R. v. K.S.S., 2012 BCCA 500

• Judge: Newbury, Garson and MacKenzie, JJ.A.
• Court: Court of Appeal (British Columbia)
• Case Date: October 12, 2012
• Jurisdiction: British Columbia
• Citations: 2012 BCCA 500;(2012), 331 B.C.A.C. 78 (CA)

R. v. K.S.S. (2012), 331 B.C.A.C. 78 (CA);

    565 W.A.C. 78

MLB headnote and full text

Temp. Cite: [2012] B.C.A.C. TBEd. DE.017

Regina (respondent) v. K.S.S. (appellant)

(CA039422; 2012 BCCA 500)

Indexed As: R. v. K.S.S.

British Columbia Court of Appeal

Newbury, Garson and MacKenzie, JJ.A.

December 10, 2012.

Summary:

The accused was convicted of sexual interference and invitation to sexual touching (Criminal Code, ss. 151 and 152). The complainant was the daughter of the woman with whom the accused lived for about seven years, between about 1993 and 2000. The accused appealed.

The British Columbia Court of Appeal allowed the appeal and ordered a new trial.

Editor's Note: Certain names in the following case have been initialized or the case otherwise edited to prevent the disclosure of identities where required by law, publication ban, Maritime Law Book's editorial policy or otherwise.

Courts - Topic 583

Judges - Duties - Re reasons for decisions - [See second Criminal Law - Topic 5404 ].

Criminal Law - Topic 4375.2

Procedure - Charge or directions - Jury or judge alone - Directions regarding prior inconsistent statements - [See second Criminal Law - Topic 5404 ].

Criminal Law - Topic 4377

Procedure - Charge or directions - Jury or judge alone - Directions regarding credibility of witnesses - [See both Criminal Law - Topic 5404 ].

Criminal Law - Topic 4684

Procedure - Judgments and reasons for judgment - Reasons for judgment - Sufficiency of - [See second Criminal Law - Topic 5404 ].

Criminal Law - Topic 5404

Evidence and witnesses - Witnesses - Credibility - The British Columbia Court of Appeal stated that "In summary, on appellate review where the credibility of a witness/complainant is in issue, an appellate court must recognize that a trial judge is in the best position to assess credibility. There is no doubt that on appeal the view of the trial judge should be respected. However, the assessment of credibility cannot stand on an assessment of demeanour alone. Rather, where there are serious concerns about credibility (as here) a trial judge should explain at least minimally how he or she resolved those concerns. There are many ways in which such concerns may be resolved depending upon the facts of the case. In so doing the trial judge should in some manner address the conflicts within the impugned evidence. Reasons for judgment risk being assessed as inadequate if they fail to explain at all how the credibility concerns were resolved, in a manner that makes plain to an accused, the reason his evidence was rejected, or failed to raise a reasonable doubt, thus leading to his conviction." - See paragraph 35.

Criminal Law - Topic 5404

Evidence and witnesses - Witnesses - Credibility - The accused was convicted of sexual interference and invitation to sexual touching - The complainant was the daughter of the woman with whom the accused lived for about seven years (1993 and 2000) - The British Columbia Court of Appeal allowed the accused's appeal and ordered a new trial - The trial judge noted that there many inconsistencies in the complainant's evidence - However, he held that the inconsistencies did not matter because he believed the complainant - The trial judge erred - The basis for this belief could only have been supported by his assessment of the complainant's demeanour - The question was not whether belief in the evidence of a witness disposed of concerns about her inconsistencies, but whether the evidence was believed despite those inconsistencies - In the end, the trial judge was left with a comparison of the demeanor of the two main witnesses - The trial judge gave no explanation at all for his acceptance of the complainant's account despite her confused, and at times, contradictory testimony - He made no effort to resolve the significant conflicts in her testimony as a means of addressing the reliability of the complainant's evidence - The trial judge's ultimate rejection of the accused's testimony was not explained other than to say that the complainant was credible and therefore believed - Overall, the reasons did not adequately inform the accused why he was convicted - The verdict was unreasonable - See paragraphs 15 to 42.

Practice - Topic 8803

Appeals - General principles - Whether trial judge must give reasons for rejecting evidence or for credibility findings - [See second Criminal Law - Topic 5404 ].

Cases Noticed:

R. v. Turcotte (T.), [2005] 2 S.C.R. 519; 339 N.R. 32; 216 B.C.A.C. 1; 356 W.A.C. 1; 2005 SCC 50, refd to. [para. 19].

R. v. Dinardo (J.), [2008] 1 S.C.R. 788; 374 N.R. 198; 2008 SCC 24, refd to. [para. 23].

Housen v. Nikolaisen et al., [2002] 2 S.C.R. 235; 286 N.R. 1; 219 Sask.R. 1; 272 W.A.C. 1; 2002 SCC 33, refd to. [para. 29].

F.H. v. McDougall, [2008] 3 S.C.R. 41; 380 N.R. 82; 260 B.C.A.C. 74; 439 W.A.C. 74; 2008 SCC 53, refd to. [para. 30].

R. v. Gagnon (L.), [2006] 1 S.C.R. 621; 347 N.R. 355; 2006 SCC 17, refd to. [para. 30].

R. v. Burke (J.) (No. 3), [1996] 1 S.C.R. 474; 194 N.R. 247; 139 Nfld. & P.E.I.R. 147; 433 A.P.R. 147; 105 C.C.C.(3d) 205, refd to. [para. 30].

Faryna v. Chorny, [1952] 2 D.L.R. 354; 4 W.W.R. 171 (B.C.C.A.), refd to. [para. 31].

R. v. D.W., [1991] 1 S.C.R. 742; 122 N.R. 277; 46 O.A.C. 352; 63 C.C.C.(3d) 397, refd to. [para. 32].

R. v. R.E.M. (2008), 380 N.R. 47; 260 B.C.A.C. 40; 439 W.A.C. 40; 2008 SCC 51, refd to. [para. 32].

R. v. Jeng (H.-T.), [2004] B.C.A.C. Uned. 162; 2004 BCCA 464, refd to. [para. 33].

R. v. H.P.S. (2012), 288 O.A.C. 164; 280 C.C.C.(3d) 500; 2012 ONCA 117, refd to. [para. 34].

R. v. G.E.H. (2012), 318 N.S.R.(2d) 376; 1005 A.P.R. 376; 2012 NSCA 69, refd to. [para. 34].

R. v. Norman (D.L.) (1993), 68 O.A.C. 22; 87 C.C.C.(3d) 153; 16 O.R.(3d) 295 (C.A.), refd to. [para. 34].

R. v. R.W., [1992] 2 S.C.R. 122; 137 N.R. 214; 54 O.A.C. 164; 74 C.C.C.(3d) 134, refd to. [para. 37].

Counsel:

M.J. Ford, for the appellant;

W.J. Scott Bell, for the respondent.

This appeal was heard on October 12, 2012, before Newbury, Garson and MacKenzie, JJ.A., of the British Columbia Court of Appeal. The decision of the court was delivered by Garson, J.A., on December 10, 2012.