Sask. man loses bid to quash conviction for sexual assault of 17-year-old girl

Court of King's Bench in Regina. (File)

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A Melfort-area man convicted of sexually assaulting a 17-year-old girl multiple times at a New Year’s Eve party has lost his appeal to get a new trial.

The man was convicted of sexual assault and sentenced to three years in prison in 2022, along with other orders common to those convicted of sex crimes.

He appealed the conviction in February, arguing the trial judge blew past his serious questions about the credibility of the complainant’s testimony — including differences between what she told police and her testimony, and her statement that her memory of the events came in “flashbacks.”

In the Aug. 7 written decision from the appeal court, Justices Jeffery Kalmakoff and Georgina Jackson upheld the conviction. They said the trial judge recognized the “potentially problematic” areas of the victim’s testimony and approached her evidence with caution.

“Coming at the evaluation of [the victim’s] evidence from that angle, he concluded that the core of her testimony was, nonetheless, reliable. That conclusion is one that a reasonable view of the evidence supports. In light of all of that, I am not convinced that there is a proper basis to interfere,” Kalmakoff wrote in his decision.

In a dissenting opinion, Justice Brian Barrington-Foote agreed with the accused — the judge should have given more weight to the problematic aspects of the complainant’s testimony.

Sexual assault is a notoriously difficult crime to prosecute — often happening between two people in private and hinging on the credibility of contradictory testimony.

In this case, alcohol and marijuana were also a complicating factor.

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At the time of events, the accused was 19-years-old and the victim was 17. The accused was dating the victim's friend and it was at the victim's friend's parent’s house that the crime took place.

At trial, court heard the three drank and socialized at the New Year’s Eve party, and the victim also smoked marijuana. She testified she became intoxicated and fell asleep. The victim told court she woke up on the futon in the basement and the accused was on top of her, having vaginal intercourse.

The victim testified that she asked the accused what he was doing, and he did not reply but ‘just kept going’ until he ‘finished’ and got off of her.

According to the court document, the victim said she gathered up some clothing that was lying on the floor and went to her friend's bedroom to talk to her about what had just happened. According to the victim., her friend did not want to get out of bed, so she walked upstairs and out the front door of the house to have a cigarette.”

The victim said she was assaulted two other times that night — once, with the accused forcing oral sex on her, and another round of forced vaginal intercourse.

She testified the final assault ended when her friend emerged from her room and saw what was happening. Her friend screamed, waking her parents, who came down and kicked out the accused and the victim.

The victim called her parents to come pick her up, and her mother convinced her to file a police report, according to court records.

The details of the assaults as described to police differed from what she later told court, which became the centre of the accused's defence — attacking the credibility of the complainant.

In his 2022 verdict, the trial judge said he relied on the victim's demeanour during her testimony in assessing the credibility and reliability of her allegations.

In his dissenting opinion from the appeal, Barrington-Foote deferred to the trial judge in part, but he took issue with how the judge treated her claims that the memories of the assault were returning to her in flashbacks that “just keep coming and never stop.”

Sometimes, “confirmatory evidence” is required to help a judge rely on flashbacks to establish proof beyond a reasonable doubt, Barrington-Foote says.

According to Barrington-Foote, there is nothing to suggest that the trial judge "grappled with the important factors bearing on the reliability" of the victim's flashbacks, "despite the fact that those flashbacks could have been found to be the source of all of her testimony.”

The case law on the determining the credibility of flashback memories is limited, Barrington-Foote argued, but it should still be applied.

Having ultimately lost his appeal, the accused was ordered to surrender himself to the Saskatchewan Penitentiary to begin his sentence.