Sobia Malik

The Crown appealed the acquittal of a young person, S.B., on a charge of sexual assault.

The Crown argued the trial judge made a palpable and overriding error of fact regarding the complainant's certainty that the accused heard her express non-consent, and erred in law or mixed fact and law by failing to establish the accused's knowledge of absence of consent.

The appeal court dismissed the appeal, finding the trial judge's reasons functionally adequate.

The court clarified that the trial judge did not make the factual findings attributed by the Crown, but rather expressed reasonable doubt regarding the complainant's credibility and the reliability of her evidence, particularly concerning inconsistencies in timing and the purpose of being at the location of the alleged assault.

The defendant, F.E., was charged with sexual assault and sexual exploitation of C.K., a person with a mental disability in a relationship of dependency.

The Crown presented evidence including C.K.'s videotaped statements, medical findings of sexual activity and a sexually transmitted disease, and DNA evidence of F.E.'s semen and C.K.'s DNA on a towel.

The defence argued inconsistencies in C.K.'s statements and presented testimony from F.E.'s wife (A.C.) and son (L.C.) denying the incidents.

The court found C.K.'s testimony credible, explaining inconsistencies due to fear and dependency, and found the DNA evidence to be powerful corroboration.

The court rejected the defence witnesses' credibility, finding them motivated by shame and a desire to protect F.E. F.E. was found guilty on both counts.