‘Piecemeal’ assessment of evidence results in successful appeal

Law360 Canada (June 27, 2024, 11:53 AM EDT) --

John L. Hill

It is unusual to see a trial judge’s decision overturned in a brief nine-paragraph judgment that, in essence, accuses the judge of improperly assessing the evidence.

Yet in a judgment dated June 21, 2024, supernumerary Justice Mary Lou Benotto, writing for a unanimous three-judge panel, overturned an acquittal and ordered a new trial because the trial judge used a “piecemeal” approach in assessing the evidence (R. v. M.W., 2024 ONCA 499).

The Crown alleged that M.W. assaulted, sexually assaulted, choked, forcibly confined and threatened his common-law partner, K.L., at their shared Ottawa residence on Feb. 4, 2021. The pertinent evidence at trial consisted of K.L.’s account of being assaulted in the bedroom apartment after a verbal argument. She claimed to have been forced onto a bed, her clothing removed and being attacked by M.W., which included forced vaginal penetration.

While lying on the bed, K.L. used her cellphone to capture audio and verbal evidence of what she claimed happened to her. The recording lasted just eight seconds. The clip shows K.L. holding the phone and not smiling. She said “off” as M.W. pulled down her undergarments, and she can be heard saying, “Get off me.”

In her 64-paragraph judgment (R. v. M.W., 2023 ONSC 3753), the trial judge explained why she believed K.L.’s testimony to be unreliable. “[K.L.] gave substantially different versions of the alleged assaults in a written statement to police on February 4, 2021; in a videotaped statement to police on February 9, 2021; in her testimony at a preliminary inquiry in May 2022; and at trial. She admitted in cross-examination that her memory had changed over time and said it might continue to change. Many of the inconsistencies in K.L.’s evidence were material in that they involved her description of the alleged assaults or the events immediately after them.”

Based on the inconsistencies, the trial judge relied on R. v. Nyznik, 2017 ONSC 4392, for the proposition that a judge’s task in an assault trial is not only to determine whether a complainant is telling the truth as they perceive it but whether their evidence is sufficiently reliable to convict the accused. The trial judge noted that inconsistencies in a complainant’s evidence may give rise to reasonable doubt. Inconsistencies can demonstrate a carelessness with the truth: R. v. G.(M.), 93 CCC (3d) 347. A minor inconsistency will not diminish a witness’s credibility, but a series of inconsistencies or a single inconsistency on a significant point may do so. The trial judge instructed herself that she “should look at the totality of the inconsistencies in order to assess whether the witness’ evidence is reliable” (R. v. Bowe [1993] B.C.J. No. 758 (C.A.)).

Concerning the recorded evidence, the trial judge accepted that the Crown need not corroborate evidence pointing to sexual assault. That would be a legal error. Nonetheless, suppose the Crown wishes to rely on a videotape to prove that an assault took place. In that case, the admission of such evidence necessitates the Crown’s showing reliable evidence about the circumstances of its creation and what it depicts. Allowing a video or photograph to be isolated and denuded of any context can be misleading. The Crown must provide foundational evidence to authenticate it and persuade the trier of fact that what it appears to depict is what happened.

On this last point, the Court of Appeal differed. “It was an error of law for the trial judge to consider the probative force of the video only after she concluded that she could not rely on any of the complainant’s testimony (R. v. Rudge, 2011 ONCA 791; R. v. J.M.H., 2011 SCC 45; and R. v. Button, 2019 ONCA 1024). Here, the Court of Appeal found that the trial judge’s approach in her non-reliance on the video was a piecemeal approach since rejection came about only after the refusal to accept the complainant’s verbal testimony.

Since this error in law had a material bearing on the acquittal, the Crown had met its onus of having the verdict quashed (R. v. Graveline, 2006 SCC 16, R. v. Goldfinch, 2019 SCC 38; and Button, cited above.)

The Court of Appeal held that the video’s contents proved the elements of the complaint; the trial judge opted to accept the view that there could be an innocent explanation for the video’s depictions.

It must be difficult for any Superior Court judge to receive criticism for erring in law and to stand to be corrected. It must be more difficult for this trial judge to have the brief but forceful admonition of the Court of Appeal issued this month. The trial judge in M.W. was Justice Sally A. Gomery. On Nov. 6, 2023, Justice Minister Arif Virani issued a press release announcing the appointment Justice Gomery as a judge of Ontario’s Court of Appeal.

John L. Hill practised and taught prison law until his retirement. He holds a J.D. from Queen’s and an LL.M. in constitutional law from Osgoode Hall. He is also the author of Pine Box Parole: Terry Fitzsimmons and the Quest to End Solitary Confinement (Durvile & UpRoute Books). Contact him at johnlornehill@hotmail.com.

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