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The Court of Appeal for Ontario dismissed a sexual assault appeal, holding the trial judge properly applied W.(D.), could assess consent by phase, and gave adequate reasons.
The court granted summary dismissal of a medical malpractice and fraud claim, finding no admissible expert evidence, no basis for conspiracy, and valid consent to surgery.
The trial judge erred by failing to address the statutory prerequisite in s.273.2(b) — whether the accused took reasonable steps to ascertain consent — rendering the reasons inadequate; accordingly the acquittals were set aside and a new trial ordered because the record lacks the clarity on credibility and factual findings necessary to enter convictions on appeal.
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The accused was found guilty because the complainant expressly said "no" when asked about sex, did not revoke that non-consent, the accused persisted and continued sexual acts including anal penetration corroborated by DNA, and therefore the accused could not rely on an honest but mistaken belief in consent.
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Court found informed consent was adequate, but held Nurse Marsh and Dr. Freedman negligent in responding to VBAC labour complications and fetal bradycardia.
The Court upheld the trial judge's findings that informed consent was not obtained for the rhizotomy and that a reasonable person in the respondent's circumstances would have declined the procedure if properly informed; the Court further held the awards for general and future economic damages were reasonable and dismissed the appeal.
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Appeal dismissed because the evidence established that serious bodily harm occurred (broken jaw) and that the appellant either vitiated consent by changing the nature of the consensual fist fight (kneeing) or acted recklessly with objectively foreseeable risk of serious bodily harm by delivering hard uppercuts, satisfying the mens rea for assault causing bodily harm.
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The court held that Dr. Battrum impliedly consented to emergency assessment, splinting and transport, so the paramedic’s conduct did not amount to battery.
Although the Crown presented circumstantial evidence from which a trier of fact could infer the accused sabotaged condoms and caused pregnancy, under Cuerrier the Crown also had to prove the fraud exposed the complainant to a significant risk of serious bodily harm; expert evidence and common experience established such risks from pregnancy or abortion were remote ('rare'/'very rare') and the actual harm (a treatable infection) was not serious, therefore the Crown failed to prove the required significant risk and the directed verdict must be allowed (acquittal).
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The court found no battery, but held the surgeon breached the standard of care by proceeding with hysterectomy when the plaintiff still wished to preserve fertility.
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