This week’s top three summaries: R v Drake, 2026 NSCA 48: Vetrovec #confirmation, R v VRRR, 2026 MBCA 56: human #assumptions , R v Murphy and Wright, 2026 NSCA 51: #judicial notice mistrial

R v Drake, 2026 NSCA 48

[June 17, 2026] Vetrovec: Confirmatory Evidence Requirements [Reasons by Farrar J.A. with Bourgeois and Derrick JJ.A concurring]

AUTHOR’S NOTE: Once a witness is recognized as an unsavoury witness requiring a Vetrovec warning, the central question becomes whether there is evidence capable of sufficiently confirming the reliability of the witness’s inculpatory testimony. The purpose of the confirmation requirement is not merely to show that the witness was present or that parts of the account are true. Rather, it is to provide assurance that the portions of the evidence implicating the accused can be safely relied upon.

In a jury trial, the judge must identify for the jury the evidence that may provide the necessary confirmation and explain how it bears upon the reliability of the witness’s evidence. In a judge-alone trial, the same analysis must be undertaken by the trial judge and reflected in the reasons.

This decision provides a compelling illustration of what qualifies as confirmatory evidence. The Court of Appeal emphasized that the relevant inquiry is whether the independent evidence confirms the inculpatory portions of the witness’s testimony, not merely peripheral or neutral aspects of the account. Evidence that confirms matters unrelated to the accused’s alleged involvement may enhance the witness’s general credibility, but it does not necessarily provide the assurance required by Vetrovec.

Here, there was ample evidence confirming that the witness had, in fact, witnessed a homicide. However, that was never the contentious issue. The critical question was the identity of the perpetrator. Evidence demonstrating that a homicide occurred, or that the witness was present when it occurred, did not meaningfully confirm the witness’s assertion that the accused was the killer.

The Court of Appeal’s analysis underscores an important principle: confirmatory evidence must be directed toward the material inculpatory features of the testimony. Confirmation of background facts, surrounding circumstances, or uncontested events does not satisfy the purpose of the Vetrovec doctrine if it fails to provide independent assurance of the evidence identifying the accused as the culprit.

Introduction

[1] Adam Drake appeals his conviction1 for the first-degree murder of Tyler Keizer on the grounds of unreasonable delay and errors he says the trial judge made in his assessment of evidence. He says the judge failed to properly address exculpatory evidence and relied on non-confirmatory evidence in accepting the testimony of Morgan Harrington, an unsavoury witness. Mr. Drake argues he is entitled to a stay for the violation of his constitutional right to a timely trial, and if not a stay, then the trial judge’s errors in dealing with the evidence warrant a new trial.

[2] ….in light of the trial judge’s errors in the assessment of Morgan Harrington’s evidence I would set aside the appellant’s conviction and order a new trial.

[3] Tyler Keizer was shot dead on November 21, 2016 in a parking lot near the halfway house where he was a resident. CCTV security footage recorded the shooting. His killer was not identifiable from the camera images and fled the scene on foot. Morgan Harrington witnessed the shooting. In January 2019 he identified the appellant as the shooter. Police had arrested Mr. Harrington on the night of the murder and subjected him to an extensive interrogation. At that time he made no mention of the appellant.

[4] Mr. Harrington was the key Crown witness at trial. He was acknowledged to be a quintessentially disreputable witness, whose evidence had to be approached with considerable caution.

[6] ….He says the trial judge accepted Morgan Harrington’s identification of him as the shooter on the basis of evidence that could not have confirmed Mr. Harrington’s truthfulness about the appellant being the shooter. He does not challenge the trial judge’s determination that the shooting of Tyler Keizer constituted first degree murder.

Morgan Harrington

[13] Mr. Harrington was a “Vetrovec” witness. A Vetrovec witness presents special dangers to the fact-finding process at trial “because of their amoral character, criminal lifestyle, past dishonesty or interest in the outcome of the trial”, they cannot be trusted to tell the truth despite having “expressly undertaken” to do so by oath or affirmation.

[14] The trial judge recognized what he was dealing with:

[12] It is clear from the video footage which the Court observed, both that captured at the scene of the murder, as well as that captured from the Salvation Army building nearby, that Morgan Harrington was an eyewitness to Mr. Keizer’s death. He was right there, standing beside the shooter. He says the shooter was Adam Drake. He was the Crown’s central witness. With that said, counsel for Mr. Drake has forcefully argued that Mr. Harrington is a career criminal, having committed a significant number of violent crimes, drug crimes, and others involving deceit and dishonesty.

[13] In fact, the Defence refers to Mr. Harrington as “the epitome of an unsavoury witness” (Defence Closing Submissions, para 10). The Crown does not take issue with this characterization, itself acknowledging that Mr. Harrington has a significant criminal past, and that he is “classically, a Vetrovec witness” (Crown Closing Submissions, para 413).

Circumstantial Evidence

[17] In addition to Mr. Harrington’s testimony, the Crown led considerable circumstantial evidence. The trial judge found the evidence confirmatory of Morgan Harrington’s identification of the appellant as Tyler Keizer’s killer. The appellant vigorously contested inculpatory inferences the Crown invited the trial judge to draw and pointed to evidence he says indicated he had nothing to do with the murder.

Issue #3 The Trial Judge Erred in the Assessment of the Vetrovec Witness’ Truthfulness and Reliability

Morgan Harrington – The Lynchpin of the Appellant’s Conviction

[131] Tyler Keizer’s murder was captured on CCTV security footage (the Norex video)from a building overlooking the parking lot where the shooting occurred. There is no dispute that Morgan Harrington knew the shooter, had been talking to him just prior to the murder and witnessed the first shot being fired through the windshield of the Durango.

[132] Morgan Harrington’s testimony was the only direct evidence that implicated the appellant. The defence argued the circumstantial evidence was open to exculpatory inferences. No forensic evidence linked the appellant to the crime scene. The trial judge noted the absence of any admissions or inculpatory statements despite intercepts and covert audio probes being installed by police in the appellant’s home and vehicle during the investigation.

[134] Morgan Harrington’s identification of the appellant as Tyler Keizer’s killer came two years after the murder. He gave a KGB statement to police investigators on January 24, 2019. The evidence filled in his circumstances between the night Tyler Keizer was shot to death on November 21, 2016 and his statement to police:

[106] Although interrogated extensively during the early morning hours of November 22, 2016, he did not tell the police the identity of the shooter. He said this was because CSC was obliged to investigate whether he had any involvement in the shooting. While they investigated, he knew he was going back to jail. While there, he would be vulnerable to retaliation not only from Mr. Drake’s friends and/or associates, but his own as well, should he cooperate. Even after that, upon his release, he, his friends, and his family members would still be at risk if he gave information to the authorities. He said that “you do not do that in gang lifestyle, it is super frowned upon. If you are cooperating, you are cooperating.”

[107] In the aftermath of his interview by the police on November 22, 2016, Mr. Harrington went to Burnside for a short period of time, then was sent to Renous penitentiary, until his release approximately seven months later. He was thereupon transferred to a halfway house in Newfoundland for the ensuing three months. He returned to Halifax in late 2017, where he resided initially at Uniacke Square. He then moved in with his girlfriend, CH, where he stayed for (roughly) the next two years.

[108] He was unemployed, and he quickly returned to the only lifestyle he had ever known. He was charged in Québec with the Excise Act offences referenced earlier. They were alleged to have occurred in May and August 2018. As has been (also) previously referenced, this was followed up by charges under the Controlled Drugs and Substances Act (“CDSA”) in December of 2018. These came about after Mr. Harrington was caught in a “bust” selling some very serious drugs, including cocaine and heroin.

[135] The trial judge referenced evidence that confirmed once Mr. Harrington came forward he received financial support through Halifax Regional Police witness support programs other than during the “gap” period that followed the first Indictment against the appellant being withdrawn. As the judge said: “a precondition to the financial support components of these documents was his agreement to testify against the accused”.

[136] The defence argued Mr. Harrington’s decision in January 2019 to give a statement to police identifying the appellant as Tyler Keizer’s killer was exclusively driven by self-interest. In final written submissions, defence counsel said: “His decision to implicate Mr. Drake was clearly an effort to throw suspicion from himself and, at the same time, reap the benefits of immunity, personal advantage, money and preservation of his life by not returning to jail”….

[137] The trial judge had no illusions about Mr. Harrington’s character and the need to take into account the potential he was incentivized to lie:

[172] At the risk of further repetition, Mr. Harrington is a career criminal, one who has committed crimes, some involving extreme violence, some involving deceit and dishonesty. His decision to testify against Mr. Drake saved him from being tried on several very serious crimes. A conviction with respect to even one of the CDSA, aggravated assault, or Excise Act charges with which he was charged would almost certainly have sent him back to prison, to serve a lengthy sentence.

[173] Once in prison, he would have been endeavoring to survive in a climate in which he was suspected (by some) not only of having been involved in Mr. Keizer’s death, but (by others) of having cooperated with the authorities in relation to it. In such an event, he would have been in danger not only from inmates whose sympathies aligned with the accused, but also from those who had formerly been, if not friends, at least associates of his own.

[174] On top of that, testifying opened up the possibility of his receipt of a financial reward of up to $150,000, which is contingent upon Mr. Drake being convicted. Finally, the fact that the police facilitated a meeting with CPS (which, unusually took place at the police station) with respect to the possibility of his receiving access with his child, must also be considered.

The Correctly Identified Legal Principles

[138] Under the heading “What is a Vetrovec witness, and what does that have to do with Morgan Harrington?” the trial judge noted the following:

• When a disreputable important witness testifies for the Crown, “it may be necessary to look for confirmation” of some of the witness’ testimony outside of the evidence they have provided.

• The most significant considerations for determining whether a Vetrovec approach is required “involve the assessment of the credibility of the witness; and the importance of the witness to the prosecution’s case”.

• An unsavoury witness may have ulterior motives for providing evidence in support of the prosecution’s case, such as diverting suspicion from themselves, gaining advantages such as immunity from prosecution for offences, or monetary gain.

[140] The trial judge clearly understood the law applicable to assessing the evidence of a Vetrovec witness. He took care to articulate it with reference to passages from the leading cases of R. v. Kehler , R. v. Khela and R. v. Seruhungo . He also found R. v. Vallee to be of assistance. His focus was on the use of confirmatory evidence where the credibility of a disreputable witness is in issue. He extracted the following principles to be applied:

• Not all evidence presented at trial is capable of confirming the testimony of an unsavoury witness. Evidence that is confirmatory must be independent of the impugned witness (Khela).

• Individual items of corroborating evidence need not implicate the accused (Vetrovec, Kehler, Khela).

• Evidence that implicates the accused does serve to accomplish the purpose of satisfying the trier of fact the impugned witness is telling the truth but it is not the only sort of evidence that will accredit the witness’ testimony (Vetrovec).

• “[W]hen looked at in the context of the case as a whole, the items of confirmatory evidence should give comfort to [the trier of fact] that the witness can be trusted in his or her assertion that the accused is the person who committed the offence” (Khela at para. 42).

• Confirmatory evidence “must be capable of restoring the trier’s faith in the relevant aspects of the witness’s account” (Khela at para. 43, emphasis in the original).

• The importance of evidence that is independent of the impugned witness “increases with the centrality of the disputed issue to the crime alleged and to the degree of dispute of the witness” (Vallee at para. 142).

• In a judge alone trial, credibility assessments are the province of the judge as the trier of fact (Vallee at para. 144).[Emphasis by PJM]

[141] The trial judge understood the unconfirmed evidence of a disreputable witness was sufficient to support a conviction for murder as long as he was satisfied the evidence was true. It is this principle the judge was referring to in paragraph 168 of his decision where he said: “It would be dangerous to convict upon unconfirmed evidence from this witness. I may (properly) do so, however, if satisfied that the evidence is true”. The trial judge had earlier emphasized what was required for conviction: he had to be satisfied of the appellant’s guilt beyond a reasonable doubt.

The Trial Judge’s Reliance on “Confirmatory” Evidence

[142] However, the trial judge was plainly notsatisfied to convict the appellant on Morgan Harrington’s evidence in the absence of confirmatory support for it. Morgan Harrington’s evidence was essential to proving the identity of Tyler Keizer’s killer. That is what he brought to the table. The trial judge could have simply decided on the basis of a conventional credibility analysis that he believed Mr. Harrington’s identification evidence. But he did not. Instead he fixed his credibility compass on finding independent, material evidence that supported Mr. Harrington’s truthfulness:….

[143] Having decided he had to find confirmatory evidence for Mr. Harrington’s evidence before he could rely on it, the trial judge instructed himself in accordance with the law:

[171] As a consequence, I remind myself that the independent “confirmatory evidence” which I require in this case need not (necessarily) implicate Mr. Drake. It must, however, be capable of providing comfort that Mr. Harrington was being truthful when he testified: it must have the ability to restore my faith in the relevant aspects of his testimony.(emphasis added)

[144] The trial judge was correct in his identification of the applicable law. But he fell into error when it came to identifying as confirmatory much of the evidence he relied on. Having decided he required confirmatory evidence to assess Morgan Harrington’s credibility he had to be correct in his characterization of the evidence he used. However, he found comfort in evidence that cannot be characterized as either independent or relevant. It was not evidence that could rebut the suggestion Mr. Harrington was falsely implicating the appellant. As Khela held: “not all evidence presented at trial is capable of confirming the testimony of an impugned witness”.[Emphasis by PJM]

Evidence that Was Not Confirmatory

[146] Evidence the trial judge took comfort from in concluding Mr. Harrington’s identification of the shooter could be trusted included many peripheral details, such as his testimony about his arrest in the early morning hours of November 22, 2016. This was an innocuous event documented by the police involved and IDENT photographs. Evidence of the condition of Tyler Keizer’s Dodge Durango documented by Cst. Beer’s photographs added nothing to the scale weighing Mr. Harrington’s truthfulness. It was uncontroversial that whoever shot Mr. Keizer to death did so from outside the vehicle. Furthermore, Mr. Harrington testified he fled after the first shot, a fact confirmed by the Norex CCTV footage. Mr. Harrington did not witness how the shooter executed the killing after the first shot was fired. Cst. Beer’s photographs and the Norex video told the trial judge more about where the shots were fired into the Durango than Mr. Harrington could.[Emphasis by PJM]

[147] Cst. Beer’s photographs of the bullet holes in the Durango not only did little to confirm what Mr. Harrington had said about the circumstances of the shooting, it was peripheral to whether his identification of the appellant was trustworthy.[Emphasis by PJM]

[148] The trial judge ultimately listed in what he described as a “non exhaustive (point form) summary” the independent and material confirmatory evidence he relied on in accepting the testimony of Morgan Harrington. This section of the judge’s decision was headed: A non exhaustive summary of the nexus between Morgan Harrington’s testimony and independent confirmatory or corroborative evidence.

[149] A reading of the trial judge’s decision as a whole shows the evidence he relied on, including in his non-exhaustive summary, was neutral, peripheral or lacked independence.

[150] The evidence the appellant and Donald Arsenault were friends and business partners in a cannabis dispensary was neutral. The appellant confirmed this in a Statement of Admissions dated April 19, 2024 and filed as a trial exhibit.

[151] Tyler Keizer’s conviction (proven by documentary evidence) for his role in the jail beating of Donald Arsenault and offered to verify Mr. Harrington’s testimony of this merely provided some tenuous support for the Crown’s motive theory.

[152] Records of a sea-doo rental on August 27, 2016 did no more than confirm Mr. Harrington’s testimony that the appellant took him out to sea-doo on Halifax Harbour. GPS coordinates from Mr. Harrington’s ankle bracelet (he was on parole and required to wear a monitoring device) indicated it was travelling over water at the times Mr. Harrington testified he was sea-dooing with the appellant.

[154] All the sea-doo rental evidence confirmed was Mr. Harrington’s sea-doing excursion with the appellant in August 2016 when he was released from prison. This fact was admitted by the appellant in the April 19, 2024 Statement of Admissions.

[155] GPS coordinates from the ankle bracelet recorded Mr. Harrington being on Federal Avenue where he said he met with Donald Arsenault on the sidewalk outside Mr. Arsenault’s mother’s house. Mr. Harrington testified he was there to convey Mr. Keizer’s apology for the beating, that Mr. Keizer had participated in the attack on orders from others, and now wanted to straighten his life out. According to Mr. Harrington, Donald Arsenault said he was not looking to retaliate against Mr. Keizer.

[156] Mr. Harrington’s ankle bracelet tracked a subsequent drive to his mother’s home and then to the Annex on September 8, 2016. Mr. Harrington testified that after their meeting Mr. Arsenault had driven him to his mother’s and he had then gone to the half-way house.

[157] Several details did not align neatly with Morgan Harrington’s evidence about the visit to Donald Arsenault. According to Mr. Harrington, Mr. Arsenault was not stewing over a “beef” with Mr. Keizer. Mr. Harrington testified the meeting was five to ten minutes. The ankle bracelet recorded a 32-minute visit to Federal Avenue on September 8, 2016. Notably, the trial heard evidence Donald Arsenault’s mother did not live on Federal Avenue. She lived nearby, on Romans Avenue. Notwithstanding, the trial judge found the evidence “as (overall) corroborative of Mr. Harrington’s testimony that he met with Mr. Arsenault at that time”.

[158] Phone records confirmed visits by Mr. Harrington to the appellant’s cannabis dispensary in October and November 2016. Mr. Harrington said on one of these occasions the appellant fronted him marijuana to sell. Telus records for the appellant confirmed he was out of the province for a period of time after the marijuana-fronting which is when Mr. Harrington testified he made a payment to one of the appellant’s associates rather than to the appellant personally.

[159] This “confirmatory” evidence was neutral. It was undisputed that Morgan Harrington and the appellant knew each other and were on friendly terms. There was never any issue that Morgan Harrington would recognize the appellant.

[160] A series of exhibits – taxi records, cell phone records, the Norex video, and the Salvation Army video – confirmed Mr. Harrington’s testimony that on November 21, 2016 he called a cab to pick him up at his girlfriend’s, he stopped at his mother’s on the way to the Annex, he walked east on Falkland Street toward the Annex and then was in front of the building, exchanged a “fist bump” with the shooter while on the phone, had an encounter with another man outside the Annex, and was on the phone to his girlfriend just before the shooting.

[161] All this evidence simply confirmed what Morgan Harrington testified he had done on the evening of November 21, 2016….

[162] The Salvation Army video and the Norex video simply captured images of the unidentifiable shooter and Mr. Harrington together and then the actual shooting and Mr. Harrington running away after the first shot.

[163] A still photograph taken from the Salvation Army video depicted the moment immediately after the shooting when Mr. Harrington testified, in anticipation of imminent arrest, he gave cocaine he had on him to a friend. The trial judge found it noteworthy that Mr. Harrington “volunteered that the package contained cocaine. The court would have otherwise been unaware of that fact”. This disclosure reveals nothing about Morgan Harrington’s truthfulness. It is an innocuous, irrelevant detail.

[164] The Norex video captured the shooter walking east on Falkland Street just before the shooting. Again, this evidence does not confirm Morgan Harrington’s identification of the appellant as the shooter. It merely confirms the movements of an unidentified person who moments later shot Tyler Keizer dead.

[165] The trial judge identified some evidence that could be confirmatory of the appellant’s presence at the scene as testified to by Morgan Harrington. This evidence would have to be assessed for its confirmatory strength with the non-confirmatory evidence stripped away and in the context of the evidence the defence argued was exculpatory. Certain evidence the Crown presented as confirmatory of Morgan Harrington the defence had submitted was inconsistent with the appellant being the shooter. The trial judge did not address how or whether this evidence affected his confidence in the trustworthiness of Morgan Harrington on the issue of identity.[Emphasis by PJM]

[166] The trial judge viewed the evidence I have reviewed as building a picture of trustworthiness. Evidence that is not capable of being confirmatory does not, by accumulation, create the foundation for restoring confidence in the testimony of a Vetrovec witness. Zero plus zero adds up to zero.[Emphasis by PJM]

[167] It is constructive to reiterate that it is not an error of law to accept the evidence of a Vetrovec witness without confirmatory evidence on the issue of identity. That said, the trial judge here concluded he needed to be satisfied Morgan Harrington was truthful on the factual issue in contention, that is, the issue of the identification of Tyler Keizer’s killer. He looked for evidence to restore his faith that Mr. Harrington could be trusted in his identification. The trial judge’s concern to have his faith restored was an acknowledgment that his confidence in Mr. Harrington, a “dishonest, extremely violent” man with “little to no regard for other people, of the law”, was under water. The judge explicitly required confirmatory evidence that Mr. Harrington’s identification of the appellant as the shooter rose to the level of proof beyond a reasonable doubt. Proof beyond a reasonable doubt that the appellant was the killer could only be achieved through the evidence of Morgan Harrington. The balance of the evidence led by the Crown was insufficient. Without Morgan Harrington, the Crown could not prove its case. Much of the evidence the trial judge found to be confirmatory, which he used to restore his confidence in Mr. Harrington’s truthfulness on the central issue of identity, was incapable of carrying out the role it had been assigned.[Emphasis by PJM]

[169] I would allow the appeal, set aside the appellant’s conviction and order a new trial on the charge of first degree murder.
  Derrick, J.A.

Concurred in:

Bourgeois, J.A.

R v VRRR, 2026 MBCA 56

[June 15, 2026] Assumptions about Human Behaviour: Reacting to Allegations of Sexual Abuse by a Daughter [Reasons by Karen I. Simonsen J.A. with Janice L. leMaistre and Diana M. Cameron JJ.A. concurring]

AUTHOR’S NOTE: Credibility assessments often require judges to evaluate how people reacted to stressful or unexpected events. That task, however, must be approached with caution. Assumptions about how a “normal” person would behave in extraordinary circumstances are inherently uncertain and, if unsupported by evidence or common human experience, can lead to palpable and overriding error.

Here, the trial judge reasoned that a parent who genuinely believed their child had been sexually assaulted would necessarily continue to express concern for the child’s emotional well-being. The judge treated the absence of such ongoing expressions of concern as undermining the parent’s credibility.

The Court of Appeal rejected that reasoning. Human responses to allegations of sexual assault are highly variable. Individuals process trauma, fear, guilt, and uncertainty in markedly different ways, and there is no single or expected pattern of behaviour from which credibility can reliably be inferred. A parent’s reaction may be influenced by countless personal, emotional, and situational factors, making it dangerous to draw adverse credibility conclusions from a perceived failure to behave in a particular manner.

By relying on an unsupported assumption about how a parent would necessarily respond, the trial judge substituted a stereotype of human behaviour for an evidentiary analysis. The credibility finding was therefore tainted by palpable and overriding error. The decision serves as a reminder that credibility must be assessed on the evidence itself, not on judicial expectations of how people ought to react in exceptional and emotionally charged circumstances.

[2] Although a number of grounds of appeal were advanced, the accused’s arguments focussed on the trial judge’s analysis of his evidence. More specifically, the accused argued that, in rejecting his testimony, the trial judge made palpable and overriding errors in his assumptions as to how a person should testify (see R v Kruk,, 2024 SCC 7 [Kruk]).

[3] At the conclusion of the hearing, we allowed the appeal, quashed the convictions and ordered a new trial with reasons to follow. These are those reasons.

[4] At the trial, the victim testified that the accused sexually assaulted her on three occasions in the family home. The accused also testified, denying all of the allegations. He indicated that he loved his daughters—the victim and his three daughters with his wife (the victim’s stepmother). He explained that the victim was very hard to manage and that he and the stepmother had taken many steps to support her and help her make good choices. It was common ground between the victim and the accused that the victim frequently argued with the accused and the stepmother over a number of matters.

[6] In applying W(D) and assessing the credibility of the accused, the trial judge noted that this was not a case where the accused “blatantly undermine[d] [his] own credibility by being evasive, or by contradicting [himself], or by taking a position that cannot be accurate” (ibid at para 63).

[8] As for the first answer, counsel for the accused at trial questioned him about the day he first learned of the allegations when an employee of Child and Family Services arrived at the family home and told him. Trial counsel asked the accused about his reaction. The accused replied:

I was surprised. I was afraid. I was worried. On that day, they asked me, do you want us to take the family away from you or do you want to move out of the house yourself? And I said I’ll leave. And I took all my things out. Clothing.

[9] In assessing the above answer, the trial judge found that “[i]t goes without saying that [the accused] was surprised, afraid and worried. However, if he was shocked, mortified and aghast by false allegations that he sexually assaulted his daughter when she was 13, he did not mention it” (ibid at para 69).[Emphasis by PJM]

[11] In assessing the above answer, the trial judge noted that the accused “asserted that he still loves the [victim], but he expressed no concerns at all about her current mental health or wellbeing” (ibid at para 70). The trial judge further stated (ibid at para 71):

If the accused honestly believed that the [victim] completely invented all of the details of the sexual assaults that she shared with the police (and later the court), what did that suggest to the accused about the [victim’s] mental and emotional wellbeing? If she simply invented everything, and stuck to that invention when talking to the police and while under oath in court, and the accused really did love her like a father, would he not have expressed at least a tiny bit of concern about her mental wellbeing?[Emphasis by PJM]

[12] The trial judge added that he “got the distinct impression that the accused was more concerned with his own inconvenience (he expressly mentioned his clothing), than with the mental and emotional wellbeing of his young daughter” (ibid at para 72).

[13] Having conducted this analysis, the trial judge rejected the accused’s evidence and determined that it did not raise a reasonable doubt as to his guilt.[13] Having conducted this analysis, the trial judge rejected the accused’s evidence and determined that it did not raise a reasonable doubt as to his guilt.

[14] As for the victim’s evidence, the trial judge rejected the defence theory that she fabricated the allegations against the accused due to animus towards him resulting from their many disagreements. The trial judge found the victim’s testimony about the sexual assaults to be “credible and . . . reliable” (ibid at para 81) and that “the details of [her] allegations bear the ring of truth” (ibid at para 82). He addressed inconsistencies in her evidence and found that “nothing in the testimony of the [victim] created any reasonable doubts about the guilt of the accused” (ibid at para 83).

[16] The standard of review on questions of law is correctness. However, at its core, this appeal does not raise an error of law as contemplated in Kruk (see para 96). Instead, the accused challenges the credibility assessment made by the trial judge in rejecting the accused’s evidence. Credibility assessments are owed significant deference on appeal and are reviewed on the standard of palpable and overriding error (see ibid at para 82).

[17] The question on this appeal is whether, in rejecting the accused’s denials, the trial judge made a palpable and overriding error by relying on a “common-sense” assumption (ibid at para 94) that is “beyond the bounds of what common sense and the judicial function support” (ibid at para 95). In Kruk at para 97, the Supreme Court of Canada explained appellate review of such assumptions as follows:

Absent an error of law, the standard of review will be palpable and overriding error. The reviewing court must first determine whether the erroneous reliance on the assumption is palpable, in that it is “plainly seen”, “plainly identified”, or “obvious” (see Housen, at paras. 5-6; R. v. Clark, 2005 SCC 2, [2005] 1 S.C.R. 6, at para. 9; Benhaim, at para. 38, citing South Yukon Forest Corp., at para. 46). Palpable errors in this context will include, for example, where the assumption in question is obviously untrue on its face, or where it is untrue or inapplicable in light of the other accepted evidence or findings of fact. Although trial judges are clearly best placed to make factual findings and assess the accuracy of generalizations, appellate courts can balance the need for deference to those findings with employing their own common sense to determine whether the presumption was clearly illogical or unwarranted so as to make out a palpable error. Appellate courts are routinely tasked with, for example, considering whether based on “logic and human experience” a particular piece of evidence was relevant or whether an accused’s after-the-fact conduct was consistent with that of a guilty person (R. v. Corbett, [1988] 1 S.C.R. 670, at p. 715; see R. v. White, 2011 SCC 13, [2011] 1 S.C.R. 433, at para. 17). In the context of factual generalizations, so long as the assessment remains focused on whether there was any palpable error, such an exercise remains an integral part of the judicial function of a reviewing court.

[emphasis in original]

[18] In our view, although the trial judge’s assessment of the first answer is not entirely clear, it would be a palpable error if he assumed that a person, when first faced with what they consider to be false allegations of a crime, would necessarily deny them.

[19] As for the second answer, the trial judge found that the accused’s focus on his own situation instead of expressing concern for the victim’s mental well-being was inconsistent with his evidence that he loved the victim and provided extensive support to her—and that this inconsistency adversely affected the accused’s credibility. In our view, this adverse credibility finding is grounded in the palpably erroneous assumption that an accused person, who loves their child, should continue to express concern for the child’s mental well-being even when facing serious allegations made by the child that the accused person says are untrue.[Emphasis by PJM]

[20] Trial judges are entitled to rely on common sense and life experience. However, human responses to serious allegations of sexual assault are highly variable. The assumption that a parent who loves their child would necessarily express ongoing concern for the child’s mental well-being in these circumstances is not, without more, a reliable benchmark for assessing credibility and falls outside the bounds of permissible common-sense reasoning.[Emphasis by PJM]

[21] At the appeal hearing, the Crown conceded that, if the trial judge made palpable errors as alleged, they were overriding. We agree. The trial judge said that he was reviewing the answers in an attempt to determine the accused’s credibility and that he “was surprised by [the accused’s] answers” (Reasons at para 69). After reviewing the answers, the trial judge stated that he rejected the accused’s denials of sexual activity with the victim and that he did not “discern anything in [the accused’s] evidence that would raise a reasonable doubt about his guilt” (ibid at para 73). The trial judge’s assessment of the accused’s evidence clearly affected the outcome of the trial.

[22] We accept that a trier of fact may reject an accused’s evidence where, having considered the totality of the evidence, they are satisfied beyond a reasonable doubt of the truth of conflicting evidence. However, in R v Berg, 2026 SCC 21, the Supreme Court cautions that a trier of fact cannot reject an accused’s account based solely on a “‘considered and reasoned’ acceptance” (at para 10) of the conflicting account of the complainant, as this raises the spectre of turning trials into credibility contests….