The second ground took issue with the trial judge having said, early in his reasons, that he had to determine "which story is true". Had he gone on to determine the matter on that basis, ground for complaint might have arisen, but he did not do so. Read as a whole, his reasons for judgment disclose that he arrived at his conclusion on the footing each of the elements of the offence had to be established beyond a reasonable doubt. The main issue of fact was whether the touching was advertent or inadvertent. The trial judge simply did not believe the accused's testimony that the contact had been accidental, and went on to find that it had been deliberate. Obviously the accused's evidence had not raised a reasonable doubt in the mind of the trial judge on this score. In addition, the trial judge addressed the other elements of the offence and found that they had been made out, saying: "Applying the test specified in Regina v. Chase (1987), 1987 CanLII 23 (SCC), 59 C.R.(3d) 193, I am satisfied beyond a reasonable doubt that the accused is guilty of sexual assault as charged". Having regard for the whole of his reasons, we have not been persuaded that the trial judge erred as suggested in this ground of appeal.
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