Court of Appeal for Ontario

Date: 20230914 Docket: COA-22-CR-0158

Before: Trotter, Thorburn and Favreau JJ.A.

Between: His Majesty the King, Respondent And: Brent William Diehl, Appellant

Counsel: Brent Diehl, acting in person Erica Whitford, for the respondent Dan Stein, appearing as duty counsel

Heard: September 7, 2023 by video conference

On appeal from the conviction entered by Justice Marc A. Garson of the Superior Court of Justice on January 27, 2022.

Reasons for Decision

[1] Mr. Diehl appeals his conviction for sexual assault with a weapon. He claims that the trial judge (1) relied on myths and stereotypes in his credibility assessment of the appellant’s evidence, and (2) failed to apply the proper principles of reasonable doubt, instead applying uneven scrutiny to the evidence of the complainant and appellant. (He abandoned his claim of ineffective assistance of trial counsel.)

[2] For the reasons that follow, we see no error in the trial judge’s analysis or his reasons for conviction and in particular, we do not agree that he engaged in stereotypical reasoning or an uneven scrutiny of the evidence.

[3] We begin with an outline of the law regarding the dangers of stereotypical reasoning and uneven scrutiny.

[4] When stereotypical reasoning is alleged, the evidence must be looked at as a whole: R. v. Donnelly, 2023 ONCA 243.

[5] Triers of fact are permitted to rely on “logic, common sense, and experience” in making credibility assessments: R. v. Calnen, 2019 SCC 6, [2019] 1 S.C.R. 301, at para. 112; R. v. Delmas, 2020 ABCA 152, 452 D.L.R. (4th) 375, at para. 31, aff’d 2020 SCC 39, 452 D.L.R. (4th) 371; and R. v. Cowan, 2021 ONCA 729, at para. 15; R. v. S. (R.D.), [1997] 3 S.C.R. 484, at paras. 39 and 129.

[6] However, they must “avoid speculative reasoning that invokes ‘common sense’ assumptions not grounded in the evidence”: R. v. Roth, 2020 BCCA 240, 66 C.R. (7th) 107, at para. 65, relying on R. v. Cepic, 2019 ONCA 541, 57 C.R. (7th) 166, at paras. 19-27; and R. v. Perkins, 2007 ONCA 585, 51 C.R. (6th) 116, at paras. 30-42.

[7] Uneven scrutiny is a “notoriously difficult argument to prove”: R. v. G.F., 2021 SCC 20, 459 D.L.R. (4th) 375, at para. 99. In order to displace the deference due to a trial judge’s credibility assessments, the party making this allegation must identify something clear in the trial judge’s reasons or the record indicating that a different standard of scrutiny was applied to something significant (such as rejecting the appellant’s testimony for speculative reasons): G.F., at para. 99.

[8] In this case, the trial judge began his reasons by correctly setting out the test for the review of evidence set out in R. v. W.(D.), [1991] 1 S.C.R. 742 and then noted that,

W.D. does not apply to each individual piece of evidence but only to essential elements of the offence. When assessing credibility, I must examine both the internal consistency of a witness’s evidence as well as the consistency of that evidence with other witness’s evidence. I must apply the same level of scrutiny to all witnesses.

In cases of this nature, the credibility assessment is the central issue and ultimately informs the findings that determine whether the Crown has proven its case beyond a reasonable doubt or whether or not the evidence as a whole raises a reasonable doubt.

Credibility speaks to veracity and truth telling. While reliability speaks to accuracy and trustworthiness. A motive to fabricate or lie are relevant factors that I may consider. What I must not do is permit a criminal trial to turn into a credibility contest where I simply pick one version of events over another. To do so undermines both the presumption of innocence and the burden of proof placed on the Crown.

The burden of proof never shifts to the defendant. Section 265(3)b provides that the complainant’s consent to sexual assault may be vitiated by fear or the application of force. I must be careful not to subscribe to any of the judicially recognized myths and stereotypes regarding sexual assaults. I must be aware of assumptions of how a victim of sexual assault typically or normally responds to such acts. Though, I must not rely upon or draw adverse inferences from any of these myths or stereotypes, I must nonetheless apply the same level of scrutiny to the complainant’s testimony as I do the testimony of other witnesses. See R. v. Greer [2009] ONCA 505 at paragraph six.

I am mindful the defence cautions me to consider the notion that a consenting woman will calmly accept sexual disappointments as a potential myth or stereotype.

[9] He then provided a summary of the evidence adduced by both parties, followed by an assessment of the credibility and reliability of the complainant’s evidence. It is immaterial whether the court assesses the evidence of the complainant before or after the evidence of the accused: R. v. Gerard, 2022 SCC 13.

[10] The trial judge noted that although the complainant had consented to engage in sexual intercourse,

The law is clear, consent must be given for each act engaged in and must be contemporaneous with the act. [The complainant] had every lawful right, having earlier consented to engage in vaginal intercourse with the defendant, to revoke or withdraw her earlier consent at any time. She did so. Clearly.

[11] He found that the complainant’s evidence was credible: she was candid about agreeing to a sexual encounter and had consented to certain parts of the sexual encounter. He also noted that her evidence was reliable: unlike the appellant, she was sober and therefore able to give a clear account of events both before and after the incident. She was emphatic that there were aspects of the sexual encounter that were not consensual.

[12] The trial judge noted that the complainant’s account of the non-consensual sexual encounter was corroborated by a nurse who treated her injuries and testified that some of them were consistent with the assault. He also took into account that the complainant immediately sought medical attention, there were photographs of her injuries adduced at trial, and she was visibly upset when she met with police.

[13] The trial judge then analyzed Mr. Diehl’s evidence and found that it was neither credible nor reliable. He rejected the appellant’s assertion that the complainant got angry that he could not perform sexually, and therefore concocted a detailed and compelling account of sexual assault and then self-inflicted injuries to implicate him. He found that,

Even if I were to accept, which I do not, that the defendant’s inability to maintain an erection made the complainant angry, the defendant’s story lacks believability and defies common sense.

How did she get all of the bruising? Why did she immediately photograph her bruises? Why did she abruptly leave after two or three minutes? Simply put, his story is illogical and unreasonable. I do not believe or accept his version of events.

[14] He therefore concluded that,

I disbelieve the evidence of the defendant that he did not commit the offence, his evidence does not raise a reasonable doubt. The totality of the evidence that I do believe and accept proves his guilt beyond a reasonable doubt. For the above reasons, I find the defendant guilty.

[15] In sum, the trial judge articulated the correct test, he conducted a careful scrutiny of the evidence, and his assessment of the evidence was neither uneven nor based on myths and stereotypes.

[16] For these reasons, the appeal is dismissed.

“Gary Trotter J.A.”

“Thorburn J.A.”

“L. Favreau J.A.”