



WARNING

The President of the panel hearing this appeal directs that the
following should be attached to the file:

An order restricting publication in this proceeding under ss.
486.4(1), (2), (2.1), (2.2), (3) or (4) or 486.6(1) or (2) of the
Criminal
Code
shall continue.  These sections of
the Criminal Code
provide:

486.4(1)       Subject to subsection
(2), the presiding judge or justice may make an order directing that any
information that could identify the victim or a witness shall not be published
in any document or broadcast or transmitted in any way, in proceedings in
respect of

(a)     any of the following
offences;

(i)      an
offence under section 151, 152, 153, 153.1, 155, 159, 160, 162, 163.1, 170,
171, 171.1, 172, 172.1, 172.2, 173, 210, 211, 213, 271, 272, 273, 279.01, 279.011,
279.02, 279.03, 280, 281, 286.1, 286.2, 286.3, 346 or 347, or

(ii)      any
offence under this Act, as it read at any time before the day on which this
subparagraph comes into force, if the conduct alleged involves a violation of
the complainants sexual integrity and that conduct would be an offence
referred to in subparagraph (i) if it occurred on or after that day; or

(iii)     REPEALED:
S.C. 2014, c. 25, s. 22(2), effective December 6, 2014 (Act, s. 49).

(b)     two or more offences being dealt with in
the same proceeding, at least one of which is an offence referred to in
paragraph (a).

(2)     In proceedings in respect of
the offences referred to in paragraph (1)(a) or (b), the presiding judge or justice
shall

(a)     at the first reasonable
opportunity, inform any witness under the age of eighteen years and the victim
of the right to make an application for the order; and

(b)     on application made by
the victim, the prosecutor or any such witness, make the order.

(2.1) Subject to subsection (2.2),
in proceedings in respect of an offence other than an offence referred to in
subsection (1), if the victim is under the age of 18 years, the presiding judge
or justice may make an order directing that any information that could identify
the victim shall not be published in any document or broadcast or transmitted
in any way.

(2.2) In proceedings in respect of
an offence other than an offence referred to in subsection (1), if the victim
is under the age of 18 years, the presiding judge or justice shall

(a) as soon as
feasible, inform the victim of their right to make an application for the
order; and

b) on
application of the victim or the prosecutor, make the order.

(3)     In proceedings in respect of
an offence under section 163.1, a judge or justice shall make an order
directing that any information that could identify a witness who is under the
age of eighteen years, or any person who is the subject of a representation,
written material or a recording that constitutes child pornography within the
meaning of that section, shall not be published in any document or broadcast or
transmitted in any way.

(4)     An order made under this
section does not apply in respect of the disclosure of information in the
course of the administration of justice when it is not the purpose of the
disclosure to make the information known in the community.
2005, c. 32, s. 15; 2005, c. 43, s.
8(3)(b); 2010, c. 3, s. 5; 2012, c. 1, s. 29; 2014, c. 25, ss. 22,48; 2015, c.
13, s. 18..

486.6(1)       Every person who
fails to comply with an order made under subsection 486.4(1), (2) or (3) or
486.5(1) or (2) is guilty of an offence punishable on summary conviction.

(2)     For greater certainty, an
order referred to in subsection (1) applies to prohibit, in relation to
proceedings taken against any person who fails to comply with the order, the
publication in any document or the broadcasting or transmission in any way of
information that could identify a victim, witness or justice system participant
whose identity is protected by the order. 2005, c. 32, s. 15.





COURT OF APPEAL FOR ONTARIO

CITATION: R. v. C.L.,
2020 ONCA 258

DATE: 20200416

DOCKET: C66746

Hoy A.C.J.O., Paciocco and
Nordheimer JJ.A.

BETWEEN

Her Majesty the Queen

Respondent

and

C.L.

Appellant

Matthew B. Day, for the appellant

Lisa Joyal, for the respondent

Heard: March 9, 2020

On appeal from the conviction entered on
October 19, 2018 by Justice Julianne A. Parfett of the Superior Court of
Justice, sitting with a jury.

Paciocco J.A.:



OVERVIEW

[1]

In the fall of 2013, the complainant visited C.L.
at his home. She alleges that he sexually assaulted her. He says that they
engaged in consensual sex.

[2]

The complainant ultimately gave a statement to
the police, and C.L. was eventually charged with sexual assault, contrary to s.
271 of the
Criminal Code
, R.S.C., 1985, c. C-46
.
He was found
guilty after trial by a jury. C.L. now appeals that conviction. He raises
several grounds of appeal.

[3]

One of C.L.s grounds of appeal relates to the
trial judges decision to modify the reasonable doubt portion of her charge to
the jury relating to
R. v. W.(D.)
, [1991] 1 S.C.R. 742. This was done
by the trial judge

in an apparent effort to incorporate an instruction
that would reflect this courts recognition in
R. v. J.J.R.D.
(2006),
215 C.C.C. (3d) 252 (Ont. C.A.), leave to appeal refused, [2007] S.C.C.A. No.
69, that, despite the absence of obvious flaws in the evidence of the accused,
the law permits conviction based on acceptance beyond a reasonable doubt in the
truth of conflicting credible evidence.

[4]

For the reasons that follow, I would find, as
C.L. contends, that the trial judge erred in making this modification. On this
basis I would allow the appeal, quash the conviction, and order a retrial.

THE MATERIAL FACTS

[5]

C.L. met the complainant through her brother,
who was C.L.s friend. C.L. also periodically supplied marijuana to both of
them. He found the complainant to be beautiful and told her so, but they were
not in a relationship.

[6]

In the fall of 2013, when C.L. was 20 years of
age, the 17-year-old complainant arranged to meet C.L. to obtain marijuana. She
took the bus to the bus stop near his home and met C.L. there. They proceeded
to the home that he shared with roommates and went to his bedroom to complete
the marijuana transaction.

[7]

At some point C.L. and the complainant began to
play chess, at his invitation. The complainant claims that after some time
passed, C.L. made a sexual invitation to her that she described as
disgusting. She had been sitting on a shelf near the closet but stood up. He
became really, really angry, pushed her down on the bed and pushed himself on
top of her. She said no and tried unsuccessfully to push him away. Despite
her telling him to stop, he penetrated her with his penis, and he licked her
vagina against her will. After the assault he tried to walk her to the bus,
ultimately calling a taxi for her and paying the fare.

[8]

C.L.s account is diametrically opposed. He
admits he was romantically interested in the complainant, and he believed that
she was interested in him. He claims that after playing chess for some time he
moved to the bed. He told the complainant that she was special and asked her to
lie down with him. When he laid down, she joined him. He asked her if he could
kiss her and she agreed. They kissed for some time before he asked if he could
perform oral sex on her. She agreed and indicated pleasure while it was
happening. She declined his invitation that she performs oral sex on him, but
agreed to intercourse after instructing him not to ejaculate inside of her.
They had sex and he wore a condom. Again, she signalled her pleasure. At no
time did she tell him to stop but was 100 percent a willing participant in
all that had happened. He claims he walked her to the bus stop, but after
discovering there were no more buses he secured and paid for a taxi to take her
home. He says that he had not been drinking and had not taken drugs that
evening.

[9]

The complainant and C.L. agree that they
exchanged texts in the following day or days but disagree on the messages sent.
The complainant describes C.L. attempting to meet to apologize to her for the
sexual assault. He contends that he wrote the complainant to let her know that
he was not interested in a relationship and that he wanted to apologize if she
felt misled about that. Neither party preserved the messages.

[10]

C.L. testified at his trial that in the
following month he received a threatening call from a person he believed to be
the complainants boyfriend. C.L. says that, in response, he taunted the
boyfriend by bragging about having had sex with the complainant. He said he
then received a message from the complainant claiming she had not consented.

[11]

Subsequently, during an argument with her mother
that included insults directed at her friends, the complainant told her mother
that C.L. had sexually assaulted her. At some point her brother was also told. The
brother believes that this conversation occurred roughly two or three months
after the alleged event.

[12]

During a November 6, 2013, Facebook exchange
with C.L. about an unrelated topic, the complainants brother evidently became
annoyed with something C.L. messaged. The brother responded, why the fuck do
you bring this up, you try and get with my sister in the worst way possible,
now this, dont even bother with me. C.L. replied, dude she consented and I
was drunk it takes two to tango bro. C.L. testified that he made up the part
about being drunk to downplay his responsibility for sleeping with his friends
sister, but the rest was true.

[13]

The complainants allegation did not come to the
attention of the police until January 19, 2014, when the complainants mother
called the police after another argument with the complainant. The
complainants mother reported the allegation. This led to the complainant submitting
a police statement, after several drafts.

[14]

Nothing happened with the allegation until January
12, 2016, when the complainant was arrested for stealing money from a seasonal gift-wrapping
charity where she had volunteered. Before she was interviewed on videotape about
the theft [the theft investigation interview] she mentioned the sexual
assault allegation to Det. Kit, who was investigating the theft. Det. Kit
brought up the sexual assault allegation at the end of the theft investigation interview
after telling the complainant that the theft charge would be diverted. The
videotape of the theft investigation interview shows the complainant crying
near the end of that interview.

[15]

As the result of this further complaint,
arrangements were made for the complainant to give a videotaped statement in
accordance with s. 715.1 of the
Criminal Code
. This statement was
provided on February 4, 2016. It captured the complainants account, outlined
above, and C.L. was charged with sexual assault.

[16]

C.L. was tried by jury in October of 2018. The
complainant testified, adopting the s. 715.1 videotaped statement as part of
her evidence, and she was cross-examined. She was confronted with
inconsistencies between her trial testimony and earlier versions of events she
had given, including about: whether she had been to C.L.s apartment before;
whether C.L. said that the marijuana transaction would take place at the bus
stop; whether the marijuana transaction occurred before or after the alleged
sexual assault; how she ended up on the bed; and whether C.L. had invited her
back after the alleged sexual assault. Defence counsel took the position that
in each case, the change in her evidence at trial made C.L. look as though he
was an unwanted suitor, whereas the earlier versions were consistent with
C.L.s testimony.

[17]

During her examination-in-chief the complainant
had been asked about her theft from the charity. She testified that when
interviewed by the police about the theft she wanted to be straight up and
honest and therefore admitted the theft, which she said was for bus fare. Despite
objections, the trial judge ultimately allowed the videotape of the theft
investigation interview to be played in full. Defence counsel took the position
that the portion of the videotape relating to the theft allegation showed that,
contrary to her testimony, instead of accepting responsibility for the theft,
the complainant denied it until she was cornered. He also took the position
that the complainants statement during the preliminary inquiry that she told
Det. Kit before the interview that the theft was a cry for help made no sense
given that she could be seen denying the theft immediately after that purported
conversation. The Crown took the position that the balance of the videotape,
which he was permitted to show during the complainants re-examination,
supported the sexual assault allegation by depicting the complainants distraught
demeanour when the topic of the alleged sexual assault was raised.

[18]

Det. Lorentz testified about records extracted
from the complainants cellphone. No deleted text messages between C.L. and the
complainant were retrieved. The extraction report confirmed four unanswered
phone calls from C.L.s phone to the complainants phone, date-stamped March 5,
2014, months after the alleged assault. There was no way to independently
confirm the accuracy of the date-stamps. Only C.L. was asked about these phone
calls. He said he had a drug customer with the same first name as the
complainant and both women were listed in his cellphone by that name. He was
trying to contact his customer, not the complainant. The Crowns position was
that the after-the-fact failure of the complainant to answer these phone calls
was consistent with her testimony that she did not want anything to do with
C.L. because of the sexual assault.

[19]

The complainants brother testified about the
Facebook exchange. The Crown then closed its case.

[20]

C.L. testified in his defence, giving the exculpatory
version described above.

[21]

During the charge to the jury, at the invitation
of the Crown, the trial judge modified the standard
W.(D.)
jury
direction, as described below.

[22]

The jury returned with a verdict of guilty after
close to two days of deliberations.

ISSUES

[23]

C.L. raises several grounds of appeal relating
to the trial judges decision to permit the Crown to play, during the
complainants re-examination, the portion of the videotape of the theft
investigation interview showing the complainant reacting to Det. Kits mention
of the sexual assault allegation. C.L. also contends that rhetorical questions
posed by the Crown in its closing address rendered the trial unfair, and he
maintains that the verdict was unreasonable.

[24]

With the exception of the unreasonable verdict
challenge, it is not necessary to consider these grounds of appeal. I would
allow the appeal on the remaining ground of appeal, that the trial judge erred
by incorporating a 
J.J.R.D.
instruction into her jury direction
relating to the application of the reasonable doubt standard to the evaluation
of credibility. Since the appropriate remedy for this ground of appeal is a
retrial, I must also address the unreasonable verdict challenge, for if this
ground of appeal were to succeed, the appropriate remedy would be an acquittal.
As I will explain, I would not find the conviction to be unreasonable. I would
therefore order a retrial.

ANALYSIS

A.

THE
J.J.R.D.
INSTRUCTION

[25]

The
W.(D.)
jury direction is intended
to explain what reasonable doubt means in the context of evaluating conflicting
testimonial accounts:
R. v. J.H.S.
, 2008 SCC 30, [2008] 2 S.C.R. 152,
at para. 9. That direction, set out in
W.(D.)
, at p. 758, provides:

First, if you believe the evidence of the
accused, obviously you must acquit.

Secondly, if you do not believe the testimony
of the accused but you are left in a reasonable doubt by it, you must acquit.

Third, even if you are not left in doubt by
the evidence of the accused, you must ask yourself whether, on the basis of the
evidence you do accept, you are convinced beyond a reasonable doubt by the
evidence of the guilt of the accused.

[26]

This formula is not a magic incantation that
must be slavishly parroted in a jury direction:
R. v. S. (W.D.)
,
[1994] 3 S.C.R. 521 at 533;
R. v. C.L.Y.
, 2008 SCC 2, [2008] 1 S.C.R.
5, at para. 7. However, the
W.(D.)
direction provided to a jury must
be sufficiently clear to ensure that the jury is not under any misapprehension
as to the correct standard of proof and how it applies to credibility issues:
W.(D.)
,
at pp. 757-58.

[27]

It is instructive to note that the
W.(D.)
formula seeks to ensure that the correct standard of proof is applied to
credibility issues by describing the three general states of belief a trier of
fact may arrive at after evaluating credibility and reliability in a case where
there is evidence inconsistent with guilt, and directing the trier of fact to
the outcomes that follow from each of those three general states of belief. In
R.
v. Challice
(1979), 45 C.C.C. (2d) 546 (Ont. C.A.), a leading decision
prior to
R. v. W.(D.)
, Morden J.A. described the three alternative
states of belief relating to the exculpatory evidence as total acceptance,
total rejection, or something in between: at p. 557. The first
W.(D.)
alternative describes total belief; the last, total rejection; and the middle
alternative being the something in between where the trier of fact cannot decide
whether to believe or disbelieve the exculpatory evidence.

[28]

The trial judge modified the
W.(D.)
jury instruction that she gave by offering five propositions, which I will
number 1-5 for convenience:


1.

If you believe [C.L.]s evidence that he did not
commit the offence charged, you must find him not guilty.


2.

Even if you do not believe [C.L.]s evidence
that he did not commit the offence, if it leaves you with a reasonable doubt
about his guilt, or, about an essential element of the offence charged, you
must find him not guilty.


3.

When you assess the evidence of [C.L.], you
should not view it in a vacuum. You may conclude that you reject [C.L.]s
evidence even though you consider that on its own it does not contain any
obvious flaws. You may reject [C.L.]s evidence based on a considered and
reasonable acceptance beyond a reasonable doubt of the truth of conflicting
credible evidence.


4.

If, after a careful consideration of all the
evidence, you are unable to decide whom to believe, you must find [C.L.] not
guilty because Crown counsel would have failed to prove [C.L.]s guilt beyond a
reasonable doubt.


5.

Even if [C.L.]s evidence does not leave you
with a reasonable doubt of his guilt, or, about an essential element of the
offence charged, you may convict him only if the rest of the evidence that you
do accept proves his guilt beyond a reasonable doubt.

[29]

C.L. does not take issue with propositions 1, 2,
4, or 5. He argues, however, that the trial judge erred in adding proposition
3, what he refers to as the 
J.J.R.D.
instruction. Although
J.J.R.D.
was not a jury instruction case, this reference is apt because it is
evident that proposition 3 was adapted from the following passage from this
courts decision in
J.J.R.D.
at para. 53, where Doherty J.A. said:

The trial judges analysis of the evidence
demonstrates the route he took to his verdict and permits effective appellate review.
The trial judge rejected totally the appellants denial because stacked beside
A.D.s evidence and the evidence concerning the diary, the appellants
evidence, despite the absence of any obvious flaws in it, did not leave the
trial judge with a reasonable doubt.
An outright rejection of an accuseds
evidence based on a considered and reasoned acceptance beyond a reasonable
doubt of the truth of conflicting credible evidence
is as much an
explanation for the rejection of an accuseds evidence as is a rejection based
on a problem identified the way the accused testified or the substance of the
accuseds evidence. [Emphasis added.]

[30]

I agree that the trial judge committed an error
in proposition 3 of her
W.(D.)
direction. I accept the Crown
submission that
J.J.R.D.
endorses the proposition that a proper conviction
can be arrived at even where exculpatory testimony has no obvious flaws if the
Crown mounts a strong prosecution:
R. v. O.M.
, 2014 ONCA 503, 313
C.C.C. (3d) 5, at para. 40. In such a case a trier of fact may appropriately
find that the incriminating evidence is so compelling that the only appropriate
outcome is to reject the exculpatory evidence beyond a reasonable doubt and
find guilt beyond a reasonable doubt. There may be exceptional cases where it
is appropriate for a trial judge to explain this avenue of conviction to the
jury. We need not decide whether this is so since the direction the trial judge
provided in this case was in error, for the following reasons.

[31]

First, and most plainly, the trial judge
misquoted the relevant extract from
J.J.R.D.
in a way that confuses
the standard of proof beyond a reasonable doubt. Instead of instructing the
jury that they could reject C.L.s evidence based on a considered and
reasoned
acceptance beyond a reasonable doubt of the
truth of the conflicting credible evidence she said they could do so based on
a considered and
reasonable
acceptance beyond a
reasonable doubt of the truth of conflicting credible evidence (emphasis added).
The first use of the word reasonable in that direction has meaning only if it
is understood to be modifying the kind of reasonable doubt that will suffice
for a conviction. This direction could well have been understood by a juror to
be authorizing C.L.s conviction if acceptance beyond a reasonable doubt of the
truth of conflicting credible evidence is a
reasonable
conclusion. This is not consistent with the law. The burden of proof in a
criminal jury trial requires that each juror must be convinced, subjectively, of
the guilt of the accused beyond a reasonable doubt. Based on this direction a
hold-out juror could mistakenly choose to convict because the decision of other
jurors to do so, while not agreed with, is reasonable. This was a misdirection on
a crucial matter.

[32]

Second, and more broadly, the considered
and reasoned acceptance language of
J.J.R.D.
has no place in a
W.(D.)
jury direction. As the totality of the passage quoted above reveals,
J.J.R.D.
was a sufficiency of reasons case. It was not a jury instruction case, nor
even a case about the content of the
W.(D.)
formula. The issue was
whether the reasons given by a trial judge, sitting alone, were sufficient to
permit effective appellate review: see
J.J.R.D.
, at paras. 1-2. That is
why Doherty J.A. describes a considered and reasoned acceptance  of the truth
of conflicting credible evidence as an 
explanation
for the rejection of an accuseds evidence (emphasis added). The case is about
whether the trial judge explained the conviction by offering a considered and
reasoned basis: see
R. v. Slatter
, 2019 ONCA 807, 148 O.R. (3d) 81, at
para. 84, leave to appeal to S.C.C. requested, [2019] S.C.C.A. No. 368;
R.
v. R.D.
, 2016 ONCA 574, 342 C.C.C. (3d) 236, at paras. 18-19. It does not
purport to offer a formula for overcoming facially unassailable exculpatory
evidence.

[33]

Put otherwise, the prerequisite terms,
considered and reasoned, were chosen because
J.J.R.D.
was about the
sufficiency of reasons. These terms are meaningful in a sufficiency of reasons
case. They direct
appellate courts
to ask what the
trial judges reasons for decision reveal about the basis for conviction, and whether
those reasons provide a pathway to conviction by showing that a decision to
convict without identifying problems with the exculpatory evidence was based on
a considered and reasoned acceptance of the truth of conflicting credible
evidence beyond a reasonable doubt. In contrast, those same terms, considered
and reasoned, offer no guidance to a trier of fact about when it is
appropriate to convict in the face of exculpatory evidence that has no obvious
flaws. Since every decision a trier of fact is to reach must be considered and
reasoned, telling the trier of fact that it may reject exculpatory evidence beyond
a reasonable doubt based on considered and reasoned acceptance of conflicting evidence
adds nothing. Indeed, doing so in a jury trial runs the risk of planting the
suggestion that
this
determination must be
considered and reasoned, whereas the other
W.(D.)
conclusions, less
so.

[34]

Simply put, the considered and reasoned language
in
J.J.R.D.
has nothing to do with a
W.(D.)
direction, adds
nothing of use to a
W.(D.)
direction, and may even be misleading.

[35]

Third, I agree with C.L. that inserting
paragraph 3 in the
W.(D.)
direction as the trial judge did in this
case resulted in an uneven charge. As I have stressed, the
W.(D.)
formula
functions by instructing jurors on the implications of the alternative possible
conclusions that can arise from credibility evaluation where there is
exculpatory evidence and conflicting inculpatory evidence. Proposition 3 does not
do so. It does not describe a conclusion and its consequences, but rather purports
to describe a mode of reasoning. Indeed, it describes a mode of reasoning that
will result in conviction. Expressly inserting only one mode of reasoning into
the
W.(D.)
charge can only serve to emphasize its importance over
other competing modes of reasoning, which is not appropriate, particularly not
when the only mode of reasoning inserted is inculpatory.

[36]

Even the place where proposition 3 was inserted,
immediately after propositions 1 and 2, adds to the unevenness of the charge.
Proposition 1 and 2 describe the two circumstances in which C.L.s testimony could
lead to an acquittal. To then immediately describe a way in which C.L.s testimony
can be overcome even if it is without obvious problems could well diminish the
importance of propositions 1 and 2 in the eyes of a juror.

[37]

Fourth, I accept C.L.s concern that
featuring a mode of reasoning that focuses on the comparative value of the
conflicting evidence in a he said/she said case increases the risk that
jurors might engage in credibility contest reasoning. This is perhaps the key
mischief that the
W.(D.)
decision intended to ameliorate, the very
risk that materialised in that case and that featured in the reasoning in
Challice
,
at pp. 554-57. I appreciate that jurors are to consider the whole of the
charge, and jurors faithful to propositions 1, 2, 4, and 5 would not simply
decide which version of events to prefer. For that reason, I would not find the
charge to be in error on this basis alone. Still, the increased risk of
confusion that could arise by featuring a contrast between the inculpatory and
exculpatory evidence in a he said/she said case underscores further why a such
an instruction should not be inserted into a
W.(D.)
charge.

[38]

Finally, although there may be exceptional cases
where it is appropriate to alert jurors that they may reject defence evidence outright
and find guilt beyond a reasonable doubt based on the strength of the Crown
case despite finding no identifiable material flaws in that defence evidence, this
is not one of them. Given the problems with the complainants evidence and the
absence of supporting evidence, there is no air of reality to the proposition
that a jury could fairly convict C.L., even if unable to identify any material flaws
in his evidence. A jury direction should relate to the needs of the specific
case. This case did not call for such a direction.

B.

THE REASONABLENESS OF THE VERDICT

[39]

C.L. argues that the complainants testimony was
so problematic that a finding of guilt, in the face of C.L.s testimony, was
unreasonable. I am not persuaded that the verdict was unreasonable. The
unreasonable verdict standard is high. In
R. v. Charlton
, 2019 ONCA
400, 146 O.R. (3d) 353, at para. 61, this court recently re-iterated the relevant
standard in credibility cases:

In evaluating the reasonableness of the jurys
verdict in a case that turns on findings of credibility, the reviewing court
must ask whether the jurys verdict is supportable on any reasonable view of
the evidence:
R. v. W.H.
2013 SCC 22, [2013] 2 S.C.R. 180, at para. 2.
The reviewing court must remain mindful that the trier of fact is best-placed
to assess the significance of any inconsistencies in the witnesses testimony,
and their motive to lie:
R. v. François
, [1994] 2 S.C.R. 827, at pp.
835-837;
R. v. Beaudry
, 2007 SCC 5, [2007] 1 S.C.R. 190, at paras. 4,
63.

[40]

I have already expressed my view that this would
not have been a proper case for an outright rejection of C.L.s evidence based
solely on the complainants testimony, had the jury found no material flaws in
C.L.s testimony. There are obvious risks in rejecting exculpatory evidence
where that evidence is immune from cogent criticism. One would think that the
credibility of inculpatory evidence must be particularly impressive before that
evidence can be credited beyond a reasonable doubt in the face of otherwise
unassailable exculpatory evidence. As I have said, the complainants evidence
was not compelling enough to accomplish this, had the jury taken the view that
it could find no material flaws in C.L.s testimony.

[41]

However, C.L.s testimony was not without
problems of its own. For example, the jury could have taken the view that
C.L.s testimony that he suddenly changed his mind about wanting to have a
relationship with the complainant was implausible, or the jury may have been
troubled by his admitted lie about being drunk when he had sex with the
complainant, or it may have rejected C.L.s claim that the complainants
brother reluctantly agreed that C.L. could date the complainant, which the
brother denied in his evidence. For these and other reasons the jury could
reasonably have taken the view that C.L.s testimony itself was flawed and
should therefore be rejected as incapable of raising a reasonable doubt as to
his guilt. It could also have concluded in the absence of credible exculpatory
evidence that the complainants evidence should be believed beyond a reasonable
doubt, despite its problems. Since a reasonable conviction could have been
fashioned in this way, this ground of appeal must be dismissed.

[42]

Because the verdict was not unreasonable on at
least one reasonable view of the evidence the unreasonable verdict appeal must
be denied.

CONCLUSION

[43]

I would therefore find that the trial judge
erred in proposition 3 of her
W.(D.)
direction to the jury, set aside
C.L.s conviction, and order a new trial.

[44]

As a result of the COVID-19 emergency, the panel
relieved C.L. from the term of his bail that requires him to surrender into
custody prior to this decision being released.

Released: A.H. April 16, 2020

David M. Paciocco J.A.

I agree. Alexandra Hoy A.C.J.O.

I agree. I.V.B. Nordheimer J.A.






