Alan Risen

The appellant appealed his conviction for sexual assault, arguing the trial judge reversed the burden of proof on consent, failed to adequately scrutinize the complainant's evidence, and erred in assessing his police statement.

The Court of Appeal dismissed the appeal, finding no palpable and overriding error.

The trial judge correctly applied the burden of proof, reasonably assessed credibility, and properly concluded the complainant was asleep during the sexual encounter.

The accused was convicted after trial of sexual assault for engaging in sexual intercourse with a sleeping friend following a night of drinking.

The court considered aggravating factors including the seriousness of the offence and the breach of trust between friends, and mitigating factors including the offender’s lack of prior criminal record, good character, supportive family, and prospects for rehabilitation.

The court reviewed sentencing principles under ss. 718 and 718.1 of the Criminal Code and authorities establishing the typical custodial range for sexual intercourse with an unconscious victim.

Finding the case fell within the upper reformatory range but did not require a penitentiary sentence, the court imposed a custodial term followed by probation and ancillary orders.

The accused was tried for sexual assault arising from sexual intercourse with his best friend after an office Christmas party involving heavy drinking and marihuana use.

The central issue was consent, with the Crown alleging the complainant was asleep during the intercourse.

The court accepted the complainant's evidence as credible and reliable, found no evidentiary basis to infer that she awoke and consented, and applied the requirement that consent be a conscious, active agreement throughout the sexual activity.

Although the court was cautious about admissions potentially grounded in false memories, it found the remaining circumstantial evidence proved lack of consent beyond a reasonable doubt.

The accused was found guilty.

In a judge-alone sexual assault trial, the defence sought to call expert opinion evidence on memory to challenge the reliability of the accused's apparently inculpatory police statement and apology letter.

Applying the Mohan and Abbey framework, the court held that the proposed evidence was logically and legally relevant, necessary to assist the trier of fact on technical concepts concerning false and illusory memory, and not barred by any exclusionary rule.

The court also found that the benefits of admission outweighed any minimal litigation costs or risk of confusion.

The defence expert was therefore permitted to testify in specified memory-related areas, though not in the broader fields of cognitive psychology and memory generally.

In this pre-trial admissibility ruling in a sexual assault prosecution, the court considered whether the accused's police statement, apology letter, and consensual buccal swab should be excluded.

Applying the confessions rule, the court held the statement was voluntary, rejecting arguments that the interviewing officer used subtle compulsion, inducements, or implied leniency.

The court also found no breach of ss. 8 or 10(b) of the Charter, holding that the letter and DNA sample were provided with valid consent and that the accused was properly informed of his right to counsel but never asserted it.

The Charter application was dismissed and the statement was ruled admissible at trial.