R. v. D.C., 2017 ONSC 5775 — Superior Court of Justice | minicounsel

CITATION: R. v. D.C., 2017 ONSC 5775

COURT FILE NO.: 11/16

DATE: 2017/10/12

SUPERIOR COURT OF JUSTICE

SUMMARY CONVICTION APPEAL

(South West Region)

BETWEEN:

HER MAJESTY THE QUEEN

Respondent

– and –

D.C.

Appellant

Laura Grant for the Crown

Mark Halfyard & Breana Vandebeek for the Appellant

HEARD: August 30, 2017

RESTRICTION ON PUBLICATION

By court order made under subsection 486.4(1) of the Criminal Code, any information that could identify the person described in these reasons as the complainant shall not be published in any document, or broadcast or transmitted in any way.

justice j.c. george

reasons for decision on summary conviction appeal

Issues

[1] The appellant was convicted of sexually assaulting, and assaulting with a weapon, his ex-partner R.C. He was sentenced to a period of incarceration.

[2] The appellant appeals against conviction. He raises five grounds of appeal:

(i) the trial judge erred in minimizing the impeachment value of text messages used in R.C.’s cross-examination;

(ii) he failed to adequately address material inconsistencies between R.C.’s testimony and her text messages;

(iii) he misapprehended evidence;

(iv) he erred in undercutting the appellant’s evidence by concluding it was “self-serving”; and

(v) he erred in failing to consider R.C.’s motive for reporting.

Background Facts

[3] At the time of the incident, the appellant and R.C. were separated. Text messages between them featured prominently at trial, and provided the context to their sexually-charged relationship, which was marked by fantasies and role-playing.

[4] The central trial issue was credibility. There was no question that, on the offence date, sexual contact occurred. The appellant testified to consensual sexual activity. R.C. testified she did not consent. The trial judge rejected the appellant’s testimony, accepted R.C.’s, and concluded the Crown had established, beyond a reasonable doubt, the absence of consent.

[5] As they were communications about sex and detailed prior sexual activity, the text messages were the subject of a s. 276 application. The appellant, however, did not bring the application before trial, nor was advance written notice provided the Crown. It arose during the course of R.C.’s cross-examination. The trial judge granted the application concluding that, while the texts could not be used to argue R.C. was more likely to have consented or was less believable, they were admissible and relevant to the issue of credibility.

[6] The messages are from a period beginning December 16, 2014 and ending January 6, 2015. Below are portions of the text exchange from December 18 and December 19, 2014. The sexual contact in question is to have occurred sometime between 18:37 and 19:55 hours on the 19th. The appellant is the sender, and R.C.’s messages are marked as ‘received’:

December 18, 2014

1832 – send – I’m in a sour mood and I need to play with someone

1833 – received – Are you on your way

1833 – send – LOL

1835 – send – you just be ready mentally

1835 – send – get dressed like the slut you are and wait for me

1836 – received – I haven’t been mentally there for awhile

1836 – received – just mental maybe

1836 – send – well then I’ll send you to the 3^rd floor then

1837 – received – there’s only one floor here

1837 – send – go get dressed and stop fucking around

1839 – send – do your make up too

1841 – received – you know mentally I can’t do this

1842 – send – yeah your right you’d be cheating on your boyfriend

1843 – received – I don’t have a boyfriend

1843 – send – fuck friend then

1844 – received – I haven’t fucked anyone but you so stop it now

1844 – send – right after please sir?

1846 – send – no?

December 19, 2014

1030 – received – no ones shy when drinking

1030 – received – well your better then me then

1030 – send – you have a couple of drinks and your not shy with men

1033 – send – is that why your drinking a lot

1034 – received – no

1040 – received – I’m not going to let you put me in a bad mood with these mind games

1137 – send – I will spank all the normal places

1138 – send – I do have a perverted need to scar you with a hot piece of metal though

1139 – send - then after its all done I’ll give you a big hug

1145 – send - calling the police now?

1146 – received – no I was in a store

1159 – send – sorry if the panties are wet now

1217 – send – so now your upset with me

1217 – received – no

1827 – send – since your full I guess you don’t want to taste my cum

1832 – send – is E (the child) ready

1832 – received – No lol

1835 – received – you are horns

1836 – received – horny

1836 – received – and yes you wear horns

1836 – send – yes of course

1837 – send – mess with a bull

1955 – received – are you ok?

1955 – received – I’ll be okay

1955 – send – are you ok

1957 – send – I hope so

1958 – send – no but I’ll live

2016 – received – did you get something to eat

2016 – received – how’s E (the child)

2018 – received – Mr. Bean is on at 9 not sure if you get the channel

2030 – send – ok thanks

2032 – send – isn’t life grand

2033 – received – just awesome

2035 – received – I’m watching We are the Millers then going to bed

2057 – received - we are the Millers do you remember the movie

[7] The messages go on. Some are friendly and flirtatious, some are about their daughter. Others seem angry in tone. There is discussion about sex and sexual experimentation, but not quite to the degree of their earlier messages.

[8] The parties had been in a relationship for approximately 12 years and had only recently separated. There was no formal custody order, but the child was in R.C.’s primary care.

[9] On December 19^th, at approximately 18:30, the appellant attended R.C.’s home to retrieve the child for a weekend visit. He attended in R.C.’s bedroom where she was folding clothes. The child was in the home but in another room. According to R.C., whose version was accepted by the trial judge, the appellant told her he loved her and that he had “left other women for less”, which she believed was a reference to her having met with another man. She testified that the appellant became upset and grabbed her by the throat. She said he told her he “owned her” and that she was “going to die”.

[10] R.C. says he pushed her on the bed, and kept her there while holding a hanger above her in a threatening fashion. She testified to him unzipping his jeans, grabbing her by the back of the head, and putting his penis in her mouth. When he was done, the appellant zipped his pants, retrieved a sex-toy, and “rammed” it inside her vagina. She said the appellant then hugged her and left with the child.

[11] The appellant provided a very different version. He testified that, while it was somewhat rough, the two had consensual sex. He said it was R.C. who unzipped his pants and performed fellatio. He acknowledged using the sex-toy on R.C., but says she consented. He described her, at one point, using it on herself.

[12] It is agreed R.C. and the appellant continued to text following this event. R.C. testified that the reason she did so was because they shared a child and had to communicate.

[13] There is a family law context. The appellant alleges R.C. began to restrict his access to the child which led him to consult lawyer. The evidence established that she complained to the police after this consultation and only after being served a draft separation agreement. The appellant’s theory is she did so to gain an advantage in the upcoming family litigation.

Analysis of each ground of appeal

Did the trial judge err in minimizing the impeachment value of the text messages on cross-examination?

[14] The appellant submits the trial judge erred in diminishing the impeachment value of the text messages. This ground relates to R.C. who, when initially confronted with the texts, did not quickly acknowledge them as hers, and who, according to the appellant, became somewhat obstinate. The trial judge found this to be a product of her not having had advance notice that she would be asked about them. He described the in-court presentation of the messages as markedly different from how they would have appeared on R.C.’s phone. In his reasons, the trial judge said the following:

The evidence of R.C. was provided on February 3, 2016. R.C., in her evidence, presented herself as a serious witness, a person who was consistent throughout her testimony. She thought very hard about the questions that were put to her and carefully considered the answers. I found her generally to be a good witness. She wasn’t shaken in any fashion.

In particular, I comment that she was criticized in argument at the end of the trial for being – I’ll choose the word argumentative or reluctant to concede that the text messages that I’ll speak about were indeed the text messages between herself and [D.C.] But as an example of what she was confronted with, she was provided with – I haven’t counted the number of pages, but I suspect there are – Madam Clerk, can I see the court exhibit copy because I think the pages were numbered there. Thank you very much. Yes, there was 20 pages in a narrative form of text message form and each page there would be possibly 30 to 35 messages. So that’s a vast number of texts, and the point is simply that R.C. had not seen these text messages before in that format, and certainly had no written notice about what the text messages were going to say and they were – she was simply confronted with them and asked, are those your text messages.

[15] The appellant’s concern is that the trial judge, in-effect, placed upon the defence an obligation to disclose in advance matters it intended to refer to in cross-examination. As the texts were crucial to his attack upon R.C.’s credibility, his position is the trial judge should not have minimized her inability to recognize them, as they were, after all, messages she either constructed or received. Also, if there were genuine concerns about her comprehension, he says the judge should have intervened at the time and not waited to raise it in his reasons.

[16] I agree that wide latitude must be afforded in cross-examination, but the appellant’s argument is flawed. It seems to fundamentally misunderstand the nature of the trial judge’s comments in this respect. It is important to remember the context, which is the appellant was critical of the speed with which R.C. acknowledged the messages as hers. Apart from addressing inconsistencies in the evidence, it was well within the trial judge’s mandate to weigh her initial responses to this line of questioning, and to decide what, if any, significance it held.

[17] Of course, a witness can be confronted with matters in cross-examination that were not previously disclosed. In fact, this is the typical and preferred method of testing one’s evidence. However, the trial judge did not foreclose this, nor was he critical of the defence for so doing. It is clear the trial judge relied on this fact to explain R.C.’s initial responses, including her musings about whether the texts before her were a complete accounting of their communications. It was open to him to do that. I should be hesitant to question this type of trial assessment, which in this case was to place little weight on the fact that R.C. did not readily recognize what was presented to her. Perhaps another judge would ascribe a more nefarious purpose. Others might have concluded she was feigning ignorance. The point is, the trial judge is best situated to make that call.

[18] In this respect, the trial judge commented as follows:

And then she was criticized for not being able to remember specific text messages or specific comments that were made in those messages. The importance is simply that with respect to R.C.’s evidence, there was an attempt to shake her evidence on the basis that she was being resistant to conceding that these were her text messages, along with [D.C.], the text messages being uniquely between the two of them back and forth, back and forth, and simply put, I see no issues with R.C.’s credibility and reliability related to the presentation of those text messages because she had no opportunity to prepare, she didn’t have the opportunity to review them in detail, she was literally reading them in the witness stand and then being asked to comment about whether they were hers, whether they were [D.C.’s] and what meaning each of the messages conveyed.

So that’s an example of how I think R.C. weathered the storm, and it, in my view, reinforced the fact that she was a good witness and was speaking from what she remembered.

[19] Again, the trial judge was entitled to reach that conclusion. I must not lose sight of the fact that this whole exercise was to have R.C. adopt the statements, for a time-period immediately before and after the events in question, so that her present testimony could be measured against them. It is not that she denied they were hers, which would have been altogether different, and would have likely led the trial judge to treat it differently.

[20] Moreover, R.C.’s testimony was that she had not personally retained the messages, and could not quickly recall them. It is clear, when his reasons are read as a whole, that the trial judge accepted this explanation. That finding was open to him.

[21] The trial judge would have committed an error had he failed to address this part of the piece. But he did, and I am not to substitute my own conclusions. He committed no error. This ground of appeal fails.

Did the trial judge err in failing to consider material inconsistencies?

[22] The appellant submits the trial judge failed to meaningfully address the inconsistencies between the complainant’s trial testimony and her text messages. He raises the following points in R.C.’s testimony that he contends were not adequately addressed by the trial judge:

(i) in examination-in-chief, R.C. did not speak to the highly sexual nature of her relationship with the appellant, nor did she mention their shared interest in role-playing;

(ii) R.C. testified to being surprised that the appellant wanted to have sex when he arrived at her residence, while the text messages of that same day (including before his attendance), reveal a series of sexually-charged communications including fantasies and role-playing;

(iii) during examination-in-chief, R.C. testified that she had not communicated with the appellant after he left on December 19, while the text messages confirm she indeed did; and

(iv) during cross-examination, but before being shown the texts, R.C. testified that following the assault she only communicated with the appellant about issues related to their daughter, while the text messages reveal that on December 27, she, in response to the appellant asking if he could “spank” her, wrote “as long as after the spanking you make love to me.”

[23] This case was solely about the credibility of the witnesses. It goes without saying that, in such cases, the primary function of a trial judge is to assess the evidence and make findings of fact and credibility. In performing this task, judges must be alive to and address inconsistencies within a witness’s testimony. A failure to do so would amount to an error.

[24] The appellant claims the trial judge failed to address some of the inconsistencies, and in respect of those he did address, failed to appreciate the significance. Para. 17 of the appellant’s factum sets out this argument:

While the trial judge addressed the cross-examination of the text messages generally, his analysis in this regard was unreasonable and insufficient. The trial judge focussed on deficiencies in the text message record and the complainant’s explanations that her messages were either ‘sarcastic’ or made in an attempt to appease the appellant who was abusive towards her. Neither the fact that the text messages may not have reflected every communication between the parties (i.e. email or in person communications may have provided additional context), nor the absence of tone or expressions changes the nature of the messages. No doubt there were other communications between the appellant and the complainant not captured in the text messages. However, the existence of additional communications does nothing to diminish the content or impact of the messages. The trial judge found that the text messages “spoke to their continued sexualized behaviour towards one another.” Further, the complainant’s explanation that the messages may have been “sarcastic”, or made to placate the appellant, does not accord with common experience or logic when considered in light of the detailed and ongoing nature of the text messages, which includes many sexual acts advocated by the complainant, and even messages of this nature.

Impact of R.C. not speaking to sexually-charged nature of relationship during examination in-chief

[25] Both the trial judge in his reasons, and the appellant in his written materials, reference Horkin J.’s decision in R. v. Ghomeshi [2016] O.J. No. 1487. The trial judge cites it to remind himself that care should be taken to avoid using such inconsistencies (i.e. a complainant communicating with an accused in a friendly or even sexual manner after an alleged sexual assault) to support a conclusion that the complainant was more likely to have consented, or is, based on that fact alone, less believable.

[26] The appellant’s counsel points out that Horkins J., while not applying stereotypes or “rape myths”, relied upon the inconsistencies to find the complainant lacked credibility. He suggests the trial judge should have similarly concluded. I don’t agree. The trial judge’s reasons display an awareness of the pit-falls of improper uses. He is not compelled to arrive at the same conclusion as a colleague who has considered a similar case.

[27] What of R.C.’s failure to disclose in examination-in-chief the highly-sexualized nature of the relationship? This is something the trial judge had to address; was relevant; and might have been, as it was in Ghomeshi, impactful. But this is a case-specific exercise, and considerable deference must be afforded the trial judge.

[28] On the specific issues raised by the appellant, it is important to note that R.C., in examination-in-chief, was simply responding to questions she was asked. This requires a closer look at the evolution of the s. 276 argument; whether there was in fact an inconsistency; and how the trial unfolded.

[29] First, how does the prohibition against evidence of prior sexual history, and the s. 276 application, factor in to this? The appellant argues the prohibition applies only to an accused, and therefore, the Crown was entitled to, and in fact should have, asked R.C. about the text messages which included discussions about sex and prior instances of sexual activity. Section 276 of the Criminal Code provides that:

276(1) In proceedings in respect of an offence under...271…evidence that the complainant has engaged in sexual activity, whether with the accused or with any other person, is not admissible to support an inference that, by reason of the sexual nature of that activity, the complainant

(a) is more likely to have consented to the sexual activity that forms the subject-matter of the charge; or

(b) is less worthy of belief.

(2) In proceedings in respect of an offence referred to in subsection (1), no evidence shall be adduced by or on behalf of the accused that the complainant has engaged in sexual activity other than the sexual activity that forms the subject-matter of the charge, whether with the accused or with any other person, unless the judge, provincial court judge or justice determines, in accordance with the procedures set out…that the evidence

(a) is of specific instances of sexual activity;

(b) is relevant to an issue at trial; and

(c) has significant probative value that is not substantially outweighed by the danger of prejudice to the proper administration of justice.

[30] Does the fact R.C. did not, during examination-in-chief, describe more fully the nature of the relationship, amount to an inconsistency? I say no, but even if I am wrong, I am not persuaded the Crown had free reign to, nor should have, gone down this path. The section does appear to limit the prohibition to an accused, or anyone acting on behalf of the accused, but this is confined to the introduction of evidence. There is an important distinction to be drawn, as subsection (1) prohibits this evidence to be used, by anyone, for any of the proscribed reasons. That’s the starting point, which begs the question, why would the Crown have asked these questions? I am not sure why it would have, the effect of which would have been to eliminate any need for the defence to bring an application.

[31] As indicated, during her examination-in-chief, R.C. was simply responding to the questions put to her. I am not about to criticize her, or the Crown, for choosing not to open the door to an otherwise impermissible area of inquiry.

[32] Second, were there inconsistencies? If, as the trial judge ultimately accepted, R.C. was having difficulty recalling the text exchanges, she would have likely been unable to recount them earlier to the Crown or police. This is distinguishable from Ghomeshi where the complainants were vigorously examined on inconsistencies between what they had recounted to the police during the course of the investigation, and what they testified to at trial about their interactions with Mr. Ghomeshi. If what the trial judge concluded was true, R.C. was in no position to, and in fact did not, recount any of this to the Crown or police, speaking to it for the first time in cross-examination after her memory was refreshed.

[33] R.C. responded to questions asked in examination-in-chief, and, admittedly after some effort by the defence during cross examination, acknowledged the text messages, thereafter speaking more fully to the nature of the relationship. That being the case, it was up to the trial judge to determine the import of this and to decide whether this was a legitimate refreshing of her memory, or an attempt to mislead. Might another judge have arrived at a different conclusion? Certainly, but that is not the test. He had an obligation to address it, and did. That does leave R.C.’s initial testimony at odds with some of her later texts, but the trial judge sufficiently explained why he treated this as he did.

[34] Third, I must carefully consider how the trial unfolded as, at least to this argument, context is everything. For reasons unknown to me - given he retained the text messages and his counsel clearly had a strategy to confront R.C. with them - the appellant did not bring the s. 276 application as a pretrial motion. This was, unfortunately, done mid-trial. For me, it is not sufficient to say that because there is wide latitude on cross-examination, or just because the element of surprise is preferred, that proceeding with this type of application, without notice, is justified. It is not. The defence should have brought this motion in advance. Section 276.1 requires it, with notice to the Crown. For whatever reason this procedure was not followed, with the trial judge nevertheless hearing it mid-trial then permitting the defence to confront R.C. with the texts.

[35] This ground of appeal fails.

Inconsistencies between R.C.’s trial testimony and her text messages about being surprised, not communicating with the appellant after the 19^th, and of only communicating about their daughter

[36] The trial judge accepted that R.C. did not recall the text messages when they were first presented to her. A conclusion that, I believe, was open to him. Such a finding diminished the import of any difference between the texts and R.C.’s testimony. In other words, the trial judge effectively found the texts to be tools that refreshed her memory. He therefore did not need to address and reconcile these as inconsistencies.

[37] I would have had some difficulty arriving at this same conclusion, as there is arguably an inconsistency not just between R.C.’s testimony and her texts, but as between her subsequent explanations about the nature of her communication with the appellant. Be that as it may, there are no grounds to interfere. This ground too fails.

Did the trial judge misapprehend evidence?

Text messages

[38] To misapprehend evidence means to fail to consider testimony relevant to a material issue, to make a mistake as to the substance of evidence, or to not give it proper effect.

[39] Respecting the text messages, the trial judge concluded the appellant was the “leader, aggressor” in this sexually-charged relationship. The appellant finds fault with this as, in his view, the trial judge did not recognize the incompleteness of the record of communications. He further argues that, even if the trial judge’s assessment was correct, it should have corroborated the fact the sexual contact in question was consensual.

[40] This argument must fail because, in fact, the opposite is true. If the trial judge had used the text messages to conclude R.C. consented, that would have been prohibited by s. 276 and would have constituted a reviewable error. He took great care to avoid that.

[41] As to the impact upon credibility, the appellant submits that, framed properly, the text messages provided a cogent basis to undermine the complainant’s credibility. While this is true in the sense it was open for the trial judge to so conclude, there is no preordained judicial response. I spent a considerable amount of time addressing this in the context of other grounds, but the test is not what another judge might have concluded. This trial judge was alive to this issue, and resolved it in a way he saw fit based on the evidence before him.

Time of assault and the child’s presence

[42] In reaching his decision the trial judge, in part, relied on the child’s presence in the home, as well as the fact the sexual contact occurred during the dinner hour, to undermine the appellant’s evidence. On this point, he said this:

In my view, looking at all of the evidence, it is not something that is sensible to think that that occurred. So I return to the question as follows: Do I believe [D.C.] when he says that R.C. consented? I don’t because there’s no good evidence to accept [D.C.’s] statement to that effect. [D.C.’s] evidence is self-serving, it is not consistent with the external circumstances in play at the time; that is to say the time of day, the presence of the child, and also the nature of [D.C.’s] ownership of R.C. So I reject his evidence.

[43] This is problematic. The presence of their daughter in the home, and time of day, is not disputed and were indeed the circumstances surrounding the sexual contact. However, this is neutral evidence and incapable of either corroborating R.C.’s account, or detracting from the appellant’s. Upon a complete reading of the trial judge’s reasons, it is apparent he did both. He used it to undergird R.C.’s testimony, and to render the appellant’s less believable.

[44] How can it be said that R.C. would not have consented to sex had her child been in the home, but in the same breath conclude the appellant would have sexually assaulted R.C., in those same circumstances? This is illogical. While both are coherent arguments, there is simply no evidentiary basis to prefer one over the other. To rely on this fact in the way the trial judge did, is an error.

[45] I turn now to his assessment of the appellant’s evidence.

Did the trial judge err in finding the appellant’s evidence to be “self-serving”?

[46] A trial judge cannot assume, and ultimately conclude, that an accused will lie to secure an acquittal. To do so would erode the presumption of innocence. An accused’s interest in the outcome of a proceeding is irrelevant and unhelpful in assessing credibility; see R. v. Laboucan, 2010 SCC 12.

[47] There is a distinction between finding a motive to lie, and assuming one will lie simply because any accused would in order to protect themselves. The appellant argues the trial judge did the latter which is impermissible.

[48] The trial judge’s characterization of the appellant’s testimony as self-serving is clearly in reference to the appellant’s denial of the conduct charged, and not to a particular aspect of his testimony. His decision, viewed in its entirety, reflects the impermissible type of reasoning. In fact he doesn’t outline any motive for the appellant to lie, other than on the ultimate question of his innocence.

Did the trial judge fail to consider the value of R.C.’s motive for reporting?

[49] This relates to the outstanding family law conflict and how it might have impacted the timing of R.C.’s complaint.

[50] The Supreme Court, in R. v. D.D. 2000 SCC 43, made clear that the timing of a complaint is a factor to consider, but, standing alone, is insufficient to draw a negative inference against a complainant. The appellant argues the issue here is not so much with timing, but in the trial judge’s silence on the potential motive behind the reporting. The appellant contends his failure to address this is a reviewable error.

[51] It was established that R.C. made her complaint only after she learned the appellant had met with a family law lawyer about issues respecting custody of and access to their child. Some of the appellant’s text messages confirm his intention to pursue this.

[52] In this respect, the trial judge said:

It should be noted that R.C.’s evidence in cross commented upon the fact that it took her a period of time having cut off communication with [D.C.] in a substantive way for her to acquire the necessary strength to finally say no. She says in her evidence in cross-examination that it was necessary for her to put some distance between herself and [D.C.] so that she could build up the necessary strength to bring this behaviour to a conclusion.

It is interesting to note, and this is agreed upon through the evidence of [D.C.] as well, that prior to December the 19^th, access to the child was occurring on a fairly regular basis, but after December the 19^th, access became more restricted. R.C. was less cooperative and ultimately she cut off access to the child completely. That actually provoked and prompted [D.C.’s] response and there were some nasty exchanges later on about him threatening to report her to the police for child abuse by holding up access and also saying, “I’m going to spend every dime I make to see Emily.” But what it is interesting about that is that it is corroborative of R.C.’s recognition that this event on December the 19^th was of consequence, was something that she had to think about long and hard and something she had to react to in a protective manner.

[53] The trial judge minimizes the delayed reporting, but does not sufficiently explain or justify why he arrived at that decision. While it was open to him to assign meaning and weight to this, such a conclusion, which appears to have been fatal to the appellant’s trial position, must be rooted in the evidence. More than that, he fails to meaningfully address whether or not, and to what extent, R.C. had a motive to fabricate her claim in order to better position herself in family court.

[54] The problem is in an uneven credibility assessment, and in particular the trial judge’s treatment of the appellant’s testimony. In R. v. J.J.R.D., 2006 CanLII 40088 (ON CA), 215 C.C.C. (3d) 252, Doherty J. writes this at para. 53:

An outright rejection of an accused’s evidence based on a considered and reasoned acceptance beyond a reasonable doubt of conflicting credible evidence is as much an explanation for the rejection of an accused’s evidence as is a rejection based on a problem identified with the way the accused testified or the substance of the accused’s evidence.

[55] Albeit in a different context, JJRD highlights the need for a trial judge to, when categorically rejecting an accused’s exculpatory evidence, to sufficiently explain why. And when you strip away the notion that the appellant offered simply a self-serving denial, and must have did what was alleged as no woman would have consented to sex during the dinner hour or while her child was awake and in the home, what can be discerned from the trial judge’s reasons? Very little, other than the obvious unbalanced treatment of the respective accounts of what occurred.

[56] This may seem unrelated to the question of R.C.’s motivation to lie, but it illustrates the risk in treating the credibility assessment as a contest. In other words, in the absence of any confirmatory evidence, why would you characterize the appellant as self-serving, but give the benefit of the doubt to the complainant on every potentially problematic aspect of her testimony? There is no considered or reasoned justification for this differential treatment.

Conclusion

[57] For these reasons, I would allow the appeal, set aside the conviction, and order a new trial before a different judge.

Justice J.C. George

Released: October 12, 2017