Accused was charged with sexual assault. Complainant testified at the preliminary inquiry that she was drinking outside of the accused’s house. She wanted a place to “pass out” and so she went into the client’s bedroom. In her police statement she said that she fell asleep and the woke up with accused on top of her and his penis in her vagina. She pushed him off her and went outside and called her friend. She stated that she and her friend then “beat up” the accused. She went and got her Dad who also then beat up the accused. She declined to attend at the hospital to have a “rape kit” done. At the preliminary inquiry the complainant’s version of events were markedly different and she confirmed in cross that she had not yet fallen asleep when she noticed the accused was on top of her, and that although her pants were down, he did not put his penis in her vagina, she was not charged with assaulting the client, however her father was, and that she did not get a rape kit done since there was no penetration.
Held:
Based on the low threshold for committal to stand trial, the client was order to stand trial in the Court of Queen’s Bench. However, shortly thereafter a Stay of Proceedings was entered by the Crown on the basis of no reasonable likelihood of conviction .