Goodness Adenola Adebogun Appellant v. Her Majesty the Queen, 2021 SKCA 136

Restriction on Publication An order has been made in accordance with s. 486.4(1) of the Criminal Code directing that any information identifying the complainant shall not be published. Court of Appeal for Saskatchewan Docket: CACR3419 Citation: R v Adebogun , 2021 SKCA 136 Date: 2021-10-20 Between: Goodness Adenola Adebogun Appellant And Her Majesty the Queen Respondent Before: Jackson, Leurer and Kalmakoff JJ.A. Disposition: Appeal dismissed Written reasons by: The Honourable Mr. Justice Kalmakoff In concurrence: The Honourable Madam Justice Jackson The Honourable Mr.

Justice Leurer On appeal from: Provincial Court, Regina Appeal heard: September 7, 2021 Counsel: Brian Pfefferle for the Appellant Andrew Davis for the Respondent Kalmakoff J.A. I. INTRODUCTION [ 1 ] Following a trial in Provincial Court, Goodness Adebogun was convicted of sexual assault. He was sentenced to a term of imprisonment of 18 months, along with the requisite ancillary orders under s. 109 , s. 487.051 and s. 490.012 of the Criminal Code . [ 2 ] Mr. Adebogun appeals against his conviction.

He argues that the trial judge erred by relying on impermissible generalizations about human behaviour as a basis for rejecting his evidence and finding that the Crown had proven his guilt beyond a reasonable doubt. [ 3 ] For the reasons that follow, I would dismiss the appeal. II. BACKGROUND A. The encounter between Mr. Adebogun and T.S. [ 4 ] At the time of the events that gave rise to the charge against Mr. Adebogun, he was 18 years old. The complainant, T.S., was a year older. They had attended the same high school. Mr.

Adebogun was a friend of T.S.’s younger sister, Q.S. [ 5 ] On the night of the offence, Mr. Adebogun was at the home of T.S. and Q.S. Also present was Q.S.’s boyfriend, G.S. The four of them talked and visited. Some alcohol and marijuana were consumed, but nobody in the group was particularly affected by it. As the evening got late, Q.S. and G.S. retired to a bedroom. Mr. Adebogun and T.S. remained in the living room. [ 6 ] At some point, Q.S. requested that Mr. Adebogun and T.S. move to another room because she could hear their conversation and it was preventing her from falling asleep. T.S. and Mr.

Adebogun got up from the living room and went to T.S.’s bedroom. While T.S. and Mr. Adebogun gave relatively similar accounts at trial of what occurred before they entered her bedroom, their rendition of the events that followed diverged. [ 7 ] T.S. testified that, as she lay on the bed, facing away from Mr. Adebogun, he began touching her breasts, back and buttocks, over top of her clothing. She told him to stop and pushed his hands away. She said that Mr. Adebogun did not stop but, instead, began touching her underneath her clothing. Again, she told him to stop and tried to remove his hands.

After that, she said Mr. Adebogun got on top of her, pinned her arms above her head with one hand and used his other hand to touch her beneath her clothing. He stuck his free hand down her pants and inserted his finger or fingers into her vagina and also rubbed his groin against her body. She did not consent to any of this and repeatedly told him to stop. Eventually, he got off of her and stood up beside the bed. He began to apologize. She sat up. She then heard his belt buckle being undone and his pants being unzipped. Mr.

Adebogun then rubbed his erect penis against her face and tried to insert it into her mouth. She resisted and turned her head away. Shortly thereafter, Mr. Adebogun left her bedroom and went to the bathroom. When he returned from the bathroom, Mr. Adebogun sat at the foot of her bed and said to her, several times, “you wanted it”.

He left the house a short time later. [ 8 ] Mr. Adebogun testified that, once he and T.S. got onto the bed, they faced each other, lying on their sides. They began to kiss and fondle each other. He fondled her genital area above her clothing. She did the same to him. He said he put his hand down her pants and inserted his finger into her vagina. He testified that, at some point, in his enthusiasm, he said “I can’t wait to tell everyone I’ve been with [T.S.]”. After he said this, she became upset and told him to stop, which he did.

He said he then apologized for making that remark and tried to assure her that he would not tell anyone about their encounter. He said he then stood up, took down his pants, exposed his penis and asked T.S. if she would touch him. He did not realize that T.S. had sat up as he was doing this and, when he turned back towards the bed, his penis accidentally touched her face. He said that, as soon as this occurred, T.S. laid back down on the bed and turned away from him. He took this as a rejection of his invitation and a signal that the encounter was over, so he pulled up his pants and went into the bathroom.

When he returned from the bathroom, he said, he sat on the edge of the bed and apologized. T.S. accepted his apology and told him it was “okay”. He left the house shortly after that. B. The Facebook message apologies and Mr. Adebogun’s explanation [ 9 ] In the days immediately following the incident in T.S.’s bedroom, Mr. Adebogun sent a message to T.S. via Facebook. It read: [T.S.], I’m so sorry. I am honestly so sorry for the shit I did yesterday. That was completely fucked up and I regret doing it. I don’t expect you to forgive me, cause that was some really fucked up shit I did.

And I’m not going to use the drugs or alcohol as an excuse because there is no reason (no matter how messed up I was) any of the stuff I did yesterday should have happened. But all in all, I am sincerely so sorry. Sorry if I crossed a line [sic], sorry for not respecting you, sorry for hurting you in that way and just sorry. I feel really bad and I hope you’re okay… [ 10 ] T.S. responded to this message by writing: Everyone makes mistakes, it’s fine and I’m fine. [ 11 ] Approximately a week later, Mr. Adebogun sent another Facebook message to T.S.

This one read: Hey, I know it’s late and I’m 100% sure you never want to talk to me again, but please hear me out, I’m just asking you to listen… I honestly can’t stop thinking about what I did to you. I can’t sleep without you popping in my head and knowing that I did what I did to someone who trusted me to be a good friend / person. I would ask for your forgiveness but honestly I don’t deserve it. I am a sick minded and sick behaving little pervert who does not deserve that.

I’m not really expecting a response but I would like to deeply, sincerely and truthfully apologize for the absolutely vulgar actions that I displayed to you and I would like you to know that I don’t care what it takes, I am willing to do whatever to make this right. And if you never want to speak to me again, I totally and completely okay with that because that is exactly what I deserve [sic]… [ 12 ] When Mr. Adebogun testified at trial, he acknowledged that he had sent the messages.

In direct examination, he testified that his words of apology in the messages related to having accidentally touched T.S.’s face with his penis. In explaining the timing and nature of the apologies, he testified that the encounter with T.S. had been his first sexual experience and that it was behaviour that ran contrary to his devoutly religious upbringing.

In that respect, he said: I’d gone through the school day, and not too long after that I had sent her a message, apologizing -- not only apologizing for accidentally touching her face with my penis, but also just apologizing because I shouldn’t have been in that situation in the first place. I’m the son of a minister. I know that -- I know better than to be in that situation, whatsoever. I’ve been taught, and told several times, that nothing sexual is supposed to happen between myself and a girl any time before marriage, whatsoever.

But I just, kind of, apologized, basically just expressing how sorry I was for even being in that situation. [ 13 ] In cross-examination, Mr. Adebogun added that, in the messages, he was also apologizing for having said that he wanted to tell others about his sexual encounter with T.S., as reflected in this exchange: Q And you had described in your testimony that you were apologizing for touching her face with your penis? A Yeah, as well as making the statement that I can’t wait to tell everyone that I’ve been with [T.S.]. Q Okay.

A But the main one was, obviously, for accidentally touching her face with my penis. Q And why did you feel a need to apologize, as well, for the comment? A It was because, like, I can’t speak for what she would have thought specifically, but I know that if anybody would have made that comment to me, from my perspective, my feeling would be that this person thinks I’m some sort of, like -- I don’t know. The best word would be, like, prize. Q Hmm. A If somebody had said that to me, kind of thing. Q So it’s kind of objectifying? A Exactly.

And that would definitely -- like, if someone said that to me, that would definitely piss me off, and that would be very -- I don’t know. It would definitely upset me, so I assume that it would have upset her.

[ 14 ] Later in Mr. Adebogun’s testimony, the trial judge sought clarification from him on what he had meant by the use of the term “vulgar actions” in his apology messages. She asked him if that was referring “simply to you touching her face accidentally with your penis”. Mr. Adebogun answered the question this way: Essentially, yeah.

Just because, in my mind, like, if -- I’m basically trying to assume that that was done to me, and I couldn’t imagine how pissed off I would be if that happened, because in my mind, right away, if somebody put their penis in my face I would be livid, because that’s not something I would want; but, like, for me, at that point, it was basically just apologizing because she hadn’t talked to me. I hadn’t heard anything from her. And me personally, as a person, like, I over apologize and I carry on until -- basically, I just will say anything just to get forgiveness, just because that’s how I was raised.

My parents always told me that, like, if you’re going to apologize, you need to apologize so that they not only know that you’re sorry but that you mean it; right? And that’s, essentially, what I was trying to do there, just because at the time I totally thought [T.S.] was, like, a respectable girl, and that’s somebody saying -- somebody treating her as though she’s some sort of prize is definitely not something that any girl would like to feel or would want to feel. So that’s really what I was apologizing for… C. The Trial Decision [ 15 ] Mr. Adebogun argued at trial that he should be acquitted either because (

i) the Crown had not proven that T.S. did not consent to the sexual activity in question; or (ii) if lack of consent had been proven, he had an honest but mistaken belief that she had communicated her consent. The trial judge properly rejected the latter argument because she concluded that T.S.’s version (no consent and unequivocal communication to that effect) and Mr.

Adebogun’s version (communication of consent through unmistakeable conduct) could not be cobbled together in a way that gave the defence of honest belief in communicated consent an air of reality (see: R v Graham , 2019 SKCA 63 at paras 90–96 , [2019] 12 WWR 207; and R v Knox , 2017 SKCA 8 at paras 72–79 , 36 CR (7th) 89). [ 16 ] The trial judge found that the only live issue at trial was consent. After thoroughly instructing herself on the standard of proof and the elements the Crown would need to prove to establish Mr.

Adebogun’s guilt on the charge of sexual assault, she said: If I have a doubt about the accused’s guilt, it will be because the Crown has not proven lack of consent beyond a reasonable doubt. [ 17 ] The trial judge observed that there were “no major inconsistencies” between the accounts provided by T.S. and Mr. Adebogun regarding the events that transpired before the sexual activity. She also noted that the testimony they had each provided, when looked at in isolation, was credible.

The trial judge then turned to the other evidence to determine how to resolve the credibility question that was at the heart of the case. [ 18 ] In that respect, the trial judge referred to the testimony of Q.S., who had said that, in the period following the night of the encounter between Mr. Adebogun and T.S., she had observed a change in T.S., who became “distant, numb, and wanted to be left alone”. The trial judge accepted Q.S.’s testimony on this point. [ 19 ] Next, the trial judge canvassed the evidence relating to the Facebook messages Mr. Adebogun had sent.

She found those messages to be crucial in determining the question of whether the Crown had proven the case against him. In that respect, she said: It’s undisputed that the accused sent text messages to the complainant in the days following the incident. The accused testified that he was apologizing for stating that he would tell people that he had been with her, and for accidentally touching her face with his penis. I note that the text messages speak to multiple actions, not just one action, and not words, and that he interpreted the actions to be significant.

He says things like -- and I quote: (as read) That was some really fucked up shit I did. There’s no reason any of the stuff I did yesterday should have happened. Sorry for hurting you in that way. I can’t sleep without you popping in my head and knowing that I did what I did to someone who trusted me to be a good friend/person. I am a sick-minded and sick-behaving little pervert who doesn’t deserve that. I apologize for the absolutely vulgar actions that I displayed to you. And those are just some examples.

So the accused testified that he apologized that way because he thought the complainant should have been livid for having a penis touch her face, and being told that she was like a prize. He also stated that he would have said anything to receive her forgiveness. So I find that the testimonies of the complainant and the accused, when examined in isolation, were credible. Their testimonies, when examined together, are very similar, except on the issue of consent. The similarities, therefore, make their evidence, for the most part, reliable.

I must, however, look at all the evidence to determine whether the Crown has proven lack of consent beyond a reasonable doubt. I accept that the complainant was negatively affected by the sexual activity with the accused. I find that the meeting with the accused in the park, and the reporting to police years later, were meant to improve her mental well-being.

I have viewed the texts sent by the accused, considering his explanation for the words used, but I cannot accept that a person -- no matter how apologetic he may feel -- would use the words that the accused used to apologize for having said that he wanted to tell his friends about the encounter, and for accidentally and momentarily touching her face with his penis. Common human experience dictates otherwise . I find that the accused in his texts was apologizing for more serious behaviour. These texts corroborate the complainant’s position that there was no consent.

I find, therefore, that the complainant did not consent to sexual activity, and that the accused knew that the complainant had not consented. That’s why he was so apologetic and remorseful the next day. I find that his attempt to have the complainant touch his penis may have been accidental; however, the touching of her breasts and vagina, over and under her clothes, including digital penetration, was deliberate, knowing there was no consent. I, therefore, find the accused guilty as charged. (emphasis added) III. THE ISSUE ON APPEAL

[20] Mr. Adebogun advances several arguments that are subsumed into one broad ground of appeal, principally based in the words Ihave emphasized in the portion of the trial judgment reproduced above. He says that, in rejecting the explanation he gave for the Facebookmessages he had sent, the trial judge failed to properly engage with his explanation for those messages and, instead, relied onimpermissible generalizations about expected human behaviour. More precisely stated, Mr.

Adebogun’s argument is that the trial judgedid not assess his actions in light of his circumstances, but rather simply asked herself what another person would do in the situation athand. This, he says, is the equivalent of a trial judge assessing a complainant’s conduct based on stereotypical reasoning. IV. ANALYSIS [21] The trial judge concluded that the Facebook messages Mr. Adebogun had sent were effectively an inculpatory admission. Shefound that they were apologies “for more serious behaviour” than what Mr.

Adebogun had described in his testimony and that theycorroborated T.S.’s “position that there was no consent”. In reaching that conclusion, the trial judge rejected Mr. Adebogun’s exculpatoryexplanation for the messages. He had characterized the messages as being clumsy and overly profuse apologies made by an embarrassed,sexually inexperienced 18-year-old man for conduct that, while perhaps offensive, was not criminal. [22] The trial judge’s rejection of Mr. Adebogun’s explanation was, at its core, a finding of credibility.

Credibility findings involvequestions of fact and, as such, are subject to a narrow and highly deferential standard of review.

However, where a trial judge’s assessmentof evidence is based on a wrong legal principle, or a credibility assessment is based on irrelevant or inappropriate considerations, thatconstitutes an error of law and opens the door to appellate intervention under s. 686(1)(a)(ii) (R v Boyer, 2018 SKCA 6 at para 56, [2018]6 WWR 322; R v Wolff, 2019 SKCA 103 at paras 40–44, 380 CCC (3d) 223; R v R.I.G., 2020 SKCA 26 at para 27). [23] It is an error of law for a fact-finder to rely on myths, stereotypes and unfounded inferences to ground credibility assessments,regardless of whether the witness in question is the complainant or the accused, and regardless of whether such reliance is applied toundermine or support the witness’s evidence (R v Greif, 2021 BCCA 187 at para 61 [Greif]; R v J.L., 2018 ONCA 756 at paras 46–47,143 OR (3d) 170; R v Paulos, 2018 ABCA 433 at para 34, 79 Alta LR (6th) 33 [Paulos]; R v Pastro, 2021 BCCA 149 at paras 50–52, 71CR (7th) 296 [Pastro]). [24] This is not to say that life experience, common sense and logic have no place in assessments of credibility.

A trier of fact ispermitted to use assumptions about ordinary human conduct when determining whether testimony given by a witness should be believed.“Trial judges and juries…must invariably fall back on their common sense, and their acquired knowledge about human behaviour, inassessing the credibility and reliability of witnesses” (R v R.R., 2018 ABCA 287 at para 6, 366 CCC (3d) 293; see also R v R.C., 2021ONCA 582 at para 74).

Drawing an inference based on whether explanations provided by a witness are inherently improbable whenmeasured against the conduct of ordinary people does not constitute the drawing of a legally impermissible inference that relies onstereotypical thinking, so long as the judge’s reasoning remains rooted in the evidence (R v Thompson, 2019 BCCA 1 at para 28, 51 CR(7th) 318).

While it is not an error to apply reason, common sense, life experience and logic to the task of making credibility assessments,a trier of fact will fall into error where the assessment becomes infected by prejudicial or stereotypical reasoning (R v Delmas, 2020ABCA 152 at para 31, 452 DLR (4th) 375, affirmed 2020 SCC 39; see also R v A.R.D., 2017 ABCA 237 at paras 8–9, [2017] 11 WWR508, affirmed 2018 SCC 8, [2018] 1 SCR 218). [25] The foregoing principles were recently discussed in Pastro, where Fitch J.A. emphasized the need for credibility assessments tobe grounded in a consideration of the specific evidence before the court, rather than on generalizations about expected human behaviour: [41] Judges are entitled, and expected, to rely on their life experience in making credibility findings.

This necessarily includes drawingcommon-sense inferences from established facts. Juries are routinely instructed along the same lines—to come to common-senseconclusions based on the evidence they accept. Where it is apparent from a review of the reasons as a whole that a credibility assessmentis rooted in the evidence, and is the product of a case-specific determination about what the complainant and accused did or did not do,there will be no basis for appellate intervention, absent palpable and overriding error in fact: see R. v. Mann, 2020 BCCA 353 at paras.72–76; R. v.

Quartey, 2018 ABCA 12 at paras. 21, 34–35, aff’d 2018 SCC 59. This is consistent with the deferential standard of reviewthat applies to factual findings and with the profound functional and policy justifications that underlie it. [42] The corollary is that judges must avoid purporting to make factual findings that are rooted in inappropriate behaviouralassumptions and stereotypes. Clear expression of the evidentiary foundation upon which findings of fact and credibility have been madewill promote public confidence in the result, and enhance meaningful appellate review.

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

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

S. (R.D.), (SCC),[1997] 3 S.C.R. 484 at para. 13 (dissenting in the result), while life experience is an important ingredient in the determination ofcredibility, it is not a substitute for engagement with the evidence. Relying on assumptions about how people “normally” behave to makefindings of fact and credibility engages speculative reasoning. In addition, approaching the fact-finding process in this way is dangerousbecause it does not account for the unpredictable, surprising, and out-of-character ways in which human beings sometimes do behave.

Thedanger may be particularly acute where the context in which a contentious event has occurred is such that behavioural norms may be evenless likely to serve as reliable touchstones in the fact-finding process.

[45] Assumptions about human behaviour can also easily be cloaked with and legitimized by the “faux imprimatur of common sense”: see A.R.D. at para. 7 .

I would add that negative assessments of credibility based on generalizations about normative behaviour also tend to be opaque, difficult to identify, and resistant to meaningful appellant review. (emphasis added) [ 26 ] In R v J.C. , 2021 ONCA 131 , 401 CCC (3d) 433 [ J.C. ] , Paciocco J.A. coined names for the principles at work here, describing them as the “rule against ungrounded common-sense assumptions” and the “rule against stereotypical inferences” (at paras 58–70). [ 27 ] With respect to the former, he observed that, while “judges must avoid speculative reasoning that invokes ‘common-sense’ assumptions that are not grounded in the evidence or appropriately supported by judicial notice” (at para 58), there is no absolute bar on using human experience of human behaviour to draw inferences from the evidence.

The problem arises when the assumptions become detached from the evidence and introduce “new considerations, not arising from evidence, into the decision-making process, including considerations about human behaviour” (at para 61). [ 28 ] Regarding the latter, Paciocco J.A. observed that “it is an error of law to rely on stereotypes or erroneous common-sense assumptions about how a sexual offence complainant is expected to act” and that it is “equally wrong to draw inferences from stereotypes about the way accused persons are expected to act” (at para 63).

However, he went on to say that “it is not an error to arrive at a factual conclusion that may logically reflect a stereotype where that factual conclusion is not drawn from a stereotypical inference but is, instead, based on the evidence” (at para 70). [ 29 ] As can be seen from all of this, the line between proper common-sense assumptions about ordinary human conduct and ungrounded assumptions or impermissible prejudicial or stereotypical reasoning can be a fine one for triers of fact to walk.

To stay on the right side of that line, judges must take care to ensure that their assessments remain grounded in the evidence. As Leurer J.A. explained in his dissenting reasons in R v Mehari , 2020 SKCA 37 at para 78 452 DLR (4th) 413, reversed 2020 SCC 40 , 452 DLR (4th) 410), “there is a difference between relying on generalizations and stereotypes that are abstract in nature and drawing inferences that are tied to the actions of a particular person in particular circumstances”.

The use of common-sense reasoning and the incorporation of common human experience into the analysis are proper, provided the analysis remains tied to, and rooted in, specific consideration of the evidence offered at trial (see, for example: R v F.B.P. , 2019 ONCA 157 at para 9 ; and R v Cepic , 2019 ONCA 541 at paras 22 –​23, 376 CCC (3d) 286).

As was noted in both Pastro and J.C. , it is not an error for a judge to come to a conclusion that may align with a stereotypical expectation, as long as that conclusion is drawn from the evidence in the record, rather than the product of an unsupported assumption or generalization about how an individual would be expected to behave in a given situation (see also: R v Quartey , 2018 SCC 59 at para 3 , [2018] 3 SCR 687; Greif at para 65 ; and Paulos at paras 33, 35–37 ). [ 30 ] Moreover, appellate intervention is not appropriate where the most that can be said, from a review of the reasons, is that a trial judge “may or might have erred”.

Trial judges are presumed to know the law and to apply it correctly. Where ambiguities in a trial judge’s reasons are open to more than one

interpretation, the one that is consistent with the presumption of correct application must be preferred over one that suggests error ( R v G.F. , 2021 SCC 20 at para 79 ). [ 31 ] In my view, the trial judge’s reasons in this case do not reveal the error that Mr. Adebogun suggests. While the trial judge used generic phrasing, including saying “I cannot accept that a person … would use the words” and “[c]ommon human experience dictates otherwise” in rejecting Mr.

Adebogun’s explanation of the Facebook messages, when her reasons are read as a whole, in the context of the entire record, it is apparent that her rejection of his explanation is rooted in the evidence and is not the product of ungrounded common- sense assumptions or the application of a stereotype. [ 32 ] In that respect, it is noteworthy that the trial judge explicitly cautioned herself about the dangers inherent in the improper invocation of common-sense reasoning when assessing credibility.

She said: Although the Court is entitled to assess the evidence through the lens of common sense and everyday experience, the Court should be alert to the danger that common sense inferences actually may invoke stereotypical or discriminatory reasoning. [ 33 ] The trial judge also made direct reference in her reasons to Mr. Adebogun’s explanation of the contents of the Facebook messages. She considered that explanation in light of T.S.’s description of the events. She also compared the explanation to the messages and found that the words Mr.

Adebogun had used in the messages simply did not align with the relatively benign conduct that he claimed had occurred in the bedroom. Mr. Adebogun testified that the incident involved a consensual sexual encounter in which T.S. was a willing participant up until the point that he made an insensitive comment, for which he apologized and was immediately forgiven, followed by him accidentally contacting T.S.’s face with his penis, for which he also apologized and was immediately forgiven. In contrast to this, the trial judge noted, Mr.

Adebogun’s apology messages contained reference to multiple actions and spoke of what appeared to be far more serious conduct than what he had described in his testimony. She also observed that the apology messages referred only to Mr. Adebogun’s actions and made no mention of the insensitive comment that he claimed to have been apologizing for. [ 34 ] Considering all of this, there was a clear basis for the trial judge to find, as she did, that the words Mr. Adebogun used in the apology messages did not match with, and were entirely out of proportion to, the conduct he described in his testimony.

Even though the trial judge referred to “common human experience” in rejecting Mr. Adebogun’s testimony, I see no basis to conclude that she applied common-sense reasoning in the abstract, either on the basis of an ungrounded assumption about human behaviour or by applying an improper stereotype. To put that another way, I am not persuaded that she committed the very error she had explicitly cautioned herself against. The trial judge’s rejection of Mr. Adebogun’s explanation for the apology messages was clearly rooted in the evidence. [ 35 ] Mr.

Adebogun also contends that the trial judge’s use of common human experience as a reference point demonstrates an error because it reflects no engagement with his testimony that this was his first sexual encounter, that he had been taught that pre-marital sex was wrong and that he was ashamed and embarrassed for having treated T.S. disrespectfully. He says the trial judge’s reliance on common human experience left no room for proper consideration of the unpredictable, surprising and out-of-character ways a person with those unique characteristics may conduct themself. I cannot give effect to this argument.

[ 36 ] The range of human experience is very broad. Every person is shaped by their own individual background and life experiences. Those factors inevitably affect how a person reacts to a given situation. One person’s reaction may not be what the next person expects. This is precisely why, as set out above, trial judges must be alive to the limits of common sense and human experience as tools for making credibility assessments.

However, while personal characteristics such as religion, culture, age, and - in a case such as this one - sexual inexperience, may be relevant to the assessment of credibility, they are not dispositive or determinative of the issue. Nor do they necessarily serve to invalidate the application of common sense and common human experience in the reasoning process. A trier of fact is not required to accept, uncritically, everything said by witnesses whose backgrounds and life experiences are different than their own.

It is not an error for a trier of fact to draw on other sources—including their own life experiences—in questioning the plausibility of a witness’s testimony, as long as the assessment of credibility engages with, and remains grounded in, the evidence, including evidence about the personal characteristics of the witness that bear on the credibility of their testimony. [ 37 ] In this case, while the trial judge made no explicit reference to Mr. Adebogun’s youth, sexual inexperience or religious upbringing, her reasons demonstrate that she was alive to the relevant aspects of his personal characteristics.

In particular, she explicitly stated that she had considered his explanation for the messages. That explanation included the personal details he mentions in connection with this argument. The trial judge directly acknowledged his assertion that he “would have said anything” to receive T.S.’s forgiveness. In short, she engaged with the relevant portions of his evidence in that respect.

Notwithstanding all of that, however, she rejected his testimony because she concluded that the words used in his apology messages simply did not align with the conduct for which he claimed to have been apologizing or the purported reason for the nature of the apology. I see no proper basis to interfere with that conclusion. V. CONCLUSION [ 38 ] In the end, I am not persuaded that the trial judge erred in the way that Mr. Adebogun alleges. His appeal must be dismissed. Mr.

Adebogun shall surrender himself into custody at the Regina Provincial Correctional Centre within 48 hours of the release of these reasons. “Kalmakoff J.A.” Kalmakoff J.A. I concur. “Jackson J.A.” Jackson J.A. I concur. “Leurer J.A.” Leurer J.A.