Digest: R v Kacuiba, 2018 SKPC 39

• Date: June 18, 2018

Reported as: 2018 SKPC 39

Docket Number: 30573330 , PC17129

Court: Provincial Court

Date: 2018-06-18

Judges:

• Harradence

Subjects:

• Criminal Law � Assault � Sexual Assault

Digest: The accused was charged with sexual assault. The complainant testified that she had been drinking and consequently was blacking out during the period of time in which she alleged that the accused had sex with her against her will. In cross-examination she admitted that she was intoxicated but not to the point of passing out or so as to be incapable of consent. The accused testified that he had had sex with the complainant but that it was consensual. The issues were consent and honest belief in consent.
HELD: The accused was found guilty. The court did not believe the accused�s testimony that he asked the complainant to have sex or that she agreed. It found that he had not taken steps, let alone reasonable ones, to ascertain whether the complainant was consenting and was satisfied beyond a reasonable doubt that the complainant did not consent to sexual intercourse. The defence of honest belief was not applicable.

Federal Statutes Considered:

• Criminal Code, RSC 1985, c C-46, s 273.1(2)
• Criminal Code, RSC 1985, c C-46, s 273.2

Cases Considered:

• R v Al-Rawi, 2010 NSCA 10, 359 CCC (3d) 237
• R v Dippel, 2011 ABCA 129, 48 Alta LR (5th) 362, 505 AR 347, 281 CCC (3d) 33, 87 CR (6th) 299
• R v D.W., [1991] 1 SCR 742, 122 NR 277, 46 OAC 352, 63 CCC (3d) 397, 3 CR (4th) 302
• R v Ewanchuk, [1999] 1 SCR 330, 169 DLR (4th) 193, 131 CCC (3d) 481, 22 CR (5th) 1
• R v J.A., 2011 SCC 28, [2011] 2 SCR 440
• R v J.J.R.D. (2006), 2006 CanLII 40088, 215 CCC (3d) 252
• R v Kishayinew, 2017 SKQB 177, 141 WCB (2d) 533
• R v Vuradin, 2013 SCC 38, [2013] 2 SCR 639