New & Notable: Sexual Assault and Consent

R v Bergen, 2011 ONCA 210, 2011 CarswellOnt 1696


The appellant was charged with sexual assault in relation to two separate victims. The appellant was 50 years old and worked as a licensed social worker in an adolescent mental health unit; one of the victims, SP, was an 18 patient who had been admitted for anxiety, depression, taking overdoses, cutting herself and issues involving prior experience of sexual abuse [para 2]. The charges arose out of a sexual relationship that occurred while the appellant was SP’s social worker. While the appellant argued that the relationship was consensual, the trial judge accepted the Crown’s argument that any alleged consent was vitiated by section 273.1(2)(c) of the Code.

On appeal the appellant argued that the trial judge erred by failing to consider SP’s subjective state of mind [para 6]. This argument was rejected. Notably, the Court of Appeal held that the trial judge properly considered evidence of an expert who testified about the nature of a therapist-patient relationship and evidence about how the “relationship progressed” [para 7].

DG Mack