Case information
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38427
W.L.S. v. Her Majesty the Queen
(Alberta) (Criminal) (As of Right)
(Publication ban in case)
Docket
Judgments on applications for leave to appeal are rendered by the Court, but are not necessarily unanimous.
| 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. |
Parties
Please note that in the case of closed files, the “Status” column reflects the status of the parties at the time of the proceedings. For more information about the proceedings and about the dates when the file was open, please consult the docket of the case in question.
Main parties
| Name | Role | Status |
|---|---|---|
| W.L.S. | Appellant | Active |
v.
| Name | Role | Status |
|---|---|---|
| Her Majesty the Queen | Respondent | Active |
Counsel
Party: W.L.S.
Counsel
James Wegener
400 Revillon Building
10320 102 Avenue
Edmonton, Alberta
T5J 4A1
Telephone: (780) 638-6588
FAX: (780) 415-2618
Email: dbullerwell@legalaid.ab.ca
Agent
100- 340 Gilmour Street
Ottawa, Ontario
K2P 0R3
Telephone: (613) 695-8855 Ext: 102
FAX: (613) 695-8580
Email: mfmajor@supremeadvocacy.ca
Party: Her Majesty the Queen
Counsel
3rd Floor Bowker Building
9833 - 109 Street
Edmonton, Alberta
T5K 2E8
Telephone: (780) 422-5401
FAX: (780) 422-1106
Email: cheryl.schlecker@gov.ab.ca
Agent
160 Elgin Street
Suite 2600
Ottawa, Ontario
K1P 1C3
Telephone: (613) 786-8695
FAX: (613) 788-3509
Email: lynne.watt@gowlingwlg.com
Summary
Keywords
Criminal law - Sexual assault - Consent - Whether Court of Appeal erred in concluding that the trial judge believed nothing short of unconsciousness could establish that the complainant did not subjectively consent to the sexual activity - Whether the Court of Appeal erred in concluding that the only reasonable inference compatible with the trial judge’s factual findings was that the complainant did not subjectively consent - Whether Court of Appeal should have ordered a new trial.
Summary
Case summaries are prepared by the Office of the Registrar of the Supreme Court of Canada (Law Branch). Please note that summaries are not provided to the Judges of the Court. They are placed on the Court file and website for information purposes only.
(PUBLICATION BAN IN CASE)
The appellant was acquitted of sexual assault. It is alleged that he dragged his son’s aunt from her bedroom to the living room while she was sleeping and violated her sexually on more than one occasion. The appellant’s 11 year old son witnessed the incidents and testified that at the time, his aunt was essentially unresponsive. The trial judge found his evidence to be clear and compelling and she accepted that it was truthful and reliable. She nevertheless acquitted the appellant, because she was not satisfied beyond a reasonable doubt that there was an absence of subjective consent, and because the aunt had had an opportunity to leave the home at some point but chose not to. The Court of Appeal allowed the Crown’s appeal and entered a conviction. In its view, because the trial judge accepted the son’s evidence, the only reasonable inference available to her was that the aunt was at least sleeping during one or more of the sexual encounters and was therefore incapable of consenting.
Lower court rulings
Provincial Court of Alberta
Appellant acquitted of sexual assault
Court of Appeal of Alberta (Edmonton)
1703-0318-A, 2018 ABCA 363
Appeal allowed and conviction entered
Memorandums of argument on application for leave to appeal
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Downloadable PDFs
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Related links
Factums on appeal
The factums of the appellant, the respondent and the intervener will be posted here at least 2 weeks before the hearing unless they contain personal information, information that is subject to a publication ban, or any other information that is not part of the public record. You may also obtain copies of factums by filling out the Request for Court records form or by contacting the Court’s Records Centre either by email at records-dossiers@scc-csc.ca or by telephone at 613‑996‑7933 or at 1‑888‑551‑1185.
If you have questions about a factum or want permission to use a factum, please contact the author of the factum directly. Their contact information appears on the first page of each factum.
Downloadable PDFs
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