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CRIMINAL CODE OFFENCES - Offences against person and reputation - Assaults - Sexual assault - Consent - Honest but mistaken belief

Monday, November 13, 2017 @ 7:57 AM  


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Appeal by the accused, Orwin, from a conviction and sentence for sexual assault. The accused, age 23, and the complainant, age 18, had a short-term casual relationship. The complainant spent an evening with the plaintiff prior to an impending move from the province to attend school. They shared a bed and no sexual activity occurred. The following morning, the accused offered to give the complainant a massage to alleviate stress related to the complainant's impending move. The complainant agreed. The parties gave divergent accounts of what transpired. The complainant alleged that the accused engaged in sexual touching and anal intercourse without her consent. She sent the accused a text message the following day to which the accused respondent, stating, “I feel as though I raped you.” The complainant reported the matter to police that day. At trial, the accused advanced a defence of consent, with the alternative defence of an honest but mistaken belief of consent based on the complainant's physical reaction to his advances and their sexual history. The accused claimed his post-incident communications with the complainant reflected empathy rather than guilt. The accused was convicted and sentenced to a custodial term of two years less one day plus 12 months' probation. The accused appealed.

HELD: Appeal dismissed. The accused's evidence in support of the defence of an honest but mistaken belief in consent invited impermissible speculation and was at odds with his subsequent communications acknowledging wrongdoing. The evidence did not ground a denial of mens rea when considered individually or cumulatively. Evidence of past consent could not support a claim of mistaken belief in consent. At best, the evidence relied on by the accused went to the complainant's credibility rather than the reliability of her testimony denying consent. The complainant's account was one of unmistakable resistance to the impugned activity. The trial judge did not apply an uneven level of scrutiny in assessing the parties' testimony and credibility. Any misapprehension of the evidence was not material to the verdict. The trial judge accurately identified the appropriate range of sentence for the accused and his offence and imposed a sentence at the low end of that range. The trial judge paid appropriate heed to the accused's status as a youthful first offender, his rehabilitative prospects, and the principle of parity. To the extent the judge erred in characterizing the matter as spousal abuse, it did not result in a sentence that was demonstrably unfit given the existence of an aggravating breach of trust. Sentence: Two years less one day’s imprisonment; 12 months' probation.

R. v. Orwin, [2017] O.J. No. 5663, Ontario Court of Appeal, D. Watt, G.J. Epstein and D.M. Brown JJ.A., November 2, 2017. Digest No. TLD-November132017001