Court of Appeal on Credibility & Sexual Assault - R v Ryon
Mr. Ryon was convicted at trial of sexual assault by a judge alone and sentenced to 30 months’ imprisonment. Mr. Ryon appealed his conviction on June 6, 2018 and the Alberta Court of Appeal rendered judgment on January 31, 2019 allowing Mr. Ryon’s appeal and ordering a new trial.
The parties met at a music festival following which they began to engage consensually in sexual touching/fondling, kissing, and cunnilingus. When the appellant attempted sexual intercourse, the complainant did not want to, and the appellant accordingly stopped engaging and fell asleep. Upon awaking, the parties engaged in further touching and when Mr. Ryon again attempted to have intercourse. This is where the appellant’s and complainant’s stories diverge. The complainant testified that she did not give consent and that Mr. Ryon forced penetration briefly. Mr. Ryon testified that he did not penetrate her and stopped engaging when she said ‘no’. (paragraphs 2-3)
Before having parted ways, Mr. Ryon apologized. The complainant understood this as being sorry for the penetration against her consent, but Mr. Ryon testified this apology was for misunderstanding her signals in thinking she now wanted to engage in intercourse but denied actually having any intercourse. (paragraph 5)
The issue at trial was whether intercourse occurred. The only evidence was Mr. Ryon’s statement to police. Further, the complainant testified to having taken LSD and MDMA but that it did not affect her memory and despite the drug being a hallucinogenic, she did not see things that weren’t there.
Mr. Ryon appealed on the basis of an error in law for the failure of the trial judge to apply a Regina and W.(D.) analysis. Mr. Ryon also appealed on the basis of an impermissible use made of the complainant’s prior consistent statement and an error in law in relation to an application of Regina and Lifchus.
Issues for the Court
- “Whether the trial judge erred in law in failing to assess credibility in accordance with W.(D.)?”
- What is required of trial judges in properly charging or instructing the jury of the standard of reasonable doubt in assessing credibility?
Mr. Ryon’s appeal to the Alberta Court of Appeal was allowed and a new trial was ordered.
Justice Martin wrote the court’s decision. The ABCA aimed to address issues that have arisen from W.(D.) with respect to the verbatim and uncontextualized jury instructions that may tend to confuse jurors. Concerns regarding jury charges that have arisen post W.(D.) include the applicable evidence the instruction is in relation to, the understanding of reasonable doubt as it applies to multiple charges/offences, how evidence that is disbelieved can still give rise to reasonable doubt, that jurors are not to engage in attempting to resolve conflicting evidence, and that the accused’s evidence is often perceived as being required to be assessed in isolation from the rest of the evidence available. The court proceeded to address each concern in their judgment.
Evidence to which the W.(D.) instruction applies:
The first prong of a W.(D.) instruction directs the jury to acquit should they believe the evidence of the accused.
The court disagreed with the instruction in that it is too narrow by referring only to “the evidence of the accused” when it ought to refer or relate to all exculpatory evidence, regardless of who led it. The instruction is at the same time too broad in that it is not meant to apply to inculpatory or neutral evidence and is only meant to be applicable to exculpatory evidence. For example the jury may believe certain evidence of the accused such as his/her history (for example age, occupation, activities on the day of the offence) but may not believe the accused’s exculpatory evidence relating to their involvement (or lack of) in the offence. The instruction should be alive to making this distinction and referring only to the exculpatory evidence as being applicable.
Another distinction should be made to the jury that where an applicable defence includes both subjective and objective standards, the accused is required to raise a reasonable doubt as to both components, not solely to the subjective aspect. In other words, an accused may not be acquitted merely because their testimony is believed if the jury finds that objectively their actions were unreasonable.
Lastly, it must be made clear that the reasonable doubt embedded in the W.(D.) instruction is not applicable to defences where the burden lies on the accused.
Where there are multiple charges or included offences:
The trial judge ought to instruct the jury that even if they believe the exculpatory evidence; it may not apply to included or additional offences.
How evidence that is disbelieved can give rise to a reasonable doubt:
The second prong of W.(D.) directs the jury to acquit if they do not believe the testimony of the accused but are still left in reasonable doubt by it.
The court here is concerned that the instruction is not sufficient to help a lay person understand the need to consider the possibility that something they don’t believe, may still be true. The jury should understand that they may accept the exculpatory evidence as true, they may dismiss it as untrue, or a third option exists whereby they may not know or be unsure as to whether it is true or not. This third option raises a reasonable doubt and ought to be to the benefit of the accused.
Jurors may not understand that a trial is not a credibility contest:
The jury should be instructed that they are not required to choose between the parties’ versions of the events. Similarly to above, should they be unclear or conflicted as to which story is true, this is indicative of reasonable doubt.
Jurors may be given the impression that the evidence of the accused should be evaluated first in isolation from other evidence:
A jury should not be instructed or given the impression it is correct to consider the exculpatory evidence of the accused first and in isolation from the remaining evidence. This may lead to situations whereby other incriminating evidence is never considered. The exculpatory evidence must be considered in the context of all available evidence as a whole. In other words, W.(D.) should not be interpreted as directing how a jury conducts their deliberation or in what order they decide to consider evidence.
Therefore, in revisiting W.(D.) as a whole in relation to the concerns discussed above; the instruction should be modified. While maintaining flexibility in the instruction to be appropriate for the case at bar, courts should identify the applicable exculpatory evidence for the instruction. Juries need to be informed that it only applies to exculpatory evidence (except reverse onus defences) regardless of which party led the evidence. Next, the charge ought to inform jurors that the crown always retains the burden of proof beyond a reasonable doubt. At no point is the accused required to prove their innocence (again with the exception of reverse onus defences such as section 16 of the Criminal Code, not criminally responsible by way of mental disorder). Jurors ought to be informed that should they believe exculpatory evidence or disbelieve crown’s version, they must acquit. They should also be instructed that while they may try to resolve conflicting evidence, they are not required to do so or ‘choose a side’ so to speak, and should they be left confused or at a loss to which version is true, they must acquit. In the same vein, even if they reject exculpatory evidence, it does not automatically require or entitle them to take crown’s version as true. In such cases, the jury must consider if the evidence they accept is sufficient to believe beyond a reasonable doubt the accused is guilty. In other words, the jury must understand that disbelief of exculpatory evidence does not operate to automatically result in the accused’s guilt. Lastly, the jury ought to be instructed that reasonable doubt in relation to one charge does not acquit the accused of all charges.
Of importance is that such information is relayed in an understandable way to the jury based on the case at bar because as is evident with W.(D.), using a verbatim approach is not sufficient and led to the issues this decision is attempting to clarify.
Applying the analysis to the case of Mr. Ryon, the court considered that the trial judge accepted the complainant’s version of the events. He formed this decision due to the complainant’s abrupt and angry departure that was so evident as to cause Mr. Ryon to apologize. Additionally, given the fact the parties engaged in consensual sexual activities prior, the only reason for it to have ended in such a way is because Mr. Ryon went beyond the complainant’s limits and consent.
The court found this line of reasoning to be in error as the method of the complainant’s departure could have supported either version of events – either that she left because he forced intercourse against her consent or that she left because she was angry Mr. Ryon attempted to engage in intercourse again after being clear the first time she did not want to. It was thus required of the judge to explore and state why Mr. Ryon’s version was not true and does not raise reasonable doubt, despite it being an equally possible explanation.
Generally, it would suffice that through the judge explaining their reasons for accepting one version, it becomes obvious or implied as to why the other version is not true or accurate. However, in these circumstances, where the parties stories match except for this one event and there was nothing else to corroborate one parties story over the other or no obvious reason why one would not be true, more is needed to flesh out the disbelief or inaccuracy of one version.
In this case, Mr. Ryon was cooperative with police, provided DNA, his testimony was not suspect, and despite having used nitrous oxide earlier in the evening, it was only a momentary high with no lasting effect. On the other hand, the complainant’s testimony was questioned on reliability as she had consumed LSD and MDMA and may not have been sober or in a position to accurately remember the events due to the hallucinogenic effects of the drugs.
Thus, based on the facts/evidence, it was not sufficient to accept one version and thereby immediately reject the other.
Justice Watson wrote a minority decision, concurring in the result. Justice Watson’s assessment of the trial judge’s findings was that it was a decision based on credibility and not on reliability. By rejecting Mr. Ryon’s contention that they discussed a condom, that could not result in support of the complainant’s version that intercourse occurred (paragraph 91). Additionally, the judge’s finding of whether or not Mr. Zora’s recollection of the complainant kissing him before leaving was accurate, again could not serve to confirm the complainant’s version of events. The trial judge also used what Justice Watson characterized as “after fact conduct” but in an improper fashion as the explanation for the apology was neutral and could have supported either party’s version. Another example was in using a statement that could be characterized as “false premature denial” made by Mr. Ryon to which the meaning was not so obvious, to then suggest it was more likely that it indeed was false premature denial.
Justice Watson was thus of the opinion a new trial was required.
The decision was well reasoned and needed to bring greater clarity to lay jury persons as to the exact intricacies and understanding they are to have to sufficiently make such a serious decision as to someone’s guilt. This is especially so on an area of debate and confusion even amongst lawyers and judges on how to apply W.(D.) and what to make of conflicting stories. What I found especially enlightening and clarifying was the understanding that is often lacking for juries that should you not know which story to believe and are conflicted, that this is indicative of reasonable doubt and ought to be to the advantage of the accused through an acquittal.
However, Justice Martin may have gone too far in suggesting trial judges explain too many potential W.(D.) situations which may serve to further muddy the waters for the jury.