Credibility & Sexual Assault - R v SMC
SMC was convicted at trial of sexual assault, sexual interference, and invitation to sexual touching. SMC appealed his conviction on January 15, 2020 and the Alberta Court of Appeal rendered judgment on January 21, 2020 dismissing the appeal.
The trial judge identified several discrepancies in the complainant’s statements. Notably, how many occurrences of fellatio she was forced to perform on the Appellant. They ranged from twenty or thirty times, to nine times, to ninety times.
The complainant’s mother testified that the complainant would watch porn (despite being only 9 or 10 years old) and would falsely accuse the mother of neglect.
The Appellant denied the allegations.
The trial judge completed a Regina and W.(D.) analysis and found the Appellant to not be truthful. For example, she reasoned that because SMC was an alcoholic at the time, he would not likely have good memory of the events. In relation to the first prong of W.(D.), SMC’s rejection of the allegations was disbelieved.
During the trial judge’s analysis of the second prong of W.(D.), she found the complainant overall to be trustworthy. However, upon examination of a specific allegation relating to a bathroom incident, she determined it was not sufficiently reliable. As such, the trial judge made determinations of evidence to which she accepted, and other evidence to which she did not accept. She did not let the occurrences that she did not accept influence her finding on the credibility of the incident/evidence she did accept.
Upon the third prong of W.(D.) and taking the evidence as a whole into consideration, the trial judge determined she was convinced beyond a reasonable doubt as to a specific incident.
SMC appealed on the grounds that the trial judge did not complete a W.(D.) analysis properly and was overly harsh and critical of his evidence as opposed to the complainants which resulted in a reverse onus.
Issues for the Court
- Was the W.(D.) framework properly applied? What is the new W.(D.) framework as it has been revised by this court?
- Was the Appellant’s evidence unfairly scrutinized?
SMC’s appeal to the Alberta Court of Appeal was dismissed.
The court held that the first two prongs of W.(D.) must not be analyzed in isolation from the whole of the evidence presented.
Should the court be unable to decide between competing versions of events or how to resolve conflicting evidence, it must acquit.
The court refined and expanded on W.(D.) in Regina and Ryon and Regina and Achuil. The four-part framework is as follows:
- “The burden of proof is on the crown to establish the accused’s guilt beyond a reasonable doubt and that burden remains on the crown so that the accused person is never required to prove his innocence, or disprove any of the evidence led by the crown (subject to the caveat that this does not apply to defences, such as that found in s 16 of the Criminal Code, where the onus rests with the proponent of the defence);
- In that context, if the accused’s evidence denying complicity or guilt (or any other exculpatory evidence to that effect) is believed, or even if not believed still leaves the jury with a reasonable doubt that it may be true, then the jury is required to acquit (again subject to defences with additional elements such as an objective component);
- While the jury should attempt to resolve conflicting evidence bearing on the guilt or innocence of the accused, a trial is not a credibility contest requiring them to decide that one of the conflicting versions is true. If, after careful consideration of all the evidence, the jury is unable to decide whom to believe, they must acquit; and
- Even if the jury completely rejects the accused’s evidence (or where applicable, other exculpatory evidence), they may not simply assume the crown’s version of events must be true. Rather, they must carefully assess the evidence they do believe and decide whether that evidence persuades them beyond a reasonable doubt that the accused is guilty. Mere rejection of the accused’s evidence (or where applicable, other exculpatory evidence) cannot be taken as proof of the accused’s guilt.”
The Appellant made no argument supporting his assertion that W.(D.) was improperly applied.
The court found that the trial judge’s analysis met the above framework and accordingly there was no error.
In relation to the Appellant’s claims that his evidence was unfairly scrutinized as opposed to the complainant’s, the court held that a trial judge is entitled to give as much or little weight to the evidence and inconsistencies as they see fit and as such may believe “all, part or none of a witness’ evidence”. SMC would have had to identify something in the trial judgment’s reasons that would reveal different standards used to assess his and the complainant’s credibility.
This case does not appear to add anything in terms of the W.(D.) analysis except to confirm and assess a trial judge’s decision based on the revised framework from Ryon and Achuil.
The trial judge in this case did appear to make a careful and well-reasoned decision following W.(D.) by looking at each incident/allegation in the context of the whole while at the same time not letting her determination of the credibility of the complainant on certain incidents to affect her determination on other incidents. As a result, it led the trial judge to only accept one incident that she determined had sufficient credibility and reliability as opposed to the 7 other allegations she disbelieved.
One may wonder or tend to conclude that if someone is deemed to be lying about one incident, that they must be lying about them all. This feels like a common-sensical notion to human nature; however, the trial judge was correct in identifying things such as trauma, age, and poor memory that may impact someone’s credibility or reliability. Much attention and care ought to be had in deciphering between allegations to which the refined analysis helps to clarify and to which the trial judge in this case actually did.