Awet Mehari was sentenced to three years in prison for sexually assaulting a sleeping woman. He's asking Saskatchewan's highest court to overturn the conviction.
Justice Janet McMurtry sentenced the Regina man last May after a judge-alone trial. Court had heard that the complainant had gone to an after-party at Mehari's home. She testified that she was tired and fell asleep while waiting for a pizza, then woke up to Mehari sexually assaulting her.
Mehari's lawyer Aaron Fox said "the verdict can't stand" at the hearing at the Court of Appeal for Saskatchewan in Regina Friday. He said the trial judge made several errors in her judgment.
The trial judge found the woman to be a credible witness, but Fox questioned the witness's reliability and suggested the sex was consensual. During the trial, she testified that she did not remember what happened in the bedroom leading up to the alleged assault. Fox asked rhetorically if the complainant woke up to being sexually assaulted, or if that's when she "started remembering."
During the trial, Mehari testified that she was hysterical afterward. Crown prosecutor Dean Sinclair, who is handling the appeal, said it wouldn't make sense for a mature female who consented to sex to suddenly become hysterical after the fact.
However, Fox brought up sexual assault myths Friday and said that was actually a sexual assault stereotype for the judge to conclude the woman's "hysterical" behaviour was consistent with that of a sexual assault victim. He argued that there could be other reasons she was "hysterical."
He said her first concern when she woke up was that she had severe pain in her vaginal region, and suggested pain, or possibly remorse, was the reason she was hysterical.
Fox also took issue with the trial Crown prosecutor's "inappropriate" questioning lines, suggesting some put the burden of proof onto his client. He said the prosecutor questioned Mehari about why the woman was hysterical and why she would make false claims against him, to which Mehari eventually answered she could be acting in pursuit of financial gain.
Fox said the trial judge should have interfered in that line of questioning.
Sinclair said this questioning was "ill-advised." However, he concluded "the question and answer had no impact on the verdict."
Fox also argued that the trial judge did not imply the same level of scrutiny to Mehari and the complainant. The trial judge found her to be consistent, that she provided significant detail when she could and that her story flowed logically. However, Fox insisted that there were several contradictions to her story that were not considered enough.
Most concerning to him regarded the woman's description at trial of what Mehari allegedly said to her outside of the home after it happened: "you were young" and "you were horny" and "you wanted it," he said. Yet Fox said another witness testified that he didn't see Mehari outside and didn't hear this conversation.
Sinclair called Fox's arguments self-serving and designed to manufacture contradictions where they might not exist. He gave examples of how other testimony contradicted parts of Mehari's. Sinclair said that even if the judge doesn't comment on every single contradiction, that doesn't mean it has affected the verdict.
He told the appeal court that Mehari's testimony appeared rehearsed. Furthermore, he said the judge's findings — that the complainant was sleeping at the time of the alleged assault — left no room for a finding of consent, nor reasonable doubt.
Justice Robert Leurer, Justice Jeffrey Kalmakoff and Justice Peter Whitmore oversaw the hearing and reserved their decision.