A B.C. Supreme Court Justice is to issue a decision Friday morning on whether to grant a new trial to a man who had pleaded guilty to sexually assaulting his now ex-fiancée while she was in the psychiatric ward at University Hospital of Northern B.C.
The man, who cannot be named under a court-ordered publication ban against information that would identify the victim, had pleaded guilty to the offence expecting he would be sentenced to three years probation under a joint submission from Crown and defence counsels.
But in September 2016, provincial court judge Shannon Keyes found the sentence too lenient and instead sentenced him to 18 months in jail. She also commented that if the case had been treated as indictable rather than as a summary offence, 2 1/2 years would have been more appropriate.
Although the man pleaded guilty, he continued to claim during the pre-sentence process that the woman gave consent. Keyes found that irrelevant given the victim's condition.
The two had planned to marry but their relationship deteriorated and the woman was admitted to the ward over concern she might commit suicide. But they were still communicating and in July 2014, he agreed to deliver fresh clothing to the woman at the hospital.
During a hearing Thursday before Justice Lisa Warren, defense counsel Keith Aartsen argued there was an error in law. Despite being in the psychiatric ward, she was still capable of giving consent as defined under the law, he maintained.
He said the Crown, defence and the court "proceeded on the incorrect assumption that by reason of the complainant's committal to the psychiatric ward at the local hospital, she was incapable in law of consenting to sexual activity."
A different lawyer represented the man when he was originally sentenced.
"He did not get the benefit he bargained for," Gamble said.
The man has been out on bail since late November.
Crown counsel Tyson Gamble told the court the matter likely would not have been appealed had the man been sentenced in accordance with the joint submission.
Warren reserve judgment after hearing submissions.
