Case information

Criminal law — Aggravated sexual assault — Elements of offence — Mens rea — Evidence — Lack of evidence — Whether the Court of Appeal for Ontario erred in constructively finding that the mens rea of a sexual assault is established by proof solely that the complainant did not consent to sexual contact.

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(PUBLICATION BAN)

Following a trial, the appellant, Bevin Kerry Degale, was acquitted of a charge of aggravated sexual assault committed against his then girlfriend, the complainant. The complainant did not testify at trial, or otherwise co-operate in the prosecution. The trial judge concluded that the Crown had not proven beyond a reasonable doubt that the accused knew that the complainant was not consenting or was willfully blind or reckless as to her lack of consent, because of the absence of the complainant’s account of the circumstances. The Crown also had not established that the accused intended to cause serious bodily harm to the complainant, as there was no evidence as to how the injuries were caused.

The Court of Appeal unanimously allowed the Crown’s appeal and set aside the acquittal. It entered a conviction for aggravated sexual assault and remitted the matter for sentencing. In the court’s view, the trial judge erred when he concluded that there was no evidence that the accused knew the complainant was not consenting or was wilfully blind or reckless as to the lack of consent. The same evidence that persuaded the trial judge beyond a reasonable doubt that, despite the complainant not having testified at trial, the actus reus of the offence had been established, was also relevant to, and determinative of, the accused’s mens rea. On the basis of the complainant’s res gestae statement and the compelling circumstantial evidence, and in absence of any defence evidence, the only reasonable inference was that the accused knew that the complainant was not consenting or was willfully blind or reckless as to her consent. Having regard to the nature of the complainant’s injuries, objective foresight of the risk of bodily harm was simply not in issue.