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On November 16, 2021, the Ontario Court of Appeal made two important findings in their decision in R. v C.G., 2021 ONCA 809. This was a case where C.B. was charged with sexual assault of his daughter’s friend, during circumstances that defined logic and gave rise to a defence based on lack of opportunity, and implausibility – in that the alleged acts to have occurred in his daughter’s bedroom when the complainant was literally sleeping beside C.G.’s daughter, was such high risk and would not have occurred without his daughter waking up or other detection of the alleged sex assault.
The trial court found that the defence witnesses that included his daughter and wife, colluded and therefore discounted their evidence in finding C.G. guilty. The Court of Appeal made the first important distinction between intentional collusion and unintentional collusion among witnesses. Second, the Court addressed the inappropriate myth that sex offenders are more likely than most to take risks.
There are two types of collusion, intentional collusion is the more problematic of the two. This involves two or more witnesses getting together and deciding what exactly they will be saying when they are questioned under oath.[1] This behaviour unmistakably results in the witnesses’ credibility being undermined.
Conversely, unintentional collusion, arises when a witness hears another witness’ recollection of events. This may alter witness testimony; however, this is not necessarily the case. Even after listening to another witness’ recollection, this may not impact the truth of one’s own testimony.[2] Critically, while intentional collusion affects credibility, unintentional collusion only affects the reliability of the evidence.[3] Justice Nordheimer states that the term inadvertent tainting would be more appropriate to describe the phenomena of unintentional collusion, since the term collusion has connotations relating to credibility.[4]
The Court also found that the trial judge erred by not considering undisputed evidence that supported the defense position.[5] The witnesses’ evidence may have been unaffected by the unintentional collusion.[6] A court cannot simply assume that within a family structure, unintentional collusion will result in the evidence being less credible or less reliable. Often in
Furthermore, The Court found that the trial judge made use of an inappropriate stereotype regarding actual sex offenders. One of the defense submissions was that the accused did not have an opportunity to commit the offenses he was charged with.[7] The trial judge’s decisions stated that the accused would likely be willing to take that sort of risk, that sex offenders take those sorts of risks all the time, and that it is the nature of this type of offense.[8] The Court of Appeal found this reasoning highly problematic. Whether the trial judge considered this to be a universal truth, commonplace, or whether he made that finding based on his own experience, such a finding could not be used to reject a defence.[9] The trial judge inappropriately relied upon myth- based reasoning in assuming that all person who want to commit a sex assault of a young person would automatically take such high risk. This is important as often in sexual assault allegations of a young person against a parent or parent of a friend, will result in a defence based on a firm denial that the allegation occurred and that the circumstances in which the alleged sex assault occurred are implausibly and of such high risk, the accused would not have done the alleged acts.
Where an accused cannot assert motive to fabricate, a Court must be careful to not reject such a defence out of hand. A court can reject a defence based on plausibility and/or high risk, but there must be a reasoned basis without reliance upon myths and stereotypes. Further, in this case, there was independent evidence supporting the denial and giving credibility to the implausibility of the allegations to have ever occurred.
[1] R. v. C.G., 2021 ONCA 809 at para 28.
[2] Ibid.
[3] Ibid at para 30.
[4] Ibid.
[5] Ibid at para 35.
[6] Ibid at para 32.
[7] Ibid at para 45.
[8] Ibid.
[9] Ibid at para 46.
