The Defence Toolkit – June 8, 2024: “Edited Statement”

This week’s top three summaries: R v Purvis, 2024 NSCA 54: #editing stmt, R v Mostowy, 2024 BCCA 197: #severance, and R v Kwon, 2024 SKCA 50: #ungrounded assumptions.

R v Purvis, 2024 NSCA 54

[May 22, 2024] Accused Statements: Editing Voir Dire Required, Also: Vetrovec [Reasons by Anne S. Derrick J.A. with Farrar and Beaton JJ.A. concurring]

AUTHOR’S NOTE: When an accused makes lengthy statements, they often contain potentially prejudicial evidence that should be carefully edited before being presented to a jury. This case underscores the trial judge’s duty to conduct a voir dire—a preliminary examination of the evidence—when dealing with a long statement from the accused. The judge must scrutinize the entire statement to ensure that it does not include parts with greater prejudicial effect than probative value.

Key Points and Responsibilities:

1. Conducting a Voir Dire:
   • The trial judge must review the statement in a voir dire to decide which portions are admissible. This ensures that the jury only hears evidence that is relevant and fair, avoiding undue prejudice against the accused.
2. Common Reasons for Editing Statements:
   • Invocation of the Right to Silence:
     • Any part of the statement where the accused exercises their right to remain silent should be excluded. This right is fundamental, and its invocation should not be used against the accused.
   • References to Prior Criminal Investigations:
     • Statements that mention previous investigations or criminal activities of the accused should be removed to prevent the jury from being influenced by the accused’s past.
   • Familiarity with Jails and Jail Jargon:
     • Comments indicating the accused’s familiarity with jails or using jail-related language can unfairly suggest a criminal propensity and should be edited out.
3. Problematic Police Monologues:
   • Statements made by police officers during interrogations, especially lengthy monologues where they express opinions about the accused’s guilt, are particularly problematic. The accused’s responses when couched in invoking the right to silence to these assertions can unfairly impact the jury’s perception of guilt.
4. Vetrovec Principles:
   • The case also discusses the Vetrovec warning, a principle applied when dealing with testimony from potentially unreliable witnesses. A Vetrovec warning advises the jury to exercise caution and look for corroboration when evaluating such testimony. 

Practical Application:

• Defense Counsel’s Role:
  • It is crucial for defense counsel to identify and argue for the exclusion of prejudicial parts of the accused’s statement. They should request a voir dire to address these concerns proactively.
• Crown’s Responsibility:
  • The Crown should also be mindful of the potential prejudicial impact of lengthy statements and work to ensure that only the necessary and fair portions are presented to the jury.

Conclusion:

This case highlights the importance of judicial oversight in handling long statements from the accused to prevent undue prejudice. Ensuring that these statements are carefully edited and reviewed through a voir dire helps maintain the fairness of the trial and protects the accused’s rights.

Introduction

[1] On April 23, 2021 the appellant was convicted by a jury of the second degree murder of Derek Miles. He was sentenced on July 9, 2021 to life imprisonment with 14 years’ parole ineligibility. He appeals his conviction.

[2] Derek Miles died on January 18, 2018 from severe internal injuries following a beating at his apartment in Dartmouth. The appellant and his nephew, George Purvis, Jr., were both charged with second degree murder. In December 2018, George, Jr. pleaded guilty to manslaughter and ultimately testified as a Crown witness against the appellant.

[4] Although the appellant did not testify, he had been subject to a lengthy police interrogation in which he made certain statements, including ones that were exculpatory. A partially redacted version of his interrogation was admitted into evidence at trial by consent.

[7] The appellant says the trial judge’s jury instructions contained errors of law. He also alleges the judge erred in law by admitting his police interrogation into evidence without an admissibility voir dire and without directing further redactions to edit out statements of limited or no probative value and high prejudicial effect.

[11] As these reasons explain, I am satisfied errors were committed by the trial judge in relation to the admission of the appellant’s police interrogation and her instructions to the jury. I would order a new trial. I would admit the fresh evidence for the limited purpose of assessing the ineffective assistance of counsel allegations but, as I explain, would dismiss this ground of appeal.

Issue #1 – Did the trial judge err in law by admitting the appellant’s police interrogation into evidence without holding a voir dire to determine the admissibility of its contents?

[55] The appellant’s lengthy interrogation by police investigators was video and audio recorded and transcribed. It has been referred to as a “statement” although insofar as it suggests the appellant gave a version of the events, “statement” is not quite accurate. For convenience however, I will at times refer to what the appellant said to the investigators during the interrogation as a “statement”.

[57] In his factum, the appellant explains how his police interrogation was presented to the jury by the Crown as part of their case against him:

56. The Appellant’s statement was obtained over several hours following his arrest on March 19, 2018. Both the 418-page transcript and audio recording were submitted as exhibits at trial and were played in front of the jury after redacting the Appellant’s lengthy history of incarceration, all references to an earlier interview on an attempted murder charge, and references to his prior criminal activity.

[58] Much that was prejudicial to the appellant, not probative of the issues the jury had to decide, or was simply inadmissible, remained in the statement the jury had before them as evidence. The appellant says there should have been a voir dire to determine admissibility issues relating to the content of the statement, or, at the very least, to rigorously examine what more needed to be redacted. He says the following in his factum:

57. Unfortunately, the six-and-a-half-hour statement (after speeding through deadtime) contained prejudicial and irrelevant commentary, discussions, and responses from the Appellant which should have been excised based on probative value versus prejudicial effect, or on the grounds that the evidence was simply inadmissible. Further, it is submitted that there were enough warning signs for the trial judge to trigger her need to hold a voir-dire respecting the admissibility of the statement, or at least review it in the absence of the jury prior to it being played in court for their consideration.

[59] The appellant also faults trial counsel for not seeking to have all the “many irrelevant and prejudicial comments” redacted from the statement before consenting to its admission, or, failing that, requesting a voir dire for the purpose of determining its admissibility and/or securing additional redactions.

[60] The insufficiently redacted interrogation the jury had as evidence contained the appellant’s repeated assertions of his right to silence (“I’m not saying nothing”), comments that revealed his violent propensity, and references to the time he had spent incarcerated. [Emphasis by PJM]

[61] I agree with the appellant. Trial counsel should have pressed for the required redactions by way of an editing application or insisted on a voir dire to address what portions of the interrogation should be redacted. Ultimately, it was the trial judge’s responsibility to ensure the jury considered only evidence that was admissible and had probative value that outweighed any prejudicial effect. The failure to have done so was a legal error.

[62] A trial judge’s obligation to hold a “redaction” voir dire arises once there is something to trigger it.8 In this case, a review by the trial judge of the transcript of the police interrogation would have revealed the requirement for a voir dire to determine the admissibility of its contents. The trial judge could have ordered redactions to the statement to ensure only relevant and admissible evidence, that is, probative content, not substantially outweighed by prejudice, went to the jury.

[63] The following are some examples of the inadmissible and prejudicial/not probative content in the police interrogation:

D/Cst. Dooks-Fahie’s observations at several points in the interrogation that she had met the appellant before.

• Her references to the appellant’s sons being in (or out of) jail; to the appellant knowing how police work: “…you could probably walk me through a police investigation, I’m sure”, and having a nephew in prison on gun offences.

• The appellant’s statements that he can “handle” himself: “Still got it in me. Don’t matter if I’m old. I still got it in me”.

• D/Cst. Dooks-Fahie’s comments about the insult associated with someone being labelled a “rat” and the appellant having “a name to uphold in that community. You have a reputation there and no one’s going to cross you…”

D/Cst. Dooks’ observations that the appellant appeared indifferent to the news that Derek Miles had died: “You’re kind of emotionless through this whole thing. I don’t know it you don’t feel bad or you’ve just kind of dealt with this before, it is what it is”.

• D/Cst. Wagg telling the appellant: “You’ve been around the block” and saying: “You’re kind of an old-school guy and you’re kind of old-school rules…”.

[64] The jury would have heard (and read) statements by D/Cst. Wagg about the appellant’s ability to handle situations with violence:

…You’re one of those guys. You’ve been around. You’ve been around the block, you know? Everyone knows you can throw hands…Everyone knows you’re a capable guy, right?

[65] The appellant agreed with D/Cst. Wagg complimenting him for knowing “how to throw a punch” and being able to use “Fists of fury and feet of fury, too…you got to do what you got to do…”. In this exchange, the appellant acknowledged having been a kickboxer, using a knife in a fight, as well as hands and feet.

[66] The jury also heard the appellant resisting, time and time again, the police investigators’ determined efforts to get him to talk about what happened at Derek Miles’ apartment. The appellant repeatedly asserted his right to silence—113 times in the course of the interrogation—referencing the advice he had received from his lawyer not to say anything.

[67] The appellant’s invocation of his right not to answer the questions of the police investigators should not have been admitted into evidence. As the Supreme Court of Canada held in R. v. Chambers, it was clearly prejudicial:

[51] It has as well been recognized that since there is a right to silence, it would be a snare and a delusion to caution the accused that he need not say anything in response to a police officer’s question but nonetheless put in evidence that the accused clearly exercised his right and remained silent in the face of a question which suggested his guilt. In R. v. Robertson (1975), 21 C.C.C. (2d) 385 (Ont. C.A.), this very issue arose and the Court considered whether a police officer’s accusation and the subsequent silence of an accused could be admitted in evidence. Dubin J.A., as he then was, dissenting in part, stated at p. 395: In my opinion the purported resumé of the facts as stated by Inspector Lyle, coupled with the response of “nothing”, after being cautioned, was so highly prejudicial that I am not satisfied that the learned trial Judge’s instructions to the jury could erase the prejudicial effect which that evidence would have on the jury. I cannot help but feel that most juries would assume that an innocent man would be prompted to deny any false accusations against him, and his failure to do so would tend to prove belief in the truth of the accusations. [emphasis added]

[68] Even more prejudicial in this case is the fact the appellant’s assertions of his right to silence were embedded in lengthy monologues by police investigators expressing their opinions about his involvement in Derek Miles’ death. Those opinions were irrelevant and highly prejudicial. [Emphasis by PJM]

[69] There are circumstances where, during a police interrogation, an accused’s refusal to answer questions will be admissible as “an inextricable part of the narrative”. That scenario did not apply here. And even where an accused’s silence is admitted into evidence, a trial judge is obliged:

…to tell the jury in the clearest of terms that it could not be used to support an inference of guilt in order to contradict an intuitive impulse to conclude that silence is incompatible with innocence.

[70] A voir dire would have flagged the appellant’s repeated assertions of his right to silence and led to redactions or the exclusion of the statement altogether. The latter result would have been made more likely given other aspects of the interrogation that were inadmissible and/or had no probative value. If it proves impossible to appropriately edit a statement, then it should not be admitted into evidence.

[71] With respect, trial counsel’s opinion about the admissibility of the interrogation, revealed in his affidavit and cross-examination on the fresh evidence motion, underscores the need for trial judges to assess such statements themselves. Trial judges play “a fundamentally important role as evidentiary gatekeeper” in ensuring juries only consider relevant evidence, the probative value of which “is not substantially outweighed by its prejudicial effects”.

[72] Trial counsel testified he believed the appellant’s statement to be “presumptively admissible” because it was voluntary. While acknowledging that he “likely could have had more redacted”, he said the jury could not be left with an unbalanced picture. He seemed to be of the view there was a strategic benefit in consenting to the statement being admitted as it was: the Crown would then not oppose a Corbett application in the event the appellant testified, or call rebuttal evidence concerning the appellant’s character.

[73] In his July 27, 2023 affidavit, trial counsel said, in light of the appellant insisting “from the outset” he would not testify, it was important to put before the jury his denial that he went to the apartment intending to kill or was even involved in the beating, and his indication that Derek Miles was still breathing when they left. Trial counsel did not think the commentary about the appellant’s fighting prowess rose “to the level to establish propensity or character”, presumably meaning, bad character. But that is exactly what it disclosed—a propensity for violence and a bad character.

[74] Trial counsel agreed there was a potential risk the jury would think the appellant exercising his right to silence indicated he was hiding something inculpatory, but said the jury would have had to follow the trial judge’s instructions. Trial counsel said the theories and opinions of D/Csts. Dooks-Fahie and Wagg could not be relied on by the jury and therefore could not be prejudicial to the appellant. He said the trial judge gave mid-trial instructions and a final caution in her jury charge that parts of the interrogation not attributable to the appellant could not be used as evidence against him.

[75] With respect, aspects of trial counsel’s analysis were simply incomplete or wrong. Although the trial judge told the jury the appellant could “only be held responsible for what he actually says, not for what anyone else says”, there were no more specific instructions to the jury about what were permissible and impermissible uses of the appellant’s police interrogation. Before the appellant’s interrogation was played for them, the trial judge, referring to the fact there were redactions, told the jury: “Please know that you are seeing and hearing all of the parts that are relevant for you to see”. 14 Named after R. v. Corbett, [1988] 1 S.C.R. 670, a Corbett appl

[78] The trial judge should have been alerted by the nature of the redactions made and the fact that what remained of the appellant’s police interrogation still consumed 418 pages of transcript. In the circumstances, a voir dire was a necessary step in the trial judge ensuring the jury heard only admissible evidence. Despite the lack of assistance from trial counsel on the issue, there were triggers in this case that should have animated a voir dire. It was an error not to have held one.

Conclusion

[79] With respect, I find the trial judge erred in law by not holding a voir dire in this case to determine what in the appellant’s police interrogation was admissible evidence and what redactions were required.

[80] I would allow this ground of appeal.

Issue #2(a) – Did the trial judge err in law in her mid-trial instructions and final jury charge by providing an inadequate Vetrovec warning in relation to the evidence of George, Jr.?

The Vetrovec Warning – General Principles

[91]….A functional approach to assessing a Vetrovec caution must:

[47] … take into account the dual purpose of the Vetrovec warning: first, to alert the jury to the danger of relying on the unsupported evidence of unsavoury witnesses and to explain the reasons for special scrutiny of their testimony; and second, in appropriate cases, to give the jury the tools necessary to identify evidence capable of enhancing the trustworthiness of those witnesses.

[92] The Supreme Court of Canada in Abdullahi characterized Vetrovec warnings as a “contingent instruction”, as contrasted to a mandatory instruction—required in some cases but not in others.

[94] It is the comforting evidence aspect of the Vetrovec warning that is in issue in this appeal. Such evidence has to be material and independent. The guidance from the Supreme Court of Canada in R. v. Khela provides that:

[39] Common sense dictates that not all evidence presented at trial is capable of confirming the testimony of an impugned witness. The attribute of independence defines the kind of evidence that can provide comfort to the trier of fact that the witness is telling the truth. Where evidence is “tainted” by connection to the Vetrovec witness it can not serve to confirm his or her testimony.

[citations omitted]

[95] For obvious reasons, George, Jr. merited a strong Vetrovec caution. The caution the trial judge provided, both mid-trial and in her final charge, fell short of what was required.

Arguments on Appeal

[98] The appellant says the trial judge made two errors in her Vetrovec warning in relation to George, Jr.’s evidence:

1. She did not make it clear to the jury that evidence tainted by connection to George, Jr. could not be considered confirmatory of his evidence because it lacked independence, an essential feature of a legally-compliant Vetrovec caution.

The Principles Applied

[103] I find the trial judge’s George, Jr. Vetrovec instructions did not meet the functional requirements. I do not agree with the respondent that deficiencies in the instructions were compensated for in other parts of the jury charge as was found in the cases of Khela and R. v. Boyce. 37 Khela reminds us it is not “overly formalistic” to require that Vetrovec warnings equip juries with the tools “to identify evidence capable of enhancing the truthworthiness” of an unsavoury witness.38 The jury in this case was not sufficiently equipped by the isolated references cautioning them about the evidence of George, Sr. and Mary Ann. More targeted instructions were necessary.

[104] It was not enough to merely tell the jury that evidence confirmatory of George, Jr.’s evidence “must come from another witness or witnesses, or other evidence”. As held in Khela:

[42] …when looked at in the context of the case as a whole, the items of confirmatory evidence should give comfort to the jury that the witness can be trusted in his or her assertion that the accused is the person who committed the offence.

[105] Not all evidence “is capable of providing a level of comfort or confidence required for conviction”.39 The trial judge should have told the jury explicitly that if they doubted the credibility of Geroge, Sr. and Mary Ann, they “should be wary about relying on their evidence”40 as support for the testimony of George, Jr.

[106] In the circumstances of this case, the trial judge should have instructed the jury they could not use the evidence of George, Sr. and Mary Ann as confirmatory of George, Jr.’s testimony that it was the appellant who beat Derek Miles to death. The suspicious circumstances in which the black cloth bag was discovered, and the inconsistencies in the descriptions by George, Sr. and Mary Ann about the January 19, 2018 trip to Tim Horton’s and the appellant’s purported admissions, raise the red flag of potentially tainted evidence.

Vetrovec Principles Applied

[118] In her review of the testimony of George, Sr. and Mary Ann, the trial judge pointed out inconsistencies and contradictory evidence. In relation to their evidence about the appellant’s admissions of beating Mr. Miles, the trial judge mentioned discrepancies in their narratives:

[119] The trial judge also reviewed for the jury the evidence of George, Sr. and Mary Ann about the black cloth bag when she provided her instructions on afterthe-fact evidence. The theory of the defence, which the trial judge read to the jury, also touched on it. These aspects of the judge’s jury charge did not constitute a Vetrovec warning.

[120] In considering this ground of appeal, I have considered the role of trial counsel who did not ask for a Vetrovec warning. The Supreme Court of Canada in Khela had the following to say on the subject:

[50] …I think it important to reiterate that counsel have a responsibility in summing up for the jury to address the issue of unsavoury witnesses and the presence or absence of confirmatory evidence. The Crown should direct the jury’s attention to evidence that tends to reinforce the credibility of the tainted witness; defence counsel, to avoid any apprehended misunderstanding in this regard, should identify for the jury’s benefit evidence that cannot be considered confirmatory at all. In addition, it may be helpful to assist the trial judge in crafting an appropriate Vetrovec warning by way of a pre-charge conference.

[121] In his July 27, 2023 affidavit on the fresh evidence motion, trial counsel indicated his opinion the criminal records of George, Sr. and Mary Ann, Mary Ann’s drug trafficking, and the potential they might lie to support their son, were insufficient to establish a basis for a Vetrovec warning. He said he had perceived a risk in pursuing a Vetrovec warning for George, Sr. and Mary Ann because of “the existence of significant corroborating evidence that would be highlighted by the Court in issuing this warning…as well as the comprehensiveness of the final charge”. He testified it was a tactical decision not to seek the warning and said the corroborating evidence that concerned him was that of the Medical Examiner.

[122] In place of a Vetrovec warning, trial counsel was satisfied to rely on his cross-examination of George, Sr. and Mary Ann which elicited inconsistencies in their narratives of the January 19, 2018 drive with the appellant, and the suspicious discovery and condition of the black cloth bag. In his jury address, he had reminded the jury of this evidence, and suggested George, Sr. and Mary Ann had concocted evidence to help their son. He told the jury this should cause them “great concern about relying on the evidence of George Purvis, Jr., George Purvis, Sr. and Mary Ann Purvis”.

[123] In his July 27, 2023 affidavit, on the issue of a Vetrovec warning, trial counsel said:

43. …In my opinion, these inconsistencies may have been overwhelmed and outweighed, and the Vetrovec warning may have weakened the defence, if the Court was to highlight all of the corroborative evidence of what Maryann and George, Sr. testified to the Appellant telling them.

[124] With respect, I fail to see how a Vetrovec warning in relation to George, Sr. and Mary Ann could have had a negative impact on the appellant. I have already indicated the Medical Examiner’s evidence was not confirmatory of George, Jr.’s truthfulness. In the circumstances of this case, the jury should have been warned by the trial judge of the danger associated with relying on George, Sr. and Mary Ann in the absence of confirmatory evidence. Evidence confirmatory of what the appellant purportedly admitted to them came most directly from George, Jr. A Vetrovec warning would have identified his evidence as not independent.

[125] Trial counsel’s tactical decision was built on a faulty foundation. It was ultimately the trial judge’s responsibility to provide the jury with a Vetrovec warning. I find the trial judge should have warned the jury that it was dangerous to accept the evidence of George, Sr. and Mary Ann without independent confirmation to indicate they were likely telling the truth. It was an error of law not to have done so.

Conclusion

[129] In my respectful view, the trial judge’s Vetrovec instruction in relation to George, Jr., and the failure to provide a Vetrovec warning in relation to George, Sr. and Mary Ann, constituted errors in law.

[130] I would allow the grounds of appeal in relation to the Vetrovec warning issues.

Issue #3 – Did the trial judge err in law in her mid-trial instructions and final jury charge by providing an inadequate instruction in relation to George, Jr.’s guilty plea to manslaughter?

Principles Applied

[138] I have already discussed the shortcomings of the trial judge’s Vetrovec warning in relation to George, Jr.’s testimony. The jury was not adequately equipped to assess George, Jr.’s credibility and the trial judge’s instruction on his guilty plea compounded the problem. The instructions also have to be reviewed in in the context of the Crown’s jury address. I will deal with that first.

[139] The Crown’s jury address on the issue of George, Jr.’s credibility and his guilty plea should have been the subject of a clear, sharp instruction from the trial judge. Characterizing George, Jr. as “a very credible witness” whose evidence had “a ring of truth”, Crown counsel went on to say:

….…George’s story has been the same from the beginning. During crossexamination Defence was unable to identify a single material inconsistency between what he said before during his police statement when he testified previously at a preliminary inquiry, and what he said to an undercover police officer. George has been unequivocal from the beginning. He did not….

[140] Crown counsel invited the jury to assess George, Jr.’s credibility on the prohibited basis that he had previously said the same thing, that the appellant alone had inflicted the fatal beating on Derek Miles. The trial judge did not instruct the jury that a witness’ prior consistent statements cannot be used to find the witness has, in repeating the same version in his evidence, testified truthfully. The inference that a witness’ testimony is more likely to be true because it has been repeated more than once is prohibited.47 Put another way: “Telling the same lie twice does not make it true”.

[141] The trial judge also did not instruct the jury they must not think because George, Jr. pleaded guilty to manslaughter, the appellant must also be guilty of homicide.

[142] As I noted above, in her review of George, Jr.’s evidence, the trial judge said the following:

…George Purvis, Jr. testified that he did not assault or even touch Derek Miles, and that the injuries on Derek Miles were entirely caused by Gregory Purvis. George Purvis, Jr. was charged with second degree murder, along with Gregory Purvis and Murray Timmons, but pled guilty to manslaughter as a party to that offence. You will remember that I gave you an instruction about the expression “party to the offence”. It is possible to be guilty of an offence in a variety of ways. George Purvis, Jr. says that what he did wrong was in bringing Gregory Purvis to the home of Derek Miles which led to the death of Derek Miles…

[143] It was some time before this guilty plea reference that the trial judge had told the jury, “George Purvis, Jr.’s guilty plea has absolutely no bearing on whether Gregory Purvis is guilty”. The earlier instruction had insufficient resonance in the overall charge.

[144] In the review of George, Jr.’s evidence and her jury instructions overall, the trial judge did not give clear direction that would have left the jury in no doubt about how to factor his guilty plea into their deliberations.

[145] With respect, I do not agree with the respondent that the trial judge’s instructions to the jury were free of error and enabled the jury to make proper use of George, Jr.’s guilty plea. Correct and robust instructions were required, especially in light of Crown counsel’s final submissions.

Conclusion

[146] It is my respectful conclusion, the trial judge’s instructions to the jury in relation to George, Jr.’s guilty plea to manslaughter were marred by legal error.

[147] I would allow this ground of appeal.

R v Mostowy, 2024 BCCA 197

[May 28, 2024] Severance of Charges [Reasons by Saunders J.A., with Fenlon and Horsman JJ.A. concurring]

AUTHOR’S NOTE:In this case, the failure to apply for severance resulted in a miscarriage of justice, which was corrected on appeal due to ineffective assistance of counsel. The accused faced charges of breaching conditions related to contact with employees from a previous series of sexual assault charges, along with a new sexual assault charge. All these charges were included in the same indictment and were set to be tried together before a jury.

Despite the possibility for the judge to instruct the jury against propensity reasoning—warning them not to assume the accused’s guilt based on past behavior—proceeding without seeking severance was a critical error in these circumstances. Severance would have allowed for the charges to be tried separately, minimizing the risk of unfair prejudice. Given the nature of the charges, the jury might have been unduly influenced by the accumulation of allegations, leading to a potential bias against the accused.

By failing to apply for severance, the defense counsel did not adequately protect the accused’s right to a fair trial. The appellate court recognized this oversight as a significant error, resulting in a decision to overturn the conviction based on ineffective assistance of counsel. This case underscores the importance of considering severance in situations where multiple charges could lead to prejudicial reasoning by the jury.

[1] On May 7, 2019, a jury convicted the appellant, Kyle Christopher Mostowy, of one count of sexual assault between April 1, 2014 and June 30, 2014, contrary to s. 271 of the Criminal Code. The day before, prior to closing submissions to the jury, the judge entered a directed verdict of acquittal on a second count on the indictment – breach of recognizance contrary to s. 145(3) of the Code. That second count concerned a condition of a recognizance of bail granted to Mr. Mostowy on July 19, 2012, in respect of five prior counts of sexual assault of five former female employees: “You must not employ any female staff at your business [name] at [address of home office]”.

[4] I would not accede to the first ground of appeal, but would allow the appeal on the basis of ineffective assistance of counsel and order a new trial.

[5] In my view, defence counsel’s omission in failing to apply for severance of the counts, combined with the consequential effects of that omission on developing the evidentiary record before the jury (including in regards to the theory of recent fabrication), amounts to a miscarriage of justice within the meaning of s. 688(1)(a)(iii) of the Criminal Code.

Background

[8] Throughout the relevant time Mr. Mostowy operated a construction business from his home office, employing project workers at construction sites. The charges in the five-count indictment alleged that in different periods in 2010 and 2011, serially, he had sexually assaulted five former female employees.

[9] Mr. Mostowy was released on bail on the five-count indictment on July 12, 2012 on conditions of recognizance including the one recited above in para. 1. He was convicted by a jury on all five counts on January 15, 2016, sentenced to a period of incarceration on January 27, 2017, and released on parole on January 23, 2019.

[10] The trial on the five-count indictment was the subject of considerable local media coverage. On January 24, 2016, after that publicity, B.F. alleged to the police that Mr. Mostowy had sexually assaulted her between April 1, 2014 and June 30, 2014. This report resulted in the two-count indictment laid August 1, 2017, charging sexual assault and breach of recognizance that is before us.

[11] There was a false start with jury selection, and then pre-trial conferences conducted by different judges. It was acknowledged during the conferences that the breach count would raise the risk of propensity reasoning by the jury because it would identify that Mr. Mostowy had been on bail on another indictment. Judges expressed strong concern that this breach of recognizance count was joined on the indictment with the count of sexual assault.

[14] Notwithstanding the judge’s expressed concern, neither counsel acted to sever the counts.

[16] In the March 1 case conference, Madam Justice Power canvassed with counsel the questions to be put to prospective jurors in the challenge procedure. The colloquy included:

[DEFENCE COUNSEL]: There were five complainants initially that he was tried and convicted on. … …

Now normally I would have some hesitation because it also alerts the jury to the fact that there’s something going on, but the questioning of the complainant is also going to involve her awareness of the publications and —

THE COURT: So you are not going to get away from it no matter what. [DEFENCE COUNSEL]: I can’t get away from it, no.

[18] The complainant B.F. and Mr. Mostowy were the two main witnesses at the trial. In addition to B.F., the Crown called the police officer who took B.F.’s statement, a project manager for the Company who could not recall working with B.F., and two bail supervisors who identified Mr. Mostowy’s recognizance of bail that listed the charges he was then facing and the conditions placed upon him. The recognizance of bail was admitted into evidence and marked as an exhibit. It recited five counts of sexual assault occurring in different time periods in 2010 and 2011.

[19]….B.F. testified that it was only after she saw publicity from Mr. Mostowy’s first trial (on five counts), that she made her complaint to the police. B.F. denied having a financial motive in making a report, and during cross-examination referred to Mr. Mostowy as having “done it five times before”. She stated in cross-examination that Mr. Mostowy had been convicted on those charges.

[20] Mr. Mostowy testified. He denied all allegations of sexually touching B.F.; he said it just did not happen.

[21] On conclusion of the evidence the judge again expressed her concern that the breach of recognizance count was joined with the sexual assault count:

THE COURT: … I frankly am always troubled when a breach is on an indictment when it’s before a jury. And I think that’s a practice that should be discouraged. …

[22] The judge and counsel then discussed the content of the jury instructions. The judge canvassed her intended instructions on the meaning of the condition in issue in count two, with the competing interpretations being that the condition prohibited the company from employing any female persons anywhere, and that it prohibited the company from employing female persons at the office. In the post-evidence colloquy, Crown counsel advised that the Crown did not want to go down the pathway of the question of whether B.F. was employed at the office. After hearing from counsel, the judge determined that the condition in the recognizance of bail was ambiguous. She announced that conclusion to the jury and withdrew the breach of recognizance charge from it by entering a verdict of acquittal.

[23] After the jury returned with a guilty verdict on the charge of sexual assault, the judge made findings of fact for the purposes of sentencing. She found that Mr. Mostowy had sexually assaulted B.F. on six occasions.

Discussion

1. Failure of the Judge to Order Severance Ex Maro Motu

[30] In his first ground of appeal, Mr. Mostowy contends that the judge erred in failing to sever the counts on her own motion.

[33] Here counsel did not apply for severance. Mr. Mostowy says that the trial court had inherent jurisdiction to control its own processes to ensure a fair trial and under that authority should have severed the counts on its own motion.

[34] Of course it is open to a trial judge to sever counts on the judge’s own motion but such cases are generally, as said in R. v. Wells, [2001] O.J. No. 81 (C.A.), “rare and unusual”. Given that the judge at that stage will not have been asked to sever the counts and will not have counsels’ deeper knowledge of the case, a trial judge will not sever counts lightly. I know of no cases in which an appellate court has interfered with a verdict for the reason that a judge did not sever counts on an indictment ex moro motu.

[35] Certainly this case, where both counsel advised the judge that Mr. Mostowy’s prior charges would become known to the jury in any event, did not mandate such action. While I question those assumptions below, the judge cannot be faulted for proceeding with both counts in the circumstances.

2. Ineffective Assistance of Counsel and s. 686(1)(a)(iii)

[37] Mr. Mostowy alleges several deficiencies of representation that he says fatally undermined trial fairness and the jury’s verdict, to the point of a miscarriage of justice within the meaning of s. 686(1)(a)(iii) of the Code. As noted above, I focus my comments on the omission of an application to sever the counts, and the implications of that omission for the trial on the count of sexual assault, including in respect of the theory of recent fabrication.

[39] The approach we must bring to the allegation of ineffective assistance of counsel is described in Hamzehali and R. v. Ball, 2019 BCCA 32. In Ball, Justice Dickson gathered together the principles that emerge from the jurisprudence, particularly G.D.B. She said:

[106] An accused who is represented by counsel is entitled to receive effective legal assistance. Our adversarial system operates on the premise that competent partisan advocacy will best expose the truth of a criminal allegation. Effective representation ensures that the prosecution case is tested and the defence case is advanced by a knowledgeable and skilled advocate performing these functions adequately. It also enhances the adjudicative fairness of the process by ensuring that the accused receives the full benefit of all available procedural protections: R. v. Joanisse, [1995] O.J. No. 2883 (C.A.) at paras. 65-66. Both contribute to the fairness of a trial.

[107] A claim of ineffective assistance of counsel has two distinct components, performance and prejudice. To succeed, the appellant must establish both that counsel’s acts or omissions were incompetent (performance) and that, as a result, a miscarriage of justice occurred (prejudice). Professional incompetence is assessed on a standard of reasonableness and it must be proven on a balance of probabilities. A miscarriage of justice resulting from professional incompetence must also be proven on a balance of probabilities and it may take many forms: R. v. G.D.B., 2000 SCC 22 at paras. 26-28; R. v. Dunbar, 2003 BCCA 667 at para. 34.

[108] The bar for establishing professional incompetence is high and surpassing it is challenging. It is strongly presumed that counsel’s conduct fell within the wide range of reasonable professional assistance, deference will be accorded to counsel’s strategic and tactical decisions and the “wisdom of hindsight” has no place in the analysis. …

[109] On appeal, a court should analyze the prejudice component of an ineffective representation claim before the performance component. …

[110] The prejudice component of an ineffective assistance claim is established where the appellant proves that professional incompetence is linked to a miscarriage of justice. A miscarriage of justice can result where there is a reasonable probability that the outcome of the proceedings below would have been different but for the errors made by counsel. …

Prejudice

[41] The standard for a finding of prejudice sufficient to find ineffective assistance of counsel is whether there is a reasonable probability that the outcome of the proceeding would have been different but for the points criticized. The question in this case is whether that degree of prejudice was created by defence counsel raising recent fabrication and by his failure to apply for severance, individually and combined. In my view it was. While I consider the failure to seek severance is the operating fault leading to prejudice, there is also contribution to the accumulated prejudice from counsel’s handling of the theory of recent fabrication. I will address this first.

[43] On that issue, Mr. Mostowy deposes he was not aware of the term “recent fabrication” until after the trial. He deposes that he did not recall discussing trial strategy with his counsel before or during the trial and he did not instruct his counsel to challenge for cause. He deposes that he understood it would not be good for his case “if the jury heard details of the breach charge along with [the sexual assault charge]” because the jury then would know that he had a prior criminal case, but says he trusted that his legal interests would be protected by his counsel.

[44] In answer, defence counsel deposes that he does not agree with Mr. Mostowy’s statement in his affidavit that he [Mr. Mostowy] did not give “instructions to advance a defence of recent fabrication”. In explanation, defence counsel refers to communications from Mr. Mostowy asserting that “B.F. had fabricated the sexual assaults”, including in particular these passages from exhibits to Mr. Mostowy’s affidavit in which Mr. Mostowy stated to him in correspondence:

I hope that helps you. I can’t stress to you enough, that this person is fabricating all of the events that she is saying occurred between her and I. I believe she is doing this for attention and to insert herself into the “Other group of Victims”

And:

Why would she go through the hassle of fabricating such a series of events? What was her motivation?

I came up with a couple of scenarios. First of which is financial …

[46] I conclude from the affidavits that the term ‘recent fabrication’ and the implications of raising recent fabrication were not discussed between Mr. Mostowy and defence counsel but that, in the context of the two counts on the indictment, there was an understanding that defence counsel would try to explore with B.F. whether there were base reasons for her coming forth with allegations against him only after publicity from his five-count trial.

[47] There is risk inherent in raising recent fabrication with a witness: the gambit opens the door to evidence of consistent statements made before the event that is advanced as creating a base motive to fabricate evidence. Normally evidence of prior consistent statements is not admitted on the basis it has no probative value: R. v. Stirling, 2008 SCC 10. However, as explained in Stirling, a door is opened to such evidence where it is suggested a witness fabricated evidence after a motivation to fabricate arose. In Stirling, Justice Bastarache explained:

[5] It is well established that prior consistent statements are generally inadmissible (R. v. Evans, [1993] 2 S.C.R. 629; R. v. Simpson, [1988] 1 S.C.R. 3; R. v. Béland, [1987] 2 S.C.R. 398). This is because such statements are usually viewed as lacking probative value and being self‑serving (Evans, at p. 643). There are, however, several exceptions to this general exclusionary rule, and one of these exceptions is that prior consistent statements can be admitted where it has been suggested that a witness has recently fabricated portions of his or her evidence (Evans, at p. 643; Simpson, at pp. 22-23). Admission on the basis of this exception does not require that an allegation of recent fabrication be expressly made — it is sufficient that the circumstances of the case reveal that the “apparent position of the opposing party is that there has been a prior contrivance” (Evans, at p. 643). It is also not necessary that a fabrication be particularly “recent”, as the issue is not the recency of the fabrication but rather whether the witness made up a false story at some point after the event that is the subject of his or her testimony actually occurred (R. v. O’Connor (1995), 100 C.C.C. (3d) 285 (Ont. C.A.), at pp. 294-95). Prior consistent statements have probative value in this context where they can illustrate that the witness’s story was the same even before a motivation to fabricate arose.

[Emphasis added.]

[48] It is important to note that the theory of recent fabrication is different from the general defence of fabrication simpliciter, that is, asserting that the evidence is simply fabricated in a way unaffected by formation of a specific motivation. I adopt this distinction described in R. v. Vassel, 2018 ONCA 721:

[124] … A bald allegation of fabrication does not amount to an allegation of recent fabrication because essential to the latter is an assertion that at some identifiable point in time the witness began to make the claim being challenged. For example, the allegation may be that a particular cause or event was the genesis for the fabrication: Kailayapillai [2013 ONCA 248], at paras. 43-45. Proof of a consistent statement made prior to that point in time rebuts the allegation of recent fabrication.

[49] In this case, evidence of prior consistent statements was admitted without question, being the testimony of B.F. that Mr. Mostowy was interrupted in an assault by the arrival of another employee to whom she commented negatively on Mr. Mostowy’s overtures, and testimony that she had told her former boyfriend of Mr. Mostowy’s unwanted sexual behaviour towards her. By this testimony the body of evidence favouring R.F.’s credibility and detracting from Mr. Mostowy’s credibility grew, to the prejudice of Mr. Mostowy.

[50] By itself, without consideration of the second complaint of failing to apply to sever the counts, I conclude that in the circumstances there was prejudice to Mr. Mostowy in advancing the theory of recent fabrication.

[51] The second, and more serious, complaint is that defence counsel did not apply for severance. By continuing on the track of a two-count trial, the defence lost the opportunity to avoid the five prior charges of sexual assault against female employees becoming known to the jury. I will address below the Crown’s stated position that because this information was part of the narrative, and because defence counsel’s concerns about publicity from that trial compelled challenges in jury selection, the negative potential I have just identified was counteracted in any event. At this stage, I simply consider the legal consequences of proceeding on the two-count indictment.

[52] Taken in isolation, charging Mr. Mostowy with two counts on one indictment ensured the jury learned of the five prior charges of sexual assault. That information is on the form of recognizance of bail properly entered as an exhibit. And while it was not inevitable that the jury would learn that Mr. Mostowy was convicted on those counts, such was a real possibility for the jury, absent clarification that he had been acquitted. As it happened, B.F. testified that Mr. Mostowy had “done it five times before”, and Mr. Mostowy’s criminal record in respect of those counts became known to the jury.

[53] In a single-count trial this evidence would not develop without first clearing the hurdle of a Corbett application: R. v. Corbett, [1988] 1 S.C.R. 670. Considering the familiar test of probative value versus prejudicial effect, and the slim grounds of relevance this evidence might have on the count before the court, I am of the view that there was a realistic probability evidence of the prior case would not have been admitted on a single-count trial of sexual assault.

[54] The risk created here by knowledge of the prior case was of propensity reasoning by the jury. I recognize this can be handled in a trial in the instructions to the jury, and that in this case the judge gave a standard instruction to the jury that they must guard against propensity reasoning. However, that does not undo the fact that evidence of the extent of charges and their disposition was before the jury only because the counts were tried together. The degree of this prejudice, in my view, is immense. [PJM Emphasis]

[55] Further, defence counsel’s pursuit of the theory of recent fabrication was formed in the context of the indictment charging two counts. On the indictment as it was presented, the fact of five prior charges inevitably would become known to the jury. Given the lack of particulars of the dates of the alleged assaults, alibi evidence was not a viable strategy. The trial on the sexual assault charge was destined to be a contest between the two witnesses, with one saying “this happened”, and the other saying “it did not”. In such a circumstance in a trial on the two counts, with a complaint laid only after publicity from the prior trial on five counts, pursuing a theory of recent fabrication may well have come “within the range of reasonable professional assistance”. In other words, I cannot see that the advancement of this theory can be disassociated from the form of indictment; the indictment was the basis from which everything followed. I conclude that the pursuit of recent fabrication, complete with its prejudice component, accordingly falls into the ambit of prejudice arising from the failure to apply for severance of the counts

[66] Returning to the test on the issue of prejudice, I conclude the prejudice is so great that there is a reasonable probability the outcome on the sexual assault charge would have been different but for the events and omission I have discussed; that is, the element of prejudice is established.

Performance

[67] I turn now to the performance component.

[68] As I have indicated above, pursuing a theory of recent fabrication in the context of the two-count indictment may well have come “within the range of reasonable professional assistance. Even with a proper instruction to the jury on propensity reasoning, which was given in this case, the evidence that would inevitably emerge from trying the breach of recognizance count along with a count of sexual assault was formidable to the defence on the count of sexual assault. The circumstances of the two count indictment lent usefulness to the theory of recent fabrication. I would not second guess defence counsel’s decision to question B.F. on her motivation for her report.

[69] I reach the other conclusion, however, on the failure to apply for severance of the two counts. It appears neither Crown nor defence counsel turned their mind to the serious prejudice to the trial process that was inherent in the form of indictment, given the substance of the charges. And it is clear, in particular, that notwithstanding the reservations to the form of indictment expressed by Justice Duncan in November 2018, and Justice Power in March 2019, there was no attention directed by defence counsel to an application to sever the counts.

[70] Each case must be decided on its own circumstances. In my view, here the failure of defence counsel to explore the possibility of severance was outside of the admittedly wide range of reasonable professional assistance. It was neither tactical nor strategic but rather happened because, as defence counsel properly and with exemplary candour has said, severance was a matter that that “did not sufficiently crystallize” in his mind. I conclude that this was an unreasonable oversight, and not within the wide range of reasonable professional assistance. I am satisfied the performance requirement described in the cases above is met.

[71] In hindsight, it would have been wise for all persons involved to heed the judicial concerns on the form of indictment made clear in the pre-trial conferences. This did not happen here, with the result that, in my view, the representation of Mr. Mostowy intersected with the risks of trying the breach count with the count of sexual assault so as to render the trial unfair, undermine the reliability of the jury’s verdict, and result in a miscarriage of justice within the meaning of s. 683(1)(a)(iii) of the Code.

[72] I would allow the appeal, set aside the verdict, and order a new trial.

R v Kwon, 2024 SKCA 50

[May 9, 2024] Ungrounded Assumptions and Stereotypes in the Post-R v Kruk Landscape [Majority Reasons by Barrington-Foot and Drennan JJ.A., Dissent by Tholl J.A. on the remedy only]

AUTHOR’S NOTE: In this case, the Court of Appeal applied the principles set forth in the Supreme Court of Canada’s Kruk decision to critique the trial judge’s reliance on assumptions about sexual behavior between men and women. This approach revisits the problematic reasoning common before Kruk, but with a key difference in the standard of review applied. The Court of Appeal replaced the “correctness” standard with the “palpable and overriding error” standard.

Key Takeaways:

1. Unfounded Assumptions and Standard of Review:
   • Unfounded Assumptions: These are particularly susceptible to being overturned under the palpable and overriding error standard because they often represent conclusions drawn without proper evidentiary support, relying instead on generalized beliefs about human behavior.
   • Palpable and Overriding Error: This standard requires a higher threshold for appellate intervention than the correctness standard. However, even under this more deferential review, assumptions without a solid evidentiary basis can still lead to a finding of error.
2. Pre-Kruk Reasoning and Modern Judicial Scrutiny:
   • Pre-Kruk Reasoning: Historically, Courts of Appeal would have overturned decisions based on stereotypical assumptions about behavior on the basis of the correctness standard. In all but the reference to the new standard, this case is reminiscent of pre-Kruk reasoning.
   • Modern Scrutiny: Contemporary judicial review under the Kruk framework emphasizes that any assumptions about human behavior must be explicitly supported by the evidence presented in the particular case – simply with reference to the “palpable and overriding” standard.
3. Requirement for Evidence-Based Assumptions:
   • Generalized Assumptions: While judges can use common sense inferences, these must still be tied to the facts and evidence of the case. Assumptions about how people typically behave must be reflected in the specific circumstances and actions described by the witnesses or evidence.
   • Grounding in Evidence: Assumptions about human behavior should emerge naturally from what witnesses said or did, or from the particular attitudes or thoughts expressed during the case. For example, if a judge assumes certain behavior based on gender roles, this must be corroborated by the behavior or statements of the individuals involved in the trial.
4. Application of the Kruk Principles:
   • The Kruk principles stress that judicial reasoning must avoid unfounded stereotypes and should instead focus on the unique facts of the case. Any behavioral assumptions must be carefully linked to the evidence.
   • Even under the palpable and overriding error standard, where appellate courts give considerable deference to trial judges, reasoning that relies on generalized assumptions without evidentiary support is likely to be overturned.

Conclusion:

The Court of Appeal’s application of the Kruk principles reinforces the importance of basing judicial conclusions on evidence rather than on unfounded assumptions about human behavior. Although the standard of review has shifted to palpable and overriding error, this does not insulate trial judges’ reliance on generalized assumptions from scrutiny. Courts must ensure that any inferences about behavior are firmly rooted in the specific evidence presented in the case, thereby upholding fairness and accuracy in judicial reasoning.

I. INTRODUCTION

[1] On January 14, 2022, after a judge alone trial in what was then the Court of Queen’s Bench, Soon Hyong Kwon was convicted of sexual assault upon A.D., contrary to s. 271 of the Criminal Code. He was sentenced to three years incarceration. By way of background, Mr. Kwon had been tried and convicted of the same offence by a different Queen’s Bench judge in November of 2018. His conviction was overturned by this Court and remitted for a new trial (R v Kwon, 2020 SKCA 56, 386 CCC (3d) 553 [Kwon 2020]).

[2] Mr. Kwon appeals his conviction, alleging, amongst other things, that the trial judge erred by misapprehending the evidence, by relying on assumptions not grounded in the evidence, and in her consideration of his asserted honest but mistaken belief in communicated consent. He argues that the verdict was unreasonable, and that other reasonable inferences consistent with innocence were available on the evidence.

[3] We agree with Mr. Kwon that the trial judge erred in these ways and that a trier of fact, acting judicially, could not reasonably have been satisfied that his guilt was the only reasonable conclusion available on the evidence taken as a whole. As a result, we would allow his appeal, quash his conviction, and enter an acquittal. Our reasons for these conclusions follow.

II. THE TRIAL

[4] Mr. Kwon immigrated from Korea to Canada in December of 2009. He is a permanent resident of Canada. At the time of the incident, he lived in Grenfell, Saskatchewan, with his wife and children. He operated the Grenfell bar.

[5] The complainant, A.D., is a resident of a southern Saskatchewan First Nation [First Nation]. She is married to T.D. She knew Mr. Kwon for several years leading up to the incident, as she and T.D. frequented the Grenfell bar.

[6]….March 20, 2015….

[7] T.D. stayed at the bar only briefly for one drink, before returning home and leaving A.D. behind. He described her as being “half cut” and “feeling good” when he left. He also described A.D. as being a 4 out of 10 on the intoxication scale, with 10 being on the high end of intoxication. He testified he was a 5 out of 10. T.D. did not speak to A.D. until the next morning.

[8] A.D. is an alcoholic who drank regularly. She remained at the bar and continued drinking after T.D. left. She could not recall the specific quantity she drank. She eventually obtained a ride home from Mr. Kwon. Her evidence at trial was that before she left the bar with Mr. Kwon around 2:00 a.m., she was a 4 out of 10 on the scale of intoxication (10 being passed out drunk).

[9] A.D. testified that Mr. Kwon had to help her into his vehicle because she could not walk straight. She did not recall the drive, except going over train tracks, seeing the three-mile bridge, and being on a gravel road. She recalled “just getting home basically”. She did not recall conversation but heard “funny music”. She also recalled feeling pain on her chest at some point, and thinking the passenger door was opened. Thereafter, A.D. recalled waking up in her home, feeling hungover, and being on the couch wearing the same clothes as she had worn the night before.

[10] When A.D. went to the bathroom, she noticed discharge coming out of her vagina. She subsequently had a bath. T.D. came home and spoke to her. She asked T.D. if they had been intimate the night before. He said no. She was alarmed and T.D. suggested they attend a hospital. A.D. subsequently underwent a sexual assault kit examination. Samples of Mr. Kwon’s DNA were retrieved from her underwear and a vaginal swab.

[11] When A.D. was asked if she would have consented to sex with Mr. Kwon, she testified that she had never been attracted to him, and that she would not have consented, or had unprotected sex with anyone other than her husband. She said she would not have sex with anyone who was not Indigenous.

[13] Mr. Kwon’s first language is Korean. He required the assistance of an interpreter throughout both of his trials. Mr. Kwon testified that A.D. and T.D. were regulars at the Grenfell bar. Two or three times per year, he observed them to be intoxicated. He had driven them home from the bar on prior occasions.

[14] On the evening of March 20, 2015, Mr. Kwon described A.D. as “about the same as usual” and “about average” as other times he had seen her. He characterized her as being a 4 out of 10 on the intoxication scale. When she asked for a ride home, she was not stumbling and was able to get into his vehicle on her own. She got in the front passenger seat and put on her seatbelt.

[15] Mr. Kwon said that, during the drive, A.D. asked him to play music, and so he played a Korean CD of music. While driving on the grid, A.D. asked Mr. Kwon to stop so she could pee. He testified that he stopped, and described what followed in this way:

Q MR. SCHMELING:   Can you describe [A.D.]?

A   So, I stopped the car, she got out of the car on her own and then she went to pee. After she was done peeing, she came back to the vehicle and she mentioned stars and moon being very bright. And she started talking very emotional.

Q    And did she seem intoxicated to you?

A    No.

Q    How did she seem compared to other times you have dealt with her?

A    Typical.

Q    And after she talked about the moon and the stars, was there any other conversation?

A    Yes.

Q    And what was that?

A    Would you like to have sex with me.

Q    What were the exact words she said?

A    Do you want to fuck with me.

Q    Okay. And what did you say back?

A    Are you okay? I would like to explain, my intention was to see if she is agreeing to have sex.

Q    And what did she say?</>

A    Yes.

[16] Mr. Kwon initially denied having intercourse with A.D. when interviewed by police. He said this was because A.D. had asked him to keep the secret of their infidelity. In his second statement to police, he admitted intercourse occurred but asserted it was consensual. At trial, he maintained the narrative contained in that second statement.

III. THE TRIAL DECISION

[18] The trial judge considered Mr. Kwon’s credibility, noting that caution was required given that he had used an interpreter to give evidence. She found he was not credible and observed that aspects of his evidence were disingenuous and argumentative. She ultimately concluded as follows:

[67] In other words, in relation to the issue of whether the Crown has proven beyond a reasonable doubt that [A.D.] was incapable of consenting or did not consent, I do not accept Mr. Kwon’s testimony, nor am I left in reasonable doubt by it. [on page 22]

[19] The trial judge accepted A.D.’s evidence as credible and reliable. She found that A.D. had a total of 10–12 beer on the night in question, was incapacitated by alcohol, and that she did not have the capacity to consent:

[20] The trial judge went on to consider whether Mr. Kwon had an honest but mistaken belief in communicated consent. She found that Mr. Kwon’s single inquiry of A.D. of “are you okay” did not constitute a reasonable step to ascertain consent, and that he was reckless and wilfully blind to the fact that A.D. did not have the capacity to consent:

V. ANALYSIS

A. The trial judge erred in her treatment and rejection of Mr. Kwon’s evidence

[22] To preface this aspect of the appeal, it is useful to understand that the trial judge considered Mr. Kwon’s evidence in two places in her reasons: on the issue of capacity to consent and consent, and later in an assessment of Mr. Kwon’s asserted honest but mistaken belief in communicated consent. In the context of capacity to consent and consent, she disbelieved Mr. Kwon’s evidence, and was not left in reasonable doubt by it. There is, however, one portion of Mr. Kwon’s evidence respecting a verbal exchange with A.D. immediately prior to the sexual encounter that the trial judge appears to have implicitly accepted had occurred, because she drew inferences from it.

1. Misapprehension of the evidence

a. Misapprehension of Mr. Kwon’s evidence on A.D.’s consciousness

[27] The trial judge discussed Mr. Kwon’s testimony about whether A.D. was asleep or awake during the drive home in several places in her reasons. The portion of her reasons explaining her rejection of his evidence on the issue of consent, and capacity to consent, is below:

[59]….Although Mr. Kwon at one point said [A.D.] was “mostly” awake, he resisted the suggestion she must, therefore, have sometimes been asleep. He clarified that [A.D.] sometimes had her eyes closed like she was enjoying the music, but was not asleep….

[67]….During examination-in-chief, Mr. Kwon was asked if [A.D.] was unconscious during the ride home. He said no. Asked if she was asleep or awake, he said awake. Under cross-examination, Mr. Kwon modified his answer to “mostly awake” but resisted the suggestion she was sometimes asleep. Rather, he testified that, although her eyes were sometimes closed, she was not sleeping. I found this portion of Mr. Kwon’s testimony disingenuous….

[28] This aspect of her reasons reflects an understanding by the trial judge that (a) Mr. Kwon had testified and agreed at the first trial that A.D. was sleeping for a portion of the ride home and “woke up”, (b) Mr. Kwon testified at the second trial that A.D. was “mostly awake”, and therefore, his failure to admit she was asleep at times was nonsensical, and (c) Mr. Kwon’s prior statement to police – where he said that A.D. had been asleep during the ride home – was a prior inconsistent statement contrasting with his evidence at trial.

[29] Having regard to the record and this portion of her reasons, we agree with Mr. Kwon that the trial judge misapprehended the evidence with respect to his awareness of, or admission to, A.D. having been asleep during the van ride home. That is so for three reasons.

[30] First, when Mr. Kwon’s testimony at the first trial was put to him for the purpose of impeachment during cross-examination, Mr. Kwon denied having testified at the first trial that A.D. was asleep. He clarified that he had meant that A.D. opened her eyes, not that she woke up from sleep. Further, in my view, Mr. Kwon’s testimony from the first trial did not disclose an inconsistency with that given at the second trial.

[36] In fairness to the trial judge, Crown trial counsel did not put the entire exchange on this point to Mr. Kwon. Further, the Crown did not seek to mark the transcript as an exhibit. Having said this, the portion of the first trial that was put to Mr. Kwon did not, in my view, disclose a prior inconsistency. Mr. Kwon maintained that his use of the term “woke” did not mean that A.D. was sleeping – and the evidence read to him from the first trial did not contain an admission otherwise. For this reason, it is my view that the trial judge erred in finding that Mr. Kwon had agreed that A.D. “was sometimes asleep” at the first trial.

[37] Second, Mr. Kwon was testifying through an interpreter. The record is replete with difficulties and interruptions in the translation at key points in the evidence. Notably, the interpreter expressed specific difficulties translating the term “unconsciousness”….

[38] While the trial judge cautioned herself on the assessment of Mr. Kwon’s evidence through an interpreter, there is no indication she grappled with these obvious difficulties in the translation – and the specific impact it had on the meaning ascribed to, and Mr. Kwon’s understanding and use of, terms such as “consciousness” and “sleep”.

[39] As this line of inquiry went to the heart of the issues at trial, it was incumbent upon the trial judge to meaningfully recognize “the disadvantageous impact of translation on a crossexaminer” and the associated difficulty in assessing Mr. Kwon’s credibility in this context (Alan W. Bryant, Sidney N. Lederman & Michelle K. Fuerst, The Law of Evidence in Canada, 3d ed (Markham, Ont: LexisNexis, 2009) at §16.31; see also R v Dacosta, 2012 BCPC 19 at para 75). This included recognizing the ambiguities in Mr. Kwon’s evidence through the interpreter, avoiding a microscopic examination of the same, and giving any benefit of the doubt with respect to the meaning of words and phrases to him (R v Tran, [1994] 2 SCR 951 at 987, citing Graham J. Steele, “Court Interpreters in Canadian Criminal Law” (1992), 34 CLQ 218 at 242; see also R v X.J., 2012 ABCA 69 at para 13, 524 AR 123, standing for the proposition that it is impossible to translate testimony perfectly word for word, meaning for meaning). The result is that the trial judge appears to have attributed adverse meaning to terms used by Mr. Kwon such as “mostly awake” or “eyes closed” rather than resolving the ambiguity and confusion in his favour. Indeed, she dismissed the issues resulting from his lack of fluency in English, as well as his explanation that one’s level of consciousness varies depending on whether you are in a deep sleep or light sleep, as demonstrating that he was being disingenuous.

[40] Third and finally, the trial judge’s use of Mr. Kwon’s August 2015 statement to police as a prior inconsistent statement about A.D. having been asleep was problematic. As previously noted, Mr. Kwon gave two statements to police, one in August of 2015, and another in May of 2017. Mr. Kwon’s first statement involved a complete denial of any sexual encounter. His second statement contained an admission to consensual sexual intercourse. Mr. Kwon testified that in his initial statement, he was attempting to conceal both his and A.D.’s infidelity as they had agreed to do. While the trial judge was entitled to make legitimate use of a prior statement as a matter relevant to credibility (see for example R v J.B., 2019 ONCA 591 at para 31, 378 CCC (3d) 302), her narrow reliance on the portion of the statement in which Mr. Kwon stated that A.D. was sleeping at times was erroneous without considering (a) that Mr. Kwon testified that the entirety of the statement was false, and (b) that Mr. Kwon provided an explanation for that falsehood. His explanation for his prior inconsistent statement was relevant to its use in assessing his credibility (see R v Cuadra (1998), 125 CCC (3d) 289 (WL) (BCCA) at para 28, citing R v Speid (1985), 20 CCC (3d) 534 (Ont CA)). The trial judge, in our view, erred in failing to consider this aspect of his evidence in her use of the statement.

[41] All of this leads us to conclude that the trial judge misapprehended Mr. Kwon’s evidence regarding his knowledge of A.D. having been asleep or unconscious, by misunderstanding and misconstruing the substance of his evidence, and by failing to give effect to relevant aspects of his evidence in the assessment of his credibility….

b. Misapprehension of Mr. Kwon’s evidence on A.D.’s presentation

[43] Mr. Kwon argues that the trial judge equated his testimony that he was concerned A.D. should not drive with the potential that she lacked capacity to consent…

[45] First, the record indicates that Mr. Kwon described A.D.’s presentation as relative to past occasions where she had been drinking at the bar and had asked him for a ride home. Therefore, his description of her being “typical” or “normal” could not be taken to mean he observed her being “normal” in the sense of sober. His experience with her was always as a patron at the bar where she consumed alcohol. Further, when asked to rate A.D.’s level of intoxication when she had requested a ride home, Mr. Kwon placed her as a 4 out of 10, or a “just normal, average” level of intoxication:

2. Reliance on assumptions, myths and stereotypes not grounded in the evidence

[48] Mr. Kwon asserts that the trial judge erred during her assessment of the credibility of his evidence by relying on assumptions, myths or stereotypes not grounded in the evidence. These include her comments on what was plausible or implausible surrounding Mr. Kwon’s account of the sexual encounter with A.D.:

67(4) I also found the scenario described by Mr. Kwon highly implausible. On Mr. Kwon’s version, [A.D.], a married woman he did not know well, got out of the van to pee and, upon return, spoke about the moon and stars, then asked him to “fuck”. When he asked [A.D.] if she was okay, she said yes. She then removed her pants and underwear, reclined her seat, opened her legs and, without any foreplay, engaged in two minutes of unprotected vaginal intercourse during which she expressed moans consistent with pleasure. In addition to its general implausibility, there are three aspects of this version I find particularly troubling:

* during examination-in-chief, Mr. Kwon was asked what he meant by the question, “Are you okay?” He testified, “my intention was to see if she is agreeing to have sex.” To me, the question, “are you okay?” does not at all align with his stated purpose. It is far more likely Mr. Kwon was trying to gauge whether [A.D.] was too drunk to consent. This, he adamantly denied.

* under cross-examination, Mr. Kwon testified that, until [A.D.] asked him if he wanted to fuck, he had not even entertained the prospect of having sex with her and found her blunt overture embarrassing. Despite this, on his evidence, he became so quickly aroused that he achieved ejaculation within two minutes of penetration. I find it implausible that if sex with [A.D.] had never even crossed Mr. Kwon’s mind, sexual activity would have unfolded in the manner he described.

[49] Since this matter was argued, the Supreme Court of Canada in R v Kruk, 2024 SCC 7, has clarified the law relating to appeals based on the allegation that the trial judge has erred by relying on common-sense assumptions about human behaviour that are not grounded in the evidence. Prior to Kruk, this and other appellate courts had concluded that it was an error in law for a trial judge to engage in speculative reasoning that invokes common-sense assumptions not grounded in the evidence or supported by judicial notice (see R v Murillo, 2023 SKCA 78 at para 35, 89 CR (7th) 129, citing R v JC, 2021 ONCA 131 at paras 58–59, 401 CCC (3d) 433; see also R v Roth, 2020 BCCA 240 at para 65, 66 CR (7th) 107). They had also found that it was an error in law for a trial judge to rely on “myths, stereotypes, or unfounded inferences” to ground a credibility assessment (see R v Greif, 2021 BCCA 187 at para 61, aff’d 2021 CanLII 109594 (SCC), citing R v Quartey, 2018 ABCA 12 at paras 2 and 21, 430 DLR (4th) 381 (per the majority), and R v Thompson, 2019 BCCA 1, 370 CCC (3d) 354; and JC, R v M.J, 2022 SKCA 106, and R v Adebogun, 2021 SKCA 136 at paras 23–29, [2022] 1 WWR 187).

[50] To be clear, however, the appellate courts that had approached errors of this kind in this fashion had not held that “common sense” – in the sense of logic and human experience – could not be applied in assessing credibility and reliability. That principle was not at issue in cases such as JC, Murillo and Adebogun. In JC, for example, Paciocco J.A. explained why these principles could live comfortably together, commenting as follows:

[59] To be clear, there is no bar on relying upon common-sense or human experience to identify inferences that arise from the evidence. Were that the case, circumstantial evidence would not be admissible since, by definition, the relevance of circumstantial evidence depends upon using human experience as a bridge between the evidence and the inference drawn.

[60] Nor is there any absolute bar on using human experience of human behaviour to draw inferences from the evidence. If there was, after-the-fact conduct evidence about things such as flight or the destruction of evidence would not be allowed. Such evidence is relevant because human experience tells us that these behaviours, flight and destroying evidence after a criminal act, are generally undertaken to hide guilt. An absolute bar on using human experience of human behaviour to draw inferences would also mean that evidence that an accused drove a protesting sexual assault complainant to a secluded location could not be used as proof of his intention or her lack of consent. The inferences to be drawn from that evidence depend on common-sense conclusions about what a person acting in a particular manner is likely to be thinking.

[61] Properly understood, the rule against ungrounded common-sense assumptions does not bar using human experience about human behaviour to interpret evidence….

[51] In Kruk, the Supreme Court did not purport to change the law relating to the appellate review of allegedly improper common-sense assumptions and stereotypical reasoning….

….She explained that there is no need for such a rule, as “[t]he current standards under which appellate courts review trial judgments are well-designed, longestablished, and promote the fair assessment of testimony” (at para 2). Further, she held that the proposed rule would not be “a coherent extension of existing errors of law pertaining to myths and stereotypes against sexual assault complainants” (at para 2) to all witnesses in all criminal trials (at para 26).

[52] However, Martin J. did not suggest that it was no longer open to an accused to appeal from a conviction on the ground that a trial judge had erred by relying on an assumption, not grounded in the evidence, about how men – and thus a particular man – could or would behave. Nor did she assert that a trial judge could not be found to have erred by relying on a “stereotype”. As she acknowledged, an ungrounded assumption about human behaviour can constitute a stereotype, an observation that accords with the common understanding of the meaning of “stereotype” reflected in the following definitions in the Oxford English Dictionary Online (Oxford University Press, December 2023):

A preconceived and oversimplified idea of the characteristics which typify a person, situation, etc.; an attitude based on such a preconception.

To view or portray (a person) as having characteristics corresponding to a widely-held but oversimplified or prejudiced preconception of the group to which they belong.

[55] As Martin J. also notes in passing at paragraph 52, an illogical, untrue or otherwise improper assumption about what a person would or could have done can constitute or result from an error of law. The Newfoundland Court of Appeal highlighted this in its discussion of Kruk in R v E.S., 2024 NLCA 12, commenting as follows:

[15] …the Court in Kruk did recognize that correctness will continue to be the standard for appellate review of credibility assessments if the error alleged is a recognized error of law. The Court stated that “testimonial assessments may … become vulnerable to correctness review for reasonable apprehension of bias (S. (R.D.), at paras. 91-141), making a finding of fact for which there is no evidence (R. v. J.M.H., 2011 SCC 45, [2011] 3 S.C.R. 197, at para. 25; Schuldt v. The Queen, [1985] 2 S.C.R. 592, at p. 604), and improperly taking judicial notice (see, e.g., R. v. Poperechny, 2020 MBCA 81, 396 C.C.C. (3d) 478)” (Emphasis in original, at para. 96). The Court described when speculation on the part of a trial judge will amount to an error of law:

[68] Speculation as an error of law arises where a trial judge has found that certain evidence “creates a reasonable doubt as to the guilt of the accused, when, on a proper view of the law, that evidence is not capable of creating any doubt as to his guilt” (Wild v. The Queen, [1971] S.C.R. 101, at p. 111). In other words, it is an error of law to fail to distinguish between a rational conclusion as to reasonable doubt based on evidence, and an unsupported conclusion based on conjecture (see Wild; Rousseau v. The Queen, [1985] 2 S.C.R. 38; R. v. B. (G.), [1990] 2 S.C.R. 57; R. v. Clark, 2015 BCCA 488, 407 D.L.R. (4th) 610, at para. 43, aff’d 2017 SCC 3, [2017] 1 S.C.R. 86)…

[56] We agree. Correctness review of alleged errors of law is, of course, an essential aspect of the framework for appellate review that Kruk seeks to maintain. That framework is designed to protect the rule of law, including the overarching principle in criminal trials – the presumption of innocence. Some commentators have suggested that Kruk, in refusing to more broadly apply the legal rule against stereotyping through the use of myths and stereotypes, unfairly creates different rules for the assessment of the evidence of complainants and others and, in particular, of the accused in sexual assault cases. In our view, whether that concern is well founded will depend, in part, on the extent to which appellate courts remain open to identifying alleged errors of this kind not only as errors of fact, but as errors of law – as the analytical framework for appellate review demands. We do not understand Martin J.’s statement that “in most cases it is preferable to review [credibility findings] using the nuanced and holistic standard of palpable and overriding error” to suggest otherwise (at para 82). It is never preferable to review an allegation that is properly characterized as relating to an error of law, whether that error has been recognized in the past or in the decision at issue, on the palpable and overriding standard.

[57] We would emphasize in this context that the particular errors that are referred to in this passage from E.S. – or, for that matter, the errors of law listed in paragraphs 68 and 96 of Kruk – are not a comprehensive list of the errors of law that may arise in this context. In paragraph 68 of Kruk, for example, the Court did not say that speculation as an error of law can only arise where there is a failure to distinguish between a rational conclusion as to reasonable doubt based on the evidence and an unsupported conclusion based on conjecture. Rather, Martin J. there posits that “the error of law of speculation …most often arises where trial judges err in acquitting the accused based on speculation” (emphasis added). As she also said, referring to R v Villaroman, 2016 SCC 33, [2016] 1 SCR 1000, it is an error of law to convict where the Crown’s case depends on circumstantial evidence if there is a reasonable explanation other than guilt – which could result from the incorrect conclusion that an explanation is speculative (at para 62). More broadly, as Doherty J.A. explained in Morrissey:

[52] A trier of fact may draw factual inferences from the evidence. The inferences must, however, be ones which can be reasonably and logically drawn from a fact or group of facts established by the evidence. An inference which does not flow logically and reasonably from established facts cannot be made and is condemned as conjecture and speculation. As Chipman J.A. put it in R. v. White (1994), 89 C.C.C. (3d) 336 at 351 (Nfld. C.A.):

These cases establish that there is a distinction between conjecture and speculation on the one hand and rational conclusions from the whole of the evidence on the other. The failure to observe the distinction involves an error on a question of law. [Emphasis by PJM]

[58] Further, it is not only an error of law to make a finding of fact with no evidence, but to make a finding of fact based on irrelevant evidence (R v Bileski, 2022 SKCA 150 at para 23). Fundamental flaws in the logic or rationality of a judge’s reasoning process also constitute an error of law (R v Beaudry, 2007 SCC 5, [2007] 1 SCR 190, and R v Sinclair, 2011 SCC 40 at para 16, [2011] 3 SCR 3). Improper assumptions could constitute or result from errors of this kind.

[59] To be clear, these additional examples are not intended to be comprehensive. Kruk affirms that where an appellant has alleged that a trial judge has committed an error of law in relying on a generalization about what a person could or would do because of their gender or some other identifiable group characteristic, an appellate court must determine whether the appellant has, for the purpose of appellate review, identified an alleged error of law, not one of fact or mixed fact and law….

[62] What, then, is the correct approach where an appellant alleges that a trial judge has erred in applying an ungrounded assumption? Kruk answered this question as follows:

[94] First, where an appellant alleges that a trial judge erroneously relied on a “common-sense” assumption in their testimonial assessment, the reviewing court should first consider whether what is being impugned is, in fact, an assumption. Given the nature of how witnesses give evidence and the need to read the trial judge’s reasons as a whole, what might appear to be an assumption on its face may actually be a judge’s particular finding about the witness based on the evidence.

[95] Second, once satisfied that the trial judge did, in fact, rely on an assumption that is beyond the bounds of what common sense and the judicial function support, the reviewing court should identify the appropriate standard of review applicable to the impugned portion of the trial judge’s credibility or reliability assessment.

[96] The standard of review will be correctness if the error alleged is a recognized error of law. Nothing in these reasons should be taken to limit the scope of existing errors of law relating to testimonial assessments that this Court has previously approved. …

[97] 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.

[98] Once a palpable error has been identified, the reviewing court must also find that the erroneous reliance on the assumption was overriding, in that it is “shown to have affected the result” or “goes to the very core of the outcome of the case” (Clark (2005), at para. 9; Benhaim, at para. 38, citing South Yukon Forest Corp., at para. 46). If it cannot be shown that the error was palpable and overriding, a trial judge’s assessment of credibility or reliability will be entitled to deference and there will be no basis for appellate intervention.

(Italics emphasis in original, bold emphasis added)

[63] While Mr. Kwon’s submissions in relation to this issue were cast, at least in part, in the manner rejected in Kruk, the substance of his argument has merit. In our view, the trial judge erred by relying on assumptions about what Mr. Kwon and A.D. would or could have done that were not findings based on the evidence and, in the language of Kruk, that were beyond the bounds of common sense and the judicial function. The trial judge then relied on these assumptions to find that Mr. Kwon was not credible and to reject his evidence. We will explain.

[64] The trial judge relied on assumptions about human behaviour in a sexual encounter in her credibility assessment in two ways. She first found Mr. Kwon’s account to be implausible because A.D. would not (a) as a married woman, ask a man she did not know well to “fuck”, (b) engage in sexual intercourse for two minutes without foreplay, and (c) moan in pleasure throughout that sexual encounter. She then rejected Mr. Kwon’s evidence that he had not turned his mind to having sex with A.D. sooner, as he became “quickly” aroused and ejaculated after only two minutes.

[65] Respectfully, these assumptions about what men and women would do were clearly illogical and unwarranted within the meaning of Kruk (at para 97). There is nothing implausible about the notion that a married person might bluntly propose to another, and particularly to a longtime acquaintance, that they have intercourse. Nor is there anything implausible, if A.D. asked and Mr. Kwon agreed that they do so, about the evidence that she removed her own clothing and engaged in intercourse in the front seat of a van, that she signified pleasure, or that Mr. Kwon was able to perform sexually as he did. These assumptions were not based on evidence about Mr. Kwon or A.D. They were generalizations about what a man and woman could or would do. They were palpable errors, as they were obviously untrue on their face. [Emphasis by PJM]

[66] Further, these errors were an important and an integral part of the trial judge’s consideration of Mr. Kwon’s credibility and of the reasons why she rejected his evidence. As such, these errors went to the core of the case and constituted a palpable and overriding error. For that reason alone, the conviction appeal must be allowed. In our view, these errors can also be characterized as constituting or forming a key part of illogical or irrational reasoning that was an error of law.

3. Errors of law in the trial judge’s treatment of Mr. Kwon’s evidence

[69] The misapprehensions in this case involved a mistake by the trial judge as to the substance of Mr. Kwon’s evidence, and a failure to give proper effect to his evidence, which were material to the trial judge’s rejection of his evidence (see C.B. at para 20, citing Lohrer). She further improperly relied on illogical and unwarranted assumptions not grounded in the evidence in rejecting his evidence. Both of these amounted to errors in law that were fundamental to the trial judge’s application of W.(D.), and her ultimate finding that A.D. was incapable of consenting or did not consent. We would, accordingly, also allow the conviction appeal on this basis.

B. The trial judge erred in considering whether Mr. Kwon had an honest but mistaken belief in communicated consent

[70] After rejecting his evidence on the issues of capacity to consent and consent, the trial judge considered whether Mr. Kwon had an honest but mistaken belief in communicated consent, citing the controlling authority in R v Barton, 2019 SCC 33 at paras 90–91, [2019] 2 SCR 579. She went on to find that Mr. Kwon was reckless and wilfully blind to the fact that A.D. was incapable of consenting to sexual activity:

[82] As noted above, I have found that [A.D.] consumed between 10 and 12 beer, 7 or 8 of which were served by Mr. Kwon. I have found that, while in the bar, [A.D.] had slurred speech and difficulty walking. I have found that [A.D.] required assistance to walk a straight line from the bar to the van and to get into the van. I have found that, on the drive home, [A.D.] was drifting in and out of consciousness and that her eyes were sometimes closed. That Mr. Kwon was alive to [A.D.’S] diminished level of consciousness is apparent from his own testimony. Asked by his own lawyer if [A.D.] was unconscious during the sex, he said, “I don’t think so.” Under cross-examination, he said [A.D.] sometimes had her eyes closed, but was not sleeping. He was surprised and embarrassed by her proposition but did not take it as a sign that something was not quite right with [A.D.]. There was something about the event that prompted him to ask the question, “are you okay?” As noted above, his explanation for asking that question does not align with an intention to confirm she wanted to have sex with him, but aligns with a concern she was too intoxicated to consent. For these reasons, I find that Mr. Kwon’s belief that [A.D.] was consenting was the result of recklessness and/or wilful blindness. In arriving at this conclusion, I have also considered Mr. Kwon’s testimony….

[71] The trial judge then determined that Mr. Kwon had not taken reasonable steps to ascertain whether A.D. had consented to sexual activity. Pursuant to s. 273.2(b) of the Criminal Code, the defence of honest but mistaken belief in communicated consent is not available to a person who fails to take steps that are objectively reasonable, assessed in light of circumstances known to him at the time (Barton at para 104). The trial judge determined that Mr. Kwon’s inquiry of “are you okay” did not constitute a reasonable step, in the context of unprotected vaginal sex with A.D., which was “invasive” and carried “the risk of pregnancy, injury, and infection” (at para 85).

[72] As we have already found, the trial judge erred in her treatment of Mr. Kwon’s evidence in the context of capacity to consent, and the rejection thereof. Similarly, as we will explain, there are problematic aspects to her treatment of his evidence in her analysis on reasonable steps.

[73] First, it is unclear what aspects of Mr. Kwon’s evidence the trial judge accepted and considered on the issue of reasonable steps. While the trial judge referenced Mr. Kwon’s evidence of a conversation with A.D. immediately before intercourse (being A.D.’s proposition, and his response of “are you okay”), she did not address the whole of the conversation, including Mr. Kwon’s evidence that A.D. then responded “yes”. She further did not mention or make findings in her reasonable steps analysis on his evidence about what followed that verbal exchange. Specifically, Mr. Kwon testified that A.D. (a) pulled him toward her, (b) removed her own clothing in the vehicle, (c) reclined her seat, and (d) hugged/grabbed him. As a result, the trial judge did not consider whether there had been communicated consent by both words and conduct (Barton at para 91), and as Mr. Kwon had argued. In any event, even inferring that she rejected these aspects of Mr. Kwon’s evidence in her earlier rejection of his evidence on consent and capacity to consent, she did so in error, undermining her analysis of reasonable steps.

[74] Second, the trial judge’s conclusion that Mr. Kwon’s use of the term “are you okay” equated to knowledge that A.D. was too intoxicated to consent, and that she was in a diminished state of consciousness, was problematic, given that the trial judge appears to have accepted Mr. Kwon’s evidence that he and A.D. were having a conversation in which that term was used. It flowed from Mr. Kwon’s evidence that A.D. was awake, responsive and orientated during this verbal exchange….

[75] Third and finally, the trial judge’s reasoning that Mr. Kwon’s evidence left her with “the distinct impression that [he] believes an advanced level of intoxication is required in order to conclude a person is incapacitated by alcohol” implicitly signals that the trial judge applied the wrong test for capacity to consent (at para 82). As previously indicated, capacity to consent requires only that a complainant understand the physical act, that the act is sexual in nature, the identity of the partner, and that they have the choice to refuse to participate in the sexual activity. Mr. Kwon’s understanding and description of intoxication and drunkenness is not at odds with that threshold. His evidence more specifically was that A.D. was intoxicated, but that she was still functional, responsive, and capable of decision-making, including in the context of the sexual encounter.

[76] For these reasons, it is our respectful view that the trial judge erred in her approach to Mr. Kwon’s evidence in assessing reasonable steps….

C. The trial judge rendered an unreasonable verdict

[80] In this case, as in any case that depends on circumstantial evidence, the Villaroman principle means that the trial judge should have assessed the evidence in the following way:

[37] When assessing circumstantial evidence, the trier of fact should consider “other plausible theor[ies]” and “other reasonable possibilities” which are inconsistent with guilt: R. v. Comba, [1938] O.R. 200 (C.A.), at pp. 205 and 211, per Middleton J.A., aff’d [1938] S.C.R. 396; R. v. Baigent, 2013 BCCA 28, 335 B.C.A.C. 11, at para. 20; R. v. Mitchell, [2008] QCA 394 (AustLII), at para. 35. I agree with the appellant that the Crown thus may need to negative these reasonable possibilities, but certainly does not need to “negative every possible conjecture, no matter how irrational or fanciful, which might be consistent with the innocence of the accused”: R. v. Bagshaw, [1972] S.C.R. 2, at p. 8. “Other plausible theories” or “other reasonable possibilities” must be based on logic and experience applied to the evidence or the absence of evidence, not on speculation.

[38] Of course, the line between a “plausible theory” and “speculation” is not always easy to draw. But the basic question is whether the circumstantial evidence, viewed logically and in light of human experience, is reasonably capable of supporting an inference other than that the accused is guilty.

(Villaroman; emphasis in original)

[81] The trial judge here did not assess the evidence in this way. Indeed, it is our respectful opinion that the trial judge did not simply fail to apply Villaroman correctly, but failed to undertake this analysis at all, in form or in substance. That constituted an error of law. That error was material, as there was at least one other inference the trial judge was obliged to consider; specifically, whether A.D. had the capacity to and did consent to sexual intercourse but could not recall doing so due to her intoxicated state.

[82] The test in G.F. for capacity to consent is at the heart of this conclusion. That test requires only an operating mind, and “does not require an individual to have the cognitive ability to consider and understand the risks and consequences associated with the sexual activity in question”, or to be “able to rationally reason” (emphasis in original, Owston at para 18 citing R v Al-Rawi, 2018 NSCA 10 at para 60, 359 CCC (3d) 237). As noted above, G.F. concisely defined capacity to consent as follows:

[57] In sum, for a complainant to be capable of providing subjective consent to sexual activity, they must be capable of understanding four things:

1. the physical act;

2. that the act is sexual in nature;

3. the specific identity of the complainant’s partner or partners; and

4. that they have the choice to refuse to participate in the sexual activity.

[87] It is clear that this circumstantial evidence could support another inference, other than that drawn by the trial judge. It would be reasonable to infer that A.D. was not unconscious at any point when she was in the van, but instead, that she had her eyes closed or was drifting in and out of a light sleep from time to time before the sexual encounter. That is demonstrated by the fact that she remembered many things leading up to, following, and, to a limited degree, during the sexual encounter. Further, she made decisions when she was at the bar, including choosing to ask Mr. Kwon for a ride home and getting into his vehicle. There was also the direct evidence from her as to the extent of her intoxication as being a 4 out of 10 when she left the bar. That evidence was consistent with Mr. Kwon’s.

[97]….As such, while I would allow the appeal and set aside the conviction, I would order a new trial.