CM Smith

The appellant appealed a summary conviction for sexual assault, arguing that the trial judge failed to address a material inconsistency in the complainant’s evidence concerning the existence of a privacy curtain and improperly relied on alcohol abuse as affecting long-term memory without evidentiary foundation.

The appeal court held that the curtain evidence was immaterial to the core allegations and did not require express resolution as a significant inconsistency.

It further held that the trial judge was entitled to assess reliability based on the appellant’s admitted memory problems, demonstrated testimonial lapses, alcohol consumption, and internal inconsistencies.

The factual findings were reasonably supported by the record and the conviction appeal was dismissed.

The Crown appealed an acquittal on a sexual assault charge involving a young person respondent and a child complainant, arguing that the trial judge approached the child’s evidence too critically, relied on conjecture about timing, and invoked stereotypes concerning disclosure.

The appeal court held that the trial judge correctly instructed herself on the law governing child witnesses, credibility, reliability, and the burden of proof, and was entitled to treat material inconsistencies as bearing on reliability.

The court also held that the trial judge's concerns about timing were grounded in the evidence and were not the decisive basis for the acquittal.

The appeal was dismissed.