R. v. Flaviano, 2014 SCC 14, [2014] 1 SCR 270

 

SUPREME COURT OF CANADA

 

Citation:  R. v. Flaviano, 2014 SCC 14, [2014] 1 S.C.R. 270

Date: 20140217 Docket: 35488

 

Between:

Vittorio Thomas Flaviano

Appellant

and

Her Majesty The Queen

Respondent

 

Coram: Fish, LeBel, Cromwell, Moldaver, Karakatsanis and Wagner JJ.

 

Reasons for Judgment: (paras. 1 and 2)

Moldaver J. (Fish, LeBel, Cromwell, Karakatsanis and Wagner JJ. concurring)

 

R. v. Flaviano, 2014 SCC 14, [2014] 1 S.C.R. 270

 

Vittorio Thomas Flaviano                                                                              Appellant

v.

Her Majesty The Queen                                                                              Respondent

 

Indexed as:  R. v. Flaviano

 

2014 SCC 14

 

File No.:  35488.

 

2014:  February 17.

 

Present:  LeBel, Cromwell, Moldaver, Karakatsanis and Wagner JJ.

 

on appeal from the court of appeal for alberta

 

                    Criminal law — Offences — Sexual assault — Mens rea — Consent —Accused charged with sexual assault — Trial judge acquitting accused on grounds that he may have had honest but mistaken belief as to complainant’s consent — Court of Appeal setting aside acquittal and substituting conviction — No air of reality to defence of mistaken belief in consent — Trial judge erring in finding that accused took reasonable steps in ascertaining consent of complainant.

 

Statutes and Regulations Cited

 

 

Criminal Code, R.S.C. 1985, c. C-46, s. 273.2 (b).

 

 

 

                    APPEAL from a judgment of the Alberta Court of Appeal (Martin and Watson JJ.A. and Sulatycky J. (ad hoc)), 2013 ABCA 219, 553 A.R. 282, 583 W.A.C. 282, 2013 CarswellAlta 990, [2013] A.J. No. 619 (QL), setting aside the accused’s acquittal on a charge of sexual assault and entering a conviction.  Appeal dismissed.  

 

                    Alain Hepner, Q.C., for the appellant.

 

                    Christine Rideout, for the respondent.

 

                    The judgment of the Court was delivered orally by

[1]                              Moldaver J. — We agree with the conclusion of the Court of Appeal.  In particular, taking the record at its highest for the appellant, there was no evidence that the appellant took any reasonable steps to ascertain whether the complainant was consenting to sexual relations following her initial rejection of the appellant’s sexual advances. With respect, the trial judge erred in law in finding that there was some evidence that he had taken reasonable steps as required by s. 273.2 (b) of the Criminal Code, R.S.C. 1985, c. C-46 .

[2]                              Accordingly, the appeal is dismissed.

                    Judgment accordingly.

 

                    Solicitors for the appellant:  Ross, Hepner, Calgary.

 

                    Solicitor for the respondent:  Attorney General of Alberta, Calgary.