Canada Case Law

Bonnis v. Clark

Court

Supreme Court of British Columbia

On the balance of probabilities the plaintiff lacked capacity to consent to the sexual activity due to intoxication (alcohol induced anterograde amnesia), but the defendant honestly and reasonably believed she was consenting; consequently the defendant established the reasonable belief defence and is not liable in civil sexual battery. Statements by the plaintiff that the defendant touched her sexually without consent are substantially true (truth defence), statements asserting he had sex with her while she was unconscious were not true but were protected by qualified privilege in the context…

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• Consent
• Capacity to consent
• Intoxication and blackouts
• Reasonable belief in consent
• Qualified privilege
• Truth defence

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R. v. Saltel

Court

Nova Scotia Court of Appeal

The Crown failed to demonstrate any legal error: the record did not support a finding that the complainant was asleep or incapable of consenting, the trial judge's finding of reasonable doubt as to consent was supported by the evidence and beyond appellate factual review, and the judge's reasons, though brief, provided an intelligible basis for the acquittal; accordingly the appeal was dismissed.

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• Consent
• Capacity to consent
• Sufficiency of reasons
• Standard of review
• Crown appeal against acquittal

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R. v. Rioux

Court

Supreme Court of Canada

The Supreme Court dismissed the appeal in a sexual assault case, holding that the trial judge erred by mishandling consent evidence and circumstantial evidence.

• Consent
• Capacity to consent
• Circumstantial evidence
• Actus reus
• Mens rea
• Crown appeal from acquittal

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Jawadi v. Maerov

Court

Court of Appeal for Ontario

The Ontario Court of Appeal dismissed an appeal challenging an incapacity finding and rejected the claim that fresh rights advice was required under the HCCA.

• Capacity to consent
• Rights advice
• Statutory interpretation
• Tribunal review
• Regulatory interpretation
• Capacity-to-consent

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R. v. Charlebois

Court

Supreme Court of British Columbia

The court convicted Dalton Charlebois of sexual assault, finding the complainant did not consent, was asleep, and that his account was not credible.

• Sexual assault
• Consent
• Capacity to consent
• Mistake of fact (honest but mistaken belief)
• Credibility assessment
• Admissibility of prior sexual activity (s.276)

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T.B. v. MS Acadia Ltd.

Court

Nova Scotia Small Claims Court

The appeal was allowed because the DR5 was not a valid mutual agreement under s.10AB(1): the tenant did not voluntarily and knowledgeably consent to termination, no consideration was given, the landlord did not prove repairs required a building permit, and the tenant repudiated the agreement within a reasonable time once she had full knowledge.

Source excerpt

• Termination of tenancy
• Consent to agreement
• Capacity to consent
• Repudiation
• Repairs and building permits

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R. v. A.R.

Court

Supreme Court of British Columbia

The Supreme Court of British Columbia acquitted A.R. of sexual assault after finding reasonable doubt, accepting his account of consensual oral sex and rejecting incapacity and DNA inferences.

• Consent
• Capacity to consent
• Reasonable doubt
• Honest but mistaken belief in communicated consent
• Sexual history evidence (s.276/278)
• Publication ban (s.486.4)

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R. v. Kwon

Court

Supreme Court of Canada

The Supreme Court of Canada allowed the Crown’s appeal in a sexual assault case and ordered a new trial, finding the Court of Appeal’s acquittal was not the proper remedy.

• Sexual assault
• Consent
• Capacity to consent
• Circumstantial evidence
• Honest but mistaken belief in consent
• Stereotypical reasoning

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Naus v. Kennedy

Court

Court of Appeal for Ontario

Sections 15(1.1)(a),(b) and (c) must be read together so that the clinical improvement must be demonstrated from previously received treatment (i.e. on a prior hospitalization); because there was no evidence of prior successful antipsychotic treatment, the community treatment order was improperly issued and must be quashed.

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• Community treatment orders
• Capacity to consent
• Mootness
• Interpretation of s.15(1.1) of the mental health act
• Consent and capacity board review

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Baker v. Borovsky et al.

Court

Supreme Court of Nova Scotia

The medical records from May 17, 2016 to May 17, 2017 are relevant to issues of capacity and informed consent central to the applicant's claim that the attorney breached statutory duties; privacy interests are outweighed by the need for disclosure subject to limits and procedural safeguards (executor access request, counsel review, Affidavit Disclosing Documents, description of withheld/redacted categories, and motion procedure to challenge withholding).

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• Medical records disclosure
• Capacity to consent
• Attorney fiduciary duties
• Relevance for discovery
• Joint tenancy/property transfer

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