J.K. Penman J.

The accused was charged with sexual assault following an incident where the complainant, a co-worker, woke up naked in his bed with no memory of the preceding events.

The Crown alleged that the accused engaged in unprotected vaginal intercourse and other sexual touching without the complainant's consent.

The court found the complainant to be a credible and reliable witness, rejecting defence arguments that her memory loss was feigned or that her post-offence conduct suggested consent.

The accused was found guilty of sexual assault.

The accused brought a Charter motion seeking to exclude evidence of drugs, a firearm, explosives, and her utterances, alleging violations of her ss. 8, 9, and 10 rights.

Police had entered her apartment without a warrant following a 911 call about a violent assault, finding drugs and a firearm in plain view.

The accused was later located at another address, detained, and questioned without being advised of her right to counsel.

The court found that while the initial entry and a subsequent strip search were lawful, police violated s. 8 by remaining in the apartment pending a search warrant, and seriously violated ss. 10(a) and (b) by failing to provide rights to counsel.

Applying s. 24(2), the court excluded the accused's utterances but admitted the real evidence seized from the apartment.

The court convicted the accused of four counts of sexual assault arising from incidents involving a vulnerable 17-year-old complainant who was temporarily living with the accused's family.

Applying the W.(D.) framework and the sexual assault consent principles in Ewanchuk, the court rejected the accused's denials, found the supporting defence witness unreliable, and accepted the complainant's evidence as credible and reliable.

The court held that Facebook messages sent in 2020 were confirmatory evidence tantamount to an admission of prior sexual activity and supported the complainant's account.

Delayed disclosure did not undermine credibility, and corroboration was not legally required.