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| John Hill |
These principles include that a finding of guilt is maintainable if, and only if, the accepted evidence convinces the trier of fact beyond a reasonable doubt. This is the standard the Supreme Court of Canada set out in R. v. W.(D.) [1991] 1 S.C.R. 742.
Is it enough that the complaint’s evidence be believed for a conviction to be entered, or even if the complainant’s story is entirely accepted, should it be subject to further scrutiny by the additional test of “beyond reasonable doubt?”
The question deserves to be asked in light of the British Columbia Supreme Court judgment in R. v. Hooper 2023 BCSC 1871. In this case, the accused, Peter John Hooper, was convicted of two counts of sexual assault and two counts of sexual interference on a complainant referred to as J.G. The criminal complaints resulted from two separate incidents that happened in 2018.
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The judgment establishes that J.G. had been instructed to lie and tell Hooper that she was 17, which would be of an age where she could consent to sexual contact. However, J.G. testified she could not recall conversations where she was asked to provide an untruthful answer. It was also well-established that J.G. was a drug addict at all times when the alleged criminal conduct took place. J.G. was forthright in acknowledging that she had smoked methamphetamine and then used cocaine. Regarding the second incident, she admitted to being a meth addict and used crack cocaine daily. She even smoked fentanyl.
Defence counsel at trial accepted that J.G. was under 16 years of age and raised no argument that Hooper may have had an honest but mistaken belief that J.G. was consenting. Instead, the defence was based on the unreliability of the complainant’s testimony due to her addiction to street drugs. Surprisingly, the defence called no expert evidence to raise a concern that regular usage of the illicit substances could affect the memory’s ability to recall events accurately.
The lack of expert evidence on a crucial aspect of the defence is questionable, especially when concerning the trial judge’s findings as set out in paragraph 83 of the judgment:
“Now, it is true that J.G. also testified that at the time of the incidents, she was suffering from substance abuse and mental health issues. With respect to the former, J.G. candidly explained that by June 2018, she was smoking crack every day and became addicted to meth following the incident in the motorhome. With respect to the latter, J.G. testified that she had been hospitalized both shortly before that incident and afterwards in July 2018 for treatment of psychotic symptoms. J.G. acknowledges that these symptoms have included delusions and auditory hallucinations, such as believing that birds and people are robots and hearing voices. J.G. has been prescribed Seroquel, an antipsychotic medication, which she has resisted taking in the past. J.G. also testified that she suffered a concussion in January 2023 that impacted her brain functioning for three months.”
Without expert evidence to call into question the reliability of J.G.’s accusations, the trial judge relied upon a similar situation where a conviction of sexual assault was registered on a complainant’s evidence alone, even though the complainant had mental health issues and was intoxicated when the offence occurred (R. v. Perrone 2014 MBCA 74, aff’d 2015 SCC 6).
In the first incident, there were other people present in the motorhome. Yet these witnesses were not called by the Crown or the defence. Instead, the defence seemed to be that J.G. was unreliable due to her health condition and the lack of corroborative evidence.
Although, as the W.(D.) case makes clear, the burden is on the Crown to prove the case beyond a reasonable doubt, it must not be forgotten that the defence sometimes has to meet an evidential burden in establishing the reasonableness of that doubt.
John L. Hill practised and taught prison law until his retirement. He holds a J.D. from Queen’s and 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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