Ontario Criminal


Appeal

GROUNDS
Memory loss did not undermine credibility on crucial issue of consent

Appeal by accused from his conviction for sexual assault and for breach of probation. Complainant attended concert when she was intoxicated. Her recollection of events was problematic because of her drunkenness but she recalled lying on ground with her pants down and accused was on top of her and he penetrated her vaginally. She also testified that co-accused penetrated her vaginally. Complainant’s evidence was unclear as to her memory gaps. Accused did not testify but co-accused did and he claimed that sexual relations were consensual. Co-accused did not appeal his conviction. Trial judge accepted complainant’s evidence and rejected co-accused’s testimony. Trial judge did not expressly deal with effect of complainant’s memory gap on her credibility. However, he dealt with her credibility and her reliability and his reasons responded to real issues in this case. Memory gap was not issue in this case because complainant, who earlier flirted with both accused clearly expressed her lack of consent and memory loss did not undermine her credibility on crucial issue of consent.

R. v. Rand

(Oct. 30, 2012, Ont. C.A., Rosenberg, Blair and Tulloch JJ.A., File No. CA C53113) 104 W.C.B. (2d) 10.

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