Supreme Court grants Crown appeal in Mehari sexual assault case
The case against a local music entrepreneur found guilty of sexually assaulting a sleeping woman took another turn on Friday as the country's highest court granted an appeal by the Crown.
Awet Mehari was found guilty of the charge following a trial in January 2019. Regina Court of Queen's Bench Justice Janet Mcmurtry believed the testimony of the complainant, who testified she'd been asleep when the incident occurred, making her unable to consent.
Mehari was handed a three-year prison sentence in May 2019 but appealed the following month. The Saskatchewan Court of Appeal heard the appeal in January and returned with a split decision in March in favour of allowing Mehari's appeal. That overturned the conviction and would have sent the matter back to Queen's Bench for a new trial.
But given the decision was split, the Crown had a right of appeal to the Supreme Court of Canada, which it took advantage of.
Crown prosecutor Dean Sinclair and Mehari's defence lawyer Aaron Fox appeared in front of a panel of Supreme Court justices on Friday morning via video, each arguing his case. Afterward, the court took an adjournment before returning with a decision the same morning, finding in favour of the Crown.
The issue at hand involved a defence claim that Mcmurtry had weighed the evidence of the complainant and Mehari differently — an argument that was successful at Saskatchewan's highest court.
On Friday, Fox made similar arguments as he did in the past, this time before the Supreme Court.
“We felt very strongly, as did the majority of the Court of Appeal, that the trial judge had applied a level of analysis that was unfair to the accused compared to the analysis of the complainant's evidence,” Fox said following the Friday decision. “The Supreme Court just weren't prepared to interfere with what the trial judge did.”
Sinclair urged the Supreme Court to overturn the Court of Appeal decision, successfully arguing Mcmurtry didn't make the error alleged.
The Supreme Court decision sends the matter back to the Court of Appeal, where the court will now need to consider the remainder of the grounds laid out by Fox on Mehari's behalf.
Fox said it will be up to the court to decide whether they have enough information before them or if they want to hear additional argument from counsel.
In the original Court of Appeal decision, Justice Jeff Kalmakoff wrote for the majority: “Such an error means that Mr. Mehari did not have a fair trial and, therefore, a new trial is warranted,” further noting the case is one hinging almost entirely on the credibility of the complainant and Mehari.
The remaining judge on the Appeal Court panel, Justice Robert Leurer, dismissed Mehari's appeal on each of the grounds.
As the Appeal Court majority had ruled to overturn the conviction on the one ground, they didn't go on to consider a number of other grounds laid out by Mehari.
Those remaining grounds now to be decided include a claim McMurtry effectively reversed the burden of proof in the way she weighed testimony; that she failed to properly consider circumstantial evidence pertaining to the complainant's testimony; and that she didn't consider the defence of honest but mistaken belief that consent had been given.