Show Notes
Jordan Bilinski was acquitted by a jury of sexual assault in Alberta. The complainant, his ex-girlfriend, had invited him over for sex on the express condition that he wear a condom. The evidence was that they had three sexual encounters that evening: oral sex without a condom, vaginal intercourse with a condom followed by ejaculation on her back, and then a final act of intercourse after she again insisted on condom use and put on a new condom. The allegation was that, during that final act, Bilinski removed the condom and ejaculated in her vagina. In his police interview, he admitted she had required condom use, admitted removing it, and said he did so because “it feels better.”
At trial, Bilinski did not advance honest but mistaken belief in communicated consent. The case therefore turned on the complainant’s credibility and reliability, whether she subjectively consented to sex without a condom, and what the Crown had to prove on mens rea. The trial judge told the jury the Crown had to prove, among other things, that Bilinski knew she did not consent, through actual knowledge, recklessness, or wilful blindness. The jury acquitted.
The Alberta Court of Appeal unanimously found errors in the jury charge. The majority held the judge failed to distinguish properly between subjective consent for actus reus purposes and communicated consent for mens rea purposes, and failed to tell the jury that, if it found non-consent, it should have little difficulty finding mens rea. It ordered a new trial. Justice Feehan dissented on the result, concluding the errors were not shown to have materially affected the acquittal. The appeal went to the Supreme Court of Canada as of right.
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R.B.-C. was convicted of sexual assault. He is an Iranian citizen living in Canada on a post-graduation work permit. But his sentence was not imposed until more than 14 months after his conviction. When it finally was imposed, he received a conditional sentence of two years less a day, followed by probation.
Mr. Cope plead guilty to the aggravated assault of his common law partner. He had a significant criminal record, and a significant history of mental illness. Both he and his partner are Indigenous. The sentencing judge sentenced him to 5 years in custody for the aggravated assault, and eight months of custody for breaching the release orders he was subject to at the time of the aggravated assault on his partner.
The respondent was charged with multiple counts of sexual offences in relation to three separate complainants, and in addition was charged with one count of simple assault. At trial, he was found guilty of the assault, but acquitted of the sexual offences. The trial judge found there was reasonable doubt on whether the acts were for a sexual purpose, and whether there was an exploitative relationship between the parties. The Crown appealed two of the sexual offence counts, arguing that the trial judge erred in excluding images found on a USB of other women, who were mostly clothed or partially clothed, in relation to a sexual fantasy involving magic acts and sawing women in half. The Crown sought to introduce this evidence as a similar fact application per Handy, while the defence argued it was bad character evidence and would result in propensity reasoning. The respondent had asked the complainants if he could use his cardboard saw to pretend to cut them in half, or place it on their abdomen to take a photo.
The two respondents, jointly tried for a number of drug trafficking and related charges, argued that the delay in their case was unreasonable. While both the Crown and Defence agreed at trial that the delay was over the 18-month presumptive Jordan ceiling, the Crown sought to justify the delay by arguing that the complexity of the case necessitated the delay. The trial judge disagreed and stayed the charges. The trial judge found that the delay in the case was not justified as exceptional because of any complexity.
Despite the fact that the trial judge found that the appellant sent sexually explicit material to a minor, the trial judge was left in doubt as to whether (a) the identity of the appellant was made out on the video as an element of the offence, and (b) the specific intent to commit one of the enumerated offences, reasoning that it could have been simply a case of “flirtation”. The appellant was acquitted at trial of transmitting sexually explicit material to a person under the age of 16 for the purpose of facilitating the commission of either a sexual assault or the indecent act of exposing his genital organs to a person under 16 years of age for a sexual purpose.