R. v. D.R., 1991 ABCA 35

In the Court of Appeal of Alberta Citation: R. v. D.R., 1991 ABCA 35 Date: 19910109 Docket: 9003-0181-A Registry: Edmonton Between: Her Majesty the Queen (Respondent) - and - D.R. (Appellant) The Court: The Honourable Mr. Justice McClung The Honourable Mr. Justice Irving The Honourable Mr. Justice Côté Memorandum of Judgment Delivered from the Bench COUNSEL: K.E. Tjosvold, Esq., for the Respondent P. J.

Royal, Q.C., for the Appellant MEMORANDUM OF JUDGMENT DELIVERED FROM THE BENCH COTE, J.A. (for the Court): [ 1 ] The appellant was 37 years old and of good previous character when he stood trial on charges of a large number of sexual assaults on his teenage step-daughter. He testified and denied that they ever occurred. His stepdaughter testified to the assaults.

There was very little other evidence directly on point, though the trial judge relied on the appellant's alleged failure vigorously to give a denial when confronted by his wife. [ 2 ] The complainant testified to three different types of contact by the appellant with her body. She said all occurred numerous times, and none was a fleeting brush or anything which could be misinterpreted, if her testimony is accurate. [ 3 ] The trial judge said that the case was essentially one of credibility, and for the most part he preferred the evidence of the complainant.

He did not say that he disbelieved the appellant's evidence, though one might infer that from the whole of the reasons. The trial judge found that one of the three types of bodily contact had occurred, and convicted. He was not sure whether the second type had, and made no express finding. Presumably that was in effect a dismissal of that part of the complaint. As to the third and worst type of bodily contact, he gave some very sensible reasons for saying that under the circumstances related by the complainant, such conduct was very improbable.

He therefore had a doubt as to that type of conduct, and found that part of the complaint not proven. [ 4 ] Unfortunately, the trial judge did not go on to consider the implications of that. There can be no general rule about the effect of disbelieving or having a doubt about part of a Crown witness' evidence. It all depends on the circumstances. But here in this particular case, it is hard to imagine how the complainant could have been honestly mistaken about a considerable number of bodily contacts of the most serious type. If she was honestly mistaken about them, then her memory must be most unusual.

And if she was not honestly mistaken, or has a most unusual memory, then her evidence may not be reliable, and the appellant's sworn denial may reasonably be true. Indeed the trial judge never seems to have asked himself whether that denial might reasonably be true. [ 5 ] In our view this conviction is unsafe, and for that reason we allow the appeal and quash the conviction. We need say

nothing about the other grounds of appeal.