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Joseph A. Neuberger, Michael P. Bury and Diana Davison, Neuberger & Partners LLP, Criminal Lawyers Toronto
In R. v. Lovell, 2026 BCCA 361, the British Columbia Court of Appeal confronted a question that sits at the heart of many sexual assault prosecutions involving young complainants: how far may a trial judge rely on a child’s age to explain away weaknesses in that child’s testimony before the reliance itself becomes a legal error? The Court’s answer — delivered in reasons written by Winteringham J.A., with Edelmann and Francis JJ.A. concurring — is a careful reminder that the accommodations the law extends to child witnesses do not relax the standard of proof owed to the accused.
01 • BACKGROUND
The appellant and the complainant’s father worked together at a home maintenance company. The father, a single parent, occasionally asked the appellant to pick his daughter up from school on the days her regular babysitter was unavailable. On those occasions the appellant would drive her to the babysitter’s home or bring her back to the office to wait for her father. The evidence indicated the appellant picked the complainant up fewer than twenty times, across two windows in 2021, when she was eleven and twelve years old.
The complainant alleged that during these drives and at the workplace the appellant sexually touched her — describing over-the-clothing contact such as tickling, kissing on the shoulder, and being smacked on the buttocks with a ping pong paddle during a game. She also attributed a series of comments to the appellant from which the Crown asked the trial judge to infer a sexual purpose. The appellant testified, admitted to a good deal of physical contact and affectionate language, but denied that any of it was sexual. The trial judge convicted him of sexual interference and invitation to sexual touching and sentenced him to eighteen months’ imprisonment followed by two years’ probation.
02 • THE GOVERNING PRINCIPLES
The case turned entirely on credibility, and the trial judge’s reasons were, in the Court of Appeal’s description, lengthy and comprehensive. He correctly identified the framework in R. v. W.(D.) regarding reasonable doubt, the specialised guidance for assessing the evidence of children, and the objective, contextual test for determining whether conduct is carried out for a sexual purpose.
Two principles framed the appeal. The first is the deference owed to a trial judge’s credibility findings. As the Supreme Court of Canada reaffirmed in R. v. Kruk, absent a recognised error of law, findings of credibility and reliability are disturbed only on a showing of palpable and overriding error. The second is the long-standing instruction that, while inconsistencies on peripheral matters such as time and location must be viewed considering a child’s age, the accommodations extended to children do not alter the standard of proof. The evidence of a child, McLachlin J. wrote in that case, must still be measured against proof beyond a reasonable doubt; the change in approach is a move away from rigid stereotypes toward a common-sense assessment, not a lowering of the threshold for conviction.
03 • WHERE THE TRIAL JUDGE ERRED
The Court of Appeal accepted that the trial judge stated these principles correctly. The difficulty lay in their application. The judge had himself identified several frailties in the complainant’s evidence — that her account appeared influenced by external sources, that parts of it did not make sense, that it contained exaggeration, and that reliability concerns arose from her account of how long the pickups had been occurring. Having identified those weaknesses, however, he resolved them principally by pointing to the complainant’s age and to the general proposition that children perceive time and events differently than adults.
The Court held that this was a palpable and overriding error. The judge acknowledged the frailties but never went on to assess whether the exaggerations and inconsistencies infected the reliability of the testimony as a whole. Attributing the problems to age, in the circumstances of this case, had the practical effect of relaxing the burden of proof — precisely the outcome W.(R.) was meant to guard against.
The Court underscored a distinction that mattered here. W.(R.) itself involved a nine-year-old testifying about events from when she was between two and four years old. The complainant in Lovell was twelve during her police interview, which took place roughly a month after the last alleged incident and within a year of when the conduct was said to have begun. A general invocation of a child’s different conception of time carried less explanatory force against that timeline.
04 • THREE MATERIAL EXAGGERATIONS
The Court identified three areas of exaggeration or inconsistency that went to matters material to the charges, not to peripheral detail.
The complainant initially told police the conduct had been ongoing for years, beginning when she was nine, and that she had been struck on the buttocks something approaching “a million” times. The uncontradicted adult evidence established that the pickups spanned only four to five months and numbered between thirteen and eighteen. The Court accepted that losing count of a repeated act during a game might mean little on its own. The substantial inflation of how long the conduct had been occurring, however, was a different matter, and the trial judge had not explained how he weighed it in light of the complainant’s age.
The complainant told police the appellant had asked for a nighttime selfie of her in her pyjamas — a request that presented, in the trial judge’s own words, as particularly intrusive. The text exchange entered at trial showed a midday message asking to see her “Christmas clothes and smile,” with no reference to pyjamas and no reference to nighttime. This mattered because the judge later relied on the intimacy of the appellant’s texts in finding sexual purpose proven. The embellishment therefore touched evidence used to convict.
Evidence the trial judge described as “quite muddled,” and which the Court of Appeal viewed as arguably consistent with the appellant’s innocent explanation. Where the underlying conduct is not inherently sexual, the Court observed, such disputes require resolution rather than being set aside.
05 • THE DISPOSITION AND ITS SIGNIFICANCE
Even applying the deferential palpable-and-overriding-error standard, the Court concluded that the trial judge’s credibility findings were not the product of the evidence-based, context-specific assessment that Kruk demands. The error was overriding because it was integral to the finding that the complainant was believable, reliable, and trustworthy, which in turn grounded the conviction. There was, the Court held, nothing about the complainant’s age that could explain how she might be unreliable on these three material points while remaining reliable beyond a reasonable doubt on everything else.
The Court allowed the appeal, quashed the convictions, and ordered a new trial.
Lovell does not soften the deference appellate courts owe to trial-level credibility assessments, nor does it question the settled instruction that children’s evidence should be approached with common sense rather than stereotype. Its contribution is narrower and, for that reason, instructive: age may legitimately explain why a child’s recollection of peripheral detail is imperfect, but it cannot serve as a general solvent for material exaggerations and inconsistencies. When a judge invokes a child’s age to set weaknesses aside, the reasons must still show that the evidence, taken as a whole, meets the criminal standard. A trial that skips that step, however carefully it recites the governing law, risks convicting on something less than proof beyond a reasonable doubt.
READ THE FULL DECISION HERE: R. v. Lovell, 2026 BCCA 361
This post discusses a published decision of the Court of Appeal for British Columbia. A publication ban under s. 486.4 of the Criminal Code prohibits publishing information that could identify the complainant or any witness. It is offered as general commentary and not as legal advice. Neuberger & Partners LLP, Sex Assault Defence Lawyers Toronto.
