Law360 Canada (August 20, 2026, 11:21 AM EDT) --

John L. Hill

A sexual assault conviction cannot survive when the trial judge’s assessment of credibility is built, even in part, on evidence that has been misunderstood or given a legally impermissible use.

That was the conclusion of the British Columbia Court of Appeal in R. v. Sandhu, 2026 BCCA 268, where the court set aside a sexual assault conviction and ordered a new trial after finding a series of errors in the trial judge’s treatment of Snapchat messages, prior consistent statements and the accused’s evidence.

The case arose from an encounter in a hotel room on Nov. 3, 2020. Arjun Aaron Singh Sandhu, the complainant and two friends had gone to the hotel to consume drugs and alcohol. Sandhu, along with the two friends, took Xanax, while the complainant consumed gin. When the two friends left the room briefly to get food for the complainant, Sandhu and the complainant were alone for approximately 20 to 30 minutes.

When the friends returned, the complainant was locked in the bathroom without her pants or underwear. She was distressed and appeared unable to breathe. The complainant testified that she had only fragmentary memories of what had occurred but remembered Sandhu engaging in sexual activity with her despite her telling him to stop. Sandhu denied sexually touching her.

The following day, the parties exchanged Snapchat messages. Sandhu expressly denied having intercourse with the complainant, saying (as quoted in the judgment), “we didn’t have sex at all” and “we didn’t even f***.” He subsequently wrote, “in the moment you really wanted it” and asked whether she regretted anything. The complainant responded that she did not remember anything and was “too f***ed up,” although she said she had some flashbacks and remembered that something had hurt.

The trial judge accepted the complainant’s evidence and rejected Sandhu’s. Among other things, she regarded the Snapchat exchange as a “clear admission” that sexual activity had occurred. She also relied on what she considered omissions from Sandhu’s statement to police, used the complainant’s Snapchat messages as evidence supporting the consistency and reliability of her memory, and described portions of the evidence as corroborative.

The Court of Appeal concluded that these findings could not stand.

The most significant error concerned the interpretation of the Snapchat exchange.

The trial judge regarded Sandhu’s statement that the complainant “really wanted it” as an admission of the sexual contact alleged by the Crown. She also considered his failure to respond to some of the complainant’s subsequent statements to be inculpatory.

The Court of Appeal disagreed.

Sandhu’s first two statements, that they had not had sex and had not even had intercourse, were unequivocal denials. His other statements were ambiguous and capable of innocent explanations. The statement that the complainant “really wanted it,” for example, could have referred either to sexual activity that occurred or to the complainant’s alleged proposition that the accused testified he rejected.

The court emphasized the stringent approach required when silence is treated as an adoptive admission. Citing R. v. Bridgman, 2017 ONCA 940, it noted that an admission can be inferred from silence only where the circumstances clearly call for a response. It also relied on R. v. Robinson, 2014 ONCA 63, which cautions trial judges to approach adoption by silence with great care. R. v. Scott, 2013 MBCA 7 was cited for the proposition that silence may have explanations other than acceptance of the truth of the statement.

Those principles were particularly important here because the complainant’s messages did not necessarily demand a response. She told the accused that she was fine, did not remember what happened, was not upset and that “its allll goooodddds.” In those circumstances, the Court of Appeal held that it was an error to treat the accused’s failure to respond as an admission.

There was another problem. The trial judge had misunderstood Sandhu’s evidence about the Snapchat message referring to someone saying, “stop acting like a virgin.” Sandhu had not testified that the statement referred to some other date or place. His evidence was simply that the complainant’s message did not expressly say that the statement had been made while the two of them were alone. The trial judge nevertheless understood him to have claimed that the message referred to another occasion and rejected his evidence on that basis.

The Court of Appeal described the resulting analysis as involving both misapprehension of the evidence and circular reasoning. The Snapchat messages were consistent with the complainant’s account, but they were also consistent with the accused’s account. They could not properly be treated as the “strongest corroborating and supporting evidence” of the Crown’s case.

The Appeal Court took a different view of another ground of appeal concerning Sandhu’s statement to police.

The trial judge had criticized the accused for failing to give police a “full, frank” account, including failing to tell them that the complainant had allegedly propositioned him and removed her pants.

The Court of Appeal held that Sandhu cannot be faulted merely for failing to provide information to police. The right to silence prevents a simple omission from being converted into adverse evidence.

The court relied on R. v. A.G., 2015 ONCA 159, as well as R. v. Chambers, [1990] 2 S.C.R. 1293, and R. v. Turcotte, 2005 SCC 50.

But the Court of Appeal ultimately rejected this particular ground of appeal.

The distinction was important. Sandhu had voluntarily given police an account concerning precisely the same subject matter as his trial testimony. He told police that “nothing intimate happened.” At trial, however, he said the complainant had propositioned him and removed her pants, although he maintained that he had rejected her advances.

That was capable of being treated as a material inconsistency, rather than merely an omission.

The court relied on R. v. Kiss, 2018 ONCA 184, which identifies important preconditions for using omissions in a pretrial statement to impeach credibility: the statement must concern the same subject as the trial testimony, the omission must be sufficiently material to be fairly relied upon, and the statement may be used only to assess credibility.

Thus, the Court of Appeal made an important distinction: an accused has no obligation to give police a complete account of his defence, but where an accused voluntarily gives a narrative on the very subject later addressed at trial, material differences between the two accounts may properly be considered in assessing credibility.

The Court of Appeal also found an error in the trial judge’s treatment of the complainant’s prior consistent Snapchat statements.

The general rule is that a prior consistent statement cannot simply be used to prove that the witness’s testimony is true. The court relied on R. v. Stirling, 2008 SCC 10 and R. v. Dinardo, 2008 SCC 24.

A prior consistent statement may, in appropriate circumstances, be used to rebut an allegation of recent fabrication, provide necessary narrative background, or assist in assessing the credibility and reliability of the witness. But, as R. v. Gill, 2018 BCCA 275 makes clear, it cannot be used as self-corroboration or on the reasoning that repetition makes an account more truthful.

Here, the trial judge relied on the Snapchat messages to conclude that the complainant “very strongly remembered” particular events despite her acknowledgement that she did not remember “a single thing” except for a few flashbacks.

The Court of Appeal concluded that the judge had effectively used the prior statement as “make-weight” evidence to bolster the complainant’s memory. That was impermissible.

This was not a harmless error. The complainant’s limited recollection was central to the prosecution’s case. The trial judge’s acceptance of the reliability of those fragments of memory was one of the pillars supporting the conviction.

The Court of Appeal identified yet another problem: the trial judge had misunderstood several aspects of the accused’s testimony.

For example, the judge characterized his evidence concerning the complainant’s underwear as inconsistent with the complainant’s evidence and the testimony of another witness, R.E. But the evidence was that the underwear was found on the bathroom floor after the complainant had gone into the bathroom. No evidence established that the underwear had been removed before she entered the bathroom. Consequently, the supposed “glaring external inconsistency” did not exist.

The judge also described the accused as minimizing the complainant’s condition in the video taken after the friends returned. But when Crown counsel repeatedly suggested that the complainant had been “freaking out” and appeared panicked, Sandhu agreed. He acknowledged that she was panicked, that she said she could not breathe and that the behaviour was apparent on the video.

The Court of Appeal concluded that the trial judge had not accurately characterized that testimony.

The court acknowledged that appellate courts must be extremely cautious before interfering with a trial judge’s assessment of credibility.

It cited R. v. R.P., 2012 SCC 22, quoting the principle that an appellate court cannot interfere with credibility findings merely because it might have assessed the evidence differently. The threshold is high.

But this was not simply an appellate court disagreeing with the trial judge’s credibility assessment.

The Court of Appeal found legal errors and material misapprehensions of the evidence that went directly to credibility. That was the central issue in the trial. The errors included treating ambiguous Snapchat messages and silence as an admission, improperly using a prior consistent statement to bolster the complainant’s evidence, and inaccurately describing important portions of the accused’s testimony.

The court also invoked R. v. G.G., 2026 SCC 12 and R. v. Berg, 2026 SCC 21, emphasizing that a conviction must rest on proof beyond a reasonable doubt. Acceptance of a complainant’s evidence, even if considered and reasoned, does not by itself satisfy that standard unless the trial judge has properly considered the conflicting evidence.

The errors therefore could not be dismissed as peripheral. As the Court of Appeal put it, the mistakes concerning the substance of Sandhu’s testimony affected the assessment of his credibility, which was a central issue at trial.

The conviction was accordingly set aside and a new trial ordered.

The decision is a useful reminder that appellate deference to credibility findings is substantial, but it is not absolute. A trial judge is entitled to believe one witness and reject another. What a judge cannot do is reach that conclusion by treating equivocal evidence as an admission, using prior consistent statements as substantive corroboration, or rejecting an accused’s testimony based on evidence the judge has misunderstood.

In Sandhu, the problem was not that the trial judge chose the wrong witness to believe. It was that the path taken to get there was legally and factually incorrect.

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). Contact him at johnlornehill@hotmail.com.

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