The appellant was charged with sexual assault arising from events in which the complainant, after consuming alcohol, suffered partial amnesia regarding the evening's events including most of the sexual activity.
The trial judge acquitted the appellant, finding the actus reus not established for the first series of sexual acts in the park because the Crown failed to prove the absence of the complainant's consent, and accepting that the appellant had an honest but mistaken belief in consent regarding the second series at his home even though the complainant lacked capacity there.
A majority of the Court of Appeal found errors of law in the trial judge's treatment of the evidence, specifically the improper use of the accused's testimony as direct evidence of the complainant's subjective consent and the failure to consider a large body of circumstantial evidence regarding the park incidents.
The majority of this Court dismissed the appeal, holding that the trial judge erred in law by treating direct evidence from the complainant as a requirement for establishing non-consent and by failing to consider all relevant circumstantial evidence, errors that had a material bearing on the acquittal.
The dissent would have allowed the appeal and restored the acquittal, finding that the trial judge properly considered all the evidence and that the majority's intervention amounted to interference with questions of fact.
