Background
On the evening of April 1, 2021, Erwin Blanco was working as a personal support worker in the mental health ward of the Ottawa Civic Hospital. The complainant was an involuntary psychiatric patient who had been administered sedating medications. Blanco entered her room alone — contrary to hospital policy — and, after obtaining her consent to touch her back and shoulders, proceeded without consent to touch her vagina and lick her left breast. DNA taken from the complainant’s left breast matched Blanco’s. Security footage corroborated aspects of her account.
At trial, the complainant testified that she had not verbally consented to the sexual touching, though she also described feeling “relaxed,” thinking “it felt nice,” and being confused afterward about whether to report the incident because, in her words, “I said that it was fine.” The trial judge convicted Blanco, finding beyond a reasonable doubt that the complainant did not consent. He further held, as an apparent alternative, that any consent would have been vitiated under s. 273.1(2)(c) of the Criminal Code — which provides that no consent is obtained where the accused induces the complainant to engage in sexual activity by abusing a position of trust — because Blanco had exploited the complainant’s silence, passivity, and drowsy state.
On summary conviction appeal, Justice London-Weinstein overturned the conviction and ordered a new trial. She found the trial judge’s reasons insufficient on the no-consent finding because he failed to address the complainant’s ambiguous testimony. She also held the vitiation analysis fatally flawed on two grounds: the trial judge did not explain how the complainant was induced to consent by the abuse of trust, and, in any event, vitiation under s. 273.1(2)(c) could not apply alongside a finding of no consent. The Crown appealed.
The Court’s Holding
Writing for a unanimous panel, Thorburn J.A. agreed with the summary conviction appeal judge on one point and disagreed on another. The court confirmed that the trial judge’s reasons were insufficient on the question of subjective non-consent: he failed to grapple with the complainant’s testimony that she felt the touching “felt nice” and that she had “said it was fine,” evidence that created a conflict he was required to resolve. The Crown’s first ground of appeal was therefore dismissed.
However, the court held that the summary conviction appeal judge misinterpreted s. 273.1(2)(c) in two critical respects. First, the provision does not require an affirmative finding of subjective consent as a precondition; it may also apply where there is conflicting or ambiguous evidence on consent. The trial judge was entitled to address vitiation as an alternative basis for conviction. Second, the summary conviction appeal judge erred in demanding express, detailed reasons on the element of “inducement” given the circumstances: Blanco held a clear position of trust over a vulnerable involuntary patient who had no other relationship with him, and his abuse consisted precisely in exploiting her silence and passivity. In such circumstances, inducement may be inferred, and the trial judge’s adoption of the Crown’s argument on this point was sufficient.
The Court of Appeal allowed the Crown’s appeal on the second ground, holding that the trial judge’s vitiation analysis was legally adequate and provided a sufficient alternative basis for the conviction. The conviction for sexual assault was restored.
Key Takeaways
- Section 273.1(2)(c) of the Criminal Code does not require a prior affirmative finding of subjective consent — it may be invoked as an alternative basis for conviction wherever there is conflicting evidence on consent, and it renders any apparent consent legally invalid if the statutory criteria are met.
- Inducement under s. 273.1(2)(c) need not be established through direct evidence; it may be inferred from the circumstances, particularly where a vulnerable complainant cannot articulate how the accused’s position of trust influenced her behaviour.
- A trial judge’s reasons are insufficient where they fail to address material, conflicting evidence bearing on subjective consent — but an alternative vitiation analysis that engages with the overall circumstances can independently sustain a conviction.
- Where a trial judge’s reasons are ambiguous, appellate courts must prefer interpretations consistent with correct application of the law over those that suggest error (R. v. G.F., 2021 SCC 20).
Why It Matters
This decision clarifies an important but underexplored aspect of Canada’s consent framework: the relationship between a finding of subjective non-consent and vitiation under s. 273.1(2)(c). Courts and practitioners have sometimes treated the two as mutually exclusive — either the complainant did not consent, or consent was vitiated. Blanco confirms they can operate as alternatives within the same case, giving trial judges a dual analytical pathway when the complainant’s evidence on subjective state of mind is mixed or ambiguous.
The decision is also significant for cases involving institutional power imbalances — health care workers, caregivers, and others entrusted with vulnerable persons. It affirms that inducement by abuse of trust can be inferred from the dynamics of the relationship and the complainant’s circumstances, without requiring the complainant to narrate precisely how the accused’s authority influenced her. This reinforces the protective purpose of s. 273.1(2)(c) in contexts where the most vulnerable complainants may be least able to articulate the mechanisms of their own exploitation.