R v Merasty, 2023 SKCA 32

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in accordance with s. 486.4(1) of the Criminal Code directing that any information identifying the complainant shall not be published.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: CACR3502 Citation: R v Merasty 2023 SKCA 32 Date: 2023-03-14 Between: Wade E. Merasty Appellant And His Majesty the King Respondent Before: Schwann, Leurer and Tholl JJ.A. Disposition: Appeal dismissed Written reasons by: The Honourable Mr. Justice Leurer In concurrence: The Honourable Madam Justice Schwann The Honourable Mr.

Justice Tholl On appeal from: 2021 SKPC 5 , Prince Albert Appeal heard: September 14, 2022 Counsel: Peter A. Abrametz for Wade E. Merasty Erin Bartsch for His Majesty the King Leurer J.A. I. INTRODUCTION [ 1 ] Wade Merasty appeals from his conviction for sexual assault, contrary to s. 271 of the Criminal Code : R v Merasty , 2021 SKPC 5 [ Trial Decision ] . Mr. Merasty was later sentenced to six months’ imprisonment followed by 12 months of probation: R v Merasty (29 October 2021) Prince Albert (Sask PC).

The Crown separately seeks leave to appeal from that sentence. [ 2 ] For the reasons that follow, I would dismiss Mr. Merasty’s appeal from his conviction. In separate reasons I explain why I would grant the Crown leave to appeal from sentence and allow its appeal: R v Merasty , 2023 SKCA 33 . II. BACKGROUND A. Evidence [ 3 ] Mr. Merasty faced trial on an information alleging that, on or about June 30, 2019, he committed a sexual assault on an acquaintance.

The offence was said to have occurred at the residence of his cousin, Deanne, with whom he was temporarily staying. [ 4 ] The Crown called three witnesses – the complainant, the investigating officer and a forensic specialist. The complainant testified that, on June 29, 2019, she was out with friends for drinks. While at a friend’s house, she met a woman named Amanda. Arising from a conversation, the complainant and Amanda realized that they shared a friendship with Mr. Merasty. In the early morning hours of June 30, 2019, Amanda contacted Mr. Merasty and learned he was only a few blocks away, at Deanne’s home.

The complainant and Amanda walked over there. [ 5 ] The complainant, Amanda and Deanne all testified as to different parts of what occurred after the complainant and Amanda arrived at Deanne’s home and offered different versions of some of the events. All three agreed, however, that the people at the house – Mr. Merasty, the complainant, Amanda and Deanne – sat around and talked for awhile. They consumed alcohol and some cocaine, although the witnesses offered different accounts as to whether all those present did so. Eventually, Deanne went to bed, followed later by Amanda, leaving the complainant and Mr.

Merasty alone, sitting around the kitchen table. [ 6 ] The complainant testified that Mr. Merasty spoke with someone on the phone. She observed him to be upset and crying. She touched his hand and “told him to hang up, just hang up the phone”, which he did. The complainant then used her own phone to text for a ride but learned that it was going to take some time for that person to arrive. Mr. Merasty left temporarily but came back and asked the complainant if she was “going to come to bed”.

The complainant decided that she “might as well catch a few hours of sleep before [her] ride” arrived, and she followed him to a downstairs bedroom where there was a double bed on one side and, on the other, a separate mattress with a blanket on it. [ 7 ] According to the complainant’s testimony, Mr. Merasty laid down on the double bed. She went to the mattress, remained fully

clothed, wrapped herself in the blanket, laid down and went to sleep. The complainant explained that she awoke to find Mr. Merasty on top of her, kissing her. She stated that she “could feel him trying to insert himself into” her. She testified that it was at this point that she realized that her pants were down around her ankles. The complainant then pushed Mr. Merasty off her, closed her legs, pulled up her pants, and said “No, this is not happening”. She went straight upstairs, woke up Amanda and told her “Wade just tried to rape me”. Mr.

Merasty came upstairs and said “Oh, she’s overreacting, she’s making it up”. [ 8 ] The complainant left Deanne’s apartment and ended up at a nearby friend’s home. She made calls to various people and to the police. The complainant attended the local hospital later that day and submitted to a sexual assault examination. That examination revealed trace amounts of male DNA in her vagina and on her underwear. According to the forensic specialist, the amounts were insufficient to make any comparison to a known male DNA sample. [ 9 ] Mr. Merasty did not testify. However, he called Amanda and Deanne as witnesses.

I will review the relevant details of their testimony later in these reasons. B. The Trial Decision [ 10 ] The Trial Decision was rendered just over one month after evidence was given and argument was made. [ 11 ] The trial judge began his reasons by observing that there was “no dispute that there was physical contact between Mr. Merasty and the complainant and that it was sexual in nature”. He identified Mr. Merasty’s sole argument to be “that this sexual encounter was consensual” (at para 2).

The trial judge then summarized his bottom-line conclusion, as follows: [3] Having considered the evidence in these proceedings, I am satisfied beyond any reasonable doubt that, when Mr. Merasty began touching the complainant, she was sleeping and thus she was not capable of consenting. Furthermore, I am satisfied that the complainant did not consent to having a sexual encounter with Mr. Merasty prior to falling asleep. However, even if she did communicate some form of consent, that consent was no longer valid as soon as she fell asleep. [4] Finally, having considered the evidence, I am also satisfied that Mr.

Merasty was either aware that the complainant was not actively communicating her consent or that he was wilfully blind as to her lack of consent and/or capacity to consent because she was sleeping during the sexual encounter. Sexual touching performed without consent and without an honest belief in consent to that touching constitute the crime of sexual assault. The trial judge followed his opening comments with a

summary of the evidence, an analysis of the law and a detailed explanation as to how he had come to these conclusions based on the application of the law to the evidence and the facts as he found them. III. ISSUES [ 12 ] Mr. Merasty’s notice of appeal identified eight grounds, which he refined in his factum into four issues. These issues provide an appropriate framework to decide his appeal, although I would restate them as follows: (

a) Did the trial judge err by misapprehending a key issue in the trial? (

b) Did the trial judge err by failing to resolve inconsistencies between the complainant’s account of events and those offered by other witnesses? (

c) Did the trial judge misapply the rule in Browne v Dunn (1893), 6 R 67 (UK HL)? (

d) Did the trial judge consider inappropriate matters when rejecting Deanne’s testimony? IV. ANALYSIS A. Did the trial judge err by misapprehending a key issue in the trial? [ 13 ] Mr. Merasty’s first argument, which he describes as “overarching”, is the suggestion that the trial judge “misapprehended the ultimate issue in the trial and that this has resulted in a miscarriage of justice”. His submission is based on words that I emphasize in the following passage from the Trial Decision : [56] As I have already noted, there is no dispute that there was physical contact between Mr.

Merasty and the complainant, that this contact was sexual in nature, and that Mr. Merasty intended that contact to occur. Mr. Merasty advances two defences; first, that the complainant is not being truthful with the court when she denies that she consented ; and second, that the complainant does not remember that she communicated her consent because of her level of intoxication. Counsel argues that the evidence heard by the court should at least raise a reasonable doubt and thus takes the position that the Crown has not proven its case. (Emphasis added) [ 14 ] Mr.

Merasty asserts that he never alleged that the complainant was not being truthful . Instead, he says, his submission at the trial was that, by reason of the consumption of alcohol and drugs, her evidence was simply not reliable . Therefore, Mr. Merasty argues in this appeal that the words I have emphasized reveal that the trial judge misapprehended the question he had raised at the trial, thus committing an error in law.

[15] In support of his argument, Mr. Merasty invokes the principle that a misapprehension of evidence renders a trial unfair andresults in a miscarriage of justice, where a trial judge was “mistaken as to the substance of material parts of the evidence and [that] thoseerrors play[ed] an essential

part in the reasoning process resulting in a conviction” (R v Lohrer, 2004 SCC 80 at para 1, [2004] 3 SCR 732, quoting from R v Morrissey (1995), (ON CA), 97 CCC (3d) 193 at 221. See also: R v Haque, 2022 SKCA 124 at para110; R v Thalheimer, 2022 SKCA 25 at para 45, 411 CCC (3d) 208; and R v CJ, 2018 MBCA 65 at paras 21–28, 362 CCC (3d) 137). InLohrer, Binnie J. added that this is “a stringent standard”, that “must go to the substance rather than to the detail” (at para 2). [16] The simple answer to Mr.

Merasty’s submission under this head is that, contrary to the position he took in this Court, the recordshows that his counsel did challenge the truthfulness of the complainant’s testimony. Accordingly, the record does not support hiscontention that the trial judge misapprehended the arguments made at the trial. It must also be said that the trial judge addressed thosearguments fully. [17] As the trial judge correctly identified at the outset of his decision, the core issue at the trial was whether Mr. Merasty hadtouched the complainant in a sexual way without her consent.

As I have also reviewed, the complainant testified that she had fallen asleepin a bed, separate from Mr. Merasty, and awoke to find herself being touched by him in a sexual way. Mr. Merasty’s trial counsel, inclosing argument, invited the trial judge to conclude that the complainant’s testimony “isn’t believable”. He further said that “[s]he is notcredible”.

He went on and said that he was “not saying that necessarily that she’s deliberately lying, but I am saying that she is wrong”. [18] Based upon the representations made to him, it was incumbent on the trial judge to address the complainant’s credibility – thatis, whether she was being truthful – and her reliability when assessing the question of whether the Crown had proven its case beyond areasonable doubt. For this simple reason, I reject Mr.

Merasty’s first and “overarching” argument that the trial judge misapprehended theultimate issue in the trial by passing on the question as to whether the complainant was being truthful. I would add two footnotes to thisanalysis. [19] First, it is not at all obvious to me that the authorities on which Mr. Merasty calls in aid of his position have any application in acase like this. Each of them relates to the misapprehension of evidence – not a misapprehension of a legal argument.

The principle thatstands behind the case law that finds a reason to set aside a verdict where a material misapprehension of evidence is asserted is that, if aconviction depends on a misapprehension of evidence, it “must follow that the appellant has not received a fair trial” (Morrissey at 221).While this is so where a trier of fact has determined a case based on something other than the actual evidence before it, it would seem tome that, as long as a trial judge ultimately grapples with the actual issues that a party raises, in most contexts at least, it is likely to matterlittle to the fairness of the trial if the judge also addresses issues that the party did not raise.

Therefore, while I have concluded that, on therecord in this case, the trial judge cannot be faulted for having understood that Mr. Merasty had put the complainant’s credibility in issue,even if he had been wrong about that conclusion, it would have significance only if he had also failed to properly address the otherarguments that were made to him. This leads to my second footnote. [20] The trial judge addressed the argument that Mr. Merasty now says he intended to make, that is, whether the complainant’sevidence was reliable.

In this regard, the trial judge specifically dealt with the reliability of the complainant’s testimony when he wrote asfollows in the Trial Decision: Is it Possible that the Complainant Merely Can Not Remember Accurately What Happened? [71] Mr. Merasty argues that I should find the complainant’s testimony to be unreliable because of her state of intoxication at the time.Mr. Merasty asks that I consider the possibility that the complainant consented to the removal of her pants and underwear (or did soherself) and then permitted Mr.

Merasty to be on top of her and to kiss her but is now unable to remember these actions. For this argumentto be successful, I must be satisfied that the complainant may have been sufficiently intoxicated that she “blacked out” but not sointoxicated that she lost the capacity to consent. [72] Having considered the evidence, I do not believe that the complainant may have blacked out. To the contrary, I am satisfied thather testimony is reliable.

Granted, this Court heard considerable evidence as to the complainant’s consumption of both alcohol and drugs.As I have already noted, all witnesses agreed that she was intoxicated. The complainant candidly admitted she was and provided details ofher consumption. However, the complainant also testified that she was not so intoxicated that she could not accurately remember whathappened in the bedroom. She was pressed on this point in cross-examination and her evidence was unwavering. [73] Simply put, I am satisfied beyond any doubt that the complainant accurately remembers what happened on June 30, 2019.

I basethis conclusion on the fact that the complainant testified in some detail as to where she went, who she was with, and what people did bothbefore and after the incident. As I have noted, her testimony was coherent and generally consistent with the events as described byDeanne, Amanda and Constable Hood.

While there were some inconsistencies, in my opinion these inconsistencies were not significant.With all due respect, it is improbable in the extreme that the complainant would be able to retain a detailed and accurate memory of theseevents and yet not be able to remember that she actively consented to a sexual encounter. If there is a gap in the complainant’s memory asto what happened downstairs in the bedroom, I find that it is because events occurred at a time when she was sleeping - not because shewas too intoxicated to remember. [21] Mr.

Merasty has not identified, to my eye at least, any error in this, or any other, part of the trial judge’s analysis of thereliability of the complainant’s evidence, other than as I will address later in this judgment. [22] For all these reasons, I reject Mr. Merasty’s first and “overarching” argument that the trial judge erred by misapprehending akey issue in the trial. B. Did the trial judge err by failing to resolve inconsistencies between thecomplainant’s account of events and those offered by other witnesses? [23] Mr.

Merasty’s second argument is that the trial judge erred by failing to adjudicate “in relation to evidence which wasinconsistent with the Complainant’s reliability”. Mr. Merasty’s core submission under this head is built from the differences in the

accounts of events given by Amanda, Deanne, and the complainant herself. [ 24 ] Amanda testified that, prior to going to bed, she had observed the complainant and Mr. Merasty in a reflection on a television screen. In her testimony-in-chief, she stated that she had seen the complainant sitting on Mr. Merasty’s lap and kissing him. This was put to the complainant in cross-examination, but she flatly denied having done so. [ 25 ] Deanne stated in her evidence that the complainant had told her that, in reference to Mr. Merasty, she thought her (Deanne’s) “cousin’s [a] nice guy” and she wanted to “hook up with him”.

Deanne further testified that she was disgusted by this comment and responded by telling the complainant that she could not do that at her place. She also said that she was upset when she heard Mr. Merasty and the complainant go into a bedroom because she had just told the complainant that she could not “hook up” with Mr. Merasty in her home and she had assumed that they went into the bedroom to do so. She elaborated on her testimony when questioned in cross- examination. In this regard, when asked by Crown counsel if she heard anything from the room next door, Deanne answered that she did.

She testified that soon after Mr. Merasty and the complainant went in the bedroom, she heard “foreplay” noises, which she particularized as “giggling” and “moving around on the bed”. She said that she assumed these noises were “foreplay” because of her previous conversation with the complainant about wanting to “hook up” with Mr. Merasty. Deanne was also asked in cross-examination if she saw anything happen in the bedroom. She replied that she got up to use the bathroom when the complainant and Mr. Merasty first went in the bedroom and that she briefly looked in that bedroom as she walked by.

She explained that she saw the complainant on top of Mr. Merasty on one of the beds. Deanne also said that she could tell that the complainant had her shirt on but could not see much else. Deanne testified that she did not go in the bedroom and that she had only briefly looked in the room. None of this had been put to the complainant by Mr. Merasty’s counsel in his cross-examination of her. [ 26 ] Mr.

Merasty’s argument is based on several statements by the trial judge that “even if” he were to accept Amanda’s and Deanne’s testimony on these points, it would not affect his conclusion that the Crown had proven its case beyond a reasonable doubt. I will return to put those impugned statements in their full context. For the moment, I am attempting to make clear that Mr. Merasty’s argument is that it was incumbent on the trial judge to resolve these, and several other, smaller, inconsistencies in the evidence. [ 27 ] I begin my consideration of Mr.

Merasty’s argument on this point by observing that the Trial Decision contains a comprehensive

summary of all the evidence, including the testimony that I have just reviewed. Mr. Merasty offers no criticism of this

summary. [ 28 ] As part of his detailed review of the evidence, the trial judge observed that, in accordance with the rule in Browne v Dunn , “the complainant was asked to comment on potentially contradictory evidence that the defense anticipated would be given by a subsequent witness”. He gave, as an example, that “the complainant was asked and denied sitting on Mr. Merasty’s lap and kissing him prior to them going downstairs”, and then he specifically quoted from her testimony on this point (at para 22).

In his more detailed review of Amanda’s testimony, the trial judge observed that the testimony she had given in her evidence-in-chief had largely crumbled under cross-examination. In this regard, the trial judge accurately summarized how Amanda’s evidence changed under cross-examination: [35] When asked by Crown counsel about her observations of the complainant and Mr. Merasty in the TV’s reflection, Amanda altered her testimony. Amanda testified that soon after they got to Deanne’s residence, the complainant was sitting close to Mr. Merasty and on his lap.

When pressed on this point, Amanda again altered her testimony. This time stating that she was not sure whether the complainant had been sitting on the complainant’s lap but testified that she was flirting with him. Amanda explained that she was not surprised when she thought she saw the complainant on Mr. Merasty’s lap after she moved to the couch because she thought the complainant wanted to “be with him”. When pressed by Crown counsel, Amanda was not sure she saw the complainant kissing Mr. Merasty because she could only see in the reflection on the TV.

She thought that their heads were close together. [ 29 ] Later in his reasons, the trial judge also offered a more general evaluation of the “many inconsistencies in the evidence” (at para 48). After enumerating several of these, he noted that it is “not unusual for inconsistencies to occur in testimony”, but he also recognized that “both consistency and inconsistency in testimony may provide a helpful lens through which to assess both the credibility of a witness and the reliability of that person’s evidence” (at para 49).

He then explained that he found the complainant’s testimony to be persuasive: [50] The complainant’s testimony was clear, cogent and compelling. She testified in some detail as to where she went, who she was with, and what people did both before and after the incident with Mr. Merasty. In addition, the complainant provided an accurate and detailed description of Deanne’s residence. In my opinion, her testimony was generally consistent with the events as described by Deanne, Amanda and Constable Hood with only one exception worth noting.

The complainant misrepresented the nature of the drug being consumed to Constable Hood. In my opinion, when considered in context, this misrepresentation did not significantly impair the complainant’s credibility. My observation was that the complainant was transparent and candid with the court, including with respect to her consumption of alcohol and an illicit drug. Her description of the events of June 29 & 30, 2019 was internally consistent and detailed.

She was subject to cross-examination by able counsel and her evidence was unassailed. [ 30 ] Finally on this subject, the trial judge contrasted the “clear, cogent and compelling” testimony of the complainant to that given by Deanne: [51] On the other hand, I struggle with the weight to be given to Deanne’s evidence for a couple reasons. First, the breach of the rule set forth in Browne v Dunn . The gravamen of Deanne’s testimony was that the complainant had a conversation with her wherein the complainant expressed a desire to “hook up with” (have sex) with Mr. Merasty.

However, the complainant was not given an opportunity to address this evidence in cross-examination. In addition, Deanne also testified during cross-examination by the Crown that she overheard the complainant playing and laughing with Mr. Merasty in the bedroom downstairs and that she observed the complainant sitting on top of Mr. Merasty on one of the beds downstairs.

The complainant was never given an opportunity to address any of this evidence. [52] Second, Deanne’s testimony was littered with statements tending to support myths and stereotypes involving sexual assault complainants, including that the complainant was annoying, pushy, loud and poorly-dressed. First, none of this evidence was probative on the issue of communicated consent. Second, these statements tended to signal that Deanne may not be an unbiased witness. When taken alone, these statements may not have undermined Deanne’s credibility. However, Deanne also stated her belief that “nothing happened”.

She also acknowledged confronting the complainant after the incident and making her feel uncomfortable. [31] I take two key points from my review of the Trial Decision to this juncture in these reasons. First, the trial judge was alert bothas to the existence of the conflict in the testimony and that it bore directly on the issues of credibility and reliability of the accounts ofevents offered by the witnesses. Second, in contrast to the “clear, cogent and compelling” testimony of the complainant, for somewhatdifferent reasons, he discounted the testimony given by both Amanda and Deanne.

Amanda had retreated from the position given in herevidence-in-chief. There were several reasons to doubt Deanne’s testimony and the complainant had not been offered an opportunity torespond to the central allegations made by her. [32] All of this sets the stage for consideration of the trial judge’s comments that attract Mr. Merasty’s argument under this heading.As I did earlier, I will underline for emphasis the words used in the Trial Decision that anchor Mr. Merasty’s argument: [65] After considering the whole of the evidence, I am satisfied that the complainant was being truthful in her testimony.

In myopinion, the complainant’s testimony was compelling - so compelling that it wholly overwhelmed the inferences to the contrary that canbe drawn from other testimony. Amanda and Deanne only observed events before and after the sexual encounter. Neither witness madeany observations at the relevant time. On the issue of consent, the complainant’s evidence was unequivocal. She did not remove her pantsor underwear and she did not consent to their removal by Mr. Merasty. She did not consent to him kissing or being on top of her.

Finally,she did not consent to having intercourse with him before falling asleep. [66] Even if I accept that the complainant was flirting with Mr. Merasty upstairs, and that possibly she was sitting on his lap and kissedhim when they were upstairs, such evidence is of limited probative value as to her state of mind downstairs in the bedroom. As the Courtnoted in [R v J.A., 2011 SCC, 2011 SCC 28 , [2011] 2 SCR 440] at para. 34, consent must be contemporaneous with the activityin question and consent to one act does not amount to consent to another act.

In other words, even if the complainant was kissing Mr.Merasty at the kitchen table, such evidence is not contradictory to the complainant’s evidence that she did not consent to the sexualactivity that later occurred downstairs in the bedroom. Consent cannot be ‘implied’ by a pre-existing relationship. It must be conscious,continuing and present at the time the sexual activity in question takes place. See: J.A. at para 66. See also: s. 273.1(1.1) of the CriminalCode. [67] Similarly, even if I accept that the complainant communicated a desire to “hook up” with Mr.

Merasty to Deanne, this evidence isof limited probative value as to whether or not she communicated that intention to Mr. Merasty. Again, even if I accept that thecomplainant was “playful” with Mr. Merasty when they first went into the bedroom and that at some point she may have been sitting ontop of him on the bed, this evidence is also of limited probative value as to the complainant’s state of mind 30 minutes later. This evidenceis of limited value because it is not inconsistent with the complainant’s evidence that she and Mr.

Merasty went to sleep in separate bedsand that she was fully clothed when she fell asleep. Deanne’s evidence is also not inconsistent with the complainant’s evidence that, whenshe woke approximately 30 minutes later, her pants and underwear were around her ankles and that Mr. Merasty was kissing her andattempting to have sex with her without her consent. [68] Simply put, none of the defence evidence – individually or collectively – raised any doubt in my mind as to the credibility of thecomplainant’s testimony.

To the contrary, the complainant’s feelings of personal violation and breach of trust were readily apparent. Thecredibility of her testimony was enhanced by the clarity and consistency of her testimony. Her description of the events leading up to theincident was detailed and internally consistent. Furthermore, I do not accept the argument that the complainant’s clothes could not havebeen removed without her consent and thus she must be lying. First, the argument is based on an error of law, namely – that unless anduntil a woman says “no”, she has implicitly given her consent.

Second, the complainant did wake up and, as soon as she did, sheemphatically said ‘no”. [69] Finally, immediately after the incident, the complainant told four different people (Amanda, [a friend who lived nearby], hermother, and Constable Hood) about the incident and took actions consistent with her allegations. While the repetition of a statement doesnot add weight to that statement, the fact that the complainant undertook a reasonable and consistent course of action following theincident is relevant. For example, the complainant said she left Deanne’s residence because she felt unsafe.

When she left, she went to [herfriend’s] resident [sic] (which was within walking distance) and then to her mom’s place. The complainant was asked by her mom to callthe police. She did. The complainant then cooperated with Constable Hood by giving a statement, she went to the hospital and agreed tohave an invasive physical examination. In my opinion, the complainant’s post-incident conduct was consistent with her statement that shedid not consent to a sexual encounter with Mr. Merasty. Certainly, there is nothing in her post-incident conduct that sheds any doubt on hercredibility.

The only exception being that the complainant may have told Constable Hood that the drug consumed was marijuana when infact it was cocaine. I am not satisfied that this misrepresentation, when considered in context, was sufficient to undermine her credibilitybefore the Court in any meaningful way. [70] After considering the evidence, I am satisfied beyond a reasonable doubt that the complainant was being truthful in her testimony. (Emphasis added) Having concluded that the complainant was being truthful, the trial judge then further analyzed the evidence and explained why he did notaccept Mr.

Merasty’s argument that her evidence was not reliable, in paragraphs 71 to 73 of the Trial Decision that I have quoted in fullearlier in these reasons. [33] Mr. Merasty calls into aid two lines of authority to suggest that the trial judge’s approach to deciding the case in this wayevinces error. First, he says that the trial judge’s failure to decide if the events described by Amanda and Deanne occurred resulted in theverdict being unreasonable.

In making this argument, he invokes the following passage from R v R.P., 2012 SCC 22, [2012] 1 SCR 746: [9] To decide whether a verdict is unreasonable, an appellate court must, as this Court held in R. v. Yebes, (SCC),[1987] 2 S.C.R. 168, and R. v. Biniaris, 2000 SCC 15, [2000] 1 S.C.R. 381, at para. 36, determine whether the verdict is one that aproperly instructed jury or a judge could reasonably have rendered.

The appellate court may also find a verdict unreasonable if the trialjudge has drawn an inference or made a finding of fact essential to the verdict that (1) is plainly contradicted by the evidence relied on bythe trial judge in support of that inference or finding, or (2) is shown to be incompatible with evidence that has not otherwise been

contradicted or rejected by the trial judge (R. v. Sinclair, 2011 SCC 40, [2011] 3 S.C.R. 3, at paras. 4, 16 and 19-21; R. v. Beaudry, 2007SCC 5, [2007] 1 S.C.R. 190). [34] However, this passage does not assist Mr. Merasty in his argument. In saying this, I observe that the circumstances that R.P.describes where an appellate court must find a verdict to be unreasonable do not exist in this case.

Here, the trial judge concluded that thecomplainant was to be believed, but her testimony on this point was not “plainly contradicted by the evidence relied on by the trial judgein support of that inference or finding” (R.P. at para 9, emphasis added). In other words, the trial judge did not rely on the truth ofAmanda’s and Deanne’s evidence to come to the conclusion that Mr. Merasty was guilty. Rather, he reasoned in exactly the opposite way– he was satisfied that Mr.

Merasty was guilty “even if” these two witnesses were telling the truth. [35] Similarly, the trial judge’s acceptance of the complainant’s evidence was not “shown to be incompatible with evidence that hasnot otherwise been contradicted or rejected by the trial judge (R.P. at para 9, emphasis added). For the reasons the trial judge gave in hisdetailed analysis on the essential question of the consent, there was no contradiction at all in the evidence. [36] For these reasons, I reject Mr. Merasty’s argument that the trial judge’s verdict was unreasonable based on the principlesestablished in R.P. [37] Mr.

Merasty also alleges that the trial judge erred in law by disregarding relevant evidence. He quotes from R v Harper, (SCC), [1982] 1 SCR 2 at 14, wherein it is stated that if a judge’s reasons disclose “a lack of appreciation of relevant evidenceand more particularly a complete disregard of such evidence, then it falls upon the reviewing tribunal to intercede”.

My earlier detailedreview of the Trial Decision was intended, in part, to make clear that the allegation that the trial judge disregarded or failed to appreciatethe relevant evidence is one that is cut from whole cloth. [38] I would finally add that neither R.P. nor Harper stand for the proposition that all conflicts in the evidence must be resolved by atrier of fact, and I see no error on the part of the trial judge in failing to do more than he did here.

As long as a trial judge considers all ofthe evidence, there is no obligation to resolve conflicts in it that are not of central importance to a material issue (see: R v Ector, 2018SKCA 46 at paras 65 and 74, 362 CCC (3d) 462; and R v Morin, (SCC), [1992] 3 SCR 286 at 296).

Although Mr.Merasty did not present his argument as one involving an insufficiency of reasons, there is also no requirement for a trial judge todemonstrate in their reasons that they have grappled with, and have satisfied themselves about, alleged conflicting evidence which isimmaterial to the ultimate issues needing to be resolved (see: R v W.D.M., 2022 SKCA 64 at para 50, [2022] 9 WWR 606, leave to appealto SCC refused, , citing R v R.E.M., 2008 SCC 51 at para 50, [2008] 3 SCR 3). [39] In this case, the trial judge addressed the inconsistencies between the complainant’s evidence and that of Deanne and Amanda.He found that, even if the versions of events told by Deanne and Amanda were true, they did not undermine his conclusion that thecomplainant did not consent at the material time.

There was no need for him to declare whether he found Deanne or Amanda’s statementsto be fact, or to resolve a conflict in the complainant’s evidence if they were found to be fact, because it did not matter if they were. Theirevidence on these points – and the alleged conflicts created thereby – were and are immaterial to the ultimate issue, which is whether thecomplainant consented before Mr. Merasty touched her in a sexual manner in the bedroom. There is no error in this approach. [40] I have focused on Mr.

Merasty’s allegation that the trial judge erred by failing to resolve differences in the testimony of thecomplainant and Amanda and Deanne. He similarly suggests that it was incumbent on the trial judge to resolve an alleged conflict as towhether penile penetration had occurred. Although the answer to this question may impact the gravity of the crime, and for that reason beimportant for sentencing purposes, it was not an element of the offence. In any event, the more immediate point is that there was noconflict about this at all.

Rather, the complainant consistently expressed uncertainty as to whether penetration had occurred. [41] For all these reasons, I would reject Mr. Merasty’s argument that the trial judge erred by failing to resolve inconsistenciesbetween the complainant’s account of events and that offered by other witnesses. C. Did the trial judge misapply the rule in Browne v Dunn? [42] The so-called rule in Browne v Dunn derives from the English House of Lords case of the same name.

In an oft-quoted passagefrom that case, Lord Herschell L.C. stated he had “always understood that if you intend to impeach a witness you are bound, whilst he is inthe box, to give him an opportunity of making any explanation which is open to him; and as it seems to me, that is not only a rule ofprofessional practice in the conduct of a case, but is essential to fair play and fair dealing with witnesses” (at 70).

Thus, in its mostessential form, the “rule” requires a party who intends to call evidence contradictory to that of a witness to question them about thatcontradictory evidence so they can have an opportunity to address those concerns. It is a principle that is rooted in trial fairness. [43] Mr. Merasty’s arguments under this head are based on a statement by the trial judge that he “struggle[d] with the weight to begiven to Deanne’s evidence” for two reasons. One of these was “the breach of the rule set forth in Browne v Dunn”.

As set out above, thetrial judge went on to note the “gravamen of Deanne’s testimony was that the complainant had a conversation with her wherein thecomplainant expressed a desire to ‘hook up with’ (have sex) with Mr. Merasty” and she had “also testified during cross-examination bythe Crown that she overheard the complainant playing and laughing with Mr. Merasty in the bedroom downstairs and that she observedthe complainant sitting on top of Mr. Merasty on one of the beds downstairs” (at para 51). [44] As earlier noted, the trial judge observed that Mr.

Merasty’s trial counsel had confronted the complainant with the anticipatedevidence of Amanda, to the effect that she had been seen sitting on Mr. Merasty’s lap and kissing him at the kitchen table. But he did notadopt the same approach in relation to these parts of Deanne’s testimony. Because Deanne’s testimony was not put to the complainant, she“was never given an opportunity to address any of this evidence” (at para 51). [45] Before arguments began, a discussion occurred between the trial judge and counsel as to whether the Crown intended to recallthe complainant to respond to Deanne’s evidence.

After a brief adjournment to consider this question, the Crown stated that it wouldprefer to rely on the rule in Browne v Dunn rather than recall the complainant. Mr. Merasty’s counsel did not suggest that he would like tosee her recalled. Later, during closing arguments, when defence counsel was questioned about the impact of the rule in Browne v Dunn,he suggested that it was negligible because “we know [what] she’s going to say”. The Crown, in turn, argued that it was not obvious what

the complainant might have said if she had been offered a chance to respond to this evidence and, because of this unfairness, Deanne’sevidence should be given little weight. [46] In this Court, having himself not asked that the complainant be recalled to answer Deanne’s testimony, Mr. Merasty submitsthat the trial judge erred in law by misapplying Browne v Dunn. I would distill his arguments into three main points. [47] First, Mr.

Merasty suggests that there was no unfairness caused by any parties’ failure to ask the complainant about Deanne’sevidence because his counsel did not know that Deanne would say these things and could not have known that she would say at least someof what she did, considering that several of the points only came out in cross-examination. Respectfully, this submission ignores the trialfairness issues that stand behind the Browne v Dunn principle. These were described by Watt J.A. in R v Quansah, 2015 ONCA 237, 323CCC (3d) 191, as being threefold (at para 77): (

i) Fairness to the witness whose credibility is attacked: The witness is alerted that the cross-examiner intends to impeach his or her evidence and given a chance to explain why the contradictoryevidence, or any inferences to be drawn from it, should not be accepted: R. v. Dexter, 2013 ONCA 744, 313 O.A.C. 226, at para. 17;Browne v.

Dunn, at pp. 70-71. (ii) Fairness to the party whose witness is impeached: The party calling the witness has notice of the precise aspects of that witness’s testimony that are being contested so that the party candecide whether or what confirmatory evidence to call; and (iii) Fairness to the trier of fact: Without the rule, the trier of fact would be deprived of information that might show the credibility impeachment to be unfounded and thuscompromise the accuracy of the verdict. [48] Each of these fairness concerns are at play here.

Moreover, this passage would suggest that Browne v Dunn is not concernedwith fairness to the party who offers a witness and does not thoroughly examine them before or during trial. I also do not see how the factthat some of the contradictory information arose from cross-examination by the Crown changes the fairness focus, particularly on thefacts of this case. A party cannot offer a witness for the purpose of harming another witness’s credibility and then complain when, after aperfunctory examination-in-chief, further harmful information that neither party knew about arises in cross-examination.

Again, this wasinformation that defence counsel may not have known but could have known through proper diligence. [49] Mr. Merasty’s second point is somewhat related to the first. He says that Browne v Dunn should not have been invoked by thetrial judge because the Crown declined to recall the complainant. However, it was, fundamentally, the responsibility of Mr. Merasty, whofirst led Deanne’s testimony in an effort to undermine the complainant’s version of events, to have given the complainant an opportunityto respond to her testimony. I do not accept that it is open to Mr.

Merasty to complain that the trial judge referred to the principle inBrowne v Dunn when he could have requested that the complainant be recalled, but he did not do so. Absent an error in principle, it waswithin the trial judge’s discretion how to address or remedy the Browne v Dunn issue and his decision attracts deference on appeal. [50] Underpinning all of Mr. Merasty’s arguments is what he identifies as the “governing principle”, namely that the “application ofthe Browne and Dunn rule depends upon the circumstances of the case”.

I understand this submission to be linked to an argument that, atthe end of the day, there was no need or purpose for the complainant to have been confronted with Deanne’s testimony because she hadbeen categoric that she had fallen asleep and then awoke to find Mr. Merasty attempting intercourse with her, leaving her no room foranything other than a denial about Deanne’s testimony. [51] I agree with Mr. Merasty that Browne v Dunn does not lay down an absolute standard for trial conduct and might better becalled a general principle than a rule. This point was made in Palmer v The Queen, (SCC), [1980] 1 SCR 759.

In that case,McIntyre J. said that he was in “full agreement” with McFarlane J.A. from the British Columbia Court of Appeal, when he quoted fromBrowne v Dunn and stated that “the effect to be given to the absence or brevity of cross-examination depends on the circumstances of eachcase. There can be no general or absolute rule. It is a matter of weight to be decided by the tribunal of fact” (at 781–782). Some years later,in R v Lyttle, 2004 SCC 5, [2004] 1 SCR 193, Major and Fish JJ. commented that “[t]he rule, although designed to provide fairness towitnesses and the parties, is not fixed.

The extent of its application is within the discretion of the trial judge after taking into account allthe circumstances of the case” (at para 65). See also: R v Maxie, 2014 SKCA 103 at para 44, 316 CCC (3d) 396. [52] Respectfully, I do not read the Trial Decision as saying anything that is inconsistent with this. The trial judge simply stated thathe struggled with what weight to give to Deanne’s evidence because he could not assess it against what the complainant might have said,given that she was not asked about it.

As already discussed, the trial judge ultimately concluded that, even if Deanne were to be believedon these points, it would not have impacted his conclusion as to Mr. Merasty’s guilt. As I see it, this is a conclusive answer to all of Mr.Merasty’s submissions under this head. D. Did the trial judge consider inappropriate matters when rejecting Deanne’stestimony? [53] Mr. Merasty’s final argument is based on the second set of reasons given by the trial judge for why he “struggle[d] with theweight to be given to Deanne’s evidence” (at para 51). He set these out in paragraph 52 of the Trial Decision.

Although this is quoted infull earlier in these reasons, for convenience I reproduce it again: [52] Second, Deanne’s testimony was littered with statements tending to support myths and stereotypes involving sexual assaultcomplainants, including that the complainant was annoying, pushy, loud and poorly-dressed. First, none of this evidence was probative onthe issue of communicated consent. Second, these statements tended to signal that Deanne may not be an unbiased witness. When taken

alone, these statements may not have undermined Deanne’s credibility. However, Deanne also stated her belief that “nothing happened”.She also acknowledged confronting the complainant after the incident and making her feel uncomfortable. [54] Mr. Merasty argues that this passage discloses that the trial judge misapprehended Deanne’s evidence and made credibilityfindings based on matters not in evidence. [55] A proper evaluation of Mr. Merasty’s arguments begins with a consideration of some further details of Deanne’s testimony.Her examination-in-chief was brief and to the point.

However, as part of a discursive narration of events, Deanne described how she hadgotten “a little irritated by [the complainant] because she kept repeating herself”, how she had become “a little annoyed by [thecomplainant] and her repetitive stories” and how she was “really annoyed with her”. This evidence easily justifies the trial judge’sunderstanding that Deanne had described the complainant as annoying. [56] Under cross-examination, and unprompted by any question that would obviously invite her testimony about such matters,Deanne volunteered all manner of details and information.

Some of these were the apparent source of the comments offered by the trialjudge that she viewed the complainant to be pushy, loud and poorly dressed. In this regard, Deanne had observed that “the clothes that [thecomplainant] was wearing wasn’t even hers” and that she had “borrowed clothes”. She described the pants the complainant had beenwearing as “pretty distinctive” and not a “nice pair”. She said that if she “was going to borrow clothes, those won’t be the pants I’dborrow”.

It is not hard to see why these and other many gratuitous details that she offered in her testimony “tended to signal that Deannemay not be an unbiased witness” (at para 52). I also agree with the Crown when it argues that it was open to the trial judge to interpretDeanne’s critical assessment of the complainant’s appearance and demeanor as “revealing an underlying belief that the complainant didnot fit within the expected ‘good girl’ persona of a sexual assault victim”.

This is not a far cry from several of the myths debunked in R vSeaboyer, (SCC), [1991] 2 SCR 577 at 652–653. [57] As I see things, the closest paragraph 52 comes to containing a misapprehension of the evidence is the statement by the trialjudge that Deanne testified that the complainant was pushy and loud. Deanne did not use these words in her testimony.

However, even ifthe trial judge misapprehended the evidence to this extent, I do not see in that a basis for appellate intervention. [58] The test for whether a misapprehension of evidence amounts to an error of law requiring appellate intervention was stated byDoherty J.A. of the Ontario Court of Appeal in Morrissey at 221: When will a misapprehension of the evidence render a trial unfair and result in a miscarriage of justice?

The nature and extent of themisapprehension and its significance to the trial judge’s verdict must be considered in light of the fundamental requirement that a verdictmust be based exclusively on the evidence adduced at trial. Where a trial judge is mistaken as to the substance of material parts of theevidence and those errors play an essential

part in the reasoning process resulting in a conviction then, in my view, the accused’sconviction is not based exclusively on the evidence and is not a “true” verdict. Convictions resting on a misapprehension of the substanceof the evidence adduced at trial sit on no firmer foundation than those based on information derived from sources extraneous to the trial. Ifan appellant can demonstrate that the conviction depends on a misapprehension of the evidence then, in my view, it must follow that theappellant has not received a fair trial, and was the victim of a miscarriage of justice.

This is so even if the evidence, as actually adduced attrial, was capable of supporting a conviction. [59] In Lohrer, Binnie J., speaking for the Supreme Court, agreed with Doherty J.A.’s observations (see para 1). As stated earlier, healso emphasized that Morrissey “describes a stringent standard”, that “must go to the substance rather than to the detail” (at para 2).Moreover, not every misapprehension of evidence justifies appellate intervention.

Rather, “to give effect to an appeal on this ground, atrial judge must be mistaken about the substance of material parts of the evidence and the misapprehension must play an essential

part inthe reasoning process” (R v Paproski, 2021 SKCA 65 at para 26, emphasis added). All of this is sometimes expressed as a two-part test,while other cases break it down into three separate steps. However it is organized, “the test is satisfied when the trial judge misapprehendsa material matter that goes to the substance of the evidence, and where that misapprehension plays an essential

part in the reasoningprocess leading to a conviction” (Haque at para 112). [60] In this case, if there is a misapprehension of evidence embedded in paragraph 52 of the Trial Decision, and I am far fromconvinced that there is, I am not able to see how it was substantive or played an essential

part in the trial judge’s reasoning process leadingto the conviction. I say this for three reasons. [61] First, the trial judge was undoubtedly correct in his observation that Deanne’s testimony on this point was not probative on theissue of communicated consent. [62] Second, the Crown rightly observes that the trial judge did not see these statements as, taken alone, undermining Deanne’scredibility. The heart of paragraph 52 is the trial judge’s

summary of the overall thrust of her testimony. Deanne had “stated her belief that‘nothing happened’” and had “acknowledged confronting the complainant after the incident and making her feel uncomfortable”. Thecontext for this

summary was Deanne’s agreement that, on two occasions when she had met the complainant since the incident, she hadnot “made that meeting pleasant for [the complainant]”. [63] Third, and conclusively, as I have already explained, the trial judge was convinced on the strength of the complainant’stestimony that the sexual encounter was non-consensual, even were he to believe Deanne on the things that she testified to. This is,therefore, not a case where there is ambiguity as to whether the trial judge’s decision was affected by the weight of this evidence.

Givenhis conclusion that he would have entered a conviction even if Deanne was to be believed, I am satisfied that any misapprehension of theevidence that may have occurred would have had no effect on the verdict. This distinguishes this case from others, such as R v Dorie, 2023SKCA 7 at para 40. [64] Considering all of this, I see no basis to find that the trial judge took into account inappropriate considerations when rejectingDeanne’s testimony. V. CONCLUSION

[ 65 ] For the reasons I have given, I would dismiss Mr. Merasty’s appeal from his conviction. Mr. Merasty has been on judicial interim release pending the hearing of his appeal. I would direct Mr. Merasty to present himself to the correctional facility from which he had been released no later than 4:00 p.m. on the third day after the release of this judgment to his counsel. “Leurer J.A.” Leurer J.A. I concur. “Schwann J.A.” Schwann J.A. I concur. “Tholl J.A.” Tholl J.A.