Summary

Keywords

Criminal law - Sexual assault - Consent - Whether Court of Appeal erred in concluding that the trial judge believed nothing short of unconsciousness could establish that the complainant did not subjectively consent to the sexual activity - Whether the Court of Appeal erred in concluding that the only reasonable inference compatible with the trial judge’s factual findings was that the complainant did not subjectively consent - Whether Court of Appeal should have ordered a new trial.

Summary

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The appellant was acquitted of sexual assault. It is alleged that he dragged his son’s aunt from her bedroom to the living room while she was sleeping and violated her sexually on more than one occasion. The appellant’s 11 year old son witnessed the incidents and testified that at the time, his aunt was essentially unresponsive. The trial judge found his evidence to be clear and compelling and she accepted that it was truthful and reliable. She nevertheless acquitted the appellant, because she was not satisfied beyond a reasonable doubt that there was an absence of subjective consent, and because the aunt had had an opportunity to leave the home at some point but chose not to. The Court of Appeal allowed the Crown’s appeal and entered a conviction. In its view, because the trial judge accepted the son’s evidence, the only reasonable inference available to her was that the aunt was at least sleeping during one or more of the sexual encounters and was therefore incapable of consenting.

Lower Court Rulings