SELECTED CASE LAW
BRITISH COLUMBIA:
In 2018 BCCA 97, Mr. G, a 34-year-old man who weighed 300 pounds, appealed his sentence. A previous appeal of his conviction was dismissed.
He had been convicted of sexual assault causing bodily harm and choking to overcome re-sistance in relation to a 22-year-old woman who weighed 100 pounds, Ms. D.
Mr. G had recorded some of the assault, which showed Ms. D asking Mr. G to stop. They had engaged in some consensual sexual activity beforehand, but the woman did not consent to the activity that was caught on video. In the video she could be heard saying: “please stop”; “please help”, “I can’t do it”; “are you going to kill me?”; “get the fuck off me”; and “why are you doing this to me?”. In the film Mr. G caused significant injuries to her eye, neck, and nose. He also choked her off camera. Mr. G testified that this was part of a BDSM role-play and that the woman did not really mean for him to stop when she asked. He said in their role-play “no means yes, yes means no”, however he had not discussed the specifics of the BDSM activity with the woman and had not established ground rules or safe words. Both the trial judge and the appeal judge did not find this a believable explanation that would allow for the defence of honest mistaken belief in consent. In Mr. G’s version of events no matter what the woman said, she was consenting.
Mr. G was on bail for another offence at the time of the assault and was considered at high-risk of reoffending. Mr. G had assaulted the woman sexually and caused serious physical dam-age to her. He also shared a nude photo of Ms. D with a friend, which the trial judge called a “callous disregard” for her privacy.
He was sentenced to five years in jail.
The appeal court found that the trial judge had taken Mr. G’s personal circumstances, a psycho-logical report on Mr. G, the seriousness of the violent assault, Mr. G’s previous convictions, his lack of remorse, and his Gladue report into consideration during sentencing. The appeal court found the sentence to be appropriate.
Also see: 2017 BCCA 425 (Appeal).
Criminal Offence(s): Sexual Assault