Focus On

Criminal Code offences - Offences against person and reputation - Assaults - Sexual assault - Sexual assault causing bodily harm

Thursday, September 15, 2016 @ 8:00 PM  


Appeal by the accused, Threefingers, from a conviction for sexual assault causing bodily harm. The complainant, age 32, was a developmentally challenged dependent adult who was diagnosed with schizoaffective disorder. She lived in her own apartment under her mother’s daily supervision. The complainant had significant memory difficulties and trouble separating fantasy from reality. In September 2012, the complainant appeared at her mother’s workplace in an emotional state with a bruised neck. She was taken to police and gave a videotaped statement. She described being grabbed from the street and sexually assaulted in the street or a parking lot and violently dragged back to her apartment. The complainant returned to her apartment with her mother to wait for additional police. While waiting, the accused returned to the apartment and asked the complainant if she had fun. He was arrested shortly thereafter. The accused was charged on a six count indictment. The complainant testified that she did not remember the incident or her statement. She did not recognize the accused. Police played the statement in court. The Crown adduced medical expert opinion evidence that the complainant sustained injuries inconsistent with consensual or ordinary sex. The accused testified that his interaction with the complainant was entirely consensual and that she willingly participated in rough sex and asked him to bite her. The trial judge admitted the complainant’s statement to police and accepted it to the limited extent that it was corroborated through other Crown evidence. The accused was convicted of sexual assault causing bodily harm and acquitted of unlawful confinement and property offences. The accused appealed.

HELD: Appeal allowed. The complainant’s statement was not substantively reliable or the product of a voluntary mind. The statement was not made under oath or pursuant to a police caution regarding the consequences of the statement. The complainant indicated her mother forced her to attend the police station. The mother constantly interrupted and intervened during the statement. The complainant made it clear that she was high during the alleged incident and while giving her statement. The statement was disjointed and bizarre, as the complainant appeared to come in and out of reality. The complainant was on medication at the time of the statement that affected her memory. The factual consistencies cited by the trial judge in support of the statement’s reliability were insufficient. The main elements of the complainant’s allegations were uncorroborated. The trial judge erred in law by referring to threshold reliability as involving a low standard. In addition, as conceded by the Crown, the trial judge erred in law in relying upon expert medical opinion evidence that the complainant’s bruising was inconsistent with ordinary or consensual intercourse. The witness was qualified in matters related to injuries, but not sexual activity. Inadmissible evidence was thus used to corroborate a key portion of the Crown’s case and the assessment of the accused’s credibility. The curative provision was unavailable to sustain the conviction. A new trial was ordered.