Digest: R v Hasper, 2018 SKQB 126

• Date: April 30, 2018

Reported as: 2018 SKQB 126

Docket Number: CRIM 6/17 JCY , QB17515

Court: Court of Queen's Bench

Date: 2018-04-30

Judges:

• Tholl

Subjects:

• Criminal Law � Assault � Sexual Assault - Consent

Digest: The accused was charged with sexual assault contrary to s. 271 of the Criminal Code. The accused conceded that he was guilty of sexual assault regarding a portion of his actions in that he had touched the complainant�s breasts while she was sleeping but claimed that the sexual intercourse that followed had occurred with the consent of the complainant. In the alternative, the accused submitted that he had an honest but mistaken belief that the complainant consented. The alleged offence occurred after the complainant had gone to bed. She testified that she had had too much to drink and left the accused, his wife (the complainant�s sister) and her husband in the backyard and, probably due to her intoxication, she had not wakened when the accused touched her nor when intercourse occurred. She was wakened by her husband after he had seen the accused leave the bedroom. The accused testified that he had gone into the complainant�s bedroom with the intention of touching her breasts. He did not speak to her and made no attempt to identify himself to her in the dark but felt that the complainant�s response to the fondling indicated that she consented to intercourse, as she took her pants off and moved toward him. HELD: The accused was found guilty of sexual assault. The court held that the Crown had proven beyond a reasonable doubt that the complainant had not consented to the sexual intercourse. It accepted the evidence of the complainant and found that the accused�s testimony was inconsistent and lacked credibility. There was no air of reality to the defence of honest but mistaken belief. There had been no prior relationship between the parties and no communication of any kind prior to the offence that the complainant was sexually interested in the accused. Even if the court had found that there was an air of reality, the Crown had proven beyond a reasonable doubt the accused had not taken reasonable steps in the circumstances known to him at the time to ascertain consent. CORRIGENDUM dated June 11, 2018: On May 28, 2018, the Crown, at the request of Charlotte Ross-Koteck, applied to remove the publication ban pursuant to s. 486.4 of the Criminal Code, RSC 1985, c C-46. In an oral decision on that same date, the court granted...