Canada Case Law

Lees v. Parker

Court

Supreme Court of British Columbia

Plaintiff did not consent to entry or removal of the tree; the trespass was committed by third parties at the direction and for the benefit of the defendant and her partner; defendant knowingly assisted by seeking an arborist and paying the cutter and thus acted in furtherance of a common design, making her a joint tortfeasor. Compensatory damages awarded for restoration ($41,776) and loss of amenity ($10,000); special damages for air conditioning rejected for lack of mitigation and evidentiary support; punitive damages awarded ($10,000) for deterrence and denunciation.

Source excerpt

• Trespass
• Joint tortfeasor
• Consent
• Mistake
• Damages
• Punitive damages

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R. v. Kennedy

Court

Court of Appeal for Ontario

The Ontario Court of Appeal dismissed Charles Kennedy’s appeal from convictions for assault, unlawful confinement and sexual assault, rejecting arguments about consent and delayed reporting.

• Sexual assault
• Assault
• Unlawful confinement
• Consent
• Honest but mistaken belief in consent
• Delayed reporting

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R. v. Houde

Court

Court Martial Appeal Court of Canada

The Court Martial Appeal Court dismissed the appeal, upholding convictions for sexual assault and rejecting language-rights, Jordan, consent, and evidence challenges.

• Right to be tried within a reasonable time (jordan)
• Bilingual trial and language rights
• Consent and knowledge of non-consent in sexual assault
• Private records regime (s.278.92)
• Motive to fabricate
• Admissibility of evidence

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R. v. J.H.C.

Court

Court of Appeal for Ontario

Ontario Court of Appeal dismissed a Crown appeal from acquittals on assault, choking and sexual assault charges, finding no legal error in the trial judge’s reasons.

• Consent
• Communicated consent
• Self-defence
• Adverse inference
• Credibility
• Standard of proof

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Glanz v. Hooker

Court

Supreme Court of British Columbia

Trial judge found plaintiff's accounts internally inconsistent and inherently implausible, and materially contradicted by credible third‑party witnesses (particularly Mendel and Boyetchko) who described prolonged consensual interactions; on balance of probabilities first touching was consensual and second violent battery was not proven; further, even assuming liability, medical evidence did not establish on a balance of probabilities that the alleged second battery caused the claimed concussion/epilepsy; claim therefore dismissed.

Source excerpt

• Assault
• Battery
• Sexual battery
• Consent
• Causation
• Credibility and reliability

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R. v. S.M.

Court

Nova Scotia Court of Appeal

The trial judge erred as a matter of law by conflating a complainant's lack of desire with absence of voluntary agreement and by failing to apply the correct s.273.2 test—namely whether the accused honestly believed in consent and took reasonable steps to ascertain it; accordingly convictions on Counts 1 and 2 were set aside and, because the appellant had served his sentence and a new trial would not be in the interests of justice, a stay of proceedings was ordered.

Source excerpt

• Consent
• Honest but mistaken belief
• Communicated consent
• Reasonable steps to ascertain consent
• Duress and vitiated consent
• Stay of proceedings

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R. v. Clarke

Court

Court of Appeal for Ontario

Ontario Court of Appeal upheld Alex Clarke’s sexual assault conviction, rejecting claims of misapprehended evidence, irrational reasoning, and stereotype-based credibility findings.

• Consent
• Credibility assessment
• Misapprehension of evidence
• Stereotyping and commonsense assumptions
• Honest but mistaken belief in consent
• Remedy: new trial

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R. v. Hu

Court

Supreme Court of British Columbia

The complainant's evidence was found credible and established lack of consent; she submitted to oral sex out of fear of force contrary to s.265(3)(b), vitiating consent and satisfying the actus reus of sexual assault. The accused failed to take reasonable steps to ascertain consent and his testimony did not raise an air of reality for honest but mistaken belief; therefore conviction on Count 1 is required. The Crown did not prove beyond a reasonable doubt that the accused intentionally confined the complainant, so acquittal on Count 2 follows.

Source excerpt

• Sexual assault
• Consent
• Honest but mistaken belief
• Forcible confinement
• Credibility assessment
• Publication ban

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R. v. Densmore

Court

Court of Appeal for Ontario

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.

• Consent at each sexual act
• W.(d.) credibility framework
• Honest but mistaken belief in communicated consent
• Sufficiency of reasons
• Reasonable doubt
• Sexual-assault

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R. v. H.S.

Court

Court of Appeal for Ontario

Ontario Court of Appeal upheld a sexual assault conviction, finding no air of reality to an honest-but-mistaken-belief instruction and no error in the jury charge.

• Consent
• Honest but mistaken belief
• Mens rea
• Jury instructions
• Motive to fabricate
• Prior consistent statement

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