Digest: R v D.S., 2018 SKQB 170

• Date: June 18, 2019

Reported as: 2018 SKQB 170

Docket Number: CRIM 2/17 JCM , QB17570

Court: Court of Queen's Bench

Date: 2019-06-18

Judges:

• Layh

Subjects:

• Criminal Law � Assault � Sexual Assault

Digest: The accused was charged with sexual assault contrary to s. 271 of the Criminal Code. The complainant, 24 years old at the time of the offence, testified that she and some friends had been drinking and then went to the accused�s house on the reserve and continued drinking there. The complainant and the accused were cousins and lived on the same reserve. The complainant fell asleep on the sofa and said that she felt safe doing so because the accused was her relative. She wakened when the accused started to touch her sexually. They then moved to the bedroom and had sexual intercourse. The complainant said had said that she didn�t want to have sex a number of times but did not say it loudly nor physically resist the accused because she was afraid. While driving the accused to her home, he asked the complainant if she was going to tell anyone. The accused was 58 years of age when the alleged offence occurred. He did not testify. He raised the defence of honest but mistaken belief.
HELD: The accused was found guilty. The court accepted the complainant�s evidence and found that the accused had not consented to any of the sexual touching or sexual activity. Under s. 273.1(2)(b), it found that although there were several instances of the complainant�s evidence that gave an air of reality to the defence, on assessing the totality of the evidence, her apparent acquiescence in going to the bedroom could not satisfy s. 273.1(2)(b) of the Code. The accused was related to the complainant and he was twice her age. There was no evidence that the accused and the complainant had ever been intimate previously and the accused knew that the complainant was seriously intoxicated. He asked her if she was going to tell anyone. Even if the court had found there was an air of reality to the defence, the court found that the accused had not taken reasonable steps in the circumstances known to him at the time to ascertain that the complainant was consenting.

Federal Statutes Considered:

• Criminal Code, RSC 1985, c C-46, s 253(1)(a)
• Criminal Code, RSC 1985, c C-46, s 255(1)
• Criminal Code, RSC 1985, c C-46, s 259(1)
• Criminal Code, RSC 1985, c C-46, s 259(4)
• Criminal Code, RSC 1985, c C-46, s 271
• Criminal Code, RSC 1985, c C-46, s 273.1
• Criminal Code, RSC...