‘Thorough and well-reasoned’ judgment in sex assault appeal

Law360 Canada (February 7, 2024, 9:46 AM EST) --

John Hill

In a very lengthy review, Superior Court Justice Ian F. Leach reviews the evidence and the law in one of the most thorough and well-reasoned judgments one is ever likely to read (R. v. M.B. 2023 ONSC 6316).

Justice Leach took great pains to be fair and balanced in reporting the factual scenario that gave rise to the complaint. On Saturday afternoon, Jan. 11, 2020, G.M. and several of her high school female friends were meeting up. There was some alcohol involved, but there was no mention of it getting out of hand. Sometime during the evening, it was decided that a few of the party-goers would travel to the McDonald’s in Strathroy to pick up some food. To do this, some of the young women decided to call on M.B. to make the trek into town since he had a driver’s licence. M.B., also a high school student, was more than willing to accommodate the request.

Sometime after midnight on Jan. 12, M. B. and his buddy, C.N., arrived. With M.B.  behind the wheel, C.N. repositioned himself to the back seat of G.M.’s truck and waited outside for G.M. and her girlfriend to get on board. Once en route, there was a change in plans. It was raining, and rather than drive all the way into Strathroy, the group decided to pick up food at a Tim Horton’s in nearby Parkhill. What should have taken only a few minutes took a lengthy time since M.B. took a circuitous route to Parkhill.

M. B. used the extra time by suggesting to G.M., “Let’s do something cool.” It became quite clear through the ensuing physical and conversational dialogue that G.M. wanted no part of the sexual activity. M.B. persisted.

On the following Monday, rumours of the assault were rampant at the high school. G.M. gave an account to her high school guidance counsellor, and the following day, police were called.

The Superior Court Judge found that the trial judge had fairly assessed the conflicting testimony. The trial judge noted that G.M.’s testimony was credible despite frailties because it received substantial corroboration from a neutral witness. In contrast, other witnesses did not corroborate M.B.’s evidence, especially that of his friend, C.N. The strongest and most damning finding to M.B.’s argument was contained in a single sentence of the appeal judgment: “In my view, the submission ignores the reality that the trial judge actually found numerous aspects of M.B.’s testimony to be implausible and/or internally inconsistent and provided reasoned and reasonable explanations for doing so.”

Justice Leach reminded himself that while appellate courts have jurisdiction to review findings of fact and credibility, they should not retry cases and substitute their opinions regarding the credibility of witnesses or the force to be given to fact-based arguments for the making of credibility assessments (R. v. W. (R.) [1992] 2 S.C.R. 122; R. v. Beaudry [2007] 1 S.C.R. 190 and R. v. Drabinsky 2011 ONCA 582).

Although this appeal seems rather “standard form” when issues of credibility are raised, the judgment may be more notable for its short shrift to an emerging ground of “uneven scrutiny.” In paragraph 9 of the reasons, Justice Leach remarks on the recent majority of the Supreme Court of Canada, which expressed “serious reservations” about whether “uneven scrutiny” is a helpful analytical tool to demonstrate error in credibility findings (R. v. G.F. 2021 SCC 20).

In the end, Justice Leach found no error justifying a retrial. The appeal was dismissed. There was no appeal taken with regard to the sentence imposed.

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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