Sask. man's sexual assault conviction, sentence upheld after appeal

The Court of King's Bench in Regina on Feb. 6, 2023. (Gareth Dillistone/CTV News)

WARNING: The following story contains details of sexual assault.

The appeal of a Saskatchewan man convicted of sexual assault over an incident at a house party in 2020 has been denied.

Mitchell Biesenthal was convicted by a judge and jury trial in Estevan in 2022, being sentenced to three years incarceration along with several other orders.

A publication ban is in effect on any information that could identify the complainant.

According to the Court of Appeal decision handed down Feb. 7, Biesenthal met the complainant in the case at the party in Oct. 2020. The complainant testified that in the late hours of the night, she was left alone with Biesenthal as others in the house went to bed.

“At Mr. Biesenthal’s invitation, the complainant agreed to dance,” the appeal decision said.

After that, the complainant testified Biesenthal pushed her onto the couch and proceeded to sexually assault her through touching and forced sexual intercourse.

“I was gone. Zoned out. Done. Physically, yeah, I was still there,” the decision said, quoting the complainant’s testimony.

The incident ended when the complainant’s sister entered the room. The complainant rushed to the bathroom, before telling her sister she was leaving. She did not tell her sister about the assault until the following day.

The complainant’s sister testified she was certain from what she’d seen that the two had not just been kissing on the living room floor. She later exchanged Snapchat messages with Biesenthal.

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“I’m usually not like that. I get consent all the time. I will find a way to make up for it,” Biesenthal said in one message during the exchange, which were presented as evidence at trial.

In court, Biesenthal denied a sexual assault took place, saying he kissed the complainant during a pair of songs and moved to the couch to “make out.” He told court all the kissing was consensual, and did not progress beyond that.

On the Snapchat messages, Biesenthal testified that he didn’t know what he was apologizing for and any apology offered was meant to appease the complainant’s sister, not admit to any criminal wrongdoing.

Grounds of Biesenthal’s appeal include alleged errors in the judge’s instructions to the jury and a refusal to amend the indictment to contain two separate counts of sexual assault (one for non-consensual kissing, the second for non-consensual touching and intercourse), which the Court of Appeal struck down.

As a result, Biesenthal’s appeal has been dismissed. He was ordered to surrender to the Estevan RCMP detachment on or before Feb. 9.