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CRIMINAL CODE OFFENCES - Overcoming resistance to commission of offence

Thursday, June 18, 2020 @ 5:37 AM  

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Appeal by GV from his convictions for sexual assault, assault and choking. The complainant, who was high school friends with the appellant, testified at trial that the appellant hit her head against a wall before having sexual intercourse with her and that he choked her while doing so. She denied consenting to any sexual activity. The appellant testified that the sexual activity was consensual. He denied hitting the complainant’s head against the wall or choking her. The trial judge found the appellant structured his testimony to meet the allegations. She rejected his evidence because he remembered details of collateral issues but had no recollection of choking the complainant.

HELD: Appeal allowed; new trial ordered. The trial judge erred in law by turning the appellant’s constitutional rights to be present at the hearing, to know the case he had to meet and to make full answer and defence into an evidentiary trap by finding the appellant structured his evidence to respond to the allegations against him. The trial judge erred by misapprehending the evidence of the appellant on the issue of his denial that he choked the complainant when she found he did not remember choking the complainant. As both reasons the trial judge gave for rejecting the appellant’s evidence were tainted by error, there was no foundation to sustain that finding.

R. v. G.V., [2020] O.J. No. 2163, Ontario Court of Appeal, K.N. Feldman, M.H. Tulloch and M. Jamal JJ.A., May 14, 2020. Digest No. TLD-June152020008