A Stratford man who was found guilty in 2017 of sexually assaulting a drunk teenage girl he didn't know has lost an appeal of his conviction.
Joseph MacGillivray was sentenced in November 2017 to two years less a day for the sexual assault after Chief provincial court Judge Nancy Orr found him guilty.
MacGillivray appealed that verdict, but in a recent unanimous decision, Justice John Mitchell writing for the P.E.I. Court of Appeal, said Orr was clear in her finding that there was no consent.
During the trial before Orr, the court heard the victim was drunk when she ended up in a dark bedroom where MacGillivray was sleeping and she didn’t realize he was there when she got into his bed.
The two were strangers and Orr said MacGillivray took no steps to determine who was there, if she was consenting or if she was able to consent.
When the victim testified, she said she was intoxicated and MacGillivray had intercourse with her against her will.
The two later exchanged messages through Facebook in which MacGillivray denied what he did was rape because he didn’t finish.
Mitchell wrote that in Orr’s decision, she pointed out numerous inconsistencies between MacGillivray’s evidence in court and his statement to police.
Orr found MacGillivray’s evidence wasn’t logical, Mitchell wrote.
The appeal decision said MacGillivray argued Orr didn’t scrutinize all the evidence to reach a reasonable doubt on a verdict and that she didn’t take into consideration the victim didn’t “cry foul” to anyone in the home or as she left Stratford.
MacGillivray also argued it was weeks before the victim confronted him and she didn’t go to the police until almost a year after the incident, which showed her “ambiguity” over what happened.
Mitchell noted it is recognized that not all sexual assault victims react the same way or raise an immediate alarm.
MacGillivray also appealed on the grounds Orr erred in concluding there was no evidence in support of a finding of mistaken belief in consent.
His evidence was that the victim was the sexual aggressor and she removed her pants, which led him to believe she was consenting.
In Orr’s decision, she said there was no basis upon which MacGillivray could have any type of honest belief the victim was consenting.
Orr said MacGillivray made no efforts to find out who she was or how old she was and there was no basis for him to conclude that she was capable of consenting, based on how intoxicated he indicated the victim was.
Mitchell wrote that Orr’s decision supported the conclusion MacGillivray couldn’t get to the mistaken belief in consent defence because he didn’t take reasonable steps at the time to determine if the victim was consenting.
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