The criminal justice system can be daunting, but you don’t need to go through it alone. Our Criminal lawyers are here to guide you every step of the way.
Contact Our Firm
The BC Court of Appeal Overturns a Sexual Assault Conviction in R. v. Sandhu
Joseph A. Neuberger, Michael Bury and Mariya Protsenko, Neuberger & Partners LLP, Criminal Lawyers Toronto
IN BRIEF · The BC Court of Appeal set aside a sexual assault conviction and ordered a new trial after finding the trial judge’s credibility findings were undermined by circular reasoning over an ambiguous text exchange, an improper inference from silence, and the misuse of a complainant’s prior consistent statement.
On June 17, 2026, the British Columbia Court of Appeal released its reasons in R. v. Sandhu, 2026 BCCA 268, setting aside a sex assault conviction and ordering a new trial. The decision is a useful study in how appellate courts scrutinize a trial judge’s credibility findings — not by second-guessing who they believed, but by examining how they got there.
01 • THE BACKSTORY
The case arose from events on November 3, 2020. The complainant, the appellant (Arjun Sandhu), and two friends, R.E. and U.K., were at a hotel relaxing and using drugs and alcohol — the men took Xanax, the complainant drank gin. When the complainant’s parents began trying to reach her, she grew anxious, and R.E. and U.K. stepped out briefly to get her food. When they returned, they found her locked in the bathroom, without pants or underwear.
The trial judge concluded that Sandhu sexually assaulted the complainant during that short window alone together and convicted him on a single count of sexual assault. Sandhu appealed, arguing the trial judge’s credibility analysis — the foundation of the conviction — was infected by several legal errors.
The Court of Appeal agreed, identifying four distinct problems with the trial judge’s reasoning.
02 • PROBLEM ONE: READING AN “ADMISSION” INTO AMBIGUOUS TEXTS
The day after the incident, the complainant and Sandhu exchanged Snapchat messages. Only a partial record survived. In it, the complainant asked if they were “100% sure” they hadn’t had sex; Sandhu said they hadn’t. He then asked if she was okay, noted that “in the moment you really wanted it,” and asked if she regretted anything. She replied that she didn’t remember much but felt fine and wasn’t upset.
The trial judge treated this exchange — and particularly Sandhu’s failure to respond to certain statements — as a “clear admission” that something sexual had occurred, calling it the Crown’s “strongest corroborating evidence.”
The Court of Appeal disagreed. Justice Willcock, writing for a unanimous panel, found this reasoning circular: the judge concluded Sandhu’s messages proved guilt partly because they didn’t mention the complainant propositioning him — but that omission only mattered if you’d already rejected his evidence that she had propositioned him. That’s reasoning in a circle, not an inference.
“An admission can’t simply be inferred from silence unless the circumstances clearly call out for a reply.”
The Court also leaned on this well-established evidentiary principle. Citing R. v. Bridgman, 2017 ONCA 940, the Court noted that receiving a message doesn’t itself constitute adopting its contents. Here, the complainant’s own messages suggested closure, not confrontation — she said she was “fine,” “not upset with anything at all,” and that things were “allll goooodddds.” Treating Sandhu’s silence in the face of those messages as guilt was, in the Court’s words, an error made without the “great care” the law requires before drawing adverse inferences from silence.
Compounding the problem, the trial judge appeared to have misread the trial transcript itself — mistakenly believing Sandhu testified the “stop acting like a virgin” comment referred to a different time or place, when he hadn’t said that at all. The judge also misdated one of the messages, treating a reply sent a full day later as if it were an evasive non-answer to the prior night’s conversation.
03 • PROBLEM TWO: POLICE STATEMENT OMISSIONS — A NARROWER WIN FOR THE CROWN
Sandhu argued the trial judge effectively punished him for exercising his right to silence by treating gaps in his 2022 police statement as evidence against him — specifically, his failure to mention that the complainant had initiated intimacy and removed her own pants.
This is genuinely tricky territory. Canadian law is clear that an accused cannot be penalized merely for not telling police everything (R. v. Chambers; R. v. Turcotte, 2005 SCC 50). But the Court of Appeal sided with the Crown on this particular issue, drawing a careful distinction: there’s a difference between staying silent and giving an affirmatively incomplete account on the same topic you later testify about in detail. Sandhu didn’t simply omit details — he told police “nothing intimate happened,” then testified at trial that the complainant had, in fact, propositioned him. Applying the framework from R. v. Kiss, 2018 ONCA 184, the Court held this was a material inconsistency the trial judge was entitled to weigh, not a punishment for silence.
It’s a fine line, and the Court drew it carefully: if Sandhu had simply said nothing about intimacy to police, no inference could follow. But having affirmatively denied it, and then testified otherwise, was fair game.
04 • PROBLEM THREE: MISUSING PRIOR CONSISTENT STATEMENTS
This is where the analysis gets more technical — and more consequential. The general rule in Canadian evidence law is that a witness’s earlier statements that match their trial testimony (“prior consistent statements”) are usually not admissible to prove the statement is true, because repeating something doesn’t make it more credible. There are narrow exceptions, including using such statements to assess the timing and context of when they were made — but not as a backdoor way of corroborating that “she said the same thing before, so it must be true.”
The trial judge used the complainant’s Snapchat messages (in which she said she recalled someone saying “stop acting like a virgin”) as evidence that her memory was reliable on that point, despite her own testimony that she didn’t remember “a single thing.” The Court of Appeal found this crossed the line — it was using the prior statement as “make-weight” for the truth of her account, which is precisely what the prior consistent statement rule prohibits. Since the complainant’s specific, limited recollections were one of the central pillars of the conviction, this error directly undermined the credibility finding the entire case rested on.
05 • PROBLEM FOUR: CORROBORATION THAT WASN’T
The appellant also argued the trial judge wrongly treated certain peripheral evidence — a video of the complainant in visible distress, and confirmatory testimony from R.E. — as corroboration of the assault itself. On this point, the Court of Appeal disagreed with the appellant: this evidence corroborated that the complainant was panicked, not that she’d been assaulted, and nobody at trial suggested otherwise. This was the one ground on which the Court found no reversible error.
06 • WHY THE CONVICTION COULDN’T STAND
Appellate courts are famously deferential to trial-level credibility findings — the Supreme Court of Canada has repeatedly said such findings can’t be disturbed unless they’re unsupportable “on any reasonable view of the evidence” (R. v. R.P., 2012 SCC 22). The Court of Appeal didn’t lose sight of that principle. But it concluded the credibility assessment here wasn’t merely debatable — it was built on a misreading of the Snapchat exchange, a misremembering of the appellant’s own testimony, an improper inferential use of silence, and an improper use of a prior consistent statement, all converging on the two central credibility findings (disbelieving the appellant, believing the complainant) that decided the case.
As the Court put it, plainly: a conviction needs proof beyond a reasonable doubt — not just a “considered and reasoned acceptance” of one witness’s evidence (citing the recent SCC decision in R. v. Berg, 2026 SCC 21). When the reasoning supporting that acceptance is compromised at multiple points, the conviction can’t be salvaged just because the trial judge ultimately believed the complainant.
07 • THE BIGGER PICTURE
Sandhu is a reminder that in sexual assault trials — where outcomes frequently turn entirely on competing credibility assessments — the path a judge takes to a credibility finding matters as much as the destination. Misapprehending a key exhibit, drawing an inference from silence without the required care, or quietly using a prior consistent statement for a prohibited purpose can each, individually, be enough to undo a verdict — especially when they compound.
The case also illustrates a tension that recurs across sexual assault appeals: courts must guard against an accused’s silence or incomplete disclosure being weaponized against them, while still permitting genuine inconsistencies between a police statement and trial testimony to inform credibility. The Court of Appeal’s split decision on those two related issues — finding error in how Snapchat silence was used, but no error in how the police statement omission was used — shows just how fact-specific that line can be.
A new trial has been ordered. Given the publication ban protecting the complainant’s identity, and the procedural posture of the case, it remains to be seen whether the matter will proceed again or be resolved another way — but for now, the conviction is gone, and the case starts over.
This post discusses publicly available appellate reasons for judgment. A publication ban under s. 486.4 of the Criminal Code remains in effect and restricts identification of the complainant; this summary respects that ban by using the case citation only. This article is for general informational purposes and does not constitute legal advice. Neuberger & Partners LLP, Sex Assault Defence Lawyers Toronto.
