CRIMINAL CODE OFFENCES - Offences against person and reputation - Assaults - Sexual assault – Consent

Law360 Canada (May 14, 2021, 2:40 PM EDT) -- Appeal by the Crown from a decision of the Ontario Court of Appeal that allowed GF and RB’s appeal from their convictions for sexual assault and ordered a new trial. The complainant testified that when she was 16 years old, GF and RB, co-workers of her mother, sexually assaulted her on the last night of a camping trip. She had consumed between eight and 10 shots of alcohol, provided by GF. She testified she passed out in the respondents’ trailer and woke up to find RB performing cunnilingus on her while GF held her down. GF proceeded to have sexual intercourse with her. The complainant testified she resisted and then acquiesced as she felt she did not have any choice. GF testified the complainant was not very intoxicated and that he, RB and the complainant had participated in consensual oral and vaginal intercourse. He indicated he asked the complainant at least seven times for assurances she consented to the sexual activity. The trial judge accepted the complainant’s evidence and found she had not consented to the sexual activity. The Court of Appeal found the trial judge failed to identify the relevant factors when assessing whether intoxication deprived the complainant of her capacity to consent and failed to consider the issue of consent first and separately from the issue of capacity....
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