R. v. Tookanachiak (M.), 2007 NUCA 1

• Judge: Conrad, Kilpatrick and O'Brien, JJ.A.
• Court: Nunavut Court of Appeal (Canada)
• Case Date: May 23, 2007
• Jurisdiction: Nunavut
• Citations: 2007 NUCA 1;(2007), 412 A.R. 42 (CA)

R. v. Tookanachiak (M.) (2007), 412 A.R. 42 (CA);

      404 W.A.C. 42

MLB headnote and full text

Temp. Cite: [2007] A.R. TBEd. JN.078

Moses Tookanachiak (appellant) v. Her Majesty the Queen (respondent)

(15-05-012 CAP; 2007 NUCA 1)

Indexed As: R. v. Tookanachiak (M.)

Nunavut Court of Appeal

Conrad, Kilpatrick and O'Brien, JJ.A.

May 23, 2007.

Summary:

The accused was acquitted of sexual assault. A summary conviction appeal judge allowed a Crown appeal and entered a conviction. The accused appealed.

The Nunavut Court of Appeal allowed the appeal and ordered a new trial.

Criminal Law - Topic 666

Sexual offences, public morals and disorderly conduct - Sexual offences - Rape or sexual assault - Consent and extorted consent - The accused engaged in oral sex with the complainant when she was unconscious, by reason of being asleep or otherwise passed out - The accused was acquitted of sexual assault - The trial judge was not satisfied that the Crown had proven that the complainant had not consented to the sexual activity before falling asleep - A summary conviction appeal judge allowed a Crown appeal and entered a conviction - The trial judge had erred in law by not applying s. 273.1(2)(b) of the Criminal Code, which provided that no consent was obtained where the complainant was incapable of consenting to the activity - The Nunavut Court of Appeal allowed the accused's appeal and ordered a new trial - The summary conviction appeal judge erred in law in convicting the accused, as it was not implicit on the evidence before the trial judge and in his findings that the accused was aware that the complainant had fallen asleep - The evidence and the findings of the trial judge allowed for the possibility that the sexual activity began with consent and that the accused continued this activity without awareness that the complainant had fallen asleep, thereby terminating her consent.

Cases Noticed:

R. v. Ashlee (G.A.) et al. (2006), 391 A.R. 62; 377 W.A.C. 62; 2006 ABCA 244, leave to appeal denied (2006), 363 N.R. 393 (S.C.C.), refd to. [para. 5].

R. v. Ewanchuk (S.B.), [1999] 1 S.C.R. 330; 235 N.R. 323; 232 A.R. 1; 195 W.A.C. 1 (S.C.C.), refd to. [para. 8].

R. v. Vezeau, [1977] 2 S.C.R. 277; 8 N.R. 235, refd to. [para. 11].

R. v. Courville (1983), 2 C.C.C.(3d) 118 (Ont. C.A.), affd. [1985] 1 S.C.R. 847; 59 N.R. 164, refd to. [para. 11].

R. v. Cassidy, [1989] 2 S.C.R. 345; 100 N.R. 321; 36 O.A.C. 1, refd to. [para. 13].

Counsel:

N.A. Sharkey, Q.C., for the appellant;

S. Boucher, for the respondent.

This appeal was heard on May 23, 2007, by Conrad, Kilpatrick and O'Brien, JJ.A., of the Nunavut Court of Appeal. The following memorandum of judgment was delivered from the bench by O'Brien, J.A., on May 23, 2007, and was filed on June 14, 2007.