A. T. Brun

On a summary conviction appeal from a sexual assault conviction, the appellant argued that the trial judge misapplied the burden of proof in a case turning on credibility and conflicting evidence arising from the Crown's own witnesses.

The appeal court held that the trial judge erred in law by stating that no W.(D.) analysis was required because the accused did not testify, and by failing to recognize that defence-favourable evidence in the Crown's case could still raise a reasonable doubt.

The reasons did not adequately demonstrate that the reasonable doubt standard was applied to vital credibility conflicts, including evidence bearing on whether the alleged assault could have occurred as described.

The conviction was set aside and a new trial ordered before a different trial court.

The Crown prosecuted an attempted murder charge arising from a shooting after abandoning a conspiracy count on a directed verdict.

The case turned on whether the complainant's prior testimony from a preliminary inquiry and another trial could be admitted substantively after the witness professed extensive memory loss and resisted meaningful examination at trial.

Applying the principled hearsay approach under s. 9(2) of the Canada Evidence Act and the threshold reliability framework, the court admitted the prior evidence by a narrow margin but held that its ultimate reliability was too frail to support conviction.

The court concluded that the Crown's theory of a set-up to kill the complainant was not the only rational inference available on the record and entered an acquittal on the attempted murder count.