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Criminal - Sexual Offences - General. R. v. Trowbridge
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 waxes large on the purposes of criminal law and sex, here addressing unique concerns over strangulation as a BDSM practice:[144] It is open to Parliament, as it has done on many prior occasions, to address the vitiation of consent in the context of sexual activity. But Parliament has chosen silence when it comes to the vitiation of consent to sexual activity that results in bodily harm. Accordingly, the common law has had to step in, looking to various values that course through sexual assault law, including the protection of sexual autonomy, bodily integrity, and human dignity.
[145] There can be no reasonable dispute that sexual autonomy has social utility and must remain central to any discussion about the vitiation of consent. After all, sexual activity is a “positive source of human expression, fulfilment and pleasure”: R. v. Labaye, 2005 SCC 80, [2005] 3 S.C.R. 728, at para. 48.
[146] Nor is there any reasonable dispute that exercises of sexual autonomy are as varied as the human condition. We agree with what the parties accept on appeal and what the caselaw and literature supports: that a sizable part of the population engages in consensual experiences that include a mixture of pleasure and pain. Yet, from time-to-time, those “consensual” sexual interactions can result in bodily harm, serious or grave bodily harm, wounding, maiming, disfiguring, endangerment of life, and even death. The question is at what point along that spectrum the criminal law should insert itself.
[147] Although we must respect and protect sexual autonomy, we must also seek to protect physical integrity and human dignity, including in situations that leave individuals vulnerable to the risk of sexual violence.
[148] Sexual activity usually takes place in private, often in the privacy of domestic living. It may also take place in the shadows of society. These settings have proven ripe for sexual violence, particularly against women and girls and other vulnerable groups. As the Court of Appeal of Alberta recognized in Barton No. 2, it is undisputed that the disproportionate impact of sexual violence falls on women, Indigenous people, people with disabilities, members of the LGBT2Q+ community, and other vulnerable groups: Barton No. 2, at para. 191, citing R. v. Friesen, 2020 SCC 9, [2020] 1 S.C.R. 424, at paras. 68, 70-73.
[149] In some cases, sexual violence may result in death. In homicide cases involving sexual violence, the victim – most often a woman or member of another vulnerable group – is denied a voice in the courtroom, one that may well have said, “I didn’t consent to that”. In such cases, the accused will often be the only person who can testify about what is said to have occurred, leaving the trier of fact with a narrative about the deceased, which may include what is said to be her prior sexual history. This can look like, and indeed constitute, victim blaming.
[150] In the end, we must strive to find the right balance between protecting a wide variety of consensual sexual practices, including varied BDSM practices, all the while ensuring that the defence of such practices does not turn into a weapon to further violate women and other vulnerable groups.
[151] Before explaining how the balance should be struck, we pause to consider concerns about strangulation and legislative action that has been taken in response to such concerns. We do so because strangulation was the mechanism of death in this case and because it raises particular concern.
c. Special concerns about strangulation
[152] There are a troubling number of cases where the Crown claims that the deceased did not consent to the sexual activity that killed them and the accused claims that the deceased died accidentally during consensual sexual activity gone wrong. In other words, the accused advances what some have called a “rough sex” or “sex games gone wrong [“SGGW”]” defence. Many such cases involve death by strangulation: see e.g., R. v. Simpson, 2024 BCSC 1800; R. v. Garnier, 2018 NSSC 196, convictions aff’d, 2020 NSCA 52, 392 C.C.C. (3d) 304; R. v. Guenther, 2017 ABCA 205; R. c. Baril, 2012 ABQB 428; R. c. Deschatelets, 2013 QCCQ 1948, aff’d 2015 QCCA 514; R. v. Liu (2004), 2004 CanLII 34061 (ON CA), 190 C.C.C. (3d) 233 (Ont. C.A.); R. v. Mcilwaine (1996), 1996 CanLII 5884 (QC CA), 111 C.C.C. (3d) 426 (Que. C.A.).
[153] Although some may consider strangulation a BDSM practice, there appears to be a real question as to whether that is the case. In Ashi, at para. 51, the application judge referred to expert evidence about BDSM that suggests that actual “choking” is not a legitimate BDSM practice because of its inherent dangerousness:
There are also practices that get labelled as BDSM but are not. For example, Dr. Kleinplatz testified that there is [a] trend documented in the United States where adolescents choke one another during sexual activity. They may have seen choking in pornography online. Dr. Kleinplatz testified that this is a hazardous activity, which can cause brain damage or even death and is not part of BDSM. [Emphasis added.]
[154] The Ashi decision goes on to note that the expert emphasized that, although placing pressure on a person’s Adam’s Apple could give a “sensation of air being restricted”, which for some may be “erotic”, it does not actually constrain the airway and so, unlike strangulation, is safe: at para. 51.
[155] In contrast, strangulation involves the external compression of the neck, which can restrict the airway, as well as interfere with oxygenated blood flowing to the brain and deoxygenated blood flowing from the brain: Bichard et al., at p. 1166. As the expert pathologist noted in this case, the human head is like “an island” with blood flowing to it through the carotid arteries and flowing out of it through the jugular veins. It is a complex causeway of arteries, vessels, and veins, which carry oxygen in the blood to the brain and then back out again. When those arteries or veins become occluded, blood carrying oxygen is prevented from entering the brain and deoxygenated blood is prevented from leaving the brain.[10] According to the pathologist in this case, depending upon whether there is partial or full occlusion of the arteries or veins, death can ensue very quickly.
[156] There can be no reasonable dispute that strangulation is an extremely dangerous activity. Yet there is a concerning normalization of strangulation during sexual activity, especially the strangulation of women, a normalization which ignores the serious risks: Bichard et al., at pp. 1184-85; Sheehy and Grant, at p. 653. Strangulation is no less dangerous just because it accompanies sexual activity.
[157] Concerns about these and related issues led to the creation of the advocacy group “We Can’t Consent to This” (WCCTT) in the United Kingdom. The WCCTT was formed in response to the increasing number of women and girls killed or injured by violence, many by strangulation, and the accused’s reliance on the “rough sex” or SGGW defence. The WCCTT was key in advocating for legislative change.
[158] In response to the public outcry, the U.K. Parliament passed legislation addressing vitiation of consent in the context of strangulation: Domestic Abuse Act 2021 (U.K.), s. 70; see also Hannah Bows and Jonathan Herring, “Getting Away With Murder? A Review of the ‘Rough Sex Defence’” (2020) 84:6 J. Crim. L. 525, at p. 527.
[159] Here, in Canada, Parliament has also shown an increasing concern about strangulation. For instance, in 1972, Parliament made it a crime to overcome resistance to the commission of an offence by way of choking, suffocating or strangling another person: Criminal Code, s. 246(a). In 2019, Parliament added s. 272(1)(c.1) to the Criminal Code, making choking, suffocating and strangling a separate heightened form of sexual assault.[11] In placing choking, suffocating, and strangling in its own category, and thereby removing it from the catch-all of bodily harm, Parliament has underlined the serious danger involved in this activity. The most recent indication of Parliament’s heightened concern over strangulation is the new statutory approach to bail, which imposes a reverse onus where an allegation of choking, suffocating or strangling is made in the context of an alleged sexual assault: Criminal Code, s. 515(6)(a)(ix). These legislative changes demonstrate Parliament’s increased concern about strangulation in the context of sexual activity. . R. v. R.S.
In R. v. R.S. (Ont CA, 2025) the Ontario Court of Appeal dismissed a criminal appeal, here brought against "convictions for sexually assaulting and sexually interfering with his stepdaughter".
The court considers 'absence of motive to fabricate', here as a credibility factor:[1] .... He argues that the trial judge erred in finding a proven absence of motive to fabricate or, in the alternative, if she found there was an absence of evidence of a motive to fabricate, that she improperly used it to bolster the complainant’s credibility. ....
....
[3] We begin by noting that the trial judge rejected the appellant’s submission that the complainant had a specific motive to fabricate (i.e., punish him for stealing from her mother and for “ruining their family”). The trial judge found that the single thread of motive alleged by the appellant could not logically connect each of the disclosures in this case, one of which occurred before the family breakdown and another where, after disclosing the abuse to her mother, the complainant asked that nothing be done about it.
[4] The appellant argues that the trial judge went beyond finding an absence of evidence of a motive to fabricate and, in effect, impermissibly found a proven absence of a motive to fabricate.
[5] In our view, the trial judge did not find a proven absence of motive to fabricate; she found that there was no single motive that could explain all of the complainant’s disclosures, which was available to her.
[6] Nor did the trial judge improperly consider the absence of evidence of a motive to fabricate as part of her credibility assessment. The risk that arises in cases like this is that a trier of fact will give undue weight to the absence of evidence of a motive to fabricate or move directly from that finding to a conclusion that the complainant is telling the truth: R. v. R.K., 2023 ONCA 653, at para. 45. Although trial judges “must consider issues relating to motive to fabricate with care”, they are entitled to “consider an absence of evidence of a motive to fabricate, in the context of the evidence as a whole, as a factor relevant to credibility”: R. v. Gerrard, 2022 SCC 13, [2022] 1 S.C.R. 279, at para. 4; R. v. Polemidiotis, 2024 ONCA 905, 174 O.R. (3d) 359, at para. 59. That is what the trial judge did in this case. She found that the complainant did not fabricate the allegations of abuse in order to punish the appellant and, to the extent she took this into account when assessing the complainant’s credibility, she did not give it undue weight. It was just one of many factors she considered.
[7] The appellant argues that the fact the trial judge considered other factors in her assessment of the complainant’s credibility is not sufficient to demonstrate that the finding was not given undue weight. The underlying concern raised by the appellant is that the absence of evidence of motive to fabricate is not determinative of the truth of the complainant’s evidence because of the possibility of a hidden motive: R. v. Ignacio, 2021 ONCA 69, at para. 41. According to the appellant, the necessary implication of finding “no single motive” is that that the trial judge found there could have been no hidden motive.
[8] We reject this argument. Read in context, the trial judge’s reasons did not have the effect of excluding the possibility of a hidden motive. Nor was the trial judge obligated to instruct herself on the logical possibility of a hidden motive to be able to rely on the absence of evidence of motive to fabricate, among other factors, in concluding that the complainant was credible. The trial judge’s assessment of other factors in this case did not amount to a mere technicality to satisfy the legal test as the appellant suggests. . R. v. V. K.
In R. v. V. K. (Ont CA, 2024) the Ontario Court of Appeal dismissed a defendant's criminal appeal, this of being "found guilty by a jury on three counts of sexual assault".
Here the court notes that "whether conduct is of a sexual nature is objective":[20] The test to determine whether conduct is of a sexual nature is objective. The question to ask is: “viewed in the light of all the circumstances, is the sexual or carnal context of the assault visible to a reasonable observer?”: R. v. Chase, 1987 CanLII 23 (SCC), [1987] 2 S.C.R. 293, at para. 11.
[21] The appellant argues that because M.D. conceded that she did not view what the appellant did as sexual in nature, it was not reasonable for the jury to view it that way. However, M.D.’s impressions are not determinative. It is important to place her testimony in its proper context, most notably the successful similar fact application, which permitted the jury to use the similarities across the counts when considering whether the unwanted massages were of a sexual nature. M.D.’s testimony that the appellant would massage her against her wishes while they were alone in the restaurant, when considered together with the evidence relating to the other counts, meant that it was open to the jury to find that the touching was sexual.
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