R. v. Perrone, 2014 MBCA 74

Citation: R. v. Perrone, 2014 MBCA 74 Date: 20140724 Docket: AR 13-30-07926 IN THE COURT OF APPEAL OF MANITOBA Coram: Madam Justice Freda M. Steel Mr. Justice Alan D. MacInnes Mr. Justice Marc M. Monnin BETWEEN : ) ) J. A. Weinstein and HER MAJESTY THE QUEEN ) L. D. Labossière ) for the Appellant Respondent ) ) R. N. Malaviya - and - ) for the Respondent ) ) Appeal heard: CLADINORO PERRONE ) December 17, 2013 ) (Accused) Appellant ) Judgment delivered: ) July 24, 2014 ) NOTICE OF RESTRICTION ON PUBLICATION: No one may publish, broadcast or transmit any information that could disclose the identity of the complainant(

s) or a witness(es) (see s. 486.4 of the Criminal Code ) . MONNIN J.A. [ 1 ] After a trial before a judge alone where the only evidence consisted of the complainant’s testimony, the accused was convicted of sexual assault and sentenced to 32 months of incarceration. He appeals from that conviction. Issues [ 2 ] The accused has two grounds of appeal. First, he argues that the verdict was unreasonable and not supported by the evidence. He also argues that the trial judge erred in her assessment that the complainant’s evidence was sufficient to prove the offence beyond a reasonable doubt.

The thrust of the appeal is that the complainant’s evidence was unreliable given her level of intoxication and her mental state, nor was it credible given her admission that she lied at the preliminary inquiry. [ 3 ] I have concluded that the trial judge was entitled to reach the conclusion that she did, namely, that the complainant’s evidence, although displaying certain concerning elements, was nevertheless capable of proving the offence beyond a reasonable doubt. As such, the evidence was sufficient to allow a properly instructed jury or judge to convict.

Standard of Review [ 4 ] On an appeal from conviction by a judge alone where the issue is whether the verdict is unreasonable, an appellate

court must determine whether the verdict is one that a properly instructed jury or judge could reasonably have rendered (see R. v. R.P.,2012 SCC 22, [2012] 1 S.C.R. 746, cited in R. v. Wright (N.A.), 2013 MBCA 109 at para. 32, 303 Man.R. (2d) 26). [5] In R.P., the Supreme Court of Canada stated (at para. 10): Whereas the question whether a verdict is reasonable is one of law, whether a witness is credible is a question of fact.

A court of appealthat reviews a trial court’s assessments of credibility in order to determine, for example, whether the verdict is reasonable cannotinterfere with those assessments unless it is established that they “cannot be supported on any reasonable view of the evidence” (R. v.Burke, (SCC), [1996] 1 S.C.R. 474, at para. 7). [6] As well, as recently stated by the Supreme Court of Canada in R. v.

W.H., 2013 SCC 22, [2013] 2 S.C.R. 180, byCromwell J. (at para. 30): The traditional test for unreasonable verdict applies to cases such as this one in which the verdict is based on an assessment of witnesscredibility. This was affirmed, in the context of a judge-alone trial, in R. v. W. (R.), (SCC), [1992] 2 S.C.R. 122, at p.131.

However, in applying the test, the court of appeal must show great deference to the trier of fact’s assessment of witness credibilitygiven the advantage it has in seeing and hearing the witnesses’ evidence: W. (R.), at p. 131. [7] In short, while an appellate court must re-examine the evidence, and to some extent reweigh and consider the effect ofthe evidence, great deference must be given to the findings of credibility made by the trial judge. The Complainant’s Evidence [8] The complainant, a young woman of 19 years of age at the time of her testimony, was 16 years old at the time of theincident.

She testified that on the day in question she was visiting at the home of a third party to see a friend. She had just returned froma lengthy stay with her father, in another northern community, in order to be with her mother. While at the house in question, she smokedmarihuana and consumed seven beers, admitting that she was intoxicated. She was then asked if she knew where to obtain cigarettes. Without telling anyone where she was going, she went off to the accused’s nearby residence. She knew the accused as a result of beingemployed with him at a local restaurant.

She considered him an older friend with whom she sometimes visited. He had, on occasion,sold her both alcohol and cigarettes. [9] During the approximately hour and a half that she was there, they watched television together, talked and she consumedtwo more drinks of hard liquor. She testified that she then blacked out. Her next memory was being on a bed with her pants down andthe accused’s penis inside her. She testified that at no time had she consented to sexual activity.

She felt “stuck on the bed” and wasendeavouring to wake up when she heard the accused say “don’t worry I’ve done this before.” She woke up and pushed the accused offher with him saying “don’t say anything.” [10] She immediately left the residence to return to the previous location. However, she blacked out for a short period oftime on her way back. She found cigarettes in her pocket which she gave to someone at the previous residence, but did not indicate tothem what had occurred.

Some two weeks later, on her own volition, she went to speak to a social worker at a Child Care Agency whothen made arrangements for her to speak to the R.C.M.P. to whom she reported the assault. [11] During her cross-examination, she admitted that she was a rebellious teenager drinking a lot and doing drugs once in awhile. She had a difficult relationship with her mother. She had left the local community to stay with her father who couldn’t control hereither.

In the days before returning to her local community, she was doing drugs such as cocaine and ecstasy. [12] She admitted to an incident at the accused’s residence where, with a friend, she had broken in and taken a bottle ofalcohol. The accused observed her leave the area and confronted her requesting payment for the bottle. She denied taking the alcoholand refused to pay him.

She was let go from the restaurant shortly thereafter, but her evidence was that it had nothing to do with thatincident as he was simply a coworker and not the one she would blame for her being let go. [13] She testified that her condition that evening was being “in my own world.” She defined it as being “not all there, but Ican see what was happening,” in her “own happy world,” in the “present, but … observing things around you.” At her preliminaryinquiry, she had described that “being in her own world” was “kind of where I don’t remember anything like around me.” As well, at thepreliminary inquiry she had also testified that she was so drunk that she could not be sure what occurred. [14] However, on cross-examination, she explained that she was untruthful at the preliminary inquiry because she was upsetand angry that the accused was in the courtroom. [15] On cross-examination she also indicated for the first time that she was suffering from a psychosis.

Her testimony was asfollows: Q: But you didn’t give true answers to the court in Gillam?

A: Not when I was frustrated and couldn’t think. I have a mental disability, I was – my brain couldn’t really function near the ending. Like you had a question there that implied that I was dreaming. Q: Yes. A. But it all happened and I said yes, that wasn’t true. Q. You have a mental disability you’re saying? A. Yeah, it’s called psychosis. I’m still recovering from it and I’m going to be on injections for a couple more days, months, I don’t know it could be another year. I have been on it for a year now. …. A. Psychosis. …. A. It’s a chemical imbalance in the brain.

They don’t know whether it was from a drug I took or if I just got it. Q. And you’re on medication for that? A. Yeah. Q. What – A. I got my medication already, so I’m good today. Q. Okay, so you’re on medication right now? A. I had an injection; I get it every two weeks. Q. Okay. So, you say you only give incorrect answers when you’re under stress? A. Because my brains [ sic ] thinking too fast and I just give an answer because you’re expecting an answer.

The Trial Judge’s Reasons [ 16 ] After reviewing the complainant’s evidence and the positions put forward by the Crown and the accused, the trial judge, in short oral reasons, accepted the complainant’s testimony with respect to the events that occurred at the accused’s residence. She indicated that there were “concerning aspects with respect to [the complainant’s] testimony,” including the raising of her mental disability for the first time at trial and her recanting aspects of what she had previously indicated was truthful testimony provided at the preliminary inquiry.

The trial judge noted that the complainant testified that she was “in a different world where she did not remember anything around her” and that “she was so drunk she couldn’t be sure of what happened.” She noted the fact that at trial, the complainant

admitted that these two latter comments were untrue and that she had erred in making them because she was frustrated with the accused being in the courtroom. [ 17 ] The gist of the trial judge’s findings on credibility are as follows: I found [the complainant] to be believable, forthright and a compelling witness even after a consideration of these outlined areas of concern with respect to her testimony. Further, she was subjected to a skillful and very complete cross-examination by competent and experienced counsel. Throughout her testimony, she was steadfast in articulating what transpired.

Her evidence was consistent and she did not accentuate or amplify what had occurred. She was forthright and candid in her evidence, made concessions where appropriate and, in many aspects, testified as to her own frailties which included substance abuse. There was no attempt to hide those difficult areas of her life. I found [the complainant] to be a credible witness. …. She may well have made a mistake or was untrue with respect to some aspects of her preliminary inquiry testimony.

That being so, [the complainant] provided an explanation before this court which was plausible in the circumstances. [ 18 ] Finally, the trial judge stated: As I have said, I found [the complainant] to be believable and that her evidence was consistent and compelling. I acknowledge the fact that she had consumed alcohol and utilized drugs to the point of intoxication. However, I am satisfied that she knew what was transpiring around her and provided the requisite details to satisfy me that the elements of the offence of sexual assault have been proven beyond a reasonable doubt. ….

Position of the Accused [ 19 ] The accused’s position is that the trial judge erred in her assessment of the evidence of the complainant on the issues of credibility and reliability which led her to an unreasonable verdict. [ 20 ] The accused submits that the reliability of the evidence of the complainant should have been considered more critically by the trial judge by reason of her admission that she suffered from a psychosis.

In the accused’s submission, while the trial judge referred to the fact of being concerned that the evidence of psychosis was brought up for the first time on cross-examination, she failed to consider whether the mental condition of the complainant may have affected the reliability of her testimony. In his submission, she failed to relate the evidence of the complainant as to suffering from blackouts on that evening and feeling that she was in a dream world to the psychosis to which she admitted.

In the accused’s submission, the explanation of what the complainant was experiencing in her dream world was similar to evidence which had been found to be unreliable in previous cases (citing R. v. Buckhurst , [1997] O.J. No. 4443 (QL) ). [ 21 ] The accused also submitted that the complainant’s evidence lacked truthfulness. She admitted at trial that she had lied at the preliminary inquiry as to the extent to which she could remember the events. The accused submitted that the complainant was not truthful about the inaccuracies and contradictions in her testimony until confronted on cross-examination.

This should have cast doubt on the creditworthiness of her evidence. As well, the explanation she gave as to the possibility the accused might have concerns about her theft of alcohol was in contradiction to the suggestion that he welcomed her when she attended his home that evening.

Questions as to whether the complainant’s reasons for reporting the incident to a Child Care Agency and the contradictions in her testimony with that of witnesses who said that she was asked to leave the party, are further indications of her lack of credibility which should have been given greater weight by the trial judge in her assessment of the complainant’s testimony. [ 22 ] Finally, the accused points to the evidence as to the significant level of the complainant’s intoxication.

By her own admission, she had taken alcohol and marihuana prior to the time of the incident and had blacked out at the accused’s residence as a result of further drinking. [ 23 ] In the accused’s submission, these issues went directly to the credibility of the complainant and the reliability that could be placed upon her evidence. If the trial judge had given these concerns as to her evidence appropriate consideration, it should have led to her rejecting it or at least having sufficient reason to doubt important aspects of it.

Position of the Crown [ 24 ] The Crown’s position is that the trial judge was fully aware of the issues raised by the accused as to the complainant’s credibility and the reliability of her evidence. The trial judge provided detailed and thorough reasons for her findings on credibility and those findings are entitled to considerable deference. The Crown points out the trial judge outlined 16 issues arising out of the complainant’s cross examination and dealt with them, including the evidence of the complainant’s psychosis and level of intoxication.

For that reason, the trial judge’s findings on credibility and reliability must be given deference and should not lead to overturning her decision. Analysis

[25] Jurisprudence recognizes that there is a difference between credibility and reliability. In R. v. Morrissey (1995), (ON CA), 22 O.R. (3d) 514 (C.A.), Doherty J.A. wrote (at p. 526): Testimonial evidence can raise veracity and accuracy concerns. The former relate to the witness’s sincerity, that is, his or her willingnessto speak the truth as the witness believes it to be. The latter concerns relate to the actual accuracy of the witness’s testimony. Theaccuracy of a witness’s testimony involves considerations of the witness’s ability to accurately observe, recall and recount the events inissue.

When one is concerned with a witness’s veracity, one speaks of the witness’s credibility. When one is concerned with theaccuracy of a witness’s testimony, one speaks of the reliability of that testimony. Obviously a witness whose evidence on a point is notcredible cannot give reliable evidence on that point. The evidence of a credible, that is, honest witness, may, however, still beunreliable. In this case, both the credibility of the complainants and the reliability of their evidence were attacked on cross-examination. [26] In R. v.

H.C., 2009 ONCA 56, 244 O.A.C. 288, Watt J.A. described the difference between credibility and reliability (atpara. 41): Credibility and reliability are different. Credibility has to do with a witness’s veracity, reliability with the accuracy of the witness’stestimony. Accuracy engages consideration of the witness’s ability to accurately i. observe; ii. recall; and iii. recount events in issue. Any witness whose evidence on an issue is not credible cannot give reliable evidence on the same point. Credibility, onthe other hand, is not a proxy for reliability: a credible witness may give unreliable evidence: R. v.

Morrissey (R.J.) (1995), (ON CA), 80 O.A.C. 161; 22 O.R. (3d) 514 (C.A.), at 526 [O.R.]. [27] In short, the fact that a witness may be found to be credible does not answer the question of whether the evidenceprovided is reliable (see R. v. Vickerson (W.) (2005), (ON CA), 200 O.A.C. 87). [28] The distinction is an important one and must be recognized by a trial judge in order to reach a just verdict. In R. v.Nicholson (C.D.) (1995), (ON CA), 86 O.A.C. 68, at the time of an alleged offence, the complainant suffered from amultiple personality disorder.

At trial she gave a very fragmented recollection of the event and testified under cross-examination thatduring the time frame in issue, she had five or six personalities. In overturning the conviction, the court stated as follows (at para. 1): A careful examination of the reasons for judgment leaves us with the conclusion that the trial judge was concerned with the credibility ofthe complainant rather than the reliability of her evidence. …. [29] The court concluded (at paras. 3-4): …. The extensive reasons for judgment in this case focus on the issue of credibility rather than reliability.

Instead of finding that thecomplainant’s mental disorder required a closer scrutiny of her testimony, the trial judge appeared to use the disorder as an explanationor excuse for her fragmented recollection of the events. The trial judge did not consider whether the complainant’s multiple personality disorder made suspect the reliability of her testimony thatshe did not consent to the alleged incidents of intercourse with the appellant. …. [30] A mental illness does not necessarily imply an issue with reliability. In R. v.

M.H., 2003 BCCA 607, 188 B.C.A.C. 315,Levine J.A. commented that the fact that a trial judge was not aware of a witness’s bi-polar disorder was irrelevant in the absence of any

evidence of “some connection between that disorder and the reliability of their evidence” (at para. 9). Similarly, in R. v. Nickerson (L.E.)(1993), 1993 NSCA 152 , 121 N.S.R. (2d) 314, 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 toenable such witness to see or hear that about which testimony was or was to be given should be refused. So too a disorder of the mindwhich makes 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 thatthe verdict must be overturned. In R. v.

Burke, (SCC), [1996] 1 S.C.R. 474, 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 thisevidence with special care. It was, therefore, important for the trial judge to consider any circumstances which affected the reliability ofthe evidence. .... [32] As well, in R. v. J.S., 2011 ONCA 304 (QL), the court found that the trial judge’s failure to deal with material evidenceaffecting the reliability of the convictions entitled the appellant to a new trial. [33] In R. v.

O.A., 2013 ONCA 581, 310 O.A.C. 305, the trial judge was found to have misapprehended the evidence on fivedifferent issues, including the reliability of the complainant. While the trial judge acknowledged the complainant’s memory was hazy,he did not appear to consider whether this affected her reliability. This was one of the failures that contributed to the misapprehension ofevidence and the overturning of the decision. [34] Finally, in R. v. Woollam, 2013 ONCA 711 (QL), in a motion for leave to appeal, the appellant sought to have a sexualassault conviction reviewed.

He alleged that the trial judge erred in law by considering aspects of the complainant’s evidence only inassessing her reliability, but failing to consider its impact on her credibility. The court held that the trial judge had considered thecredibility and reliability of the evidence. However, the court wrote (at para. 7): ….

There is nothing in the reasons of this experienced trial judge to explicitly indicate that he made the basic error of bifurcating theimpact of the [evidence of suspicions] and considering it only in relation to J.P.’s reliability but not her credibility. [35] Applying these principles to this case, the trial judge had to consider both the complainant’s credibility and thereliability of her evidence. [36] As to her credibility, namely, her truthfulness, the trial judge commented on it when she said: She may well have made a mistake or was untrue with respect to some aspects of her preliminary inquiry testimony.

That being so, [thecomplainant] provided an explanation before this court which was plausible in the circumstances. [37] The accused takes issue as to whether the explanation, namely, that she was angry because of the presence of theaccused in the courtroom, should have been considered sufficient by the trial judge. However, this was well within the trial judge’spurview and her decision is entitled to deference on that point.

While the accused raises other concerns in his submission which go to thecomplainant’s credibility, I am not satisfied that any of them reach the unreasonableness standard required. [38] As to reliability, the trial judge made no explicit finding on that point. However, she outlines in her reasons the variousareas of concern raised by the defence which she had to take into account in assessing the complainant’s evidence. Those, of note,included the issue of the mental disability and the recanting of the previous evidence.

She considered the evidence of the complainantwith respect to her level of intoxication and her description of being in a different world. She concluded:

I found [the complainant] to be believable, forthright and a compelling witness even after a consideration of these outlined areas ofconcern with respect to her testimony. …. [39] In my view, what the trial judge did was make an implicit finding of reliability. She did so in the context of making adetermination that she found the complainant’s evidence to be credible and the complainant to be a credible witness. [40] In R. v. Jussila (W.R.) (1997), 1997 ABCA 43 , 193 A.R. 292 (C.A.), the accused appealed his sexual assaultconviction by judge alone because the complainant’s evidence was unreliable.

Russell J.A., for the majority, upheld the conviction. The basic facts were that the 18-year-old complainant, while in the accused’s home, had some marihuana and then went to sleep. Thecomplainant testified to having “bizarre” dreams while sleeping and admitted that his memory was affected by the marihuana. In herdecision, Russell J.A. wrote (at paras. 10-12): According to the appellant, the trial judge erred by focusing on the demeanour or the appearance of credibility of the complainant, ratherthan on the accuracy or reliability of his memory.

He maintains that since the focus of cross-examination was on the reliability of thatevidence, some instruction on this factor should have been evident in the reasons for the decision. It is the lack of appreciation of theimpact of the strange and weird dreams, as well as the pornographic movie, which the appellant says brings this case within the ambit ofR. v. Harper, (SCC), [1982] 1 S.C.R. 2; 40 N.R. 255; 133 D.L.R. (3d) 546; 65 C.C.C. (2d) 193. However, the trial judge expressly addressed that evidence. He said: “... (the complainant) admitted that he had these strange dreams.

His evidence was straightforward and clear in all respects when he saidhe was able to distinguish between the time when he was having dreams and the times he was not ...” It is evident from those reasons that the trial judge not only found the complainant to be a credible witness, but that in doing so, he alsomeasured the reliability of his evidence, mindful of the frailties of the complainant’s memory due to his mental state at the time theevents were unfolding. As a result, we cannot conclude that the trial judge failed to appreciate that issue.

The trial judge was also alert to the inconsistencies in the evidence between the testimony of the appellant and that of the complainant. It is apparent, however, that he rejected the evidence of the appellant. We defer to his findings in that regard. Russell J.A. found that the verdict was not unreasonable. [41] More recently in R. v. N.L.P., 2013 ONCA 773, 313 O.A.C. 334, the complainant was under the influence of marihuanaat the time of the assault. She testified to going in and out of consciousness.

The accused argued that this evidence was not reliable andargued the trial judge confused credibility and reliability. Lauwers J.A. wrote (at paras. 27-28): The trial judge noted that there was no evidence about “the strength of the marihuana nor on the exact component of the substancesmoked.” She noted that the appellant had admitted smoking marihuana with the complainant, although he said it was outside. The trialjudge rejected the reliability argument in the following words: Defence counsel argued that [the complainant’s] statement that the intercourse lasted an hour is completely unbelievable.

I do not findthat the complainant’s credibility is terribly damaged by her confusion over time. She repeated that she was drowsy and in and out ofconsciousness. She was a 14 year old girl, high on drugs who was not sexually active. That her time estimates with respect to the sex actare likely not accurate, does not immediately damage her credibility. I take into account her age and lack of sexual experience as shetried to relate what had happened and in particular, where certain body parts were for how long during a sexual assault. It was obvious inher interview with the police that she was sexually naïve.

The trial judge focussed on the important issue, which was whether the sexual assault took place. She found that the complainant’sevidence was reliable on that point, even though the complainant might well have been mistaken about the duration of the assault. In myview, the trial judge adverted to and resolved the reliability issue. I am not persuaded that she erred in her approach or in the result. [42] The accused relies upon two Ontario Court of Appeal decisions to argue that the reference to a psychosis by thecomplainant should have raised issues as to her reliability (see Nicholson and Buckhurst).

[ 43 ] As discussed previously, in Nicholson the complainant was suffering from a multiple personality disorder. The issue in that case was whether the complainant had consented to the alleged instance of intercourse with the accused.

The Court of Appeal found that the trial judge had not considered whether the complainant’s mental condition rendered suspect the reliability of her testimony as to that consent, nor had the trial judge identified sufficient grounds that would support a conclusion that her ability to recall the events in issue was not affected by her disorder. [ 44 ] That case is distinguishable as the mental condition, the multiple personality disorder, went to one of the issues to be determined in the case.

There was a direct relationship between the disorder and the nature of the facts that had to be considered by the court. [ 45 ] In this case, the complainant testified that she was receiving treatment for a psychosis at the time of trial.

However, there was no evidence relating the nature or timing of the illness to the incident or how it might affect her recollection of it. [ 46 ] In Buckhurst , the court overturned a jury conviction and ordered a new trial where the trial judge failed to warn the jury that the main witness’s memory problems caused by crack-cocaine and other drugs might affect her memory and should be considered in assessing the reliability of her evidence as well as of the risks of adopting it without more in the way of supporting evidence. [ 47 ] In this case, it is clear the trial judge was aware of the issues relating to the mental illness and disorientation as well as the level of intoxication and did take it into consideration in assessing the evidence of the complainant. [ 48 ] I am of the view that the trial judge, through her reasons, has confirmed that she assessed both the credibility and reliability of the witness taking into account the areas of concerns which she outlined.

Having done so, it was open to her to find that the complainant’s evidence should be accepted on the core issue of whether the events occurred as she described them. [ 49 ] Having reviewed the complainant’s evidence and performing the reweighing which is required in reviewing an appeal on the basis of an unreasonable verdict, I am of the view that there was evidence, namely, that of the complainant, which a reasonably instructed jury could have considered to reach a verdict of guilty in these circumstances. Conclusion [ 50 ] For these reasons, I would dismiss the appeal. J.A. I agree: J.A.

MacINNES J.A. (dissenting) [ 51 ] I have read the reasons for judgment of my colleague, Monnin J.A. While I have little to add to the reasons, I am unable to agree with the result. [ 52 ] The accused appealed his conviction of sexual assault on two grounds, namely, 1) that the verdict was unreasonable and not supported by the evidence; and 2) that the trial judge erred in her assessment that the offence was proved beyond a reasonable doubt. [ 53 ] This was a one-witness case; the evidence being that of the complainant.

Thus, the essence of the case for the trial judge was the assessment of the credibility and reliability of the evidence of the complainant and the question of whether that evidence was sufficiently credible and reliable to amount to proof of the offence beyond a reasonable doubt. [ 54 ] The trial judge dealt at length with the complainant’s evidence. She noted and considered what she described as “concerning aspects” of the complainant’s testimony before her.

It is clear that the trial judge did so from the perspective of credibility and found the complainant and her evidence credible. [ 55 ] However, the trial judge did not consider the reliability of the complainant or her evidence. While my colleague concludes that the trial judge made an implicit finding of reliability, I am unable to do so. [ 56 ] As my colleague states, there is a difference between credibility and reliability. Indeed, in this case, it is my view that a careful consideration of reliability was at least as critical as credibility.

In my respectful opinion, that did not occur. [ 57 ] The circumstances here are that the complainant lied under oath on two occasions in court. She lied first at the preliminary inquiry. The lies were on material, not peripheral, issues. [ 58 ] On direct examination at trial, she did not admit the lies, but lied again when she confirmed that her preliminary inquiry evidence was truthful. [ 59 ] It was only on cross-examination at trial that she first disclosed her untruthfulness. [ 60 ] Why did she lie? Because she was mad that the accused was in the courtroom at the preliminary inquiry.

[ 61 ] She went on to testify that she was “frustrated and couldn’t think,” and lastly disclosed for the first time that she had “a mental disability” and “her brain couldn’t really function near the ending” of her preliminary inquiry evidence. [ 62 ] In my opinion, she demonstrated not only a total disregard for her oath, but also, given her principal reason for lying, a cavalier attitude for the importance of telling the truth in a court proceeding. [ 63 ] Ordinarily, the foregoing facts alone would cause significant concern over the reliability of the complainant and her evidence. [ 64 ] But there are two additional factors here.

First, her admitted intoxication by reason of consumption of marihuana and a substantial quantity of alcohol resulting in blackouts, as she described, at the time of and shortly following the incident, cause concern as to her ability to accurately observe, assess and recall the events in question, and thus, the reliability of the facts she testified to. [ 65 ] Second, her admitted mental disability which she described as a “psychosis” and “a chemical imbalance in her brain” gives rise for me to additional reliability concerns. [ 66 ] I am satisfied that the complainant’s description of this condition was not a use by her of loose or colloquial language, but was the description of a real condition for which, at the time of trial, she had been and was receiving treatment. [ 67 ] However, the trial judge had nothing more about the condition.

She did not have evidence as to what the condition was, whether it existed at the time of the alleged offence or only at the time of the preliminary inquiry, or at trial. She had no evidence as to the effect, if any, the condition would or could have had on the complainant’s ability to accurately observe, assess and recollect the events of the alleged offence and thereafter to accurately recollect and relate the facts at the time of the preliminary inquiry or at trial.

It would seem to me that in order for the trial judge to fully assess the extent, if any, that the complainant’s mental disability might have on the reliability of her evidence, much more information was required. [ 68 ] Having carefully read the trial judge’s reasons for judgment, I conclude, with respect, that her focus was entirely on the credibility, and not at all on the reliability, of the complainant and her evidence. [ 69 ] In my respectful view, given the circumstances of this case, an express and focussed consideration of reliability ought to have occurred, but did not. [ 70 ] For these reasons, I conclude that the conviction cannot safely stand.

I would, accordingly, allow the appeal, set aside the conviction and order a new trial. J.A.