This week’s top three summaries: R v J.G., 2023 SKCA 92: #contrary evidence, R v Gargan, 2023 NWTCA 5: s.151 min sentence, and R v LWT, 2023 ABCJ 139: #all the circumstances for s.271.
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R v J.G., 2023 SKCA 92
[August 10, 2023] Misapprehension of Evidence by Failing to Consider Evidence on a Material Issue - Sexual Assault and Contrary Evidence of Some Consent [Reasons by Tholl J.A. with Leurer and McCreary JJ.A. concurring]
AUTHOR’S NOTE: It is important to note that consent law in sexual assault is clear that broad advance consent is not possible and consent for one act does not mean consent for another. However, when a complainant testifies to a state of events that involve no consensual acts and there is other evidence that suggests at least some consensual acts, a judge is obligated to reconcile that evidence with their conclusions on the case. It is easy to come to firm conclusions if you ignore evidence to the contrary. The law requires the judge to grapple with all contrary evidence even if the rest of the evidence convinces them of guilt. Here, a conviction was overturned even though it was possible to sustain it on evidence of the complainant because the judge failed to account for a 3rd party's evidence of consensual kissing before the sexual assault; any consent was contrary to the complainant's account, though possible due to her intoxication.
I. INTRODUCTION
[1] J.G. was convicted of sexually assaulting K.C.: R v J.G., 2022 SKQB 110 [Trial Decision]. He appeals his conviction, asserting that the trial judge erred by ignoring or failing to appreciate relevant evidence, failing to recognize the significance of inconsistencies in K.C.’s evidence, applying a different level of scrutiny to his evidence as compared to that of K.C., and rendering an unreasonable verdict.
II. BACKGROUND
[3] K.C. was 15 years old at the time of the events. J.G. was 21 years old. On approximately May 2, 2017, after sharing a mickey of vodka, K.C. and a friend went to a bar, despite being underage. There, they interacted with J.G. and some other people. K.C. and J.G. had never met before that evening. K.C. had one drink at the bar and played some pool before the group left, bought some alcohol, and went to a house to continue socializing. At the end of the evening, J.G. had vaginal and anal intercourse with K.C. on a couch in the basement. K.C. reported the incident to the police, and J.G. was charged with sexual assault (s. 271 of the Criminal Code) and sexual interference (s. 151 of the Criminal Code).
[4] J.G. admitted to having sexual intercourse with K.C. but asserted that it was consensual and that he believed she was 19 years old.
III. TRIAL DECISION
[10] …The relevant material evidence was the fact that J.G. and K.C. did not know each other, K.C. testified that J.G. did not know her age, and J.G. testified that he believed K.C. was 19 because he met her in the bar. Applying s. 150.1(4), R v W.G., 2021 ONCA 578, 405 CCC (3d) 162, leave to appeal to SCC refused 2022 CanLII 21664, and Carbone, the trial judge found that the Crown had not proven beyond a reasonable doubt that J.G. did not take all reasonable steps to ascertain K.C.’s age or that J.G. believed that she was underage or that he was wilfully blind or reckless regarding her underage status. This aspect of the Trial Decision is not challenged by the Crown in this appeal.
[11] … he found that the Crown had not proven beyond a reasonable doubt that K.C. was incapacitated by alcohol to the point that she did not have the capacity to consent. This finding is also not challenged by the Crown on appeal.
[12] Lastly, the trial judge turned to the issue of whether the Crown had proven beyond a reasonable doubt that K.C. had not consented to the sexual activity with J.G….
… Neither party takes issue with the trial judge’s recitation of the applicable law.
[13] … He further concluded that K.C. did not communicate her consent and that J.G. did not have an honest but mistaken belief in communicated consent.
IV. ISSUES
[15] The grounds of appeal raised by J.G. are set out in his factum:
A. The learned Trial judge failed to appreciate relevant evidence which raised a reasonable doubt as to the guilt of the appellant and more particularly disregarded or failed to consider evidence which would’ve directed to the issue of innocence.
V. ANALYSIS
[17] A misapprehension of evidence or a “failure by a trial judge to consider evidence relevant to the ultimate issue is an error of law” (R v Necroche, 2018 SKCA 24 at para 38). As discussed by Doherty J.A. in R v Morrissey (1995), 80 OAC 161 (CA), a “misapprehension of the evidence may refer to a failure to consider evidence relevant to a material issue, a mistake as to the substance of the evidence, or a failure to give proper effect to evidence” (emphasis added, at para 83). Justice Doherty further noted that “[w]here a trial judge is mistaken as to the substance of material parts of the evidence and those errors play an essential part in the reasoning process resulting in a conviction then ... the accused’s conviction is not based exclusively on the evidence and is not a ‘true’ verdict” (at para 93). Later, in the same paragraph, he added the following: “If an appellant can demonstrate that the conviction depends on a misapprehension of the evidence then, in my view, it must follow that the appellant has not received a fair trial, and was the victim of a miscarriage of justice. This is so even if the evidence, as actually adduced at trial, was capable of supporting a conviction”.
[18] In R v Lohrer, 2004 SCC 80 at paras 1–3, [2004] 3 SCR 732, Binnie J., speaking for a unanimous Supreme Court, agreed with Doherty J.A.’s observations. He also emphasized that Morrissey “describes a stringent standard” and that the misapprehension of evidence “must go to the substance rather than to the detail” (at para 4):…
[19] In this case, J.G. asserts that the trial judge ignored crucial testimony from J.S. pertaining to whether K.C. had consented to sexual intercourse and had communicated that consent. As I earlier noted, J.S. lived at the house where the incident occurred. On the night in question, J.S., who was sober during the events, was socializing with the people who had come to her house from the bar, including K.C. and J.G. Around midnight, she asked the four members of the group who were in her bedroom with her – K.C., K.C.’s friend, J.G., and R.P. – to leave the room because she had school the next morning and wanted to sleep. The four persons went to an adjacent room, which had a couch and a bed. At some later point, J.S. came out of her bedroom. She testified that she observed the following:
[Evidence-in-chief testimony]
Q Okay. And can you tell me about that?
A I turned on the light and [R.P.] and [K.C.’s friend] were making out and so were
[J.G] and [K.C.].
Q Black leather. How -- and -- and so did you interrupt them?
A I just -- I didn’t mean to. I turned on the light and saw what [was] happening and
turned it off and went back to my room and blast the music.
Q Okay. Did anyone react when you turned the light on?
A [R.P.] and [K.C.’s friend] stopped, but [J.G.] and [K.C.] kept making out.
Q They kept making out? A M-hm.
[Cross-examination testimony]
Q And that’s when you turn on a light and -- and, if I’m not mistaken, [K.C. and J.G.] were making noises that associated with sex --
A Yeah.
Q Yeah. You could hear them? And when you turned on a light, you’re saying [R.P.] and [K.C.’s friend] reacted, but [K.C.] and [J.G.] just kept --
A Kept --
Q -- kept --
A -- making out. Yeah.
Q All right. And as I -- and I just want to make this clear, you said: (as read)
[K.C.] was on top of him and he was -- she was kissing him. A Yes.
[20] K.C. testified regarding the portions of the incident that coincided in time with what J.S. observed and in response to her recorded police interview: [Statement to police (8 May 2017) – video-recorded statement tendered under s. 715.1 of the Criminal Code]
Q: …What position were you in, what position was he in, during the intercourse?
A: I’m pretty sure he was sitting down and on the couch and like he had me like on like top of him, with like my knees to the side and, and like all I remember is like him constantly telling me to Shh, cause I’m pretty sure I was crying and kinda screaming and I’m pretty sure he like he had like my mouth on his shoulder and like just whispering in my ear telling me to Shh like Stop you gotta be quiet.
Q: Okay so once he took his clothes off then what happened?
A: That’s when he got on top of me and I was laying on that couch.
Q: Okay.
A: But like he came on top of me and then he like grabbed my legs and like wrapped
them around him, but like that couch was broken and so I don’t, and so I think that’s when he like grabbed me and he sat down and put me on top of him.
Q: Okay, and then that’s when, is that when you got into the position where your knees were off?
A: Yeah.
Q: Were you knees off to, one on each side like you’re straddling him ... A: Yeah.
Q: ... or are both knees on one side, or do you remember? A: It was like both my knees on each side of him.
Q: Okay, okay. So at that point is that when he ... A: Yeah.
Q: ... Started having sex with you? A: Yeah.
[Cross-examination responses at trial]
Q Okay. Now, I’m also going to talk -- [J.S.] -- I’ll just come right out and say it, [J.S.] says she saw you and [J.G.] making out. You were kissing him, you were on top of him, you were making out in the same room, they’re on the bed, and yeah, like -- and then, I just -- she went back to her room after seeing you and [J.G.]. What do you say to that?
A That I don’t recall, and I don’t think there’s any consent of a 15 year old who is under the influence.
Q M-hm. Okay. I -- I agree. But would you agree with me that it looks like there might have been consent, whether or not you were 15?
A There is no consent with someone who is under the influence.
Q All right. And then, the next memory, you are -- actually have is basically being on top of [J.G.]. Okay, he was sitting on the couch, and you were on top of him; correct?
A Yes. Yeah.
Q And you have no idea how that happened? A No.
Q Okay. And I’ll go over -- I know I’ve asked you this before, but as you know, I want to confront you with what other people have said, and one of them of course is [J.S.], and she has given a statement which says, [K.C.] was on top of him kissing, making out with [J.G.]. Could that have happened?
A It could.
Q Could it? Are you saying, yes? A Yeah, that could have happened.
Q And then she says, she turned on the light, and [R.P.] and [your friend] stopped, but [you] and [J.G.] just continued making out. That also could have happened?
A I don’t recall that.
[22] The trial judge found as follows regarding the sexual activity (Trial Decision):
[115] I accept that J.G. undressed her and placed her on top of him, with her legs straddling him and that he later pushed her on her back and had vaginal and anal intercourse with her. I accept that J.G. placed her in a position where she was bent over backwards over the side of the couch and I accept that she felt pain in her vagina and anus. I accept her testimony that he “hurt me a lot”. I also accept that she did not know who J.G. was at that time and that she felt “grossed out”.
[23] J.G. argues that the trial judge, in reaching these conclusions, overlooked or ignored J.S.’s evidence regarding what she saw when she left her bedroom. He submits that J.S.’s observations contradicted portions of K.C.’s testimony, supported his description of consensual sexual relations, and were directly relevant to consent. J.G. contends that the trial judge erred by failing to take this evidence into account when determining whether the Crown had proven an absence of consent beyond a reasonable doubt.
[25] In the Trial Decision, J.S.’s testimony of what she observed when she left her bedroom is not mentioned in either the summary of the evidence or in the analysis. In closing argument, defence counsel repeatedly pressed the significance of J.S.’s evidence to the issue of consent. Despite its importance having been highlighted during submissions at trial, the only reference the trial judge made to J.S.’s evidence is to the fact that K.C. went into J.S.’s bedroom after the sexual activity was over and was crying: see paragraphs 113, 116, and 117 of the Trial Decision.
[26] Here, I find that the trial judge did not simply fail to record J.S.’s observations. There is nothing in the Trial Decision – read piece by piece or read as a whole – that provides any indication that he considered J.S.’s testimony on what she observed when she exited her bedroom when he made his finding that the Crown had proven the absence of consent beyond a reasonable doubt. Instead, the trial judge overlooked this portion of J.S.’s testimony. The question is whether this omission matters. In my view it does.
[27] It is beyond doubt that K.C. being on top of J.G., kissing him, and “making out” with him does not demonstrate that she consented to sexual intercourse. If that were the extent of J.S.’s testimony, a new trial would not be justified. However, J.S.’s testimony, vague and imperfect as it was, might be interpreted as evidence, based on J.S.’s observation, that K.C. was actively participating in consensual sexual activity with J.G. at the point when J.S. left her bedroom and turned on the light in the adjacent room. But the trial judge did not take that aspect of her evidence into account at all.
[28] I find that J.S.’s testimony was material because it spoke to the issue of whether the portions of the sexual activity she observed were consensual. This is relevant not only to the conduct that J.S. observed, but also because it could support J.G.’s description of an ongoing sexual encounter between J.G. and K.C. of increasing intensity: all of which, on his telling, was consensual. Accordingly, although the conduct that J.S. observed was brief, and preceded the other sexual activity, J.S.’s observations were material and had to be accounted for by the trial judge in his fact- finding.
[30] As noted above, the trial judge only mentioned the testimony of J.S. in three paragraphs of the Trial Decision: paragraphs 113, 116, and 117. It is evident that the trial judge’s reference to her testimony was, however, only to those parts of her testimony that corroborated K.C.’s testimony that she had been upset the morning after the alleged assault took place. Most materially, the trial judge appears to have concluded that J.G.’s trial counsel had conceded that J.S.’s evidence was of almost inconsequential value. I base this upon the trial judge’s statement that he “note[d] that J.G. fairly acknowledges that the evidence of J.S. provided a ‘slight bit of corroboration’ to the testimony of K.C.” (at para 113).
[31] However, if the trial judge was intending in this statement to encompass all of J.S.’s testimony, I am satisfied that he misunderstood the position taken by J.G.’s trial counsel….
[32] When read in context, it is my view that J.G.’s trial counsel was conceding that J.S.’s evidence that K.C. had been crying was corroborative of that aspect of the Crown’s case that relied on K.C.’s actions after the sexual activity. He was not conceding that the events that J.S. had observed outside her bedroom were only slightly corroborative of his client’s position that the complainant had consented to the full range of sexual activity that had occurred.
[33] The failure by the trial judge to account for this part of J.S.’s testimony does not end matters. As previously discussed, not every failure by a trial judge to address evidence justifies appellate intervention. Rather, the evidence must go to the substance of an essential aspect of the trial judge’s decision. In this case, given the relevance of J.S’s testimony to the assessment of the credibility of J.G.’s account, and to the key issue of K.C.’s consent to the entirety of the sexual activity, the error in the matter at hand was significant, and a new trial is required.
[34] I wish to be clear that I am not making a finding regarding how J.S.’s observations affect the assessment of the other evidence in this matter. That is a determination to be made at a subsequent trial. This judgment simply determines that it was an error for the trial judge to have overlooked or failed to address the portion of J.S.’s testimony where she described what she had seen when she exited her bedroom.
VI. CONCLUSION
[36] The appeal is allowed. The conviction is set aside, and a new trial is ordered.
R v Gargan, 2023 NWTCA 5
[August 2, 2023] s.151(b) - Mandatory Minimum in Summary Conviction - Crown Leave Denied [Reasons by The Honourable Chief Justice Ritu Khullar]
AUTHOR’S NOTE: Mandatory minimum sentences continue to face successful constitutional challenges as the concept is largely incompatible with the infinite variety of offending behaviour and background characteristics of accused persons. There is almost always at lease one case in which it is appropriate to depart from the mandatory sentence. Encouraged by R v Hills, 2023 SCC 2, here the Crown tried to defend the 90 mandatory minimum for sexual interference with a minor. The facts of the case revealed a "brief and isolated" placement of the hands on the buttocks of a minor during a hug. Usefully, the Chief Justice reminds us that pre-Friesen case law on sexual interference is not "automatically... wrong or irrelevant" - proportionality remains the most important guiding factor.
[2] The respondent was convicted of one count of unlawful touching of a person under the age of 16 (sexual interference) contrary to s 151(b) of the Criminal Code. The Crown proceeded summarily, and the respondent pled guilty in the Territorial Court of the Northwest Territories.
[3] The offence occurred on August 3, 2018. In December 2018, while investigating another matter, the police learned about this incident, then interviewed the complainant and arrested the respondent who admitted the conduct while detained. The undisputed facts were that the 13 year-old complainant attended a community event where the 23 year-old respondent was present. The respondent had been consuming alcohol. He approached the complainant, reached out to hug her and touched her on her buttocks. The sentencing judge described it as “brief and isolated”. Both respondent and the complainant are Indigenous. There was no information about the effect of the touching on the complainant.
[7] The summary conviction appeal judge concluded that none of the errors was made out and affirmed the one day imprisonment plus 12 months probation as a fit sentence: R v Gargan, 2022 NWTSC 21 (Summary Conviction Appeal Decision). She also affirmed the ruling that the 90 day mandatory minimum sentence was grossly disproportionate when applied to the applicant, so violated s 12 of the Charter.
[9] On this application, the Crown does not challenge the conclusion that the sentence imposed (one day custody plus 12 months probation) is fit. Rather, the appeal would be confined to the question of whether the 90 day mandatory minimum is grossly disproportionate to the fit sentence. The Crown argues that this Court should consider the gross disproportionality analysis in light of the recent Supreme Court of Canada decisions in Friesen and R v Hills, 2023 SCC 2.
[10] The question is one of law. Constitutional questions, properly framed, will almost always be sufficiently important to warrant a second level appeal. This application turns on whether the issue raises a reasonably arguable case of substance. In my view, given the well developed case law in this area, it does not meet this threshold.
[11] First, with respect to Friesen, both the sentencing judge and the summary conviction appeal judge considered it and, in my view, does not affect their conclusion that the mandatory minimum is grossly disproportionate to the fit sentence. Friesen stated at para 107 that sentencing ranges for sexual crimes against children may need to increase in some provinces. At the sentencing hearing and the summary conviction appeal, the Crown argued that Friesen implies that a one day custodial sentence for this offence was demonstrably unfit. Those arguments were rejected: Sentencing Decision at paras 19-20; Summary Conviction Appeal Decision at paras 30-32. If given leave for a further appeal, the Crown does not intend to repeat those arguments. Rather, it will argue that Friesen somehow suggests that 90 day custodial sentence is not grossly disproportionate to a one day custodial sentence. However, Friesen did not address gross disproportionality under s 12 of the Charter, nor how to determine whether a mandatory minimum is grossly disproportionate, and it provides no support for the Crown’s argument.
[13] Hills does not change the law in this area; it reaffirms the Supreme Court’s analytical approach to s 12: Hills para 3. It does offer some nuance in assessing whether a mandatory minimum is grossly disproportionate to a fit sentence in a reasonably foreseeable scenario. But those nuances are not material to the proposed appeal since the courts below held the mandatory minimum breached s 12 because it was grossly disproportionate for the actual respondent, not a hypothetical one. On gross disproportionality, which is the only issue for which leave is sought, Hills reemphasizes that courts must consider the effects of the mandatory minimum sentence on the offender compared with the effects of the fit sentence. In assessing gross disproportionality, three questions should be addressed: the scope and reach of the offence, the effects of the mandatory penalty on the offender, and the objectives of the penalty.
[14] First is consideration of the scope and reach of the offence. Any offences that can be committed in many ways and under many different circumstances by a wide range of people are constitutionally vulnerable: Hills at para 125. It has been repeatedly recognized that sexual interference is the kind of offence that casts a wide net over offenders, victims and circumstances which makes the mandatory minimum sentence constitutionally vulnerable: R v Ford, 2019 ABCA 87 at para 10; R v Drumonde, 2019 ONSC 1005 at para 46; R v Pye, 2019 YKTC 21 at para 74; R v CBA, 2021 BCSC 2107 at paras 23-24, 34; Sentencing Decision at para 41. The circumstances of this case are a perfect illustration of why. The conduct, a brief hug and touch of the complainant’s buttocks, is among the least serious instances of sexual interference, which can cover very grave violations of sexual integrity of victims and devastating exploitations of their vulnerability. The 90 day minimum sentence would apply nevertheless.
Second, a court must consider the effects of the mandatory penalty, 90 days imprisonment, on the offender as compared with the effects of the fit sentence: Hills at paras 35, 38. It has been repeatedly recognized that imprisonment is the harshest form of punishment, whose ripple effects on the offender and his community cannot be underestimated: Hills at para 101. It is the penal sanction of last resort: Hills at para 31. Given those truths about incarceration, it is very difficult to understand how a mandatory minimum custodial sentence that is 90 times higher than a fit (one- day) custodial sentence is not grossly disproportionate. The Crown provided no argument about this. Of course, numbers alone aren’t determinative – effects matter. The respondent would spend up to 90 days imprisoned, with the loss of liberty that involves. He is a young Indigenous man with a substance abuse problem but no criminal record at the time of sentencing. The criminal charge and conviction were a wake up call: the respondent attended residential treatment successfully and was continuing with counselling. He had taken steps to re-establish himself in the community and with his family. To incarcerate the respondent for up to 90 days would risk undoing the successful steps he has taken towards re-integrating himself with his family and his community and would be potentially devastating. While not directly applicable to this stage of the analysis, it is also not clear to me how the Crown’s position addresses the over incarceration of Indigenous people in Canada.
[15] Third, it is necessary to consider the primary objectives of the mandatory sentence, which in this case are denunciation and deterrence. A mandatory minimum sentence can be grossly disproportionate if it gives no recognition to other objectives such as rehabilitation: Hills at paras 140-144. The courts below considered rehabilitation based on the fact that the respondent addressed the underlying addiction and found that the 90 day minimum risked undermining his successful steps toward rehabilitation. Denunciation and deterrence could be achieved through the conviction and the period of probation.
[16] This case illustrates one of the problems with mandatory minimum sentences - they shift the focus from the offender during sentencing in a way that can show “complete disregard” for the principle of proportionality: Hills at para 38.
[18] … R v M-M, 2022 ABQB 197….
[19] … I agree that pre-Friesen case law on sentencing for sexual interference has to be considered in light of Friesen, but that does not automatically mean it is wrong or irrelevant. Further, while clearly sending a strong message that sexual offences against children are serious crimes and sentences in some provinces may need to increase, the Supreme Court of Canada did not do away with the primary principle of proportionality in crimes against children: Friesen at paras 5, 91. In addition, as already noted, Friesen impacts the analysis of what is a “fit” sentence, not gross disproportionality.
[20] … M-M relies on the Alberta Court of Appeal decision in Hills, which was clearly repudiated by the Supreme Court of Canada.
[21] In conclusion, the Crown raises a question of law that is sufficiently important to warrant a further appeal but I find that it is not reasonably arguable on this record. The courts below found that the mandatory 90 day custodial sentence is grossly disproportionate to the one day custodial sentence fit for this offender in the circumstances. The Crown has not outlined any reasonable argument that their conclusion is in error. Therefore, the Crown’s application for leave to appeal is denied.
R v LWT, 2023 ABCJ 139
[June 12, 2023] Sexual Assault: All the Circumstances of the Reporting of the Crime [J. Shriar J.]
AUTHOR’S NOTE: This case reminds us that when a crime is simply the word of one person against another, there is a need to consider all of the circumstances leading up to the reporting of the crime. Here, a bald accusation of a historical crime with some difficulty recalling detailed events against a bald denial resulted in an acquittal in large part because the Crown failed to call any evidence about how the complaint came to the attention of the police. When the complainant testified that she was scared and confused at the time and did not understand the behaviour was abnormal, the trial judge wondered aloud when and how that changed? Crown failed to call any evidence of this. While myths and stereotyped conclusions about delayed and incremental allegations must be avoided, where there is evidence of such a context is still needs to be considered as part of the overall assessment of the complainant's credibility.
[2] Crown called evidence from the complainant who described five incidents of sexual contact including anal and oral sex, and digital penetration. Four of the five incidents allegedly occurred in the parties’ family home and the fifth, a few months later, in their grandmother’s house nearby.
The Burden of Proof
[9] The Court is entitled to apply common sense and human experience in determining whether evidence is credible and reliable and in deciding what use, if any, to make of it in coming to its conclusion. The Court may believe the whole or part of the testimony of any witness.
[10] Applying the principle about proof beyond reasonable doubt to the issue of credibility was addressed by the Supreme Court of Canada decision R v W(D), [1991] 1 SCR 742. At pp.757-58 Justice Cory stated three fundamental principles almost always applied by Canadian courts and juries when assessing credibility of witnesses in the context of the rule of reasonable doubt.
[13] Proof beyond a reasonable doubt is not proof to the level of certitude. Many scientific matters cannot be proven with absolute certainty, let alone matters concerning human
affairs. Reasonable doubt is not based on sympathy or prejudice, nor on imaginary or frivolous doubt. Reasonable doubt must be based on reason and common sense and must be logically connected to the evidence or absence of evidence. (R v Lifchus, [1997] 3 SCR 320)
[14] Proof beyond a reasonable doubt, however, is closer to the level of absolute certainty than to the level of probability. More is required than proof that the Accused is probably guilty. If the Court concludes only that the Accused is probably guilty, it must acquit. (R v Starr, (2000) 147 CCC (3d) 449, (SCC) at para. 242)
The Complainant’s Evidence
[23] Defense counsel pointed out frailties in the complainant’s testimony, including the lack of memory of significant details about what happened before and after the alleged incidents, which she argued undermine the reliability and credibility of ET’s testimony.
[24] Crown submitted that ET testified in a forthright manner without embellishment or exaggeration, admitting to gaps in her memory but reasonably asserting that while her recall of certain details was “fuzzy”, she clearly remembered important events from the relevant times.
[25] Given the time lapse since the alleged events and the young age of the complainant at the time, these memory gaps are not necessarily material. (R v W(R), [1992] 2 SCR 122 (SCC))
[26] There are, however, other features of ET’s testimony that concern the Court. And these relate to what the Court described as a lack of context. ET testified that she was scared and confused at the time and did not understand this was abnormal.
[27] I wondered aloud about when and how that changed, and what led ET to make the allegations. In discussion during argument Counsel averted to the risk of falling into reasoning based on stereotypes or myths.
[28] In R v Garford (paras. 19-20), the Court of Appeal reminded that relying on “logic and common sense” about how memory functions or how victims of sexual assault behave, may lead to improper reliance on myth and stereotypes. And that there are, of course, many reasons for delay in reporting including embarrassment, fear, guilt, lack of understanding and knowledge and recovery of repressed or buried memories. (R v D(D), [2000] 2 SCR 275)
[29] Myths and stereotypical thinking about sexual assault victims including children and young people have no place in a rational and just legal system and reliance of myths and stereotypes to assess the credibility of a complainant undermines the court’s truth finding function. (R v Lacombe, 2019 OJ 6022). I reviewed several cases making similar points and carefully instructed myself to avoid that error (R v AG, 2000 SCC 17; R v ARD, 2017 ABCA 237)
[30] The Court disagrees that its concern is based on myths and stereotypes. The concern does not arise from an unmet expectation of any particular behaviour or response by the complainant. Rather this sort of detail would be helpful and perhaps necessary in assessing the reliability of the complainant’s testimony, given the time lapse since the alleged events, her young age at the time and her candid admission about not remembering certain related details.
[31] In the absence of evidence about contextual circumstances, the complainant’s allegations, in this case at least, are the flip side of a bare denial. They are like “bare allegations”. The solution to the problem of possible improper judicial reliance on myths and stereotypes surely cannot be to avoid any evidence of context. Avoidance risks creating the reverse of a bare denial, leaving near-bare allegations and an insufficient basis on which to undertake assessment of the veracity and especially the reliability of the complainant’s testimony.
[32] In Garford, the Court of Appeal warned against myths and stereotypical conclusions about the complainant’s delayed and incremental allegations. The Court also stated (para. 21) that “this is not to say that such evidence is necessarily inadmissible or irrelevant”. And that such evidence generally “can and should be probed during cross examination. Such considerations are part of the overall assessment of the complainant’s credibility”.
[33] A similar point was made in R v Roth, 2020 BCCA 240 where the BC Court of Appeal held that notwithstanding the risks of myths and stereotypes distorting a judge’s reasoning process, consideration of a complainant’s behaviour is not prohibited for all analytical purposes. Rather such evidence has a permissible role to play as a circumstance in assessing the evidence as a whole, in the context of the case’s particular “factual mosaic”. The Court stated that “what ARD and like cases warn against in the improper use of this type of evidence, not any use at all.” (para 130).
[34] In R v Greif, 2021 BCCA 187, the Court stated that “what matters is not the type of evidence but the inference it is being relied upon to support.” (paras. 62 and 64). The Saskatchewan Court of Appeal made a similar point in R v Durocher, 2019 SKCA 97
Conclusion
[36] Where different versions of the events are presented in court, a decision is never a matter determining which version the court prefers. To follow that approach would mean that the Accused would have the onus of proving his innocence by presenting a more believable version of events. That is, of course, not the Accused’s obligation. A trial is not a credibility contest between the Complainant and the Accused over who provides the best or more likely narrative of events.
[37] The trial judge may prefer the Complainant’s narrative to that offered by the accused, but that does not resolve the issue of reasonable doubt as to guilt. A preference alone is not sufficient to find guilt. The issue is always whether the Crown has proven the case beyond a reasonable doubt. (R v JHS, 2008 SCC 30 at paras. 8-13; R v CYL, 2008 SCJ No 2, para. 6)
[38] LWT’s testimony that there never would have been opportunity to commit the alleged acts is unconvincing. And the bare denial of any criminal conduct cannot be meaningfully considered except in the context of assessing ET’s testimony.
[39] I agree that ET testified in forthright manner and apparently did her best to recall and recount events that occurred several years ago. As indicated, her lack of recall of certain background facts does not raise concerns for the Court about her credibility. The absence of detailed evidence of historical child sexual assault allegations is often understandable.
[40] However more evidence about the context of the allegations themselves would help the Court assess the reliability of those allegations.
[41] It should be emphasized for the benefit of ET that she is not being accused of lying or misrepresenting the facts. She is not accused of any crime or wrongdoing. She is at not at risk of criminal conviction.
[42] The Crown is required to prove the case beyond a reasonable doubt. That is a very high burden. And in the absence of evidence to assure the court of the reliability of the Complainant’s testimony, the Court finds that there is simply not enough evidence to conclude beyond a reasonable doubt that the incidents occurred as described.
[43] After careful consideration of all the evidence the Court is not convinced the Crown has proven the case to the required high standard. Accordingly, there must be a finding of ‘not guilty’. The case is dismissed, and the Accused is free to go.
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