Photo: Colin Dacre
UPDATE: 3:15 p.m.
“Gentlemen, you are free to go.”
Judge Kathleen Kerr acquitted the three remaining defendants on Friday afternoon after a two-week sexual assault trial in Kelowna.
The acquittal came after Crown Prosecutor Patricia O’Neill ordered Judge Kerr to acquit the accused because of what she described as “weak evidence”.
The surprising move comes after the applicant in a case called YW spent seven days testifying in the case, several of which were cross-examined.
Following the acquittal, Christian Dupas, Cole Comin and Trevor Pereverzov embraced tears with their families in the court gallery.
On Wednesday, a fourth defendant, David Dupas, was acquitted after YW admitted it was unsure whether David was one of the men involved in the alleged attack.
During her testimony, YW claimed to have “darkened” after a night of drinking with a group of people, and when she regained consciousness, she was sexually assaulted by the four defendants. She said she repeatedly told them to stop and let her go, and then contacted police in the morning and was examined at Kelowna General Hospital.
The accused claims that the sexual activity was by mutual consent.
“From day one, we claimed that it was a sexual encounter by mutual consent, and through cross-examination of all defenders, it became clear that the Crown could not prove otherwise,” Chimney Defender Timothy Foster said after his acquittal.
“It was a cumulative effect. We built on that, we cross-examined for three days, and I think the complainant was actually trying to be fair. She had difficulty with a lack of memory, and as she became increasingly aware of what the defense’s evidence would be, she began to admit that it might be possible … it was obvious to everyone that there was no realistic prospect that this would lead to a verdict. “
Foster said that while a person could not give informed consent for sexual activity while “incapacitated by alcohol”, he said in this case that he believed that YW did not remember much of the incident, but was still able to give consent.
“By law, yes, you can give informed consent, even if you don’t remember, and that means ‘darkened,'” Foster said. “You cannot give informed consent if you have fainted and are unconscious and lying on the bed and someone starts having sex with you … but that was not the case.”
The Crown’s order to be acquitted came after the defense completed its cross-examination of YW on Friday morning. O’Neill told the court that she was discussing her intention to acquit YW
“It’s been four years since our clients have been overwhelmed,” Foster said. “There were consequences, there will be some people who will never believe that just because they were justified, that they are not guilty … that is unfortunately part of the world we live in.”
The trial was due to continue next week, and Foster said his client, Chimney, intended to defend himself.
Judge Kerr applauded the Crown’s decision to acquit.
“Miss O’Neill, I say, boldly but very correctly judged that the evidence could no longer meet the exacting standard of proof beyond a reasonable doubt,” Judge Kerr said.
“She has invited the court to issue acquittals and this is the appropriate order in the case.
Castanet turned to the British Columbia Prosecutor’s Office for further comment on what led O’Neill to decide to acquit him.
ORIGINAL: 14:20
The process of sexual assault and forcible detention against four young men connected to a home party in West Kelowna in 2018 ended with an acquittal.
Crown prosecutor Patricia O’Neill announced in court on Friday, after cross-examination of the alleged victim, that she acquitted all other defendants.
The woman, nicknamed YW because her identity is protected by a ban on publishing, took a stand last week and testified that she was gang-raped by four young men after a night of drinking.
In a cross-examination Wednesday, she admitted that she did not specifically remember one of the accused, David Dupas, taking part in the alleged attack.
That left three others – Kole Comin, Christian Dupas and Trevor Pereverzoff – still charged until Friday.
All four men are now fully acquitted of all charges against them.
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