Law360 Canada (June 9, 2026, 10:27 AM EDT) --

John L. Hill

The adage that “the devil is in the details” may remind criminal defence counsel that a successful appeal may hinge on examining inferences rather than hard facts. A Saskatchewan man, Jeffrey Leonard Stark, was convicted by a jury of unlawfully confining and sexually assaulting a female complainant. He appealed his conviction. The appeal in R. v. Stark, 2026 SKCA 48 centred on the trial judge’s instructions to the jury rather than on denying the facts as alleged.

According to an agreed statement of facts, the complainant was at Stark’s residence between Nov. 15 and 18, 2022. The Crown alleged that Stark confined the complainant against her will in the suite he was renting. During the confinement, he forced her to ingest drugs, rendering her unconscious. On the final day of the confinement, he sexually assaulted her. The complainant testified that she eventually escaped when Stark left the suite door unlocked. It was no surprise that a jury ultimately convicted Stark of unlawful confinement and assault.

A major issue during the trial, and the first ground for appeal, arose when the complainant appeared to be under the influence of drugs while giving evidence. Before she testified, the jury heard from her mother that the complainant struggled with drug addiction and was believed to be actively using drugs. The trial judge expressed concern and instructed the prosecutor to ensure the complainant was capable of testifying. When the complainant took the stand, she testified that she had last used methamphetamine and fentanyl about a week earlier. However, as her testimony progressed, it became evident that she spoke unusually quickly, blinked slowly, leaned forward in her seat and her speech appeared slightly slurred. Defence counsel observed that she seemed increasingly sleepy and might fall asleep.

After discussing the matter outside the jury’s presence, the judge, Crown counsel and defence counsel concluded that the complainant appeared intoxicated. The judge ruled that she should not continue testifying in that condition and adjourned her testimony until later that day. When the jury returned, they were informed that the complainant’s testimony would resume later and that another witness would testify in the meantime. During the afternoon session, the complainant appeared much improved and resumed testifying. She denied taking drugs or medications that morning and attributed her condition to anxiety and to becoming ill before court after drinking a smoothie she had “drugged.”

Notably, neither Crown nor defence counsel directly asked her to explain the behaviour that had earlier caused concern. The Crown did not address the incident in closing submissions. Defence counsel highlighted the incident in the closing argument, suggesting it raised concerns about her credibility and reliability. The trial judge gave only general instructions on assessing witness demeanour and credibility and did not specifically address the possibility that the complainant had testified while intoxicated.

Another issue concerned police efforts to photograph the interior of Stark’s suite. After his arrest, Stark gave a warning statement to the police. He signed a consent form authorizing the police to photograph the interior of his suite. Police arranged a time to search, but Stark was unavailable. Officers made several attempts to reschedule but were unable to contact him. Police understood that Stark could withdraw his consent at any time and therefore would not enter the suite in his absence. Because they could not complete the search with his cooperation and never obtained a search warrant, no interior search of the suite was ultimately conducted. The intended use of this evidence formed a second ground for appeal.

The appellate court rejected the first ground of appeal but allowed the second, ultimately ordering a new trial.

The Appeal Court found no error regarding the complainant’s apparent intoxication. Stark argued that the trial judge should have specifically instructed the jury about the complainant’s apparent intoxication and explained why her testimony had been interrupted. She had been “stood down.”

The court disagreed. It reasoned that there was no proof the complainant was intoxicated; the concerns were based solely on observations made by the judge and counsel outside the jury’s presence. A trial judge is not required to comment on a witness’s demeanour or express opinions about credibility. Had the judge told the jury she believed the complainant was intoxicated, she would effectively have told the jury she disbelieved the complainant’s denial of drug use, which would improperly intrude on the jury’s role as factfinder. Defence counsel was free to argue the issue to the jury and did so extensively in closing submissions. The jury received detailed and proper instructions on assessing credibility, including directions to consider a witness’s manner of testifying, memory, consistency, responsiveness and reliability.

Applying the functional approach endorsed by the Supreme Court in R. v. B.F., 2025 SCC 41, the court concluded that the jury was adequately equipped to assess the complainant’s credibility and reliability. Accordingly, there was no legal error in the charge on this issue.

But there was an error regarding Stark’s consent to search and subsequent non-cooperation. The court reached the opposite conclusion on the evidence that Stark initially consented to police photographing his residence. Police attended at the agreed time, but Stark was not present. He never returned the officer’s calls. As a result, the search was never completed. The trial judge instructed the jury that it was for them to decide whether any “reliable inferences” could be drawn from those facts. The Court of Appeal held that this instruction was legally flawed.

The court emphasized that Stark had a constitutional right under s. 8 of the Charter to refuse a search or withdraw consent. An accused person’s exercise of a constitutional right cannot be used as evidence of guilt. The judge correctly told the jury that Stark had no obligation to permit a search and could revoke his consent at any time. However, by telling jurors that they could draw whatever inferences they thought appropriate from Stark’s conduct, the judge left open the possibility that they could infer that Stark had “something to hide,” that he had frustrated the search because he was guilty, or that his conduct reflected a guilty conscience. Such an inference was legally impermissible.

The court relied heavily on Supreme Court decisions, including R. v. Chambers, [1990] 2 S.C.R. 1293 (SCC); R. v. Turcotte, 2005 SCC 50; and R. v. Calnen, 2019 SCC 6.

These cases establish that when evidence could invite an impermissible inference of guilt from the exercise of legal rights, the jury must receive a limiting instruction explaining the proper and improper uses of that evidence. The court found that the judge should have specifically instructed the jury that no inference of guilt or guilty conscience could be drawn from Stark’s decision not to facilitate the search. Instead, the charge left the issue entirely open.

The court concluded that the evidence was admissible as part of the narrative and because it related to Stark’s defence theory. The jury could consider the evidence for limited purposes, but it could not legally use it to establish guilt. Because the charge permitted that impermissible reasoning, it constituted an error of law. Accordingly, the court allowed the appeal under s. 686(1)(a)(ii) of the Criminal Code, quashed Stark’s convictions and ordered a new trial.

The Saskatchewan Court of Appeal held that the jury was properly instructed on how to assess the complainant’s credibility, despite her apparent impairment during her testimony. However, the trial judge committed a reversible legal error by allowing the jury to draw unspecified inferences from Stark’s failure to facilitate a consensual police search, thereby risking an unconstitutional inference of guilt from his exercise of Charter rights. That error required that the convictions be set aside and a new trial be ordered.

John L. Hill practised and taught prison law until his retirement. He holds a JD from Queen’s and an LLM 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) and The Rest of the (True Crime) Story (AOS Publishing). His most recent book, Acts of Darkness, (Durvile & UpRoute) was shortlisted as one of five nominees for the Crime Writers of Canada’s Brass Knuckles Award for Best Nonfiction Crime Book. Contact him at johnlornehill@hotmail.com.

The opinions expressed are those of the author(s) and do not necessarily reflect the views of the author’s firm, its clients, Law360 Canada, LexisNexis Canada or any of its or their respective affiliates. This article is for general information purposes and is not intended to be and should not be taken as legal advice.

Interested in writing for us? To learn more about how you can add your voice to Law360 Canada, contact Analysis Editor Peter Carter at peter.carter@lexisnexis.ca or call 647-776-6740.