A Whitehorse man whose sexual assault conviction was overturned on appeal has been acquitted of the charge following a second trial. 

Jackie Kodwat, 46, was found not guilty of one count of sexual assault Thursday afternoon. He was accused of sexually assaulting a then-16-year-old girl in December 2015.

Her identity is protected by the court under a publication ban.

Judge Raymond Wyant made the decision via video appearance. While he had “deep concerns” and suspicions that a sexual assault may have occurred, he said, there was not strong enough evidence for a conviction.

The young woman’s father told the Star this morning he and his family are “very disappointed” with the court’s decision. And he said his daughter has been re-victimized by the court process.

“She said, ‘Why am I doing this? Why do I have to do this twice?’” he said of the impact it’s had her. “She’s lost all faith in the justice system.”

“I could see why women don’t want to go forward when they get sexually assaulted because of this stuff,” he added. “They get re-vicitimized again.”

The man said he is also concerned that Kodwat will be living in the community without court conditions, noting he has been convicted of sexual assault in the past.

“I’ve lost faith in the justice system because he’s out again,” he said. “I’m very upset with the system right now.”

Kodwat was first found guilty of the sexual assault charge in October 2016 by Judge Donald Luther. In May 2017, he was designated as a dangerous offender and sentenced to six years’ incarceration plus a 10-year supervision order.

But last July, that decision was overturned and a new trial ordered on the grounds that Luther had relied on a stereotype or generalization to make his decision.

The judge had written he found it “inconceivable” that an attractive young women would consent to have sex with a man who was 28 years her senior and who “meant nothing to her.”

The second trial began in late October this year.

Crown prosecutor Noel Sinclair had argued that the woman was “grossly intoxicated” and either did not consent or did not have the capacity to consent to sexual activity.

Defence lawyer Vincent Larochelle, however, argued the evidence was purely circumstantial and not sufficient for a conviction.

During his opening arguments, Sinclair said on the evening of Dec. 19, 2015, the woman had gone to a party at Yukon College with friends and had consumed an unknown quantity of alcohol. A friend who was with her that evening testified she would have rated her intoxication level at a seven out of 10.

The woman later left the party and went to a friend’s home in the McIntyre subdivision where she planned to spend the night.

But in the early-morning hours, she left the home underdressed for the cold weather and inadvertently ended up at Kodwat’s home.

The woman testified the last thing she remembered was falling asleep in a chair in a bedroom with her clothes on.

When she woke up at around 10 a.m., she said she was in bed beside Kodwat with her leggings and underwear off.

She testified Kodwat tried to pull her close to him and made a comment about her nice smile and teeth.

The woman said she immediately grabbed her things and went to a friend’s house next door where she recounted what had happened and then called the RCMP. That friend testified the woman was “crying her eyes out.”

Based on evidence collected from a forensic sexual assault kit, it has been confirmed that sexual activity took place between Kodwat and the woman, but she says she has no memory of it occurring. She also testified that she did not and would not have consented to have sex with Kodwat.

In his decision, Wyant noted there was no direct evidence about whether the woman had consented at the time as she has no memory and there were no independent witnesses.

But the judge said there was circumstantial evidence to assist the court. This included the woman’s statement that she would not have consented to have sex with Kodwat, and the fact that she showed up at a stranger’s front door in the early-morning hours when her ability to assess risk would have been low.

Wyant also pointed to evidence that the woman left Kodwat’s home immediately after she woke up and independent testimony that she was distressed.

Wyant concluded that while these factors could be viewed as consistent with a lack of consent, the evidence fell short of proof beyond a reasonable doubt.

“There certainly isn’t the web of circumstantial evidence that that inference could be drawn,” he said.

When it came to whether the woman had the capacity to consent, Wyant noted evidence of memory loss and intoxication on its own isn’t enough to negate consent under the law.

The woman was intoxicated and in a blackout state, he found, but there was no evidence that her motor functions were severely impaired. Evidence was also unclear on the woman’s alcohol tolerance and how much alcohol she had consumed that night, he said.

Reviewing the totality of the evidence, he said there was “too much uncertainty” to meet the standard required for a conviction.