W A R N I N G

The President of the panel hearing this appeal directs that the following should be attached to the file:

A non-publication and non-broadcast order in this proceeding under s. 486(3) of the Criminal Code, concerning the identity of and any evidence that would tend to identify the complainant(s), shall continue. As relevant in this case, s. 486(3) and s. 486(5) of the Criminal Code, which is concerned with the consequence of failure to comply with an order made under s. 486(3), read:

486.(3) Subject to subsection (4), where an accused is charged with

(a) an offence under section 151, 152, 153, 155, 159, 160, 170, 171, 172, 173, 210, 211, 212, 213, 271, 272, 273, 346 or 347,

(b) an offence under section 144, 145, 149, 156, 245 or 246 of the Criminal Code, chapter C-34 of the Revised Statutes of Canada, 1970, as it read immediately before January 4, 1983, or

(c) an offence under section 146, 151, 153, 155, 157, 166 or 167 of the Criminal Code, chapter C-34 of the Revised Statutes of Canada, 1970, as it read immediately before January 1, 1988,

the presiding judge or justice may make an order directing that the identity of the complainant or of a witness and any information that could disclose the identity of the complainant or witness shall not be published in any document or broadcast in any way.

(5) Every one who fails to comply with an order made pursuant to subsection (3) is guilty of an offence punishable on summary conviction.

DATE: 20031031

DOCKET: C36526

COURT OF APPEAL FOR ONTARIO

RE: HER MAJESTY THE QUEEN (Appellant) –and– DAVID MICHAEL GIROUARD (Respondent)

BEFORE: O’CONNOR A.C.J.O., MOLDAVER and GILLESE JJ.A.

COUNSEL: M. David Lepofsky for the appellant

Jeanine E. LeRoy for the respondent

HEARD: October 30, 2003

RELEASED ORALLY: October 30, 2003

On appeal from the acquittal entered by Justice John A. Desotti of the Superior Court of Justice on May 23, 2001.

E N D O R S E M E N T

[1] In respect of the sexual assault that allegedly occurred on the morning of September 9, 1999 after the respondent and the complainant had awoken, the trial judge acquitted the respondent on the basis of the defence of honest but mistaken belief in consent. In arriving at his conclusion, the trial judge took into account the previous night’s “consensual” sexual activity between the parties and the complainant’s failure to express her lack of consent more forcefully, either by words or gestures. In sum, it would appear that the trial judge was of the view that in the circumstances, the respondent was entitled to take the complainant’s “equivocal” conduct as affirmative evidence of consent.

[2] Among other arguments, Mr. Lepofsky, for the Crown, submits that the analysis undertaken by the trial judge was flawed by his failure to factor into it the respondent’s evidence that when the complainant awoke, she asked whether she and the respondent had had “sex last night”, to which the respondent replied: “Yeah, a couple of times.” Mr. Lepofsky argues that it was incumbent on the trial judge to take that interchange into account in deciding whether the respondent was entitled to take the complainant’s “equivocal” conduct as affirmative evidence of consent or whether instead, he was obliged to take further steps in accordance with s. 273.2(b) of the Criminal Code to ascertain whether she was in fact consenting.

[3] We agree with Mr. Lepofky’s submission. The trial judge made no mention of the important interchange in his reasons and we cannot be certain that he took it into account in assessing whether, in the circumstances known to the respondent, the respondent failed to take reasonable steps to ascertain that the complainant was consenting. Accordingly, we are of the view that the acquittal cannot stand.

[4] In the result, the appeal is allowed, the verdict of acquittal is set aside and a new trial is ordered.

“D.R. O’Connor A.C.J.O.”

“M.J. Moldaver J.A.”

“E.E. Gillese J.A.”