Judge did not confuse touching with sexual touching

GROUNDS

Judge did not confuse touching with sexual touching

Appeal by accused from his conviction on one count of sexual assault on basis that trial judge misapprehended evidence. Complainant, aged 18, consumed substantial amount of alcohol when she was out with accused and other friends. She spent night at accused’s apartment and fell asleep on couch. She woke up twice to find accused touching her vagina. Complainant did not ask accused to stop because she never fully woke up and she was only half awake for several seconds. When she woke up she was unsure as to whether accused assaulted her but by time she returned home she was certain that she had been violated. Friend of accused and of complainant testified that accused admitted to her that he touched complainant and that there was no excuse for this type of behavior. Accused did not testify. Appeal dismissed. Findings of fact made by trial judge were supported by complainant’s evidence. Judge did not misstate or misapprehend the evidence. He did not make inconsistent or contradictory findings regarding complainant’s memory for he believed everything that she said and he found her to be a candid witness. At the same time, however, he properly held that her evidence had to be approached with caution in light of her intoxicated condition. Judge did not fail to distinguish sexual assaults from other instances of touching that occurred between accused and complainant. He clearly understood what constituted sexual assault and he did not confuse touching with sexual touching. Judge did not err in finding that complainant’s evidence proved allegations. He also did not fail to appreciate weaknesses in Crown’s case.

R. v. Lee (July 15, 2011, Ont. S.C.J., Garton J., File No. 116/09) Decision at 84 W.C.B. (2d) 849 affirmed. 96 W.C.B. (2d) 438 (23 pp.).