J. Couse

In a sexual assault trial arising from an encounter after online communications and discussions of possible sexual activity, the central issue was consent.

The court applied the W.(D.) framework and found that, although the accused had credibility problems and lied on some points, his account retained an air of reality when assessed against the whole of the evidence.

The complainant's evidence contained significant reliability and credibility concerns, including inconsistencies about how the encounter began and ended, uncertainty about parts of the event, and evidentiary gaps relating to physical exhibits.

The Crown therefore failed to prove the absence of consent beyond a reasonable doubt, and the accused was acquitted.

The applicant, charged with first degree murder alongside three co-defendants, applied for a separate trial.

He argued that a joint trial would be unfair because the Crown intended to adduce intercepted conversations involving his co-defendants that were inadmissible against him but potentially prejudicial.

The court dismissed the application, finding that the intercepts did not directly incriminate the applicant and that any risk of prejudice could be managed through limiting instructions.

The court concluded that the pragmatic benefits of a joint trial outweighed the potential prejudice.