R. v. S.E.M., (2005) 265 Sask.R. 193 (QB)

• Judge: Baynton, J.
• Court: Court of Queen's Bench of Saskatchewan (Canada)
• Case Date: May 09, 2005
• Jurisdiction: Saskatchewan
• Citations: (2005), 265 Sask.R. 193 (QB);2005 SKQB 213

R. v. S.E.M. (2005), 265 Sask.R. 193 (QB)

MLB headnote and full text

Temp. Cite: [2005] Sask.R. TBEd. JN.034

S.E.M. (appellant) v. Her Majesty the Queen (respondent)

(2004 Q.B. No. 138; 2005 SKQB 213)

Indexed As: R. v. S.E.M.

Saskatchewan Court of Queen's Bench

Judicial Centre of Swift Current

Baynton, J.

May 9, 2005.

Summary:

The accused was convicted of sexually assaulting his 16 year old daughter (see [2004] Sask.R. Uned. 85). The accused appealed from the conviction.

The Saskatchewan Court of Queen's Bench allowed the appeal, set aside the conviction and substituted an acquittal.

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.

Criminal Law - Topic 4351

Procedure - Charge or directions - Jury or judge alone - Direction regarding burden of proof and reasonable doubt - [See both Criminal Law - Topic 5221 ].

Criminal Law - Topic 5221

Evidence and witnesses - Burden of proof - Proof of guilt beyond a reasonable doubt - The accused appealed from his conviction for sexually assaulting his 16 year old daughter - The Saskatchewan Court of Queen's Bench allowed the appeal - The trial judge appeared to have found the accused guilty on the basis that the complainant was to be believed - Despite his finding that the complainant was more credible than the accused, the trial judge was required to consider whether the evidence as a whole, or the lack of it, raised a reasonable doubt - There was nothing in his judgment to indicate that he considered the issue of reasonable doubt from the context of the case as a whole - The trial judge also placed too much reliance on the accused's criminal record, and his failure with respect to his child support obligations, in finding that he was not a credible witness - The conviction could not be reasonably supported by the evidence adduced at trial - The court set aside the conviction and substituted an acquittal - See paragraphs 28 to 57.

Criminal Law - Topic 5221

Evidence and witnesses - Burden of proof - Proof of guilt beyond a reasonable doubt - The Saskatchewan Court of Queen's Bench stated that "In general terms, in a case where there is no evidence that supports the complainant's evidence, where the complainant's evidence differs considerably from the evidence of other witnesses, where the complainant may have a motive to exaggerate or fabricate his or her evidence, or where the complainant's conduct is inconsistent with his or her evidence, proof of guilt beyond a reasonable doubt is not as evident as if none of these factors apply. In such cases, even where the court is inclined to believe the evidence of the complainant over that of the accused or other witnesses, the court must be particularly diligent in considering whether, on the basis of all the evidence or the lack of it, the guilt of the accused has been proven beyond a reasonable doubt" - See paragraph 37.

Criminal Law - Topic 5402

Evidence and witnesses - Witnesses - Assessment of - [See Criminal Law - Topic 5404 ].

Criminal Law - Topic 5404

Evidence and witnesses - Witnesses - Credibility - The Saskatchewan Court of Queen's Bench stated that recent research and studies had demonstrated that the demeanour of a witness was a poor indicator of credibility - The court stated that "What is a far more reliable indicator of credibility is whether the evidence in issue is consistent with or supported by other independent evidence that is known to be reliable. Some of the earlier cases that gave considerable deference to the credibility decisions of the trial judge on the basis that he or she had the opportunity to observe the demeanour of the witnesses, should be considered in the light of the current information respecting assessments based on demeanour. This information was not available to the courts when those cases were decided. In some respects an appeal court has an advantage over the trial judge in credibility assessments because it has a transcript of the evidence which is seldom available to the trial judge whose understanding of the evidence is restricted to his or her notes and recollection" - See paragraphs 38 to 39.

Cases Noticed:

R. v. Yebes, [1987] 2 S.C.R. 168; 78 N.R. 351; 36 C.C.C.(3d) 417; 59 C.R.(3d) 108; 17 B.C.L.R.(2d) 1; [1987] 6 W.W.R. 97; 43 D.L.R.(4th) 424, refd to. [para. 6].

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; 46 C.R.(4th) 195; 105 C.C.C.(3d) 205, refd to. [para. 6].

R. v. Khan (M.A.), [2001] 3 S.C.R. 823; 279 N.R. 79; 160 Man.R.(2d) 161; 262 W.A.C. 161; 160 C.C.C.(3d) 1; 2001 SCC 86, refd to. [para. 7].

R. v. G.B. et al. (No. 3), [1990] 2 S.C.R. 57; 111 N.R. 62; 86 Sask.R. 142; 77 C.R.(3d) 370; 56 C.C.C.(3d) 181, refd to. [para. 7].

R. v. Morin, [1988] 2 S.C.R. 345; 88 N.R. 161; 30 O.A.C. 81; 44 C.C.C.(3d) 193; 66 C.R.(3d) 1, refd to. [para. 7].

R. v. MacDonald, [1977] 2 S.C.R. 665; 9 N.R. 271; 29 C.C.C.(2d) 257, refd to. [para. 7].

R. v. Harper, [1982] 1 S.C.R. 2; 40 N.R. 255; 133 D.L.R.(3d) 546; 65 C.C.C.(2d) 193, refd to. [para. 7].

R. v. P.L.S., [1991] 1 S.C.R. 909; 122 N.R. 321; 90 Nfld. & P.E.I.R. 234; 280 A.P.R. 234; 64 C.C.C.(3d) 193; 5 C.R.(4th) 351, refd to. [para. 8].

R. v. Morin (K.M.), [1992] 3 S.C.R. 286; 142 N.R. 141; 131 A.R. 81; 25 W.A.C. 81; 76 C.C.C.(3d) 193; 16 C.R.(4th) 291, refd to. [para. 8].

R. v. François (L.), [1994] 2 S.C.R. 827; 169 N.R. 241; 73 O.A.C. 161; 91 C.C.C.(3d) 289; 31 C.R.(4th) 201, refd to. [para. 8].

R. v. Andres (1979), 1 Sask.R. 96 (C.A.), refd to. [para. 8].

R. v. J.B.N., [1991] 1 S.C.R. 6; 117 N.R. 317; 71 Man.R.(2d) 156, refd to. [para. 8].

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; 13 C.R.(4th) 257, refd to. [para. 8].

R. v. Molodowic (A.J.), [2000] 1 S.C.R. 420; 252 N.R. 250; 145 Man.R.(2d) 201; 218 W.A.C. 201; 2000 SCC 15, refd to. [para. 10].

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; 3 C.R.(4th) 302, appld. [para. 12].

R. v. McKenzie (P.N.) (1996), 141 Sask.R. 221; 114 W.A.C. 221 (C.A.), refd to. [para. 13].

R. v. Jelinski (L.J.) (1996), 144 Sask.R. 41; 124 W.A.C. 41 (C.A.), refd to. [para. 14].

R. v. Horton (D.F.) (1999), 120 B.C.A.C. 70; 196 W.A.C. 70; 133 C.C.C.(3d) 340; 1999 BCCA 150, refd to. [para. 15].

R. v. W.S. (1994), 70 O.A.C. 370; 90 C.C.C.(3d) 242 (C.A.), refd to. [para. 16].

R. v. V.K. (1991), 68 C.C.C.(3d) 18 (B.C.C.A.), refd to. [para. 17].

R. v. R.W.B. (1993), 24 B.C.A.C. 1; 40 W.A.C. 1 (C.A.), refd to. [para. 18].

R. v. Lifchus (W.), [1997] 3 S.C.R. 320; 216 N.R. 215; 118 Man.R.(2d) 218; 149 W.A.C. 218; 9 C.R.(5th) 1; 118 C.C.C.(3d) 1, refd to. [para. 19].

R. v. Bisson (Y.), [1998] 1 S.C.R. 306; 222 N.R. 365; 121 C.C.C.(3d) 449, refd to. [para. 19].

R. v. Henrich (J.) (1996), 92 O.A.C. 94; 108 C.C.C.(3d) 97 (C.A.), refd to. [para. 36].

R. v. D.D., [2000] 2 S.C.R. 275; 259 N.R. 156; 136 O.A.C. 201; 36 C.R.(5th) 261; 2000 SCC 43, refd to. [para. 36].

R. v. R.W.S., [1999] 1 S.C.R. 391; 236 N.R. 365; 134 Man.R.(2d) 273; 193 W.A.C. 273, refd to. [para. 54].

Counsel:

Aaron A. Fox, Q.C., and Michael R. Alford, for the appellant;

Stephen K. Kritzer, for the respondent.

This appeal was heard before Baynton, J., of the Saskatchewan Court of Queen's Bench, Judicial Centre of Swift Current, who delivered the following decision on May 9, 2005.