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Criminal - Sexual Offences - Consent (2). R. v. Kononenko
In R. v. Kononenko (Ont CA, 2025) the Ontario Court of Appeal considered 'consent' in a sexual assault context:[16] When deciding whether the actus reus of the offence of sexual assault has been established, the question of whether the complainant did not consent is “subjective and determined by reference to the complainant’s subjective internal state of mind towards the touching, at the time it occurred”: R. v. Ewanchuk, 1999 CanLII 711 (SCC), [1999] 1 S.C.R. 330, at para. 26. The appellant could not provide direct evidence about the complainant’s subjective thoughts. . R. v. Quinn ['vitiated' consent]
In R. v. Quinn (Ont CA, 2025) the Ontario Court of Appeal dismissed a criminal appeal, here from "a conviction for sexual assault" where the sole issue was consent.
Here the court comments on an obiter issue of 'vitiated' consent and "abuse of a position of trust and authority":[17] The fourth ground of appeal concerns the trial judge’s alternative finding that even if there had been consent, it would have been vitiated as it was induced by a misuse of a position of trust or authority: Criminal Code, s. 273.1(2)(c). The appellant’s quarrel with this finding is derivative of his other appeal grounds, rather than an assertion of a freestanding error. Given that the other grounds fail, this ground necessarily fails.
[18] In oral argument the appellant raised a concern about the breadth of the implications of the trial judge’s analysis of s. 273.1(2)(c). The trial judge’s analysis was obiter, given her finding that there was no consent. Nothing in her reasons should be taken as detracting from the leading authorities on the question of vitiated consent due to abuse of a position of trust and authority, such as R. v. G.F., 2021 SCC 20, [2021] 1 S.C.R. 801, at paras. 35-36; and R. v. Snelgrove, 2018 NLCA 59, aff’d 2019 SCC 16 (CanLII), [2019] 2 SCR 98.
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