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Nova Scotia Supreme Court finds man guilty of sexual assault

A Nova Scotia Supreme Court justice has found a man guilty of sexual assault, saying that the victim was a credible witness even though she had little memory of the night it happened.

The two people involved were strangers at the time of the assault, which happened in 2014 during a cabin party in the small Pictou, N.S., community of Garden of Eden.

The woman, whose name is protected by a publication ban, said she had consumed several alcoholic drinks — before and after arriving at the cabin — and was too intoxicated to remember much of the night.

"The gaps in her memory were genuine," Supreme Court Justice N.M. Scaravelli said in a written decision released Thursday. "(She) was not evasive or argumentative during cross-examination. I am confident that she was trying to be truthful."

The victim had gone to the party with her boyfriend at the time, but the two became separated after an argument and he spent the night with a friend.

The day after the party, the victim said she woke up in the cabin "in a panic" because she didn't know where she was and couldn't remember how she got there.

During a ride to her boyfriend's home on an all-terrain vehicle, according to the decision, the woman felt a pain in her rectum. It triggered a flashback to the previous night, in which she vaguely remembered saying "it hurts."

More memories came later on, court heard.

"And then realizing I just started to cry," she said in her testimony.

The day after the party, she went to the hospital, where a forensic examination was performed, and she contacted the RCMP.

In June 2015, police followed the accused to a parking lot in Stellarton, where they collected a cigarette he discarded and sent it in for analysis.

DNA from the cigarette ended up matching the sperm sample from the swabs taken from the victim.

The assailant, whose name and age were not released in the written decision, testified that the woman was sober enough to consent, and the pair had consensual sex.

Scaravelli wrote in his decision that the man's testimony contradicted evidence from other witnesses.

"According to witnesses, she progressed from being unsteady on her feet, slurring her words but coherent to extremely intoxicated and incoherent by midnight," he said, also noting that the accused was evasive under questioning about the time that the sexual activity happened.

The judge also said that certain elements of the man's testimony were contradicted by DNA evidence, which cast further doubt on his story.

While Scaravelli said that he was not satisfied beyond a reasonable doubt that the victim was too drunk to consent to sex, he accepted the victim's evidence that she was asleep at the time that the assault happened and did not consent to sexual activity with the man.

"Based upon the whole of the evidence I have accepted, I am satisfied the crown has proven beyond a reasonable doubt, lack of consent to the sexual activity and that there was no mistaken belief in consent on the part of the accused," he wrote. 

A lawyer for the accused was not immediately available for comment Sunday.

Alex Cooke, The Canadian Press

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