Case information
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39703
T.C.F. v. Her Majesty the Queen
(Alberta) (Criminal) (As of Right)
(Publication ban in case) (Sealing order) (Certain information not available to the public)
Docket
Judgments on applications for leave to appeal are rendered by the Court, but are not necessarily unanimous.
| Date | Proceeding | Filed By (if applicable) |
|---|---|---|
| 2022-03-21 | General proceeding, (Letter Form), Case Sensitivity Questionnaire, (Printed version due on 2022-03-28) | T.C.F. |
| 2022-03-11 |
Transcript received, Transcript received, 39699-39703 99 Pages required: paper copies (rec'd 2022-03-25 / reçu 2022-03-25) |
|
| 2022-03-10 | Appeal closed | |
| 2022-02-15 | Formal judgment sent to the registrar of the court of appeal and all parties | |
| 2022-02-15 | Judgment on appeal and notice of deposit of judgment sent to all parties | |
| 2022-02-15 | General proceeding, (Letter Form), Case Sensitivity Questionnaire, (Printed version due on 2022-02-22) | Her Majesty the Queen |
| 2022-02-15 |
Judgment on the appeal rendered, CJ Mo Ka Côt Br Row Mar Kas Ja, The appeals from the judgment of the Court of Appeal of Alberta (Calgary), Numbers 1901-0142A and 1901-0143A, 2021 ABCA 172, dated May 12, 2021, were heard on February 15, 2022, and the Court on that day delivered the following judgment orally: MOLDAVER J. — We would dismiss the appeals and uphold A.E. and T.C.F.’s convictions for sexual assault. The trial judge erred in law, in that he essentially applied a principle of “broad advance consent” (R. v. Barton, 2019 SCC 33, [2019] 2 S.C.R. 579, at para. 99). Consent must be linked to the sexual activity in question, it must exist at the time the activity occurs, and it can be withdrawn at any time (Barton, at para. 88; R. v. Hutchinson, 2014 SCC 19, [2014] 1 S.C.R. 346, at para. 17). The trial judge failed to address the scope of the complainant’s consent to sexual activity and failed to consider whether her consent was withdrawn. Accordingly, the trial judge’s determination that the complainant had subjectively consented to the sexual activity in question was not entitled to deference. As this Court set out in R. v. Cassidy, [1989] 2 S.C.R. 345, in order to substitute a conviction on an appeal from acquittal, “all the findings necessary to support a verdict of guilty must have been made, either explicitly or implicitly, or not be in issue” (pp. 354-55). The Cassidy test is met in this case, thereby permitting a substituted conviction under s. 686(4)(b)(ii) of the Criminal Code, R.S.C. 1985, c. C-46. The trial judge’s explicit and implicit findings demonstrate that both A.E. and T.C.F. continued, and A.E. escalated the sexual interactions with the complainant even after she cried out “No”, without taking any steps to find out if she was withdrawing her consent. Specifically, A.E. slapped the complainant’s buttocks, and T.C.F. continued to engage the complainant in sexual activity and ordered her to perform fellatio. In the circumstances, T.C.F.’s assertion of an honest but mistaken belief in consent lacks an air of reality and is unsupported by any reasonable steps (Criminal Code, s. 273.2(b); Barton, at para. 122). Finally, in view of our conclusion that the Cassidy test is met here, we need not comment on Martin J.A.’s statement of the test for substituted convictions, found at para. 91 of his reasons. With respect to the allegations of bias raised by A.E., we are all of the view that nothing asserted by him called into any question the integrity and impartiality of the Court of Appeal of Alberta in this case. The appellant A.E. also asks this Court to stay his conviction for sexual assault under Kienapple v. The Queen, [1975] 1 S.C.R. 729, on the basis that it is a lesser included count within his conviction for sexual assault with a weapon. We would not give effect to this submission. In these circumstances, the offences involve different subsets of facts and address different forms of harm (see R. v. M. (R.), 2020 ONCA 231, 150 O.R. (3d) 369, at para. 52). Specifically, the charge of sexual assault with a weapon addresses the injuries that the complainant suffered as a result of the use of the toothbrush, as well as the elevated risk that it brought about. We note that the Court of Appeal of Alberta addressed other issues in obiter, including: T.C.F.’s liability for sexual assault with a weapon; whether surreptitious recording constitutes fraud vitiating consent; and whether consent to sexual activity can be given in situations involving intentional bodily harm. In the circumstances, it is unnecessary for us to address these issues. In the result, the appeals from conviction are dismissed and the matters are remitted to the Court of Queen’s Bench for sentencing. Dismissed |
|
| 2022-02-15 |
Hearing of the appeal, 2022-02-15, CJ Mo Ka Côt Br Row Mar Kas Ja Judgment rendered |
|
| 2022-02-11 | Certificate (on limitations to public access), 23B - Condensed Book | T.C.F. |
| 2022-02-11 | Appellant's condensed book, (Book Form), (Printed version filed on 2022-02-11) | T.C.F. |
| 2022-02-11 | Certificate (on limitations to public access), 23B - Condensed book | Her Majesty the Queen |
| 2022-02-11 | Respondent's condensed book, (Book Form), (Printed version filed on 2022-02-11) | Her Majesty the Queen |
| 2022-02-03 | Notice of Remote Participation by a Judge of the Supreme Court of Canada sent to all parties | |
| 2022-02-02 | Correspondence (sent by the Court) to, Zoom hearing information and registration links | |
| 2022-01-17 |
Notice of appearance, 2022-01-12 T.C.F. (Appellant) Balfour Q.H. Der, Q.C., James F. McLeod and David A.S. Roper will appear before the Court. Balfour Q.H. Der, Q.C. will present oral argument. 2022-01-14 Her Majesty the Queen (Respondent) Andrew Barg and Tom Spark will appear before the Court and will present oral argument. 2022-01-17 Director of Public Prosecutions Blair MacPherson and Éric Marcoux will appear before the Court. Blair MacPherson will present oral argument. |
T.C.F. |
| 2022-01-14 | Correspondence (sent by the Court) to, Letter of directions relating to upcoming hearing | |
| 2021-12-23 | Certificate (on limitations to public access), (Letter Form), Form 23B, (Printed version filed on 2021-12-23) | T.C.F. |
| 2021-12-23 | Reply factum on appeal, (Book Form), Reply factum to the intervention, Completed on: 2021-12-23, (Printed version filed on 2021-12-23) | T.C.F. |
| 2021-12-20 | Intervener's factum, (Book Form), Joint with 39699, Completed on: 2021-12-21, (Printed version filed on 2021-12-20) | Director of Public Prosecutions |
| 2021-11-12 | Certificate (on limitations to public access), (Letter Form), 23B - SEALED - Factum, Record, (Printed version filed on 2021-11-12) | Her Majesty the Queen |
| 2021-11-12 | Correspondence received from, (Letter Form), re: sealed electronic material, (Printed version filed on 2021-11-12) | Her Majesty the Queen |
| 2021-11-12 |
Certificate (on limitations to public access), 23A - 23B REDACTED - Factum, Record received: transcription regarding sealing order (received 2022-01-27) |
Her Majesty the Queen |
| 2021-11-12 | Certificate of counsel (attesting to record), 24B | Her Majesty the Queen |
| 2021-11-12 |
Respondent's record, (Book Form), SEALED / CONFIDENTIAL / RESTRICTED Joint Record 39699-39703 SEALED & REDACTED electronic copies rec'd 2021-11-12, Completed on: 2021-11-25, (Printed version filed on 2021-11-12) |
Her Majesty the Queen |
| 2021-11-12 |
Respondent's factum, (Book Form), SEALED / CONFIDENTIAL / RESTRICTED Joint factum 39699-39703 SEALED & REDACTED electronic copies rec'd 2021-11-12, Completed on: 2021-11-25, (Printed version filed on 2021-11-12) |
Her Majesty the Queen |
| 2021-11-08 | Notice of hearing sent to parties, (sent electronically on 2021-11-09) | |
| 2021-11-08 | Order on motion for leave to intervene, by Justice Moldaver (sent by email) | |
| 2021-11-08 |
Decision on the motion for leave to intervene, Mo, UPON APPLICATIONS by the Attorney General of Ontario and the Director of Public Prosecutions for leave to intervene in the above appeals; AND THE MATERIAL FILED having been read; IT IS HEREBY ORDERED THAT: The motion for leave to intervene by the Attorney General of Ontario is dismissed. The motion for leave to intervene by the Director of Public Prosecutions is granted and the said intervener shall be entitled to serve and file a single factum not to exceed ten (10) pages in length on or before December 20, 2021. The said intervener is granted permission to present oral argument not exceeding ten (10) minutes at the hearing of the appeals. The intervener is not entitled to raise new issues or to adduce further evidence or otherwise to supplement the record of the parties. The appellants are each permitted to file a factum in reply to the intervention not to exceed five (5) pages in length on or before December 23, 2021. Pursuant to Rule 59(1)(a) of the Rules of the Supreme Court of Canada, the intervener shall pay to the appellant and the respondent any additional disbursements resulting from their intervention. Granted |
|
| 2021-11-08 | Submission of motion for leave to intervene, Mo | |
| 2021-11-08 |
Appeal hearing scheduled, 2022-02-15 Judgment rendered |
|
| 2021-10-29 | Letter advising the parties of tentative hearing date and filing deadlines (Notice of appeal – As of right) | |
| 2021-10-26 | Reply to the motion for leave to intervene, (Letter Form), (joint reply with 39699), Completed on: 2021-10-28 | Director of Public Prosecutions |
| 2021-10-25 | Response to the motion for leave to intervene, (Letter Form), Completed on: 2021-10-25, (Printed version filed on 2021-11-08) | T.C.F. |
| 2021-10-25 | Response to the motion for leave to intervene, (Letter Form), (joint response with 39699), Completed on: 2021-10-25 | Her Majesty the Queen |
| 2021-10-15 |
Motion for leave to intervene, (Book Form), MISSING: Filing Fee (rec' 11/02/21), Completed on: 2021-11-29, (Printed version filed on 2021-10-19) |
Attorney General of Ontario |
| 2021-10-14 |
Motion for leave to intervene, (Book Form), MISSING: Filing Fee, Incomplete |
Director of Public Prosecutions |
| 2021-09-17 | Certificate (on limitations to public access), 23A-23B - Record (Sealed) | T.C.F. |
| 2021-09-17 | Certificate (on limitations to public access), 23A-23B - Factum (sealed) | T.C.F. |
| 2021-09-17 | Certificate of counsel (attesting to record), 24A | T.C.F. |
| 2021-09-17 |
Appellant's record, (Book Form), (3 volumes), SEALED / CONFIDENTIAL / RESTRICTED Joint Appellant's Record (39703 & 39699) - Vol I, Vol II & Vol III (public) - Paper and Electronic versions (rec'd 2021-09-17) - Vol III (Sealed) - Paper and Electronic versions (rec'd 2021-09-17), Completed on: 2021-10-21 |
T.C.F. |
| 2021-09-17 |
Appellant's factum, (Book Form), SEALED / CONFIDENTIAL / RESTRICTED - Sealed electronic & paper versions (rec'd 2021-09-17) - Redacted electronic version (amended, rec'd 2021-09-20), Completed on: 2021-10-21, (Printed version filed on 2021-09-20) |
T.C.F. |
| 2021-08-05 | Order on motion to extend time, by KASIRER J. | |
| 2021-08-05 |
Decision on motion to extend time, Kas, UPON APPLICATION by the appellant for an order extending the time to serve and file his factum, record and, if any, book of authorities to September 17, 2021. AND THE MATERIAL FILED having been read; AND NOTING the consent of the respondent; IT IS HEREBY ORDERED THAT: The motion is granted. The appellant is permitted to serve and file his factum, record and book of authorities, if any, on or before September 17, 2021. Granted |
|
| 2021-08-05 | Submission of motion to extend time, Kas | |
| 2021-07-27 | Response to motion to extend time, (Letter Form), Completed on: 2021-07-28 | Her Majesty the Queen |
| 2021-07-27 |
Motion to extend time, (Book Form), to serve and file the factum, record and book of authorities Missing: Filing Fee, Incomplete |
T.C.F. |
| 2021-06-21 | Letter acknowledging receipt of a notice of appeal, File opened 2021-06-21 | |
| 2021-06-10 | Certificate (on limitations to public access), (Letter Form), (Included in the certificate (on limitations to public access)), Form 23B, (Printed version filed on 2021-06-11) | T.C.F. |
| 2021-06-10 | Certificate (on limitations to public access), (Letter Form), Form 23A, (Printed version filed on 2021-06-11) | T.C.F. |
| 2021-06-10 |
Notice of appeal, (Letter Form), Other documents filed with the notice: - Indictment - TC reasons (transcript) - CA reasons REQUIRE: - CA order (rec'd 2021-06-23) - Filing fee (rec'd 2021-08-27), Completed on: 2021-10-12, (Printed version filed on 2021-06-11) |
T.C.F. |
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 |
|---|---|---|
| T.C.F. | Appellant | Active |
v.
| Name | Role | Status |
|---|---|---|
| Her Majesty the Queen | Respondent | Active |
Other parties
| Name | Role | Status |
|---|---|---|
| Director of Public Prosecutions | Intervener | Active |
Counsel
Party: T.C.F.
Counsel
2650, 645 7th Avenue SW
Calgary, Alberta
T2P 4G8
Telephone: (403) 234-8824
FAX: (403) 261-8977
Email: balfour@derbarristers.com
Agent
100- 340 Gilmour Street
Ottawa, Ontario
K2P 0R3
Telephone: (613) 695-8855 Ext: 102
FAX: (613) 695-8580
Email: mfmajor@supremeadvocacy.ca
Party: Her Majesty the Queen
Counsel
Tom Spark
Appeals & Prosecution Policy Branch
300 Centrium Place, 332-6 Avenue SW
Calgary, Alberta
T2P 0B2
Telephone: (403) 297-6005
FAX: (403) 297-3453
Email: andrew.barg@gov.ab.ca
Agent
160 Elgin Street
Suite 2600
Ottawa, Ontario
K1P 1C3
Telephone: (613) 786-8695
FAX: (613) 788-3509
Email: lynne.watt@gowlingwlg.com
Party: Director of Public Prosecutions
Counsel
Blair MacPherson
160 Elgin Street, 12th Floor
Ottawa, Ontario
K1A 0H8
Telephone: (867) 336-0762
FAX: (613) 941-7865
Email: Eric.Marcoux@ppsc-sppc.gc.ca
Agent
160 Elgin Street
12th Floor
Ottawa, Ontario
K1A 0H8
Telephone: (613) 957-4770
FAX: (613) 941-7865
Email: francois.lacasse@ppsc-sppc.gc.ca
Summary
Keywords
Criminal law - Offences - Sexual assault - Consent - Appeals - Crown appeal from acquittal - Remedy - Whether the trial judge decided the case on the basis of “broad advance consent” - Whether Martin and Pentelechuk JJ.A. were correct in finding that the complainant withdrew her consent - Whether O’Ferrall J.A. was correct that the law in R. v. Jobidon, [1991] 2 S.C.R. 714, as it defines consent does not apply to sexual assault - Whether O’Ferrall J.A. was correct that the appellant had the subjective intent to cause bodily harm and actually caused bodily harm - Whether O’Ferrall J.A. was correct that joint liability under s. 21(1)(a) of the Criminal Code applied to the appellant despite it not having been argued by the Crown - Whether all the facts necessary for a finding of guilt were available to the Court of Appeal in exercising its power under s. 686(4)(b)(ii) of the Criminal Code.<br><br>
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.
(PUBLICATION BAN) (SEALING ORDER) (CERTAIN INFORMATION NOT AVAILABLE TO THE PUBLIC)
The appellant and a co-accused were charged with sexual assault and sexual assault with a weapon. The appellant, his co-accused and a third person engaged in sexual activity with the complainant. Part of the sexual activity was recorded on video. The trial judge rejected the complainant’s evidence that she did not consent to the sexual activity, and accepted the two accused’s evidence that she was a willing participant. The appellant was acquitted of both charges, and the Crown appealed. The Court of Appeal allowed the appeal in part, set aside the acquittal for sexual assault, and entered a conviction.
Lower court rulings
Court of Queen’s Bench of Alberta
161500723Q1
See file
Court of Appeal of Alberta (Calgary)
1901-0142A, 1901-0143A, 2021 ABCA 172
Appeal allowed in part, acquittal for sexual assault set aside, conviction entered.
Memorandums of argument on application for leave to appeal
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Downloadable PDFs
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Related links
Factums on appeal
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.
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