Two appellants were convicted of sexual assault by the Court of Appeal for Alberta after having been acquitted at trial, where the trial judge had applied an impermissible principle of broad advance consent.
The Supreme Court held that the trial judge erred in law by failing to address the scope of the complainant's consent and whether it was withdrawn, making the trial judge's credibility findings on subjective consent undeserving of deference.
The Court upheld the substituted convictions under s. 686(4)(b)(ii) of the Criminal Code, finding the Cassidy test satisfied because the trial judge's explicit and implicit findings established both appellants continued sexual activity with the complainant after she cried out 'No' without taking steps to ascertain whether consent was withdrawn.
The Kienapple argument raised by one appellant was rejected as the offences involved different subsets of facts and addressed different forms of harm.
