A man from Hay River has been convicted of one count of sexual assault against a woman at her home in the town in December 2020.
Alex Roche faced trial on the charge in NWT Supreme Court in September this year.
In a written decision released on Friday, Justice Thomas Heeney convicted Roche, finding that he knew the woman – whose identity is protected by a publication ban – had not consented to sexual touching or sexual intercourse.
Defence lawyer John Hale had suggested during trial that to consent to something is different than wanting to do something. He argued there was a reasonable doubt as to whether Roche knew the woman did not consent, pointing to evidence such as the woman touching Roche’s leg while they were talking earlier that evening.
Heeney disagreed, finding that “to consent to sexual touching is to want that sexual touching to take place.”
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The judge said the woman “repeatedly and forcefully testified” that she did not want to be kissed, touched by, or have sex with Roche. He said there was “not a shred of evidence” that Roche took reasonable steps to ascertain whether the woman consented.
Heeney described the woman as “an extraordinarily credible and reliable witness.”
The woman testified during trial that she repeatedly told Roche she was not interested and only wanted to be friends. While she agreed to sleep in the same bed as Roche that night, as she did not want to send him outside in the winter with no transportation, she said she did so only to sleep, and on Roche’s assurance that he knew she did not want sexual contact.
“In my view, there is no evidence that raises any reasonable doubt against her assertion that she did not, in her mind, want the sexual touching to take place,” Heeney wrote.
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“I believe her evidence and conclude that the Crown has proven, beyond a reasonable doubt, that she did not consent to any of the sexual touching described in her evidence.”
Heeney said evidence indicating Roche knew the woman did not consent included that she objected to him kissing her, repeatedly told him she was not interested in that behaviour and only wanted to be friends, and that she agreed to lie down on the bed with him only to sleep and nothing more.
“The law is abundantly clear that ‘no means no,'” Heeney concluded. “‘No’ does not mean that is it OK to try again a few minutes later. Nor does not mean that, after being told no, an accused can ‘test the waters’ a short while later by again initiating sexual contact.”
Roche is set to be sentenced on the charge in Yellowknife on January 27.
