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Baker Lake man faces jail for sex assault on passed-out woman

"What are you doing with a sleeping woman?"

GREG YOUNGER-LEWIS

A 48-year-old man from Baker Lake faces time in prison for sexually assaulting a woman while she was unconscious, after an appeals court threw out his previous acquittal.

Moses Tookanachiak pleaded not guilty last year to sexual assault on a woman who had passed out on a couch after a night of heavy drinking in his home community, in the summer of 2003.

The charge is based on testimony from his party friends, who found him naked and moaning on a couch, with his face in the woman's crotch. She was wearing only a T-shirt.

At the end of his trial, Justice Earl Johnson acquitted Tookanachiak, based on his doubt about whether the woman agreed to the act.

But last month, the Nunavut Court of Appeal ruled that the judge made a mistake, based on arguments that the woman could not have consented, because she was unconscious.

According to court documents, the woman testified that she couldn't clearly remember what happened that night, but stated firmly that she "didn't want him to perform any activity on her while she was asleep."

Under cross-examination, she testified at the trial that she "didn't think" she told Tookanachiak that he could kiss or touch her.

But Crown prosecutor Faiyaz Alibhai claimed her weak memory of the evening shouldn't have affected the outcome of the trial.

Alibhai said a person can only give legal consent at the time of the sexual act.

Tookanachiak was caught assaulting the woman when she did not - and could not - approve.

Defence lawyer Marvin Bloos agreed a person is not capable of consenting to sex after passing out.

However, Bloos argued the Crown could not prove a lack of consent because they didn't know what happened before the witnesses found the moaning man.

At one point in his submission, Bloos questioned whether the woman might have consented to the sex act, as she admitted regretting her actions on repeated nights of drinking.

Her regret "does not turn her consent at the time into a non-consent with hindsight," Bloos wrote.

The woman said she only found out about the assault after Tookanachiak's moaning woke other party goers from a nearby sofa. "What are you doing with a sleeping woman?" one man reportedly asked.

Tookanachiak appeared shocked, fled from the room, and put on another man's pants. When the woman found out what happened, she hit Tookanachiak, giving him a bloody nose.

Tookanachiak is scheduled for sentencing on Aug. 23.

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