Crown’s successful appeal hinges on including bystander as assailant in sex assault

By John L. Hill ·

Law360 Canada (January 12, 2024, 9:54 AM EST) --
John Hill
It was a teenage party with lots of drinking. Sexual assault was alleged to have been committed by Kylie, an over-18 man and T.L., a 17-year-old male. Two incidents that led to charges under the Youth Criminal Justice Act against T.L. were recounted. 

The first occurrence involved some partygoers witnessing the three young people together on a bed. It could not be determined if the complainant was so intoxicated as to be unable to give consent. One of the witnesses said that T.L. did nothing of concern, and the complainant had no memory of this incident. The trial judge concluded that there was insufficient evidence that sexual misconduct had taken place.

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The second incident was more problematic. This time, the judge hearing the case in the Ontario Court of Justice found that the complainant was highly intoxicated. According to T.L., Kylie returned to the bedroom. T.L. asked the complainant if she was awake, but he received no response. Kylie told T.L. that she had given permission earlier for a desire to engage in sexual activity, and then Kylie proceeded to perform oral sex on the complainant. T.L. remained present and kissed the complainant on the forehead and stroked her arm while he masturbated. The complainant woke up to find Kylie performing oral sex and T.L. with his finger in her vagina, an allegation that T.L. denied. She immediately dressed, ran downstairs, ordered Kylie and T.L. to leave and called the police.

The trial judge labeled T.L.’s actions in kissing and touching the complainant “reprehensible and despicable” but could not find that T.L. was a party to the sexual assault committed by Kylie. The trial judge found that any sexual conduct occurred in a dark room; the complainant was drunk and considered T.L.’s denial of sexual touching. That led to reasonable doubt about T.L.’s complicity in a sexual assault. He was acquitted of the charge.

The Crown appealed. The Appeal Court handed down its decision on Jan. 8, 2024 (R. v. T.L. 2024 ONCA 10). The Crown sought a new trial, arguing that the trial judge erred in three ways: (1) that the judge failed to recognize that the complainant’s intoxication negated any consent concerning the first incident; (2) that T.L.’s admission of touching the complainant’s arm, kissing her forehead and masturbating in her presence while incapable of consenting constituted sexual assault; and (3) that T.L. was a party to the sexual assault carried out by Kylie.

The Appeal Court held that the trial judge showed no error in her reasoning on the first incident. However, a reversible legal error resulted from her analysis of the second incident. The court indicated that the law, as now interpreted in R. v. Dinardo 2014 ONCA 758, expands the scope of what is entailed in a sexual assault. In Dinardo, there was a submission that the touching of a complainant with a massage tool was purely therapeutic and consensual. Further, there was no evidence of the complainant’s sexual integrity being violated. The court held in Dinardo that there was no merit in that argument. A reasonable observer, considering all the circumstances, would find that the contact was sexual and that the complainant’s sexual integrity had been violated without consent.

The trial judge also failed to provide reasons why she considered T.L. not to be a party to an offence being carried out by Kylie. The Crown’s position was that T.L. was a co-perpetrator of the sexual assault under s. 21(1)(a) of the Criminal Code and that T.L. aided and abetted Kylie in the sexual assault. There was some evidence that T.L. was not a simple bystander. He could be seen as encouraging and assisting Kylie in carrying out his sexual assault of the complainant.

These errors were matters of law that justified the acquittal being set aside. The issue was ordered to be remitted for a new trial.

Being considered a party to sexual assault is not unprecedented in Ontario. There is a good discussion of the concept in the Ontario case of R. v. E.M. 2020 ONSC 6356. It seems that our criminal courts have recognized that sexual assault and condonation of it is dehumanizing and must be judicially denounced. Jail time has been meted out to people who aid and abet the practice. To alter John Milton’s famous line, “They also serve [time] who only stand and wait.”

(Editor's Note: The original version of this story has been altered to remove offensive language.)

John L. Hill practised and taught prison law until his retirement. He holds a J.D. from Queen’s and LL.M. in constitutional law from Osgoode Hall. He is also the author of Pine Box Parole: Terry Fitzsimmons and the Quest to End Solitary Confinement (Durvile & UpRoute Books). Contact him at johnlornehill@hotmail.com.

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