Matthew Gourlay

The appellant appealed his convictions for sexual assault and breach of an undertaking, as well as a mandatory lifetime SOIRA order.

He argued the trial judge erred in admitting and relying on MSN messages to find consciousness of guilt and to reject his testimony.

The Superior Court dismissed the conviction appeal, finding the trial judge properly considered circumstantial evidence, including the content of the messages and the appellant's own testimony, to authenticate the electronic correspondence.

The court quashed the sentence appeal, concluding there is no statutory jurisdiction to appeal a mandatory SOIRA order made under section 490.012(1) of the Criminal Code.

The appellant appealed his conviction for sexual assault arising from an incident at a house party.

The complainant testified she was asleep when the sexual activity began, while the appellant testified she was awake and actively participated.

The trial judge convicted the appellant, finding the complainant was asleep and therefore could not consent.

On appeal, the Superior Court of Justice found the trial judge erred by failing to consider the defence of honest but mistaken belief in consent, which had an air of reality given the conflicting testimony and evidence of the complainant's intoxication, sleep-walking, and sleep-talking.

The trial judge also erred by failing to conduct a proper reliability analysis of the complainant's evidence in light of her alcohol consumption.

The appeal was allowed, the conviction quashed, and a new trial ordered.