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EVIDENCE - Witnesses - Credibility

Tuesday, April 28, 2020 @ 9:12 AM  


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Appeal by the accused from conviction for sexual assault. Following an afternoon and evening of drinking and partying with friends, the appellant had sexual intercourse with the complainant on the couch in his living room while the complainant’s husband was sleeping in an adjacent room. Just as these events were ending, the complainant’s husband emerged from the adjacent room. The complainant did not immediately, when confronted, tell her husband that she had been assaulted and did so only after they returned home, in response to his repeated entreaties.

HELD: Appeal allowed. New trial ordered. The trial judge made a WD error by treating the credibility issue as a contest between the complainant and the appellant and failing to consider whether the evidence left her with a reasonable doubt. Several times, the trial judge framed her conclusions in language indicating she was deciding which version of events she preferred, and that reasonable doubt did not play a role in her findings. The trial judge also failed to meaningfully recognize or address the evidence of the complainant’s possible motive to fabricate when assessing credibility. While it was open to the trial judge to accept the complainant’s evidence that she did not consent to sexual activity and that her response to her husband’s questioning was due to a myriad of factors that had nothing to do with fabrication in the circumstances of this case, the trial judge was also obliged to consider whether the events gave rise to a motive to fabricate and, if so, how that reflected on her assessment of the complainant’s credibility. The trial judge relied improperly on the appellant’s presence in the courtroom when the complainant testified to negatively assess his credibility by finding that he had the opportunity to tailor his evidence and that he did so.

R. v. Esquivel-Benitez, [2020] O.J. No. 936, Ontario Court of Appeal, J.M. Simmons, K.M. van Rensburg and A.L. Harvison Young JJ.A., March 2, 2020. Digest No. TLD-April272020004