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PROCEDURE - Trial judge's duties - Assessing credibility of witnesses

Friday, May 12, 2017 @ 6:55 AM  


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Appeal by the accused, Martin, from a conviction for sexual assault. The accused and complainant were longstanding friends who occasionally engaged in sexual activity, but were not in a relationship. On the evening of the alleged offence, the complainant exchanged text messages with the accused and they agreed to meet. They watched a video in the accused's basement and the complainant decided to sleep on the basement couch, as she had in the past. The complainant testified that she awoke to find the accused engaged in sexual intercourse with her. She stated that she struggled, but he persisted until she threatened to scream. The accused testified the evening conformed with his past interactions with the complainant. He stated that they engaged in consensual sexual activity short of intercourse when she suddenly froze and asked him to stop. He complied, believing she changed her mind due to a desire to reconcile with a former boyfriend. The trial judge found the complainant's testimony truthful and accurate. The judge identified credibility concerns with the accused's testimony based on the rule in Browne v. Dunn, and based on multiple inconsistencies in his evidence. The accused was convicted and sentenced to two years' imprisonment. The accused appealed.

HELD: Appeal allowed. The trial judge erred in finding that the accused breached the rule in Browne v. Dunn. The case was not an instance of the accused unfairly choosing to lead evidence without having first put it to the complainant in cross-examination, as the facts at issue were elicited by the Crown in their cross-examination of the accused. The issue before the trial judge was not simply whether the complainant was credible, but whether a reasonable doubt was raised in respect of the accused's guilt. The erroneous findings on the Browne v. Dunn issue were relevant to the trial judge's assessment of credibility, formed an integral part of the basis for the rejection of the accused's testimony, and may have influenced the ultimate finding of guilt. The conviction was quashed and a new trial was ordered.

R. v. Martin, [2017] O.J. No. 1980, Ontario Court of Appeal, E.A. Cronk, P.S. Rouleau and B. Miller JJ.A., April 21, 2017. TLD-May82017014