While the judge is correct in stating that it would be wrong for him to find the complainant unworthy of credit based on an allegation of the unlikelihood of a victim “freezing” in such circumstances, it was open to the appellant – without resorting to myths and stereotypes about expected behaviour of victims of sexual assault – to suggest that the complainant’s testimony was incompatible with the depiction of her in the photos. (par. 8)
[6] The appellant submits that the judge made numerous errors. It will not be necessary to review all of them because the Court is of the view that the judge made two errors which require a new trial.[3]
[7] The first concerns the judge’s failure to consider evidence favourable to the defence.[4] The focus here is on the photos, which capture the complainant posing for the camera, naked, in erotic positions. In the complainant’s testimony-in-chief, she could not provide any details about how the photos were taken and her recollection was limited to the “flash of the pictures being taken”. In cross-examination, she stated that the appellant told her to pose and that she did so, against her will. The appellant, on the other hand, testified that it was the complainant’s idea to take these provocative photos in order to excite him, given that he could not get an erection. According to the judge, no conclusion could be drawn from the photos of the complainant.[5] He recognizes that the complainant seems less drowsy in the photos than what she described feeling, but he reasons as follows: “can it then be concluded from these photos, as defence counsel argues, that the complainant consented to those pictures being taken and infer, in so doing, that all sexual activities performed that night were likely consensual, thereby raising a reasonable doubt as to the lack of consent?”.[6] For this reason, the judge concludes that “no conclusions can be drawn from these photos and, in this sense, [he] does not see them as a significant factor of this case”.[7]
[8] Here, the judge misunderstood a key part of the appellant’s submission, which asserted that there was a contradiction between the complainant’s testimony that “she froze”, and what the photos depicted, namely that the complainant was not frozen, but rather seemed to be posing for the camera. Although the complainant did not testify that she froze while the photos were being taken, she did testify, that in general, she could not “move or speak” during the assault, because she was scared. While the judge is correct in stating that it would be wrong for him to find the complainant unworthy of credit based on an allegation of the unlikelihood of a victim “freezing” in such circumstances, it was open to the appellant – without resorting to myths and stereotypes about expected behaviour of victims of sexual assault – to suggest that the complainant’s testimony was incompatible with the depiction of her in the photos.
[9] The judge made a reversible error here, in failing to take account of a substantial argument raised by the appellant concerning a contradiction between the complainant’s testimony about what she was feeling at the time of the alleged assault, and the material evidence. It is impossible for the Court to know how this alleged contradiction in the evidence might have affected the judge’s appreciation of the complainant’s testimony, had he considered it. Given the fact that the complainant’s credibility was the central issue at trial, and that the alleged contradiction concerns the very essence of her testimony about her absence of consent, a new trial will be necessary.
This inference drawn by the judge is erroneous for two reasons. First, the motive ascribed to the appellant’s request to retrieve his phone is completely speculative and not grounded in the evidence (the appellant was never cross-examined about his reason for requesting his cell phone). Second, even if the evidence supported the appellant’s intention to delete the photos, this is not sufficiently probative of guilt for it be considered as post-offence conduct. (par. 11)
[10] Second, the judge committed a reversible error regarding the use of post-offence conduct. The judge inferred that the appellant’s request to retrieve his cell phone upon returning home from the hospital was motivated by a desire to delete the photographs he had taken, and given the incriminating nature of the photos, the judge relied upon that conduct to discredit his testimony.
[11] This inference drawn by the judge is erroneous for two reasons. First, the motive ascribed to the appellant’s request to retrieve his phone is completely speculative and not grounded in the evidence (the appellant was never cross-examined about his reason for requesting his cell phone). Second, even if the evidence supported the appellant’s intention to delete the photos, this is not sufficiently probative of guilt for it be considered as post-offence conduct. As the B.C. Court of Appeal recently stated, “[p]ost-offence conduct evidence that is “too equivocal” to support a logical inference – such as one of guilt – “cannot meet the test of relevance because its meaning is speculative”.[8]
[12] Before considering this element as post-offence conduct permitting a negative inference to be drawn against the appellant, the judge had to consider whether the post-offence conduct could be equally explained by other plausible motives for wanting to delete the photos, incompatible with guilt or consciousness of guilt (for example, shame or regret about the sexual encounter with his niece). In the absence of any indication that the judge turned his mind to these equally valid possibilities, his reliance on post-offence conduct is an error in law.
[13] Moreover, the issue at trial was not whether sexual activity had occurred, but only whether the touching of a sexual nature was consensual or not. In this context, the photos were not incriminating as they provide no support for the position that the complainant was not consenting. Thus, there is no unequivocal link between the appellant’s desire to delete the photos – assuming this was an inference that could properly be drawn – and the only issue in dispute, i.e., the complainant’s absence of consent.
[14] In sum, the post-offence conduct was neither relevant to a live issue at trial, as it did not as a matter of “human experience and logic” help resolve the issue of consent, nor did it provide circumstantial evidence more consistent with the behavior of a guilty person than with that of an innocent one.[9]
[15] Here too, it is impossible for the Court to evaluate the weight placed on the post-offence conduct in the judge’s overall assessment of the appellant’s credibility, and as such, the error warrants a new trial.
