Jennie Rose Mongeau

Criminal trial involving allegations of sexual assault and sexual interference against two child complainants.

The court carefully distinguished between credibility and reliability, treating peripheral inconsistencies with caution but finding that a major inconsistency in one complainant’s account raised a reasonable doubt on the counts relating to her.

The other complainant’s evidence of repeated vaginal touching over several years by a parent was accepted as credible and reliable despite inconsistencies about dates, locations, and some details, given her age and the repetitive nature of the abuse.

Convictions were entered on the counts relating to repeated vaginal touching, while the remaining counts were dismissed.

The accused, Donovan McEwan, was charged with five offences: sexual assault, communicate with a person under 18 to facilitate an offence, obtain the sexual services of a person under 18, procuring, and possession of child pornography.

A sixth charge, forcible confinement, was withdrawn.

The court found the complainant's testimony credible despite inconsistencies, attributing them to drug addiction and trauma.

The court found a power imbalance due to the complainant's drug dependency on the accused, negating consent for sexual acts.

The accused was convicted of sexual assault, internet luring, obtaining sexual services of a person under 18, and possession of child pornography.

He was acquitted of procuring due to insufficient evidence that he caused or induced the complainant to offer sexual services for another.

The accused was charged with sexual assault following an encounter in his vehicle after driving the complainant and her friends home from a nightclub.

The complainant testified she was heavily intoxicated, experienced blackouts, and awoke during sexual acts to which she did not consent.

The court found the complainant lacked the capacity to consent due to her level of intoxication.

The court further rejected the accused's defence of honest but mistaken belief in communicated consent, finding he failed to take reasonable steps to ascertain consent after the complainant had earlier expressed reluctance.

The accused was found guilty.

The appellant appealed his conviction for sexual assault, arguing the trial judge provided insufficient reasons, failed to properly consider expert toxicology evidence regarding the complainant's intoxication and capacity to consent, and erred in relying on equivocal post-offence conduct.

The Superior Court of Justice allowed the appeal, finding the trial judge failed to explain her pathway to concluding the complainant was unconscious and incapable of consenting, failed to address gaps in the expert evidence, and improperly jumped to an inference of guilt based on post-offence conduct.

The conviction was set aside and a new trial was ordered.

Following convictions for sexual exploitation of a 16-year-old and uttering a threat, the court imposed a six-year penitentiary sentence on the exploitation count and a concurrent one-year sentence on the threat count.

The court treated the accused’s abuse of a position of trust, the complainant’s extreme vulnerability, the isolation of the island location, the threat during the sexual act, and the accused’s prior record and probation status as significant aggravating factors.

Applying the modern sentencing approach for sexual offences against children and young persons emphasized in Friesen, the court held that denunciation and deterrence required a significant penitentiary sentence.

The sexual assault count was stayed under the Kienapple principle because it arose from the same facts as the sexual exploitation count.

At the complainant’s request, the publication ban was removed and ancillary orders were made.

In a sexual assault trial arising from a social encounter after the parties met online, the only issue was whether the complainant consented to the sexual activity and, if so, whether any apparent consent was vitiated by incapacity.

The court applied the two-step consent analysis from Hutchinson and assessed the conflicting evidence through the W.(D.) framework.

Although the court found the complainant credible in the sense of attempting to be truthful, it held her evidence was unreliable because of significant memory gaps, inconsistencies, and contradictions with contemporaneous text messages and other evidence.

Accepting the accused's evidence that the sexual activity was consensual and that the complainant retained capacity, the court found the Crown had not proven absence of consent or incapacity beyond a reasonable doubt and entered an acquittal.