Taylor Potts

This decision addresses the charge of sexual assault against a sleep technician, Sardar Hoque, who was accused of inappropriately touching a patient, Ms Y., during an overnight sleep study.

The court carefully analyzed whether the touching was sexual in nature and whether consent was present.

The judge found that while the touching of the patient's upper torso to place probes was not objectively sexual and fell within the scope of implied consent, the touching of the patient's upper inner thigh was objectively sexual in nature, lacked consent, and was done with recklessness or wilful blindness to the absence of consent.

The accused was found guilty of sexual assault based on the unlawful touching of the inner thigh.

The court considered whether it could impose sentence under section 669.2 of the Criminal Code after the trial judge retired, where the trial judge’s reasons for conviction and acquittal on two counts of sexual assault were ambiguous and appeared to conflate evidence between counts.

The Crown argued for sentencing to proceed, while Amicus argued a mistrial was necessary due to the confusion in the trial judge’s reasons.

The court found the errors and conflation in the trial judge’s reasons too significant to proceed to sentencing and declared a mistrial, remitting the matter for a new trial.