The Defence Toolkit – April 20, 2024: Blackout

This week’s top three summaries: R v Green, 2024 ABCA 118: #blackout and sex, R v TH, 2024 BCCA 123: CSO and appeal standard, and R v ADM, 2024 ABKB 212: #credibility and extrinsic facts.

Our firm focuses on representation in complex criminal trials and criminal appeals. We also provide ghostwriting services to other firms for written submissions. Consider us for your appeal referrals or when you need written submissions on a file. 

R v Green, 2024 ABCA 118

[April 9, 2024] Sexual Assault: Blackout does not Mean Lack of Consent [Kevin Feehan, Jane A. Fagnan, and April Gross JJ.A.]

AUTHOR’S NOTE: The absence of memory by the complainant in a sexual assault case does not automatically indicate a lack of consent for sex. It's crucial to differentiate between being unconscious and experiencing a blackout; individuals can consent to sex even if they later have no memory due to a blackout. However, it is clear that an unconscious person cannot give consent.

It's essential that a trial judge provides clear legal instructions to the jury to prevent confusion between these two conditions. The trier of fact must be prepared to consider the possibility that the complainant, while experiencing a blackout, may have been conscious and appeared to be functioning normally and capable of giving consent during the sexual activity.

I. Overview

[1] Tyrell Green and Dillan Sorochan appeal their convictions of June 16, 2022, by a trial judge sitting with a jury, for sexual assault of the same complainant on October 27, 2019, contrary to s 271 of the Criminal Code, RSC 1985, c C-46. By agreement, the appeals were heard together and are being determined together.

[2] The main issues at trial were consent, honest mistaken belief in communicated consent, reliability, and credibility.

[3] On October 26, 2019, Mr Green and Mr Sorochan attended a party at the home of a relative of Mr Green. The complainant arrived from another party where she had consumed alcohol. The complainant also drank alcohol at this party and estimated her impairment was 9 going on 10 by the time the party started to wrap up.

[4] When guests began to leave the party around midnight, Mr Sorochan invited the complainant to come to the house he shared with Mr Green, and she accepted. She had known Mr Green for about eight years but did not know Mr Sorochan. The complainant testified she felt rushed and “time pressured”, and said her mind and mouth “weren’t connecting”. She said she had “blackouts” and only flashes of memory from this time forward. She left the party in a taxi with Mr Green and Mr Sorochan and went to their home, where the sexual activity occurred.

[5] The appellants admitted to having sex with the complainant. They said the sexual acts were consensual; the complainant said they were not. At trial, the Crown argued the complainant lacked capacity to consent because of intoxication

IV. Analysis

a. Evidence of intoxication, blackout, memory loss, and unconsciousness

[12] The evidence at trial was that the complainant consumed alcohol prior to the sexual activity and experienced blackouts, which she defined as lack of memory, during periods of time when she was observed by others to be functioning normally in terms of both motor and communication skills. She testified that some periods of blackout occurred leading up to and during the sexual activity. She said she did not remember the beginning of the sexual activity but she recalled times between periods of blackout.

[14] The trial judge referred to evidence by the host of the party about his unremarkable interaction with and observations of the complainant during a period she characterized as a blackout as she was leaving his house with Mr Sorochan and Mr Green, prior to the sexual activity.

[15] The jury was instructed to determine if any blackouts occurred and if they affected memory, consciousness or both. However, the Crown did not argue that the complainant was unconscious or fully incapacitated at the relevant times, but rather that she lacked capacity to consent due to her level of intoxication. The complainant herself described “blackout” as a loss of memory. She only testified to one period of “unconsciousness”, which was in the taxi leaving the party prior to the sexual activity. She recalled being awakened from sleep in the taxi. Therefore, references in the jury instructions to the complainant’s “testimony about whether she was conscious throughout the sexual activity” and “her testimony about whether she was conscious when intercourse with Mr. Green began” and asking the jury to determine whether her blackout affected consciousness, could cause confusion between the distinct concepts of consciousness, lack of capacity to consent, and absence of memory. [Emphasis by PJM]

[16] More importantly, where there is evidence of blackout, a trier of fact must consider the possibility that the complainant in her state of blackout may have been conscious during the sexual activity, appearing to function normally, and capable of consenting: R v Garciacruz, 2015 ONCA 27, para 57, 320 CCC (3d) 414. [Emphasis by PJM]

[17] No expert evidence was adduced regarding the complainant’s blackout evidence. In the absence of such evidence, lack of memory due to blackout resulting from intoxication is not direct evidence of lack of consent or incapacity: R v JR and JD (2006), 40 CR (6th) 97, paras 17-20, 43- 45 (Ont SC), affd 2008 ONCA 200, 59 CR (6th) 158, leave to appeal to SCC refd [2008] 2 SCR vii, xi.

[20] It was open to the jury to accept the complainant’s evidence. If they accepted her evidence that blackouts occurred, it follows that she could not testify as to what happened during these periods of blackout. If the jury did not accept the complainant’s evidence that she blacked out, they still did not have any direct evidence from her as to those periods. The only direct evidence regarding the complainant’s conduct during periods characterized as blackout while the sexual activity was occurring was the evidence of Mr Green and Mr Sorochan.

[22].... However, at no point was the jury instructed, specifically in relation to consent, that even if they accepted the complainant’s evidence of blackout and rejected the direct evidence of the appellants, they would have to find that all the circumstantial evidence which they accepted reasonably permitted only one inference, being that the complainant did not consent to the sexual activity with the appellants. [Emphasis by PJM]

[23] On a functional review of the jury instructions in the context of the case as a whole, they did not make it clear to the jury that if the jury accepted the complainant’s evidence of blackout, that meant she had no memory of what occurred during the blackout. The resulting absence of evidence in and of itself does not equate to lack of consent or lack of capacity to consent. The jury was not instructed that they must exclude all reasonable possibilities other than lack of consent, including the possibility that the complainant consented (and communicated consent) to the sexual activity while in a state of blackout.

[25] Given these omissions in the jury instruction in this area, the appeals must be allowed on this ground. It is appropriate that these matters be returned for a new trial.

b. Other grounds of appeal

[27] The Crown concedes the trial judge erred in law in failing to instruct the jury that Mr Green’s post-event Facebook message could not be used against Mr Sorochan. We are not satisfied that the curative proviso in s 686(1)(b)(iii) of the Criminal Code applies. In the Facebook message, Mr Green lied about his participation in the sexual activity in question. It is reasonably possible that the Facebook message diminished Mr Green’s credibility in the eyes of the jury and that without instruction to the contrary, the jury also saw it as diminishing Mr Sorochan’s credibility because his evidence at trial was very similar to that of Mr Green’s. That possibility creates serious prejudice to Mr Sorochan. In our view, Mr Sorochan would also be entitled to a new trial on this basis.

V. Conclusion

[31] The appeals of both Mr Green and Mr Sorochan are allowed. These matters must be returned for retrial.

R v TH, 2024 BCCA 123

[April 9, 2024] Sentence Appeals: Standard of Review - Sexual Assault: Conditional Sentence [Reasons by MacKenzie J.A. with Willcock and Fenlon JJ.A. concurring]

AUTHOR’S NOTE: Sentencing decisions are generally given significant deference. Appellate judges can only intervene if a sentence is "demonstrably unfit" or if there was an "error in principle" that affected the sentence. Appeal courts should not interfere simply because they might have chosen a different sentence, because the sentence falls outside the typical range, or because the trial judge assigned different weight to sentencing principles than the appellate court might have.

In this case, a sentence of 2 years of Community Supervision Order (CSO) followed by 3 years of probation was deemed to be appropriately severe and proportionate to the seriousness of the offence: a major sexual assault.

[1] The respondent, T.H., was convicted after trial by judge alone in the Supreme Court of British Columbia on one count of sexual assault, contrary to s. 271 of the Criminal Code, R.S.C. 1985, c. C-46 [Code]. The Crown appeals from the respondent’s conditional sentence of two years less a day followed by three years’ probation. The terms of the conditional sentence included house arrest for the entire period, abstention from alcohol and drugs (also a term of the probation order) and restitution to the complainant of $7,000. The judge also made ancillary orders, including a requirement to report for 20 years under the Sex Offender Information Registration Act, S.C. 2004, c. 10 (“SOIRA”).

[3] After a brief intimate relationship, the complainant made it clear to the respondent that she just wanted to be friends. The two had known each other approximately two months before the respondent sexually assaulted the complainant by forced vaginal penetration. The respondent was 25 years old when he committed the offence, and the two were celebrating the complainant’s twenty-third birthday at the respondent’s home.

[6] When the discrete terms of the conditional sentence are viewed cumulatively and as followed by the probation order to result in five years of supervision, I do not view this sentence as demonstrably unfit or the result of material error. The sentence is harsh in all the circumstances. This is a borderline case, and a conditional sentence will rarely amount to a fit sentence for a sexual assault of this nature. But ultimately, absent a material error in principle or a demonstrably unfit sentence, the test is not whether this Court would have imposed this sentence. I consider that the Crown is inviting us to reweigh the relevant sentencing principles and factors, which is not our role.

[8] In his reasons for sentence, the judge summarized the circumstances of the offence:

[5] The [complainant] met the offender by way of a dating app in October of 2021. They went on a couple of dates together and were briefly in a romantic relationship.

[6] The complainant described the offender as a good friend, and on December 10, 2021, she planned to spend the evening with the offender as a way of celebrating her birthday.

[7] The plan was that the complainant and the offender would watch movies together. During the course of the evening, the complainant drank one or two ounces of rum and was not intoxicated. The offender drank approximately 18 ounces of bourbon and was extremely intoxicated.

[8] Later in the evening the offender took the complainant to his bedroom and he had sexual intercourse with the complainant on one occasion. The offender took the complainant’s clothes off of her and the complainant was crying and shaking during the sexual activity. The complainant did not consent to the sexual activity.

[9] At one point the complainant was lying on the floor of the offender's residence and the offender brought her back to bed with him.

[9] During the assault, the respondent, then a close friend of the complainant, told her that he was helping her get over childhood trauma. The complainant was unable to talk. The respondent flipped the complainant over onto her stomach and forced vaginal intercourse upon her. At some point, the respondent put his hands on the complainant’s neck, but did not choke her. When the respondent finished, the condom had broken and the complainant had semen running down her leg.

[10] The judge quoted the note the respondent left for the complainant when she picked up some belongings from his residence a few days later. The note said:

[the complainant], I can’t even begin to comprehend what I put you through, the horrendous things I don’t remember will haunt me for the rest of my life. Please understand that I didn’t want any of it to happen. I sincerely hope that you will be able to heal from the trauma I caused and be able to trust someone again. You may never give me a chance to try to make amends but going forward I will be better. I will never lose control of my actions again. I can never apologize enough. [the respondent].

[11] The judge found, based on the respondent’s evidence of his alcohol consumption as well as the note he wrote to the complainant, that he did not remember many of the details of the sexual activity between him and the complainant.

[12] In his sentencing reasons, the judge replicated the following from his reasons for judgment after trial:

[130] I have already found that the accused was extremely intoxicated on the evening in question. In my view, his judgment was significantly impaired and any belief that he had that the complainant consented to sexual activity arose from his self-induced intoxication.

[132] Further, the accused was reckless in his actions towards the complainant, given his level of intoxication, and his actions in ignoring what should have been obvious to the accused; that the complainant was in physical distress because she was crying and shaking.

[133] The accused’s own evidence is that he did not believe either party was capable of providing informed consent to sexual activities. Further, there were clear points in time when the accused acknowledged that something appeared to be wrong with the complainant during the sexual activity, and nonetheless he persisted.

Victim Impact

[13] The gravity of the offence is confirmed by the victim impact statement, in which the complainant described suffering crippling anxiety, insecurity, self-doubt and an eating disorder, all arising from the offence committed against her....

....The complainant was unable to work for two months after the offence, and her early attempts to return to work were difficult because of her struggles with anxiety. The offence affected her financially because of time off work, medical and counselling expenses.

The Circumstances of the Respondent

[14] The judge noted in his sentencing reasons that the respondent was young, had no criminal record, and was gainfully employed as a tradesperson. He had strong family ties and had been undergoing counselling.

[15] The judge quoted from a letter written by the woman engaged to the respondent. She wrote that the respondent had always shown respect and care for her and her boundaries.

[16] The respondent’s probation officer wrote in the pre-sentence report that the respondent believed (at that point) he had been treated unfairly and the allegations were “never thoroughly investigated”. The probation officer included a negative description of the respondent by a former girlfriend who said he was “controlling and … sexually the subject was pushy and … would get pissy after being told no.”

[17] The judge also referred to a psychological assessment in which the writer said the significant differences between the description of the offence and the victim statement made it difficult to fully evaluate his risk of future sexual offending. However, the writer opined that the likelihood of any sexual violence in the near future was low.

[19] Referring to his apology to the complainant and to the court, the judge said, “[t]he offender has expressed remorse for his actions, which I accept as being sincere, though he does not seem to accept that he has done anything legally wrong nor taken full responsibilities for his actions” (RFS, at para. 21).

[20] As stated, in the court below the Crown sought a sentence of 30 months’ imprisonment. The respondent sought a two-year-less-a-day term of imprisonment to be served in the community as a conditional sentence, followed by three years of probation. The respondent pointed out he had been subject to a long-standing bail order of conditions prohibiting alcohol and use of controlled drugs, suggesting such a further order was appropriate. He further suggested he could realistically pay restitution of up to $5,000. The respondent addressed the court with an emphatic apology to the complainant, telling the court he was a changed man.

[25] The judge recognized that deterrence and denunciation are the primary considerations on sentence for this offence, but rehabilitation was also a consideration. Importantly, he concluded a fit sentence of two years less a day “in custody” followed by three years of probation would achieve the goals of deterrence and denunciation, assist with the respondent’s rehabilitation, and meet the requirements of a conditional sentence of not endangering the safety of the community and being consistent with the fundamental purpose and principles of sentencing.

[26] The judge considered that total supervision of five years would ensure the public safety and enable the respondent to maintain his employment and pay restitution of $7,000 to pay for the complainant’s counselling, medical expenses, and a rough assessment of lost wages.

[27] The judge then set out the compulsory and optional conditions of the conditional sentence, which included no contact with the complainant, house arrest for 24 hours a day for the full term of the conditional sentence, except for employment or other compelling reasons, no possession of alcohol, drugs or any other intoxicant except by medical prescription, counselling, and the restitution order of $7,000. The judge imposed various ancillary orders, including compliance with the SOIRA for 20 years.

Standard of Review

[29] It is well established that sentencing is a highly individualized and profoundly subjective process (R. v. Lacasse, 2015 SCC 64, at para. 40, citing R. v. Shropshire, [1995] 4 S.C.R. 227, at para. 46).

[30] An appellate court can intervene to vary a sentence only where the sentence is demonstrably unfit, and where the sentencing judge has made an error in principle that had an impact on the sentence (R. v. Friesen, 2020 SCC 9, at para. 26). Demonstrably unfit sentences constitute a clearly unreasonable departure from the fundamental principle of proportionality (R. v. Merkel, 2021 BCCA 445, at para. 46).

[31] Sentencing decisions are entitled to considerable deference and an appeal court should only substitute its own decision for a sentencing judge’s for good reason (Friesen, at para. 25, citing Lacasse, at para. 48, Shropshire, at para. 46). Sentencing judges have front-line experience, see and hear all the evidence and submissions in person, and are generally familiar with the circumstances and needs of the local community. As a result, sentencing judges have broad discretion to impose a fit sentence.

[32] When weighing competing sentencing objectives, it falls to the sentencing judge to determine which deserve the greatest weight (R. v. Nasogaluak, 2010 SCC 6, at para. 43). An appeal court may not vary a sentence simply because it would have imposed a different one (R. v. L.M., 2008 SCC 31, at para. 14).

[33] As the respondent submits, the sentencing judge was in a “unique position to consider all the circumstances of the offence and its impact on both the complainant and the appellant in an individualized way this Court simply could not replicate in its role as a reviewing court” (R. v. Davies, 2022 BCCA 391, at para. 22). This Court is simply reviewing an impersonal written record, while the sentencing judge had the advantage in this case of presiding over the trial and of direct exposure to the witnesses themselves.

[36] Viewed in its totality, the sentence was reasonably harsh and proportionate to the gravity of the offence and the moral culpability of the respondent. The strict standard of review applicable on this appeal must be emphasized. In R. v. R.S., 2023 ONCA 608, Justice Paciocco (in his concurring reasons) emphasized:

[46] … [I]ntermediate appeal courts have been repeatedly implored by the Supreme Court of Canada to exercise a high degree of deference to the sentencing decisions of trial judges and to allow a broad range of discretion, including in identifying fit sentences, even where a sentence falls outside of the usual range or where a trial judge gives different weight to the principles of sentencing than an appellate court would…

[Emphasis added.]

Other cases underscore this strict standard of review, which is a bedrock principle in the law of sentencing (Lacasse, at paras. 11–12, 39–40; Friesen, at paras. 25–26).

[37] In my view, the following factors, in their cumulative effect, make for a punitive and onerous sentence imposed in the present case:

A substantial restitution order of $7,000 (which, were the respondent to be imprisoned, his counsel advises the respondent would no longer be able to pay as he would lose his job);

A five-year period of supervision in the community including:

Two years less a day of house arrest for 24 hours a day (the maximum length of a conditional sentence permissible by law) subject to strict exemptions; and

Three additional years of probation (the maximum available);

A prohibition on the use of alcohol, drugs, or any other intoxicating substance (except by medical prescription) for the entire length of the conditional sentence and the probation order;

Counselling; and

Ancillary orders that included compliance with the SOIRA for a lengthy 20 years.

Gravity of the Offence and Moral Blameworthiness

[38] The Crown contends the judge failed to engage with the gravity of the offence, which included breach of trust, significant intrusion of bodily integrity, and immense harm. According to the Crown, the judge neglected to recognize the guidance of the Supreme Court of Canada that “our understanding of the profound physical and psychological harm that all victims of sexual assault experience has deepened” (Friesen, at para. 118). The Crown also submits the judge did not properly assess the respondent’s high moral culpability, which he did not mention.

[39] Respectfully, I would not accept these arguments in the circumstances of this case.

[41] The judge could have addressed moral culpability more extensively. His reasons in general are brief. But although the judge did not use the precise words “moral culpability”, I consider his reasons to reflect his recognition of both the high degree of culpability and of the gravity of the offence. The respondent gathers the passages in the reasons that illustrate this.

[42] First, the judge extensively quoted directly from the complainant’s victim impact statement and stated that she “clearly suffered significant emotional and financial harm” (RFS, at paras. 22–23). Second, later in his reasons, the judge stated the offence was “very serious” (RFS, at para. 39). Third, the judge accepted as aggravating that the respondent broke a position of trust toward the complainant as they were friends, she trusted him, and she felt safe in his home (RFS, at paras. 46–47). Fourth, the judge referred to the “significant psychological harm” the complainant had suffered and found that this was another aggravating circumstance (RFS, at para. 48). And fifth, the judge, later in his reasons, again referred to the “significant psychological injury to the victim” (RFS, at para. 52).

[43] I consider it evident from his reasons as a whole and in the context of the record, including counsels’ extensive submissions, that the judge recognized the principle of proportionality and appropriately balanced its elements.

[44] Further, judges are not expected to explain their reasons in a ‘watch me think’ fashion, or to set out every finding or conclusion in the process of arriving at their ultimate verdict (R. v. R.E.M., 2008 SCC 51, at paras. 17–18). Just as reasons for judgment “are not intended to be, and should not be read, as a verbalization of the entire process engaged in by the trial judge in reaching a verdict” (R. v. Kruk, 2024 SCC 7, at para. 84, citing R. v. Morrissey, (1995), O.R. (3d) 514 (C.A.), at 525), nor are reasons for sentence so intended.

Consideration of Mitigating Factors

[47] As held in R. v. Nystrom, 2023 BCCA 232, at para. 50, to properly give primary consideration to the principles of denunciation and deterrence in sexual assault offences, the personal circumstances of the offender necessarily have a reduced role. However, I cannot say the judge inappropriately emphasized the respondent’s personal circumstances.

[48] As the respondent submits, the personal circumstances of an offender always inform the search for a fit and proportionate sentence, and judge’s comments about the respondent’s personal circumstances were quite limited and understated. This Court has held that an offender’s “good character”, i.e., a lack of a criminal record, or a strong employment record, can be considered as mitigating, even in cases of serious sexual assaults (see R. v. R.M., 2019 BCCA 409, at para. 20; R. v. Horswill, 2019 BCCA 2, at paras. 18, 20; R. v. M.P.S., 2017 BCCA 397, at para. 22, where the lack of a criminal record, community support, and strong employment history were considered “mitigating factors”).

[49] Moreover, the Crown appears to overlook the mitigating effect of certain other features of this case. For instance, the judge viewed as mitigating the respondent’s strong expressions of remorse in the note he left the complainant and in his statement of apology to the court. The Crown also does not mention the respondent’s voluntary abstention from alcohol for five years, or that the restitution order, acceded to by the respondent, was mitigating as it indicated remorse (R. v. Kodimyala, 2020 BCCA 275, at para. 36). (As mentioned, it was also punitive (R. v. Abdulahi-Sabet, 2020 BCCA 213, at para. 12).)

Sentencing Objectives

[53] The reasons for sentence as a whole and in the context of the record reflect that the judge was alive to the overarching objective of the criminal justice system as being the protection of the public. Section 718 of the Code sets out the “fundamental purpose” of sentencing as: “to contribute, along with crime prevention initiatives, to respect for the law and the maintenance of a just, peaceful and safe society by imposing just sanctions”. As examples, the terms prohibiting the consumption of alcohol for five years when the judge concluded that intoxication was an apparently obvious factor underlying the respondent’s offending behaviour, and the stringent house arrest, address the protection of the public and the objectives of deterrence and denunciation.

Availability of Conditional Sentence

[54] Finally, the Crown contends that the imposition of a conditional sentence, as opposed to incarceration in the penitentiary, was erroneous. The Crown submits the judge erroneously regarded statutory reform as changing the sentencing principles applicable to cases of this kind. The Crown points to R. v. S.S., 2023 BCCA 207, at para. 25, (citing G.M.) for the range of sentences for sexual assault involving such aggravating circumstances as penile penetration as being two to six years’ imprisonment. (And I note that S.S. and G.M. established this range before Friesen was decided.) The Crown contends the judge did not explain why he departed from this range.

[56] Respectfully, I do not accept the Crown’s arguments as to the alleged errors in principle. Nor do I consider the conditional sentence in the present case, with its multiple punitive terms, to be demonstrably unfit.

[57] I observe that R. v. Parranto, 2021 SCC 46, emphasized that appellate courts should not “‘artificially constrain sentencing judges’ ability to impose a proportionate sentence’ by requiring ‘exceptional circumstances’ when departing from a range” (at para. 40, citing Friesen, at paras. 111–112). Parranto further held there is “no longer space to interpret … [sentencing] ranges … as binding in any sense” (at para. 36, emphasis in original). Ultimately, the Crown again in effect asks this Court to place different weight on the mitigating factors than did the sentencing judge, contrary to Lacasse.

[60] I do agree, however, with the Ontario Court of Appeal that although conditional sentences are now available in sexual assault cases, they will rarely be proportionate in violent sexual assault cases (R.S., at para. 4). But at the same time, I also note Justice Paciocco’s statement in his concurring reasons that “[i]t would be an error in principle to hold that conditional sentences are not available in sexual offence cases because denunciation and deterrence are the primary sentencing goals, or based solely on the kind of sexual intrusion that has occurred” (R.S., at para. 78).

[61] I would emphasize the following observations of the Supreme Court of Canada in Proulx:

116 Sentencing judges will frequently be confronted with situations in which some objectives militate in favour of a conditional sentence, whereas others favour incarceration. In those cases, the trial judge will be called upon to weigh the various objectives in fashioning a fit sentence. … There is no easy test or formula that the judge can apply in weighing these factors. Much will depend on the good judgment and wisdom of sentencing judges, whom Parliament vested with considerable discretion in making these determinations pursuant to s. 718.3.

[Emphasis added.]

[62] Finally, Justice Paciocco’s comments in R.S., which underscore the punitive nature of conditional sentences, should not be overlooked:

[71] It is important to appreciate that a conditional sentence is a sentence of imprisonment, albeit one that may be served entirely in the community. It is described as a sentence of imprisonment in s. 742.1 of the Criminal Code: Proulx, at para. 29.[3] The punitive impact of a conditional sentence should not be understated, even though an offender may not experience institutional incarceration where a conditional sentence is imposed. Conditional sentences carry significant consequences, and they are punitive, not lenient, and can be as harsh in application as sentences of incarceration: Proulx, at para. 41.

[Emphasis added.]

Further, the stigma of a conditional sentence with house arrest is also significant (Proulx, at para. 105).

[63] In my opinion, given the cumulative punitive effect of this sentence, it was open to the judge to conclude a conditional sentence was appropriate in the present case. Some factors weighed against imposing such a sentence, but others favoured doing so; ultimately, the sentence was a reasonable exercise of the judge’s discretion....

[65] In recognizing the punitive effect of the restitution order, I do not mean to suggest that an offender may ‘buy his way out’ of a jail sentence for a sexual assault. It is only that, in this case, the restitution order was a punitive measure which added to the cumulative punitive effect of the sentence and served to underscore the respondent’s remorse.

[66] Overall, I am not persuaded that the Crown has met the “very high threshold that applies to appellate courts when determining whether they should intervene after reviewing the fitness of a sentence” (Lacasse, at para. 52). I do recognize this as a borderline case, but in such a case, I consider the high standard of review to be decisive. I feel compelled to defer to the sentencing judge.

Disposition

[67] For these reasons, I would grant leave to appeal, but dismiss the appeal. I conclude the judge made no errors in principle, and the conditional sentence of two years less a day on its harsh terms, followed by the three years of probation was not a demonstrably unfit sentence.

R v ADM, 2024 ABKB 212

[April 12, 2024] Sexual Assault: Extrinsic Factors Undermining Credibility [Justice W. N. Renke]

AUTHOR’S NOTE: In many sexual assault cases, and particularly in cases involving child sexual assault, inconsistencies in extrinsic details are often given little weight when assessing the credibility of the complainant. The inability of a complainant to recall specific surroundings at the time of the assault is generally not considered crucial.

However, in this case, despite acknowledging the legal principle that supports this approach, the trial judge considered the complainant's insistence that the assault occurred within a specific timeframe, which was inconsistent with the evidence, as decisive in assessing her credibility. When extrinsic details become central to the complainant's account, their inability to accurately or credibly recall them can significantly impact their reliability.

[1] ADM (the Accused) faces two counts, both occurring between February 1, 2017 and July 20, 2019 in Edmonton, Alberta, the sexual assault of the Complainant and sexual interference with the Complainant.

[2] There were two witnesses in the trial, the Complainant and the Accused’s father (the Father). The Accused did not testify.

I. Principles

A. The Burden and Standard of Proof

[4] A person charged with a criminal offence is presumed innocent. Our law requires that I take as a fact that the Accused did not commit any offence and that fact remains unless, at the end of the case on all the evidence, the Crown proves beyond a reasonable doubt that he is guilty of one or both offences: R v Villaroman, 2016 SCC 33, Cromwell J at para 25; Woolmington v DPP, [1935] AC 462 (HL) at 481-482. That right is constitutionally confirmed by s 11(d) of the Charter: “Any person charged with an offence has the right ... to be presumed innocent until proven guilty according to law ....”

[5] The Accused does not have the burden of proving his innocence, no burden even to raise a reasonable doubt about innocence. The Accused need not prove anything.

[6] The Accused had a constitutional right to remain silent in his trial, a right not to testify. I cannot and do not draw any inference from the Accused’s exercise of this constitutional right. See R v Symonds(1983), 9 CCC (3d) 225 (ON CA), Martin JA at 227 (“It is fundamental that a person charged with a criminal offence has the right to remain silent and a jury is not entitled to draw any inference against an accused because he chooses to exercise that right”); R v Chambers, [1990] 2 SCR 129, Cory J at 1316; R v Noble, [1997] 1 SCR 874, Sopinka J at para 72 (“As Cory J. stated in Chambers, it would be a ‘snare and a delusion’ to grant the accused a right to remain silent at trial yet then proceed to use the silence to find him or her guilty”).

[8] Whether evidence exculpating an accused raises a reasonable doubt must be assessed in the context of the evidence as a whole: R v Ryon, 2019 ABCA 36, Martin JA at para 47; R v Morin, [1988] 2 SCR 345, Sopinka J at 361-362; R v Thomas, 2012 ONSC 6653, Code J at para 24.

[9] The Crown is obligated to prove each element of the offence beyond a reasonable doubt. Further, the reasonable doubt standard applies to “vital issues.” See R v Randall, 2020 ABCA 52 at para 62. If credibility is an important issue in a case, the reasonable doubt standard must be applied to credibility: R v W(D), [1991] 1 SCR 742, Cory J at 757.

B. Child Witnesses

1. Witness Credibility Generally

[11] In deciding whether the Crown has proved its case beyond a reasonable doubt, I must assess the credibility of witnesses.

[12] When assessing a witness’s credibility, two considerations are involved. On the one hand, I must consider a witness’s sincerity or commitment to tell the truth; on the other, the witness’s reliability. Reliability concerns the accuracy of a witness’s observations, recollections or memories of events, and descriptions of events: R v Morrissey, 1995 CanLII 3498, 97 CCC (3d) 193 (ON CA), Doherty JA at 205. A witness who is sincere, who honestly believes that he or she is telling the truth, may nonetheless not be reliable. Further, a witness’s certainty, the witness’s subjective belief in the accuracy or sureness of his or her account, does not make the witness’s account reliable. A witness may be honest and sure but wrong – or at least sufficiently unreliable for there to be reasonable doubts about the witness’s account.

2. The Complainant

[15] As will be discussed below, the events alleged by the Complainant occurred at the earliest when she was 9 and at the latest when she was 11.

[16] A video recording of the Complainant’s statement was made at the Zebra Centre. I did not admit the recorded statement under s 715.1 of the Criminal Code because, very briefly, it was made at least four years after the alleged offence, in my opinion an unreasonable time after the alleged offence. (The trial evidence, as it turned out, would have supported the conclusion that the recording was made at least 5 years after the alleged offence.) In her trial evidence, the Complainant confirmed that the recording was made in September 2022, when she was 15.

[17] The Complainant was 16 when she testified.

3. Judicial Guidance Respecting Child Witnesses

[19] Considerations respecting the assessment of the testimony of child witnesses include the following:

 A child’s testimony should not be presumed to be unreliable and the weight of that testimony should not be automatically discounted: R v W(R), [1992] 2 SCR 122, 1992 CarswellOnt 90, McLachlin J, as she then was, at para 24(CarswellOnt).

Applying adult credibility assessment to children’s testimony may be wrong. In particular, “details important to adults, like time and place, may be missing from their recollection:” W(R) at para 25(CarswellOnt); R v B (G), [1990] 2 SCR 30, 1990 CarswellSask 20, Wilson J at para 56(CarswellSask); R v P(MB), [1994] 1 SCR 555, 1994 CarswellOnt 65, Lamer CJC at para 17 (CarswellOnt).

Children are prone to forget details with the passage of time: R v F(CC), [1997] 3 SCR 1183, Cory J at para 41; R v ADG, 2015 ABCA 149 at para 38.

Nonetheless, significant inconsistencies or inaccuracies may undermine the credibility or reliability of a child’s evidence: R v Horton, 1999 BCCA 150, Esson JA at para 21.

A delay in a child’s reporting of an alleged sexual offence must not be assumed to undermine the child’s credibility...

....In fact, the literature suggests the converse may be true; victims of abuse often in fact do not disclose it, and if they do, it may not be until a substantial length of time has passed:” W(R) at para 31(CarswellOnt)....

A child’s immediate reaction to an alleged offence should not be compared to some assumed standard of how victims behave and the weight of a complainant’s account discounted by the divergence from the assumed standard: R v CMG, 2016 ABQB 368, Martin J, as she then was, at paras 69-69; R v ARD, 2017 ABCA 237, affd 2018 SCC 6 at para 42(CA):

A child’s continued association with an alleged offender should not be compared to some assumed standard of how victims behave and the weight of a complainant’s account discounted by the divergence from the assumed standard. See ARD at para 56:

The assessment of an adult’s testimony about events that occurred when the witness was a child has two levels – the credibility assessment appropriate to adults applies respecting the adult witness’s giving of evidence, but the memories formed when the witness was a child and recounted in testimony may not satisfy adult criteria of accuracy respecting “peripheral matters” such as time and location: W(R) at para 27 (CarswellOnt); R v DD, 2022 ONCA 786 at paras 8-9.

The burden and standard of proof for criminal trials are maintained when the complainant is a child. The commonsense approach to the evidence of children does not entail that children’s evidence is presumptively true. It cannot be assumed that allegations are true just because the allegations were made. The approach to children’s evidence cannot involve a shifting of the burden of proof to an accused to disprove guilt: B(G) at para 56(CarswellSask); R v QEA, 2015 ABCA 315 at para 14. [Emphasis by PJM]

II. The Complainant’s Testimony

[21] The Complainant met the Accused because he was in a relationship with her mother. The nature of that relationship was not illuminated by the evidence.

[23] When the Complainant’s family was in the process of moving into the Accused’s residence, the Accused said that he wanted to spend some “one on one” time with the Complainant.

[24] The Complainant’s testimony was that at this time she was 11 years old.

[26] On a date that the Complainant could not recall, she went with the Accused in his van to his residence.

[27] She and he ended up in his bedroom, sitting on his bed. The Accused laid down then pulled the Complainant on top of himself. She was facing towards him. He put a hand down her pants and touched the front part of her vagina. He moved his hand around. She said she did not know the word to describe his conduct. There was skin to skin contact. The Complainant took his hand off her body. She called him a “Weirdo.” She is pretty sure he said something like “I’m just joking” or “I’m just playing around” and he laughed.

[35] In cross-examination, the Complainant confirmed the following:

the incident occurred when her family was in the process of moving to the duplex, while the family was still packing up the apartment where they’d been living

she was driven in the Accused’s van, which she described as a Dodge mini van

she was not sure of the colour; she did not recall whether the van was silver or white

[41] She confirmed that when the incident occurred, she was 11 years old. She remembered because after this incident, an event occurred when she was nearly 12. She was “11 for sure.”

[42] She said that she would be surprised to learn that her family actually moved into the residence in April 2017, when she was 9.

[43] Later, she said she was no longer sure that the incident occurred when she was 11, since she’d “been told” (I infer she meant through the cross-examination question) that the move occurred in 2017. She remained sure that the incident occurred when the family was moving into the residence.

B. Matters Not Undermining the Complainant’s Credibility

[64] I did not consider the following matters to have had any bearing on the assessment of the Complainant’s credibility:

the Complainant’s delay in reporting.

the Complainant not having let her mother know, directly or indirectly, that the incident had occurred.

the Complainant’s continued association with the Accused...

motive to fabricate....

the Complainant’s mother being very protective....

the physical unlikelihood of the acts the Complainant described, referred to by Defence counsel as involving contortion, since the Complainant had said that she had been pulled into a position straddling the Accused. As indicated during submissions, I considered that the Complainant had said she put her weight on her knees. That would have had an effect of raising her body. I could not take judicial notice that the physical acts described by the Complainant were not likely.

[65] Nothing in the Complainant’s demeanour, in the sense of the manner that she gave her testimony, caused any concern. She answered questions asked, answered directly and without evasion, did not provide superfluous elaborations, was not argumentative or hostile, and asked for clarification when she didn’t understand a question.

[66] The Complainant described what occurred as a 16-year-old, not as would a child age 11 or younger.

[67] Her testimony was internally consistent. Her account of the incident with the Accused did not vary, except when confronted with the prospect that the events did not occur when she was 11.

C. The Father’s Testimony and the Complainant’s Testimony

[68] The Father’s testimony was relevant to the assessment of the Complainant’s testimony in two ways, as regards her age at the time of the alleged event and as regards the van that transported her to the duplex with the Accused.

1. Date of the Events and the Complainant’s Age

[69] It was not disputed and I find that the Complainant’s family’s tenancy at the duplex commenced in April 2017.

[70] The Complainant maintained that the incident occurred when her family was in the process of moving into the duplex. That would put the incident in March or April of 2017.

[71] But in April 2017, the Complainant was not 11. She was 9, nearly 10.

[72] By itself, this correction by the evidence would not have a significant adverse impact on the assessment of the Complainant’s reliability. As indicated above, the courts have recognized that children may get details wrong, especially time and place. The date of the alleged offence and consequently the Complainant’s age at the time would not have been an essential element of either offence. She remained under age 16. She in fact was even younger than she had initially indicated. The corrected dates still fell within the temporal scope of the Indictment. I refer to Justice Martin’s observations inCMGat para 45:

[45] The Supreme Court has held that if there is conflicting evidence regarding the time or date of an offence, and they cannot be established with precision, a conviction may still result if time is not an essential element of the offence or crucial to the defense: R v B(G) … at para 52 (Westlaw) at para 44 (QL). The trial judge must assess whether time is a crucial element of the offence, and only where it is may inconsistencies preclude conviction: R v B(G) at para 53 (Westlaw) at para 45 (QL). R v B(G) was a case of sexual assault involving a child complainant. In that context, the Supreme Court explained that “the date of the offence is not generally an essential element of the offence of sexual assault. It is a crime no matter when it is committed”: at para 53 (Westlaw) at para 45 (QL).

[73] Further, the younger the Complainant was at the material time, the more likely that her later recollection, at the time of disclosure and when testifying, betrayed inaccuracies....

[74] The Complainant, though, had testified that she was “sure” she was 11 at the time of the incident. Her age was a repeated element of her account. For example (cross-examination, April 3, 2024, 10:45:12-10:46:01):

Q And when you were 11 years old you were in grade 6?

A Yes, 11 for sure.

Q And you are very sure that you were 11 years old and in grade 6 when you were moving in when this happened?

A Yes.

Q You have a distinct memory of being in grade 6 when this happened? … 11 for sure, whether grade 6 or not? It’s 11 for sure?

A Yes.

[75] In addition, the Complainant had anchored her claim about her age to another event. She had testified that when she was still 11, but some months after the incident with the Accused, another event occurred that brought her to court. She remembered that the incident with the Accused occurred when she was 11 because it was before this other event. The Defence had suggested that the other event preceded the incident with the Accused, but that it is not what the Complainant said. The questions and answers in the Complainant’s cross-examination were as follows (April 3, 2024, 10:35:12-10:35:41):

Q And you’ve indicated to us that this happened when you were 11 years old.

A Yes

. Q What is it about being 11 years old that you distinctly remember that that’s the time?

A Because another thing happened that made me have to go to Court and I remember it being when I was the same age.

Q The other thing happened when you were 11?

A Yes, but after this event, closer to when I was 12.

[76] The Crown’s perspective on this matter was that this was another error about time, a sort of extension or consequence of the basic error. In the circumstances, though, it is fair to distinguish two distinct errors, the error of how old the Complainant was at the time, and the error of describing the incident as occurring close in time to the other event.

2. The Van

[77] There was no dispute that the silver van was on blocks in the duplex yard in October 2016, before the incident occurred. The Complainant was not transported to the duplex in the silver van. She did not commit to a van of that particular colour, though. Her testimony was that the van was silver or white.

[78] The Complainant did state that the van was a Dodge mini van. I pause to note that this was an oddly specific reference. While a 15- or 16-year-old could well be aware of vehicle’s make and even model, the memory was from when she was 9 going on 10. It is not clear that a 9- or 10-year-old would have paid attention to the make of the van. This is not the sort of detail one would expect to have been recollected. The Accused’s family did in fact come to own three Dodge vans over the period preceding and following the alleged incident. The Complainant would have seen Accused-connected Dodge vans in other contexts. The “Dodge” reference could be a fact (at least) added to the Complainant’s account of the incident. However, I will not rely on an untested assumption about child psychology.

[79] The Father’s evidence was that his son did not have a vehicle after the silver van was damaged.

[80] The evidence did not disclose whether the Accused required special modifications for his vehicle because of the condition that led to the Father serving as his guardian and trustee. That aspect of matters was not pursued on the evidence.

[81] The Father and his wife did have a white van. However, the Father’s evidence was that this van was, initially, his wife’s. It was her daily ride. the Father and his wife would drive from their acreage in the van and “transport [the Accused’s] two children and [the Accused] for his parental visits” (the parenting relationship was not elaborated on the evidence). The white van was driven back to the acreage. It was not left with the Accused. In mid-2018, the Father purchased another van, the black van. At that time, the white van was left with the Accused.

[82] The Father also testified that he did not assist with the Complainant’s family’s move to the duplex.

[83] The Father’s testimony was not challenged.

[84] On the evidence, the Accused did not have the white van in 2017 and did not have personal access to the white van in 2017. On the evidence, at the earliest, he had access to that van in mid-2018.

[85] The evidence does not support the inference that the Accused had any van or indeed any vehicle in 2017 until mid-2018.

[86] The Crown responded that it was possible (not inconceivable) that the Accused got the use of the white van, another white van, or some other vehicle. But the Complainant did refer to a white Dodge van, that is a van like the Father’s wife’s van until mid-2018. The only van colours she recalled were of vans connected with the Accused’s family. It is true that it is possible that the Accused got another vehicle from somewhere or someone, but that is only possible and, given the lack of evidence, speculative. I understand that the reasonable doubt standard applies at the end of trial to all the evidence and does not, generally, apply to specific fact findings: R v Morin, [1988] 2 SCR 345, Sopinka J at para 33; R v Campbell, 2015 ABCA 70 at para 44. The evidence did not support a finding and I do not find on the evidence that it was likely that the Accused had access to a van.

[87] The point is that, regardless of colour or type of vehicle, the evidence was that the Accused did not have any vehicle.

[88] If the Accused had no van or other vehicle, he could not have driven the Complainant to the duplex as she described. [Emphasis by PJM]

D. Conclusion

[89] When I consider all the evidence in the trial, including the errors about age, the relationship between the alleged incident with the Accused and the other event when the Complainant was 11, the Accused not having access to his family’s van at the time in question, and the absence of evidence that the Accused had a vehicle at the time in question, I have a reasonable doubt about the reliability of the Complainant’s allegations about the Accused. The issues on which the Complainant was contradicted or her memories were called into question were not peripheral but important elements of her account. [Emphasis by PJM]

[90] Since I have a reasonable doubt respecting the Complainant’s reliability, I must acquit the Accused.