J. Melo

The accused was tried on a single count of sexual assault arising from multiple alleged sexual incidents with a 16-year-old complainant who was a friend of his son and frequently attended his home.

The court accepted the complainant’s evidence on four incidents, rejected the accused’s denial that any sexual acts occurred, and found the defence evidence did not raise a reasonable doubt under W.(D.).

The court held the complainant did not subjectively consent and, in any event, any apparent consent was vitiated because the accused abused a position of trust, power, and authority over a vulnerable teenager.

A finding of guilt was entered.

The appellant appealed her summary conviction for refusing to provide a breath sample.

At the police station, after speaking with duty counsel, the appellant refused to leave her cell and began speaking only in French, despite having communicated in English previously.

The trial judge found she was 'playing games' and convicted her.

The Summary Conviction Appeal Court dismissed the appeal, holding that the trial judge's credibility findings and conclusion that the refusal was unequivocal were supported by the evidence.