Following a judge-alone trial on a charge of sexual assault, the court found the Crown proved beyond a reasonable doubt that the accused sexually assaulted the complainant in a bedroom after she had been put to bed fully clothed and later woke to vaginal and anal intercourse.
The court accepted the complainant’s fractured but detailed account of the bedroom assault, relied on corroborative surrounding circumstances, and rejected the accused’s lack-of-memory evidence as not credible.
The court held that an unconscious person cannot consent and that the complainant’s express direction to stop established non-consent and the accused’s knowledge of it.
The court was not satisfied beyond a reasonable doubt that the complainant did not consent to earlier sexual activity alleged to have occurred in the living room, given memory gaps, intoxication evidence, and the absence of scientific evidence on incapacity.
The accused was nevertheless found guilty of sexual assault as charged based on the bedroom assault.
