A Kelowna man jailed for three years for raping the roommate of a woman he’d met on Tinder will have a retrial after an appeal court ruled the original judge had misdirected the jury.

The three-panel of judges at the BC Court of Appeal ruled that Joshua Wayne Hawco’s conviction for a rape that took place in 2020 was overturned because of instructions the original judge gave to the jury.

“I see a significant risk that the jury was left with the impression that they had an obligation to first make findings about contested facts on a balance of probabilities, and then take those facts as proven for the purposes of deciding whether the Crown had established the essential elements of the offence,” Justice Paul Riley said in a Feb. 24 decision. “This did not equip the jury to properly decide the case according to the law and the evidence.”

The case dates back to December 2020, when the victim – whose name is covered under a publication ban – had been drinking with her roommate and some friends one evening at her apartment.

Sometime after midnight, when the friends had left, the victim’s roommate went on the dating app Tinder and matched with Hawco.

Soon afterwards, he arrived at the apartment with a bottle of wine and the three of them continued socializing.

At 3 a.m., the victim went to bed, but sometime afterwards woke up to Hawco sexually assaulting her.

During her original testimony, she said she felt “scared, paralyzed, and confused,” and was worried for the safety of her roommate.

She tried to twist her body to get away from Hawco, but he held her down and raped her.

He left the apartment and deleted his Tinder profile.

At trial, a jury found him guilty, and in July 2024, he was sentenced to three years’ jail.

However, he appealed and argued that the judge had misdirected the jury.

The Appeal Court agreed, finding that the trial judge had made an error in law by the way they directed the jury as to the “fact-finding process” they were to follow in reaching their verdict.

“As is often the case in sexual assault prosecutions, there were only two witnesses to the events forming the subject matter of the charge. Those two witnesses gave diametrically opposed accounts of what happened. The outcome at trial turned heavily on the jury’s assessment of the credibility and reliability of their testimony. The instructions as a whole did not properly equip the jury to conduct that assessment through the lens of proof beyond a reasonable doubt,” the Justice said.

Ultimately, the court overturned Hawco’s conviction and granted him a retrial.

There is no set date yet for the retrial.