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Criminal - Sexual Offences - Consent (4). R. v. Trowbridge [jury charge re vitiation]
In R. v. Trowbridge (Ont CA, 2026) the Ontario Court of Appeal (five judge panel) allowed a Crown criminal appeal, here brought against an "acquittal for first degree murder in relation to the death of his common law spouse".
The court considers any trial judge's requirement to charge the jury on issues of vitiated sexual consent, here where the defendant argued BDSM gone wrong (ie. a defence of 'accident'):[87] In our view, there is nothing in the jury charge that directly or functionally provided the jury with instructions on how to approach the question of vitiated consent. To the contrary, read as a whole, the charge left the jury with the clear impression that if they believed that Ms. VanHuizen consented to the sexual activity in question, or if they had a reasonable doubt as to whether she did not consent, they had no choice but to acquit the respondent. The jury was never instructed on the tipping point where consensual sexual activity can constitute an unlawful act. Therefore, we do not accept the suggestion that, despite the ruling to the contrary, the jury effectively received a Zhao instruction.
[88] We also disagree with the suggestion that it defies credulity that the same jury that found that what happened was an “accident” would also find that the respondent intended to cause the deceased bodily harm, such that any consent that may have been given would be vitiated in the circumstances. Respectfully, this argument is at odds with what we mean when we refer to an “accident” in criminal law.
[89] Peter Sankoff has referred to the defence of “accident” as a concept that is “at best unnecessary and at worst misleading”: Peter Sankoff, Professor Sankoff’s Guide to Criminal Defences, 2nd ed., (Edmonton: CDE Publishing, 2026), at p. 88. We agree.
[90] In criminal law, the defence of “accident” is a denial that the accused acted (a) with volition (denying the actus reus) or (b) with the requisite intention (denying the mens rea): Barton No. 1, at para. 186. In other words, the claim of “accident” is really nothing more than a way to characterize the consequences of something that is said to have been done without volition or without intention: see Sankoff, at p. 88; see also R. v. Parris, 2013 ONCA 515, 300 C.C.C. (3d) 41, at para. 107. In short, it is a label given to the consequences of an alleged unlawful act where the Crown fails to prove the essential elements of the offence.
[91] In this case, characterizing the jury’s verdict as a finding of an accidental death does not assist the respondent because that finding stems directly from the established legal error – the failure to instruct the jury in accordance with Zhao. As already explained, had the jury been properly instructed, they may well have concluded that the second essential element of murder was proven by way of the unlawful act of sexual assault causing bodily harm. The unlawful act included the act of strangulation that resulted in death and a reasonable person in the respondent’s situation would realize that the unlawful act would likely put another person at risk of bodily harm. It can therefore be said to a reasonable degree of certainty that the verdict of acquittal on manslaughter would not necessarily have been the same had the error not occurred: R. v. Javanmardi, 2019 SCC 54, [2019] 4 S.C.R. 3, at paras. 25-31; R. v. Creighton, 1993 CanLII 61 (SCC), [1993] 3 S.C.R. 3, at pp. 42-45; R. v. DeSousa, 1992 CanLII 80 (SCC), [1992] 2 S.C.R. 944, at pp. 959, 961-62.
[92] In our view, the same cannot be said when it comes to murder.
[93] We say this because we know from the outright acquittal in this case that the jury rejected the Crown’s core theory, that this was a violent sexual attack and intentional murder. Importantly, the rejection of that theory – rooted in an allegation of non-consent – is left untainted by the failure to give a Zhao instruction, an instruction that has nothing to do with the absence of subjective consent.
[94] Accordingly, we are left to consider, in the concrete reality of this case, where the Crown failed to prove non-consent, whether it can be said to a reasonable degree of certainty, that the verdict on first degree murder would not necessarily have been the same had the error not occurred. In our view, this standard has not been met.
[95] For this jury to have reached a verdict of guilty on first degree murder, not only would they have had to find the unlawful act of sexual assault causing bodily harm predicated on the vitiation of consent, but they would also have had to find beyond a reasonable doubt that the respondent had the intention for murder: either the intention to kill Ms. VanHuizen or the intention to cause her bodily harm that he knew was “likely” to result in her death and being reckless as to whether death ensued: Criminal Code, ss. 229(a)(i)-(ii). Although we do not rule out the possibility that the intention for murder could accompany an unlawful act of sexual assault causing bodily harm predicated on the vitiation of consent, we find that the Crown has failed to meet its heavy burden in this case.
[96] In our view, the Crown has failed to establish, to the necessary reasonable degree of certainty, that the verdict of acquittal on murder would not necessarily have been the same had the error not occurred. In saying this, we have specific regard to the fact that this jury, at a minimum, had a reasonable doubt as to whether this was non-consensual sexual activity. In light of the jury’s finding that, at a minimum, this could have been consensual activity, it is difficult to understand how the same jury, in the very specific circumstances of this case, would have also found that the respondent intended to kill the deceased or knew that it was “likely” that his actions would result in her death. It simply cannot be said that the verdict of acquittal on murder would not necessarily have been the same had the error not occurred: Hodgson, at para. 36.
[97] Therefore, in allowing the appeal we would return this matter to trial only on the lesser and included offence of manslaughter.
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