R. v. Stender, 2005 SCC 36, [2005] 1 SCR 914

                                                 SUPREME COURT OF CANADA

David George Stender

Appellant

v.

Her Majesty The Queen

Respondent

Coram: Major, Bastarache, Binnie, LeBel, Deschamps, Fish and Abella JJ.

______________________________

R. v. Stender, [2005] 1 S.C.R. 914, 2005 SCC 36

David George Stender                                                                                     Appellant

v.

Her Majesty The Queen                                                                               Respondent

Indexed as:  R. v. Stender

Neutral citation: 2005 SCC 36. 

File No.: 30551.

2005: June 10.

Present: Major, Bastarache, Binnie, LeBel, Deschamps, Fish and Abella JJ.

on appeal from the court of appeal for ontario

Criminal law — Sexual assault — Consent.

APPEAL from a judgment of the Ontario Court of Appeal (Doherty, Cronk and Armstrong JJ.A.) (2004), 72 O.R. (3d) 223 (sub nom. R. v. S. (D.G.)), 190 O.A.C. 127, 188 C.C.C. (3d) 514, 24 C.R. (6th) 91, [2004] O.J. No. 3440 (QL) (sub nom. R. v. D.S.), setting aside the accused’s acquittals for sexual assaults and entering convictions.  Appeal dismissed.

Christopher Hicks and Joseph Wilkinson, for the appellant.

Joan Barrett and Deborah Krick, for the respondent.

The judgment of the Court was delivered orally by

1                                   Fish J. — The appellant was acquitted at trial on two counts of sexual assault.  Both acquittals were set aside by the Court of Appeal for Ontario on the following grounds:

. . . on the admitted facts and factual findings of the trial judge, consent to sexual intercourse within the meaning of s. 273.1(1)  of the Criminal Code  was not given by [the complainant].  It follows, therefore, that the actus reus and the mens rea of sexual assault were established and the trial judge erred in law in concluding that the admitted incidents of sexual intercourse did not “amount to a sexual assault within the meaning of the Criminal Code ”.

((2004), 72 O.R. (3d) 223, at para. 45)

2                                   We agree with this conclusion.  The appeal is therefore dismissed.  

Judgment accordingly.

Solicitors for the appellant: Hicks Block Adams, Toronto.

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