R. v. Heintzelman, 2019 BCSC 1499

IN THE SUPREME COURT OF BRITISH COLUMBIA Citation: R. v. Heintzelman, 2019 BCSC 1499 Date: 20190906 Docket: 171785-C-4 Registry: Victoria Between: Her Majesty the Queen Appellant And: John Thomas Heintzelman Respondent Before: The Honourable Mr. Justice Johnston On appeal from a

Summary Conviction, Date of Acquittal December 20, 2018 Reasons for Judgment Counsel for the Crown Appellant: L.A. Ruzicka Counsel for the Accused Respondent: J.M.P. Firestone Place and Date of Hearing: Victoria, B.C. June 17, 2019 Place and Date of Judgment: Victoria, B.C. September 6, 2019 [ 1 ] The respondent was acquitted by a judge of the Provincial Court after a trial on two counts of sexual assault.

The first count alleged an assault on E.M. on or about July 2, 2017, the second alleged an assault on T.T. between July 2 and December 31, 2013. [ 2 ] The Crown proceeded summarily on the two hybrid charges. [ 3 ] The trial judge heard evidence over four days in November 2018, and argument on December 18, 2018. The trial judge reserved judgment and delivered his decision orally on December 20, 2018. The reasons for the acquittal are found at R. v.

Heintzelman , 2018 BCPC 354 . [ 4 ] The respondent offered massage treatments out of a facility in the basement level of his home, which he shared with his wife, in Victoria. One of the treatments offered by the respondent involved rubbing hot stones on various parts of a customer’s body. [ 5 ] Each complainant described unwanted sexual touching by the respondent during a hot stone treatment in which each was lying naked on a treatment table in the respondent’s facility. [ 6 ] The second episode in time was the first reported to police, and it led to a single charge that was set for a two day trial in May 2018.

In October 2017 Victoria Police issued a press release seeking other complainants, and this led T.T. to come forward. When a second count was added to the Information in late April 2018, the original trial date was cancelled and new trial dates set for the two- count Information. [ 7 ] At the trial, the Crown led evidence from the complainants on each count. The accused testified in his defence, as did his wife.

The accused put his character in issue. [ 8 ] The complainant E.M. testified that when she went to the respondent’s business for a hot stone massage, the respondent had her completely disrobe, then under the guise of a hot stone massage treatment, sexually assaulted her. The appellant accepts that the trial judge’s

summary of E.M.’s evidence in his reasons for judgment was accurate. [ 9 ] The complainant T.T. testified that she went to the respondent in 2013 for something she called “Bowen treatments” that did not involve hot stones, or removing her clothes, and it was on her third or fourth attendance that the respondent had her completely disrobe, then sexually assaulted her in the course of a hot stone massage. She testified that she did not report the assault immediately because she suppressed the incident, perhaps because of medication she was taking, and because she thought she would not be believed because she was schizophrenic. The appellant accepts that the trial judge’s

summary of T.T.’s evidence was accurate.

[10] The respondent testified and denied touching either complainant in a sexual fashion. The respondent’s wife testified that she wasupstairs in the home when E.M. was being treated, and she heard nothing untoward.

She was not sure if she had been at home when T.T.attended for treatments. [11] During final submissions at trial, counsel for the Crown applied to have the evidence of each complainant on each countadmitted as similar fact evidence on the other count “… in terms of the act itself of the sexual assault”: Trial Transcript Day 5 p. 60 ll.24-5. [12] The trial judge’s assessment of the evidence and his conclusions are as follows: [12] While demeanour is a notoriously unreliable guide to the assessment of credibility, it is worthy of some comment. Each of thewitnesses in this case presented as eminently credible.

There was nothing in their demeanour or in the presentation of their evidencewhich caused me to doubt their veracity or the accuracy of their recollection. [13] There was nothing inherently implausible about the evidence of any of the witnesses. In particular, it is not surprising that awoman in the position described by the complainants would be too traumatized and frightened to cry out or to resist. I respectfully adoptthe following remarks of Justice Milman in R. v. F.J.C., 2018 BCSC 1443; [2018] B.C.J.

No. 3053 at paragraph 44: The law now recognises that victims of sexual assault will react in a myriad of ways to the trauma of having been assaulted.

Therefore, in assessing the credibility of a complainant …, the mere fact that she did not try to avoid the accused or report the allegedassault to others within a particular time, is not a proper basis upon which to discount her credibility and thereby harbour a reasonabledoubt about the guilt of the accused, insofar as it would be based on discredited and stereotypical thinking about how people in generalare supposed to behave in such circumstances …. [14] With one exception, there is no objective circumstance which renders one account of the events more or less plausible thananother.

That exception is the presence of Ms. W in the house during E.M.’s massage appointment. Mr. Firestone, on behalf of Mr.Heintzelman, urges me to conclude that no rational man in Mr. Heintzelman’s position would take the risk of perpetrating a sexualassault when his wife was only a few feet away, particularly when the wife was an acquaintance of the victim. The point is not devoid ofmerit, but I place little weight upon it. Men who conduct sexual assaults of the kind described by the complainants are not rationalactors. Their conduct is, by its nature, inexplicable to most people.

It would not be surprising to hear that a sexual assailant of this kinddid something extraordinarily imprudent. [15]. Ms. Donnachie, for the Crown, submits that, by reason of the similarity of their accounts, the evidence of each complainant iscorroborative of the other. Each counsel provided me with a thorough submission as to the principles governing the admissibility of“similar fact evidence”. For the purposes of this decision, I am prepared to assume, without deciding, that Ms.

Donnachie is correct, andthat those principles support the admissibility of each complainant’s evidence as “similar fact evidence” capable of supporting thecredibility of the other complainant’s evidence. In addition to the obvious similarities in the circumstances and nature of the assaultalleged by each complainant, it should be noted that each complainant is of a similar age, size and body type, which may be significantwhen sexual assault is alleged. [16] There are two factors which tend to reduce the corroborative weight to be given to the “similar fact evidence” in this case: a.

I have very little information to assist me in assessing the impact, if any, of T.T.’s mental illness or her medication on thereliability of her evidence. b I am concerned by the notice published by the Victoria Police Department, asking other victims to come forward. Itwould have been better if the notice had said something like this: The Victoria Police Department has received a complaint from a woman who alleges that she was sexuallyassaulted by a male massage therapist during a hot stone massage at his home studio in Victoria.

The police are concerned that theremay have been other victims of the same individual who have not come forward. If anyone has suffered a similar assault, they are askedto contact Constable Bloggins at 250-111-1111. If the police had published such a notice, and received one or more complaints in response, it would have been possible for them to testthe veracity of those complaints by asking the complainants for the name of the assailant and the address where the assault took place.

Because those details were included in the notice published in this case, it was not possible for the police to test the veracity of T.T. byasking her those questions. The notice in this case offends the principle articulated by Justice Rowles in R. v. Reitsma, (BC CA), [1997] B.C.J. No. 2314 at paragraph 59. The identification of an accused person for the first time "in the dock" is generally regarded as having little weight.

In a dockidentification the witness is obviously not required to pick out the person whom he claims to have seen from among a number of otherpersons of similar age and size and general physical appearance. In a courtroom identification there is also the danger of the witnessanticipating that the offender will be present. That danger is accentuated when an accused is readily identifiable in the courtroom as theperson accused of the crime.

Identification of an accused for the first time in the dock is analogous to a police "show up" in which theonly person shown to the identifying witness is the suspect, and for that reason it is open to the same criticism. Generally, anythingwhich tends to convey to a witness that a person is suspected by the police or is charged with the offence has the effect of reducing ordestroying the value of the identification evidence.

Justice Rowles’ judgment was the minority judgment in the Court of Appeal, but was adopted in its entirety by the Supreme Court ofCanada in allowing the final appeal in that case: (SCC), [1998] 1 S.C.R. 769, and so may be taken as a definitivestatement of the governing principle. [17] The police should also be conscious that the publication of a notice containing the name of the suspect: (

i) may prejudice theright of the accused to a fair trial, particularly where the accused elects trial by jury; and (ii) may unfairly damage the reputation and

livelihood of the suspect if the allegation is unfounded. [18] In R. v. C.W.H., (BC CA), [1991] B.C.J. No. 2753; 68 C.C.C. (3d) 146, Justice Wood said at paragraph 24that juries in criminal cases should be instructed that “… if, after a careful consideration of all of the evidence, you are unable to decidewhom to believe, you must acquit.” I find myself in that position, and so am obliged to acquit Mr. Heintzelman. [Emphasis in original.] Issues Raised [13] The Crown raises the following grounds for appeal: 1.

The trial judge erred in fact and law in the assessment of the credibility and reliability of the complainant T.T.’s evidence,including by requiring corroborative evidence about the nature and extent of her mental illness; 2. The trial judge erred in fact and law in the assessment of the credibility and reliability of the complainant E.M.’s evidence; 3. The trial judge erred in law in the assessment of the similar fact evidence; 4.

The trial judge erred in fact and law in assessing the effect of the police announcement (“the Media Release”) published by theVictoria Police Department (“VPD”) when identification was never an issue at trial and the Media Release did not have any impact onthe credibility and reliability of E.M.’s evidence. [14] The appellant does not question the sufficiency of the reasons for acquittal, and accepts that the path of reasoning leading to theacquittal is clear enough. [15] In spite of the apparent equivocation on whether the trial judge actually ruled that the evidence on each count was admissibleon the other, the Crown accepts for the purposes of the appeal that the trial judge found that the evidence was admitted as similar factevidence for the purpose for which it was sought to be applied.

The stated purpose was to aid in establishing that the illegal acts chargedhad occurred. But as the trial judge pointed out, once admitted, similar fact evidence could be used to support the credibility of eachcomplainant. The authorities support the use of similar fact evidence to bolster credibility as well as to go to the actus reus of eachoffence: see R. v.

Titmus, 2004 BCCA 633, where the court said at para. 38: The trial judge held that the similar fact evidence enhanced the credibility of both complainants and tipped the scales beyond a balanceof probability in establishing the actus reus of the shower incidents (paras. 140-141). I see no error by the trial judge in her identificationof the issues to which the similar fact evidence was relevant.

And at para. 39: For sexual assault cases in particular, Madam Justice McLachlin, (as she then was) said that where identity is not an issue, the credibilityof a complainant is an issue in which similar fact evidence might be received: R. v. B. (C.R.), supra at paras. 38-41. [16] The Crown argues that the judge was wrong in fact and law in the way he approached the reliability and credibility of thecomplainant T.T.

The argument centers on what the judge said at paragraph 16 of his reasons: There are two factors which tend to reduce the corroborative weight to be given to the “similar fact evidence” in this case: a., I have very little information to assist me in assessing the impact, if any, of T.T.’s mental illness or her medication on thereliability of her evidence. b. I am concerned by the notice published by the Victoria Police Department, asking other victims to come forward. [17] The first factor refers back to facts found set out in para. 4 of the reasons: T.T. suffers from a mental illness.

At earlier times in her life, she suffered from visual and auditory hallucinations. Her present diagnosisis schizophrenia, but she disputes that diagnosis. She was prescribed, and was taking, anti-psychotic medication at the time of herencounters with Mr. Heintzelman, at the time of her police interview in November, 2017, and also when she gave evidence at trial. Thereis no evidence from her treating physician and no other evidentiary basis on which I could assess the impact, if any, of her psychiatriccondition or medication on the reliability of her evidence. [18] The appellant relies on R. v.

Perrone, 2014 MBCA 74, aff’d 2015 SCC 8. That case involved an appeal from a conviction forsexual assault on the grounds that the trial judge erred in assessing the complainant’s evidence on the issues of credibility and reliability.The complainant had testified that at the time of the offence she was intoxicated, and at the time of trial she had a mental disability in theform of psychosis for which she was medicated. The complainant also had admitted to lying at the preliminary inquiry about how muchshe could remember of the events leading to the charge.

The trial judge had found the complainant to be “believable, forthright and acompelling witness.” [19] The court in Perrone canvassed the difference between credibility — a witness’s sincerity or willingness to speak the truth asthe witness believes it to be —and reliability — a witness’s accuracy, which involves the witness’s ability to accurately observe, recalland recount the events in issue, citing R. v. Morrissey (1995), (ON CA), 22 O.R. (3d) 514 (C.A.).

In a passage reliedon by the appellant, the court in Perrone says at para. 30, “A mental illness does not necessarily imply an issue with reliability.” [20] The Crown also cites R. v. Osolin (1991), (BC CA), 7 B.C.A.C. 181 (C.A.), rev’d on other grounds, (SCC), [1993] 4 S.C.R. 595, where at para. 99, Southin J.A. says: “The fact that someone is capable of lying or may be lyingdoes not equate with an incapacity to tell the truth from mental disorder,” then goes on to cite a passage from R. v. MacKenney and

Pinfold (1981), 76 Cr. App. R. 271, at p. 276, to the effect that a witness might be incapable of giving reliable evidence because ofmental disability, in which case expert evidence to that effect might be permitted, but that expert evidence ought not to be admitted toshow that a witness capable of giving reliable evidence might choose not to do so. [21] The Crown argues: The trial judge appears to have relied on prejudicial generalizations about individuals with mental illness in concluding that T.T.’sevidence could have been impacted by her illness or medication.

However, there was no evidence, medical or otherwise, that T.T.’smemory was in any way affected by mental illness or her medications. The effect of the trial judge’s ruling is that having a mental illnesspresumptively makes a witness unreliable, in the absence of the Crown leading evidence to the contrary.

Further, it is clear that this issuewas inextricably linked to the assessment of T.T.’s reliability as it was one of only two reasons given by the trial judge for reducing thecorroborative weight of the similar fact evidence. [Emphasis in appellant’s statement of argument.] [22] Some further context includes that at the beginning of her evidence, T.T. testified that in an initial intake interview she haddisclosed to the respondent “some of my mental health issues”: Trial Transcript Day 2, p. 2 ll. 37-8.

Later in her examination in chief,when trial Crown asked T.T. why she had not complained of sexual assault earlier than she had, T.T. offered, as partial explanation, thatshe was on medication and had mental health issues.

In cross-examination defence counsel asked T.T. if she were taking strongantipsychotic medication, and Crown objected that the defence was using third party medical or other records it was not entitled to use.During lengthy argument over the use of records that it turned out defence neither had nor sought, the trial judge said: “I am not preparedto draw an inference of unreliability simply from the fact that she has a mental health issue and takes medication,” and shortly afterward:“I think if I were to draw any inference about the credibility someone would have to educate me about that issue and that medication.” [23] The Crown argues on appeal that the trial judge was right in his remarks during the trial, but then, in his reasons for judgment,erred in doing what he said he could not do, and drew an inference of unreliability based on mental illness and medication.

With respect,the argument overstates what the judge said during the trial.

He said he was not prepared to draw an inference of unreliability fromT.T.’s state of mental health or that she was taking medication, not that he could not draw that inference. [24] The Crown adds that if the trial judge had not erred in reducing the weight to be given T.T.’s evidence, that evidence, alone onthe count involving her, and as similar fact on the count involving E.M., could well have taken the Crown case past the reasonable doubtpoint, citing Titmus. [25] This suggests that it was wrong for the judge to consider the potential impact of either the mental illness or the medication usedto treat the illness in assessing the reliability of T.T.’s evidence. [26] The authorities on which the Crown relies do not support a conclusion that it would be legal error to consider the effect ofmental illness or medication on reliability.

Rather, the passage quoted by Southin J.A. in Osolin pointed out that expert evidence mightbe admitted to establish whether a witness was incapable of giving accurate evidence because of mental disorder, but not to call intoquestion whether the evidence of a witness capable of accuracy out ought to be treated differently: 99. The fact that someone is capable of lying or may be lying does not equate with an incapacity to tell the truth from mental disorder. 100. As Lord Justice Ackner, as he then was, put in it R. v. MacKenney and Pinfold (1981), 76 Cr. App.

R. 271, at p. 276: We agree with the learned judge that if a witness is suffering from a mental disability it may, in a proper case, well bepermissible to call psychiatric evidence to show that the witness is incapable of giving reliable evidence. We are prepared to accept thatthe mental illness need not be such as to make the witness totally incapable of giving accurate evidence, but it must substantially affectthe witness's capacity to give reliable evidence.

But this is very different from calling psychiatric evidence with a view to warning a juryabout a witness who is capable of giving reliable evidence, but who may well choose not to do so.

If the witness is mentally capable ofgiving reliable evidence, it is for the jury, with all the warnings from counsel and the court which the law requires to decide whether ornot that witness is giving reliable evidence. [Emphasis added.] [27] I take the emphasized portion of the quotation to not only permit, but to mandate in appropriate circumstances a warning to thetrier of fact to consider whether a witness’s reliability is affected by any condition capable of impacting on reliability, and that wouldinclude medical condition, mental disorder, or medications. [28] This is supported by Perrone, where at paras. 30-31 Monnin J.A. said: 30.

A mental illness does not necessarily imply an issue with reliability. In R. v. H. (M.), 2003 BCCA 607, 188 B.C.A.C. 315 (B.C.C.A. [In Chambers]), Levine J.A. commented that the fact that a trial judge was not aware of a witness's bi-polar disorder was irrelevantin the absence of any evidence of "some connection between that disorder and the reliability of their evidence" (at para. 9). Similarly, inR. v. Nickerson (1993), 1993 NSCA 152 , 121 N.S.R. (2d) 314 (N.S. C.A.), Chipman J.A. commented (at paras. 25-26): ....

The mere fact that such a victim, particularly of sexual assault, has a psychiatric history is not of itself relevant. But went on to say: A psychiatric condition of a witness, just as any other medical condition, is admissible to show that the witness suffers from such diseaseor abnormality as might affect the reliability of his or her evidence. To deny such an attack upon the capacity of the witness could lead toan injustice.

Clearly it would be unthinkable that medical evidence to show that a witness' eyesight or hearing was too impaired to enablesuch witness to see or hear that about which testimony was or was to be given should be refused. So too a disorder of the mind whichmakes a witness' testimony unreliable is a fair subject for exploration. .... 31. Failure of a trial judge to consider the reliability of the evidence may be a factor in an appellate court determining that the verdictmust be overturned. In R. v. Burke, (SCC), [1996] 1 S.C.R. 474 (S.C.C.), Sopinka J. wrote (at para. 46):

.... In view of the crucial importance assigned by the trial judge to this evidence, it was incumbent on the trial judge to scrutinize this evidence with special care.

It was, therefore, important for the trial judge to consider any circumstances which affected the reliability of the evidence. .... [ 29 ] Therefore, the trial judge in this case did not err in considering whether the weight to be given T.T.’s evidence should be affected by her mental health or her medications. [ 30 ] But in this case the trial judge reasoned that nothing in T.T.’s demeanour caused him to question either her veracity or the accuracy of her recollection. He reasoned that there was nothing inherently implausible about her evidence.

He also said at para. 4 of his reasons that there was no evidence, whether from T.T.’s treating doctor or other sources, upon which he could assess “the impact, if any, of her psychiatric condition or medication on the reliability of her evidence.” [ 31 ] In my view, these findings demonstrate that there was no evidence from which to conclude that T.T.’s reliability was affected by her mental health diagnosis or medication.

Without any evidence of a connection between T.T.’s psychiatric history and her reliability, the judge’s decision to reduce the corroborative weight given to her testimony must have been based on the implicit assumption that the mere fact of T.T.’s psychiatric history impacted her reliability. [ 32 ] In light of all of that, the trial judge’s conclusion that the corroborative weight to be given similar fact evidence tended to be reduced because of the effect of some lingering doubt arising from the psychiatric condition and/or the medications, for which there was no evidence, in my view was an error of law. [ 33 ] The second matter the trial judge referred to, which the appellant argues led him into error, arose out of a media release issued by the Victoria Police Department in October 2017.

The trial on the single charge alleging sexual assault on E.M. had been set for May 18, 2018. On the day the media release was published, the complainant T.T. contacted police to report that she had been assaulted approximately four years earlier. [ 34 ] The media release named Mr. Heintzelman, as well as two business names under which he had operated. It gave the location of his business as the 300 Block of Kingston Street, and indicated that investigators believed that Mr.

Heintzelman might have other victims as he had been working alone in his practice for several years. [ 35 ] In the reasons quoted above, the trial judge cited the media release as one of two factors “which tend to reduce the corroborative weight to be given to the ‘similar fact evidence’ in this case,” and suggested his own wording for the media release, one which did not name Mr.

Heintzelman, or his business name, or where he carried on business. [ 36 ] The appellant argues: “[t]he trial judge erred in fact and law in concluding that the Media Release affected the corroborative weight of the similar fact evidence.” The appellant points out that the impugned media release did not contain details about the type of treatment or way in which assault had been committed, so any similarities between the complainants’ descriptions of those matters, such as that they were assaulted during a hot stone massage, cannot have been influenced by the media release.

The appellant says that identification was never in issue, nor was it disputed that the respondent had treated both complainants in his home; the complainants had never met, so collusion was not possible; and finally, that E.M.’s evidence could not possibly have been tainted by the media release, as she had complained to police months before the release, so it was wrong for the trial judge to treat the impact of the release equally for both complainants. [ 37 ] Why the trial judge felt it important to school the police force in how to draft a media release is not clear, nor is it clear why there might be an analogy between the impact of a media release on similar fact evidence and dock identification.

But the issue is whether the trial judge erred in concluding that the media release tended to reduce the weight to be given similar fact evidence. [ 38 ] Given that identification was never in issue, nothing turned on where the assaults allegedly occurred, and there was no description of the manner of the alleged assault – during hot stone massage – on E.M., any impact the media release might have on the reliability of T.T. would have to be so slight as to be negligible.

Additionally, the media release could not possibly have influenced E.M.’s initial complaint, and any possible taint of E.M.’s trial evidence from the release was unlikely in the extreme. [ 39 ] In my view, this goes beyond those areas where deference is due to a trial judge, such as a finding of fact, or an assessment of credibility.

It is, rather, an error of law, to be judged on a correctness standard. [ 40 ] The appellant argues that, if the judge had not erred by notionally reducing the corroborative value of the similar fact evidence, that evidence might well have been sufficient to tip the scales past the point of reasonable doubt.

They cite in support Titmus , where, in a case dealing with sexual assaults against two young victims, the trial judge had said that the evidence of either if taken alone would have left her with a reasonable doubt, but that the similar fact evidence took both cases beyond a reasonable doubt. [ 41 ] For clarity I will reiterate what the Court of Appeal said at para. 38: The trial judge held that the similar fact evidence enhanced the credibility of both complainants and tipped the scales beyond a balance of probability in establishing the actus reus of the shower incidents (paras. 140-141).

I see no error by the trial judge in her identification of the issues to which the similar fact evidence was relevant. And at para. 60: She concluded that, without the similar fact evidence, the evidence of each complainant standing alone would not prove the charges against the appellant beyond a reasonable doubt (paras. 133-134). However, instructing herself on the law enunciated by Mr.

Justice Cory in Arp , supra (para. 135) she concluded that the charges relating to the shower incidents had been proven beyond a reasonable doubt. [ 42 ] The respondent points out that the trial judge assessed the demeanour of Crown and defence witnesses as roughly equal, and on

the authority of R. v. C.W.H. (1991), (BC CA), 68 C.C.C. (3d) 146 (B.C.C.A.) at paras. 23-4, this left the judgeunable to decide who to believe, leaving the case for the Crown short of proof beyond a reasonable doubt. [43] After quoting from para. 24 of C.W.H., which reads: I would add one more instruction in such cases, which logically ought to be second in the order, namely: If, after a consideration of all of the evidence, you are unable to decide whom to believe, you must acquit. The trial judge concluded at para. 18: I find myself in that position, and so am obliged to acquit Mr.

Heintzelman. [44] The trial judge found himself in that position after considering the credibility and reliability of the complainants E.M. and T.T.,as well as the accused and his wife, who both testified. [45] I do not agree with the appellant’s submission that, because the trial judge did not expressly state that he accepted the evidenceof the respondent, his reference to each of the witnesses did not include the respondent, or his wife.

An accused who testifies is a witnesslike any other, and the trial judge’s reference to “each of the witnesses in this case” must be taken to include the respondent. [46] As to the impact on the decision of the judge’s treatment of T.T.’s mental condition and her medications, as well as his forayinto the media release, the burden on the Crown appealing from an acquittal is set out in R. v. Graveline, 2006 SCC 16. The appellantconcedes that in order to overturn the acquittal here, it must show to a reasonable degree of certainty that the verdict may well have beenaffected by errors of law.

In Graveline, this burden is set out in paras. 14-18: 14. It has been long established, however, that an appeal by the Attorney General cannot succeed on an abstract or purely hypotheticalpossibility that the accused would have been convicted but for the error of law. Something more must be shown. It is the duty of theCrown in order to obtain a new trial to satisfy the appellate court that the error (or errors) of the trial judge might reasonably be thought,in the concrete reality of the case at hand, to have had a material bearing on the acquittal.

The Attorney General is not required,however, to persuade us that the verdict would necessarily have been different. 15. This burden on the Crown, unchanged for more than half a century (see Cullen v. The King, (SCC), [1949] S.C.R.658), was explained this way by Sopinka J., for the majority, in R. v. Morin, (SCC), [1988] 2 S.C.R. 345: I am prepared to accept that the onus is a heavy one and that the Crown must satisfy the court with a reasonable degree ofcertainty.

An accused who has been acquitted once should not be sent back to be tried again unless it appears that the error at the firsttrial was such that there is a reasonable degree of certainty that the outcome may well have been affected by it. Any more stringent testwould require an appellate court to predict with certainty what happened in the jury room. That it cannot do. [p. 374] 16. Speaking more recently for a unanimous court in R. v. Sutton, [2000] 2 S.C.R. 595, 2000 SCC 50, the Chief Justice stated: The parties agree that acquittals are not lightly overturned. The test as set out in Vézeau v.

The Queen, (SCC),[1977] 2 S.C.R. 277, requires the Crown to satisfy the court that the verdict would not necessarily have been the same had the errors notoccurred. In R. v.

Morin, (SCC), [1988] 2 S.C.R. 345, this Court emphasized that “the onus is a heavy one and that theCrown must satisfy the court with a reasonable degree of certainty” (p. 374). [para. 2] [47] Without conceding that the media release might have influenced the evidence of T.T., and had a negative impact on herreliability, the appellant says that it could not possibly have affected the evidence of E.M., or its reliability, and that the judge erred infailing to consider them separately.

Without this error, the appellant says the verdict of acquittal would not necessarily have been thesame, and therefore a new trial should be ordered. [48] The standard of review for alleged errors of law is correctness. If the judge truly admitted the evidence of each complainant assimilar fact evidence, which is not clear, he made no error in that. However, he did err in allowing the weight to be given such evidenceto be affected by what appears to have been speculation about the possible impact on that evidence of the psychiatric condition andmedications taken by one of the complainants.

This error was supplemented by the judge’s treatment of the media release and its possibleimpact on the evidence of both complainants. [49] I am satisfied that the errors had a material bearing on both acquittals, and that verdicts would not necessarily have been thesame if the errors had not been made. [50] The appeal is allowed, and a new trial is ordered. “The Honourable Mr. Justice Johnston”