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R. v. W.L.S.

2019 SCC 27 [2019] 2 SCR 403 Court SCC Decision date 2019-05-07 Heard 2019-05-07 Docket 38427 English

PartiesW.L.S. Appellant·Her Majesty The Queen Respondent

Counsel (3)
[6] We would therefore uphold the Court of Appeal’s decision to enter a verdict of guilty on the charge of sexual assault and remit the case back to the trial court for sentencing.
Solicitors for the appellant: Legal Aid Society of Alberta, Edmonton; Sinclair Law Office, Stony Plain.
Solicitor for the respondent: Attorney General of Alberta, Edmonton.

Judges Moldaver, Michael J.; Côté, Suzanne; Brown, Russell; Rowe, Malcolm; Martin, Sheilah

Delivered by Martin J. (Moldaver, Côté, Brown and Rowe JJ. concurring)

On appeal from Alberta

Contents

Reasons for Judgment — Martin J. (Moldaver, Côté, Brown and Rowe JJ. concurring)

Martin J. — The accused was acquitted of sexual assault following a trial before a judge alone in the Provincial Court of Alberta. The Crown appealed the acquittal to the Alberta Court of Appeal, which unanimously allowed the appeal and substituted a conviction. The accused appeals to this Court as of right.
We would dismiss the appeal and uphold the conviction for substantially the reasons of the Court of Appeal. We would add, however, in our view, it was not necessary to reach back into the record of the trial judge’s interactions with counsel to identify an error of law. Rather, errors of law are apparent on the face of the trial judge’s reasons.
The trial judge accepted the testimony of the witness as being truthful and reliable on the “core issues”, namely that he saw his father, the accused, drag the complainant from her bedroom into the living room and engage in sexual activity with her on several occasions. The trial judge accepted this evidence but held that “one inference, given the evidence of [the witness] is that [the complainant] was not consenting to the sexual activity involving the accused, it must be the only reasonable inference if the Crown is to prove lack of consent beyond a reasonable doubt” (trial reasons (Alta. Prov. Ct.), December 1, 2017).
In our view, the act of dragging the complainant while asleep and drugged is inconsistent with any sort of consent. There was no evidence, or absence of evidence, to support any reasonable inference other than non-consent. No alternative inference was posited to the trial judge in submissions, and she did not cite any alternative inference in her reasons.
In this case, the trial judge misapplied not only the law of circumstantial evidence to the evidence of the witness, which she accepted, she also misapplied the law on consent. This complainant was statutorily incapable of consenting and any other finding on this point was a clear error of law.
We would therefore uphold the Court of Appeal’s decision to enter a verdict of guilty on the charge of sexual assault and remit the case back to the trial court for sentencing.