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In R. v. Blanco, 2025 ONSC 297 Justice London-Weinstein ordered a new trial after determining the trial judge failed to grapple with the complainant’s testimony about subjective consent.
In this case the complainant, when asked by the Crown how she felt about the sexual activity at the time said she felt “relaxed and very sleepy.” She further stated that at the time she “thought that it felt nice and that [she] was very tired.” The complainant also said she did not report the alleged assault right away because she thought it was “fine.”
The trial judge concluded that no consent was given by the complainant without grappling with the evidence from the complainant about her subjective consent at the time. While there was a question in this case as to whether or not the accused used a position of authority which vitiated consent, the trial judge found that the authority was used to overcome expressed non-consent without explaining how the determination of non-consent was arrived at.
