|
Criminal - Sexual Offences - Consent (3). R. v. Blanco [exceptions to sex consent]
In R. v. Blanco (Ont CA, 2026) the Ontario Court of Appeal considers a statutory exception to sexual consent [CCC 273.1(2)(c) ("the accused induces the complainant to engage in the activity by abusing a position of trust, power or authority")]:2. The summary conviction appeal judge erred in interpreting s. 273.1(2)(c), and in holding that the trial judge’s reasons on this issue were insufficient
[36] The Crown’s second ground of appeal is that the summary conviction appeal judge erred in requiring (1) consent to invoke s. 273.1(2)(c), as the provision may also apply where there is reasonable doubt about the absence of consent; and (2) direct evidence of inducement, as appellate authority provides that inducement can be inferred from the circumstances. Section 273.1(2)(c) provides that no consent is obtained if “the accused induces the complainant to engage in the activity by abusing a position of trust, power or authority”.
[37] The purpose of this provision is to protect the vulnerable and preserve the right to freely choose to consent to sexual activity: R. v. Snelgrove, 2019 SCC 16, [2019] 2 S.C.R. 98, at para. 3, citing R. v. Hogg (2000), 2000 CanLII 16865 (ON CA), 148 C.C.C. (3d) 86 (Ont. C.A.), at para. 17.
[38] Section 273.1(2)(c) recognizes that “there may be circumstances where a complainant apparently consents by going along with and participating in sexual activity without objection, but the overall circumstances are such that it cannot be said the complainant truly agreed to it”: R. v. M.S., 2022 BCCA 390, 421 C.C.C. (3d) 391, at para. 37. As such, the provision may apply where there is conflicting evidence on the issue of subjective consent, not just where subjective consent is found as a fact: G.F., at para. 33; and R. v. J.D., 2024 ONCA 286, at para. 4.
[39] Trial judges in sexual assault cases must decide whether the essential elements of the offence have been proven. In s. 273.1(2)(c) cases, the question is whether “the complainant entered into the sexual activity as a result of the accused’s exploitation (or, to put it another way, abuse) of their relationship of trust”: M.S., at para. 38. In other words, did the accused’s abuse of his position of trust induce the complainant to engage in the sexual activity? They do not have to decide that the complainant did consent.
[40] A particularly vulnerable or naïve complainant may not be able to articulate how the dynamics of his or her relationship with the accused influenced their behaviour. In such cases, the fact that an accused’s abuse of a position of trust, power or authority induced the complainant to engage in the sexual activity may be inferred from the circumstances: R. v. Lutoslawski, 2010 ONCA 207, 258 C.C.C. (3d) 1, at para. 13, aff’d 2010 SCC 49 (CanLII), [2010] 3 S.C.R. 60, citing R. v. Makayak, 2004 NUCJ 5, at para. 70.
[41] In Snelgrove, at para. 4, Moldaver J. held that s. 273.1(2)(c) was properly invoked on the facts of that case, as:[I]t would have been open to the jury to conclude that by virtue of abusing his position of trust and authority, the accused took advantage of the complainant, who was highly intoxicated and vulnerable, by using the personal feelings and confidence engendered by their relationship to secure her apparent consent to sexual activity. [Emphasis added.] [42] In this case, the trial judge was satisfied beyond a reasonable doubt that the complainant did not subjectively consent, such that there was no need to consider the issue of vitiation. He went on, however, to hold that “it is difficult to quarrel with the merits of the Crown’s [vitiation] argument in the circumstances of this case” and proceeded to provide the analysis set out above.
[43] The summary conviction appeal judge held that,[F]or s. 273.1(2)(c) to apply, the trial judge was required to find that when the complainant said it was fine, she provided her consent to proceed because she was induced to do so by virtue of the [respondent’s] abuse of his position of trust and authority. In other words, the Crown was required to prove beyond a reasonable doubt that the complainant consented to the sexual activity because the [respondent] induced that consent by virtue of […] his abuse of power and authority” [Emphasis added.] [44] I do not agree. First, s. 273.1(2)(c) requires only that the accused have abused a position of trust in relation to the complainant, and that this abuse induced the complainant to engage in the sexual activity in question: M.S., at para. 38. If these statutory criteria are proved beyond a reasonable doubt, it does not matter whether or not the complainant subjectively consented to the sexual activity, because any consent they might have given would be legally invalid.
[45] Second, it is true that a finding beyond a reasonable doubt of subjective non-consent by the complainant makes unnecessary any inquiry into the vitiation of consent. However, although the trial judge found the complainant did not consent, he provided an alternative foundation for his conclusion on this element of the offence, namely that any subjective consent the complainant may have given, was vitiated by s. 273.1(2)(c).
[46] The trial judge did not expressly state that this was an alternative conclusion but, “[w]here ambiguities in a trial judge’s reasons are open to multiple interpretations, those that are consistent with the presumption of correct application must be preferred over those that suggest error”: G.F., at para. 79.
[47] The trial judge was therefore entitled to address vitiation as an alternative basis for finding that consent had been disproved. The summary conviction appeal judge erred in holding that s. 273.1(2)(c) can only apply where consent is affirmatively found as a fact. In so doing, the summary conviction appeal judge erred in law by misapplying the relevant legal standard.
[48] The summary conviction appeal judge also erred in law in finding the trial judge’s reasons were insufficient because they failed to expressly address how the complainant was “induced” to engage in the sexual activity by the respondent’s abuse of his position of trust.
[49] While I do not agree with the Crown that the summary conviction appeal judge insisted on “direct evidence” of inducement, she erred in law by requiring distinct reasons on this element of s. 273.1(2)(c) in the context of this evidence, the trial judge’s framing of the abuse of trust, and his express adoption of the trial Crown’s argument.
[50] The respondent was a personal support worker in the mental health ward of the hospital, who was, in the words of the trial judge “clearly entrusted with the care and well-being” of the complainant. The complainant was a vulnerable person, an involuntary patient in the mental hospital who was experiencing delusions. The complainant and the respondent had no other relationship. She did not even know his name. In these circumstances and in view of her condition, it is unsurprising that she did not describe how the dynamics of her relationship with the respondent influenced her behaviour or her state of mind.
[51] Moreover, the complainant’s only “engagement” in the sexual activity, on the facts found by the trial judge, was to lie still in her bed while the respondent touched her vagina and licked her breast. As the trial judge found, the respondent’s abuse of his position of trust consisted in his “[taking] advantage of [the complainant’s] silence, passivity and her groggy state to touch her in a sexual manner” (emphasis added).
[52] As in M.S., “the overall circumstances are such that it cannot be said the complainant truly agreed to it”: M.S., at para. 37. It was open to the trial judge to accept the Crown’s argument that any subjective consent the complainant might have experienced was legally ineffective pursuant to s. 273.1(2)(c).
[53] Thus, while the trial judge did not expressly analyze how he found that the complainant was induced to engage in the sexual activity by the respondent’s abuse of his position of trust, he was entitled to accept the Crown’s argument that, having regard to the circumstances, the complainant was induced to engage in the sexual activity by the respondent’s abuse of trust. As a result, the appeal judge erred in law by holding that the trial judge’s reasons were not sufficient to support a finding of guilt based on the vitiation of consent. . R. v. Blanco
In R. v. Blanco (Ont CA, 2026) the Ontario Court of Appeal considers the criminal issue of sexual consent:[28] A conviction for sexual assault requires that the Crown prove beyond a reasonable doubt that the complainant did not consent to the sexual activity. This requires evidence that she did not want the touching to take place when it occurred: R. v. Ewanchuk, 1999 CanLII 711 (SCC), [1999] 1 S.C.R. 330, at paras. 25-27; G.F., at paras. 25-29; and R. v. Kirkpatrick, 2022 SCC 33, [2022] 2 S.C.R. 480, at para. 28. If the Crown proves beyond a reasonable doubt that the complainant did not agree to the sexual activity, a lack of subjective consent and the actus reus of sexual assault are established: G.F., at para. 47.
[29] In Ewanchuk, at paras. 29-30, the Supreme Court held that,While the complainant’s testimony is the only source of direct evidence as to her state of mind, credibility must still be assessed by the trial judge, or jury, in light of all the evidence. It is open to the accused to claim that the complainant’s words and actions, before and during the incident, raise a reasonable doubt against her assertion that she, in her mind, did not want the sexual touching to take place. If, however, as occurred in this case, the trial judge believes the complainant that she subjectively did not consent, the Crown has discharged its obligation to prove the absence of consent.
The complainant’s statement that she did not consent is a matter of credibility to be weighed in light of all the evidence including any ambiguous conduct. The question at this stage is purely one of credibility, and whether the totality of the complainant’s conduct is consistent with her claim of non-consent. The accused’s perception of the complainant’s state of mind is not relevant. That perception only arises when a defence of honest but mistaken belief in consent is raised in the mens rea stage of the inquiry. [Emphasis added.] ....
[32] While the trial judge devoted extensive analysis to the respondent’s claim of honest but mistaken belief, this was no substitute for careful consideration of whether the evidence supported a finding that the complainant did not agree in her own mind to the sexual touching.
[33] The failure to grapple with conflicting evidence on this central issue of consent is a serious error: R. v. Dinardo, 2008 SCC 24, [2008] 1 S.C.R. 788, at paras. 25-26, 31-34. . R. v. J.H.C.
In R. v. J.H.C. (Ont CA, 2026) the Ontario Court of Appeal dismissed a Crown criminal appeal, here brought against "acquittals on counts of assault, choking and sexual assault".
Here the court considers that sexual consent applies to each sexual act:[27] There is no dispute in the law and there is no dispute between the parties that consent is required for separate sexual acts. This is, of course, consistent with s. 273.1(1) of the Criminal Code, which defines consent as the “voluntary agreement of the complainant to engage in the sexual activity in question” (emphasis added). It is also consistent with the evolution of the law, which requires the “conscious agreement of the complainant to engage in every sexual act in a particular encounter”: R. v. J.A., 2011 SCC 28, [2011] 2 S.C.R. 440, at para. 31. . R. v. Densmore
In R. v. Densmore (Ont CA, 2026) the Ontario Court of Appeal dismissed a criminal appeal, this brought against a "conviction for sexual assault following a judge-alone trial".
Here the court considers sexual consent:[22] In this case, I do not accept that the trial judge’s phase-by-phase analysis constitutes legal error. Consent must be assessed in relation to each sexual act. Where an encounter evolves, a trier of fact must thus determine whether subjective consent existed at each phase and whether it was communicated. Further, as the appellant accepts, the order in which the trial judge made his findings is inconsequential as long as he properly applied the principle of reasonable doubt: R. v. J.A., 2011 SCC 28, [2011] 2 S.C.R. 440, at para. 66; Vuradin, at para. 21.
|
