Richard Alan Fowler

Two appeals arising from sexual assault convictions that were overturned by the British Columbia Court of Appeal on the basis of a proposed 'rule against ungrounded common-sense assumptions'.

The majority declined to recognize this rule as giving rise to an error of law, holding that credibility and reliability assessments — including reliance on common-sense assumptions — are reviewable only for palpable and overriding error absent a recognized error of law such as reliance on myths and stereotypes about complainants.

Applying the correct standard of palpable and overriding error, the majority found no reviewable errors in either trial judge's credibility findings and restored both convictions.

Rowe J. concurred in the result but proposed a three-question framework for appellate review of generalized expectations, holding that reliance on an unreasonable generalized expectation constitutes an error of law reviewable on correctness.

The appellant was acquitted at trial of dangerous driving causing death under s. 249(4) of the Criminal Code after the trial judge found reasonable doubt as to mens rea, despite finding the actus reus established.

The British Columbia Court of Appeal set aside the acquittal and entered a conviction, finding the trial judge committed an error of law.

The Supreme Court of Canada (4-1) dismissed the appeal, holding that the trial judge made two inter-related errors of law: he applied a wrong legal principle by treating momentariness of excessive speeding as categorically insufficient to establish mens rea, and he failed to apply the correct test from R. v. Roy by not assessing what a reasonable person would have foreseen and done in the accused's circumstances.

The dissent would have restored the acquittal, finding no identifiable legal error tainting the trial judge's reasonable doubt.

In this criminal appeal, the Court considered when corroborative evidence can establish the threshold reliability required to admit hearsay under the principled exception.

The Crown sought admission of a co-accused’s video re-enactment implicating the respondent in two murders after the declarant refused to testify.

A majority held the trial judge relied on corroborative evidence that did not sufficiently answer the specific hearsay danger of fabrication, and concluded threshold reliability was not met.

The appeal was dismissed and the order for a new trial remained in place, with a dissent that would have restored the convictions.

In this criminal appeal as of right, the Court considered whether the confinement element required for first degree murder under s. 231(5)(e) was made out where the accused blocked the victim from escaping before the killing.

The Court held that the trial judge was entitled to find that the forcible or unlawful confinement was distinct and independent from the act of killing.

The appellate intervention substituting second degree murder was therefore unwarranted.

The conviction for first degree murder was reinstated and the appeal was allowed.