Act of dragging complainant while asleep and drugged was inconsistent with any sort of consent

Supreme court | Criminal Law | Appeals | Appeal from conviction or acquittal

At trial, accused's 11 year old son testified that he witnessed accused drag complainant from bedroom to living room while she was sleeping, undress her, and violate her sexually on more than one occasion. Trial judge acquitted accused of sexual assault and unlawful confinement as she was not satisfied beyond reasonable doubt regarding absence of subjective consent. Crown's appeal was allowed on basis that since child's evidence was accepted on core issues relative to sexual assault, only reasonable inference was that complainant was at least sleeping during one or more sexual encounter and was therefore incapable of consenting. Accused appealed. Appeal dismissed. Act of dragging complainant while asleep and drugged was inconsistent with any sort of consent. No evidence or absence of evidence supported any reasonable inference other than non-consent. Trial judge made clear error of law in misapplying law on consent.

R. v. W.L.S. (2019), 2019 CarswellAlta 848, 2019 CarswellAlta 849, 2019 SCC 27, 2019 CSC 27, Moldaver J., Côté J., Brown J., Rowe J., and Martin J. (S.C.C.); affirmed (2018), 2018 CarswellAlta 2558, 2018 ABCA 363, J.D. Bruce McDonald J.A., Michelle Crighton J.A., and Ritu Khullar J.A. (Alta. C.A.).

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