Case information
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30551
David George Stender v. Her Majesty the Queen
(Ontario) (Criminal) (As of Right)
(Publication ban in case)
Docket
Judgments on applications for leave to appeal are rendered by the Court, but are not necessarily unanimous.
| Date | Proceeding | Filed By (if applicable) |
|---|---|---|
| 2005-07-08 | Appeal closed | |
| 2005-07-05 | Transcript received, (38 pages) | |
| 2005-06-13 | Judgment on appeal and notice of deposit of judgment sent to all parties | |
| 2005-06-10 |
Judgment on the appeal rendered, Ma Ba Bi LeB De F Abe, The appeal from the judgment of the Court of Appeal for Ontario, Number C40281, dated August 23, 2004, was heard this day and the following judgment was rendered: 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". We agree with this conclusion. The appeal is therefore dismissed. Dismissed |
|
| 2005-06-10 | Acknowledgement and consent for video taping of proceedings, From all parties | |
| 2005-06-10 |
Hearing of the appeal, 2005-06-10, Ma Ba Bi LeB De F Abe Judgment rendered |
|
| 2005-06-08 | Book of authorities, Supplementary, Completed on: 2005-06-08 | David George Stender |
| 2005-05-25 | Notice of appearance, Christopher Hicks and Joseph Wilkinson will be present at the hearing. | David George Stender |
| 2005-03-03 | Appeal perfected for hearing | |
| 2005-03-02 | Notice of hearing sent to parties | |
| 2005-03-02 |
Appeal hearing scheduled, 2005-06-10, (Previously Apr. 15, June 17, 2005) Judgment rendered |
|
| 2005-02-25 | Respondent's book of authorities, Completed on: 2005-02-25 | Her Majesty the Queen |
| 2005-02-25 | Respondent's factum, Completed on: 2005-02-25 | Her Majesty the Queen |
| 2005-02-01 |
Decision on motion to extend time, to serve and file the appellant's book of authorities to Jan. 25/05, DeRg Granted |
|
| 2005-02-01 | Submission of motion to extend time, DeRg | |
| 2005-01-28 | Response to motion to extend time, (included with motion), Completed on: 2005-01-28 | Her Majesty the Queen |
| 2005-01-28 | Motion to extend time, to file the authorities to Jan. 26, 2005, Completed on: 2005-01-28 | David George Stender |
| 2005-01-25 | Appellant's book of authorities, Completed on: 2005-01-25 | David George Stender |
| 2005-01-24 | Appellant's factum, (see order), Completed on: 2005-01-24 | David George Stender |
| 2005-01-21 | Appellant's record, Completed on: 2005-01-21 | David George Stender |
| 2004-12-22 | Order on motion to extend time | |
| 2004-12-22 |
Decision on motion to extend time, to serve and file the appellant's factum, record and book of authorities to Jan. 24/05, Reg Granted |
|
| 2004-12-22 | Submission of motion to extend time, Reg | |
| 2004-12-21 | Response to motion to extend time, (Letter Form), from Joan Barrett dated Dec. 20/04, Completed on: 2004-12-21 | Her Majesty the Queen |
| 2004-12-17 | Motion to extend time, to file the appellant's factum, record and authorities to Jan. 24/05, Completed on: 2004-12-17 | David George Stender |
| 2004-11-02 | Correspondence received from, from Mrs. Barrett re: hearing date of June 17/05 with cc to Mr. Hicks | Her Majesty the Queen |
| 2004-10-25 | Order on motion to extend time to serve and/or file notice of appeal | |
| 2004-10-25 |
Decision on motion to extend time to serve and/or file notice of appeal, to Oct. 5/04, CJ Granted |
|
| 2004-10-25 | Submission of motion to extend time to serve and/or file notice of appeal submitted, CJ | |
| 2004-10-25 | Response to motion to extend time to serve and/or file notice of appeal, (e-mail) from Karen Collins, Completed on: 2004-10-25 | Her Majesty the Queen |
| 2004-10-22 | Letter advising the parties of tentative hearing date and filing deadlines (Notice of appeal – As of right) | |
| 2004-10-20 | Motion to extend the time to serve and/or file the notice of appeal, Completed on: 2004-10-20 | David George Stender |
| 2004-10-05 | Notice of appeal, (extension of time requested), Completed on: 2004-10-20 | David George Stender |
Parties
Please note that in the case of closed files, the “Status” column reflects the status of the parties at the time of the proceedings. For more information about the proceedings and about the dates when the file was open, please consult the docket of the case in question.
Main parties
| Name | Role | Status |
|---|---|---|
| Stender, David George | Appellant | Active |
v.
| Name | Role | Status |
|---|---|---|
| Her Majesty the Queen | Respondent | Active |
Counsel
Party: Stender, David George
Counsel
238 King Street East
Toronto, Ontario
M5A 1K1
Telephone: (416) 975-1700
FAX: (416) 925-8882
Email: chicks@h-b-a.ca
Agent
2600 - 160 Elgin St
Box 466 Station D
Ottawa, Ontario
K1P 1C3
Telephone: (613) 233-1781
FAX: (613) 563-9869
Email: brian.crane@gowlingwlg.com
Party: Her Majesty the Queen
Counsel
Deborah Krick
720 Bay Street, 10th Floor
Toronto, Ontario
M5G 2K1
Telephone: (416) 212-4690
FAX: (416) 326-4656
Email: joan.barrett@jus.gov.on.ca
Agent
70 Gloucester Street
Ottawa, Ontario
K2P 0A2
Telephone: (613) 566-2058
FAX: (613) 235-4430
Email: rhouston@burkerobertson.com
Summary
Keywords
None.
Summary
Case summaries are prepared by the Office of the Registrar of the Supreme Court of Canada (Law Branch). Please note that summaries are not provided to the Judges of the Court. They are placed on the Court file and website for information purposes only.
The Appellant was tried by Cumming J. sitting alone, on two counts of sexual assault, three counts of assault and one count of uttering a death threat, all in relation to the same person. At the outset of the trial the Appellant pleaded guilty to the three counts of assault and proceeded to trial on the remaining three counts. The charge of uttering a death threat was dismissed on a motion for non-suit after the close of the Crown’s case. The Appellant was acquitted of both sexual assault charges. He was sentenced to a conditional discharge and two years of probation for the assault convictions. The Court of Appeal heard an appeal from the acquittals on the sexual assault charges in April 2004. The appeal was allowed, and a conviction entered on the ground that the complainant had not consented to engage in the sexual activity in question.
Lower court rulings
Ontario Superior Court of Justice
Conviction: three counts of assault; Appellant sentenced to a conditional discharge and two years of probation for the three assault convictions; Acquittal: two counts of sexual assault
Court of Appeal for Ontario
C40281
Respondent's appeal allowed; acquittals set aside and convictions entered on both counts of sexual assault; remitted to trial judge for sentencing
Filed documents
The memorandums of argument on an application for leave to appeal will be posted here 30 days after leave to appeal has been granted unless they contain personal information, information that is subject to a publication ban, or any other information that is not part of the public record. You may also obtain copies of the memorandum by filling out the Request for Court records form or by contacting the Court’s Records Centre either by email at records-dossiers@scc-csc.ca or by telephone at 613‑996‑7933 or at 1‑888‑551‑1185.
If you have questions about a memorandum of argument or want to use a memorandum of argument, please contact the author of the memorandum of argument directly. Their name appears at the end of the memorandum of argument. The contact information for counsel is found in the “Counsel” tab of this page.
Downloadable PDFs
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Related links
The factums of the appellant, the respondent and the intervener will be posted here at least 2 weeks before the hearing unless they contain personal information, information that is subject to a publication ban, or any other information that is not part of the public record. You may also obtain copies of factums by filling out the Request for Court records form or by contacting the Court’s Records Centre either by email at records-dossiers@scc-csc.ca or by telephone at 613‑996‑7933 or at 1‑888‑551‑1185.
If you have questions about a factum or want permission to use a factum, please contact the author of the factum directly. Their contact information appears on the first page of each factum.
Downloadable PDFs
Not available
Related links
The condensed books of the appellant, the respondent and the intervener will be posted here upon receipt of the electronic version, 2 days prior to the scheduled appeal hearing. You may also obtain copies of condensed books by filling out the Request for Court records form or by contacting the Court’s Records Centre either by email at records-dossiers@scc-csc.ca or by telephone at 613‑996‑7933 or at 1‑888‑551‑1185.
If you have questions about a condensed book or want permission to use a condensed book, please contact the author of the condensed book directly. Their contact information appears on the first page of each condensed book.
Downloadable PDFs
Not available