COURT OF APPEAL FOR ONTARIO
Huscroft, Thorburn and Dawe JJ.A.
BETWEEN
His Majesty the King
Appellant
and
Erwin Blanco
Respondent
Katherine Beaudoin, for the appellant
Eric Granger, for the respondent
Heard: April 24, 2026
On appeal from the order of Justice Anne London-Weinstein of the Superior Court of Justice, dated January 14, 2025, with reasons reported at 2025 ONSC 297.
OVERVIEW
1The respondent was convicted of sexual assault. His conviction was overturned by the summary conviction appeal judge and a new trial was ordered. The Crown appeals the order setting aside the conviction.
2To find the respondent guilty of sexual assault, the Crown had the onus to prove beyond a reasonable doubt that (i) the sexual touching occurred, and (ii) the complainant did not consent to the sexual touching or that any apparent consent she may have given to the sexual touching was vitiated as it was obtained by the respondent’s abuse of his position of trust.
3The trial judge held that he was satisfied beyond a reasonable doubt that the respondent sexually touched the complainant without her consent and it was therefore not necessary to address vitiation of consent. However, he went on to say that he was satisfied beyond a reasonable doubt that any apparent consent was vitiated by the respondent’s abuse of his position of trust.
4The summary conviction appeal judge overturned the conviction, holding that the trial judge’s reasons were insufficient to establish that the complainant did not consent to the sexual touching; that his reasons did not deal with whether the respondent abused his position of trust to induce the complainant to consent to the sexual activity; and that his vitiation analysis was incompatible with his finding of no consent. She therefore ordered a new trial.
5I agree with the summary conviction appeal judge that the trial judge failed to consider material evidence in holding that he was satisfied beyond a reasonable doubt that the complainant did not consent to the sexual touching. However, for the reasons that follow, I find the summary conviction appeal judge erred in her interpretation and application of the test for vitiation of consent, and in finding that the trial judge erred in holding that any apparent consent was vitiated. I would therefore allow the appeal.
BACKGROUND
6On the evening of April 1, 2021, the complainant was an involuntary patient in a psychiatric ward of the Ottawa Civic Hospital. She was placed on three medications which, according to her testimony, made her feel drowsy and very tired. Despite this, the complainant was having trouble falling asleep.
7The respondent was a personal support worker at the hospital. At numerous points that evening, he found the complainant pacing the hallway and led her back to her room. It was contrary to hospital policy for the respondent to be in a woman’s hospital room alone.
8The complainant’s evidence was that, once back in her room, the respondent asked for and obtained her consent to stroke her hair and rub her back and shoulders. She testified that the respondent then touched her vagina and licked her left breast without asking for her consent, telling her, “This will help you relax”. The police took a DNA sample from the complainant’s left breast. It matched that of the respondent.
9The respondent did not testify.
The Trial Judge’s Decision
10The trial judge accepted the complainant’s evidence about what had happened and concluded that the respondent sexually touched the complainant. Although a vaginal swab from the complainant did not yield any male DNA, the complainant testified that the respondent had wiped her vagina with a wet cloth when he “finished, […] to try and clean me or something,” and that she found the cloth on the floor, still wet, when she woke up later that day. The respondent was captured on hospital security camera footage bringing a cloth into the complainant’s room and later leaving her room without the cloth.
11The complainant testified that she did not give verbal consent to the sexual touching, and the trial judge held that her failure to say “no” was not consent. He held that he was “satisfied beyond a reasonable doubt that [the respondent] committed a sexual assault upon the [complainant].”
12However, the trial judge did not address the complainant’s testimony about her subjective state of mind at the time of the sexual contact, including the following:
Q: At the time that he was licking your breast and touching your vagina, how were you feeling with respect to the effects of the medication?
A: I felt relaxed and very sleepy.
Q: At the time that he was in your room touching your breasts and vagina, what was going through your mind at that point about what was happening to you?
A: Not very much. I thought that it felt nice and that I was very tired.
Q: Did you talk to anyone about what happened that night?
A: I did, but not right away, because I was confused about what happened.
Q: What were you confused about?
A: If I should say anything about it, because I said that it was fine. [Emphasis added.]
13After concluding that the complainant did not consent to the sexual touching, the trial judge stated that there was no need to consider whether consent was vitiated because “there [was] for the reasons set out above no de facto consent on the facts of this case.”
14Notwithstanding this comment, he went on to address the issue of vitiation of consent under s. 273.1(2)(c) of the Criminal Code which provides that no consent is obtained if “the accused induces the complainant to engage in the activity by abusing a position of trust, power or authority” (emphasis added).
15The trial judge held that:
[I]t is difficult to quarrel with the merits of the Crown’s argument in the circumstances of this case. Mr. Blanco was clearly entrusted with the care and well-being of J.R., an in-patient at a mental health facility. He was professionally trained and had experience tending to the needs of patients in J.R.’s circumstances.
It can hardly be suggested that there was therapeutic value in his actions despite the fact J.R. testified she fell asleep after he had finished. He asked her consent to touch her shoulders and her back. To get her consent for those things which he knew he otherwise would not be at liberty to do while with a female patient in her room. He also knew that there was a large distance between consent to massage J.R.’s back, and fondling her genitals.
He took advantage of her silence, her passivity, and her groggy state to touch her in a sexual manner. In so doing, he breached Section 273.1(2) of the Criminal Code thereby vitiating any consent he might otherwise be able to claim.
The Summary Conviction Appeal Judge’s Decision
16The respondent appealed his conviction to the Superior Court of Justice.
17The summary conviction appeal judge held that the trial judge’s reasons were insufficient, as they did not explain “how the complainant’s state of mind established a lack of consent.” She noted in particular that the trial judge did not address the aspects of her testimony reproduced above, which she found offered some evidence of consent.
18The summary conviction appeal judge also held that the trial judge erred in finding consent was vitiated, as:
[T]he trial judge’s reasons do not deal with whether the [respondent] induced the complainant to consent to sexual activity based on an abuse of [his position of trust].
[T]he trial judge was required to find that when the complainant said it was fine, she provided her consent to proceed because she was induced to do so by virtue of the [respondent’s] abuse of his position of trust and authority. In other words, the Crown was required to prove beyond a reasonable doubt that the complainant consented to the sexual activity because the [respondent] induced that consent by virtue of being in a position of power and authority, which vitiated consent. [Emphasis added.]
19The summary conviction appeal judge concluded that the conviction could not be upheld based on a vitiation analysis in any event, as the trial judge held that he was satisfied beyond a reasonable doubt that the complainant had not consented.
20The summary conviction appeal judge therefore ordered a new trial.
ANALYSIS
Standard of Review
21Appeals brought under s. 839(1)(a) of the Criminal Code are restricted to questions of law. This includes the misinterpretation or misapplication of legal standards: R. v. Trachy, 2019 ONCA 622, 147 O.R. (3d) 250, at para. 68. It also includes a finding of insufficient reasons where those reasons are not insufficient: R. v. Lloyd, 2023 ONCA 613, at paras. 14-15.
The Test for Finding Reasons Insufficient
22On appellate review, reasons must be “sufficient in the context of the case for which they were given.” The reasons must be read as a whole, considering the issues at trial, to understand what was decided and why: R. v. G.F., 2021 SCC 20, [2021] 1 S.C.R., at paras. 68-69.
23Poor reasons are not an independent ground of appeal. Where reasons fail to explain the “what” and the “why” but those answers are clear in the record, there will be no error: G.F., at para. 70; R. v. R.E.M., 2008 SCC 51, [2008] 3 S.C.R. 3, at paras. 38-40. Put another way, reasons are not insufficient when “[t]he foundations for the judge’s decision” are discernable “in the context of the evidence, the submissions of counsel and the history of how the trial unfolded”:G.F., at para. 69; andR.E.M., at para. 17.
24Reasons must be both factually and legally sufficient. Rarely will there be cases in which one cannot understand the factual basis for the trial judge’s findings, i.e., what the trial judge decided and why. Legal sufficiency requires that lawyers be able to discern the viability of an appeal and that appellate courts be able to determine whether an error has occurred. This is a context-specific inquiry to be assessed in light of the live issues at trial; it must reflect and respect the presumption that “the trial judge understands the basic principles of criminal law at issue in the trial” and is not required to demonstrate knowledge of such principles: G.F., at paras. 71, 74; andR.E.M., at para. 45.
1. The summary conviction appeal judge did not err in holding the trial judge’s reasons were insufficient to establish that the complainant did not consent
25The Crown’s first ground of appeal is that the summary conviction appeal judge erred in finding the trial judge’s reasons were insufficient to establish that the complainant did not consent to the sexual activity.
26The Crown submits that the summary conviction appeal judge parsed the trial judge’s reasons in a search for error and erred herself by seizing on the testimonial excerpts reproduced above to find that there was conflicting evidence on consent when, considered in context, there was no such conflict.
27While the Crown concedes that the trial judge’s reasons could have been better articulated, it argues that the record was clear that the complainant did not consent as:
a) she had taken medication which made her feel, in her words, “out of it” and “not all there”;
b) the respondent was in the complainant’s bedroom alone, contrary to hospital policy concerning male staff and female patients; and
c) there was no evidence that the respondent asked if he could touch the complainant’s breast or vagina, or that the complainant expressed her consent to this touching.
28A conviction for sexual assault requires that the Crown prove beyond a reasonable doubt that the complainant did not consent to the sexual activity. This requires evidence that she did not want the touching to take place when it occurred: R. v. Ewanchuk, 1999 CanLII 711 (SCC), [1999] 1 S.C.R. 330, at paras. 25-27; G.F., at paras. 25-29; and R. v. Kirkpatrick, 2022 SCC 33, [2022] 2 S.C.R. 480, at para. 28. If the Crown proves beyond a reasonable doubt that the complainant did not agree to the sexual activity, a lack of subjective consent and the actus reus of sexual assaultare established: G.F., at para. 47.
29In Ewanchuk, at paras. 29-30, the Supreme Court held that,
While the complainant’s testimony is the only source of direct evidence as to her state of mind, credibility must still be assessed by the trial judge, or jury, in light of all the evidence. It is open to the accused to claim that the complainant’s words and actions, before and during the incident, raise a reasonable doubt against her assertion that she, in her mind, did not want the sexual touching to take place. If, however, as occurred in this case, the trial judge believes the complainant that she subjectively did not consent, the Crown has discharged its obligation to prove the absence of consent.
The complainant’s statement that she did not consent is a matter of credibility to be weighed in light of all the evidence including any ambiguous conduct. The question at this stage is purely one of credibility, and whether the totality of the complainant’s conduct is consistent with her claim of non-consent. The accused’s perception of the complainant’s state of mind is not relevant. That perception only arises when a defence of honest but mistaken belief in consent is raised in the mens rea stage of the inquiry. [Emphasis added.]
30There is no question that the complainant was a vulnerable person. However, when asked about her feelings at the time the sexual touching occurred she said: “I thought that it felt nice”, “I felt relaxed”, and she was confused about whether she should tell anyone because “I said that it was fine”. Crown counsel at trial did not argue that the complainant did not have the capacity to consent pursuant to s. 273.1(2)(b), which provides that no legally valid consent is obtained if “the complainant is incapable of consenting to the activity for any reason”.
31I agree with the summary conviction appeal judge that the trial judge “did not come to grips with this conflicting evidence and explain why he preferred the evidence pointing to a lack of consent over evidence which supported a finding that consent was provided”. Nor did he make necessary findings of fact in respect of the complainant’s state of mind.
32While the trial judge devoted extensive analysis to the respondent’s claim of honest but mistaken belief, this was no substitute for careful consideration of whether the evidence supported a finding that the complainant did not agree in her own mind to the sexual touching.
33The failure to grapple with conflicting evidence on this central issue of consent is a serious error: R. v. Dinardo, 2008 SCC 24, [2008] 1 S.C.R. 788, at paras. 25-26, 31-34.
34For these reasons, I agree with the summary conviction appeal judge that the trial judge’s reasons were insufficient on the issue of whether the complainant consented to the sexual touching.
35I would therefore reject this ground of appeal.
2. The summary conviction appeal judge erred in interpreting s. 273.1(2)(c), and in holding that the trial judge’s reasons on this issue were insufficient
36The Crown’s second ground of appeal is that the summary conviction appeal judge erred in requiring (1) consent to invoke s. 273.1(2)(c), as the provision may also apply where there is reasonable doubt about the absence of consent; and (2) direct evidence of inducement, as appellate authority provides that inducement can be inferred from the circumstances. Section 273.1(2)(c) provides that no consent is obtained if “the accused induces the complainant to engage in the activity by abusing a position of trust, power or authority”.
37The purpose of this provision is to protect the vulnerable and preserve the right to freely choose to consent to sexual activity: R. v. Snelgrove, 2019 SCC 16, [2019] 2 S.C.R. 98, at para. 3, citing R. v. Hogg (2000), 2000 CanLII 16865 (ON CA), 148 C.C.C. (3d) 86 (Ont. C.A.), at para. 17.
38Section 273.1(2)(c) recognizes that “there may be circumstances where a complainant apparently consents by going along with and participating in sexual activity without objection, but the overall circumstances are such that it cannot be said the complainant truly agreed to it”: R. v. M.S., 2022 BCCA 390, 421 C.C.C. (3d) 391, at para. 37. As such, the provision may apply where there is conflicting evidence on the issue of subjective consent, not just where subjective consent is found as a fact: G.F., at para. 33; and R. v. J.D., 2024 ONCA 286, at para. 4.
39Trial judges in sexual assault cases must decide whether the essential elements of the offence have been proven. In s. 273.1(2)(c) cases, the question is whether “the complainant entered into the sexual activity as a result of the accused’s exploitation (or, to put it another way, abuse) of their relationship of trust”: M.S., at para. 38. In other words, did the accused’s abuseof his position of trust induce the complainant to engage in the sexual activity? They do not have to decide that the complainant did consent.
40A particularly vulnerable or naïve complainant may not be able to articulate how the dynamics of his or her relationship with the accused influenced their behaviour. In such cases, the fact that an accused’s abuse of a position of trust, power or authority induced the complainant to engage in the sexual activity may be inferred from the circumstances: R. v. Lutoslawski, 2010 ONCA 207, 258 C.C.C. (3d) 1, at para. 13, aff’d 2010 SCC 49, [2010] 3 S.C.R. 60, citing R. v. Makayak, 2004 NUCJ 5, at para. 70.
41In Snelgrove, at para. 4, Moldaver J. held that s. 273.1(2)(c) was properly invoked on the facts of that case, as:
[I]t would have been open to the jury to conclude that by virtue of abusing his position of trust and authority, the accused took advantage of the complainant, who was highly intoxicated and vulnerable, by using the personal feelings and confidence engendered by their relationship to secure her apparent consent to sexual activity. [Emphasis added.]
42In this case, the trial judge was satisfied beyond a reasonable doubt that the complainant did not subjectively consent, such that there was no need to consider the issue of vitiation. He went on, however, to hold that “it is difficult to quarrel with the merits of the Crown’s [vitiation] argument in the circumstances of this case” and proceeded to provide the analysis set out above.
43The summary conviction appeal judge held that,
[F]or s. 273.1(2)(c) to apply, the trial judge was required to find that when the complainant said it was fine, she provided her consent to proceed because she was induced to do so by virtue of the [respondent’s] abuse of his position of trust and authority. In other words, the Crown was required to prove beyond a reasonable doubt that the complainant consented to the sexual activity because the [respondent] induced that consent by virtue of […] his abuse of power and authority” [Emphasis added.]
44I do not agree. First, s. 273.1(2)(c) requires only that the accused have abused a position of trust in relation to the complainant, and that this abuse induced the complainant to engage in the sexual activity in question: M.S., at para. 38. If these statutory criteria are proved beyond a reasonable doubt, it does not matter whether or not the complainant subjectively consented to the sexual activity, because any consent they might have given would be legally invalid.
45Second, it is true that a finding beyond a reasonable doubt of subjective non-consent by the complainant makes unnecessary any inquiry into the vitiation of consent. However, although the trial judge found the complainant did not consent, he provided an alternative foundation for his conclusion on this element of the offence, namely that any subjective consent the complainant may have given, was vitiated by s. 273.1(2)(c).
46The trial judge did not expressly state that this was an alternative conclusion but, “[w]here ambiguities in a trial judge’s reasons are open to multiple interpretations, those that are consistent with the presumption of correct application must be preferred over those that suggest error”: G.F., at para. 79.
47The trial judge was therefore entitled to address vitiation as an alternative basis for finding that consent had been disproved. The summary conviction appeal judge erred in holding that s. 273.1(2)(c) can only apply where consent is affirmatively found as a fact. In so doing, the summary conviction appeal judge erred in law by misapplying the relevant legal standard.
48The summary conviction appeal judge also erred in law in finding the trial judge’s reasons were insufficient because they failed to expressly address how the complainant was “induced” to engage in the sexual activity by the respondent’s abuse of his position of trust.
49While I do not agree with the Crown that the summary conviction appeal judge insisted on “direct evidence” of inducement, she erred in law by requiring distinct reasons on this element of s. 273.1(2)(c) in the context of this evidence, the trial judge’s framing of the abuse of trust, and his express adoption of the trial Crown’s argument.
50The respondent was a personal support worker in the mental health ward of the hospital, who was, in the words of the trial judge “clearly entrusted with the care and well-being” of the complainant. The complainant was a vulnerable person, an involuntary patient in the mental hospital who was experiencing delusions. The complainant and the respondent had no other relationship. She did not even know his name. In these circumstances and in view of her condition, it is unsurprising that she did not describe how the dynamics of her relationship with the respondent influenced her behaviour or her state of mind.
51Moreover, the complainant’s only “engagement” in the sexual activity, on the facts found by the trial judge, was to lie still in her bed while the respondent touched her vagina and licked her breast. As the trial judge found, the respondent’s abuse of his position of trust consisted in his “[taking] advantage of [the complainant’s] silence, passivity and her groggy state to touch her in a sexual manner” (emphasis added).
52As in M.S., “the overall circumstances are such that it cannot be said the complainant truly agreed to it”: M.S., at para. 37. It was open to the trial judge to accept the Crown’s argument that any subjective consent the complainant might have experienced was legally ineffective pursuant to s. 273.1(2)(c).
53Thus, while the trial judge did not expressly analyze how he found that the complainant was induced to engage in the sexual activity by the respondent’s abuse of his position of trust, he was entitled to accept the Crown’s argument that, having regard to the circumstances, the complainant was induced to engage in the sexual activity by the respondent’s abuse of trust. As a result, the appeal judge erred in law by holding that the trial judge’s reasons were not sufficient to support a finding of guilt based on the vitiation of consent.
54Accordingly, I would allow this ground of appeal.
CONCLUSION
55For the above reasons, I would allow the appeal and restore the respondent’s conviction for sexual assault.
Released: June 18, 2026 “G.H.”
“Thorburn J.A.” “I agree. Grant Huscroft J.A.” “I agree. J. Dawe J.A.”
Footnotes
- This appeal is subject to a publication ban pursuant to s. 486.4 of the Criminal Code, R.S.C. 1985, c. C-46.