Canada’s top court won’t hear man’s sexual assault appeal

Supreme Court of Canada dismissed Devon Burry’s application last week

The country’s top court won’t hear the appeal of a central Newfoundland man convicted of sexual assault.

The Supreme Court of Canada has dismissed the application of Devon Burry for leave to appeal, as the Newfoundland and Labrador Court of Appeal did earlier this year.

Burry was convicted after trial in provincial court in Gander of two charges of sexual assault on a teenage girl in 2016 and 2017. He appealed his convictions first to the province’s supreme court, alleging the trial judge had made an error in law when it came to what constitutes consent to sexual touching. Burry argued the complainant’s “submissiveness” to touching was a form of consent or amounted to reasonable doubt of sexual assault.

Newfoundland and Labrador Supreme Court Justice Glen Noel rejected Burry’s arguments in his decision two years ago, saying Burry had a “misguided and erroneous” understanding of the law. The judge pointed out the complainant had testified she did not consent to the touching and referenced the legal definition of consent: the “conscious agreement of the complainant to engage in every sexual act in a particular encounter and it must be freely given. This consent must exist at the time the sexual activity in question occurs and it can be revoked at any time.”

Burry took his case to the province’s Court of Appeal, which decided in February to dismiss his application for leave to appeal.

Burry then filed an application for leave to appeal with the Supreme Court of Canada, which dismissed it without cost last week. It has not publicly provided an elaborated decision.