A man convicted of a 2015 sexual assault in Rankin Inlet appealed his case at the Nunavut Court of Appeal in Iqaluit last week.
Lee Jordan Nauya was not present in the courtroom when his lawyer Eva Taché-Green presented arguments on his behalf before a three-judge panel.
Nauya was convicted in 2018 by a jury that found he had sex with a woman who was too drunk to consent.
Justice Paul Bychok then sentenced Nauya to about 20 months in prison.
Taché-Green said the judge at Nauya's trial, Justice Earl Johnson, made a crucial mistake when he failed to properly instruct the jury before their deliberations.
Before a jury deliberates a trial judge instructs them on the elements of the potential crime they must assess.
At Nauya's trial, Johnson failed to tell the jury about one of those elements, namely to consider what Nauya believed to be true at the time of the incident, Taché-Green said.
This mental component of a crime is called the mens rea — a Latin term which literally means "guilty mind."
If Nauya had reasonable grounds to believe the complainant had consented, that would potentially lead to a defence called "honest but mistaken belief in consent".
But that defence was never raised at trial, Crown prosecutor Benjamin Flight pointed out to appeals' judges on Sept. 16. And so, it shouldn't be allowed to be raised on appeal, he said.
Lawyer argues jury's verdict 'unreasonable'
Taché-Green made the appeal on a different argument as well: that the jury's verdict was unreasonable and therefore should be overturned.
This argument says a jury must deliver a verdict that is the only reasonable conclusion they could have come to, but in this case there are two possible conclusions.
Based on the evidence it is possible that the complainant consented, even if she doesn't remember doing so, and then became incapacitated due to alcohol afterwards, Taché-Green said.
At the original trial, the woman testified that she doesn't remember consenting and would not have consented. She said she was force-fed alcohol by Nauya after being sober for six months, and then dumped on the side of the mining road outside Rankin Inlet with her pants around her ankles, unconscious.
She came-to in a hospital in Winnipeg where she was told she had had sex with Nauya — until then, the woman had no recollection of it, she told the jury at trial.
The jury and Johnson believed the woman's account over Nauya's, but the judge said the evidence on drinking was inconsistent.
Nauya is seeking an acquittal or a new trial.
But he has already served the sentence imposed by Justice Bychok.
That means if a new trial were granted, a stay of proceedings may be entered to reflect that Nauya already served time in prison.
The appeals judges said they would reserve their decision until a later date.