Sexual assault appeals frequently lack the luxury of plentiful evidence. The cases often involve only two people: the complainant and the accused. By its very nature, the crime is usually carried out away from other witnesses. Sometimes, the cases might not include physical evidence and come down to ‘he said, she said’ testimony.
When there is witness testimony to rely on, courts must examine the evidence as a whole to determine whether someone is guilty. In order for sexual assault appeals to succeed, therefore, the appellant must demonstrate the lower court made an error in its examination of the evidence as a whole. Demonstrating individual errors is often not enough to overturn a conviction.
A recent Supreme Court of BC decision shows the standard that is required in order to overturn a sexual assault conviction. In this case, a man convicted of sexual assault sought to overturn his conviction for sexually assaulting a woman.
The two met at a local pub and after an evening of drinking, the defendant, complainant, and a number of friends went to the defendant’s apartment for an “after-party”. The complainant’s friend testified that the complainant was heavily intoxicated and threw up to the point of dry-heaving so she was placed in a spare room to recover.
Later, the defendant went into the room and engaged in sexual activities with the complainant. After witnessing this, the complainant’s friend intervened and took her to the local hospital where they carried out a sexual assault examination.
At provincial court, the Crown relied on the testimonies of the complainant and her friend, the accused statements to police and a toxicology report that indicated cocaine and a high concentration of alcohol in the complainant’s blood.
At the BC Supreme Court appeal, the appellant submitted that the trial judge made several errors. The claims included the judge misapprehended critical evidence in his credibility analysis, relied on assumptions and stereotypes, and erred in ruling the complainant lacked capacity to consent due to intoxication.
On the first issue, the appellant said the trial judge interpreted parts of the evidence incorrectly. However, the Supreme Court found that the trial judge’s apparent confusion about the matter, “was not essential to the reasoning process that led to conviction”. The Supreme Court judge said the trial judge was still well placed to reach his conviction “on the whole of the evidence”. So while it is possible to find individual errors in a sexual assault trial, it is not necessarily enough to overturn a conviction. The appellant needed to show how the resonating process was flawed as a whole.
On the second issue, the appellant submitted that the trial judge made assumptions that led to a favorable assessment of the complainant and an adverse assessment of his credibility. He alleged that the judge made adverse inferences based on myths and stereotypes. The Supreme Court judge found that while some individual details of the judge’s reasoning could be viewed as strange, they were part of a bigger picture. The Supreme Court judge sated: “The trial judge was not…engaged in an exercise of judging the case in a vacuum. As his reasons make clear, he was judging the case in the context of the evidence as a whole.”
Similarly, while the Supreme Court found that there were issues with parts of the evidence that the complainant lacked the cognitive capacity to consent, the rest of the evidence was overwhelming.
The Supreme Court dismissed the appeal. The lesson here is that sexual assault appeals will only succeed if they show an error was made with the evidence as a whole. While it may be possible to prove flaws or errors, if the rest of the evidence is overwhelming, it is not enough to successfully appeal.