2014 NBCA 60, 2014 NBCA 60

COURT OF APPEAL OF NEW BRUNSWICK COUR D’APPEL DU NOUVEAU-BRUNSWICK 88-13-CA RONALD HONDUS JENNINGS APPELLANT RONALD HONDUS JENNINGS APPELANT - and - - et - HER MAJESTY THE QUEEN RESPONDENT SA MAJESTÉ LA REINE INTIMÉE Jennings v. R., 2014 NBCA 60 Jennings c.

R., 2014 NBCA 60 CORAM: The Honourable Justice Richard The Honourable Justice Bell The Honourable Justice Green CORAM : l’honorable juge Richard l’honorable juge Bell l’honorable juge Green Appeal from a decision of the Provincial Court: July 25, 2013 Appel d’une décision de la Cour provinciale : le 25 juillet 2013 History of case: Decision under appeal: Unreported Preliminary or incidental proceedings: N.A. Historique de la cause : Décision frappée d’appel : inédite Procédures préliminaires ou accessoires : s.o.

Appeal heard: September 9, 2014 Appel entendu : le 9 septembre 2014 Judgment rendered: September 9, 2014 (appeal) March 19, 2015 (cross-appeal) Reasons delivered: March 19, 2015 Jugement rendu : le 9 septembre 2014 (appel) le 19 mars 2015 (appel reconventionnel) Motifs déposés : le 19 mars 2015

Reasons for judgment by: The Honourable Justice Bell Concurred in by: The Honourable Justice Green Dissenting reasons by: The Honourable Justice Richard Counsel at hearing: For the appellant: Margaret Gallagher, Q.C. For the respondent: Kathryn Gregory THE COURT The appeal was allowed on September 9, 2014, and the cross-appeal is hereby also allowed. Richard J.A. concurred in allowing the appeal against conviction on the first of the two counts in the Information but would dismiss the Attorney General’s cross-appeal against the acquittal on the second count.

Motifs de jugement : l’honorable juge Bell Souscrit aux motifs : l’honorable juge Green Motifs dissidents : l’honorable juge Richard Avocats à l’audience : Pour l’appelant : Margaret Gallagher, c.r.

Pour l’intimée : Kathryn Gregory The following are the reasons delivered by RICHARD J.A. (dissenting) [ 1 ] I have had the benefit of reading the reasons my colleagues give for allowing both the appeal and the cross-appeal and, with respect, although I agree the appeal should be allowed, I do not subscribe to the entirety of their reasons for doing so, and I do not agree the cross-appeal should be allowed. [ 2 ] With respect, I perceive there to be a fundamental difference between my colleagues’ approach to this appeal and my own.

My colleagues see an error of law in a single statement the trial judge made in the course of giving oral reasons for decision and look to see if the balance of the reasons can “save” the error. In stark contrast, I look at the reasons in their entirety to determine whether or not the verdict is the result of an error of law.

[ 3 ] My reason for parting ways with my colleagues in their approach to the cross-appeal is anchored in decisions in which the Supreme Court of Canada directs appellate courts to review decisions (or in fact jury charges) in their entirety. I find particular support for my position in R. v. Laboucan , 2010 SCC 12 , [2010] 1 S.C.R. 397 . In that case, in the course of delivering reasons for conviction, a trial judge had emphasized the accused’s “great motive to be untruthful given the consequences of being convicted of the offences charged” (para. 7).

The convictions were set aside by a majority of the Alberta Court of Appeal on the ground the judge had erred in his assessment of credibility. A dissenting judge disagreed, stating that the reasons as a whole revealed no error. The Supreme Court restored the convictions. For the Court, Charron J. held that “the majority [of the Alberta Court of Appeal] erred by effectively considering the impugned statement in isolation” (para. 18).

Charron J. agreed with the dissenting judge of the Court of Appeal that the impugned comments had to be considered in their appropriate context, in the end concluding that “while some of the language used by the trial judge in his reasons may give cause for concern when viewed in isolation, when the reasons are read in their entirety and in light of the context of the trial as a whole, they reveal that the trial judge properly assessed [the evidence]” (para. 23).

In my view, Laboucan stands for the proposition that a trial judge’s reasons for decision must be read as in their entirety to determine whether they disclose an error of law even when a statement, taken in isolation, might by itself betray such an error. [ 4 ] It must also be remembered that, unlike a conviction where all the essential ingredients of the offence must be proven beyond a reasonable doubt, an acquittal “can rest simply on the absence of proof”: R. v. Walker , 2008 SCC 34 , [2008] 2 S.C.R. 245 , at para. 22 .

This is so because an accused benefits from the presumption of innocence. [ 5 ] The appeal and cross-appeal arise out of the prosecution of Ronald Hondus Jennings, who was originally charged in a three-count Information in which he was accused of two counts of sexual assault upon V.B. (s. 271(

a) of the Criminal Code ) , and one count of anal intercourse ( s. 159(1) ). Before trial, the Attorney General withdrew the count that alleged the s. 159(1) offence. At the conclusion of trial on the remaining two counts, a judge of the Provincial Court found Mr. Jennings guilty of the first count but not guilty of the second. Mr. Jennings appeals the conviction while the Attorney General cross-appeals the acquittal. [ 6 ] Only a brief overview of the facts is necessary to put the appeal and cross-appeal in context. Mr.

Jennings and V.B. met after each joined a website and indicated their respective desire to meet someone for an “intimate encounter”. In the aftermath of their first encounter, which was the subject matter of the first count in the Information, Mr. Jennings moved in with V.B. and her children. He was introduced to her friends and family. During their time together, Mr. Jennings and V.B. engaged in frequent sexual relations. Theirs was an open type of arrangement because they both also had sexual relations with others. V.B. claims that during this time, Mr.

Jennings would, for brief periods, move back to his own apartment and resume his relationship with another woman. In any event, the relationship between Mr. Jennings and V.B. only lasted a few weeks. Mr. Jennings decided to move to Ontario and resume a relationship with a former girlfriend. The allegation that forms the subject matter of the second count relates to their last sexual encounter. [ 7 ] V.B. alleged the first of their sexual encounters occurred the night they first met, which she adamantly maintained was Canada Day: July 1, 2010.

She testified their first encounter led to sexual intercourse to which she did not consent. According to V.B., in the aftermath of that first encounter with Mr. Jennings, she was scared of him. However, she admits he moved in with her, interacted with her children and that she introduced him to her family and friends. She testified the last encounter, which she also alleged was non-consensual, occurred in a van shortly before Mr. Jennings left for Ontario. [ 8 ] Testifying in his own defence, Mr.

Jennings painted a wholly different picture of his first and last sexual encounters with V.B., as well as his relationship with her. According to him, the two met not on July 1 but sometime in mid- June. He says they both had been looking for an intimate encounter via a website they had each accessed. According to Mr. Jennings, they had consensual sexual intercourse during their first encounter and regularly thereafter until he left for Ontario. His description of their first encounter is irreconcilable with that of V.B. As to the event V.B. claims happened on July 1, Mr.

Jennings says he had already moved in with V.B. and her children by that date and that, on the evening of Canada Day, they were all together, setting off their own fireworks. He denies ever having forced himself on V.B. According to Mr. Jennings, the two parted amiably but, in the aftermath of his move to Ontario, V.B. called his Ontario girlfriend causing Mr. Jennings to tell her to desist.

He also claims V.B. sent Facebook messages to some of his friends, causing him to remove her as a “friend” on Facebook and to warn her that, if she did not stop, he would report her to the “Children’s Aid Society” because he felt her children were living in inappropriate conditions. [ 9 ] It was shortly after he made this threat that V.B. contacted the police and alleged she had been sexually assaulted. [ 10 ] In his testimony, Mr.

Jennings gave details that should have been relatively easy to verify, and which would have either bolstered his credibility had they been confirmed or, conversely, would have negatively impacted his credibility had they been shown false. Yet, no evidence was called to either confirm or contradict his testimony. For example, in support of his claim that he and V.B. had begun their relationship in June and not on July 1 as V.B. vehemently maintained – which was a key issue at trial – Mr .

Jennings described how, on one occasion in June, he had called the police to report someone spinning the tires of a car and projecting rocks near where the children were playing. Unbeknownst to him, the driver had been V.B.’s ex-boyfriend – and the father of

her children. The police reportedly responded, so one would expect there would be a record of the call. Another example relates to the date when Mr. Jennings vacated his own apartment to move in with V.B. [ 11 ] At the opening of the appeal hearing, counsel for the Attorney General conceded leave to appeal should be granted, the appeal allowed and a new trial ordered regarding the first count. The Attorney General, however, maintained the cross- appeal regarding the acquittal on the second count should also be allowed and a new trial also ordered with respect to that count. Mr.

Jennings opposed the Attorney General’s position regarding the cross-appeal, and the hearing proceeded accordingly. [ 12 ] The Attorney General’s position regarding the conviction on the first count is, in the circumstances, quite just and honourable. I agreed with my colleagues the appeal should be allowed and a new trial ordered on the first count. However, I do not fully subscribe to their reasons for doing so.

Specifically, I do not agree with their determination the trial judge’s reasons were “insufficient” and that they “make appellate review of the decision exceedingly difficult”. [ 13 ] At the close of trial, the trial judge delivered his reasons for decision – reasons that take up 22 pages of transcript. While far from being a model of clarity, the judge’s review of the testimonies and his findings are amply sufficient to allow meaningful appellate review. The Supreme Court has repeatedly stated that reasons for decision do not have to be perfect.

They will pass appellate muster if, when read in context, they show why the judge decided as he or she did: R. v. R.E.M. , 2008 SCC 51 , [2008] 3 S.C.R. 3 , at para. 17 ; R. v. Vuradin , 2013 SCC 38 , [2013] 2 S.C.R. 639 , at para. 12 . In the present case, the very fact my colleagues and I are able to identify a palpable and overriding error, by itself, demonstrates the reasons allow meaningful appellate review.

Allowing for meaningful appellate review is the only test the reasons must pass in order to survive appellate review on grounds of insufficiency. [ 14 ] As my colleagues point out, the reasons betray a critical error of fact that, of itself, requires the conviction to be set aside. The trial judge evidently misapprehended Mr. Jennings’ testimony when he found that Mr. Jennings “never testified as to the first time of the alleged … sex assault on her at her home”. This statement is patently inaccurate. Mr. Jennings testified in detail about his recollection of the first sexual encounter with V.B.

He also testified about their whereabouts on July 1, when V.B. alleged their first encounter occurred. Unfortunately, the judge overlooked this testimony and made a credibility finding that is tainted by this palpable factual error. Since credibility is at the heart of the case, the error is an overriding one, because it had a significant impact on the judge’s ultimate conclusion to convict on the first count. [ 15 ] It is because of this palpable and overriding error that, on September 9, 2014, I joined my colleagues in granting Mr.

Jennings leave to appeal, allowing his appeal, setting aside the conviction and ordering a new trial with respect to the first count. [ 16 ] I am not able, however, to join my colleagues in their disposition of the Attorney General’s cross-appeal from the acquittal with respect to the second count. [ 17 ] As my colleagues point out, an appeal against acquittal may only be allowed if the trial judge committed an error of law.

With respect, I find no such error. [ 18 ] My colleagues anchor their finding of an error of law in the following statement the judge made in giving his oral reasons for decision: […] Furthermore, there is no concrete evidence to support a second offence as alleged under 271(1)(

a) before this Court. Her testimony would lead to perhaps a second incident in the van but then it’s confusing whether that second incident would have led to alleged anal sex which was the third charge so – and that third charge was withdrawn. So I’m not convinced beyond a reasonable doubt for the second incident to had have happened as alleged. [ 19 ] The Attorney General argues the trial judge linked the evidence related to the second count of sexual assault to the withdrawal of the count related to anal intercourse, and thereby erred in law. My colleagues agree with that contention.

I do not. [ 20 ] I do agree that as a matter of law the withdrawal of the third count could have no impact upon the assessment of V.B.’s credibility, or upon the facts as they relate to the second count. I also agree that if the judge had found otherwise, he would have erred in law. I also agree that, to the extent the above passage could be interpreted as a finding that anal intercourse was an essential

ingredient of the second count, this too would have constituted an error in law. Anal intercourse was one of the acts V.B. described asconstituting the second sexual assault, but it was not necessarily an essential ingredient to ground a conviction for sexual assault.

WhereI part with my colleagues is in their conclusion that these types of errors arise from the judge’s statement reproduced above. [21] For the judge to have committed the errors my colleagues attribute to him, it would be necessary to find hemisapprehended elementary principles of law, such as the fact that each count specifies a separate offence, that the discretion to withdrawa charge lies solely with the prosecutor, and that the withdrawal of one charge cannot have any impact on the assessment of offences setout in other counts.

Alternatively, it would be necessary to find the judge did not understand the essential ingredients of a charge ofsexual assault. In my respectful view, neither the impugned statement read in isolation nor the decision, when read as a whole, allow usto attribute such basic errors to this very experienced trial judge. [22] In my view, the thrust of the judge’s impugned statement is that he has reasonable doubt regarding the secondcount. As I stated earlier, at best it is ambiguous.

An ambiguous comment made in the course of giving reasons for a decision has to beread in the context of the decision as a whole before it can be found that it betrays an error of law. When read as a whole, the reasonsdemonstrate the judge made no error of the type alleged. [23] Early in his decision, the trial judge clearly differentiates between the second and third counts, stating asfollows: Then there was testimony with respect to the third incident but I’m not going to refer to that because that charge was withdrawn.

As tothe second incident, she testified that they were in a van at the time […] [24] At that point, the judge reviews V.B.’s testimony regarding the second count. [25] In my respectful view, this clearly demonstrates the trial judge was aware of the distinction between the secondcount and the one that had been withdrawn. He would have had no reason to review V.B.’s testimony, or for that matter, Mr.

Jennings’testimony, relating to the second alleged sexual assault if he were going to find that as a matter of law the prosecution could not succeedbecause of the withdrawal of the third count. [26] Moreover, in his concluding remarks in rendering the verdict, the trial judge found Mr. Jennings guilty of thefirst count “because all the elements [had] been proven beyond a reasonable doubt”. Then he stated “the third count has been – waswithdrawn” followed by “and I do have more than reasonable doubt as to the other sexual assault”.

As the Supreme Court pointed out inWalker, adopting the words of Sharpe J.A. in R. v. Kendall (2005), (ON CA), 75 O.R. (3d) 565 at para. 98, “[a]reasonable doubt need not rest upon the same sort of foundation of factual findings that is required to support a conviction. A reasonabledoubt arises where an inadequate foundation has been laid” (para. 26). [27] Admittedly, it would have been best if the trial judge had simply avoided mentioning the count that waswithdrawn in the course of giving his reasons.

However, as stated above, perfect reasons are not required nor can they even berealistically expected when busy trial judges deliver oral reasons at the close of a trial. It is precisely because perfect reasons cannot berequired of a judge delivering an oral decision that any ambiguous statement must be considered in the context of the entire reasons whenassessing it for legal error.

I simply cannot join my colleagues in concluding that an ambiguous statement of the type in issue in thecross-appeal can, of itself, be indicative of elementary errors of law committed by a senior and experienced trial judge when the decision,read as a whole, shows otherwise. In my respectful view, the judge’s decision demonstrates he knew he had to consider each countseparately and understood what was required to ground a conviction on the second count. He was simply left with a reasonable doubt,something that, of itself, does not raise a question of law alone: R. v. Picot.

Thus, I find no basis for appellate intervention in the cross-appeal. [28] For these reasons, I joined my colleagues on September 9, 2014, granting Mr. Jennings leave to appeal,allowing his appeal, setting aside the conviction and ordering a new trial with respect to the first count, but I cannot join them in theirdisposition of the cross-appeal. In my view, the Attorney General’s cross appeal should be dismissed.

___________________________ J.C. MARC RICHARD, J.A. Judgment of Bell, J.A. and Green J.A was delivered by BELL J.A. [29] Ronald Hondus Jennings was originally charged on a three count information in which he wasaccused of two counts of sexual assault upon V.B. contrary to s. 271(

a) of the Criminal Code, and one count of anal intercourse uponV.B. contrary to s. 159(1). The Attorney General withdrew the count of anal intercourse and proceeded to trial on the two accusations ofsexual assault. A provincial court judge found Mr. Jennings guilty of the first sexual assault which occurred on or about July 1, 2010 andnot guilty of a second sexual assault which allegedly occurred on or about July 23, 2010. Mr. Jennings appeals from the conviction andthe Attorney General appeals from the acquittal. A. Mr.

Jennings’ appeal from conviction [30] At the opening of the hearing, counsel for the Attorney General informed the Court the Crown consented tothe application for leave to appeal, the appeal and an order for a new trial in relation to the conviction, but was maintaining its appealfrom the acquittal on the second count of sexual assault. Mr. Jennings’ counsel consented to the order for a new trial on the conviction,but maintained her opposition to the Crown appeal from the acquittal. [31] There is merit to the Attorney General’s position taken with respect to the conviction.

While not raised as aground of appeal, the reasons are, in my view, insufficient. The trial judge conducts a review of his notes, in the first person, whichleaves the reader confused, on occasion, about whether the words used are those of the trial judge, V.B. or Mr. Jennings. There isvirtually no analysis linking the “recited evidence” with the allegations set out in the information. Findings of fact based upon theevidence are not easily discernable. In my view, the reasons make appellate review of the decision exceedingly difficult. [32] One ground of appeal, which was advanced by Mr.

Jennings, is that the trial judge erred in his assessment ofMr. Jennings’ credibility. Determinations of credibility are questions of fact and only merit appellate intervention if they are the result ofpalpable and overriding error: J.N.C. v. R., 2013 NBCA 59, 409 N.B.R. (2d) 310, at para. 14; Gillis v. R., 2014 NBCA 58, [2014] N.B.J.No. 242 (QL), at para. 74. While the trial judge committed several errors of fact in assessing Mr. Jennings’ credibility, I would limitmyself to only one in allowing the appeal and granting an order for a new trial. In finding Mr.

Jennings lacked credibility, the trial judgesaid “[…] he never testified as to the first time of the alleged … sex assault on her at her home”. This statement is inaccurate. Mr.Jennings testified at his own trial. He opened himself up to cross-examination. In the course of his testimony he testified about hisrecollection of the first sexual encounter with V.B. I am satisfied the inaccurate observation by the trial judge about Mr. Jennings’testimony is tainted by palpable factual error which, in the circumstances, was overriding.

I would allow the appeal and order a new trialwith respect to the conviction on the first count of sexual assault. B. The Attorney General’s appeal from acquittal [33] The Attorney General’s appeal from the acquittal may only be allowed if the trial judge committed an error oflaw: s. 676(1)(

a) of the Code: R. v. Sutton, 2000 SCC 50, [2000] 2 S.C.R. 595; R. v. J.M.H., 2011 SCC 45, [2011] 3 S.C.R. 197; R. v.Picot, 2012 SCC 54, [2012] 3 S.C.R. 74. In addition, the Attorney General must satisfy the Court the verdict would not necessarily havebeen the same had the error not occurred: Vézeau v. The Queen, (SCC), [1977] 2 S.C.R. 277; R. v. Barros, 2011 SCC 51,[2011] 3 S.C.R. 368, at para. 79; Sutton, supra. [34] In paragraph 4, my colleague, Richard J.A. commences what he describes as a brief overview of the facts. As Ihave already indicated, in my view very little of the crucial evidence found its way into findings of fact by the trial judge. However,given Richard, J.A.’s

summary of Mr. Jennings’ version of why this matter was reported to the police (Mr. Jennings’ threats to reportV.B. to the child welfare authorities), I will simply recite unedited excerpts of V.B.’s version of that one issue: I was there one day and he was texting that he wanted to come back and I said no. And he—he started texting me that if—if I didn’t lethim come back, he was going to go to Social Services because I had two children living into—in the same apartment and a boy and a girland they’re living in the same room and that my house was always a mess and he had pictures and pictures of me. And he would—he

wouldn’t think twice of putting them on the internet. Q. What do you mean pictures of you? A. He had taken pictures and videos of me with—naked and during when he was having intercourse with me. And he was telling me that he would—if I didn’t go along with anything that he said, those would be put on a website on the internet. He had pictures of me and of some other girl Michelle I think it was. He had videos of her too and he would have started this website and our pictures would be on.

And he had everybody’s—all my contact list off my cellphone and my home phone and my Facebook and they would all be delivered to them too, all these pictures. […] Q. Were they on your phone? A. They were on his phone. Q. Did he bring those up again after the middle of July? A. Yes, he brought them up again when he left after he left. When he would show them to everybody--he could send them to everybody that I knew and Social Services he said would sure like to see those threatening that I would lose my children. Q. And do you know why he was you say threatening with of losing your children? A.

At the end because when he said he wanted to come back and I said no. [Transcript of the decision, May 29, June 10, 18, 20, July 10 and 25, 2013, page 42 to 43, lines 2 to 24 and line 1; page 44, lines 12 to 23] [Emphasis is mine.] [ 35 ] I now move on to my reasons for allowing the Crown appeal from acquittal. [ 36 ] In his reasons for decision, the trial judge breaks V.B.’s testimony into 3 distinct parts. He describes the first incident; he then refers to “several sexual activities” unrelated to the first or second alleged offence; and, finally, he addresses the “second offence”.

With respect to that offence he states: Furthermore, there is no concrete evidence to support a second offence as alleged under 271(1)(

a) before this Court. Her testimony would lead to perhaps a second incident in the van but then it’s confusing whether that second incident would have led to alleged anal sex which was the third charge so – and that third charge was withdrawn.

So I’m not convinced beyond a reasonable doubt for the second incident to had have happened as alleged. [Transcript of the decision, May 29, June 10, 18, 20, July 10 and 25, 2013, pages 322 to 323, lines 17 to 2] [ 37 ] To the extent the trial judge linked the evidence related to the second count of sexual assault to the withdrawal of the count related to anal intercourse, he erred in law. Proof that he linked the two is evident by his observation that there was no “concrete evidence to support a second offence”. Compare that conclusion to the evidence offered by V.B. regarding the second alleged offence:

Q. Did anything else memorable happen after July 1 st and he’s moved in? What’s the next big thing that happens that you remember? A. There was a week where he went home. He had not taken all of his stuff but a good majority of it and he had went back to Saint Ignace. We didn’t speak for a few days which was great. I’m starting to feel, you know, life’s coming back to normal and he started texting that he wanted to see me. At first I was a little iffy on going and he was apologizing, everything, so just wanted to talk.

So okay I —I drove to Saint Ignace and I picked him up on that same road that he lived on where that big apartment building was. We turned back on to the where that road goes into a dirt road and there’s all little like wood roads off of it little old driveways, whatever. He wanted to pull in to one of them and then I remember saying, “That’s good because I have to go to the bathroom.” We pulled into one of them and we’re talking for a little bit and I’m in the driver seat.

He’s starting to grabbing my arms and he’s rubbing all over me and I’m like, “We can’t.” I said, “We can’t because it’s a girly issues.” At the time I said, “We can’t.” And the prior I had been cleaning my van so because it was always a mess. There was paper towels and everything in my van from me cleaning there between the seats. And I was telling him we can’t and he’s—he leans over and he’s got my seat reclined, it’s way back the driver seat. I’m trying to get away so I’m trying to climb back over the seat so I’m face first into the seat. He’s—he’s behind me.

He’s pulling down the back of my pants that I had on and he keeps telling me “I love you. You’re the one I want to be with. Miss you. I miss having sex with you.” He continues to have anal sex with me. I’m trying to get away. I’m trying to reach the back door. I’m leaning over my seat and I can see the sliding door and I’m trying to get hold of that handle so I can get away. I’m hanging on to the back—the headrest of the car seat and I’m pulling with everything in me to try to get away from him.

Finally when he’s finished I can reach over to the passenger seat and I’m pulling and I finally get myself over to the passenger seat but when pulling over I have to sit straight down on it and he’s laughing at me and he’s saying, “You’re going to make a mess of that seat”. [Transcript of the decision, May 29, June 10, 18, 20, July 10 and 25, 2013, page 34 to 36, lines 6 to 7] [ 38 ] The theory of the Crown was that non-consensual anal intercourse constituted part of the narrative of the second offence. It was not an essential ingredient.

The withdrawal of the count of anal intercourse should have had no impact upon the assessment of V.B.’s credibility or upon the determination of whether Mr. Jennings’ conduct, apart from the alleged anal intercourse, constituted a sexual assault. The trial judge appears to be wrongly of the view that anal intercourse was an essential ingredient of the second count. [ 39 ] In relying upon the withdrawal of the third count to conclude that the second count was not proven, the trial judge failed to appreciate the evidence.

This failure constitutes an error of law since it is based upon the application of wrong legal principles ( see R. v. J.M.H. , 2011 SCC 45 , [2011] 3 S.C.R. 197 , at paras. 29-30 ): each count specifies a separate offence (s. 581(1) of the Code ), and the discretion to withdraw a charge lies solely with the prosecutor ( Krieger v. Law Society of Alberta , 2002 SCC 65 , [2002] 3 S.C.R. 372 , at paras. 46-48 ). [ 40 ] I am satisfied the decision would not necessarily have been the same had the trial judge properly applied the law and considered the evidence in the absence of the lens of the withdrawn charge.

In my view he improperly limited his assessment of the evidence to the issue of anal intercourse rather than the more general issue of sexual assault. [ 41 ] Mr. Jennings’ application for leave to appeal is allowed, the appeal is allowed and a new trial is ordered with respect to the first count of sexual assault. In addition, the Attorney General’s appeal is allowed on the second count and a new trial is ordered. ________________________ B. RICHARD BELL, J.A. I CONCUR:

___________________________ BRADLEY V. GREEN, J.A.