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EVIDENCE - Witnesses - Credibility - Prior consistent statements

Monday, June 14, 2021 @ 9:32 AM  

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Appeal by the accused, Singh, from a conviction for uttering threats, forcible confinement and sexual assault. The accused, age 20, and complainant, age 17, met through an online dating platform. The accused testified that they agreed to marry during their online communications and that when they met for their first date, the complainant asked for a ring. The complainant denied ever committing to marriage and suggested that they had a flirty first date with minimal physical contact. Several days later, the incident giving rise to the charges occurred. The complainant testified that she agreed to meet the accused for coffee, that he took her to his home under the auspices of having forgotten his wallet, took her inside, and engaged in non-consensual sexual activity and intercourse. The accused testified that the complainant initiated sexual activity and that he expressly confirmed her consent. Immediately after, the complainant text messaged the accused stating she had not consented to sexual activity. She arrived at school, reported the sexual assault and sought medical attention. The accused was arrested shortly thereafter. The trial judge found that the complainant was, on whole, credible despite reliability concerns with one aspect of her evidence. The judge found that the accused’s evidence did not accord with common sense and that the offences were proven beyond a reasonable doubt. The accused appealed.

HELD: Appeal dismissed. The trial judge did not improperly rely on the complainant’s text messages as prior consistent statements for the impermissible use of finding credibility through repetition. Instead, in finding that the text messages were strongly corroborative of the complainant’s testimony, the trial judge effectively found that the timing and circumstances of the complainant’s statements and the nature of the accused’s responses yielded inferences supporting the credibility and reliability of the complainant’s testimony. The trial judge did not improperly equate the absence of evidence of motive to fabricate with an actual proven absence of motive to fabricate to improperly bolster the complainant’s credibility. Instead, the trial judge’s analysis was properly confined to determining, on the whole of the evidence, whether the accused’s account was believable and raised a reasonable doubt. The credibility assessment did not involve a failure to apply a cultural lens to the accused’s subjective beliefs about the couple’s commitment to marry, and the evidentiary record did not invite such considerations. The conviction did not result from a misstatement, misapprehension or misapplication of the principles governing reasonable doubt.

R. v. Singh, [2021] B.C.J. No. 902, British Columbia Court of Appeal, M.V. Newbury, J.C. Grauer and P.G. Voith JJ.A., April 29, 2021. Digest No. TLD-June142021002