Conviction appeal on sexual assault charges. Offences alleged to have occurred between 2000 and 2006. Trial judge rejected the evidence of the accused.
Held: Appeal allowed, new trial.
Trial judge “displayed a generosity” toward inconsistencies in the complainants’ evidence that was not extended to the accused. Trial judge found that accused’s evidence did “not meet the test for acquittal”. This was an error. “The test for conviction is ‘proof beyond a reasonable doubt’, and there is no ‘test for acquittal.’” Accused was testifying about events that occurred 15 years earlier, and which by his account were uneventful given that he denied any wrongdoing. As per Norman (1993), 87 CCC (3d) 153 (ONCA), “it is impossible to give particulars of ‘nothing happened’, and it is unfair to expect an accused to remember details of what he recalls as being a completely uneventful occasion.” Convictions found to be “unsafe”. Paperny JA dissented.
D. Hatch – Defence Counsel