R. v. P.S.,

• Jurisdiction: Ontario
• Judge: Goudge, Blair and MacFarland, JJ.A.
• Neutral Citation: 2007 ONCA 299
• Date: 06 February 2007
• Court: Court of Appeal (Ontario)

R. v. P.S. (2007), 223 O.A.C. 293 (CA)

MLB headnote and full text

Temp. Cite: [2007] O.A.C. TBEd. AP.100

Her Majesty the Queen (respondent/respondent) v. P.S. (applicant/appellant)

(C44540; 2007 ONCA 299)

Indexed As: R. v. P.S.

Ontario Court of Appeal

Goudge, Blair and MacFarland, JJ.A.

April 20, 2007.

Summary:

The accused was found guilty of kidnapping, sexually assaulting and criminally harassing his long-time girlfriend. The accused was sentenced to 54 months in custody, less 16 months' credit for pre-trial detention. The accused appealed from the convictions and sentence.

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 law, publication ban, Maritime Law Book's editorial policy or otherwise.

Criminal Law - Topic 666

Sexual offences, public morals and disorderly conduct - Sexual offences - Rape or sexual assault - Consent and extorted consent - The accused was found guilty of kidnapping, sexually assaulting, and criminally harassing his long-time girlfriend - The accused appealed, arguing that the trial judge erred in failing to put the defence of honest but mistaken belief in consent to the jury - The Ontario Court of Appeal rejected the argument - The accused's position at trial was that the complainant not only consented to the sexual activity, but was an active and willing participant - Conversely, the complainant's evidence was that she forcefully resisted the accused's advances throughout - A version of events that reflected no consent by the complainant and an honest mistake by the accused simply had no air of reality in the evidence - See paragraphs 43 to 44.

Criminal Law - Topic 674

Sexual offences, public morals and disorderly conduct - Sexual offences - Rape or sexual assault - Defences - Mistake of fact - [See Criminal Law - Topic 666 ].

Criminal Law - Topic 692

Sexual offences, public morals and disorderly conduct - Sexual offences - Evidence - Admissibility hearing - Evidence of the complainant's sexual activity - The accused was found guilty of kidnapping, sexually assaulting and criminally harassing his long-time girlfriend - The accused appealed, arguing that the trial judge erred in dismissing his application to introduce evidence of his sexual relationship with the complainant between the date that she moved out of their home on January 18, 2003, and the date of the alleged sexual assault on April 9, 2003 - The Ontario Court of Appeal held that the trial judge was correct to dismiss the accused's application - The description of the proposed evidence was not of specific instances of sexual activity, but rather evidence that the accused and the complainant had sexual relations after the complainant moved out - The evidence was clearly inadmissible - See paragraphs 11 to 17.

Criminal Law - Topic 4357

Procedure - Charge or directions - Jury or judge alone - Directions regarding defences and theory of the defence - [See Criminal Law - Topic 666 ].

Criminal Law - Topic 4379

Procedure - Charge or directions - Jury or judge alone - Directions re evidence of character or credibility of accused - [See Criminal Law - Topic 5449 ].

Criminal Law - Topic 5449

Evidence and witnesses - Evidence respecting the accused - Character of accused (incl. discreditable conduct) - General - The accused was found guilty of kidnapping, sexually assaulting and criminally harassing his long-time girlfriend - The accused appealed, arguing that the trial judge erred in instructing the jury that they could use evidence of his past discreditable conduct toward the complainant during their relationship in determining his animus or motive with respect to the offences charged - The accused argued that since the evidence of discreditable conduct did not include prior instances of kidnapping and sexual assault, it could not constitute evidence that he had the disposition to do the acts alleged - The Ontario Court of Appeal held that the evidence of the appellant's prior controlling and abusive conduct toward the complainant was sufficiently probative of his animus or motive in committing the offences charged to outweigh its prejudicial effect and the trial judge did not err in instructing the jury that they could use the evidence for that purpose - See paragraphs 18 to 42.

Criminal Law - Topic 5904

Sentence - Kidnapping and abduction - [See Criminal Law - Topic 5932 ].

Criminal Law - Topic 5932

Sentence - Sexual assault - The accused was found guilty of kidnapping, sexually assaulting and criminally harassing his long-time girlfriend - The accused was sentenced to 54 months in custody, less 16 months' credit for pre-trial detention - The accused appealed from the sentence, arguing that the trial judge erred in overemphasizing denunciation and general deterrence, in light of this being the accused's first penitentiary sentence - He also argued that the sentence was outside the appropriate range - The Ontario Court of Appeal dismissed the appeal - The accused was convicted of three very serious offences in the context of the breakdown of a long-term domestic relationship - The sexual assault was serious, degrading and dehumanizing - The events left deep emotional scars on the complainant - The sentence was not unfit - See paragraphs 46 to 52.

Criminal Law - Topic 5969

Sentence - Criminal harassment - [See Criminal Law - Topic 5932 ].

Cases Noticed:

R. v. W.B. (2000), 134 O.A.C. 1; 145 C.C.C.(3d) 449 (C.A.), consd. [para. 26].

R. v. D.S.F. (1999), 118 O.A.C. 272; 132 C.C.C.(3d) 97 (C.A.), consd. [para. 30].

Counsel:

Christopher Hicks and Catriona Verner, for the appellant;

Amanda Rubaszek, for the respondent.

This appeal was heard on February 6, 2007, before Goudge, Blair and MacFarland, JJ.A., of the Ontario Court of Appeal. The following judgment of the Court of Appeal was delivered by Goudge, J.A., and was released on April 20, 2007.