Peter A. Harris

The accused was charged with sexual assault of a child under sixteen years of age, specifically touching the child with his legs for a sexual purpose and counselling or inviting the child to touch his penis.

The Crown's case relied on the testimony of the eight-year-old complainant and observations by two adult witnesses.

The defence argued the complainant's evidence was inconsistent and based on leading questions, and that an innocent explanation existed involving a malfunctioning zipper on the accused's pants.

The court found the Crown had not proven the requisite mens rea (sexual purpose) beyond a reasonable doubt and acquitted the accused on both charges.

The accused was charged with sexual assault contrary to section 271 of the Criminal Code.

The complainant testified that she awoke to find the accused engaged in sexual activity with her while she was asleep in her bedroom.

The accused claimed the complainant was kissing him back and that he believed she had consented.

The court found that the complainant did not consent as she was incapable of consenting while asleep, and that the accused failed to take reasonable steps to ascertain consent.

The court rejected the defence of honest but mistaken belief in consent, finding no air of reality to the defence given the circumstances and the accused's self-induced intoxication.