Appeal from aggravated assault conviction. Complainant provided two KGB statements. In the first statement she alleged that the accused assaulted her. In the second statement, she recanted. The recantation was repeated in her trial evidence. Trial judge convicted on the basis of the first KGB statement, largely based upon his “opportunity to observe the demeanour of the complainant on three occasions”.
Held: Appeal allowed, new trial.
The trial judge placed undue weight on demeanour. “The line is crossed and the error occurs when a trial judge’s assessment of the witness’ demeanour becomes the sole or dominant basis for determining credibility, and where the trial judge appears to be unaware of the risks associated with over-reliance on demeanour: R v Bourgeois, 2017 ABCA 32″. Demeanour such as no eye contact, head down, appearing withdrawn, “may be equally confirmatory of truthfulness, or prevarication”.
N. Whitling – Defence Counsel