R. v. D.G.A.
- Citation
- 2020 BCSC 1948
- Status
- Judgment
- Jurisdiction
- Canada
- Court
- Supreme Court of British Columbia
- Decision
- 9 December 2020
- Posture
- Criminal Appeal / Appeal From Conviction and Sentence (provincial Court to Supreme Court of British Columbia)
- Language
- English
More details
- Court
- Supreme Court of British Columbia
- Decision
- 9 December 2020
- Posture
- Criminal Appeal / Appeal From Conviction and Sentence (provincial Court to Supreme Court of British Columbia)
- Language
- English
On this page
Professional case brief
Research organized from the available case record
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. BuchananD.G.A.
Appellant (accused) Counsel: J. van der WalleAmounts and remedies
- Blood Alcohol Concentration (mg%): 195
- Conditional Sentence Order Length (months): 18
03
Procedural history
Posture
Criminal Appeal / Appeal From Conviction and Sentence (provincial Court to Supreme Court of British Columbia)
04
Questions and positions
Legal issues
- 01
Whether trial judge misapprehended material evidence in credibility findings
- 02
Whether trial judge relied on impermissible assumptions or stereotypes in credibility analysis
- 03
Whether trial judge erred in law in finding complainant lacked capacity to consent due to intoxication
- 04
Whether trial judge improperly relied on toxicology report for truth of its contents
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
Legal principles
- 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
- 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
- 03
R. v. Murphy; R. v. J.A.A.
Post-event demeanour of complainant can be admissible circumstantial corroboration if sufficiently contemporaneous and probative
- 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
- 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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