Jennie Rose Mongeau

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.

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.