Two appeal decisions underline how trial judges rely on common sense, experience

Law360 Canada (May 23, 2024, 12:34 PM EDT) --

John L. Hill

At first glance, the Courts of Appeal in Nova Scotia and Ontario have different approaches in reviewing verdicts in “he said/she said” sexual assault cases. Or are they more similar than one would expect by looking at the outcomes alone?

In the recently decided case of R. v. Da Silva, (2024 ONCA 242), the Ontario Court of Appeal upheld the conviction and three-year prison sentence imposed upon a 53-year-old man accused of sexually assaulting his 70-year-old female personal support worker. That judgment was handed down on April 5, 2024. Two days earlier, the Nova Scotia Court of Appeal upheld the acquittal of a male pizza delivery man charged with sexually assaulting the woman who had ordered the food (R. v. Patel, 2024 NSCA 40). In both cases, vaginal penetration was admitted. In both cases, the person charged with assault said he was lured into sexual activity by the complainant. What explains the different outcomes?

All lawyers practising criminal law are familiar with the principles set out in R. v. W. (D.), [1991] 1 S.C.R. 742, and the famous instructions set out by Justice Peter Cory in how to assess credibility to establish reasonable doubt:

First, if you believe the evidence of the accused, obviously you must acquit.

Second, if you do not believe the testimony of the accused but are left in reasonable doubt by it, you must acquit.

Third, even if you are not left in doubt by the evidence of the accused, you must ask yourself whether, on the basis of the evidence which you do accept, you are convinced beyond a reasonable doubt by that evidence of the guilt of the accused.

These instructions can lead some defence counsel into believing that establishing a contradiction between an accused and a complainant will be sufficient to see a person charged with sexual assault acquitted. On the other hand, the prosecution tends to rely upon the myth that in giving testimony in a sexual assault case, the female complainant should be believed.

When Jainish Sureshkuma Patel’s case concluded, the trial court judge decided that credibility was the critical factor, as it was in determining the Da Silva case in Ontario. In Nova Scotia, the trial judge found aspects of the testimony of the complainant, who was referred to as G.M., raised reasonable doubt in the mind of the trier of fact such that it would be improper to convict. The Nova Scotia appellate court reviewed the trial judge’s decision. It concluded that the trial judge looked for unresolved inconsistencies and dishonesty as factors that could raise reasonable doubt. Also, the Court of Appeal believed the trial judge was correct in using common sense, and human experience can be brought to bear in assessing credibility as long as one does not fall into the trap of applying stereotypical reasoning based on some perceived notion of what a person may say or do in similar situations (R. v. D.D.S., 2006 NSCA 34; R. v. Nyznik, 2017 ONSC 4392).

In the Ontario case of Da Silva, the trial judge examined the testimony of the accused and, applying his common sense, decided that the evidence proffered to refute the accusation of sexual assault was “patently absurd.” The Court of Appeal agreed that the approach taken by the trial judge in Patel was similar, although who was found to be unworthy of belief was different.

Both the Ontario and Nova Scotia appeal courts adhered to the warning set out in R. v. Kruk, 2024 SCC 7, that stated accused persons cannot be found guilty simply because they are disbelieved. Assessing credibility is not a “purely intellectual” exercise, and judges are entitled to rely on “the benefit of the intangible impact of conducting the trial.” The Ontario case allowed a trial judge to assess credibility even though the complainant appeared by video in a Zoom call.

At the heart of the similarity between the Patel case and the Da Silva case is that the Court of Appeal in two different provinces agrees that a trial judge is best positioned to decide credibility issues. Unless there is shown to be an error of law or in reasoning, considerable deference should be afforded to the trial judge’s finding.

The Da Silva appeal in Ontario challenged a trial judge’s conviction in a “he said/she said” case. The sentence was allowed to stand based on the deference given to the trial judge’s weighting of the evidence. The Patel Crown appeal against acquittal in Nova Scotia applied the same principles.

Although the results for the accused were the exact opposite, both cases show the importance of lawyers recognizing that clients giving testimony must come across as believable. The trial judge’s credibility assessment is unlikely to be overturned on 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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