Ontario
• Judge: Laskin, Simmons and LaForme, JJ.A.
• Neutral Citation: 2007 ONCA 654
• Citation: (2007), 229 O.A.C. 89 (CA),2007 ONCA 654,228 CCC (3d) 194,[2007] OJ No 3611 (QL),229 OAC 89,76 WCB (2d) 178,(2007), 229 OAC 89 (CA),229 O.A.C. 89,[2007] O.J. No 3611 (QL)
• Date: 18 April 2007
• Court: Court of Appeal (Ontario)

R. v. L.G. (2007), 229 O.A.C. 89 (CA)

MLB headnote and full text

Temp. Cite: [2007] O.A.C. TBEd. SE.076

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

(C43257; 2007 ONCA 654)

Indexed As: R. v. L.G.

Ontario Court of Appeal

Laskin, Simmons and LaForme, JJ.A.

September 24, 2007.

Summary:

The accused was convicted of administering a stupefying substance (GHB) for the purpose of committing an indictable offence and sexual assault. After receiving credit for 56 months' pre-sentence custody, he was sentenced to 22 months' imprisonment. He appealed from the convictions and sought leave to appeal sentence.

The Ontario Court of Appeal dismissed the conviction appeal, granted leave to appeal the sentence and dismissed the sentence 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 law, publication ban, Maritime Law Book's editorial policy or otherwise.

Civil Rights - Topic 3265

Trials - Due process, fundamental justice and fair hearings - Speedy trial - Accused's right to - What constitutes "within a reasonable time" - The accused and a co-accused were convicted of administering a stupefying substance (GHB) for the purpose of committing an indictable offence and sexual assault - They spent just over two years in custody awaiting their trial in the Superior Court - The Ontario Court of Appeal held that the trial judge did not err in finding that the total delay between the date of the arrest and the date of trial was not unreasonable - 12 months were attributable to institutional delay - Six of those months arose because the co-accused's counsel was unavailable for the original trial date due to a homicide trial that was not completed within the estimated time frame - The R. v. Morin (SCC) "guideline" for institutional delay in the provincial courts was eight to ten months - However, the guideline was not a fixed limitation period, nor was it to be applied in a mechanical fashion - The guideline recognized that some period of institutional delay in scheduling cases was not unreasonable - The realities of scheduling in a world where resources were not unlimited meant that, even in in-custody matters, the period of reasonable delay might be extended somewhat where a case was complex or lengthy and was adjourned to accommodate an accused - Sex offences were particularly serious charges - There was a strong societal interest in seeing them through to a trial on the merits - See paragraphs 47 to 71.

Civil Rights - Topic 8584

Canadian Charter of Rights and Freedoms - Practice - Time for raising Charter issues - The accused and co-accused were charged with several offences, including child pornography charges and sexual assault - Prior to trial, the co-accused applied under s. 11(b) of the Charter to stay the charges against him because of unreasonable delay - The trial judge stayed the child pornography charges against him but held that the delay in relation to the sexual assault charges was not unreasonable - On the first day of the joint trial, the Crown indicated that she would not be proceeding with the child pornography charges against the accused - The accused's counsel then proposed to the trial judge that, in order to protect the accused's appeal rights, counsel would file a s. 11(b) Charter application and invite the trial judge to make the same ruling that he had made on the co-accused's application - The trial judge did not accept the proposal and the accused did not file a s. 11(b) Charter application - The accused was convicted - The Ontario Court of Appeal held that this was not an appropriate case in which he should be entitled to raise the issue of unreasonable delay on appeal despite the fact that he did not bring a s. 11(b) Charter application at trial - Appellate courts were generally reluctant to entertain Charter arguments that were raised for the first time on appeal - The compelling inference was that the accused chose not to raise a s. 11(b) Charter issue at trial for tactical reasons - See paragraphs 42 to 46.

Civil Rights - Topic 8586

Canadian Charter of Rights and Freedoms - Practice - Method of raising Charter issues - The accused and co-accused were charged with several offences, including child pornography charges and sexual assault - Prior to trial, the co-accused applied under s. 11(b) of the Charter to stay the charges against him because of unreasonable delay - The trial judge stayed the child pornography charges against him but held that the delay in relation to the sexual assault charges was not unreasonable - On the first day of the joint trial, the Crown indicated that she would not be proceeding with the child pornography charges against the accused - The accused's counsel then proposed to the trial judge that, in order to protect the accused's appeal rights, counsel would file a s. 11(b) Charter application and invite the trial judge to make the same ruling that he had made on the co-accused's application - The trial judge did not accept the proposal and the accused did not file a s. 11(b) Charter application - The accused was convicted - He appealed, arguing that he brought a s. 11(b) Charter application at trial and that the trial judge erred by failing to address it - The Ontario Court of Appeal rejected the argument - The accused never brought the application - The accused's proposal was merely a tactical manoeuvre aimed at preserving his right to raise on appeal issues that he could, and, if he was serious about them, should have raised at trial - This was not one of those circumstances in which it was appropriate for a trial judge to apply previously made rulings to a different context - The determination of whether a particular accused's Charter rights have been breached would generally require individual determination - See paragraphs 36 to 41.

Criminal Law - Topic 666

Sexual offences - Rape or sexual assault - Consent or extorted consent - The accused was convicted of administering a stupefying substance for the purpose of committing an indictable offence and sexual assault - The trial judge concluded that the accused added GHB to the complainant's wine without her knowledge - In addition, he found that the complainant was in a drugged condition as she consumed her second and third glasses of wine (which was prior to any sexual contact) and that she was sufficiently sedated that she could not voluntarily agree to engage in sexual activity - The accused appealed - The Ontario Court of Appeal held that, given the trial judge's finding that the accused added GHB to the complainant's wine without her consent, there was no air of reality to the defence of honest but mistaken belief in consent and the trial judge made no error in failing to consider it - The trial judge did not misapprehend key evidence from a toxicologist and the complainant - See paragraphs 9 and 72 to 92.

Criminal Law - Topic 666

Sexual offences - Rape or sexual assault - Consent or extorted consent - The accused was convicted of administering a stupefying substance for the purpose of committing an indictable offence and sexual assault - The trial judge concluded that the accused added GHB to the complainant's wine without her knowledge - In addition, he found that the complainant was in a drugged condition as she consumed her second and third glasses of wine (which was prior to any sexual contact) and that she was sufficiently sedated that she could not voluntarily agree to engage in sexual activity - The complete loss of inhibition that she experienced was the direct result of being drugged by the accused - The accused appealed, arguing that the trial judge's finding that the complainant lacked the capacity to consent to sexual activity was unreasonable - He relied on case law establishing a low threshold for a finding of capacity, and in particular, cases in which it has been held that drunkenness or loss of inhibitions and self-control did not amount to a lack of capacity - He also argued that the evidence established that the complainant was sufficiently conscious to be capable of giving a valid consent - The Ontario Court of Appeal rejected the arguments - The trial judge correctly identified the test for capacity to consent - The trial judge's findings concerning the accused's state of mind were supported by the evidence and justified his conclusions - See paragraphs 93 to 99.

Criminal Law - Topic 674

Sexual offences - Rape or sexual assault - Defences - Mistake of fact - [See first Criminal Law - Topic 666 ].

Criminal Law - Topic 5932

Sentence - Sexual assault - The accused was convicted of administering a stupefying substance (GHB) for the purpose of committing an indictable offence and sexual assault - The accused added GHB to the complainant's wine without her knowledge and then engaged in various sexual acts with her - After receiving credit for 56 months' pre-sentence custody, he was sentenced to 22 months' imprisonment - He sought leave to appeal sentence, arguing that the global sentence imposed on him was outside the appropriate range and therefore unfit - The Ontario Court of Appeal granted leave to appeal the sentence, but dismissed the appeal - While the sentence imposed was "stiff", it was not outside the range - The accused had a prior record for sexual assault and the trial judge identified numerous aggravating factors to justify the sentence he imposed, not the least of which was that this was a planned crime involving the administration of a dangerous drug - See paragraphs 7 and 12.

Criminal Law - Topic 5957.1

Sentence - Administering stupefying or overpowering thing - [See Criminal Law - Topic 5932 ].

Cases Noticed:

R. v. Warsing (K.L.) (1998), 233 N.R. 319; 115 B.C.A.C. 214; 189 W.A.C. 214; 130 C.C.C.(3d) 259 (S.C.C.), refd to. [para. 43].

R. v. Brown (A.R.R.) (1993), 155 N.R. 225; 141 A.R. 163; 46 W.A.C. 163; 83 C.C.C.(3d) 129 (S.C.C.), refd to. [para. 43].

R. v. Rollocks (R.) (1994), 72 O.A.C. 269; 91 C.C.C.(3d) 193 (C.A.), refd to. [para. 43].

R. v. Morin (1992), 134 N.R. 321; 53 O.A.C. 241; 71 C.C.C.(3d) 1 (S.C.C.), refd to. [para. 49].

R. v. MacDougall (P.A.) (1998), 231 N.R. 147; 168 Nfld. & P.E.I.R. 83; 517 A.P.R. 83; 128 C.C.C.(3d) 483 (S.C.C.), refd to. [para. 53].

R. v. Whylie (C.) (2006), 208 O.A.C. 247; 207 C.C.C.(3d) 97 (C.A.), refd to. [para. 62].

R. v. Sapara (J.) (2001), 277 A.R. 357; 242 W.A.C. 357 (C.A.), leave to appeal denied [2001] 2 S.C.R. xii; 275 N.R. 197; 293 A.R. 291; 257 W.A.C. 291, refd to. [para. 62].

R. v. Regan (G.A.) (2002), 282 N.R. 1; 201 N.S.R.(2d) 63; 629 A.P.R. 63; 161 C.C.C.(3d) 97 (S.C.C.), refd to. [para. 71].

R. v. Cedeno (2005), 195 C.C.C.(3d) 468 (Ont. C.J.), refd to. [para. 93].

R. v. Jensen (C.M.) (1996), 90 O.A.C. 183; 106 C.C.C.(3d) 430 (C.A.), affd. (1997), 209 N.R. 1; 98 O.A.C. 321; 112 C.C.C.(3d) 384 (S.C.C.), refd to. [para. 93].

R. v. Merritt (J.W.), [2004] O.T.C. 290 (Sup. Ct.), refd to. [para. 93].

R. v. Sarson (L.W.) (1992), 115 N.S.R.(2d) 445; 314 A.P.R. 445; 77 C.C.C.(3d) 233 (C.A.), refd to. [para. 93].

Counsel:

Victor Giourgas and Catriona Verner, for the appellant;

Kimberley Crosbie, for the respondent.

These appeals were heard on April 18, 2007, by Laskin, Simmons and LaForme, JJ.A., of the Ontario Court of Appeal. Simmons, J.A., delivered the following judgment for the court which was released on September 24, 2007.