R. v. Tessier (D.R.), (2007) 422 A.R. 84 (CA)

JudgeWatson, J.A.
CourtNunavut Court of Appeal (Canada)
Case DateSeptember 19, 2007
JurisdictionNunavut
Citations(2007), 422 A.R. 84 (CA);2007 NUCA 5

R. v. Tessier (D.R.) (2007), 422 A.R. 84 (CA);

      415 W.A.C. 84

MLB headnote and full text

Temp. Cite: [2007] A.R. TBEd. OC.163

Her Majesty the Queen (appellant) v. Darrell Francis Tessier (respondent)

(08-06-008 CAP; 2007 NUCA 5)

Indexed As: R. v. Tessier (D.R.)

Nunavut Court of Appeal

Watson, J.A.

October 22, 2007.

Summary:

A Nunavut summary conviction court found the accused not guilty of sexual assault. The Crown appealed.

The Nunavut Court of Appeal, per Watson, J.A., dismissed the appeal.

Criminal Law - Topic 666

Sexual offences, public morals and disorderly conduct - Sexual offences - Rape or sexual assault - Consent and extorted consent - The male accused undressed in the hope of engaging in sexual activity with a woman who had been sleeping - The accused tapped the woman's shoulder - She opened her eyes - There was some moaning which suggested that there was an invitation to continue - The accused started to caress the woman's back - More moaning - The accused believed that he was getting "very positive feedback" but, when the woman became somewhat more awake, she realized what was going on, said no, and that was the end of it - The accused was charged with sexual assault - The trial judge acquitted the accused where the accused had taken reasonable steps to ascertain the woman's consent - The Nunavut Court of Appeal, per Watson, J.A., upheld the decision - See paragraphs 1 to 53.

Criminal Law - Topic 666

Sexual offences, public morals and disorderly conduct - Sexual offences - Rape or sexual assault - Consent and extorted consent - The Nunavut Court of Appeal, per Watson, J.A., held that the word "ascertain" in s. 273.2(b) of the Criminal Code, made plain that the timing of attempting to determine the existence of consent or not was the time when the sexual activity was taking place and not at some prior time - See paragraphs 17 to 19.

Words and Phrases

Ascertain - The Nunavut Court of Appeal, per Watson, J.A., discussed the meaning of the word "ascertain" found in s. 273.2(b) of the Criminal Code, R.S.C. 1985, c. C-46 - See paragraphs 17 to 19.

Cases Noticed:

R. v. Ewanchuk (S.B.), [1999] 1 S.C.R. 330; 235 N.R. 323; 232 A.R. 1; 195 W.A.C. 1, consd. [para. 15].

Statutes Noticed:

Criminal Code, R.S.C. 1985, c. C-46, sect. 273.2(b) [para. 17].

Counsel:

S. Ryan, for the appellant;

P. Harte, for the respondent.

This appeal was heard on September 19, 2007, by Watson, J.A., of the Nunavut Court of Appeal, who delivered the following decision on October 22, 2007 .

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