R. v. J.K., 2026 ONCJ 303

1The defence brings a motion for a directed verdict of acquittal on the sexual assault count at the close of the Crown’s case. The governing question is whether there is any evidence upon which a properly instructed trier of fact, acting reasonably, could convict. If the Crown has led some evidence on each essential element of the offence, the case must be left for determination on the merits; it is not the function of the court on this motion to assess credibility or to weigh competing inferences as would be done at the end of the trial. (R. v. Charemski, [1998] 1 S.C.R. 679 at paras. 2-4; R. v. Monteleone, [1987] 2 S.C.R. 154 at para. 8, citing United States of America v. Shephard, [1977] 2 S.C.R. 1067 at p. 1080.)

2Applying that test, the motion is dismissed because there is some evidence on the essential issue of the absence of consent. Consent for sexual assault purposes means the complainant’s voluntary agreement to engage in the sexual activity in question, and it must be present at the time the activity occurs. No consent is obtained when the complainant, by words or conduct, expresses a lack of agreement to engage in the activity. (Charemski, at paras. 2-4; Monteleone, at para. 8.)

3On the Crown’s evidence, the complainant testified that the accused came to her room seeking sexual intercourse and that she said “no” and that she was not in the mood. She further testified that she did not want the intercourse, but that she ultimately said “okay” because the accused asserted an entitlement as her husband and because she feared his anger and felt pressured to acquiesce. If accepted, that evidence is capable of supporting a finding that she did not voluntarily agree to the sexual activity, and that what occurred was submission or acquiescence rather than consent. The Criminal Code provides that, for assault, including sexual assault, no consent is obtained where the complainant submits or does not resist by reason of threats or fear of the application of force. The Supreme Court of Canada has also made clear that there is no doctrine of implied consent in sexual assault law and that submission driven by fear does not amount to legally effective consent. (Criminal Code, R.S.C. 1985, c. C-46, ss. 273.1(1), 273.1(1.1), 273.1(2)(d).)

4There is also some evidence capable of supporting the mens rea component. The complainant’s evidence, taken at its highest for the purposes of this motion, is that she communicated a refusal, that the accused responded by invoking a marital “right,” and that he proceeded in circumstances where she was acquiescing under pressure rather than agreeing. On that record, a properly instructed trier of fact could infer that the accused knew she was not consenting, or was at least reckless or wilfully blind to whether she was consenting. (Criminal Code, R.S.C. 1985, c. C-46, s. 265(3)(b).)

5In these circumstances, the Crown has adduced some evidence on the essential elements required for the sexual assault count. The defence motion for a directed verdict is therefore dismissed.