Sexual assault trial. Alleged assault occurred during an after grad party. Complainant was intoxicated, and testified that she said “no” multiple times. Accused testified that the sexual activity was consensual.
As per Ewanchuk, the Court is required to weigh all of the evidence at trial in determining the subjective state of mind of the complainant regarding consent. Further, even if the complainant did not consent, the accused may have an honest belief in consent. As per W(D), a verdict is not to be based on a choice between competing versions, rather, the question is whether, on the whole of the evidence, the trier of fact is left with a reasonable doubt: REM, 2008 SCC 51. Court unable to accept complainant’s evidence about saying “no”, and about not touching the accused’s crotch.
B. Beresh – Defence Counsel