EVIDENCE - Witnesses - Credibility

Law360 Canada (June 20, 2022, 9:38 AM EDT) -- Appeal by Bowers from conviction for sexual assault. His sole ground was that the trial judge unevenly scrutinized the evidence in her assessment of credibility. The offence occurred the morning after a house party at the home of the complainant’s cousin. The complainant testified she was asleep on a couch and awoke to Bowers assaulting her by inserting his finger into her private organ and trying to have sex with her. The complainant testified that the sexual assault took place under a blanket. Bowers said the complainant invited him to the couch, they were spooning, and the complainant initiated sexual contact by grabbing for his private organ. He denied that any other sexual activity occurred. The trial judge found that sexual contact was initiated by Bowers when the complainant was asleep, and as such there was no clear and unambiguous consent. She rejected Bowers’ testimony that the complainant invited her to join him on the couch and found no honest but mistaken belief in communicated consent. She convicted Bowers of sexual assault....
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