 |
| John L. Hill |
This was pointed up very recently in the case of R. v. Bowers 2022 ABCA 149. Gary Bryce Bowers had been convicted before Justice Sandra Hunt-McDonald of the Alberta Court of Queen’s Bench on June 17, 2020. The verdict was appealed with the appeal judgment handed down almost two years later on April 26, 2022. The only grounds of appeal argued before the court was that the trial judge had given uneven scrutiny to the accused’s version of the facts.
It was admitted by all parties that the accused and the complainant were strangers when they attended a get-together at a house party and later getting to know one another while attending a bar where everyone became inebriated. On leaving the bar, the complainant and the accused ended up back at the host’s house where everyone slept. According to the complainant, the accused joined her while she was sleeping on a couch. While in a dreamlike state, she felt the accused behind her making sexual contact with his hands. The complainant asked who was behind her and a male voice replied, “It’s Bryce.” She then awoke and jumped from the couch in shock.
The accused admitted that he awoke in the early morning hours and instead of going back to bed he lay down on another section of the L-shaped couch occupied by the complainant. When the complainant’s alarm went off, she realized the accused was in close proximity and invited him to join her on her portion of the couch. He agreed and the two rested in a “spooning position” under a blanket. The complainant undertook a grinding motion with her buttocks in the accused’s crotch. He asked, “what’s going on?” She, now awake, said “who is this?” to which he replied, “It’s Bryce.” There was no vaginal intercourse and no sexual touching on his part.
Even though other house guests testified, the only ones capable of giving evidence of sexual assault were Bowers and the complainant. No expert evidence was provided.
The trial judge found the version of events offered by the complainant to be credible but discounted the accused’s narrative of the happenings because he admitted lack of memory upon returning to the house after becoming intoxicated.
In concluding that the accused was guilty, appellant counsel argued that on a number of issues, the trial judge applied uneven scrutiny to the evidence. One of the most serious alleged was concerning the effect of alcohol and memory. The appellant maintained his own intoxication was used against him but there was inadequate assessment of the degree to which the complainant was drunk.
In the end, the three-judge panel agreed that the claim of uneven scrutiny in the absence of other reversible errors has rarely succeeded. To ask an appeal court to re-evaluate credibility when substantial deference ought to be paid to the trier of fact is to ask that the appeal court to retry the case.
A lot of work has been accomplished in the past 20 years to discredit stereotypes of what actions are presumed in male/female contact and in giving greater acknowledgement that women should feel enabled to openly admit assaults that beforehand would have gone unreported. It would be unfair in this case to suggest that the accused was treated unfairly by being tried by a female judge in first instance and later having his appeal denied by a female appellate panel.
Maybe the explanation, if Bowers was indeed innocent, would be for his failure to give the trial court any evidence to support his credibility. Why not call expert evidence on the effect of intoxication and memory? The Alberta Court of Appeal judgment is certainly one to be used as precedent in future cases where uneven scrutiny of evidence is the sole grounds for appeal.
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. Contact him at johnlornehill@hotmail.com.
Photo credit / Waldemarus ISTOCKPHOTO.COM
Interested in writing for us? To learn more about how you can add your voice to The Lawyer’s Daily, contact Analysis Editor Peter Carter at peter.carter@lexisnexis.ca or call 647-776-6740.