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Joseph A. Neuberger, Neuberger & Partners LLP
Two similar, though not identical, Crown appeals of sexual assault acquittals were heard in the Nova Scotia and Alberta Courts of Appeal in January 2021 with two very different outcomes.
In R. v. Nelson, 2021 NSCA 11, the Crown unsuccessfully argued that “the trial judge erred in law by making findings of fact which were not supported by the evidence when ruling on the credibility of the complainant.”
In R. v. A.S.P., 2021 ABCA 10, the Crown successfully argued that “the trial judge failed to give legal effect to facts as found by requiring the Crown to prove additional facts or considering legally irrelevant matters.”
In Nelson, under the heading ” Findings of fact not supported by the evidence,” at paragraphs 16 and 17 the Court noted the limitations on Crown appeals when related to credibility assessments. It was described as follows:
“Appellate courts must defer to a trial judge’s factual findings, except on conviction appeals where, in addition to legal errors, a verdict can be overturned if it is unreasonable or unsupported by the evidence.
Crown appeals from acquittals are a different breed. They are limited to questions of law alone. Courts must decline Crown invitations to provide appellate relief for what amounts to a claim of an unreasonable acquittal.”
The main issue of dispute in Nelson was whether inconsistencies in the complainant’s evidence were significant where the Crown maintained the “core of the allegation” was unshaken. Citing Justice Cromwell in R. v. J.M.H., 2011 SCC 45, this ground of appeal was rejected on the basis that “an acquittal is not a finding of fact, but a conclusion that the standard of persuasion of beyond a reasonable doubt has not been met.”
The Nova Scotia Court of Appeal highlighted a portion of the trial judge’s reasons discussing the weight assigned to inconsistencies in a complainant’s evidence:
“If inconsistencies can be routinely dismissed as inconsequential, there’s little more that an accused person can do… To find someone guilty of a criminal offence, there has to be a reliable narrative. This narrative is so uncertain that it raises reasonable doubt as to the issue of consent.”
In contrast, in A.S.P., the Alberta Court of Appeal agreed with the Crown in finding “a fundamental inconsistency in the oral reasons for decision regarding the assessment of the complainant’s evidence such that this Court cannot understand the pathway to the trial judge’s conclusion to acquit.”
The key area of dispute in this case was whether, after finding the complainant to be “credible” but having concern about the lack of detail in her description of the assault, the trial judge misspoke in his reasons for acquittal. The inconsistency in this appeal was not an issue of the complainant’s evidence but of the trial judge’s own credibility findings.
In summary, after finding the complainant credible, the trial judge stated: “On the limited evidence given, I am not able to properly assess her credibility to recall and recount the facts.” (Emphasis added.)
The Respondent argued that the judge had meant “reliability” and that it was consistent with his concerns about the lack of detail in the complainant’s description of the alleged assault. Ultimately, the Court of Appeal was unable to determine the pathway to acquittal and ruled that the deficiencies in the judge’s reasons prevented meaningful appellate review.
In A.S.P., the Alberta Court of Appeal also commented that the trial judge’s failure to specifically address the first and second steps of the W.(D.) assessment contributed to confusion about why he was left with a reasonable doubt. An absence of these first two prongs is normally only the subject of appellate scrutiny when there is a conviction, as they are designed to ensure the burden of proof remains on the Crown.
Though the grounds of appeal were similar in Nelson and A.S.P., these two cases highlight the difference between a dispute over credibility assessments, which are not available on Crown appeals, and a situation in which the trial judge’s reasons are internally contradictory or lack sufficient detail to understand the basis of the judge’s conclusion. In both trials the judge delivered only oral reasons for their decisions. A written decision in both cases would likely have resulted in a more fulsome explanation of how the trial judges reached their conclusions.
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