Three judges have deemed there was enough evidence, regarding the lack of consent, to toss out an appeal in a sexual assault case from 2016.
Clayton William Toenders appealed his conviction for a sexual assault that occurred in the early morning of Aug. 31, 2016, not denying sexual contact with the victim — whose name is protected by a publication ban — but stating there had been consent in the contact.
The victim was 18 years old, living in a foster home and suffering from several developmental and cognitive disorders. In the judgment, posted online Tuesday morning, she is described as a “vulnerable person with self-destructive inclinations and an under-developed sense of the danger of nocturnal street life.”
Toenders, who was 34 at the time of the assault, was wandering the streets of Victoria with a bottle of rum in his backpack when the two met up just before 1 a.m., after she snuck out of the foster home. They had not met before and spent the next hour and a half together.
Video evidence from nearby security cameras, along with two independent witnesses who were passing by was presented at trial. One of the witnesses called 911 when she heard Toenders tell the woman to ‘sit down and shut up,’ followed by what she thought was a slapping noise.
When police got to the scene they found the victim curled up and crying, her hair was dishevelled and her clothing was in disarray. She was taken to the hospital with at least 12 bruises, lacerations or swelling on her face and body.
“The accused’s claim that he believed her to be consenting has no air of reality,” wrote the judge, adding that Toenders’ behavior in court did not help his case.
During the victims testimony, Toenders was unable to suppress “a spasm of profane abuse” displaying a “lack of self-control,” noted the judge. When he took the stand himself, the judge stated he was “arrogant, lippy and ill-tempered,” interrupting counsel and swearing out loud multiple times.
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