Gillian E. Roberts

The appellant, Marco Lupi, appealed his conviction and sentence for sexual assault.

The central issue at trial was whether Lupi continued sexual intercourse after surreptitiously removing a condom, contrary to the complainant's express wishes.

The trial judge found that he did and that consent was vitiated by fraud.

On appeal, Lupi argued that the trial judge misapprehended evidence regarding the complainant's inconsistent accounts to police and erred in applying the legal framework for consent, particularly R. v. Hutchinson.

The appellate court found no material misapprehension of evidence.

While it found the trial judge erred in distinguishing Hutchinson, it upheld the conviction, concluding that the complainant's consent was indeed vitiated by fraud due to the dishonest deprivation of control over sexual activity and exposure to the risk of serious bodily harm, including unwanted pregnancy and STDs.

The appeal against sentence was also dismissed, finding the 15-month sentence fit and within range.

The respondent, Jah-Kiyo Desmond-Robinson, brought a Garofoli application challenging the legality of a search warrant under section 8 of the Charter and seeking to exclude evidence (a firearm, ammunition, and drugs) under section 24(2) of the Charter.

The defence argued that the Information to Obtain (ITO) the search warrant, which relied heavily on two confidential informants (CIs), was deficient.

The court considered the un-redacted ITO and a judicial summary, and allowed limited cross-examination of the affiant.

Applying the Debot "3Cs" criteria (compelling, credible, and confirmed), the court found that the CI information provided a reasonable basis for the authorizing justice to issue the warrant.

Consequently, the search was deemed lawful, and no section 8 Charter violation occurred.

In the alternative, had there been a breach, the court determined the evidence would still be admissible under section 24(2) due to the good faith of the police, the high reliability of the evidence, and society's strong interest in prosecuting serious offences involving illegal firearms and drugs.