R. v. Pitt, [1993] 1 S.C.R. 466

Roderick Pitt Appellant

v.

Her Majesty The Queen Respondent

Indexed as: R. v. Pitt

File No.: 23082.

1993: February 22.

Present: Gonthier, Cory, McLachlin, Iacobucci and Major JJ.

on appeal from the court of appeal for ontario

Criminal law ‑‑ Trial ‑‑ Charge to jury ‑‑ Sexual assault ‑‑ Consent ‑‑ Trial judge adequately instructing jury as to force vitiating consent.

APPEAL from a judgment of the Ontario Court of Appeal (1992), 16 W.C.B. (2d) 508, dismissing the accused's appeal from his conviction on a charge of sexual assault. Appeal dismissed, Major J. dissenting.

Philip Zylberberg, for the appellant.

Michal Fairburn, for the respondent.

//Gonthier J.//

The judgment of Gonthier, Cory, McLachlin and Iacobucci JJ. was delivered orally by

Gonthier J. ‑‑ This appeal comes to us as of right by reason of a dissent in the Court of Appeal on the sole issue of the adequacy of the judge's charge as to force vitiating consent in a case of alleged sexual assault. The trial judge instructed the jury, even if briefly, as to the necessity of a nexus between the force applied and the consent. We are of the view, Justice Major dissenting, that the instructions read as a whole contain no error. The appeal is dismissed.

//Major J.//

The following are the reasons delivered orally by

Major J. (dissenting) ‑‑ In my opinion, the instructions of the trial judge to the jury conveyed the direction that there can be force without physical violence, that, in effect, if the accused touched C. B., that was sufficient to prove force. Coming, as it did, early in the charge, I conclude, as did Austin J. (ad hoc), that the verdict would not necessarily have been the same had this not occurred.

Judgment accordingly.

Solicitor for the appellant: Philip Zylberberg, Sudbury.

Solicitor for the respondent: The Ministry of the Attorney General, Toronto.