What the Crown must prove
To prove sexual assault, Carroccia says the Crown must prove beyond a reasonable doubt that:
- There was touching.
- The touching was sexual.
- The sexual touching was not consensual.
She says that except for Foote, the first two questions are not at issue. There was touching and it was sexual. At issue at this trial is whether it was consensual.
The complainant must be aware that she has a choice whether or not to engage in the sexual touching at issue. No consent is obtained if the complainant expresses a lack of agreement to engage in the activity or if the complainant (even if she consented) does not want to continue, Carroccia says.
Intoxication is a factor to consider when determining the ability of a complainant to consent, she adds.
(Foote’s lawyer argued there was no sexual touching, Carroccia says.)
