Re-trial on sexual assault charge. Accused and complainant engaged in sexual activity in a bathroom during a party. Issue regarding consent.

Held: Acquitted.

Accused’s testimony raised a reasonable doubt. Complainant’s testimony not accepted. “Despite the fact that the absence of consent is purely subjective, it is open to the accused to claim that the complainant’s words and actions in the context of the incident raise a reasonable doubt against her assertion that she, in her mind, did not [consent] .., the question is the state of the complainant’s mind at the time of the contact, not before or after (Ewanchuk para. 26), although in considering the issue of the credibility of the complainant’s assertion of non-consent, the Court may consider what the complainant said or did leading up to, during, and following the same.”

Flynn – Defence Counsel