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R v Ewanchuk, 1999 SCJ 10 (Major): [26] The absence of consent, however, is subjective and determined by reference to the complainant’s subjective internal state of mind towards the touching, at the time it occurred: see R. v. Jensen (1996), 106 C.C.C. (3d) 430 (Ont. C.A.), at pp. 437-38, aff’d [1997] 1 S.C.R. 304, R. v. Park, [1995] 2 S.C.R. Read more...

R v Ewanchuk, 1999 SCJ 10 (Major): [37] The words of Fish J.A. in Saint-Laurent v. Hétu, [1994] R.J.Q. 69 (C.A.), at p. 82, aptly describe the concern which the trier of fact must bear in mind when evaluating the actions of a complainant who claims to have been under fear, fraud or duress: “Consent” is . . . stripped Read more...

R v. Ewanchuk, (1999) 1 SCR 330 Para 36:  “To be legally effective, consent must be freely given. Therefore, even if the complainant con- sented, or her conduct raises a reasonable doubt about her non-consent, circumstances may arise which call into question what factors prompted her apparent consent. The Code defines a series of conditions under which the law will Read more...

R v Darrach – (2000) 2 SCR 443 (Gonthier): [24] These cases are part of the Court’s jurisprudence that has consistently held that the principles of fundamental justice enshrined in s. 7 protect more than the rights of the accused. As McLachlin J. wrote in Seaboyer, supra, at p. 603: “ The principles of fundamental justice reflect a spectrum of Read more...

R v Moosemay, [2001] A.J. No. 1164 (ACJ – Fradsham, PCJ): [31] In summary, I am satisfied that the common law permits me, as trial judge, to seal an exhibit, and thereby restrict public access to it, if I find there to be sufficient cause such as the protection of innocent persons. Individuals in the circumstances of the witness called Read more...