Court File and Parties

Court of Appeal for Ontario Date: 2024-12-13 Docket: COA-23-CR-0391 & C70199

Huscroft, Dawe and Wilson JJ.A.

Between: His Majesty the King, Respondent

And: David Case and Celine Loyer, Appellants

Counsel: Nicholas A. Xynnis, for the appellant (COA-23-CR-0391), David Case Michael Lacy and Marcela Ahumada, for the appellant (C70199), Celine Loyer Philippe G. Cowle, for the respondent

Heard: June 25, 2024

On appeal from the conviction entered on March 5, 2020 and the sentence imposed on February 4, 2021 by Justice Patricia C. Hennessy of the Superior Court of Justice, sitting without a jury (COA-23-CR-0391).

On appeal from the conviction entered on March 5, 2020 and the sentence imposed on February 4, 2021 by Justice Patricia C. Hennessy of the Superior Court of Justice sitting without a jury (C70199).

Huscroft J.A.:

Overview

[1] The appellant David Case invited the complainant, then 19 years old, to his home for dinner with him and the appellant Celine Loyer on June 17, 2011. Case was at that time 49 years old. Loyer was 22.

[2] The complainant testified that she was served one beer before dinner and a shot of liquor after dinner. The complainant did not see Case pour the shot of liquor. She felt drowsy after drinking the shot and recalled her head hitting the back of the couch. She recalled being dropped off outside her home by Case a few hours later. Her partner greeted her in the stairwell of their apartment and described her as incoherent, unsteady, and unable to respond to questions. The complainant’s pants were half-way down her legs.

[3] The complainant testified that during the night she had a flashback of being digitally penetrated by Loyer while Case sat close by and encouraged Loyer. Loyer was between the complainant’s legs inserting her fingers into the complainant’s vagina and Case sat somewhere above her head. The complainant testified that Case said to Loyer: “You just made her squirt everywhere. Do it again.”

[4] The complainant called the Crisis Centre and visited the hospital for a sexual assault examination on June 21 and June 22. She was seen by two different sexual assault nurses, both of whom charted bruises on her left upper inner thigh, described as circular with finger-like patterns and oblong red-yellow bruises. She also had a circular bruise on her throat or neck. The complainant reported that she had a sore and painful vagina.

[5] The appellants did not testify at the judge alone trial. Both were convicted of one count of sexual assault and sentenced to a term of 16 months’ imprisonment and two years’ probation.

[6] The appellants argue that the verdicts are unreasonable. In essence, they argue that the complainant’s flashback was a dream and that her evidence was unreliable. They seek an acquittal or a new trial. The appellant Loyer seeks leave to appeal sentence to vary a term of the probation order prohibiting her from contact with Case. At the hearing of the appeal, Case asked to be permitted to appeal his sentence to vary the same term.

[7] The court agrees that the guilty verdicts were available on all of the evidence. The verdicts were, therefore, not unreasonable in the sense that no trier of fact, properly instructed and acting judicially, could reasonably have rendered them. However, Dawe J.A. considers that the verdicts were nevertheless unreasonable because they were reached in an illogical or irrational manner, and for this reason would order a new trial.

[8] I am satisfied that the verdicts were not unreasonable in this second sense. The trial judge fully understood the appellants’ challenge to the complainant’s memory of the assault. She carefully considered the complainant’s evidence and made findings that were open to her on the evidence. These findings were not reached in an illogical or irrational manner. They are entitled to deference in this court.

[9] I would dismiss the appeals for the reasons that follow. I would grant leave to appeal sentence but would dismiss the sentence appeals.

Discussion

The verdicts were not unreasonable

[10] The standard for an unreasonable verdict is well established. A verdict is unreasonable if no “properly instructed jury, acting judicially, could reasonably have rendered” it: R. v. Biniaris, 2000 SCC 15, [2000] 1 S.C.R. 381, at para. 36, citing R. v. Yebes, 1987 17 (SCC), [1987] 2 S.C.R. 168, at p. 185. The same standard applies to verdicts rendered by judges sitting without a jury: Biniaris, at para. 37. To say that a verdict is unreasonable in this sense is to say that the evidence cannot sustain it regardless of whether there were any errors in the conduct of the trial: R. v. Harvey, (2001), 2001 24137 (ON CA), 57 O.R. (3d) 296 (C.A.), at paras. 19-20, aff’d 2002 SCC 80, [2002] 4 S.C.R. 311, or that it conflicts with the bulk of judicial experience: Biniaris at paras. 39-40. Where this occurs, the appropriate remedy is to enter an acquittal.

[11] The appellants argue that the complainant’s memory of the alleged assault was a dream that she came to believe was a flashback to actual events, and state that “no medical or other expert evidence was adduced by the Crown to support the suggestion that memory could be formed, suppressed and then reliably recalled in the form of a flashback to actual events.” The appellants argue that there was a real risk that what the complainant recounted was not an accurate account of what actually occurred and that, “in the absence of expert evidence, it will be exceedingly rare to confidently rely on a narrative that comes to one in their sleep as an actual memory of an event as opposed to a confabulation.”

[12] To the extent that the appellants’ argument suggests that expert evidence was required to support the trial judge’s reliability findings, R. v. François, 1994 52 (SCC), [1994] 2 S.C.R. 827 is squarely against it. As the Crown submits, trial judges deal with issues of intoxication and memory routinely, in sexual assault complaints and in numerous other contexts, and do so without the need for expert evidence. See e.g., R. v. B.W.W., 2017 ONSC 985; R. v. R.D., 2017 ONSC 1856, aff’d 2019 ONCA 132.

[13] Expert evidence was not required in this case. It was for the trial judge to consider the complainant’s evidence and to make findings of credibility and reliability. Her findings are entitled to deference in this court.

[14] I am satisfied that the guilty verdicts were available on the evidence. The complainant’s uncontested evidence was that she was unconscious following the drink Case gave her at approximately 9:00 or 9:30 p.m. She was not returned to her home until between 12:30 and 1:00 a.m. that evening, and was returned in an incapacitated state – incoherent, barely able to walk, with her pants half-way down her legs.

[15] The complainant testified that she had a flashback of being assaulted by Loyer, encouraged by Case, and described how it occurred. The appellants had the opportunity to commit the alleged assault. The complainant was invited to the home of Case to spend the evening with him and Loyer and was alone with them during the period in which she lost consciousness. The complainant testified that she did not consent to any sexual activity with the appellants and would not have done so. She had no sexual interest in either of the appellants. As respects the appellant Case, his email correspondence with the complainant corroborates that sexual activity took place, albeit in a manner the trial judge rejected. The complainant’s account of the assault was confirmed by bruises on her upper thighs, a bruise on her neck, and a sore vagina.

[16] The guilty verdicts are not unreasonable in the sense that no trier of fact, properly instructed and acting judicially, could reasonably have rendered them. Dawe J.A. agrees, but concludes that the verdicts were, nevertheless, unreasonable because of the way in which they were reached – a reasoning path he considers illogical or irrational.

[17] I do not agree. As I will explain, the trial judge’s decision reveals no errors that render the decision unreasonable.

The verdicts were not reached illogically or irrationally

The nature of illogical or irrational reason

[18] A verdict otherwise available on the evidence may, despite any errors at trial, be unreasonable if the reasons reveal that it was reached by a flawed reasoning process – specifically, if it was reached “illogically or irrationally”: R. v. Beaudry, 2007 SCC 5, [2007] 1 S.C.R. 190, at paras. 96-97, per Fish J. (dissenting in the result); and R. v. Sinclair, 2011 SCC 40, [2011] 3 S.C.R. 3, at paras. 4 and 15-17, per Fish J. (dissenting in the result), and at para. 44, per LeBel J.

[19] The Court summarized the law in R. v. C.P., 2021 SCC 19, [2021] 1 S.C.R. 679, at para. 29, in this way: A verdict is unreasonable “if the trial judge draws an inference or makes a finding of fact essential to the verdict that is plainly contradicted by the evidence relied on by the judge in support of that inference or finding, or shown to be incompatible with evidence that has neither been contradicted by other evidence nor rejected by the trial judge” (citations omitted).

[20] The possibility that a verdict is unreasonable in this sense is not an invitation to appeal courts to parse a trial judge’s findings or to quibble with the reasons proffered for them. In C.P., the Supreme Court admonished appellate courts to show restraint in inquiring into a trial judge’s findings and inferences: they are not to “substitute their preferred findings of fact for those made by the trial judge”. The court emphasized that the inquiry into logicality and rationality is narrowly targeted: it is concerned only with “‘fundamental flaws in the reasoning process’ which means that the verdict was not reached judicially or in accordance with the rule of law”: at para. 30.

[21] The rule of law benchmark emphasizes the narrow scope of the analysis. We are concerned only with fundamental analytical flaws – basic errors that go to the heart of the analysis. As this court has stated, an unreasonable verdict on the basis of illogicality or irrationality is “exceedingly rare”: R. v. Bacchus, 2024 ONCA 43, at para. 13.

The appellants’ argument

[22] The appellants argue that the trial judge failed to engage in what they term the “critical analysis”: carefully assessing the reliability of the complainant’s claim that she had a memory of an actual event rather than a figment of a dream state. The appellants take issue with the use of the term “flashback”, which they say is a misnomer because it presumes the existence of an actual memory – the very thing the trial judge had to determine. The trial judge’s approach was fundamentally flawed, they submit, because it wrongly assumed that the complainant’s flashback could only have occurred if it was in fact true. The trial judge’s reasoning was therefore circular. The trial judge improperly and without notice to the parties relied on the dictionary definitions of “flashback” to conclude that because the complainant characterized her dream as a flashback, it was in fact a reliable memory of sexual assault. The appellant Case puts the matter categorically: “[B]ecause [the complainant] conceded that she had not awakened at all from the time she fell asleep until arriving at her home, it was impossible for the trial judge to find that she had been sexually assaulted by the appellants.”

[23] The appellants argue that the trial judge wrongfully reinforced her conclusion that the complainant had a memory of an actual event rather than a dream by reference to the sincerity of the complainant’s belief, her recounting of the dream proximate to it occurring, her repeated description of the dream, and the fact that she had not adopted an alternative theory or narrative to explain her dream. Further, the trial judge erred in finding that the assault had occurred before turning to the purported confirmatory medical evidence, and in any event there was no basis to conclude that the medical evidence was inconsistent with anything other than a sexual assault.

[24] Although the appellants make several arguments, in essence their argument is simple and straightforward. The appellants do not contest the trial judge’s finding that the complainant was credible. They contest the trial judge’s findings about the reliability of the complainant’s evidence. Their submissions rely on the complainant’s testimony that she was unconscious during the assault and that the flashback of the assault came to her while she was asleep.

[25] However, this was not all that the complainant said in her testimony. She testified that she had a flashback of the assault and insisted that it was not a dream.

The flashback finding

[26] The complainant used the term “flashback” to describe her memory of the assault and the trial judge explored the issue with counsel in considerable depth. Her exchange with Crown counsel included the following:

The Court: Repressed. Is part of the issue – I don't know how you can answer this to be helpful, but I'll try it. Is part of the issue that the complainant uses words flashback and dream, for instance, that have not – that – that there’s – there’s no – in this trial, no objectively found definition of those words?

The Crown: My submission to you is that there is from her description of what she meant by that, as it being a vivid memory of what happened, that her whole body remembers.

The Court: Did she say that on the – on the stand?

The Crown: She – she did say that.

The Court: Said that – that the flashback was a vivid memory?

The Crown: Yes. And she also said that it was something that her body could not forget.

The Court: Did she say that before she was shown the article?

The Crown: Her evidence with respect to that, I can't recall, but her descriptor of that memory was always that it was vivid. And that was consistent throughout.

Similar exchanges occurred with trial counsel for the appellants, both of whom argued that the complainant could not have a flashback because she dreamed of the assault.

Exchange with counsel for Case:

Mr. Xynnis: Despite her denials, it was proven that [the complainant] used the word dream to describe her vision until she later came up with a new way to frame it after doing some research on the internet.…

And it’s only after she did some research on the internet that all of a sudden she’s recasting them as flashbacks.

Or – or – or recovered memories with something that our bodies tells us, which frankly, is – no disrespect to [the complainant], nonsense.

The Court: Well, would it – would it not – would you not agree that an unschooled 19-year-old who has a memory come back after a period of unconsciousness calls it a dream, even though it’s not a dream? Or that – or that maybe there’s no one in this room who would come to any kind of sophisticated definition of a dream. Would that surprise you?

Mr. Xynnis: I – I know what I mean, Your Honour. I think we all know when we dream. We may not – we may not be able to remember – we – we may not be able to always or regularly remember our dreams. It seems that if you wake up more quickly, you tend to remember dreams more regularly. The fact that she first referred to this memory, this flashback as a dream has to be instructive.

The Court: All right, it’s instructive. Is it possible it’s instructive that she didn’t know what it was? … If it’s a fragment – if it’s a fragment of a memory … in a long period of … of no memory?

Mr. Xynnis: Then how on earth is there evidence of any assistance to Your Honour in finding – finding the facts of this case?

Exchange with counsel for Loyer:

The Court: All right. And if you are still feeling the cognitive effects of whatever made you intoxicated…. Do you say its – we should expect that a 19 year old, probably unsophisticated, unschooled in the nuances that are now before this court, is it reasonable to expect – or should one expect that she will have the precise label for what came to her…. Like – like we know that – that on early Saturday morning she’s in a bad state.

Mr. Haraschuck: But we have to remember the words that she’s using.

The Court: I – I am remembering those words. But you want me to draw an inference. You say – you want me to draw common sense inference that the only thing that she – that could have been playing in her mind was a dream because – I think you’re saying – because it was morning and she woke from a state of sleep. So I think what you’re saying is, so when you have a picture in your mind that came to you when you were asleep, and now you’re waking up, common sense tells you it’s a dream. But there’s a picture than just waking up from sleep. The bigger picture is that she’s possibly still feeling the effects of whatever so intoxicated her. We know – I think is possibly common sense, or just courtroom sense. We know that people who are severely intoxicated would still blow over in the morning.… So – so we have reason to believe, or it would be a – a common sense inference that she is still feeling the effects of whatever made her intoxicated.… Wouldn’t that be confusing?

Mr. Haraschuck: But as long as she’s asleep and not conscious, then what – there’s – there’s no evidential value, in my submission, to what she is recalling when she’s thinking back to something that comes to her while she’s asleep.

[27] These exchanges establish context for the trial judge’s reference to dictionary definitions of the term “flashback” in her decision. The complainant used various terms in describing her memory concerning the alleged assault but the appellants insisted that, whatever she said, she could only have dreamed that the assault occurred. The trial judge rejected that argument in the following terms:

The complainant used the word unconscious to describe her state after she drank the shot and before she was returned home. [The complainant], by my assessment was a näive, relatively unschooled 19-year-old when the event took place. The best we can take from her account is that she does not have a continuous memory of the evening. She does recall the events that she says came to her in a “flashback.” A flashback is a type of a memory. The Merriam-Webster Dictionary (online edition) defines the noun “flashback” as, “a past incident recurring vividly in the mind” and the verb as, “to focus one’s mind or vividly remember a past time or incident.” The definition of the noun “flashback” in The Oxford Dictionary (online) is “a sudden and disturbing vivid memory of an event in the past, typically as the result of psychological trauma or taking LSD.” [Footnotes omitted; emphasis added.]

[28] In other words, the trial judge found that the complainant remembered some of what occurred; her flashback was not a dream. This was a finding that was open to the trial judge on the evidence. The trial judge did not wrongly rely on the dictionary definitions to reach her conclusions on the complainant’s reliability. The trial judge accepted the complainant’s insistence that she had not dreamed of the assault, as she testified in cross-examination:

Q: Now, since you were asleep, the images that came to you must have been a dream?

A: They were not a dream, sir.… I may have said it was dreamlike, but, no, it was not a dream, sir.

[29] The trial judge accepted that the complainant was using the term “flashback” to indicate a memory. This was a finding that was open to the trial judge on the evidence before her. The trial judge had the advantage of seeing the complainant give her evidence and watching her in cross-examination. She well understood the reliability issues and fully and fairly canvassed them with trial counsel before reaching her decision. Her findings are entitled to deference in this court.

The decision is not fundamentally flawed

[30] As the Supreme Court has emphasized, this court must take a “functional and contextual” reading of the reasons for a decision: R. v. G.F., 2021 SCC 20, [2021] S.C.R. 801, at paras. 76, 82. The decision must be read as a whole.

[31] The trial judge’s finding that the complainant’s memory of the assault was reliable was supported by several findings. As the trial judge noted, this was not a case in which the complainant was recounting an historical assault, a memory that had been blocked, or a memory that had been recovered through therapy. Nor was the complainant’s memory of the alleged assault prompted by suggestions from others. On the contrary, the complainant recounted the assault to her partner and co-worker shortly after the alleged assault occurred, both of whom testified that she pieced together the details in the hours following the alleged assault.

[32] Moreover, the complainant maintained her account despite the alternative narrative put to her by the appellant Case in email correspondence with her, in which he characterized the complainant as a drunken sexual aggressor. Case said that the complainant had yelled, used profanities, tried to take off his pants, stripped naked, masturbated, and kissed Loyer. Despite this alleged misconduct, Case told the complainant that the matter could remain private between them.

[33] The trial judge did not find this alternative narrative to be reasonable, noting that it did not accord with the complainant’s uncontested evidence about her alcohol tolerance and, further, that she could not have done these things while so incapacitated. As the trial judge put it: “It makes no sense that a 19-year-old woman could have taken advantage of a fit man and woman in the way they described.” However, that left Case’s acknowledgment that sexual activity including digital penetration had taken place. In addition, Case attempted to dissuade the complainant from going to the hospital to be examined, telling her that she probably had the flu.

[34] The details of the alleged assault that the complainant provided in the days immediately following her dinner with the appellants were consistent with her earliest account. The complainant remembered the manner in which she was assaulted including the position of her body, the people involved, the digital penetration, and Case’s words to Loyer.

[35] These were the circumstances in which the trial judge found that, despite what she described as significant gaps in the complainant’s memory, the complainant was able to observe, hear, and feel what was happening to her. Her confusion the next morning was explained by the effects of the substance she had consumed and the alternative narrative Case put to her.

[36] Given the gaps in the complainant’s memory, the trial judge looked to the confirmatory evidence. She found that there was a “striking correspondence” between the medical evidence and the complainant’s flashback and, in addition, that the evidence corroborated and confirmed the complainant’s account.

[37] The complainant had bruising on her upper thighs and reported vaginal soreness when she was examined on June 21 and June 22 following the alleged assault. The trial judge rejected the appellants’ suggestion that the complainant may have bruised herself by bumping into tables at work on the basis that it was implausible. She found “that the only reasonable inference is that the bruises were made by hand pressure on [the complainant’s] upper thigh during the sexual assault.” This evidence supported the conclusion that the sexual assault was not a dream.

[38] The trial judge’s treatment of the evidence is thorough and careful. There is no basis to conclude that her decision is fundamentally flawed – no basis to conclude that it was not reached judicially or in accordance with the rule of law. The trial judge clearly understood that the reliability of the complainant’s evidence was the central issue in the case – the “primary issue”, as she described it. The trial judge did not fail to engage in the “critical analysis”. Her decision is not marred by illogic or irrationality. There is no basis for this court to interfere with it.

[39] This ground of appeal fails.

The remaining grounds

[40] The appellant Case abandoned the argument that the trial judge erred in denying his request for a non-suit, and did not pursue the argument in his factum that the Crown breached the appellants’ right to full disclosure.

[41] The appellant Loyer raised additional criticisms of the trial judge’s reasons in her factum, but for the most part they are a repackaging of the argument above that I have already rejected. They do not undermine the trial judge’s analysis, let alone rise to the level required to establish that the verdict is fundamentally flawed. Nor does the manner in which the reasons are structured or the order in which they discuss aspects of the case undermine the confirmatory evidence.

[42] Finally, there is no merit to the argument that the trial judge erred by improperly using Case’s emails against Loyer, effectively reversing the burden of proof. The trial judge properly instructed herself that Case’s acknowledgment that something sexual had occurred could be used only against him, as Loyer did not contribute to the emails. The erroneous reference to the “alternate scenario proposed by the defendants”, rather than simply the defendant, does not undermine the analysis.

Sentence Appeal

[43] The appellants do not contest the custodial sentence or probation but argue that the sentencing judge unreasonably imposed a strict no-contact condition between them. Loyer argues that she and Case have been subject to a no-contact condition since 2018, but it always included an exception for employment purposes. The probation officer recommended that the exception continue, and the exception was continued as part of this court’s order for bail pending appeal.

[44] The sentencing judge found that the continued association of the appellants was not in the public interest and that the successful rehabilitation of the appellants was most likely to succeed if they went separate ways. These findings are supported by the record and are reasonable. The sentencing judge was concerned by the considerable age gap between the appellants as well as the uncertain nature of their relationship, which began when Case acted as Loyer’s track coach. That was sufficient to establish the reasonableness of the non-contact term, but as the sentencing judge noted, Case no longer had any business and was living on social assistance. He was not in a position to employ Loyer in any event.

[45] Accordingly, there is no basis for this court to interfere with terms of the probation established by the sentencing judge.

Disposition

[46] I would dismiss the appeal. I would grant leave to appeal sentence but would dismiss the appeal.

“Grant Huscroft J.A.” “I agree. D.A. Wilson J.A.”

Dawe J.A. (Dissenting):

[47] I have had the advantage of reading a draft of my colleague Huscroft J.A.’s reasons. As he notes, we agree that the appellants’ convictions were not unreasonable in the sense of being ones that no “properly instructed jury, acting judicially, could reasonably have rendered”: R. v. Yebes, 1987 17 (SCC), [1987] 2 S.C.R. 168, at p. 185; R. v. Biniaris, 2000 SCC 15, [2000] 1 S.C.R. 381, at para. 36.

[48] However, we part company on the question of whether the verdicts were unreasonable in the second sense recognized by the Supreme Court of Canada in R. v. Beaudry, 2007 SCC 5, [2007] 1 S.C.R. 190, and reaffirmed in subsequent cases: that is, whether the trial judge’s reasons reveal that the verdicts were “reached illogically or irrationally”: Beaudry, at para. 97, per Fish J., dissenting in the result.

[49] The case against both appellants turned on the complainant’s evidence that, while she was sleeping, a mental image came into her mind of her previously being sexually assaulted by Ms. Loyer, with Mr. Case’s verbal encouragement. At trial, the complainant described this sleeping mental image as a “flashback”. The critical question the trial judge had to grapple with was whether this sleeping flashback was a reliable record of an actual event the complainant had experienced, rather than a confabulation that her sleeping mind had generated.

[50] Considerable confusion arose at trial over terminology: whether the vivid mental image that the complainant described forming in her mind while she slept was a “dream”, which was how she initially described it to her partner; or whether it was a “flashback”, which by the time of trial had become the complainant’s preferred term. For reasons I will explain below, I will refer to the mental image that the complainant described coming to her while she slept as a “sleeping flashback”.

[51] I accept that it was open to the trial judge to conclude that the complainant’s sleeping flashback was a reliable true memory. However, for the following reasons, I would find that the reasoning path the trial judge took to arrive at this conclusion was fundamentally circular, and was thus “illogical” within the meaning of Beaudry. The crux of the trial judge’s reasons was that because the dictionary definition of a “flashback” is a memory of an actual event, and because by the time of trial the complainant had come to describe the image that came into her sleeping mind as a “flashback”, it must have been a memory of an actual event. By taking this approach, the trial judge effectively assumed the very proposition that was in dispute.

[52] My colleague would uphold the verdicts by reinterpreting, and in my view by misinterpreting, both the complainant’s evidence and the trial judge’s reasons. As I will discuss, the complainant consistently testified that although she now remembers her sleeping flashback, she still has no ordinary waking memory of the event depicted in the sleeping flashback. Nevertheless, as I understand my colleague’s decision, he would interpret the trial judge’s reasons as including a factual finding that the complainant now does have at least some ordinary waking memory of the sexual assault. In my view, this is not a finding that the trial judge made, nor is it one that was available to her on the evidence.

A. Background facts

[53] My colleague has provided a brief overview of the evidence at trial. I will expand on his summary and include some additional details.

(1) The barbecue at Mr. Case’s home

[54] In the spring of 2011, the complainant was a 19-year-old student who worked part-time at a local restaurant where the appellants were regular customers. She became friendly with them both, which eventually led to Mr. Case inviting her over for a barbecue at his home on the evening of Friday, June 17, 2011. Ms. Loyer also attended the barbecue, as the only other guest.

[55] The complainant testified that she had only two alcoholic drinks that evening. In prior statements she had described having as many as four drinks, but the trial judge dismissed these inconsistencies as “insignificant”, finding that since the complainant was an experienced drinker, having even as many as four drinks would not have caused her to lose consciousness.

[56] After dinner, Mr. Case proposed that they all drink liquor shots to celebrate their new friendship. He prepared the shots in the kitchen and brought them out to the complainant and Ms. Loyer. Once the complainant drank her shot she suddenly felt drowsy, and her last memory for the next several hours was of her head hitting the back of the couch where she was sitting. She had been “blackout drunk” before, and was confident that this was not what she experienced on this occasion.

[57] The complainant’s next memory, which she described as “very blurred”, was getting out of the back seat of Mr. Case’s car in front of her residence at around 12:30 or 1:00 a.m. and going down the stairs to her basement apartment. She felt “confused, drowsy and out of it”. Her romantic partner met her in the stairwell and helped her to bed. At trial, the complainant’s partner recalled that the complainant was incoherent and unsteady on her feet, and had her pants pulled down to her knees.

(2) The complainant’s sleeping flashback

[58] The complainant testified that during the night, while she was asleep, she had what she now characterized as a “flashback”, in which an image formed in her mind of Ms. Loyer between the complainant’s legs with the fingers of her right hand inserted into the complainant’s vagina, while Mr. Case sat near the complainant’s head, encouraging Ms. Loyer to continue. The only other thing the complainant could remember about her sleeping flashback was how “real”, “vivid”, and “sensory” it felt.

[59] When the complainant awoke the next morning she felt very unwell. Her partner testified that the complainant described having had a “very vivid sexual assault dream” the previous night. At trial, the complainant denied telling her partner that she had a dream, testifying that she might have said that “it was dreamlike, but no, it was not a dream”. However, she agreed that the mental image that she now described as a flashback was one that had come to her while she was asleep.

[60] When J.S.T. went to work that day she felt “out of it” and had episodes of vomiting and diarrhea. Her symptoms were unlike anything she had previously experienced after a night of drinking.

[61] By the time of trial, the complainant was confident that the images that had formed in her mind while she slept were not a dream, but were instead a flashback. She explained her understanding of flashbacks by testifying:

[A]fter you’ve experienced trauma, your body compartmentalizes things after, and you relive events. … [E]ven if you were unconscious during the time … it’s a memory, it’s a trigger, it’s a flashback to an event that your body chooses to pretty well expose to you, and that came to me that night.

In cross-examination, the complainant acknowledged that she had done online research about flashbacks. No expert evidence was adduced to confirm the scientific validity of her understanding, including her stated belief that flashbacks can accurately reflect events that a person experiences while unconscious or in a coma.

[62] Importantly, while the complainant was adamant that she now believed her sleeping flashback to have been a form of memory, she also consistently distinguished it from her ordinary conscious memories of events that evening. These latter memories ended when she was on the couch at around 9:00 or 9:30 p.m., and only resumed when she was dropped off at her apartment building at around 12:30 or 1:00 a.m. She testified that she still has “no recollection of those four hours”; agreed that she had “no memory of anything happening with Ms. Loyer” that night; and stated that her memory of that night was “the same today as it was after it happened.”

[63] The complainant also confirmed that after experiencing the flashback while she slept, she woke up and remembered the images that had come to her while sleeping, and these images were the basis for her present belief that she had been sexually assaulted.

(3) The complainant’s subsequent communications with Mr. Case

[64] The morning after the barbecue, the appellants both came to the restaurant for breakfast. Mr. Case made a comment to the complainant to the effect that it had been a “rough night” and that they were all “pretty hungover”, but she did not recall any further conversation between them.

[65] At some point that day, the complainant’s partner suggested that she go to the police and to the hospital to have a sexual assault examination, but the complainant did not immediately take up either of these suggestions.

[66] The complainant spent part of the next day with Mr. Case and Ms. Loyer at Mr. Case’s residence. She testified that at this point she was “still trying to piece everything together.” Both appellants were “just acting really normal like it was just a normal event that had happened.”

[67] Over the next few days, the complainant and Mr. Case exchanged a series of emails. She did not preserve any copies of these messages, explaining that Mr. Case used an encrypted email service that did not allow copies to be saved by the recipient.

[68] The complainant testified that in one of her reply emails she told Mr. Case about the sleeping flashback and said that she “had no memory of anything” that night. She asked Mr. Case what had happened, and Mr. Case responded by telling her that “everyone had had too much to drink”, and that the complainant, while drunk, had kissed Ms. Loyer and had been “trying to get into Mr. Case’s pants”. According to Mr. Case, the complainant had then taken off her clothes and masturbated in front of them. He described the complainant as “out of control”, “swearing at them” and “disrespecting them in their house.” However, Mr. Case also assured the complainant that they would keep what had happened a secret.

[69] In cross-examination, the complainant was shown an email that she sent to Mr. Case on June 21, 2011, in which she had apologized for her behaviour that night and stated: “As I said, I have zero memory just that dream”. At trial, she explained that at this point she believed Mr. Case’s suggestion in his earlier email that she had been very drunk that night and that had acted out inappropriately.

[70] The complainant explained that her email exchanges with Mr. Case ended after she decided to “move on” and break off all contact with him and Ms. Loyer.

(4) The complainant’s hospital examinations

[71] On June 21 and June 22, 2011, the complainant went to the hospital for sexual assault examinations. During the second examination, the nurse took photographs that were entered as exhibits at trial. These photos include images of bruises on the upper front side of both of the complainant’s thighs.

(5) The complainant’s police complaints

[72] The complainant first called the police on June 23, 2011, and two officers came to her home to speak with her. One of these officers, who was called as a witness at trial by Mr. Case, testified that the complainant had said that she had “zero memory” of what had happened, and that he made a note that there was “no allegation of being sexually assaulted.”

[73] Six years later, in June 2017, the police contacted the complainant, took a video statement from her, and laid charges against the appellants.

B. Analysis

[74] The appellants’ primary ground of appeal against their convictions is that the verdicts were unreasonable.

[75] This was a challenging case. The trial judge accepted the complainant’s evidence that, apart from her sleeping flashback, she had no memory of what happened to her at Mr. Case’s house after around 9:00 or 9:30 p.m. on Friday night. The main contested issue at trial was whether the complainant’s sleeping flashback was a true memory of something that had actually happened earlier that evening.

[76] The trial judge also found as fact that the complainant’s memory loss that night was not an alcohol-induced blackout, and that her physical symptoms the next day were not just an ordinary hangover. This suggested that the complainant’s loss of consciousness and memory gap that night might be the result of her having been drugged. While the trial judge noted that “the identity of the impairing substance or how it was that the complainant consumed the substance was not put in issue in this prosecution”, the complainant’s evidence raised a strong suspicion that Mr. Case might have spiked the liquor shot he gave her with some unknown substance that caused the complainant to lose consciousness. The suspicion that she may have then been sexually assaulted while she was unconscious or in an impaired state that left her unable to remember anything that had happened was heightened further by her evidence that she later experienced vaginal soreness, and had bruises on her upper thighs that had not been there previously.

[77] However, the Crown’s obligation to prove both appellants’ guilt beyond a reasonable doubt required considerably more than just the aura of even strong suspicion. The Crown’s case ultimately stood or fell on the strength of the proposition that the flashback the complainant described having experienced while she slept could be relied on as a true memory of something that had actually happened. It was the Crown’s burden to prove this beyond a reasonable doubt, and disprove the alternate possibility that the flashback was a confabulation constructed by the complainant’s sleeping mind.

[78] Trial judges are routinely called on to assess the reliability of witnesses’ memories, based in part on their own personal experience, intuitions and “common sense”. However, these fact-finding tools have only limited utility in circumstances where the reliability of a purported memory is not readily informed by everyday experience. This was such a case.

[79] As I have mentioned, much was made at trial about whether the mental image that formed in the complainant’s mind while she slept should be properly called a “dream” or a “flashback”. Both words are freighted with implications about whether the mental image was an accurate reflection of actual events. The term “dream” is ordinarily used to describe sleeping mental images that may not necessarily reflect reality, although dreams may incorporate and weave together actual events the sleeper has experienced. Conversely, the dictionary definitions of “flashback” that the trial judge relied on in her reasons – “a past incident recurring vividly in the mind”, or “a sudden and disturbing vivid memory of an event in the past” – presuppose the existence of the “past incident” or “event in the past”.

[80] For present purposes, the critical point is that even though the label the complainant attached to her sleeping mental experience has changed over time, she has remained consistent about two things. First, she has not wavered in her description of the flashback as a mental image that came into her mind while she was asleep. Second, the complainant does not claim that experiencing the sleeping flashback has ever caused her to later retrieve a “regular” waking memory of what had happened to her at Mr. Case’s house after she lost consciousness. To the contrary, she acknowledged at trial that she still had no memory of events that night between around 9:30 p.m. and 1:00 a.m., and that her belief that she was sexually assaulted is based on her present memory of the sleeping flashback.

[81] I have been referring to the mental image that the complainant described coming to her while she slept as a “sleeping flashback”, because “flashback” is the term she used in her trial testimony. However, I emphasize that I am not using this term to imply that the mental image that formed in the complainant’s sleeping mind must necessarily have reflected a true event. That was the main disputed issue at trial.

[82] In a 1995 article that he wrote shortly before his appointment to this court, Marc Rosenberg discussed the challenges for triers of fact in cases where witnesses purport to have recovered “repressed memories”:

Repressed memory challenges the common sense notion that memories become less reliable over time. These memories come flooding back apparently intact accompanied by powerful emotions appropriate to the event and filled with vivid and realistic detail. The very richness of the detail seems to carry its own confirmation of reliability. And if the memories are untrue where did they come from and why are they there? If the memory is not true what possible motive does the witness have for remembering? Common sense and experience do not easily inform these questions.

See M. Rosenberg, “Issues Arising in Criminal Prosecution for Distant Events”, Alan D. Gold’s Collection of Criminal Law Articles (March 22, 1995) (available on QuickLaw as ADGN/RP-005), at para. 24.

[83] The circumstances of this case are different from many “recovered memory” cases, both because the complainant experienced her vivid sleeping flashback only a few hours after the supposed events it captured, rather than months or years later; and because the flashback came into her mind while she slept, rather than while she was awake. Nevertheless, her evidence presented a similar challenge for the trier of fact, insofar as it raised questions that are not easily informed by common sense and everyday experience. Judges and jurors’ personal experiences with their own dreams and memories do not well-equip them to assess whether a vivid mental image produced by another person’s sleeping mind, and that the person cannot bring to mind in the ordinary way while they are awake, is a true memory or a confabulation.

[84] For the reasons I will now explain, the trial judge’s reasons in my view reveal that she did not properly grapple with the critical question of whether the complainant’s sleeping flashback was a true memory of an actual event. On close examination, her reasons reveal themselves to be fundamentally circular, in that the trial judge assumed the truth of the very proposition that she was obliged to test. This was a logical reasoning error that rendered her conclusion unreasonable: Beaudry, at para. 97, per Fish J.

[85] However, I am not persuaded that the verdicts were unreasonable in the alternative sense of being ones that no trier of fact could reasonably render on the evidence. Accordingly, I would set aside the appellants’ convictions and order a new trial, rather than entering acquittals.

(1) Were the guilty verdicts ones that no properly instructed trier of fact could reach on the evidence?

[86] My colleague and I agree about the applicable legal principles.

[87] Under s. 686(1)(a)(i) of the Criminal Code, an appellate court may set aside a conviction that is “unreasonable or cannot be supported by the evidence”. A verdict can be “unreasonable” in either of two analytically distinct ways. First, it may be one that no “properly instructed jury, acting judicially, could reasonably have rendered”: Yebes, at p. 185; Biniaris, at para. 36. This test is “equally applicable to the judgment of a judge sitting at trial without a jury”: Biniaris, at para. 37. When a conviction is found to be unreasonable in this first sense, the appropriate remedy is to enter an acquittal.

[88] Second, in cases tried by a judge alone, a conviction can also be found to be unreasonable if the trial judge’s reasons reveal that the verdict was “reached illogically or irrationally”: Beaudry, at para. 97, per Fish J. Although Fish J. dissented in the result in Beaudry, he wrote for the majority on this issue, and his analysis has been repeatedly reaffirmed by the Supreme Court of Canada: see e.g., R. v. Sinclair, 2011 SCC 40, [2011] 3 S.C.R. 3, at paras. 44-45; R. v. C.P., 2021 SCC 19, [2021] 1 S.C.R. 679, at para. 29; see also R. v. Brunelle, 2022 SCC 5, [2022] 1 S.C.R. 25, at para. 7.

[89] If a verdict is found unreasonable in this second sense, the appropriate remedy on appeal is to order a new trial.

(2) Were the verdicts “reached illogically or irrationally”?

[90] The central issue in this case was whether the complainant’s sleeping flashback of being sexually touched by Ms. Loyer, with Mr. Case giving verbal encouragement, was a true memory of something that had really happened to her when she was at Mr. Case’s residence that evening, as opposed to a confabulation that her sleeping brain had later constructed. The trial judge found that it was a reliable true memory, and relied on this conclusion to convict both appellants.

[91] The appellants maintain that the verdicts were unreasonable in both of the senses discussed above. First, they contend that without expert evidence about the science of memory, no trier of fact properly instructed could reasonably conclude beyond a reasonable doubt that the complainant’s sleeping flashback was a true memory of an actual event. Second, the appellants contend that the trial judge’s reasons demonstrate that she followed a circular reasoning path, in which she effectively assumed that the complainant’s sleeping flashback was a true memory, despite this being the very point in dispute at trial that she had to decide.

(1) Were the guilty verdicts ones that no properly instructed trier of fact could reach on the evidence?

[92] None of the parties at trial adduced any expert evidence about the formation and retrieval of memory, the mental processes of dreaming, or the likelihood of a reliable true memory coming to someone as a vivid flashback while they sleep. The appellants argue that without such expert evidence, no trier of fact could reasonably conclude beyond a reasonable doubt that the flashback the complainant described experiencing while she slept was a true reflection of actual events, or that her mind was capable of storing memories of things that had happened to her during the time she described being unconscious.

[93] I agree with my colleague that expert evidence was not necessary. The argument that expert evidence is an absolute necessity in “recovered memory” cases, of which this case is a species, is foreclosed by the case law: see R. v. François, 1994 52 (SCC), [1994] 2 S.C.R. 827, at p. 840; see also R. v. R.D., 2019 ONCA 132, at paras. 1-4; and R. v. P.B., 2024 SKCA 77, at para. 67, leave to appeal to S.C.C. requested, 41422.

[94] It was open to the trial judge to weigh and consider the evidence, and the absence of evidence, on the disputed issue of whether the complainant’s sleeping flashback could be relied on as an accurate memory of an actual event, and that the lack of expert evidence did not render her verdicts unreasonable for that reason alone.

[95] I thus agree with my colleague that the verdicts against the appellants are not unreasonable in the Yebes/Biniaris sense of being ones that no reasonable trier of fact, properly instructed, could reasonably reach on the evidence at trial.

(2) Were the verdicts “reached illogically or irrationally”?

[96] However, I would give effect to the appellants’ alternative argument that the reasoning path the trial judge took to find them both guilty was fatally flawed, and that the verdicts were thus unreasonable in the second sense established by Beaudry and subsequent cases.

[97] In my view, the trial judge’s reasons reveal that she never properly grappled with the central issue before her: namely, whether the complainant’s sleeping flashback was a true memory, as opposed to a confabulation created by her sleeping mind. The trial judge’s reasons show that she effectively assumed the truth of the critical premise that the sleeping flashback was an actual memory. This made her conclusion that the sleeping flashback was “not a dream” essentially tautological.

[98] At the outset, I would note that I agree with my colleague that “[t]he Beaudry and Sinclair inquiry into illogical or irrational findings or inferences is not an invitation for reviewing judges to substitute their preferred findings of fact for those made by the trial judge”: C.P., at para. 30, per Abella J. In particular, I take no issue with the trial judge’s factual finding that the complainant had no more than two to four alcoholic drinks on the night of June 17, 2011, or with her further conclusion that the complainant’s loss of memory after around 9:00 or 9:30 p.m. was not an alcohol-induced blackout. These were both findings of fact that the trial judge was entitled to make, and her conclusions on these points are not tainted by any palpable and overriding error that would permit appellate interference.

[99] I also accept that the trial judge was entitled to reject the alternative scenario that was put forward by the appellants at trial – and which, on the complainant’s evidence, had also been suggested to her by Mr. Case in his emails – that the complainant had become so drunk that night that she had “acted out in sexually provocative ways” towards the appellants, but that she had later been unable to remember doing this because of an alcohol-induced blackout.

[100] The trial judge began her reasons by correctly noting that “[t]he primary issue is whether there is reliable and credible evidence of the [sexual] assault.” She observed that the complainant’s “recollection came via a flashback, which she experienced during the hours after the alleged assault.” Later in her analysis she noted that the defence position was that the complainant’s evidence of being sexually assaulted was “a memory of a dream,” and I accept that she properly understood that the complainant’s flashback was something she had experienced while she slept.

[101] However, in my view, the trial judge’s reasons as a whole reveal that she never properly engaged with or analysed the critical issue of whether the complainant’s sleeping flashback could have been a dream or confabulation, rather than a true memory of something that had actually happened to her during the time period during which she had no conscious memories.

[102] The trial judge’s analysis was divided into three main sections. In the first section, under the heading “Is [the complainant’s] account of the incident reliable?”, she explained why she was satisfied that the complainant’s evidence had “inherent trustworthiness and is therefore reliable.” In the second section, under the heading “Confirmatory evidence”, she explained why she found that this conclusion was bolstered by the evidence of the complainant’s bruises and vaginal soreness. In the third section, under the heading “Conclusion on reliability”, she summarized the conclusions she had reached in the previous two sections.

[103] The balance of the trial judge’s reasons addressed why, after having concluded that the complainant’s sleeping flashback was a reliable true memory, she was satisfied that the complainant did not consent to being sexually touched by Ms. Loyer, and that Mr. Case was a party to what she found to have been a sexual assault. No issue is taken on appeal with these latter aspects of her reasons. [2]

(a) The trial judge’s analysis of the reliability of the complainant’s sleeping flashback.

[104] After explaining why she was satisfied that the complainant had not experienced an alcoholic blackout that night, the trial judge stated:

[The complainant] described her last clear memory as drinking a shot while sitting on the couch between the two defendants possibly around 9:30 p.m.

[The complainant’s] next memory is in the form of a flashback of a sexual assault. She described this evidence as akin to a “snapshot.” There is no timeframe of the flashback; however, it is specific as to body position, room location, people involved, the fact that she was unclothed or her pants were down, and sensory experiences of digital penetration and hearing Mr. Case’s spoken words.

Although the trial judge described the sleeping flashback as “[the complainant’s] next memory”, the question of whether it was a memory at all was the very issue in dispute. The trial judge also did not mention at this point in her reasons that the complainant had experienced this flashback while she was asleep.

[105] The trial judge then stated:

When considering this evidence, I note that the complainant was not recounting a memory of a distant past, nor was she explaining some memory block over a long period of time, nor a memory recovered through therapy. She recounted the event to her partner and her co-worker spontaneously and naturally, and very nearly contemporaneously with the event. There was no evidence of any suggestion made to [the complainant] about what had happened at the Case residence.

[106] These observations were accurate as far as they went, but they again omitted the important detail that the flashback was something the complainant acknowledged experiencing while she slept. The critical question was whether this sleeping flashback was a true memory, rather than a confabulation. The complainant’s ability to remember the details of the flashback after she woke up, and to later recount these details “spontaneously and naturally” to others, shed no light on this central disputed issue.

[107] The trial judge continued by explaining that she would assess the reliability of the complainant’s evidence by focusing on:

[T]he complainant’s various accounts over time, looking at the consistencies and inconsistencies; the proximity in time between the alleged incident and the first and early recollections of the accounts; the frequency of recollection; whether the memory was influenced by other factors; and what information went into the memory from the start.

She then reviewed the evidence about how the complainant’s memory of her sleeping flashback had evolved over time, stating:

[The complainant] recounted the incident consistently starting with her earliest account, which had very few details, to the final account which she gave the nurse four days later. This final account, with its admitted memory gaps, did not change over time. [The complainant] was described as “scattered” on Saturday when she first tried to recall the incident. However, she was able to articulate more details as she herself became less scattered in the next 24-48 hours. These later details are not inconsistent with the first telling of her flashback. As her partner and co-worker testified, [the complainant] then filled in the details, “in bits and pieces,” over the next few days.

[108] The problem with this analysis is that “the incident” that the complainant was recounting “consistently” was not the alleged sexual assault itself, which she agreed she still did not, and could not, consciously remember. Rather, what the complainant remembered and described to others was the vivid mental image that had come into her mind while she slept. Again, the complainant’s ability to remember the details of this sleeping flashback, and describe these details to other people in a consistent manner, did not shed any light on whether the sleeping flashback was a true memory or a confabulation.

[109] Continuing, the trial judge declared it “noteworthy” that:

[The complainant] maintained her account in the face of an alternative narrative put to her by Mr. Case, in which he described her as the sexual aggressor in the evening. She did not waver in her account even though the alternative scenario was put before her by the defendants.

I would note parenthetically that the trial judge did not advert to the complainant’s evidence that she had initially accepted Mr. Case’s version of what had happened that night. However, the more significant concern this passage raises is that there was no basis for assuming that the complainant’s confidence at trial that her sleeping flashback was a genuine memory made her belief any more likely to be true, particularly since her confidence may well have been bolstered by her online research.

[110] The trial judge next observed that there “was no evidence that [the complainant] had any assistance or suggestions made to her that prompted her recollection”, nor was there any evidence that she had been with anyone other than the appellants that night. These were both accurate statements, but neither shed any light on the critical issue of whether her sleeping flashback was a true memory of something that had happened to her that night, rather than a confabulation. In particular, there was no suggestion in this case that the complainant might have been sexually assaulted by someone else that night, and mistakenly come to believe that Ms. Loyer and Mr. Case were the perpetrators.

[111] The trial judge only expressly addressed the critical issue of whether the complainant’s sleeping flashback might have been a vivid dream rather than a genuine memory at the end of this part of her analysis, when she stated:

The defendants’ position is based on the theory that a person cannot recall events that took place when the person was unconscious, or that a dream is not a real event. The complainant used the word unconscious to describe her state after she drank the shot and before she was returned home. [The complainant], by my assessment, was a naïve, relatively unschooled 19-year-old when the event took place. The best we can take from her account is that she does not have a continuous memory of the evening. She does recall the events that she says came to her in a “flashback.” A flashback is a type of a memory. The Merriam-Webster Dictionary (online edition) defines the noun “flashback” as, “a past incident recurring vividly in the mind” and the verb as, “to focus one’s mind or vividly remember a past time or incident.” The definition of the noun “flashback in The Oxford Dictionary (online) is “a sudden and disturbing vivid memory of an event in the past, typically as the result of psychological trauma or taking LSD.”

I am satisfied that [the complainant’s] consistent account of what happened to her at the Case residence has inherent trustworthiness and is therefore reliable. [Emphasis added.]

[112] In my respectful opinion, this analysis was inadequate because it was fundamentally circular. The critical question of whether the complainant’s sleeping flashback was, in fact, a true memory was not one that could be resolved merely by stating that “[a] flashback is a type of a memory”, based on its dictionary definition, and then concluding that since the complainant called her sleeping mental image a “flashback”, it must therefore be a true memory.

[113] The trial judge’s reasoning can be reduced to the following flawed syllogism: because the complainant described the mental image that came to her as she slept as a “flashback”, and since flashbacks are defined to be true memories of actual past events, the complainant’s sleeping mental image must be a true memory of an actual event. In formal logic terms, this reasoning process is an example of “assuming the conclusion”, or “begging the question”.

[114] Moreover, it was apparent from the complainant’s evidence that by the time of trial she preferred to describe her sleeping mental image as a flashback rather than as a dream because this implied that it was a true memory, which she now firmly believed it was. In effect, the trial judge’s linguistic analysis treated the complainant’s present belief that the mental image that came to her while she slept was a true memory as if this amounted to proof of this contested fact.

[115] My colleague emphasizes the trial judge’s comment that “[t]he best we can take from [the complainant’s] account is that she does not have a continuous memory of the evening”. He seems to interpret this as a factual finding by the trial judge that the complainant did have some ordinary waking memory of the sexual assault, in addition to her memory of the sleeping flashback. In my view, this is not what the trial judge found, nor was it a finding that would have been open to her to make on the evidence.

[116] As I have already discussed, the complainant’s evidence was that she still has “no recollection of [the] four hours” between her losing consciousness on Mr. Case’s couch and later being dropped off at her apartment. She agreed that she still has “no memory of anything happening with Ms. Loyer” that night, and stated at trial that her memory of that night was “the same today as it was after it happened” – that is, that she still has no memory of what happened after she lost consciousness. While the trial judge was entitled to accept some, all or none of the complainant’s evidence, she could not reject the complainant’s evidence about not having any ordinary waking memory of the sexual assault and treat this as if it were positive evidence that the complainant does have such a memory: see e.g., R. v. Chapman (1973), 57 Cr. App. R. 511 (C.A.), at p. 521. However, the trial judge did not make this analytic error, or make any such factual finding.

(b) Confirmatory evidence

[117] In the second section of her analysis, the trial judge set out her reasons for finding that the confirmatory evidence in this case reinforced her conclusion that the complainant’s sleeping flashback was a reliable and true memory.

[118] The existence of independent confirmatory evidence is generally very important when assessing whether a witness’s memory is reliable. I agree that it can also be invaluable when deciding whether a witness’s purported recollection is a true memory rather than a confabulation.

[119] However, for three main reasons, I am not persuaded that the trial judge’s reliance on the confirmatory evidence adequately compensates for her failure to properly address the contested issue of whether the complainant’s sleeping flashback was a true memory.

[120] First, I agree with Mr. Lacy, on behalf of Ms. Loyer, that the structure of the trial judge’s reasons shows that even before she considered the confirmatory evidence, she had already decided that the complainant’s sleeping flashback was a reliable true memory. It is impossible to know whether the trial judge would have otherwise found the confirmatory evidence persuasive.

[121] Second, in my view the trial judge overstated the probative value of the confirmatory evidence in this case: namely, the hospital records from the complainant’s visits on June 21 and 22, 2011, and the photos taken during the second visit. The trial judge framed the question as follows:

To draw an inference from circumstantial evidence, I must be satisfied beyond a reasonable doubt that the bruises were the result of the assault [the complainant] recalled in the flashback is the only reasonable inference that can be drawn. This requires that alternative explanations be excluded.

[122] The photographs of the complainant’s legs taken during her second hospital visit show a small irregularly-shaped bruise on her upper right thigh, and a larger, roughly rectangular oblong bruise and two smaller bruises on her upper left thigh. The trial judge rejected the possibility that these bruises could have been caused by the complainant walking into a table, and I accept that this factual finding is entitled to appellate deference.

[123] However, the trial judge then stated:

I am satisfied that the only reasonable inference is that the bruises were made by hand pressure on [the complainant’s] upper thigh during the sexual assault. The bruises appeared immediately following the incident. They were not on the complainant’s body earlier that day when the complainant showered. They were in a place where the complainant described the defendant, Ms. Loyer’s hands. Finally, the bruises were noted by the nurses to be oblong, finger-shaped bruises. This physical evidence, as I noted earlier, bears a striking resemblance to the flashback and I accept it as confirmatory evidence of [the complainant’s] account of what happened to her that night.

[124] In my view, there are two main problems with the trial judge’s chain of reasoning. First, the complainant did not say that her flashback included a vision of Ms. Loyer’s hands resting on the complainant’s thighs. To the contrary, her sleeping flashback was of Ms. Loyer inserting the fingers of her right hand into the complainant’s vagina, which would have precluded Ms. Loyer from simultaneously pressing her right hand down on the complainant’s left thigh in the location of the bruises. The complainant’s memory of the sleeping flashback also did not include any recollection of what Ms. Loyer had been doing with her left hand, and in any event nothing about the size or shape of the small bruise on the complainant’s right thigh suggested that it was a hand mark. While Ms. Loyer could conceivably have bruised the complainant’s thighs either before or after the “snapshot” event supposedly captured in her sleeping flashback, the bruises did not establish that the only likely explanation for the complainant’s sleeping flashback was that it was an accurate memory of a true event: see e.g., R. v. Bradshaw, 2017 SCC 35, [2017] 1 S.C.R. 865, at paras. 30, 57, 71.

[125] Second, the trial judge drew the further conclusion that the bruises on the complainant’s thighs were “finger-shaped” by relying on the nursing note that described them as “finger-like”. However, without evidence from the nurse who made this note, there was no basis to conclude that the nurse had seen something about the bruises that is not visible in the photographs adduced at trial, which do not show these bruises to be distinctly “finger-like”. In my view, the most that can reasonably be said about their visual appearance in the photos is that the bruises on the complainant’s left thigh might have been caused by a hand, not that this was the only possible explanation for them.

[126] Moreover, to the extent that the evidence of the complainant’s leg bruises and her report of vaginal soreness did support the inference that she might have been sexually assaulted in the hours during which she has no conscious memory, it did not automatically follow that she must have been sexually assaulted in the specific manner reflected in her sleeping flashback: that is, by Ms. Loyer, abetted by Mr. Case. If she was indeed sexually assaulted, the alternative possibility existed that she might have been sexually assaulted in a different manner by one or the other of the appellants, but not by both of them together.

[127] The trial judge’s use of the emails that the complainant described having received from Mr. Case was also problematic. She treated these emails as an “acknowledgement by Case that something sexual did occur that evening, just not in the way described by Case”, while noting that this was not admissible evidence against Ms. Loyer.

[128] In my view, however, it was not open to the trial judge to treat Mr. Case’s emails as specifically confirmatory of the reliability of the complainant’s sleeping flashback, even in respect of the case against him alone. The trial judge was entitled to reject the version of events that Mr. Case had apparently outlined in his emails to the complainant, but she could not treat her rejection of Mr. Case’s exculpatory account as if it were positive evidence that something entirely different – namely, Ms. Loyer vaginally fingering the complainant – must have taken place. Even if the trial judge was entitled to treat Mr. Case’s emails as a generalized admission by him that “something sexual” had occurred, this did not confirm that the specific sexual image in the complainant’s sleeping flashback was a true memory of an actual event. The emails also had no evidential value whatsoever in relation to Ms. Loyer.

[129] In summary, I am not satisfied that the path the trial judge followed in this section of her reasons was analytically sound. At a minimum, I am not persuaded that her reliance on the confirmatory evidence in this case offset her failure, both in the first part of her reasons and later, to properly grapple with the possibility that the complainant’s sleeping flashback might have merely been a vivid dream of something that had not really happened to her.

(c) The trial judge’s conclusions on reliability

[130] The third section of the trial judge’s analysis consists in part of a recap of the conclusions she reached in the previous two sections. To the extent that she gave additional reasons for concluding that the complainant’s sleeping flashback was a reliable form of true memory, these reasons again failed to engage with the critical underlying issue in this case: namely, whether the possibility that the sleeping flashback was merely a vivid but untrue dream had been disproved beyond a reasonable doubt.

[131] The trial judge began by stating that:

The complainant’s conscious mind, notwithstanding the significant gaps in her memory, provided her with the ability to accurately observe, hear, and feel what was happening to her.

This reflects the conclusion the trial judge had already reached that the complainant’s sleeping flashback was a reliable true memory, but provided no further support for this conclusion.

[132] The trial judge then observed that “[the complainant’s] memory can be assessed by looking at the aspects of her recollection that were corroborated or unchallenged.” She then listed a series of the complainant’s ordinary waking memories about events both before and after the gap in her memory on Friday night, that had not been challenged by the defence. However, the key issue in this case was not the reliability of the complainant’s ordinary waking memories, but whether her sleeping flashback was a true memory at all.

[133] The trial judge then noted that the complainant “did not attempt to hide the fact that she had large gaps in her memory”, or attempt to fill in these gaps, before adding that the complainant “distinguished her understanding of a dream and a flashback.” However, the complainant’s understanding, in essence, was that her sleeping mental image was a flashback because she now believed it to be a true form of memory. The trial judge did not grapple with the underlying question of whether the complainant’s own self-assessment of this was necessarily correct.

[134] The trial judge then concluded:

The confirmatory evidence allows me to conclude, and I do, that the sexual assault was not a dream. I am satisfied that [the complainant] had an opportunity to observe what happened to her, that she accurately recalled it, and recounted it consistently and frequently in the following days.

[135] As I have already explained, I am satisfied that the confirmatory evidence was not capable on its own of disproving the possibility that the complainant’s sleeping flashback was a dream, as the complainant herself had first characterized it. I am also persuaded that the analytic path the trial judge took to reject this possibility was fundamentally circular, and thus illogical.

C. Disposition

[136] Cases where guilty verdicts must be set aside on the basis that the trial judge engaged in “illogical or irrational reasoning” are “exceedingly rare”: Sinclair, at para. 22, per Fish J., dissenting in the result; R. v. Issa, 2022 ONCA 167, at para. 23. However, as Fish J. observed further in Sinclair, at para. 22: “But when they do occur, appellate courts are authorized ― indeed, bound ― to intervene.”

[137] In my view, this is such an exceptional case. I would allow both appeals, set aside the convictions, and order a new trial. This makes it unnecessary for me to address the other grounds of appeal advanced by Mr. Case against his conviction.

[138] My proposed disposition of the appeals would also make it unnecessary to address Ms. Loyer’s sentence appeal, which takes issue with the term of her probation barring her from associating with Mr. Case, or with Mr. Case’s request during oral argument that he be permitted to amend his notice of appeal to include his own similar sentence appeal. However, I agree with my colleague that the trial judge’s finding that it would advance the goal of Ms. Loyer’s rehabilitation and be in the public interest to continue the non-association term that the appellants had been subjected to while on bail pending trial is entitled to substantial appellate deference, and that her reasons for sentence do not disclose any error in principle that would allow us to interfere with her exercise of her discretion in including this term. I accordingly agree with my colleague’s proposed disposition of the sentence appeals, to the extent that it is necessary for us to reach them.

“J. Dawe J.A.”

Released: December 13, 2024

Footnotes

[1] This appeal is subject to a publication ban pursuant to s. 486.4 of the Criminal Code, R.S.C. 1985, c. C-46.

[2] Although in his factum Mr. Case argued that the trial judge erred by not granting him a directed verdict of acquittal on the basis that the evidence did not support a finding that he was a party to any sexual assault committed by Ms. Loyer, his counsel abandoned this ground of appeal at the hearing.