Case information

Criminal law — Evidence — Assessment — Sexual assault — Defences — Trial judge committing errors in assessing evidence of offence and defence of honest but mistaken belief in consent — Whether the principles in R. v. Villaroman, 2016 SCC 33, apply to the review of factual inferences that pertain to a person’s subjective mental state — Whether the majority of the Court of Appeal properly applied Villaroman — Whether the Court of Appeal erred in substituting an acquittal — Whether the Court of Appeal should have ordered a new trial.

Case summaries are prepared by the Office of the Registrar of the Supreme Court of Canada (Law Branch). Please note that summaries are not provided to the Judges of the Court. They are placed on the Court file and website for information purposes only.

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A bar owner drove one of his clients, the complainant, home after the bar closed. On the way home, the bar owner and the complainant had unprotected penetrative intercourse. At trial, the bar owner testified that he believed that the complainant had consented. The complainant testified that she had minimal recollection of the drive. The trial judge inferred from the evidence that the complainant lacked capacity to consent to the sexual activity. The bar owner was convicted of sexual assault.

The Court of Appeal unanimously agreed that the trial judge erred in the assessment of the bar owner’s evidence and erred in relying on myths and stereotypes in her reasons. However, the Court of Appeal was divided on the issue of remedy. The evidence of the complainant’s capacity to consent was circumstantial. The majority concluded that the application of Villaroman principles to the circumstantial evidence permitted an inference inconsistent with guilt, and also that there was no legally admissible evidence at trial that would permit a properly instructed trier of fact to convict the bar owner. In dissent, Tholl J.A. concluded that a reasonably instructed trier of fact could have found the bar owner guilty. Accordingly, Tholl J.A. would have ordered a new trial.