Reasons for judgment — Fish J. (Major, Bastarache, Binnie, LeBel, Deschamps and Abella JJ. concurring)
Fish J. — The appellant was acquitted at trial on two counts of sexual assault. Both acquittals were set aside by the Court of Appeal for Ontario on the following grounds:
. . . on the admitted facts and factual findings of the trial judge, consent to sexual intercourse within the meaning of s. 273.1(1) of the Criminal Code was not given by [the complainant]. It follows, therefore, that the actus reus and the mens rea of sexual assault were established and the trial judge erred in law in concluding that the admitted incidents of sexual intercourse did not “amount to a sexual assault within the meaning of the Criminal Code ”.
((2004), 72 O.R. (3d) 223, at para. 45)
We agree with this conclusion. The appeal is therefore dismissed.
Cases cited
- 72 O.R. (3d) 223 72 O.R. (3d) 223 para 45 ¶ 1