J. Khou

This decision addresses the jurisdictional limits of the Ontario Court of Justice to appoint state-funded counsel for complainants/respondents in sexual offence proceedings under section 278 of the Criminal Code.

The court clarifies that while complainants/respondents have a statutory right to standing and to be represented by counsel, the Criminal Code does not authorize courts to appoint state-funded counsel for them.

The judge distinguishes this from appointments under section 486.3 and amicus curiae appointments, which have clear statutory or inherent jurisdictional bases.

The ruling emphasizes that state-funded counsel appointments require either explicit statutory authority or a Charter-based application following the Rowbotham procedure.

The court dismisses the application for an additional order appointing counsel, affirming the importance of counsel representation but underscoring the absence of jurisdiction to make such appointments automatically.

The accused, C.M., was charged with one count of sexual assault.

The central issue at trial was consent.

The court found both the complainant's and the accused's evidence regarding consent to be unreliable due to inconsistencies and memory issues.

Despite concerns about the accused's understanding of consent, the court was ultimately left with a reasonable doubt on the issue of consent for all sexual activity that occurred.

Consequently, the accused was found not guilty.

The accused, C.M., brought a pre-trial application under section 276 of the Criminal Code to admit evidence of the complainant's prior sexual activity in a sexual assault trial.

The application sought to admit a photograph, alleged conversations about sexual preferences (including physical restraint), and alleged prior sexual activity involving restraint.

The Crown conceded the admissibility of the photograph.

The court dismissed the application for the remaining evidence, finding no "air of reality" to the defence of honest but mistaken belief in consent based on the accused's own voir dire testimony, which indicated he sought and received explicit consent.

The court emphasized that the central issue was actual consent, not mistaken belief, and that the proposed evidence was not relevant to the live defence or necessary for full answer and defence.

The defendant was charged with sexual assault following an encounter with the complainant on February 12, 2017.

The complainant alleged that she initially consented to protected sexual intercourse, but withdrew her consent when the condom slipped off.

She maintained that the defendant continued with unprotected intercourse without her consent.

The defendant claimed that the complainant consented to resuming unprotected intercourse after he reminded her that he had no protection.

The case turned entirely on credibility and the question of whether the Crown proved beyond reasonable doubt that the defendant acted without the complainant's consent.

The court found that while the complainant's account was coherent, the defendant's account, when combined with concerns about the complainant's narrative, left reasonable doubt as to whether the defendant knowingly proceeded without consent.