R. v. Sandhu, 2024 BCCA 34

COURT OF APPEAL FOR BRITISH COLUMBIA Citation: R. v. Sandhu, 2024 BCCA 34 Date: 20240206 Docket: CA48847 Between: Rex Respondent And Inderjit Singh Sandhu Appellant Restriction on publication: A publication ban has been mandatorily imposed under s. 486.4 of the Criminal Code restricting the publication, broadcasting or transmission in any way of evidence that could identify the victim or witness, referred to in this judgment as “the complainant” and her “friend”. This publication ban applies indefinitely unless otherwise ordered. Before: The Honourable Mr. Justice Harris The Honourable Mr.

Justice Willcock The Honourable Mr. Justice Hunter On appeal from: An order of the Supreme Court of British Columbia, dated September 15, 2022 (conviction) ( R. v. Sandhu , New Westminster Docket 83416-2). Counsel for the Appellant: H.M. Patey Counsel for the Respondent: M. Shah Place and Date of Hearing: Vancouver, British Columbia December 13, 2023 Place and Date of Judgment: Vancouver, British Columbia February 6, 2024 Written Reasons by: The Honourable Mr. Justice Harris Concurred in by: The Honourable Mr. Justice Willcock The Honourable Mr. Justice Hunter

Summary: This appeal arises from a conviction by jury of sexual assault under s. 271 of the Criminal Code . Mr. Sandhu contends that the judge failed to properly equip the jury to decide the case by inviting them to rely improperly on stereotypes, myths or unfounded assumptions in assessing the credibility of a complainant in a sexual assault case. Further, he argues that the trial judge failed to properly equip the jury in relation to the assessment of defence evidence, as outlined in W.(D.) . Held: Appeal dismissed. The judge provided accurate and sufficient instruction to the jury.

Reasons for Judgment of the Honourable Mr. Justice Harris: I. INTRODUCTION [ 1 ] The principal issue on appeal is whether the judge erred in her instruction to the jury by inviting them to rely improperly on stereotypes, myths or unfounded assumptions in assessing the credibility of a complainant in a sexual assault case. The appellant contends that the judge erred in instructing the jury that they could consider whether the complainant’s actions after sexual activity were consistent with someone who had just engaged in consensual sexual intercourse.

The appellant contends that this instruction, even when read in the context of the charge as a whole, encouraged the jury to engage in impermissible stereotypical reasoning.

[ 2 ] Secondarily, the appellant contends that the trial judge failed to provide an adequate jury instruction to make it clear that if they rejected the appellant’s exculpatory evidence, they could not rely on that rejection to infer guilt. [ 3 ] For the reasons that follow, I would dismiss the appeal. II. BACKGROUND [ 4 ] The background circumstances giving rise to the appeal may be briefly stated. [ 5 ] The appellant, Mr. Sandhu, and the complainant “met” on a dating/hookup app. The complainant lived in Washington State, while the appellant lived in British Columbia.

They agreed to meet on the Canadian side of the border and then go to Vancouver. After meeting, they decided to take the appellant’s vehicle to Vancouver, leaving the complainant’s vehicle behind. As they were driving, they decided to stop at a beach. [ 6 ] The appellant and the complainant had radically different versions of what happened in the car at the beach. The appellant described engaging in consensual sexual intercourse without a condom. The complainant described a violent sexual assault.

The only live issue for the jury was whether there was a reasonable doubt about whether the complainant had consented to the sexual activity. [ 7 ] The appellant testified that after the sexual activity they drove back to the complainant’s car. The appellant’s evidence was that, after consensual sex, they decided to go somewhere for breakfast. They drove back to the complainant’s car and she followed him in her car until he “ditched" her en route . The appellant explained that he did not think they had a connection and he did not want to waste her time or his time. He sent her a message saying “I can’t do this.

I’ve got to go to work”, and then he unmatched her on the dating/hookup app. He did not hear from her again. Presumably, this was not surprising as the appellant had used an alias on the dating/hookup app. The appellant was only able to be located because the complainant had taken a photograph of the licence plate of the vehicle he was driving and had sent it to a friend. [ 8 ] The evidence underlying the issue on appeal relates to the complainant’s post-event conduct. She disputed that they had agreed to have breakfast and that she was to follow the appellant.

She said that she got into her car and started to drive, but had to pull over because she was crying and could not see the road. She looked at her phone and saw a message from the friend to whom she had sent the photograph inquiring about how the date had gone. She spoke to her friend on the phone and told her what happened. Her friend insisted that the complainant call 9-1-1.

The complainant drove to a gas station and called the police. [ 9 ] It was admitted that the complainant’s friend told the police that she spoke to the complainant on the phone, who told her that “she’s standing in the middle of the road he had kicked her out of the car and she was bruised he punched her she had been raped and was just standing in the middle of nowhere.” The police arrived at the gas station and took the complainant to a hospital where a nurse performed a sexual assault examination.

The complainant testified that “ it was hours and hours of different tests ”, it was painful at times, and she had to take medication because the appellant did not use a condom. The complainant was not discharged until the next morning, at which time a family member came to pick her up. [ 10 ] The evidence at trial canvassed observations about the complainant’s condition at the hospital.

The forensic nurse examiner testified the complainant reported a headache and looked “ quite dishevelled.” Her eye makeup was smeared, she was tearful and her hair was “kind of messed up.” The nurse identified a number of injuries that were consistent with the history given by the complainant, but equally accepted that she could not say how the injuries were caused, who caused them, or whether they resulted from consensual or non-consensual sexual activity.

On cross-examination, she confirmed that she was not able to determine when the injuries occurred, accepted that there can be physical trauma in a consensual sexual encounter, and that a person who is having consensual sexual intercourse in a confined space might injure their knees or arms. [ 11 ] For current purposes, it is not necessary to refer to other evidence called at trial, or to recite the detail of the contrasting versions of events offered by the complainant and the appellant in their evidence. III.

THE APPELLANT’S POSITION ON THE PRIMARY ISSUE ON APPEAL [ 12 ] As I have observed, the principal issue on appeal is grounded in one statement in the jury charge dealing with the complainant’s conduct following the sexual encounter. Although I will focus initially on that one comment, it is important to know that the isolated sentence is embedded in a context that informs how the jury was instructed to use the evidence to which it referred.

The alleged impugned statement is the instruction in the charge that: As to consent, you may consider [the complainant]’s behaviour and demeanour after the sexual activity with Mr. Sandhu. You have heard her evidence that she called a friend and then called 9-1-1 very soon after Mr. Sandhu dropped her at her vehicle. She attended the hospital that day for a sexual assault examination.

You may consider whether these actions are consistent with someone who has just engaged in consensual sexual intercourse . [Emphasis added.] [ 13 ] The appellant says that the alleged impugned instruction invites the jury to evaluate the complainant’s credibility and reliability by reference to what he describes as a “prescribed pattern of behaviour”; namely, a stereotype of someone who had just engaged in consensual sexual activity. He says that this instruction is not grounded in the evidence.

[14] The appellant accepts that post-event conduct is circumstantial evidence that may be used to assess the credibility and reliabilityof the complainant’s testimony of non-consent, but only if it is grounded in the evidence. What is impermissible is to rely onassumptions, generalizations, common sense or stereotypes, untethered to the evidence, about what “someone” would do or not do afterconsensual sexual activity in assessing credibility or reliability.

The appellant contends that part of what was missing here is evidencefrom the complainant about how she would or would not behave after consensual or non-consensual sexual activity. The appellant arguesthat the unfounded assumption here is about how someone would behave if they were not a victim of a sexual assault. The assumption isthat such a person would not report an assault and attend a hospital for a sexual assault examination.

The jury was being invited tobelieve the complainant’s version of events, in the absence of evidence, because she did those things and someone would only do thosethings if they had been sexually assaulted and had not engaged in consensual sexual activity. [15] The appellant accepts the proposition that a jury charge has to be read functionally as a whole, in light of the evidence, the liveissues, the positions of counsel and whether objection was taken to the charge.

He acknowledges that an accused is entitled to a properly,not a perfectly, instructed jury; namely, one that is both accurately and sufficiently instructed (see R. v. Abdullahi, 2023 SCC 19 atparas. 35–37). He accepts, too, that much of the charge is unobjectionable and that the judge warned the jury about making assumptionsabout human behaviour or relying on generalizations and stereotypes.

But he says that the jury was repeatedly instructed they shouldfollow the judge’s instructions and the correct parts of the charge can not eliminate the reasonable possibility that the jury followed thealleged erroneous instruction and improperly relied on “prescribed behaviour”. Accordingly, the appellant argues that a new trial shouldbe ordered. IV. STANDARD OF APPELLATE REVIEW [16] The standard of review applicable to a jury charge on appeal was recently clarified in Abdullahi.

On appellate review, the courtmust, relying on a functional approach, consider whether the overall effect of the charge, read as a whole, sufficiently and accuratelyequipped the jury, in the circumstances of the trial, to decide the case according to the law and the evidence (see Abdullahi at paras. 35,38–59). V. ANALYSIS A. Did the Judge Err in Her Instruction to the Jury by Inviting Them to RelyImproperly on Stereotypes, Myths or Unfounded Assumptions in AssessingCredibility? [17] I will begin by setting out what I understand to be the governing principles applicable to this issue. [18] Mr.

Sandhu accepts, as he must, that post-event conduct of an accused or an alleged victim may be relevant to the assessment ofthe credibility of their testimony (see R. v. Greif, 2021 BCCA 187 at para. 66). Triers of fact are entitled and expected to rely on lifeexperiences and their common sense in drawing inferences from the evidence, but cannot rely on speculative reasoning apparently rootedin “common sense” assumptions, generalizations or stereotypes, not tethered to the evidence of the specific case, about how peoplewould normally behave (R. v. Pastro, 2021 BCCA 149 at paras. 41–44).

These propositions are well established in our case law, but it isuseful to set out how these principles have recently been summarized by this Court. Justice Fitch for the Court in Pastro put it this way: [41] Judges are entitled, and expected, to rely on their life experience in making credibility findings. This necessarily includesdrawing common-sense inferences from established facts. Juries are routinely instructed along the same lines—to come tocommon-sense conclusions based on the evidence they accept.

Where it is apparent from a review of the reasons as a whole that acredibility assessment is rooted in the evidence, and is the product of a case-specific determination about what the complainant andaccused did or did not do, there will be no basis for appellate intervention, absent palpable and overriding error in fact: see R. v. Mann,2020 BCCA 353 at paras. 72–76; R. v. Quartey, 2018 ABCA 12 at paras. 21, 34–35, aff’d 2018 SCC 59.

This is consistent with thedeferential standard of review that applies to factual findings and with the profound functional and policy justifications that underlie it. [42] The corollary is that judges must avoid purporting to make factual findings that are rooted in inappropriate behaviouralassumptions and stereotypes. Clear expression of the evidentiary foundation upon which findings of fact and credibility have been madewill promote public confidence in the result, and enhance meaningful appellate review.

The spectre of judicial reliance on ungroundedassumptions or stereotypes will not arise where the reasons clearly reflect that findings of fact and credibility do not rest on a subjectiveassessment of what a hypothetical complainant or accused might reasonably be expected to do in the circumstances, but on what theevidence establishes the complainant and accused did or did not do in the context of the case being tried. [43] As is apparent from the foregoing, judges risk falling into reversible error if they make credibility determinations by relying onassumptions about the type of behaviour that would “normally” be expected of a person without engaging with the evidence, includingthe context in which contentious events arose: R. v.

Roth, 2020 BCCA 240 at paras. 64–65, 71–73. [44] Recourse to generalizations about normative behaviour in assessing the credibility of a witness that do not rest on the evidence,including reasonable inferences that may be drawn from it, departs from the foundational principle that triers of fact—judges and juries—are obliged to decide cases based only on the evidence before them. As Justice Major put it in R. v.

S. (R.D.), (SCC),[1997] 3 S.C.R. 484 at para. 13 (dissenting in the result), while life experience is an important ingredient in the determination ofcredibility, it is not a substitute for engagement with the evidence. Relying on assumptions about how people “normally” behave to makefindings of fact and credibility engages speculative reasoning.

In addition, approaching the fact-finding process in this way is dangerousbecause it does not account for the unpredictable, surprising, and out-of-character ways in which human beings sometimes do behave.The danger may be particularly acute where the context in which a contentious event has occurred is such that behavioural norms may be

even less likely to serve as reliable touchstones in the fact - finding process. [Emphasis added.] [ 19 ] These propositions have been reflected in other cases from this Court. For example, as noted in R. v. Conway , 2021 BCCA 460 : [44] It is an error in principle to assess the credibility of a complainant or accused relying on “inappropriate behavioural assumptions and stereotypes”: R. v. Pastro , 2021 BCCA 149 at para. 42 . Where demonstrated to exist, this error will displace the highly deferential standard of review that governs credibility findings: R. v.

S.S.S. , 2020 BCCA 180 at paras. 24–26 . [45] Credibility findings, whether favourable or adverse, cannot be grounded in “assumptions about the type of behaviour that would ‘normally’ be expected of a person without engaging with the evidence, including the context in which contentious events arose ”: Pastro at para. 43 , citing R. v. Roth , 2020 BCCA 240 at paras. 64–65 , 71–73. See also R. v. Greif , 2021 BCCA 187 at paras. 60–61 ; R. v. C.M.M. , 2020 BCCA 56 at paras. 138–139 ; R. v. Kodwat , 2017 YKCA 11 at para. 41 . [Emphasis added.] [ 20 ] In R. v.

Dhaliwal , 2021 BCCA 479 , a similar argument to the one advanced here was rejected on the facts of that case because the credibility assessment, including facts about post-event conduct, was rooted in the evidence about the particular complainant, the appellant and the context of their interaction. The conclusions were specific to the particular parties and their conduct.

The Court characterized the matter in this way, applying the general principles to the specifics of the case: [67] Finally, the finding of inconsistency between the appellant’s description of consensual sexual activity and his post-event response by text was also grounded in the evidence. In his testimony, the appellant was adamant that he was concerned for the complainant’s well-being, gave her a ride because he wanted to help her out, and considered it important to ensure she was okay. He said she willingly performed fellatio.

And yet, when he received a text from her indicating that she was upset with him, he responded with language that, on its face, appeared flippant and dismissive. [68] The judge found that the response, sent shortly after the events in the car, was not consistent with the appellant’s description of the dynamics before he dropped the complainant off. To the contrary, it was consistent with the complainant’s testimony that he forced sexual activity on her, ignored the fact that she did not want to engage in the act, and treated her in a demeaning fashion. I see nothing wrong with drawing that inference.

Again, it was not an inference based on an ungrounded assumption about the meaning or use of “Lmao” generally or what the judge would have expected from a hypothetical person standing in the appellant’s shoes. It was based on the juxtaposition between this appellant’s description of how he treated the complainant and the language that he then used in a text. There is no reversible error here. [ 21 ] In sum, triers of fact may rely on reason, common sense, life experience and logic, but not prejudicial or stereotypical reasoning in assessing credibility ( Pastro at para. 52 , citing R. v.

Delmas , 2020 ABCA 152 at para. 31 , aff’d 2020 SCC 39 ). The objective of the law is to prevent prejudice and unfair and inaccurate assessments of credibility. Hence, as noted by the Court of Appeal for Saskatchewan in R. v.

Adebogun , 2021 SKCA 136 at para. 24 , “[a] trier of fact is permitted to use assumptions about ordinary human conduct when determining whether testimony given by a witness should be believed. … Drawing an inference based on whether explanations provided by a witness are inherently improbable when measured against the conduct of ordinary people does not constitute the drawing of a legally impermissible inference that relies on stereotypical thinking, so long as the judge’s reasoning remains rooted in the evidence”.

What matters is that these assessments need to be rooted in the evidence of the case including how the parties conducted themselves before and after the events. [ 22 ] Similarly, in R. v. J.C. , 2021 ONCA 131 , Justice Paciocco explained, at paras. 59–60, that the rules against ungrounded assumptions and stereotypical reasoning do not prohibit all behavioural inferences that are based on human experience or generalizations.

Such an absolute bar on using human experience would prevent the use of circumstantial evidence “since, by definition, the relevance of circumstantial evidence depends upon using human experience as a bridge between the evidence and the inference drawn” ( J.C. at para. 59 ).

Similarly, a bar on using human experience of human behaviour to draw inferences would mean that after-the-fact conduct evidence (such as evidence of flight or the destruction of evidence) would not be allowed, as such evidence is only relevant “because human experience tells us that these behaviours, flight and destroying evidence after a criminal act, are generally undertaken to hide guilt” ( J.C. at para. 60 ).

As Paciocco J.A. goes on to explain in J.C. : [68] The second critical point in understanding the rule against stereotypical inferences is that this rule prohibits certain inferences from being drawn; it does not prohibit the admission or use of certain kinds of evidence. Professor Lisa Dufraimont makes this point admirably in “Myth, Inference and Evidence in Sexual Assault Trials” (2019) 44:2 Queen’s L.

J. 316, at pp. 345-46, 350; and it is reinforced in A.R.D. , at paras. 6-8, 62; and Roth , at para. 73 . [69] For this reason, it is not an error to admit and rely upon evidence that could support an impermissible stereotype, if that evidence otherwise has relevance and is not being used to invoke an impermissible stereotype: Roth , at paras. 130-38 . For example, in R. v.

Kiss , 2018 ONCA 184 , at paras. 101-2 , evidence that the complainant did not scream for help was admitted, not to support the impermissible stereotypical inference that her failure to do so undermined the credibility of her claim that she was not consenting, but for the permissible purpose of contradicting her testimony that she had screamed to attract attention. [70] By the same token, it is not an error to arrive at a factual conclusion that may logically reflect a stereotype where that factual conclusion is not drawn from a stereotypical inference but is, instead, based on the evidence. [Emphasis in original.] [ 23 ] I agree with this

summary of the guiding principles found at para. 54 of the Crown’s factum: Accordingly, it is not a legal error to instruct the jury that they may rely on assumptions about ordinary human conduct to draw

inferences from the evidence, as long as it is made clear to the jury that their credibility assessment must be rooted in the evidence and the jury is cautioned against relying on myths, stereotypes, or prejudicial generalizations. [ 24 ] It follows, in my view, that in assessing the complainant’s assertion that she had not consented to the sexual activity, the jury is entitled to consider the complainant’s (and the accused’

s) conduct during and after the event to ask whether that conduct is consistent or inconsistent with the assertion of non-consent. What matters is that this assessment be grounded in the evidence of what this complainant did, what the appellant did, and the context of their interaction. If post-event conduct is relevant to and may be used in making that assessment, and the assessment is grounded in the evidence, that is the end of the matter, provided the jury is properly instructed about the use they may make of the evidence.

Appellate intervention is not justified. [ 25 ] In this case, the post-event conduct included, as we have seen, evidence that the complainant was distraught, dishevelled, reported the incident to a friend, then to the police and undertook a sex assault examination at a hospital, all in a foreign country. I do not understand Mr. Sandhu seriously to contend that no use can be made of this evidence by the jury.

Rather, he suggests that some evidence needed to be led by the complainant, not just about what she did do in the circumstances of the case, but what she would and would not do in circumstances like the ones involved in this case. [ 26 ] With respect, I do not think such evidence was required or perhaps even admissible. [ 27 ] In my view, the impugned instruction properly told the jury that they could consider whether the complainant’s conduct, after the event (and clearly grounded in what she did), was consistent or inconsistent with her assertion of non-consent.

The jury were not being invited to assess the complainant’s assertion on non-consent in a manner unconnected to the evidence before them. As a result, I do not think it was impermissible to instruct the jury that they could consider, in substance, whether her behaviour was consistent with how someone who had just had consensual sexual intercourse would act, because it is rooted in the evidence and not untethered to it. It is important to note that the jury was only instructed that they could consider the evidence in that way.

The jurors were told, in effect, that they could, but not must, infer that her behaviour was not consistent with someone who had just had consensual sex, or that it was consistent with someone who had been sexually assaulted. Certainly, the jury was being invited to test this aspect of the evidence against human experience, but the assessment was tied into and tethered to the evidence, and did not rely on prejudicial stereotyping not arising from the evidence. [ 28 ] On the evidence, the complainant’s demeanour and behaviour after the incident is in marked contrast to what it was before the incident.

The complainant had driven into Canada for a date, she agreed to travel with the appellant, apparently with a view to visiting Vancouver and they parked at a beach. Shortly, thereafter, she is crying, distraught and unable to drive. She speaks on the phone with a friend, is evidently upset and reports an assault. She is told to phone the police and go to hospital, where she is “quite dishevelled”. Her eye makeup is smeared, she is tearful, and her hair is “kind of messed up”. Evidently, the complainant’s condition before and after the incident is very different.

The change calls for an explanation of what caused it, and whether the changes tend to support the complainant’s version of events. It was open to the judge to instruct the jury that it may consider this rapid change in demeanour (see e.g., R. v. Mehari , 2020 SKCA 37 at para. 84 [ Mehari CA ], rev’d 2020 SCC 40 , aff’d dissenting reasons of Justice Leurer from R. v. Mehari , 2021 SKCA 26 ). [ 29 ] Moreover, the impugned portion of the charge needs to be set in the context of the charge as a whole ( Abdullahi at para. 35 ). Only then can it be determined whether the charge was improper.

The first point to note is that the portion of the charge reproduced above does not set out fully what the jury was told about the use they could make of the post-event conduct. For convenience, I reproduce the immediately relevant part of the charge: As to consent, you may consider [the complainant]’s behaviour and demeanour after the sexual activity with Mr. Sandhu. You have heard her evidence that she called a friend and then called 911 very soon after Mr. Sandhu dropped her at her vehicle. She attended the hospital that day for a sexual assault examination.

You may consider whether these actions are consistent with someone who has just engaged in consensual sexual intercourse. I urge you to be careful in drawing inferences from the actions of [the complainant] after the sexual activity in question. This evidence is not direct evidence of non-consensual sex, it is circumstantial, and you must remember the caution I have given you about circumstantial evidence. You must consider reasonable alternative explanations for the things [the complainant] did after the sexual activity. [ 30 ] This additional paragraph is significant.

In it, the judge identifies the evidence as circumstantial, reminds the jury that they must be careful about the inferences they draw from it, and states that they must consider alternative explanations for what she did afterwards. As I see it, the jury is being cautioned about the weight they can place on the post-event conduct and are told to consider alternative explanations for that conduct. This is informing the jury that they should not generalize or assume that all individuals will behave in one way or another after consensual or non-consensual sex.

Moreover, it is directing the jury to assess credibility grounded in the evidence. As the Crown put it in their factum: “[t]he fact that, as a matter of common human experience, people do not generally call 9-1-1 and undergo invasive medical examinations after consensual sexual activity, coupled with the absence of any other explanation for [the complainant]’s post-event conduct, provided a basis for the jury to infer that [the complainant]’s actions following the sexual activity supported her claim of non-consent”. [ 31 ] The instruction on this point is supported more generally by the instructions at large.

In short, in opening and final instructions the judge repeatedly warned the jury about relying on stereotypes, ungrounded assumptions or biases. The jury was told that they had to decide the case on the evidence and that there were no typical victims, assailants, situations, or reactions in sexual assault cases.

The jurors were told in the charge that they could rely on reason, common sense, life experience, and logic in assessing credibility, but that “it is an error of law to draw an adverse inference about a witness’ credibility based on stereotypes, generalizations, myths, or assumptions about how individuals would behave in particular circumstances that are not grounded in the evidence.” I offer the following examples to illustrate the care the judge took to ensure the jury assessed credibility properly. [ 32 ] First, in the judge’s opening remarks to the jury, she began by cautioning the jury about making adverse inferences grounded in stereotypes, myths and ungrounded assumptions or biases:

My final instructions to you which are often referred to as the jury charge will tell you what the law is and what the Crown must proveand it will also include a review of some of the evidence given during the trial. You should always remember however, that it is onlyyour memory and understanding of the evidence that counts in this case, not mine and not that of counsel. I want to caution you againstapproaching the evidence with any assumptions about what is or is not sexual assault. What is or is not consent. And what kind of personmay or may not be the complainant of a sexual assault.

What kind of person may or may not commit a sexual assault. Or what a personwho is being or has been sexually assaulted will or will not do or say. As I noted earlier, there is no typical victim or typical assailant inthe sexual assault cases. You must approach the trial with an open mind and at the end of the trial you must make your decision basedsolely on the evidence and in accordance with my instructions. [Emphasis added.] [33] Second, such cautionary statements continue to be made on multiple occasions within the jury charge.

This includes thefollowing statement, clarifying how stereotypical reasoning may arise in the mind of the juror and cautioning the jury against engagingin such logic: Triers of fact must be aware that there is no inviolable rule about how people who are victims of sexual assault will behave. Forexample, a stereotype might be that if a woman does not fight back during a sexual assault, she is more likely to have consented.

If avictim in a case of sexual assault does not fight with her attacker, it would be an error of law for a juror to reason that, “I don’t believeher because if she was really sexually assaulted, she would have attacked him. Therefore she must have consented to sex.” Or, “If I werein that situation, I would have fought back. Therefore, I do not believe that she did not consent to sex.” In those examples, the juror would be relying on a stereotype about how a sexual assault victim behaves to assess the credibility of thewitness.

Credibility assessments must be grounded in the evidence, and stereotypes may never be used to fill in evidentiary gaps. [34] The final example I turn to is the judge’s restatement of the aforementioned cautions later in the jury charge: I want to remind you not to approach the evidence with unwarranted assumptions about what is or is not sexual assault, what is or is notconsent, what kind of person may or may not be the complainant of a sexual assault, what kind of person may or may not commit asexual assault, or what a person who is being or has been sexually assaulted will or will not do or say.

There is no typical victim or typical assailant, typical situation, or typical reaction. My purpose in telling you this is not to support a particular conclusion, but to caution you against reaching conclusions based on commonmisconceptions. You must approach the evidence with an open mind and without preconceived ideas. You must make your decision based solely on theevidence in accordance with my instructions on the law. [35] In my view, the judge properly instructed the jury, and I would not accede to this primary ground of appeal. B.

Did the Trial Judge Fail to Give Proper W.(D.) Jury Instruction? [36] I turn now to the second ground of appeal. Mr. Sandhu says the instruction pursuant to R. v. W.(D.), [1991] 1 S.C.R. 742, , was deficient because it did not expressly tell the jury that it could not use its rejection of Mr. Sandhu’s exculpatory evidenceas proof of his guilt. This argument is derived from the analysis of the W.(D.) instruction undertaken by the Court of Appeal of Alberta inR. v. Ryon, 2019 ABCA 36. I would not give effect to this submission.

In my opinion, the jury was properly instructed in accordance withW.(D.), and I do not think that they could reasonably have been led to conclude that they could use their evident rejection of theaccused’s evidence as proof of his guilt. [37] This Court has considered whether the W.(D.) instruction should be reformulated in accordance with the suggestions of the Courtof Appeal of Alberta. In R. v.

Demirovic, 2021 BCCA 429, Justice Stromberg-Stein noted: [44] The purpose of the W.(D.) instruction is to remind the trier of fact that reaching a verdict is not simply a question of choosingbetween the evidence of the Crown and the accused person. Rather, the trier of fact must consider whether, based on the totality of theevidence, they are left with a reasonable doubt as to the accused person’s guilt: R. v. S.(W.D.), [1994] 3 S.C.R. 521, .There is no requisite formula or magic incantation to convey this message: R. v.

Boucher, 2005 SCC 72 at para. 59. … [48] In my view, the suggested reformulation of the W.(D.) instruction in Ryon has not changed the message in W.(D.), bearing inmind there is no ritualistic formula to explain the concept of reasonable doubt in the context a particular case. In any event, theinstruction in this case is not inconsistent with the Ryon reformulation. The judge set out where the burden of proof lay; he told the jury itmust acquit Ms. Demirovic if it believes her evidence or is unsure of whom to believe; and he clarified that the jury can only findMs.

Demirovic guilty if the evidence it accepts proves Ms. Demirovic’s guilt beyond a reasonable doubt, not simply by rejecting herevidence. Each of these is an essential aspect of the Ryon reformulation. [38] As I see it, the judge here instructed the jury. She set out the presumption of innocence, the standard of proof, and that the burdenof proof rests with the Crown and never shifts. On matters related to W.(D.), she instructed the jury as follows: … if you believe the testimony of Mr. Sandhu that he did not commit the offence charged, you must find him not guilty.

However, even if you do not believe the testimony of Mr. Sandhu, 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. If you do not know whom to believe, it means you have reasonable doubt and you must find Mr. Sandhu not guilty. Even if the testimony of Mr. Sandhu does not raise a reasonable doubt about his guilt or about an essential element of the offence charged, if, after considering all of the evidence, you are not satisfied beyond a reasonable doubt of his guilt, you must find him not guilty. [ 39 ] She repeated the instruction, specifically in relation to consent, noting: … If you accept Mr.

Sandhu’s testimony about what happened in the vehicle, and specifically that [the complainant] said “yes” when he asked her to have sex with him, that evidence may be taken by you as evidence of [the complainant]’s consent and you must find Mr. Sandhu not guilty. However, even if you do not believe Mr. Sandhu, you must still consider whether his evidence raises a reasonable doubt as to the essential element of lack of consent. If you do not believe Mr. Sandhu’s evidence, but you are left with reasonable doubt about whether [the complainant] did not consent, you must find Mr. Sandhu not guilty.

Finally, even if the testimony of Mr. Sandhu does not raise a reasonable doubt about whether [the complainant] consented, if, after considering all the evidence, you are not satisfied beyond a reasonable doubt that [the complainant] did not consent, you must find Mr. Sandhu not guilty. [ 40 ] The W.(D.) instruction was also repeated in response to a question from the jury. [ 41 ] In my view, the charge properly and adequately protected Mr. Sandhu from any risk that the jury would treat disbelief of his evidence as proof of guilt. The instruction in this case was consistent with the purpose of W.(D.) .

The judge set out where the burden of proof lay, she told the jury that they must acquit if they did not know whom to believe, and she emphasized that it was not a credibility contest. She also explained that the jury could only find the appellant guilty if the evidence they accepted proved non-consent beyond a reasonable doubt, not simply by rejecting his evidence. The jury could not have been under any misapprehension as to the correct burden and standard of proof to apply. Accordingly, I would not accede to this ground of appeal. V. DISPOSITION [ 42 ] I would dismiss the appeal. “The Honourable Mr.

Justice Harris” I agree: “The Honourable Mr. Justice Willcock” I agree: “The Honourable Mr. Justice Hunter”