Bradley Funston

The offender, an Aboriginal man with fetal alcohol spectrum disorder and a lengthy criminal record, was sentenced for sexually assaulting an intoxicated and unconscious victim and breaching his probation.

The court weighed the profound violation of the victim's sexual integrity and the offender's breach of trust against his severe childhood trauma and intergenerational trauma.

The court imposed a total sentence of two years in prison, reduced to ten months after crediting 14 months for pre-sentence custody, with no further probation ordered.

The Crown brought a certiorari application to quash a preliminary inquiry justice's decision to commit the accused to trial for assault simpliciter rather than the charged offence of sexual assault.

The preliminary inquiry justice had found that the brief struggle in an apartment vestibule lacked any sexual contact, language, or motive, and that inferring a sexual purpose was mere conjecture.

The reviewing court held that the preliminary inquiry justice committed no jurisdictional error in concluding the evidence did not reasonably support an inference of sexual assault.

The application was dismissed.