The judge accepted the woman’s testimony she tried to physically resist the attack and at one point ‘verbally begged him to stop’
The severe memory loss suffered by a woman who said she was raped by a man she had just met at a Calgary bar remains unexplained, a judge found Wednesday.
But Justice Ken McLeod said one thing was certain, Yoseph Mulugeta Abreha forced himself on the woman against her will.
The Calgary Court of Justice judge came to the same conclusion a jury reached in September 2021, that Abreha, 27, was guilty of sexual assault.
Abreha’s jury conviction was overturned by the Alberta Court of Appeal last year which ordered a retrial based on errors made by the trial judge.
But McLeod rejected Abreha’s evidence there was only sexual touching and kissing between himself and the complainant and it was with her consent.
Instead, he accepted the woman’s evidence she was forcefully sexually assaulted by Abreha in his SUV in the early morning hours of Aug. 24, 2019.
The victim testified she had little recollection from being on the dance floor at the since-closed Music nightclub in the city’s Beltline district to being assaulted by Abreha in a residential area the Edmonton woman was unfamiliar with.
McLeod accepted the woman’s testimony she tried to physically resist the attack and at one point “verbally begged him to stop.”
The judge agreed with defence counsel Jill Shiskin there were significant periods of absence in the woman’s version of events.
But he said her memory loss wasn’t explained in the evidence before him.
“There is no clear evidence as to why this might have been the case. I conclude that it is not alcohol-related.”
Evidence that the woman’s urine was tested 14 or 15 hours after the encounter for the rape drug GHB was inconclusive because it usually wears off within 18 hours, McLeod noted.
“There is no evidence that is was caused by the consumption of a drug,” he said.
“That on the evidence remains a possibility, but the medical evidence remains neutral on the point.”
McLeod agreed with Crown prosecutor Donna Spaner that there was no air of reality to Abreha’s claim he had an honest but mistaken belief the woman was consenting.
“There is no possibility of honest but mistaken belief on the part of Mr. Abreha,” the judge said.
“I am satisfied beyond a reasonable doubt that (the victim) did not consent to the sexual activity that occurred with Mr. Abreha.”
McLeod will hear sentencing submissions on Aug. 23. Abreha remains in custody.