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Canada Judgment

Supreme Court of British Columbia

R. v. D.G.A.

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Research organized from the available case record

Source document

01

Holding and result

The appeal is dismissed because the trial judge applied the correct legal tests for capacity and consent, his credibility findings were amply supported by multiple independent, evidence‑based reasons and any minor misapprehension was peripheral to the reasoning; the toxicology report was admitted by consent and counsel did not preserve a challenge and in any event the finding of incapacity was supported without the report.

Court disposition

Appeal dismissed; conviction and conditional sentence order upheld

Orders

  • Appeal dismissed
  • Conviction of sexual assault affirmed
  • Conditional sentence order and ancillary orders upheld

02

Material facts

Parties

Regina

Respondent (crown) Counsel: A.J. Buchanan

D.G.A.

Appellant (accused) Counsel: J. van der Walle

Amounts and remedies

  • Blood Alcohol Concentration (mg%): 195
  • Conditional Sentence Order Length (months): 18

03

Procedural history

  1. Posture

    Criminal Appeal / Appeal From Conviction and Sentence (provincial Court to Supreme Court of British Columbia)

04

Questions and positions

Legal issues

Party arguments

Applicant
Appellant (D.G.A.) argued the trial judge misapprehended critical evidence; relied on assumptions and stereotypes in credibility findings; applied an incorrect, overly stringent test for capacity to consent by conflating capacity with specific intent standards; and impermissibly relied on a toxicology report without proper evidentiary foundation. He submitted that, if successful, a stay of proceedings should be ordered given time served.
Respondent
Crown submitted the trial judge applied the correct legal tests, his credibility and capacity findings were grounded in the evidence and entitled to deference, any misapprehension was peripheral and non‑material, the toxicology report was admitted by consent and counsel did not object, and the conviction and sentence should be upheld.

05

Court’s reasoning

  1. 01

    R. v. T.S.; R. v. Al-Rawi

    Test for capacity to consent requires minimal cognitive functioning to appreciate nature and quality of sexual activity, know identity of partner, or understand ability to agree or refuse

  2. 02

    R. v. Morrissey; R. v. Lohrer; R. v. Bird

    Trial judge's credibility findings attract high deference; misapprehension must be material and essential to reasoning to warrant miscarriage of justice

  3. 03

    R. v. Murphy; R. v. J.A.A.

    Post-event demeanour of complainant can be admissible circumstantial corroboration if sufficiently contemporaneous and probative

  4. 04

    R. v. Lavallee; R. v. Abbey; authorities on evidentiary foundation and consent (Choudhary; C.(U.))

    Expert opinion or report cannot be weighted for truth unless factual foundation linking sample to person is established, absent counsel's consent or waiver

  5. 05

    Sopinka, Lederman & Bryant; R. v. C.(U.); R. v. Choudhary

    Failure of trial counsel to object to admissibility or to lay foundation ordinarily precludes appellate challenge in absence of incompetent counsel or miscarriage of justice

06

Ratio, limits and disposition

Ratio decidendi

The appeal is dismissed because the trial judge applied the correct legal tests for capacity and consent, his credibility findings were amply supported by multiple independent, evidence‑based reasons and any minor misapprehension was peripheral to the reasoning; the toxicology report was admitted by consent and counsel did not preserve a challenge and in any event the finding of incapacity was supported without the report.

Obiter and limits

  • Trial judges may rely on reasonable common‑sense inferences framed by the evidence, but must avoid speculative stereotypes lacking evidentiary foundation
  • Physiological responsiveness during sexual activity does not automatically negate cognitive incapacity
  • Where counsel knowingly permits admission of documentary or expert material, appellate courts will generally treat those materials as admitted for truth absent a claim of incompetent representation

Court disposition

Appeal dismissed; conviction and conditional sentence order upheld

  • Appeal dismissed
  • Conviction of sexual assault affirmed
  • Conditional sentence order and ancillary orders upheld

Source and reliance status

Supreme Court of British Columbia · 9 December 2020

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Authorities

Authorities used by the court

Cases, legislation, regulations, and constitutional provisions identified in the available record.

R. v. T.S., 2018 ONCJ 903

Case cited

R. v. Al-Rawi, 2018 NSCA 10

Case cited

R. v. Cedeno, 2005 ONCJ 91

Case cited

R. v. W.(D.), [1991] 1 S.C.R. 742

Case cited

R. v. Gagnon, 2006 SCC 17

Case cited

R. v. J.A.A., 2011 SCC 17

Case cited

R. v. Bird, 2013 BCCA 316

Case cited

R. v. Morrissey

Case cited

R. v. Lohrer, 2004 SCC 80

Case cited

R. v. Pilkington, 2019 BCCA 374

Case cited

R. v. C.M.M., 2020 BCCA 56

Case cited

R. v. A.R.D., 2017 ABCA 237

Case cited

R. v. Murphy, [1977] 2 S.C.R. 603

Case cited

R. v. Woollam, 2012 ONSC 2188

Case cited

R. v. Lavallee, [1990] 1 S.C.R. 852

Case cited

R. v. Abbey, [1982] 2 S.C.R. 24

Case cited

R. v. Choudhary, 2008 ABCA 35

Case cited

R. v. C.(U.), 2009 ONCA 367

Case cited

Criminal Code s.486.4(1)

Legislation

Legislation referenced in the available case record.

Criminal Code s.273.1

Legislation

Legislation referenced in the available case record.

Criminal Code s.655

Legislation

Legislation referenced in the available case record.

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