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EVIDENCE - Witnesses - Credibility

Friday, March 08, 2019 @ 8:44 AM  

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Appeal by the accused from conviction for sexual assault. The appellant and complainant engaged in sexual activity with the complainant’s consent in a tent at a music festival. The complainant did not wish to engage in sexual intercourse and the appellant stopped. The appellant claimed that the complainant later initiated sexual contact. The appellant again wanted to engage in sexual intercourse. She testified she objected but he persisted and briefly penetrated her. He testified that he stopped when she said no and did not penetrate her. The sole issue to be determined at trial was whether actual intercourse occurred. Ultimately, the trial judge accepted the complainant’s evidence. The complainant’s abrupt and angry departure from the tent was pivotal to his reasoning. The complainant advised that she consumed two hits of LSD and half a gram of MDMA on the night in question. She agreed that the drug had hallucinogenic effects but asserted that it had never affected her memory.

HELD: Appeal allowed. New trial ordered. The complainant’s abrupt departure was equally supportive of both the appellant’s and the complainant’s testimony. The complainant could have left as suddenly as she did because intercourse had occurred against her will or because she was upset that the appellant tried again to have intercourse even after she had made it clear she did not want that. Given the fundamental ambiguity of this evidence and its pivotal role in the trial judge’s reasoning, it was incumbent on the judge to consider and explain why the appellant’s equally plausible account for the complainant’s sudden departure was not true and did not raise even a reasonable doubt. This was a case in which both parties offered almost identical accounts of their interaction on the night in question, differing only on whether intercourse occurred. The appellant’s testimony generally, and on the critical issue, was not such that it could be dismissed as obviously foolish or false. There were also significant concerns about the effect of the complainant’s use of drugs on her reliability and no evidence before the court as to whether the combination of LSD and MDMA might have had a potentiating effect. The trial judge needed to consider whether, in light of the ambiguous nature of the evidence upon which he was relying, the appellant’s account could be true. His failure to do so was fatal to the conviction.

R. v. Ryon, [2019] A.J. No. 111, Alberta Court of Appeal, P.W.L. Martin, J. Watson and P.A. Rowbotham JJ.A., January 31, 2019. Digest No. TLD-March42019015