R. v. Lutoslawski,

• Jurisdiction: Ontario
• Judge: Doherty, Blair and Watt, JJ.A.
• Neutral Citation: 2010 ONCA 207
• Citation: 2010 ONCA 207,(2010), 260 O.A.C. 161 (CA),326 DLR (4th) 637,258 CCC (3d) 1,[2010] CarswellOnt 1544,[2010] OJ No 1094 (QL),260 OAC 161,260 O.A.C. 161,[2010] O.J. No 1094 (QL),(2010), 260 OAC 161 (CA),326 D.L.R. (4th) 637
• Date: 08 March 2010
• Court: Court of Appeal (Ontario)

R. v. Lutoslawski (J.) (2010), 260 O.A.C. 161 (CA)

MLB headnote and full text

Temp. Cite: [2010] O.A.C. TBEd. MR.086

Her Majesty the Queen (appellant) v. Jaroslaw Lutoslawski (respondent)

(C49601; 2010 ONCA 207)

Indexed As: R. v. Lutoslawski (J.)

Ontario Court of Appeal

Doherty, Blair and Watt, JJ.A.

March 18, 2010.

Summary:

The accused was charged with five counts of sexual exploitation contrary to s. 153(1) of the Criminal Code (counts 1, 3, 5, 7 and 9) and five counts of sexual assault contrary to s. 271 (counts 2, 4, 6, 8 and 10). A judge, sitting without a jury, acquitted him of all counts. The Crown appealed the acquittals on counts 3 to 10.

The Ontario Court of Appeal allowed the appeal in part. The court entered convictions on three counts of sexual assault and ordered a new trial on the remaining count of sexual assault. The court dismissed the appeals and affirmed the acquittals on the other counts.

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 - Section 265(3)(d) of the Criminal Code addressed the meaning of consent in the context of the definition of all 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 ... (d) the exercise of authority." - Section 273.1(2)(c) of the Code, which was applicable only to sexual assault allegations, provided that "No consent is obtained for the purposes of s. 271 ... where ... (c) the accused induces the complainant to engage in the activity by abusing a position of trust, power or authority;" - The Ontario Court of Appeal held that "s. 273.1(2)(c) is broader than s. 265(3)(d). Section 273.1(2)(c) speaks not only to the abuse of a position of authority but also to the misuse of a position of power or trust. The section addresses the kinds of relationships in which an apparent consent to sexual activity is rendered illusory by the dynamics of the relationship between the accused and the complainant, and by the misuse of the influence vested in the accused by virtue of that relationship. The term 'exercise of authority' in s. 265(3)(d) suggests a coercive use of authority to overcome resistance to a consent. Inducing consent by abusing the relationships set out in s. 273.1(2)(c) does not imply the same kind of coercion. An individual who is in a position of trust over another may use the personal feelings and confidence engendered by that relationship to secure an apparent consent to sexual activity." - See paragraph 12.

Criminal Law - Topic 669

Sexual offences - Rape or sexual assault - Intention or mens rea - Three complainants made similar accusations of improper touching by the accused during overnight excursions taken under the auspices of his scouting organization - There was one count of sexual assault and one count of sexual exploitation respecting each complainant - The trial judge acquitted the accused on all counts - The Crown appealed - The Crown conceded that a reasonable doubt as to the purpose of the touching was a lawful basis for an acquittal on the sexual exploitation counts; s. 153(1)(a) specifically required that the touching be "for a sexual purpose" - However, the Crown submitted that the trial judge erred by requiring the Crown to prove that the touching was for a sexual purpose to secure a conviction on the sexual assault charges - The Ontario Court of Appeal agreed - The trial judge misdirected himself as to the essential elements of the offence of sexual assault - The Crown had proved beyond a reasonable doubt that the touching occurred in circumstances of a sexual nature such as to compromise the sexual integrity of the complainants - The court entered convictions on the sexual assault charges - A new trial would serve no purpose on these counts - See paragraphs 22 to 39.

Criminal Law - Topic 670.1

Sexual offences - Rape or sexual assault - Sexual assault - Elements - [See Criminal Law - Topic 669 ].

Criminal Law - Topic 1422

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

Criminal Law - Topic 4978

Appeals - Indictable offences - Powers of Court of Appeal - Power to substitute a verdict - [See Criminal Law - Topic 669 ].

Cases Noticed:

R. v. Makayak (L.), [2004] Nunavut Cases 5; 2004 NUCJ 5, refd to. [para. 13].

R. v. Chase, [1987] 2 S.C.R. 293; 80 N.R. 247; 82 N.B.R.(2d) 229; 208 A.P.R. 229; 37 C.C.C.(3d) 97, appld. [para. 36].

R. v. Reddick (S.J.) (1991), 122 N.R. 348; 47 O.A.C. 289; 64 C.C.C.(3d) 257 (S.C.C.), refd to. [para. 39].

Statutes Noticed:

Criminal Code, R.S.C. 1985, c. C-46, sect. 265(3)(d) [para. 10]; sect. 273.1(2)(c) [para. 11].

Authors and Works Noticed:

Manning, Morris, and Sankoff, Peter, Manning, Mewett & Sankoff: Criminal Law (4th Ed. 2009), p. 880 [para. 13].

Counsel:

Christine Tier, for the appellant;

Nicholas Xynnis, for the respondent.

This appeal was heard on March 8, 2010, by Doherty, Blair and Watt, JJ.A., of the Ontario Court of Appeal. Doherty, J.A., delivered the following decision for the court on March 18, 2010.