Supreme Court rejects reasoning for overturning of Sask. sexual assault conviction

Awet Mehari was found guilty of sexual assault, but earlier this year Saskatchewan's highest court overturned that conviction and ordered a new trial.

The decision to allow the appeal was not unanimous, so the case went to the Supreme Court of Canada. The matter was heard Friday morning.

The Supreme Court did not not side with Saskatchewan's Court of Appeal, rejecting the argument that lead the justices to overturn the conviction.

Mehari is alleged to have sexually assaulted Alexis Kolody in 2017. He was convicted and sentenced to three years in prison in 2019 following a judge-alone trial. When Mehari appealed the conviction, he argued the judge made several errors in coming to her conclusion.

He suggested one of those errors was that the judge applied "uneven scrutiny" to his testimony compared to the complainant. Two justices with the appeal court concluded that the trial judge made errors in applying a "more stringent level of scrutiny" to the evidence of Mehari than to Kolody's evidence.

Because they decided that argument had merit and warranted a new trial, they did not address Mehari's other arguments for why an appeal should be allowed. That's why Friday's hearing with the Supreme Court revolved around whether or not "uneven scrutiny" was in fact grounds for a successful appeal.

Dean Sinclair, director of appeals with Public Prosecutions, and defence lawyer Aaron Fox appeared before the Supreme Court of Canada virtually to present arguments.

Sinclair said the trial judge used the same measuring sticks when considering different testimonies. He said the two appeal court justices failed to respect what the trial judge actually said and oversimplified her reasoning. Sinclair said the justices modified the judge's perception of the facts and then used that modification to criticize her findings.

Fox argued the opposite, insisting that the record shows there was a cumulative pattern that showed the trial judge had applied uneven scrutiny to his client.

The panel of Supreme Court justices said that while Fox said everything he could, in the end they did not agree that the trial judge applied uneven scrutiny to the evidence.

They sent the matter back to Saskatchewan's Court of Appeal so the two justices can review and decide on the other four grounds of appeal that were submitted by Mehari.

Mehari argued other errors were made rendering the trial unfair, including impermissible cross-examination, mistreatment of evidence of events after the alleged sexual assault, misapplication of principles governing circumstantial evidence and failure to consider whether Mehari had an "honest but mistaken belief in communicated consent."

The complainant in the case, Kolody, is optimistic because the Saskatchewan court of appeal justice who argued the appeal should be dismissed had addressed each error Mehari suggested the judge had made. The justice did not find merit in any of the alleged errors and explained why in a 27-page dissent.

"I'm feeling super happy and overwhelmed and kind of at a loss for words," said Kolody Friday afternoon.

She watched the live-streamed Supreme Court hearing with her parents at home.

"It's encouraging," Kolody said. "It makes me feel good. It feels like what I've done for the last two years of my healing journey or going to court — it was all worth it."

During the first trial, Kolody asked the court to lift the usual publication ban on alleged sexual victims' names so she could speak freely about her experience and support other survivors.

Kolody is hopeful that continuing to speak about her experience can help others understand what it's like to go through the court system.

"Sometimes it actually is worth speaking up and speaking out to others and voicing what's happened to you and your journey, because you actually will be heard. You will be validated. You will be supported."