Case information

Criminal law - Sexual assault - Unreasonable verdict - Evidence - Assessment - Reliability - Capacity to consent - Compatibility of findings of fact relating to reliability and capacity to consent with evidence not otherwise contradicted or rejected - Whether the Court of Appeal erred by finding the verdict of guilt was unreasonable within the meaning of s. 686(1)(a)(i) of the Criminal Code because the trial judge engaged in illogical or irrational reasoning - Whether the Court of Appeal erred by failing to properly apply s. 273.1 of the Criminal Code (meaning of consent) to the facts as the trial judge found them to be - Criminal Code, R.S.C. 1985, c. C-46, ss. 273.1 and 686(1)(a)(i).

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(PUBLICATION BAN)

At trial, the respondent, Mr. Kishayinew, was convicted of sexual assault and failure to comply with an undertaking (ss. 145(3) and 271 of the Criminal Code) and was sentenced to 4.5 years in prison. A majority of the Saskatchewan Court of Appeal allowed Mr. Kishayinew’s appeal from conviction, set aside the convictions and ordered a new trial. In the majority’s view, the trial judge erred by making findings of fact essential to the verdict that were incompatible with evidence that was not otherwise contradicted or rejected, leading to an unreasonable verdict within the meaning of s. 686(1)(a)(i) of the Criminal Code. The majority found that the trial judge’s reasons reflected an implicit finding of fact that the complainant was reliable and lacked capacity to consent, findings that were incompatible with important evidence given by the complainant as to her intoxication. In dissent, Tholl J.A. would have dismissed the appeal against conviction as, in his view, the verdict was not unreasonable. The trial judge examined credibility and reliability and properly arrived at the conclusion that the Crown had proven an absence of consent beyond a reasonable doubt. His conclusion on reliability was reasonably available on the evidence before him and there were no inconsistent or incompatible findings of fact in relation to consent that rendered the verdict unreasonable.