Appeal from conviction on sexual assault charge. Accused was 14, while the complainant was 15. The two young people had met, held hands and kissed. The incident ended with the complainant performing what she testified was forced fellatio after having said “no” a number of times. Accused testified that the fellatio was with consent.
Held: Appeal dismissed.
After conducting a W(D) analysis, the trial judge believed the complainant, and found that “she capitulated. Capitulation is not consent.” Trial judge committed no error. “Assessing credibility is not an exact science”: Gagnon, 2006 SCC 17. It is a difficult task “for a trial judge to articulate with precision the complex intermingling of impressions that emerge after watching and listening to witnesses.”
D. Hatch – Defence Counsel