B. Middleton

The Crown charged Brian Jordan Ense and Joseph Bernard Edward Ense with sexual assault contrary to section 271 of the Criminal Code.

The charges arose from an alleged incident on November 5, 2016, at a house party on Manitoulin Island.

The complainant, a 16-year-old girl, testified that she was sexually assaulted by both men while intoxicated.

Joseph Ense's charges were withdrawn after his death during the trial.

The court found Brian Jordan Ense guilty of sexual assault based on the complainant's testimony, DNA evidence linking him to the complainant, and corroborating evidence from other witnesses.

The court rejected arguments regarding continuity of DNA evidence and credibility challenges to the complainant's testimony, finding her evidence credible and reliable despite inconsistencies between her police statement, 911 call, and trial testimony.

The accused was charged with failing to comply with a demand to provide a breath sample under section 254(5) of the Criminal Code and resisting arrest under section 129(a) of the Criminal Code.

The accused, who had suffered catastrophic injuries in a motor vehicle accident two years prior, including collapsed lungs and incontinence, was stopped by police on suspicion of impaired driving.

She attempted multiple times to provide a breath sample into an approved screening device but was unable to produce a suitable sample.

The accused claimed she had respiratory difficulties from her injuries and offered an alternative of providing a blood sample at a hospital.

The court found the accused guilty on both counts, rejecting her evidence regarding her respiratory limitations and finding that she deliberately failed to provide a suitable sample without reasonable excuse.