R. v. Robertson,

• Jurisdiction: Federal Jurisdiction (Canada)
• Judge: Dickson, C.J.C., Beetz, Estey, McIntyre, Chouinard, Lamer, Wilson, Le Dain and La Forest, JJ.
• Citation: (1987), 75 N.R. 6 (SCC),75 NR 6,[1987] 1 SCR 918,1987 CanLII 61 (SCC),39 DLR (4th) 321,58 CR (3d) 28,[1987] SCJ No 33 (QL),33 CCC (3d) 481,20 OAC 200
• Court: Supreme Court (Canada)
• Date: 04 June 1987

R. v. Robertson (1987), 75 N.R. 6 (SCC)

MLB headnote and full text

[French language version follows English language version]

[La version française vient à la suite de la version anglaise]

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R. v. Robertson

(No. 19813)

Indexed As: R. v. Robertson

Supreme Court of Canada

Dickson, C.J.C., Beetz, Estey, McIntyre, Chouinard, Lamer, Wilson, Le Dain and La Forest, JJ.

June 4, 1987.

Summary:

The accused was charged with sexual assault, contrary to s. 246.1(1)(a) of the Criminal Code. At trial, the accused alleged that the complainant had consented or, in the alternative, that he believed she had consented. The accused did not testify or call any witnesses. The accused was convicted by a jury. The accused appealed.

The Ontario Court of Appeal allowed the appeal and ordered a new trial. The Court of Appeal held that the trial judge erred in failing to instruct the jury on an essential element of the offence, namely, that the accused knew that the complainant was not consenting or was reckless as to whether she consented or not. The Crown appealed.

The Supreme Court of Canada allowed the appeal and restored the accused's conviction.

Criminal Law - Topic 673

Sexual assault - Jury charge - Mistake of fact - The Supreme Court of Canada held that a trial judge need not, in every sexual assault case, instruct the jury to consider whether the accused had an honest, though mistaken, belief in consent - The court held that regardless of whether the accused's knowledge of lack of consent was considered as an element of the offence or a defence of mistake of fact, the issue should not go to the jury unless (1) the accused alleged an honest belief in consent and (2) there was sufficient evidence that "gives an air of reality to the accused's argument" or that "if believed by a jury, ... would constitute a defence" - This evidence may be introduced by the Crown or the accused - Once the issue was put to the jury, the Crown had the burden of persuading the jury beyond a reasonable doubt that the accused knew the complainant was not consenting or was reckless as to whether she consented or not - See paragraphs 23 to 39.

Criminal Law - Topic 5212

Evidence - Witnesses - Relevancy - Similar acts - General - An accused was charged with sexual assault - The complainant's roommate offered evidence that the accused had made a physical approach towards her and indicated that he wished to sleep with her - The Supreme Court of Canada affirmed that the roommate's evidence was admissible and did not violate the exclusionary rule respecting admission of similar facts - The court held that the evidence was highly relevant, of some, though not great, probative value and would cause very little prejudice to the accused - See paragraphs 40 to 46.

Cases Noticed:

R. v. Pappajohn, [1980] 2 S.C.R. 120; 32 N.R. 104, consd. [para. 24].

R. v. Sansregret, [1985] 1 S.C.R. 570; 58 N.R. 123; 35 Man.R.(2d) 1, consd. [para. 24].

Woolmington v. D.P.P., [1935] A.C. 462, refd to. [para. 31].

Mancini v. D.P.P., [1942] A.C. 1, refd to. [para. 32].

Latour v. The King, [1951] S.C.R. 19, refd to. [para. 33].

R. v. Oakes, [1986] 1 S.C.R. 103; 65 N.R. 87; 14 O.A.C. 335, refd to. [para. 34].

R. v. Cook (1985), 46 C.R.(3d) 128 (B.C.C.A.), refd to. [para. 36].

R. v. White (1986), 24 C.C.C.(3d) 1 (B.C.C.A.), refd to. [para. 36].

R. v. Moreau (1986), 15 O.A.C. 81; 26 C.C.C.(3d) 359 (C.A.), refd to. [para. 36].

R. v. Sweitzer, [1982] 1 S.C.R. 949; 42 N.R. 550, refd to. 1, refd to. [para. 32].

Latour v. The King, [1951] S.C.R. 19, refd to. [para. 33].

R. Ed. 1961), pp. 871-910 [para. 26].

Watt, D., The New Offences Against the Person: The Provisions of Bill C-127 (1984), p. 83 [para. 38].

Parker, G., The New Sexual Offences (1983), 31 C.R.(3d) 317 [para. 38].

Boyle, C., Sexual Assault (1984), p. 79 [para. 38].

Cross on Evidence (6th Ed. 1985), p. 311 [para. 40].

Hoffmann, L.H., Similar Facts After Boardman (1975), 91 L.Q.R. 193 [para. 44].

Counsel:

James K. Stewart and Sarah Welch, for the appellant;

Morris Manning, Q.C., and Paul B. Schabas, for the respondent.

Solicitors of Record:

Attorney General of the Province of Ontario, Toronto, Ont., for the appellant;

Morris Manning, Toronto, Ont., for the respondent.

This appeal was heard before Dickson, C.J.C., Beetz, Estey, McIntyre, Chouinard, Lamer, Wilson, Le Dain and La Forest, JJ., on December 16 and 17, 1986.

The decision of the Supreme Court was delivered by Wilson, J., on June 4, 1987.

Chouinard, J., took no part in the judgment.