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In December 2024 the Alberta Court of Appeal granted a retrial in R v SLB, 2024 ABCA 412 on the bases that the trial judge reached an unreasonable verdict without any explanation that provided a meaningful basis for appellate review; failed to consider the inconsistencies between the complainant’s testimony and those of a Crown witness; and the trial judge unreasonably relied upon on a momentary lapse in memory in respect of the date thirty years prior to find that the appellant lacked reliability.
In this case the trial judge completely rejected the accused’s testimony for the sole reason that he failed to remember the precise year that he moved thirty years prior and that he could not remember which dwellings they rented at the time. The Court of Appeal reiterated that “it is important to remember that where an accused takes the stand and gives evidence, that evidence need not prove anything. A witness’s evidence need not be believed to raise a reasonable doubt.”
In comparison, the complainant was confronted with material differences in her allegations between her police statement and trial testimony that the judge failed to grapple with.
For example, the complainant testified at trial that the accused had engaged in specific acts during digital penetration that were absent from her police statement. Additionally, it was pointed out that the complainant did not mention digital penetration at all until asked by the officer later in her statement if she had been touched. Though she had not alleged this in her first recounting of events, the complainant then incorporated the suggestion into her allegations.
Even though these inconsistencies went to the core of the allegations against the accused the trial judge declared them to be “minor” while using absence of memory from the accused on peripheral details to undermine the whole of his other evidence.
To complicate the issues even further, the trial judge stated that there was reasonable doubt whether the accused had touched the complainant with his mouth or fingers but the reasons did not explain why or how that reasonable doubt did not factor into the decision to convict.
Cases regarding child evidence can be very complicated in regard to credibility but this case is an important reminder of the burden of proof and the requirement to grapple with and properly explain the findings of fact.