Most people assume that an appeal is a second trial. It is not. An appeal court does not hear the witnesses again, does not weigh the evidence afresh, and does not substitute its own view of who was telling the truth. That is why so many appeals fail. When a case turns on whether the judge believed the complainant or the accused, the law gives the trial judge a wide berth, and the Court of Appeal will step in only where the credibility findings cannot be supported on any reasonable view of the evidence.
That makes a decision like R. v. Sandhu, 2026 BCCA 268, released on June 17, worth understanding. The British Columbia Court of Appeal set aside a sexual assault conviction and ordered a new trial. It did so not because it disagreed with the trial judge about who was more believable, but because the reasoning that led to the conviction was built on legal errors. The case is a useful window into the difference between a credibility finding a court will respect and one it cannot let stand.
The framework every trial judge must follow
When an accused person testifies, the judge cannot simply choose between two competing accounts and convict the one she finds less convincing. The Supreme Court of Canada set out the governing approach in R. v. W.(D.). If the judge believes the accused, she must acquit. If she does not believe the accused but is left in reasonable doubt by his evidence, she must still acquit. Only if the accused’s evidence leaves no reasonable doubt does the judge go on to ask whether the evidence she does accept proves guilt beyond a reasonable doubt.
The point of this structure is to keep the burden of proof where it belongs. A trial is not a contest the Crown wins by being slightly more persuasive. The presumption of innocence means doubt favours the accused. In Sandhu, the Court of Appeal found that errors in how the judge assessed the evidence infected this analysis from the start, which meant the conviction could not be sustained.
Silence is not a confession
One of the central problems in the case involved messages the complainant and the accused exchanged the day after the incident. The trial judge treated those messages, and in particular the accused’s failure to respond to certain statements, as an admission that the alleged contact had occurred.
The law is cautious about reading guilt into silence. A person’s failure to answer an accusation can be treated as adopting it only where the circumstances clearly call out for a response. As the Ontario Court of Appeal warned in R. v. Bridgman, simply receiving a message on your phone does not transform its contents into your own admission. There are many reasons a person may not reply to a text, and courts are told to approach adoption by silence with great care.
The Court of Appeal found that the messages were equally consistent with the accused’s account and the complainant’s account, and that nothing in his actual words amounted to a confession. Treating his non-response as proof of guilt was an error.
The danger of circular reasoning
The Court also identified circular reasoning in the trial judge’s analysis. The judge disbelieved the accused partly because his messages did not mention his version of events, yet his explanation for the messages was the very version she had already rejected. Reasoning that uses the rejection of an explanation to justify rejecting the same explanation collapses in on itself. It gives the appearance of analysis without doing the work the law requires.
Prior consistent statements prove repetition, not truth
A further error concerned the use of the complainant’s earlier statements. As a general rule, the fact that a witness said the same thing before does not make the in-court testimony more likely to be true. Repetition is not corroboration. Prior consistent statements are admissible only for narrow purposes, such as rebutting a suggestion of recent fabrication or providing context, and never to bolster credibility through sheer repetition. The Court of Appeal found the trial judge had used the complainant’s earlier account to shore up the reliability of her testimony, which is precisely what the rule forbids.
The right to silence and police statements
The decision also addressed a boundary that matters to anyone who speaks to police. An accused person has no obligation to give a statement, and the exercise of the right to silence cannot be used against them. At the same time, where a person chooses to give the police a full account, a genuine inconsistency between that account and their trial testimony can fairly be weighed. The line falls between holding silence against someone, which is improper, and weighing a material contradiction in what they did choose to say, which is permitted. The Court found the trial judge had stayed on the right side of that line on one issue, while erring on others.
Why this matters
It would be easy to read a decision like this as a technicality. It is the opposite. Each of these rules exists because experience has shown how wrongful convictions happen: doubt creeps in through assumptions about how an innocent person would behave, through evidence that looks corroborative but is not, and through reasoning that confirms a conclusion already reached. The standard of proof beyond a reasonable doubt is only as strong as the analysis that supports it.
Sandhu is also a reminder of what an appeal can and cannot do. The Court of Appeal did not declare the accused innocent, and it did not find the complainant untruthful. It ordered a new trial, which means the case will be decided again on proper legal footing. For anyone facing a charge that comes down to one person’s word against another’s, the lesson is that how a verdict is reached is every bit as important as the verdict itself. Careful trial preparation, a clear grasp of the rules of evidence, and a willingness to scrutinize a conviction on appeal are central to a strong defence.
If you or someone you know is facing a criminal charge in British Columbia, the way the evidence is handled from the first interview through trial can shape the entire outcome. Experienced defence counsel can make the difference between a conviction that stands and one that should never have been entered.
This post discusses a public Court of Appeal decision for general information and is not legal advice. A publication ban under section 486.4 of the Criminal Code protects the identity of the complainant in this case.
