The accused was tried for sexual assault arising from an evening of drinking that culminated in sexual activity on a couch in his office.
The Crown alleged that the complainant was asleep during the sexual activity and did not consent, while the defence asserted that the sexual touching occurred consensually while she was awake and that the only non-consensual act was photographing her while asleep.
Applying the sexual assault consent framework, the Villaroman approach to circumstantial proof, and the W.(D.) principles, the court found the complainant’s evidence on the core alleged sexual activity unreliable in several material respects and accepted the toxicology evidence that the complainant was not incapacitated, though possibly in a deep sleep.
The court further held that the DNA evidence did not exclude reasonable inferences consistent with the defence account.
The accused was acquitted because the Crown failed to prove beyond a reasonable doubt that the complainant did not consent to the sexual touching.
