Appeal court overlooks errors in upholding sex assault case
Despite errors by the trial judge, a sexual assault conviction against a Kelowna man has been upheld by B.C.’s top court.
The BC Court of Appeal on Tuesday rejected an appeal from Jeremy Robert Czechowski, who had been convicted on four counts after taking a woman home following a night of drinking and cocaine consumption at a nightclub in February 2016.
The victim complained she’d been choked, threatened, blocked from leaving the house and at one point let a sexual encounter go ahead out of fear.
After leaving the house, she called police and told them: “He raped me. He was going to kill me.”
Czechowski was convicted of sexual assault causing bodily harm, unlawful confinement, choking with intent to enable commission of an indictable offence, and uttering threats.
He cited seven grounds for his appeal. The one the appeals court agreed with most strongly was that evidence provided by a doctor who examined the victim went beyond her area of expertise.
In a decision written by Madam Justice Lauri Ann Fenlon, the judges said, however, throwing that evidence out wouldn’t change the verdict.
“The judge erred by admitting and relying on expert evidence beyond the expert’s qualifications,” Fenlon wrote. “Although the errors were serious and prejudicial to the appellant, the conviction is upheld under the curative proviso: the remaining evidence against the appellant on the issue of consent would inevitably result in conviction on a retrial.”
The doctor who examined the victim found 24 injuries, plus vaginal bruising. The victim’s description of blackening of vision and “white speckles” was consistent with choking, the doctor testified.
The defendant argued the encounters were consensual. His lawyers also pointed to the victim’s significant memory gaps.
“On the issues of consent and capacity, the reasons for judgment are not a model of clarity,” Fenlon wrote of the original decision. “But they demonstrate that the judge was convinced beyond a reasonable doubt (the victim) did not consent to the sexual activity with the appellant.
“The physical defensive injuries proved beyond a reasonable doubt that she did not consent to the sexual contact with the appellant,” the ruling said.
It also said the victim was incapable of consent because of her intoxication.
“This is a case in which the evidence against the appellant on the issue of consent is so powerful that there is no realistic possibility that a new trial would produce a different result,” Fenlon wrote.
“There was a significant body of evidence quite apart from the testimony of the complainant to support the non-consensual nature of the sexual contact. In summary, even if (the victim’s) testimony is not considered, the photographic evidence of her injuries, Dr. Martin’s assessment of those injuries, and (the victim’s) interactions with police immediately after leaving the residence are inconsistent with consensual sex.”