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ONTARIO CRIMINAL LAW COMMENTARY | JUNE 2026
Joseph A. Neuberger, Michael P. Bury, and Diana Davison, Neuberger & Partners LLP, Criminal Lawyers Toronto
On June 18, 2026, the Court of Appeal for Ontario released its decision in R. v. Blanco, 2026 ONCA 433 — a case that wrestles with one of the most difficult and important questions in sexual assault law: what does it mean for consent to be legally invalid because it was obtained through an abuse of trust, even when the complainant says, in her own words, that “it was fine”?
The case is subject to a publication ban under s. 486.4 of the Criminal Code, so the complainant is identified only by initials. But the legal issues it raises matter well beyond the facts of this one case.
01 • WHAT HAPPENED
The complainant, J.R., was an involuntary patient on a psychiatric ward at the Ottawa Civic Hospital. She had been given medication that left her drowsy, and on the night in question she was struggling to sleep. The respondent, Erwin Blanco, was a personal support worker on the ward. Several times that evening he found her pacing the hallway and walked her back to her room — even though hospital policy prohibited male staff from being alone with female patients in their rooms.
Back in her room, J.R. gave Blanco permission to stroke her hair and rub her back and shoulders. According to her testimony, he then touched her vagina and licked her breast without asking — telling her, “This will help you relax.” Police later matched his DNA to a sample taken from her breast, and hospital security footage showed him bringing a cloth into her room and leaving without it; she testified he had used it to wipe her afterward.
J.R. did not say “no” during the encounter. When asked later how she felt at the time, she testified that she found the touching “felt nice,” that she was “relaxed” and “very sleepy,” and that she was later confused about whether to tell anyone “Because I said that it was fine.”
02 • TWO PATHS TO THE SAME CONCLUSION — AND WHERE THE TRIAL JUDGE TRIPPED
Canadian law requires the Crown to prove two distinct things beyond a reasonable doubt to secure a sexual assault conviction: that the complainant did not subjectively consent to the touching, or that any apparent consent was legally invalidated — “vitiated” — because, among other things, the accused induced that consent by abusing a position of trust, power, or authority (s. 273.1(2)(c) of the Criminal Code).
The trial judge took an unusual route. He first found, beyond a reasonable doubt, that J.R. simply did not consent at all. Having reached that conclusion, he said there was no need to go further. But he went further anyway, holding — almost as a backup — that even if she had apparently consented, that consent was vitiated because Blanco took advantage of “her silence, her passivity, and her groggy state.”
The problem, as the summary conviction appeal judge at the Superior Court saw it, was that the trial judge’s reasons never grappled with J.R.’s own testimony suggesting she may have experienced the encounter as something she went along with. She overturned the conviction and ordered a new trial, holding that the trial judge’s reasoning on non-consent was incomplete and that his vitiation analysis was incoherent — how could consent be “induced” if there was no consent to begin with?
03 • THE COURT OF APPEAL’S DECISION
Writing for a unanimous panel, Justice Thorburn agreed with half of the summary conviction appeal Judge’s ruling and rejected the other half. They ultimately restored the conviction, finding that the errors did not affect the outcome.
The trial judge’s reasons did not explain why he accepted the evidence pointing to lack of consent over J.R.’s own statements that the touching “felt nice” and that she’d said “it was fine.” Under the Supreme Court’s guidance in Ewanchuk and R. v. G.F., a complainant’s stated lack of consent is a matter of credibility that must be weighed against the whole record, including any ambiguous conduct or statements. Failing to address that conflict head-on was a genuine gap, not just an awkward phrasing.
This is the heart of the decision, and it’s a meaningful clarification of how s. 273.1(2)(c) operates. The Court held that the summary conviction appeal judge was wrong to treat vitiation analysis as available only once a court has affirmatively found that the complainant did consent to sex. As Justice Thorburn explained, the provision can equally apply where there is conflicting evidence about subjective consent — a trial judge doesn’t need to first decide the complainant consented before asking whether any apparent consent was the product of an abuse of trust. The two findings can stand as alternatives: if the Crown proves either that there was no subjective consent, or that any apparent consent was induced by an abuse of trust, the actus reus is made out.
The Court also rejected the idea that the trial judge needed to spell out, step by step, exactly how Blanco’s position of trust “induced” J.R.’s apparent acquiescence. Given the realities of the case — a vulnerable, medicated, involuntary psychiatric patient who didn’t even know the respondent’s name, whose only “engagement” was lying still while he touched her — the inference of inducement was available on the record without a granular explanation. As the Court put it, quoting the B.C. Court of Appeal’s decision in R. v. M.S., this is a case where “the overall circumstances are such that it cannot be said the complainant truly agreed to it.”
04 • WHY THIS MATTERS
This decision provides meaningful clarification of the architecture of s. 273.1(2)(c). It confirms that:
At the same time, the Court’s affirmation of the insufficient-reasons finding on non-consent is a reminder that trial judges cannot simply credit a complainant’s bottom-line assertion of non-consent without addressing testimony that cuts the other way. Ambiguous or seemingly contradictory statements from a complainant don’t resolve themselves — they have to be weighed and explained.
In the end, the Court of Appeal allowed the Crown’s appeal and restored Blanco’s conviction for sex assault — not because the trial judge’s reasoning was a model of clarity, but because, read as a whole and in light of the record, it supported a legally valid alternative basis for finding the essential elements of sexual assault had been proven.
Neuberger & Partners LLP, Sex Assault Defence Lawyers Toronto, Brampton, Newmarket.
