The Yukon Court of Appeal has ordered a new trial in the case of a Whitehorse man convicted of sexual assault earlier this year.

The appeal was granted on August 30.

Reasons for the appeal stated that Justice Leigh Gower of the Yukon Supreme Court, the original trial judge, misapprehended the evidence in a trial that focussed on the issue of consent.

During the trial, which took place in May, Gower said it was a “he-said, she-said” case.

However, the appeal claimed Gower applied different levels of scrutiny to the credibility of the complainant and the accused.

Appeal Court Justice Madam Saunders said she found this credibility assessment to be central to Gower’s proof of lack of consent. She also found the assessment to be insufficient grounds for conviction.

The trial in May focussed on the events of an August night in 2013.

The complainant and the accused (both names are protected by a publication ban) were out drinking with friends, first at a lake, then at a downtown Whitehorse bar.

Around 2 a.m., the complainant and the accused — the appellant – returned to the home of the appellant, where the complainant went to sleep on a couch in his room.

During the trial, each gave a different account of the evening.

The complainant said the appellant had been coming on to her all night, touching her and making negative comments about her boyfriend (who wasn’t out that night).

The complainant said she went home with the appellant because she had nowhere else to go. She agreed she slept on the appellant’s couch, and said she woke up to find the appellant on top of her.

The appellant refuted this. He said he hadn’t been hitting on her or talking about her boyfriend that night. He also said the sex took place in his bed after she approached him.

The complainant testified she left the home of the accused around 5:30 a.m. and went to Whitehorse General Hospital, concerned about sexually transmitted diseases.

The doctor who attended her recommended a sexual assault kit, but the complainant rejected it.

The complainant filed a report with the RCMP a few days later.

At trial, she said the doctor at the hospital told her that her vagina showed bruising, lacerations and lesions. The doctor’s report said there was tenderness and redness, but no bruising or abrasions.

During trial, there were also discrepancies between the testimony of the complainant and her boyfriend, whom she had called after the assault. Each recalled exchanging a different number of phone calls, and said the calls occurred at different times.

Her boyfriend said that, during her first call, she told him “I have something to tell you. I slept with (the appellant).”

There was further conflicting evidence about a suicidal text message the complainant said she had received from the appellant. She initially reported to police that the message had come in on her personal phone, which she then erased and returned to her service provider for repairs. During trial, she said the message had been received on a loaner phone.

The complainant said she had offered to bring the phone in to police on multiple occasions. Police testified the complainant had never offered to bring the phone in and police had never declined to look at it.

Gower attributed the complainant’s contradictions about the phone to a combination of confusion and trauma stemming from the event.

In her appeal ruing, Saunders disagreed on this point.

“If the judge had correctly conceived of this striking contradiction, he could not have excused this discrepancy as simply a mistake made because (the complainant) was confused and traumatized, but would have needed to consider both her accuracy in communicating with the police and the overall accuracy of her evidence – determinations that would bear upon her credibility,” she wrote.

With respect to the appellant, Gower ruled the appellant had shown poor judgement that night in driving after having had six beers. Gower also said it showed a lack of judgement that he’d had sex without a condom.

Gower found photos of the complainant’s neck to be consistent with her story that the appellant had bitten her, rather than with the appellant’s account that the appellant may have given the complainant a hickey.

Finally, Gower took issue with the timeline laid out by the appellant, saying the appellant’s explanation of the sequence of the night’s events didn’t match up with the timeline he had laid out.

Altogether, Gower found these discrepancies compromised the credibility of the appellant.

In her decision, Saunders didn’t grant an acquittal, but did call for a retrial.

“This was a case entirely dependent on the judge’s assessment of credibility,” wrote Saunders. “I consider that the judgement rests on conclusions material to the credibility assessments that are either unsupported by the evidence or are based upon evidence that was misapprehended. In my view, the verdict cannot stand.”