Docket

38427

W.L.S. v. Her Majesty the Queen

(Alta.) (Criminal) (As of Right)

(Publication ban in case)

Judgments on applications for leave to appeal are rendered by the Court, but are not necessarily unanimous.

Proceedings
Date Proceeding Filed By
(if applicable)
2019-06-03 Appeal closed
2019-05-14 Correspondence (sent by the Court) to, Collin Lafrance. RE: Request for a lockup.
2019-05-07 Transcript received, 49 pages
2019-04-29 Formal judgment sent to the registrar of the court of appeal and all parties
2019-04-29 Judgment on appeal and notice of deposit of judgment sent to all parties
2019-04-26 Judgment on the appeal rendered, Mo Côt Br Row Mar,
The appeal from the judgment of the Court of Appeal of Alberta (Edmonton), Number 1703-0318-A, 2018 ABCA 363, dated October 30, 2018, was heard on April 26, 2019, and the Court on that day delivered the following judgment orally:

MARTIN J. — The accused was acquitted of sexual assault following a trial before a judge alone in the Provincial Court of Alberta. The Crown appealed the acquittal to the Alberta Court of Appeal, which unanimously allowed the appeal and substituted a conviction. The accused appeals to this Court as of right.

We would dismiss the appeal and uphold the conviction for substantially the reasons of the Court of Appeal. We would add, however, in our view, it was not necessary to reach back into the record of the trial judge’s interactions with counsel to identify an error of law. Rather, errors of law are apparent on the face of the trial judge’s reasons.

The trial judge accepted the testimony of the witness as being truthful and reliable on the “core issues”, namely that he saw his father, the accused, drag the complainant from her bedroom into the living room and engage in sexual activity with her on several occasions. The trial judge accepted this evidence but held that “one inference, given the evidence of [the witness] is that [the complainant] was not consenting to the sexual activity involving the accused, it must be the only reasonable inference if the Crown is to prove lack of consent beyond a reasonable doubt” (trial reasons (Alta. Prov. Ct.), December 1, 2017).

In our view, the act of dragging the complainant while asleep and drugged is inconsistent with any sort of consent. There was no evidence, or absence of evidence, to support any reasonable inference other than non-consent. No alternative inference was posited to the trial judge in submissions, and she did not cite any alternative inference in her reasons.

In this case, the trial judge misapplied not only the law of circumstantial evidence to the evidence of the witness, which she accepted, she also misapplied the law on consent. This complainant was statutorily incapable of consenting and any other finding on this point was a clear error of law.

We would therefore uphold the Court of Appeal’s decision to enter a verdict of guilty on the charge of sexual assault and remit the case back to the trial court for sentencing.
Dismissed
2019-04-26 General proceeding, (Letter Form), Questionnaire regarding the publication ban. Her Majesty the Queen
2019-04-26 General proceeding, (Letter Form), Questionnaire regarding the publication ban. W.L.S.
2019-04-26 Certificate (on limitations to public access), (Letter Form), 23B-Condensed Book Her Majesty the Queen
2019-04-26 Respondent's condensed book, (Book Form), 14 copies (Submitted in Court) Her Majesty the Queen
2019-04-26 Certificate (on limitations to public access), (Letter Form), 23B-Condensed Book W.L.S.
2019-04-26 Appellant's condensed book, (Book Form), 14 copies (Submitted in Court) W.L.S.
2019-04-26 Hearing of the appeal, 2019-04-26, Mo Côt Br Row Mar
Judgment rendered
2019-04-17 Correspondence received from, (Letter Form), Cheryl A. Schlecker. RE: Comments on possible Counsel lockup. Her Majesty the Queen
2019-04-17 Correspondence received from, (Letter Form), Dane Bullerwell. RE: Comments on possible Counsel lockup. W.L.S.
2019-04-16 Notice of appearance, (Letter Form), Cheryl A. Schlecker will appear before the court and will present oral arguments. Her Majesty the Queen
2019-04-12 Appeal perfected for hearing
2019-04-11 Notice of appearance, (Letter Form), Dane F. Bullerwell and James Wegener will appear before the court. Mr. Bullerwell will present oral arguments. W.L.S.
2019-04-11 Correspondence (sent by the Court) to, the parties. RE: Resquest for a lockup.
2019-04-04 Certificate (on limitations to public access), (Letter Form), 23B Her Majesty the Queen
2019-04-04 Certificate (on limitations to public access), (Letter Form), 23A Her Majesty the Queen
2019-04-04 Respondent's factum, (Book Form), Completed on: 2019-04-04 Her Majesty the Queen
2019-03-29 Media lock-up requested or proposed
2019-03-04 Notice of hearing sent to parties
2019-02-26 Appeal hearing scheduled, 2019-04-26, Previous tentative hearing date was April 23, 2019
Judgment rendered
2019-02-25 Certificate of counsel (attesting to record), (Letter Form) W.L.S.
2019-02-11 Certificate (on limitations to public access), (Letter Form), 23B W.L.S.
2019-02-11 Appellant's record, (Book Form), (2 volumes), 24A missing-rec'd 2019/02/25, Completed on: 2019-02-25 W.L.S.
2019-02-11 Appellant's factum, (Book Form), Completed on: 2019-02-11 W.L.S.
2019-01-11 Correspondence (sent by the Court) to, the parties. New tentative hearing date set for April 26, 2019 (previous tentative hearing date was April 23, 2019).
2019-01-07 Correspondence received from, (Letter Form), Cheryl Schlecker is counsel for the respondent. Her Majesty the Queen
2018-12-10 Letter advising the parties of tentative hearing date and filing deadlines (Notice of appeal – As of right)
2018-12-03 Letter acknowledging receipt of a notice of appeal
2018-11-28 Certificate (on limitations to public access), (Letter Form), 23B W.L.S.
2018-11-28 Certificate (on limitations to public access), (Letter Form), 23A W.L.S.
2018-11-28 Notice of appeal, (Letter Form), Completed on: 2018-11-28 W.L.S.