Jun 2, 2020

MLB Headnote and Key Numbers

R. v. Crespo, 2016 ONCA 454 (CanLII)

R. v. Crespo (F.) (2016), 350 O.A.C. 180 (CA)

MLB headnote and full text

Temp. Cite: [2016] O.A.C. TBEd. JN.013

Her Majesty the Queen (respondent) v. Fernando Crespo (appellant)

(C59193; 2016 ONCA 454)

Indexed As: R. v. Crespo (F.)

Ontario Court of Appeal

Laskin, Cronk and Miller, JJ.A.

June 10, 2016.

Summary:

The accused was convicted of sexual assault and sentenced to 15 months' imprisonment. The complainant was asleep and awoke to find the accused having sexual intercourse with her. Because the accused was a permanent resident of Canada and not a citizen, a consequence of the sentence was that he would be subject to removal from Canada at the conclusion of his custodial sentence. He appealed the conviction, arguing that the trial judge erred in finding that the complainant did not consent to sex with him, in not considering the defence of honest but mistaken belief in consent, and by admitting into evidence text messages from the complainant, her friend and the accused. He also appealed the sentence, arguing that the trial judge erred in not considering the immigration consequences to the accused in sentencing and failing to consider a conditional sentence.

The Ontario Court of Appeal dismissed both the conviction and sentence appeal.

Editor's Note: Certain names in the following case have been initialized or the case otherwise edited to prevent the disclosure of identities where required by law, publication ban, Maritime Law Book's editorial policy or otherwise.

Criminal Law - Topic 666

Sexual offences - Rape or sexual assault - Consent and extorted consent - See paragraphs 8 and 9.

Criminal Law - Topic 674

Sexual offences - Rape or sexual assault - Defences - Mistake of fact - See paragraphs 10 to 22.

Criminal Law - Topic 5383

Evidence and witnesses - Documents and reports - Telephone records (incl. text messages) - See paragraphs 23 to 26.

Criminal Law - Topic 5932

Sentence - Sexual assault - See paragraphs 27 to 31.

Counsel:

Najma Jamaldin, for the appellant;

Mary-Ellen Hurman, for the respondent.

This appeal was heard on March 8 and 9, 2016, before Laskin, Cronk and Miller, JJ.A., of the Ontario Court of Appeal. The following decision was delivered for the court by Miller, J.A., on June 10, 2016.