Summary

Keywords

Criminal law — Jury trial — Inconsistent verdicts — Charge to jury — Sexual assault — Intoxication — Consent — Overcoming resistance — Whether Court of Appeal erred in its review of inconsistent verdicts by applying an emergent and categorical approach — Whether failure to answer jury’s question and instruct on alcohol intoxication and consent occasioned a miscarriage of justice?

Summary

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The complainant testified that, after an evening together drinking, Mr. Avadluk sexually assaulted her in a bathroom and then in a bedroom. During the sexual assaults, he covered her nose and mouth with his hand, causing her to pass out. Mr. Avadluk testified to consensual sexual intercourse. During deliberations, the jury asked: “What is the law regarding alcohol intoxication and consent?” The trial judge did not give further instructions and asked the jury to be more specific. The jury did not ask any further questions. Mr. Avadluk was convicted for sexual assault and acquitted of attempting suffocation to overcome resistance for the purpose of committing sexual assault. The Court of Appeal dismissed an appeal.

Lower Court Rulings