R v Purcell, 2023 SKCA 56

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in accordance with s. 486.4(1) of the Criminal Code directing that any information identifying the complainant shall not be published.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: CACR3565 Citation: R v Purcell , 2023 SKCA 56 Date: 2023-05-10 Between: Kyle Purcell Appellant And His Majesty the King Respondent Before: Jackson, McCreary and Drennan JJ.A.

Disposition: Conviction appeal dismissed; sentence appeal allowed in part Written reasons by: The Honourable Madam Justice Jackson In concurrence: The Honourable Madam Justice McCreary The Honourable Madam Justice Drennan On appeal from: CRM 5 of 2020 (Sask QB) and 2022 SKQB 66 , Melfort Appeal heard: November 30, 2022 Counsel: Thomas Hynes for the Appellant Grace Hession David for the Respondent Jackson J.A. I. Introduction [ 1 ] Kyle Purcell was charged with one count of sexual assault contrary to s. 271 of the Criminal Code and one count of assault contrary to s. 266 of the Criminal Code .

Both charges involved the same complainant and arose out of incidents that occurred on May 20, 2019. The trial proceeded in the Court of Queen’s Bench before a judge sitting without a jury. [ 2 ] Mr. Purcell was convicted of the sexual assault charge but acquitted of the assault charge: R v Purcell (5 October 2021) Melfort, CRM 5 of 2020 (Sask QB) [ Conviction Decision ]. He was sentenced to ten months’ incarceration, followed by two years’ probation: R v Purcell , 2022 SKQB 66 [ Sentencing Decision ].

The judge also ordered that he comply with the Sex Offender Information Registration Act , SC 2004, c 10 [ SOIRA ], for a period of 20 years. He appeals both his conviction and sentence. [ 3 ] For the reasons that follow, I conclude that the appeal from conviction should be dismissed. The sentence appeal should be allowed, but only to the extent of removing the SOIRA order. II. Background [ 4 ] K.M. (the complainant) and a police officer, who had interviewed the complainant on the day of the alleged offence, testified for the Crown.

Margaret Sullivan, who was the operator of a greenhouse where one sexual assault was alleged to have taken place, and Mr. Purcell testified for the defence. There were no witnesses to the alleged assaults. The essential evidence came from the complainant and Mr. Purcell. [ 5 ] The complainant was 19 at the time of the incidents and 21 at the time of trial. She had been in an on-again off-again relationship with Mr. Purcell since she was 17. Mr. Purcell was 32 when the assaults were alleged to have taken place and 34 at the time of trial.

The relationship started in a town in east-central Saskatchewan, but, by May of 2019, the complainant was living in Saskatoon and working at a restaurant. She had moved to Saskatoon for school and work and said Mr. Purcell had encouraged her to do so. Before she left, Mr. Purcell gave her a promise ring, which figures prominently in the evidence. [ 6 ] On May 18, 2019, the complainant was working an evening shift at her place of employment. She finished her shift and left with a co-worker. Apparently, Mr. Purcell had been watching from his vehicle and saw the two of them kissing.

What transpired thereafter is controverted. [ 7 ] The complainant described Mr. Purcell as being very angry and hostile and that he had aggressively removed the promise ring from her finger, among other forceful actions. He described matters differently. The trial judge did not find it necessary to specifically resolve the differences in their testimony in this regard, but it is common ground that (

a) Mr. Purcell reacquired the promise ring, (

b) the complainant spent the night at her co-worker’s home, and (

c) Mr. Purcell drove home, where he spent a large part of that night consuming alcohol and sending the complainant lengthy, vitriolic texts extending to 67 pages in length (when printed). During this time period, Mr. Purcell sent a picture of himself selling the promise ring on an online platform.

[8] The following morning, the complainant agreed to meet Mr. Purcell at a point halfway between Saskatoon and the town. Theinteractions between the two of them, when they met, constituted the basis of the sexual assault charge and the assault charge. [9] The complainant identified three locations where she was sexually assaulted. The trial judge described these as the“greenhouse incident”, the “bird sanctuary incident”, and the “abandoned house incident”. What happened at these places forms the basisof the s. 271 charge.

The complainant also described actions that, if proven, would have amounted to an assault, i.e., the s. 266 charge. [10] Mr. Purcell admitted that sexual acts occurred at each location, but he testified that the complainant consented to them. He alsodenied having assaulted her. [11] Since the complainant and Mr. Purcell agreed that acts of a sexual nature had occurred, the essential issues in relation to thatcharge were as follows: (

a) Did the Crown prove beyond a reasonable doubt that the complainant did not consent to those acts or any of them? (

b) Did the Crown prove beyond a reasonable doubt that Mr. Purcell did not have an honest but mistaken belief in communicatedconsent? [12] The trial judge answered both of those questions affirmatively and convicted Mr. Purcell accordingly. [13] With respect to the assault charge, the complainant testified that, on their way back from the abandoned house, Mr. Purcellpulled her head as if to strike the car window and rubbed the contents of a frozen slushie drink into her face. Mr. Purcell testified that itwas she who had struck him.

As to what had actually happened during this time period, the trial judge held that she had a reasonable doubtand acquitted Mr. Purcell of that offence. [14] I will review the relevant aspects of the trial judge’s reasons pertaining to each charge as I review Mr. Purcell’s grounds ofappeal. III. Analysis – Conviction Appeal A. Grounds of Appeal [15] Mr. Purcell’s grounds of appeal with respect to conviction may be summarized as follows: (

a) the trial judge did not properly assess the complainant’s evidence, including failing to appreciate the significance of someparts of it and failing to resolve what he alleges are inconsistencies in her testimony; (

b) the trial judge excessively relied on witness demeanour when assessing credibility; (

c) the trial judge misapplied the rule in Browne v Dunn (1893), 6 R 67 (HL); and (

d) the verdict is unreasonable because the conviction for sexual assault is inconsistent with the acquittal for assault. B. Assessment of the complainant’s evidence [16] In addition to being critical of the trial judge’s use of demeanour to determine whom to believe, Mr. Purcell challenges twospecific aspects of the trial judge’s credibility findings made in relation to the complainant. First, he argues that the trial judge failed toappreciate the significance of the greenhouse operator’s evidence that she had seen nothing out of the ordinary at the greenhouse on theday in question.

Second, he submits that the trial judge failed to assess the significance of the inconsistencies in the complainant’sevidence as it relates to the alleged sexual assault at the bird sanctuary. [17] I will address each argument in turn, but, before doing so, it is necessary to say a word about appellate review of a trial judge’sassessment of credibility.

The Supreme Court of Canada has repeatedly remarked on the significant deference owed on appeal tocredibility findings: R v Burke, (SCC), [1996] 1 SCR 474 at para 7; R v Gagnon, 2006 SCC 17 at para 10, [2006] 1 SCR621; R v R.P., 2012 SCC 22 at para 10, [2012] 1 SCR 746; and R v G.F., 2021 SCC 20 at para 81, 459 DLR (4th) 375.

The Supreme Courthas also demonstrated the application of that principle in numerous decisions including, most recently, in R v Quartey, 2018 SCC 59 atpara 2, [2018] 3 SCR 687; R v C.J., 2019 SCC 8 at para 2, [2019] 1 SCR 484; R v Kishayinew, 2020 SCC 34, 451 DLR (4th) 426; R vSlatter, 2020 SCC 36, 452 DLR (4th) 1; and R v Gerrard, 2022 SCC 13 at para 3, 468 DLR (4th) 389. [18] Much of this jurisprudence has already been reviewed in this Court: R v Leroux, 2015 SKCA 48, [2015] 9 WWR 709; R vDirksen, 2021 SKCA 6 at paras 80–81, 398 CCC (3d) 411; R v Adebogun, 2021 SKCA 136 at para 22, [2022] 1 WWR 187; R v VanDeventer, 2021 SKCA 163 at para 17, 407 CCC (3d) 291; and R v Arno, 2022 SKCA 55 at para 6.

While there has been significantSupreme Court jurisprudence since Leroux, the fundamental statement of the principle of deference has not changed. In that regard, it issufficient to note, as Caldwell J.A. did in Leroux, as follows: [29] A trial judge’s findings of credibility are subject to appellate deference, largely because the trial judge has the opportunity to see andhear the witnesses directly, which is said to be a formidable advantage: R v W.(R.), (SCC), [1992] 2 SCR 122.

As afinding of fact, a credibility assessment is not subject to appellate reversal unless it is the product of a palpable and overriding error:Housen v Nikolaisen, 2002 SCC 33, [2002] 2 SCR 235, and R v Gagnon, 2006 SCC 17, [2006] 1 SCR 621. [19] It is through this lens that I will review Mr. Purcell’s arguments that the trial judge’s assessment of the complainant’scredibility was flawed. I will also refer to certain of the above decisions in the course of these reasons.

1. The evidence of the greenhouse operator [ 20 ] Mr. Purcell’s argument is that the complainant testified she had been crying during the alleged assault but that the greenhouse operator, Ms. Sullivan, did not observe this. Mr. Purcell asserts that the trial judge impermissibly rejected this evidence, believing that it was directed at a myth or stereotype about how sexual complainants are expected to behave, rather than considering it for what it was, i.e., a way of challenging the credibility and reliability of the complainant’s testimony. [ 21 ] To address this argument, some further background is required.

During her testimony-in-chief, the complainant alleged that Mr. Purcell sexually assaulted her at their first stop on May 20, 2019, which was at a greenhouse. She testified that they had proceeded through three enclosures, where they looked at various plants and flowers, and then they arrived at a fourth area, which was essentially empty. She recounted what happened there in these terms: (

a) Mr. Purcell grabbed her and kissed her and she thought she kissed him back, (

b) he put both of his hands down her pants and grabbed her butt, (

c) he lifted her onto a shelf and made movements to “hump [her] a couple times”, (

d) she told Mr. Purcell to stop and pushed him away, and (

e) she was uncomfortable and started to tear up. As they were leaving, they spoke to greenhouse personnel for a short while. [ 22 ] In examination-in-chief, the complainant testified about tearing up: Q And once you did that, how were you feeling? A Invaded, scared. I was confused on why he wouldn’t stop and why he was so forceful on it happening. Like, why did he want that so bad? Q And how -- or were you expressing that, like, physically and visibly? A I said, No, multiple times. Could you repeat that? Q So did you express how you were feeling visibly? A He visibly knew I was scared. I was starting to tear up at this point. I was uncomfortable. [ 23 ] When Mr. Purcell testified, he said (

a) he had his hand in the complainant’s pants, (

b) in an empty room in the greenhouse, she turned around and kissed him, (

c) she bent over one of the empty tables and pushed her butt up against him, grinding into him, and said the table was “the perfect height”, (

d) he put his hands on her breasts at which point she slid down, which caused her bra to move up above her breasts, (

e) she then walked away from him and flashed him by lifting her shirt (at which point, he picked her up and put her on another table and described it as being the perfect height), and (

f) he then admitted to humping her. He said that all of this took place with her full consent. Since people were coming, he said it was he who stopped the activity, and they then left the area. He agreed with the complainant that, as they walked around the enclosures, they met one of the greenhouse operators and spoke with her. [ 24 ] Ms. Sullivan, who was working that day, was called by the defence. She said the RCMP spoke to her, but she had observed nothing remarkable. Her evidence on point is as follows: Q Has anyone else come to speak to you about the events of that day? A Yes.

The RCMP came and spoke to us after a complaint was made, and asked us if we had seen or heard anything. And we answered to the negative; we hadn’t noticed anything going on. Q So, then, there was no complaints or no -- nothing showing up on videotapes or anything like that? A … What we have is a bunch of old ladies that work for us, and they’re pretty snoopy. If anything goes on, they usually know about it straightaway. [ 25 ] In oral and written argument, Mr. Purcell’s counsel identified a list of what he called inconsistencies in the complainant’s evidence.

When the trial judge was reviewing this list, she referred to Ms. Sullivan’s evidence, saying the following: Another example [of an inconsistency raised by the defence]: [the complainant] testified that she cried at the greenhouse, and yet she talked to Mrs. Sullivan who testified that she noticed nothing out of the ordinary that day. If the purpose of Mrs. Sullivan’s evidence is to suggest that because she didn’t notice anything out of the ordinary, [the complainant] could not have been upset about what occurred. I reject that contention.

Courts have consistently rejected the assumption that a victim of a sexual assault must act in a particular way to be believed. The fact that Mrs. Sullivan didn’t notice anything out of the ordinary does not speak to whether or not a sexual assault occurred, and I find her evidence to be irrelevant. [ 26 ] Mr. Purcell submits that the trial judge missed the point. He claims that she failed to appreciate the relevance of Ms. Sullivan’s evidence. He asserts that the purpose of her testimony was not to suggest that because Ms.

Sullivan did not notice anything out of the ordinary, the complainant could not have been upset about what had occurred. Rather, he says the defence called her to testify for the purpose of demonstrating that she did not notice anything out of the ordinary because the complainant was not upset and therefore the complainant was not being truthful in her evidence when she said she was. [ 27 ] In support of this argument, Mr. Purcell relies on R v Roth , 2020 BCCA 240 at paras 125 and 129–130 , 66 CR (7th) 107.

Roth holds that evidence that might carry “impermissible reasoning” with it does not get struck from consideration “for all analytical purposes (assuming the evidence surrounding that behaviour is properly before the court)”; rather, the evidence may “have a permissible role to play … in assessing the evidence as a whole” (at para 130). [ 28 ] Here, according to Mr. Purcell, the trial judge viewed Ms. Sullivan’s evidence as raising impermissible myths and stereotypes. Paraphrasing paragraph 130 of Roth , Mr. Purcell says, in his factum, that it was an error for the trial judge not to have considered “Ms.

Sullivan’s evidence as part of the actual factual mosaic”. [ 29 ] In my opinion, Roth is not applicable to this case for two reasons. First, the issue of whether the complainant had been crying was linked to other questions that the trial judge appropriately found in the Conviction Decision to run “perilously close to engaging the twin myths and pigeonholing how a victim of a sexual assault should have reacted”. In the cross-examination of her, this is the exchange regarding the tears and the subsequent encounter with Ms. Sullivan:

Q Now, before leaving the greenhouse -- let me back up a second. You testified this morning that this was a -- such a traumatic experience for you that -- that you were tearing up and that you were crying in the greenhouse. Can you tell me how much you were crying? Like, were you -- A I started to tear up in the back room, and it’s quite a ways away from the front. And by the time I got up towards the front, my tears were gone, and they didn’t go down my face. They just teared up my eyes. Q Now, was it just crying, or was it, like … A Just crying. Q And when you cried, your eyes were red, probably? A Not always.

Q Okay. A Sometimes. Q So when you were leaving, you -- you stop and you talk to the owners. Do you recall what you said to them? A No, it was just a civil conversation with the lady about the weather or something completely irrelevant. Q Do you remember her name? A No. I don’t even think we got her name. Q And then, after you left the greenhouse, you indicated that Kyle asked you to go for a ride? A Yes. [ 30 ] There then followed an objection by Crown counsel to that line of questioning and the response of Mr.

Purcell’s counsel to this effect: So my suggestion isn’t that there is an -- or that she has an obligation to report anything, but I think it’s relevant for the purpose of adjudicating this -- this decision, particularly with reliability and credibility, if she has the opportunity to tell someone, I need help. Even if it’s not even sexual, it’s just assault, or anything. But the fact is she did nothing .

And I just want to get on the record that she -- she could have talked to her [the greenhouse operator], because I’m following up by suggesting that she could have got into her own car and drove home, and she didn’t. (Emphasis added) [ 31 ] The trial judge did not rule on the issue of the appropriateness of this line of questioning, leaving it for oral argument. Then, when defence counsel made his final submissions, he returned to the effect of Ms.

Sullivan’s remarks, submitting as follows: Margaret Sullivan, the owner of the greenhouse, stated that the greenhouse opens in early May and closes at the end of June; that it was busy on May 20th; that she had all 11 of her staff, not including her or her husband, working on that day. She said that the RCMP spoke with her after a complaint was made and that she met with all of the staff members individually and as a group, and nobody noticed anything out of the ordinary on that day . [The complainant’s] statement that she cried in the greenhouse is not reliable, either . No workers noticed anything that day.

She held Mr. Purcell’s hand on the way out. Although she states their hands weren’t interlocked as they left, they held hands , and she got in Mr. Purcell’s car after they left the greenhouse. She had the opportunity to get into her own car and leave and chose not to do so. I invite the Court to find that the Crown has not proven beyond a reasonable doubt that [the complainant] was sexually assaulted in the greenhouse. (Emphasis added) [ 32 ] From this, it appears that defence counsel was making four points: (

a) no one at the greenhouse saw anything out of the ordinary on the day in question; (

b) no workers saw the complainant crying; (

c) the complainant and Mr. Purcell were holding hands on the way out of the greenhouse; and (

d) the complainant had the opportunity to get into her own car and leave and she did not do so. From this, the trial judge was invited to conclude that the complainant’s evidence, as to whether she had consented to the sexual acts, was not credible. [ 33 ] However, defence counsel had rolled the tears-no-tears issue in with other questions and arguments that inappropriately raised the twin myths about how sexual assault victims respond and act. It is this that the trial judge was addressing when she said, “ If the purpose of Ms.

Sullivan’s evidence is to suggest that because she didn’t notice anything out of the ordinary, the complainant could not have been upset about what occurred. I reject that contention” (emphasis added).

Read in context, this was an entirely valid comment to make: see Adebogun , where the Court confirmed that 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 to undermine or support the witness’s evidence” (at para 23). [ 34 ] The second reason why this ground of appeal must fail is that there is, in fact, no inconsistency between the complainant’s evidence and that of Ms. Sullivan’s.

The complainant testified that she began to tear up as to what had occurred in the empty back room of the greenhouse. However, the complainant did not say she was crying when they met up with Ms. Sullivan. She said they had “a civil conversation with the lady about the weather or something completely irrelevant”. Further, it appears the trial judge accepted that testimony when recounting her evidence on point: “On cross-examination, [the complainant] testified that she was tearing up, but that by the time they were at the front of the greenhouse, the tears were gone.

She described the conversation with the greenhouse owner as a civil conversation”.

[ 35 ] I find there is no merit to this ground of appeal. 2. The bird sanctuary incident [ 36 ] It is common ground that the complainant had agreed reluctantly to meet Mr. Purcell on the day in question. Mr. Purcell asked her repeatedly to do so. She finally did accept. His grandmother had passed away the night before, and he told her that he needed “hugs”, which he qualified with an adjective formed from her name. [ 37 ] As they were leaving the greenhouse, Mr. Purcell invited the complainant into his car.

It is at this point that she continued the narrative with her examination-in-chief as to what happened next: A As we were leaving the greenhouse, we had a little conversation with the greenhouse lady, a normal conversation, a civil conversation. Nothing was said. And then we left the greenhouse, and we were in his car, and I think at this point, I’m having a couple pieces of honey garlic [chicken wings], and I don’t have my phone because I left my phone in my car. And I didn’t even know I didn’t have my phone until later on. And when I’m eating my food, Kyle’s like, Let’s go for a ride.

So I said, Yeah, sure, let’s go for a ride. And he takes me directly across the greenhouse. It’s directly south of the greenhouse, right across the highway, and if you go on that road, it goes to a dead end. And I think there’s a -- a sign for a wildlife sanctuary, and that’s where we parked. And we parked with his back end in and we put the windows down and the sunroof down because he doesn’t have air conditioning and it was a hot day. And we recline our chairs, and then he asks for a hug, and I give him a hug because he needed a hug.

And then he starts making the motions like he’s pulling my butt towards him and, like, he’s grabbing my shoulder and everything for me to move closer to him, and I thought that that was just for the hug. So I was helping him, and I was coming towards him, and I was hugging him. And then he was putting his hand down my pants, and he undid my buttons and he took my zipper down. And I said, Stop, Kyle. I said, No. I said, No, this isn’t what I’m here for. You wanted me here for hugs, this -- and support. I said, Is this what you wanted me here for? Is all you wanted me here for is sex? And he bluntly said, Yeah.

And then I stopped for a second, and then I said, Did he just say that? But he did. He verbally said, Yes, all you’re here for is sex. And I asked him that again later on. So while we’re at this wildlife sanctuary, we’re laying down, and that’s when he kissed me and he tried multiple times to get my pants down in the car. And I just kept -- kept saying, Stop, and, I don’t want to do it. If you want me for a hug, I’ll give you a hug. Like, I -- no, stop. And I said, Take me back to my vehicle.

I started crying and went to the other side of the car. [ 38 ] Later, Crown counsel took the complainant back to this part of her testimony where she described, in greater detail, what happened in the car at the bird sanctuary: A Kyle pulled my hand and my shoulder, and he was pulling me over to hug him and to come over. So I helped him by moving myself, because there’s a gear shift there, and I didn’t want to get hurt. So I help him, and I’m, like, moving over, and I had my left leg beside him, and I had my arms around him, and we were hugging.

And then he started to put his hand down my pants again. … A I was parallel. We -- our seats were reclined, and his right hand would have been pulling me over, so my body would have twisted, my legs still being in the bottom of my passenger’s side, but my knee being on part of his chair, part of mine, and then my arms around him. [ 39 ] In cross-examination, with specific reference as to how she had described the incident in the paragraphs immediately above, Mr. Purcell’s counsel suggested to the complainant that she had said something different at the preliminary inquiry than what she said at trial.

These are the two exchanges on point: Q Okay. And did this car have a centre console? A It had a -- he has -- it’s a standard, so it had a gear shift. That’s what was in the way. Q At any point, were you straddling him ? A I don’t remember. I don’t think I was, but I don’t remember . Q Do you recall laying in the driver’s side seat with your back to Kyle’s stomach at any point? A No. Q And did Kyle have his hands on your bum when you were kind of hovered above the gear shift?

A Yes. That’s when he was hugging me. We were having the hug that I thought that I was giving him for his grandma’s passing. And then he went down and touched my butt and put his hand in my pants, and that’s when I went back to my seat and I pulled -- pulled my pants up again and told him to stop. I said, Not -- not right now. Is this all I’m here for? And he said, Yeah. And then we were quiet for a moment. Q You testified about 3 minutes ago that both of your seats were reclined. A Yeah.

Q So explain to me, if you’re hovering over the gear shift with one knee on his seat and … one knee on his -- on yours, and he’s lying down, how is he grabbing you? A His hand is reaching over while I’m leaning over to -- to give him a hug, because my legs are still on my passenger’s side, which indicates that I’m twisting my body so that I can hug him. He’s grabbing my butt and putting his hand down, and then he’s pushing hands down his -- down my pants, and I’m still on [the] passenger’s side. Q So you’re suggesting he was sitting up a little bit? A Pardon?

Q He was sitting up a little bit; is that what you’re saying? A Well, as his -- his seat’s reclined, he’s a bigger guy, and he’s not laying all the way back. So for him -- for me to lay on him, he’s not completely reclined. He’s a little bit up from me. He’s -- I’ve got about a foot distance between the seat and where I’m hugging. So it wouldn’t be flat. … Q So, earlier today, I asked you if you were straddling Kyle in the vehicle at the bird sanctuary, and you said no. … Do you recall suggesting something different at the preliminary hearing ? A Don’t remember. I don’t remember the straddling.

I don’t know . … THE COURT: So now you’re going to put a particular portion of the transcript to [the complainant]? [DEFENCE COUNSEL]: Yes. I’m going to have her read just the first six lines of the page. … And then six and seven. A Yes. It also says, I don’t think I was. It must have been not clearly said. It says, strangling [sic] or -- strangling [sic] or strangling [sic] him, and I was. I said, I had my legs on the one side of him. They weren’t around him . Q Yes. And then, on paragraph -- or line 6? A Were they around him at any point? I do not remember my legs being around Kyle Purcell.

I do not remember that . Q Okay, so this was incorrect ? A I don’t know. I just -- Q Just -- A I don’t remember now, because it’s been two-and-a-half years. I don’t remember things because I’m trying to just block that day out of my head, so things aren’t going to be as clear. But I don’t remember . (Emphasis added) [ 40 ] In his closing submissions, Mr.

Purcell’s counsel urged the trial judge to find that the complainant consented to the sexual touching that took place in the car at the bird sanctuary, in part because of what he perceived to be her concession regarding straddling : [Defence counsel:] During [the complainant’s] cross-examination, she conceded that she and Mr. Purcell started kissing and cuddling, and Mr. Purcell’s hands were on her bum. Although she says that it was a grandma-being-sick kiss, I invite the Court to accept that [the complainant] only stated [No] when Mr.

Purcell unbuttoned her pants, at which point [the complainant] went back to her seat and told him to stop. She did not say no to Mr. Purcell touching her bum. Rather, she continued to kiss Mr. Purcell, as indicated in at least one version of events [the complainant] portrayed to the Court, and the only version that Mr. Purcell provided. Additionally, in [the complainant’s] preliminary inquiry, she states at T21, lines 5 and 6, that her legs were to either side of Mr. Purcell when he was kissing her. However, during her cross-examination, she states she could not remember what happened.

She did concede this crucial piece of evidence that she made during the preliminary inquiry . I invite the Court to infer that [the complainant] did not concede this point because she knew it would damage her case, and to accept that [the complainant’s] legs were on either side of Mr. Purcell, straddling him, when the two were kissing, which further solidifies that [the complainant] consented to Mr. Purcell touching her bum , but not to sex. I submit that [the complainant] consented to … Mr. Purcell touching her bum in the car because she only voiced her objection when Mr.

Purcell unbuttoned her pants; only objected to sex, not to Mr. Purcell touching her bum; she got off Mr. Purcell and sat on her own seat after she objected, preventing Mr. Purcell from further touching her; and then inexplicably went back into Mr. Purcell’s seat and continued to kiss and cuddle Mr. Purcell while he was touching her bum. (Emphasis added) [ 41 ] The question of this perceived inconsistency was not a specific issue the trial judge reviewed in her reasons. The trial judge

addressed these particular aspects of the complainant’s testimony only: (

a) whether the complainant and Mr. Purcell were in a relationship when they agreed to meet on May 20, 2019; (

b) the greenhouse incident discussed above; and (

c) why the complainant called Mr. Purcell upstairs in the abandoned house, which was where the third incident was said to haveoccurred. [42] Mr. Purcell submits that it was an error for the trial judge not to discuss the physical straddling issue he had raised. He submitsthat the quotation above, where the complainant said, “I don’t know”, upon being shown her preliminary inquiry testimony, was relevantto the assessment of the complainant’s assertions of non-consent.

In support of this proposition, he again relies on Roth, where the BritishColumbia Court of Appeal refers to the need to consider the totality of the evidence: [100] Whether a judge accepts an assertion of non-consent is “a matter of credibility to be weighed in light of all the evidence includingany ambiguous conduct” (Ewanchuk [ (SCC), [1999] 1 SCR 330] at para. 30).

As such, in defending a charge of sexualassault, it “is open to the accused to claim that the complainant’s words and actions, before and during the incident, raise a reasonabledoubt against her assertion that she, in her mind, did not want the sexual touching to take place” (at para. 29). In deciding that claim, thetrial judge will consider “whether the totality of the complainant’s conduct is consistent with her claim of non-consent” (at para. 30). [43] In my view, in finding the complainant to be credible, the trial judge did not err by not specifically addressing this aspect of thecomplainant’s evidence.

I arrive at this conclusion for two reasons. [44] First, a trial judge “is not required to comment on, much less resolve, every inconsistency in the evidence” (Dirksen at para 80).Here, the trial judge was aware that there were other inconsistencies, and she made it clear that she was not going to review all of them:“The defence attempted to cast [the complainant’s] credibility and evidence in a negative light because of what they characterize assignificant inconsistencies in her evidence. I’ll highlight just a few and add my comments” (Conviction Decision).

It was at this point thatshe reviewed the three examples mentioned above: (

a) whether Mr. Purcell and the complainant met up as friends or as intimate partners,(

b) Ms. Sullivan’s evidence, and (

c) why the complainant agreed to go to the abandoned house. After reviewing these points ofinconsistency, she observed, “These are not the only inconsistencies that the defence pointed to, but rather just what I would consider to bea representative sampling”. [45] The second reason that I am not persuaded as to the merit of this argument is that, like the preceding ground of appeal, it ishighly questionable whether there is an inconsistency that required resolution. The following comparison shows (

a) the preliminaryinquiry testimony with the important passages in italics, and (

b) how the complainant read those same parts at trial, again, in italics,coupled with her explanatory additions: (

a) Preliminary Inquiry Testimony (

b) Trial Testimony THE COURT: So now you’re going to put a particular portion of the[preliminary] transcript to [the complainant]? [DEFENCE COUNSEL]: Yes. I’m going to have her read just thefirst six lines of the page. …Q Fair enough. When you were speaking earlier about being pulledclose to him and – and the saying “No”. This occurred while youwere already straddling him; is that correct? A I don’t think I was strangling (sic) -- or, straggling (sic) him; I was-- I had my legs on the side of him; they weren’t around him. A Yes. It also says, I don’t think I was. It must have been not clearlysaid.

It says, strangling (sic) or -- strangling (sic) or strangling [sic]him, and I was. I said, I had my legs on the one side of him. Theyweren’t around him. Q Yes. And then, on paragraph -- or line 6?Q Were they around him at any point? A Yes, to kiss him, and that’s when he put his hands down my pantsto feel my butt. A Were they around him at any point? I do not remember my legsbeing around Kyle Purcell. I do not remember that. Q Okay, so this was incorrect? A I don’t know. I just -- Q Just -- A I don’t remember now, because it’s been two-and-a-half years.

Idon’t remember things because I’m trying to just block that day outof my head, so things aren’t going to be as clear. But I don’tremember. [46] In the above exchange in cross-examination, the complainant did not remember what she had said at the preliminary inquiryabout having one leg on either side of Mr. Purcell when she was kissing him, but the complainant never denied, in any of her testimony,that they had been in close proximity and kissing. That was not at issue. Nowhere in her testimony did the complainant admit to astraddling position.

Further, given her seeming inability to say the word straddling, it is uncertain from the preliminary inquiry transcriptthat she understood either the question or the word in 2020. With this comparison in mind, the complainant’s comments of, “I don’tknow” or “I don’t remember” were not of such a nature that they needed specific mention or resolution.

[47] Finally, I note that it was not Mr. Purcell who said she had straddled him. It was defence counsel who used that word.Mr. Purcell simply testified to the following: We reclined our seats. We sat there for, I don’t know, a couple of minutes, and we were -- we were kissing and -- and hugging. And -- and, at that point, [the complainant] climbed on top of me, and we were kissing, and I had my hands on her butt. And, eventually,the -- she rolled over top -- or she rolled over and we were laying -- or, at that point, she was -- her stomach was facing my stomach.

Andthen, after a couple minutes of kissing, she rolled over, and her back was laying on my -- my stomach. … and I went to go -- I was going to make a move to go into her pants, and I put my hand down and tried to undo her button of her pants.… And -- and she said, No … and she jumped off and she got into her seat. [48] It is for these reasons I conclude that the trial judge’s credibility findings are not undermined by her decision not to addressspecifically this one aspect of the complainant’s evidence. C. Witness demeanor [49] Mr.

Purcell asserts that the trial judge took the wrong approach to demeanour evidence. Counsel for Mr. Purcell submits in hisfactum that “[d]emeanor is a notoriously unreliable predictor of the accuracy of the evidence given by a witness”. In support of thisproposition, he relies on R v Rhayel, 2015 ONCA 377, 324 CCC (3d) 362, and R v Hemsworth, 2016 ONCA 85 at paras 44–45, 334 CCC(3d) 534. [50] In both Rhayel and Hemsworth, the Ontario Court of Appeal set aside convictions for sexual assault and, in doing so,commented about the use of demeanour in assessing credibility.

Justice Epstein, writing for the Court of Appeal in Rhayel, observed asfollows: [85] … It is now acknowledged that demeanour is of limited value because it can be affected by many factors including the culture of thewitness, stereotypical attitudes, and the artificiality of and pressures associated with a courtroom.

One of the dangers is that sincerity canbe and often is misinterpreted as indicating truthfulness. [51] In light of her review of the authorities, Epstein J.A. went on to say, “it is important for trial judges to bear in mind that, to theextent possible, they should try to decide cases that require assessing credibility without undue reliance on such fallible considerations asdemeanour evidence” (at para 89). [52] In Hemsworth, Epstein J.A., again for the Ontario Court of Appeal, discussed the role of demeanour in assessing a witness’scredibility: [44] This court has repeatedly cautioned against giving undue weight to demeanour evidence because of its fallibility as a predictor of theaccuracy of a witness’s testimony: Law Society of Upper Canada v.

Neinstein, 2010 ONCA 193, 99 O.R. (3d) 1, at para. 66; R. v. Rhayel,2015 ONCA 377, 324 C.C.C. (3d) 362. As I indicated in Rhayel, at para. 85, “[i]t is now acknowledged that demeanour is of limited valuebecause it can be affected by many factors including the culture of the witness, stereotypical attitudes, and the artificiality of and pressuresassociated with a courtroom”. [45] Although the law is well settled that a trial judge is entitled to consider demeanour in assessing the credibility of witnesses, relianceon demeanour must be approached cautiously: see R. v.

S.(N.), 2012 SCC 72, [2012] 3 S.C.R. 726, at paras. 18 and 26. Of significance inthis case is the further principle that a witness’s demeanour cannot become the exclusive determinant of his or her credibility or of thereliability of his or her evidence: R. v. A.(A.), 2015 ONCA 558, 327 C.C.C. (3d) 377, at para. 131; R. v. Norman (1993), (ON CA), 16 O.R. (3d) 295 (C.A.), at pp. 313–14. [53] In the case at hand, the Crown relies on this Court’s decision in R v Pelletier, 2019 SKCA 113 at paras 117–119, 381 CCC (3d)487.

In Pelletier, Ottenbreit J.A. refers to R v R.D., 2016 ONCA 574, 342 CCC (3d) 236, where Laskin J.A., for the Ontario Court ofAppeal, summarized the relevant law with these words: “As long as a trial judge does not unduly rely on demeanour to make a credibilityfinding, the trial judge will not fall into error” (at para 25).

In similar vein, in R v TR, 2016 ABCA 355, the Alberta Court of Appeal, in aper curiam decision, wrote, “There are cases cautioning against overreliance on demeanour when assessing credibility, but the law inCanada continues to recognize that demeanour during testimony is a legitimate consideration” (at para 20). [54] Importantly, each of Rhayel, Hemsworth, Pelletier, R.D. and TR maintain that “[d]espite academic and judicial commentarysuggesting demeanour evidence is unreliable, under Canadian jurisprudence it remains relevant to the assessment of a witness’scredibility” (R.D. at para 25).

These cases follow R v N.S., 2012 SCC 72 at paras 25–26, [2012] 3 SCR 726, where the Supreme Courtconfirmed the continuing relevance of demeanour to the assessment of witness credibility. [55] That said, I believe that all of these decisions stand for the proposition that a trial judge must be cautious about assessingcredibility solely on the basis of demeanour. It is also true to say that an appellate court will not intervene with respect to a trial judge’s useof such evidence unless their reasons show undue reliance on demeanour in determining whom to believe.

Finally, it must be remembered,as part of the appellate analysis, that demeanour is an aspect of credibility, which remains a finding of fact, reviewable on the palpable andoverriding error standard: Housen v Nikolaisen, 2002 SCC 33, [2002] 2 SCR 235, Gagnon at para 10, N.S. at para 25 and Leroux atpara 29.

With the law thus stated, the analysis of such decisions as Rhayel, Hemsworth, Pelletier, R.D. and TR is a matter of assessing theapplication of the principles in each decision. [56] For example, in Rhayel the appellate court allowed the appeal from conviction for three interrelated reasons, including“overemphasizing the complainant’s demeanour” (at para 107), but a significant aspect of the case was that, by the time of trial, thecomplainant had passed away. Given this, she could not be called as a witness, and her testimony could not be tested through cross-examination.

The trial judge assessed the complainant’s credibility from her videorecorded statement to the police only. In addition, thetrial judge had admitted the video recording for the truth of its contents.

[57] The Ontario Court of Appeal in Rhayel held that the trial judge had taken “an overly confident view of his ability to assess thecomplainant’s credibility by reference to her demeanour” (at para 93). Justice Epstein went on to write, “This reliance is particularlytroubling in the circumstances of this case because the demeanour assessment was based on evidence that was not subjected tocontemporaneous cross-examination, further weakening any possible value it had in assisting the trial judge [to] evaluate thecomplainant’s credibility” (emphasis added, at para 93).

Nonetheless, Epstein J.A. recognized that it was still necessary to consider themateriality of the error in the particular circumstances of the case, including the fact the trial judge had entered the video recording for thetruth of its contents.

Overreliance on demeanour evidence mattered in the case before her. [58] Similarly, in Hemsworth, the Ontario Court of Appeal recognized that the trial judge was “entitled to consider the appellant’sdemeanour in assessing his credibility” but held that he had erred by “considering factors that had little, if any, evidentiary foundation, andby generally over-emphasizing how the appellant appeared in the witness box” (at para 50).

Justice Epstein also observed that “the errormust be material” (at para 51). [59] In the appeal before this Court, the trial judge considered demeanour, but I am not persuaded that she overemphasized it. Inrelation to the complainant’s evidence, the trial judge wrote as follows (Conviction Decision): I’ll first address the question of whether [the complainant] was a credible witness from a demeanour point of view. In so doing, I whollyrecognize that whether or not a witness appears to be credible when testifying, cannot be a deciding factor. It cannot be considered inisolation.

However, it is nonetheless one factor that I do consider. Based upon her demeanour, I found that [the complainant] was a credible witness. She was forthright and compelling. There was no hint ofmanipulating her evidence to reach a particular result. Where she became very animated and emotional, when her emotions were raw,indeed angry at times, she remained a credible and believable witness. Though there were some inconsistencies in her evidence, suchinconsistencies were on what I would consider to be minor or peripheral issues.

On the evidence that is critical to the requisite elements ofthe offences, however, her evidence was consistent and forthright. [60] The trial judge also found demeanour to be a factor in her analysis of Mr. Purcell’s evidence. She said this: Moving on to Kyle: I did not find him to be a credible witness. Not surprisingly, much of the Crown’s cross-examination of Kyle wasfocussed on his texts to [the complainant]. She had him read aloud numerous excerpts from P-1. Kyle had what might be characterized asinappropriate responses while reading the texts aloud, smiling, and at times laughing.

However, Kyle testified that these are tics of sorts,that he exhibits when he is nervous or anxious or defensive. The defence submits that Kyle’s credibility should not be negatively impactedas a result of these reactions. I’ve already stated that credibility should not be determined solely by a witness’ demeanour on the stand. I also accept that the laughingand smiling may have been the result of tics, and I do not discount his credibility on that alone.

However, even if I accept that his oddbehaviour, while reading the texts, was a result of tics, I am troubled by the fact that Kyle appeared to be completely unphased whilereading them. The blasé and lackadaisical attitude that he displayed while testifying about the texts was disconcerting and, frankly,bizarre. I did not get the sense during his testimony that he had any level of understanding whatsoever of the gravity of his communications with[the complainant].

Further, the tone and tenor of his texts fly in the face of his assertion that he was not angry with [the complainant]; hewas just emotionally hurt. … Although much of Kyle’s evidence overlaps with that of [the complainant], where it does depart, I found his evidence to be deliberatelyand carefully designed and crafted to paint [the complainant] as a willing participant, and in fact the initiator of at least some of the sexualactivity throughout the day. His evidence came across as rehearsed and insincere.

In other words, I was left with the strong impression thatKyle was not truthfully and objectively relating what occurred, but rather was manipulating his evidence to tell a story that supported hisdefence. Put frankly, I did not believe him. [61] Mr. Purcell’s counsel on appeal stresses that those paragraphs reveal reversible errors. But the trial judge prefaced her remarksby instructing herself as to the proper approach to apply to the evidence of both the complainant and Mr. Purcell.

In that regard, sherepeated what she had said earlier about the burden on the Crown to prove all elements of the offence beyond a reasonable doubt. She alsodiscussed the distinction between credibility and reliability: As the trial judge I must assess the evidence, the totality of the evidence and determine whether I find it to be credible. Determination ofwhether a witness is credible is not a rote task. Further, I must not stop at credibility when assessing the evidence of the witnesses. Awitness must also be reliable. And credibility and reliability, though intertwined, do not always go hand-in-hand.

Credibility cannot simplybe a proxy for reliability. [62] The trial judge then reviewed the evidence of the complainant and Mr. Purcell in some detail, indicating that, for the most part,the evidence overlapped. After demonstrating where the evidence converged on the sexual acts having taken place, the trial judgereturned to the task of assessing credibility: Assessing credibility and reliability is not and cannot be a scientific endeavour. A judge cannot simply employ a formula or an equation toassess credibility and reliability with any sort of mathematic precision. As the Supreme Court noted in the R. v.

Gagnon case, 2006 SCC17 , 2006 1 SCR 621, at paragraph 20, quote: It is very difficult for a trial judge to articulate with precision the complex intermingling of impressions that emerge after watching andlistening to witnesses and attempting to reconcile the various versions of events. A final point on credibility and reliability: the fact that a witness’ evidence may appear to be credible and reliable and able to withstandscrutiny when considered in isolation, testimony is not to be assessed in such a fashion. Rather, as stated in the R. v. Hoohing decision,

2007 ONCA 577, at paragraph 15: A jury does not consider -- and in this case it would be the judge as the trier of fact -- -- does not consider an accused’s version of events in isolation as if the Crown had led no evidence. When the jury is applying the firsttwo prongs of the three-prong test in W.(D.) [ (SCC), [1991] 1 SCR 742], they’re deciding whether they accept theaccused’s version of events or whether it leaves them with a reasonable doubt. Clearly, they can only do that by assessing the accused’sevidence and the other evidence that favours the accused in the context of all the evidence.

The evidence of any witness, including anaccused, may be believable standing on its own, but when other evidence is given that is contradictory or casts doubt on the accuracy orreliability of the witness’s evidence, that evidence may no longer be believable, or in the case of an accused may no longer raise areasonable doubt. And this quote was referred to with approval by our Saskatchewan Court of Appeal (sic) in R. v.

Poitras, 2015 SKQB 341, at paragraph50. [63] It was then that the trial judge began her credibility assessment of the complainant (repeated here for reference): “I’ll firstaddress the question of whether [the complainant] was a credible witness from a demeanour point of view. In so doing, I wholly recognizethat whether or not a witness appears to be credible when testifying, cannot be a deciding factor.

It cannot be considered in isolation.However, it is nonetheless one factor that I do consider”. [64] After commenting that the complainant’s demeanour supported a finding of credibility, the trial judge did not stop there. Shereviewed the ways in which counsel for Mr. Purcell had suggested the complainant was not credible “because of what they characterize assignificant inconsistencies in her evidence”. In my analysis of that ground of appeal above, I have reviewed that aspect of the trial judge’sreasons. The point here is that the trial judge did not rely on demeanour only.

She addressed the inconsistencies in the complainant’stestimony and also how her evidence and that of Mr. Purcell’s fit together. [65] With respect to the role that demeanour played in assessing Mr. Purcell’s evidence, the trial judge reiterated that “credibilityshould not be determined solely by a witness’ demeanour on the stand”. She also did not rely solely on his demeanour in assessing hiscredibility. In that regard, the juxtaposition of what he had written in the texts of the night before the incidents undercut much of what hesaid on the stand.

The trial judge reviewed some of those texts in these passages: In terms of the tone and tenor of his texts, I am going to quote just a few sections of the text conversation. On what’s labelled as page 5: Just so you know my bubba thought you were a whore, too. She never liked you ever. And I understand we’re officially never ever goingto do this again, but I wanted you to know you are not welcome at her funeral either. At page 16: So stop the messages and fuck off like a good whore does. Ugh, what other shit can I say? Well, I wanted to make porn with you because Iknow you’re a cheating whore. LOL.

I figured, why not make sex videos with this slut, not for a second I thought you weren’t a cheatingwhore, so we’re both on the same page, you’re weak as fuck. Move cities doesn’t change the whore inside. Page 21: I honestly wish you’d just kill yourself, but like I said before, you’re too much of a pussy, and now you have so much more to live for withnew dick. I honestly don’t feel this message captures the hate I have for you. There is only one thing I can think of doing that would makeme hate you as much. Again, the tone and tenor of his texts fly in the face of his assertion that he was not angry.

I do not look at those texts as proof of any of theelements of the offence because the alleged offence did not happen until the next day, but it does provide context. (Emphasis added) [66] Further, with regard to Mr. Purcell’s persistence, the trial judge observed, “no doesn’t mean try harder. No doesn’t mean tryagain later … doesn’t mean keep asking and maybe she’ll give in. And silence doesn’t mean yes. … [T]he next time he touched her, hedidn’t -- he wasn’t respecting that no” (Conviction Decision). In this, with his repetitive actions at three separate locations, Mr.

Purcellundermined his own assertions that the complainant had consented to sexual acts: (

a) with respect to the bird sanctuary incident, Mr. Purcell testified to the complainant’s stating she did not want to have sex –“And -- and she said, No, like, we’re not having sex. And -- and she jumped off and … she was upset about it”; and (

b) with respect to the abandoned house incident, Mr. Purcell spoke to a further expression of a lack of consent – “On the wayback to my car, I -- I asked her if she wanted to have sex, and she replied with, No. … And we got back in my car … [S]o we didn’t reallyhave much of a discussion there about that. … I think she was annoyed at that point. I was annoyed”. [67] Other examples can be found in the transcript where Mr. Purcell called into question his own credibility. The following fewexamples, taken from the Crown’s factum, demonstrate how Mr.

Purcell provided inconsistent answers in cross-examination, as opposedto what he had said examination-in-chief: (a) “Crown counsel asked [Mr. Purcell] to read a text that he had sent to [the complainant] in which [Mr. Purcell] told [thecomplainant] that she was not welcome at the funeral and he told her: ‘… we are officially never going to do this again’. [Mr.

Purcell]agreed this meant that they were officially broken up, which was in stark contrast to his evidence-in-chief that he believed they ‘still hadplans’ or ‘[c]ontinuing our relationship, building our relationship, fixing it’”. (b) “After reading out many of the offensive texts on the record, [Mr. Purcell] agreed that [what he had said in] his evidence-in-chief, that he did not threaten the complainant, was incorrect”.

(c) “[Mr. Purcell] agreed that it was important for him to meet up with [the complainant] in order to receive her support becauseof his grandmother’s passing and yet they never discussed her death that day and when asked why – he did not know”. [68] In short, the trial judge’s findings of credibility were made upon much more than demeanour evidence. They were based upon aconsideration of the whole of the evidence, including the full examination and cross-examination of the key witnesses. She found thecomplainant to be credible and Mr.

Purcell not to be credible, having regard for all of the circumstances, including what had happened thenight before and the largely unanswered texts from Mr. Purcell. She understood that she was not allowed “to simply compare theirdiffering versions of events and choose which one” she preferred (Conviction Decision). She was fully cognizant of her role as a fact-finder, performing the difficult task of determining credibility and reliability and whether the Crown had proven its case beyond areasonable doubt. The record supports her findings. [69] While I have considered this ground of appeal separately from Mr.

Purcell’s ground of appeal relating to the trial judge’sassessment of the complainant’s credibility, it is an artificial division. A trial judge’s assessment of demeanour is part of the assessment ofcredibility. Unless it can be said that a trial judge has relied excessively or unduly on demeanour evidence, the trial judge’s finding ofcredibility must be viewed through the deferential standard of review. [70] There is no merit to this ground of appeal. D.

The Browne v Dunn ruling: The Snapchat issue [71] The factual context for this issue stems from this brief exchange that took place during the cross-examination of thecomplainant: Q Did you try to attempt to add Kyle to Snapchat?A No. [72] When Mr. Purcell testified, he said the complainant had added him to her Snapchat account a couple of months after he wascharged and then again after the preliminary inquiry. His evidence was that he was immediately deleted on both occasions. His counseltried to tender a screenshot of a notification that popped up on Mr.

Purcell’s screen but which then disappeared. [73] This is Mr. Purcell’s evidence: Q When did she add you on Snapchat?A She added me on Snapchat in the summer, a couple months after. But when you add somebody and then deletethem off Snapchat, you can’t -- it only pops up on your -- your main screen, so you can add it and then delete it-- delete the fact that you tried to add them. And it -- and it doesn’t show up on your -- on the history of anysort.

But -- and so she did that in the summer of -- after she charged me, and then again after -- I think it was a weekafter the prelim trial, she added me again and deleted me around, like, 3 in the morning. … And the second -- the second time was at 3 AM, or around and I woke up for work that morning at 5:30 or 5:45and I seen her name was on there. So I screenshot that, and -- and then, when you go into Snapchat, it doesn’t --it takes it away so you don’t actually see that somebody’s added you. [74] Mr. Purcell’s counsel then attempted to introduce a copy of the screenshot to buttress his client’s evidence.

It was at thismoment that Crown counsel raised the issue of whether Browne v Dunn applied. She argued that, since the screenshot had not been shownto the complainant when she was being examined, it could not now be adduced through Mr. Purcell. [75] The Browne v Dunn rule has recently been reviewed at length by this Court in R v Merasty, 2023 SKCA 32.

By way of a briefintroduction to the so-called rule, the Supreme Court in R v Lyttle, 2004 SCC 5, [2004] 1 SCR 193, described it in these terms: “The rule,although designed to provide fairness to witnesses and the parties, is not fixed”, and “The extent of its application is within the discretionof the trial judge after taking into account all the circumstances of the case” (at para 65). [76] In reviewing the various principles at play, the Court in Merasty examined the applicable standard of review and affirmed that,absent an error in principle, it is within a trial judge’s discretion how to address or remedy the Browne v Dunn issue: the resulting“decision attracts deference on appeal” (Merasty at para 49).

See also R v Dexter, 2013 ONCA 744 at para 22, 313 OAC 226; R v Wapass,2014 SKCA 76 at para 23, 314 CCC (3d) 561; and R v Maxie, 2014 SKCA 103 at para 44, 316 CCC (3d) 396. [77] Returning to this case, after receiving submissions on point, the trial judge ruled as follows: “I’ve got two pieces of evidencenow: her saying that she never tried to add him, Mr. Purcell saying she tried to add him on two occasions. But I think that the screenshotwould have had to have been put to her before it can be put to him”. Mr.

Purcell’s counsel did not pursue the matter further. [78] With counsel on appeal, who was not trial counsel, Mr. Purcell submits that the trial judge erred in her ruling on the issue ofBrowne v Dunn. He says the trial judge prevented Mr. Purcell from tendering admissible evidence. Counsel argues that the screenshotwould have supported Mr. Purcell’s evidence that the complainant had, in fact, tried to add him and that this called into question thecomplainant’s credibility. For Mr.

Purcell, this is yet another way in which the trial judge failed to properly assess the complainant’sevidence. [79] In support of his position, Mr. Purcell relies on R v Quansah, 2015 ONCA 237, 323 CCC (3d) 191, leave to appeal to SCCrefused, . In Quansah, Watt J.A. for the Ontario Court of Appeal wrote as follows: [81] Compliance with the rule in Browne v. Dunn does not require that every scrap of evidence on which a party desires to contradict thewitness for the opposite party be put to that witness in cross-examination.

The cross-examination should confront the witness with mattersof substance on which the party seeks to impeach the witness’ credibility and on which the witness has not had an opportunity of giving anexplanation because there has been no suggestion whatever that the witness’ story is not accepted: Giroux, [(2006),

(ON CA), 210 OAC 50 (CA)] at para. 46; McNeill, [(2000), (ON CA), 131 OAC 346 (CA)] at para. 45. It is only thenature of the proposed contradictory evidence and its significant aspects that need to be put to the witness: Dexter, at para. 18; R. v.Verney, (ON CA), [1993] O.J. No. 2632, 87 C.C.C. (3d) 363 (C.A.), at pp. 375–76 C.C.C.; Paris, [(2000), (ON CA), 138 OAC 287 (CA)] at para. 22; and Browne v. Dunn, at pp. 70–71. (Emphasis in original) [80] With this paragraph in mind, Mr. Purcell argues that it was not necessary to put the screenshot to the complainant.

He assertsthat the physical evidence of the screenshot was not a matter of substance, and, further, it had already been suggested to the complainant incross-examination that she had attempted to add him. To paraphrase Quansah, the nature of the proposed contradictory evidence and itssignificant aspects had already been put to the witness. [81] I agree with Mr. Purcell to this extent. It is arguable that the trial judge erred by giving effect to the Crown’s submissionsregarding the application of Browne v Dunn. I say this for two reasons. First, the matter was not one of substance.

This was a peripheralissue of little consequence. Second, the subject matter of “an attempt” to add Mr. Purcell on Snapchat had been introduced to thecomplainant in examination-in-chief. [82] However, even assuming that the trial judge erred, this is not an error that, on its own, would merit intervention. I arrive at thisconclusion for the principal reason that Mr. Purcell’s trial counsel abandoned the issue. He appears to have agreed with the trial judge andtook no further steps to pursue it. He did not request an adjournment to research the matter or collect his thoughts.

This is the relevantexchange: THE COURT: But it wasn’t put to her. I think the point of Madam Crown … on cross-examination, [is] to allow [the complainant] torespond to it. [DEFENCE COUNSEL]: That’s fair. THE COURT: I think Browne v. Dunn does cover that. … But I think that the screenshot would have had to have been put to her before itcan be put to him. [DEFENCE COUNSEL]: Thank you, My Lady. So I have no further questions for you, then. [83] Further, no effort was made to seek to recall the complainant to rectify what the trial judge had found to be a problem. It wasopen to the defence to have done so.

This Court in Merasty made the point clear: “it was, fundamentally, the responsibility of [the accused]… in an effort to undermine the complainant’s version of events, to have … [R]equested that the complainant be recalled, but he did notdo so” (at para 49).

It is very difficult for an appellant to argue that a trial judge erred by applying Browne v Dunn when it would havebeen possible to recall a witness and ask the very question upon which the witness’s impeachment was sought. [84] My second reason for not finding reversible error relates to the ambiguity of the original question that was put to thecomplainant – and Mr. Purcell’s equally ambiguous responses. As indicated above, the complainant was asked whether she had attemptedto add Mr. Purcell to Snapchat, to which she responded, “No”. However, Mr. Purcell was not asked the same question.

But rather, he wasasked whether the complainant had had contact with him to which he initially replied no. Then, he went on to say that she had added himon Snapchat and then deleted him almost immediately – which, in the overall context of this trial, was virtually meaningless. Tounderscore the minor nature of this issue, I need only note that in oral closing argument the question of the divergence in the testimony ofthe complainant and Mr. Purcell regarding the Snapchat issue was not mentioned. [85] I would not give effect to this argument. E. No inconsistent verdict [86] Mr.

Purcell submits that his sexual assault conviction is unreasonable because he says it is inconsistent with the acquittal forassault, and, in particular, the trial judge applied inconsistent reasoning with respect to the two offences. [87] To fully assess this ground of appeal, some further background is required about the alleged assault. After the abandoned houseincident, the complainant testified two other events occurred. First, she described the walk back to Mr. Purcell’s car, where, once inside,“he puts his hand in my hair, and he gives it a little jerk like he’s going to smash it into the window”.

Second, when Mr. Purcell wasdriving the complainant to where her car was located, she testified that it seemed to her he was not going to stop. This, she said, promptedher to try to leap from the moving vehicle and for Mr. Purcell to say he prevented her from doing so. To break away from him, sherecounted unsuccessfully attempting to pour her slushie drink on him and his taking some of the slush out of the cup and rubbing it intoher face. [88] In acquitting Mr.

Purcell of the assault charge, the trial judge said as follows (Conviction Decision): With respect to the charge of assault, it’s clear that there was an altercation in the vehicle. It’s clear that the Slurpee was involved. It’sclear that it was chaotic on the drive from the abandoned house back to the greenhouse, and there was physical contact between Kyle and[the complainant]. However, I find that I cannot sort out what actually happened in the car, and that necessarily leaves me with areasonable doubt. Applying the requisite W.(D.) analysis, I therefore acquit on count 2 of the indictment. [89] Mr.

Purcell argues that this reasoning is problematic. He submits that, when the trial judge began her analysis of thecomplainant’s credibility, she found, “On the evidence that is critical to the requisite elements of the offences, however, her evidence wasconsistent and forthright”. Given this, he suggests that it was not possible for the trial judge to have reached different results on twocharges where the complainant’s evidence was “consistent and forthright” on both. In one case, the complainant’s clear evidence led to anacquittal, and, in the other, it resulted in a conviction. For Mr.

Purcell, this means that the sexual assault conviction is unreasonable.

[90] Mr. Purcell offers no authority for the proposition he cites. He reasons by analogy from the line of authority represented by R vPittiman, 2006 SCC 9, [2006] 1 SCR 381, only. In Pittiman, the Supreme Court indicated that there are circumstances where a convictionmay be found to be unreasonable where the same evidence grounds two charges but leads to different results. Here, however, the Court isconsidering two distinct offences, where neither the evidence nor the offence elements are the same. The only element in common is theperson accused, Mr. Purcell. [91] Notwithstanding the lack of authority cited, an appellate court’s power under s. 686(1)(a)(

i) of the Criminal Code is broad.According to that provision, a court “may allow the appeal where it is of the opinion that … the verdict should be set aside on the groundthat it is unreasonable or cannot be supported by the evidence”. One cannot rule out the possibility that differing approaches or responsesto the question of credibility and reliability in relation to two distinct offences might form the basis of an unreasonable verdict. [92] However, an appellate court must still apply the usual test to determine reasonableness.

As Charron J. noted in Pittiman, thequestion is whether there is a “rational or logical basis” for reconciling the verdicts (at paras 7 and 8). A variety of circumstances can be atplay. In the context of a jury trial, Charron J. provided a framework to assess whether verdicts are reconcilable: [8] The search for a rational or logical basis for the verdicts does not mean that where a narrative of the events is not readily apparent fromthe jury’s findings that the impugned verdict must necessarily be set aside as unreasonable. The jury’s task is not to reconstruct whathappened.

Rather, it is to determine whether the Crown has proven each and every element of the offence beyond a reasonable doubt.Therefore, in the case of a single accused charged with multiple offences, different verdicts may be reconcilable on the basis that theoffences are temporally distinct, or are qualitatively different, or dependent on the credibility of different complainants or witnesses. Thestrength of the evidence relating to each count may not be the same, leaving the jury with a reasonable doubt on one count but not on theother.

On the other hand, when the evidence on one count is so wound up with the evidence on the other that it is not logically separable,inconsistent verdicts may be held to be unreasonable: e.g., see R. v. Tillekaratna (1998), (ON CA), 124 C.C.C. (3d) 549(Ont. C.A.). (Emphasis added) [93] Applying the Pittiman test to this case, the offences are linked temporally but they are qualitatively different. The evidence ofthe three sexual events is not “wound up with the evidence” of the alleged assault. Mr.

Purcell tries to overcome this legal hurdle bysuggesting that it is not clear from the Crown’s arguments what evidence grounded the assault, which means that it could have been someof the facts underlying the sexual offences. I do not accept that proposition. The record does not show that anyone was confused about theactivity that was intended to form the assault. It was what was alleged to have happened on the way back from the abandoned house to thegreenhouse.

While Crown counsel did not address this specific issue, defence counsel’s submissions were directed to the assaultallegations based on what was said to have happened after the abandoned house incident. [94] In such circumstances, it is difficult to see how an acquittal on the assault could render the sexual assault convictionunreasonable.

In that regard, it is also useful to be reminded of the test to determine whether a conviction is unreasonable. [95] In R v Brunelle, 2022 SCC 5, 412 CCC (3d) 489, the Supreme Court stated that “[w]hen a verdict is reached by a judge sittingalone, there are two bases on which a court of appeal may be justified in intervening because the verdict is unreasonable: (1) where theverdict cannot be supported by the evidence; or (2) where the verdict is vitiated by illogical or irrational reasoning” (at para 7): also see Rv Beaudry, 2007 SCC 5, [2007] 1 SCR 190, and R v Sinclair, 2011 SCC 40, [2011] 3 SCR 3.

It is also fair to point out that Mr. Purcellbears the onus to demonstrate that the verdict is unreasonable: see R v McLaughlin (1974), (ON CA), 15 CCC (2d) 562(WL) (Ont CA) at paras 5 and 8, cited in Pittiman at para 6. I am satisfied that he has not satisfied that burden. [96] As I have indicated earlier, the trial judge’s conviction of Mr. Purcell on the sexual assault charge is easily supported by theevidence, and there is no basis upon which it can be said that the verdict is vitiated because of the trial judge’s reasoning process. [97] Finally, in my view, Mr.

Purcell has taken the trial judge’s statement regarding the complainant’s testimony out of context. Thisis the whole of the Conviction Decision passages involved (again, repeated here for emphasis): I’ll first address the question of whether [the complainant] was a credible witness from a demeanour point of view. In so doing, I whollyrecognize that whether or not a witness appears to be credible when testifying, cannot be a deciding factor. It cannot be considered inisolation. However, it is nonetheless one factor that I do consider. Based upon her demeanour, I found that [the complainant] was a credible witness.

She was forthright and compelling. There was no hint ofmanipulating her evidence to reach a particular result. Where she became very animated and emotional, when her emotions were raw,indeed angry at times, she remained a credible and believable witness. Though there were some inconsistencies in her evidence, suchinconsistencies were on what I would consider to be minor or peripheral issues. On the evidence that is critical to the requisite elements ofthe offences, however, her evidence was consistent and forthright. (Emphasis added) [98] But, this is not the whole of the trial judge’s analysis.

In addition to holding that the complainant’s demeanour supported afinding that she was credible on the question of consent, the trial judge went on to consider all other aspects of credibility and reliability ofboth witnesses. In the case of the sexual assault, that assessment resulted in a conviction; whereas, with respect to the assault, the trialjudge had a reasonable doubt as to what had actually happened.

This outcome was open to the trial judge in conducting the required R v W.(D.), (SCC), [1991] 1 SCR 742, analysis and was not at odds with her finding that the complainant was credible on whatwas really the only issue on the sexual assault charges, i.e., consent. I see no basis in light of the law and the trial judge’s reasons toconclude that the differing verdicts makes the sexual assault conviction unreasonable. IV. Analysis – Sentence Appeal

[ 99 ] The trial judge determined that ten months of incarceration, followed by 18 months of probation, was a fit sentence. She also considered a conditional sentence order to be inappropriate. Her central conclusions on the duration of the sentence are as follows ( Sentencing Decision ): [64] I have considered the principles of sentencing, the aggravating and mitigating factors, and sentences that have been handed down for similar sexual offences. In my view, a two year custodial sentence as proposed by the Crown, is overly harsh and out of line with similar cases, with similar offenders.

A two year custodial sentence would place this sexual assault too far along the spectrum and too close to the type of offence that involves penetration or a sleeping or incapacitated victim. Such a sentence does not align with the principle of parity. [65] That having been said, the gravity of the offence should not be measured solely on the basis that there was no penetration. Neither should the gravity of the offence be measured by the fact that the complainant was conscious at all times during the sexual assault.

To measure the gravity of the offence in such a fashion would be to adopt a cookie cutter approach and fail to assess the individual circumstances of this case. [66] I reject the notion that this sexual assault was merely “fleeting” and that it falls at the least serious end of the sexual offence spectrum.

When the events of May 20, 2019 and Mr. [Purcell’s] misconduct are considered as a whole, it is clear that this was a prolonged attack on the complainant’s personal and bodily integrity. [67] I am satisfied that in all the circumstances, a sentence of ten months in custody, followed by an eighteen-month probationary term, is a fit and just sentence. [ 100 ] In determining this sentence, the trial judge considered the following as aggravating: (

a) Mr. Purcell and the complainant were intimate partners, which was a “statutorily aggravating factor” under s. 718.2 (a)(ii) of the Criminal Code ; (b) “the sexual assault had a significant impact upon” the complainant; (

c) the complainant was “in an isolated location” and “entirely dependent on” Mr. Purcell during the commission of the offence; (

d) the touching, which “could potentially be characterized as ‘fleeting’ … if they are viewed in isolation”, was persistent over a few hours; and (

e) Mr. Purcell’s “modus operandi was ‘try try again’” ( Sentencing Decision at para 62). [ 101 ] The trial judge considered the following as mitigating: (

a) Mr. Purcell is “for all intents and purposes, a first-time offender” (at para 61); (

b) he has strong family support; (

c) he is at a low risk to reoffend; (

d) he accepts some responsibility for the offence; and (

e) he had been on release conditions pending trial for a period of almost two years without incident. [ 102 ] On appeal, Mr. Purcell submits that the sentence is demonstrably unfit, which is his only ground of appeal. He relies on R v Chrispen , 2009 SKCA 63 at paras 27–42 , 331 Sask R 212, to suggest in his factum that the “appropriate sentencing range should have been a suspended sentence and 90 days in jail, which would allow for the jail sentence to be served intermittently, followed by probation”. [ 103 ] In Chrispen , the accused was ostensibly interested in buying the victim’s car.

In the course of a test drive, he “twice braked sharply and put out his arm across the front of her body (even though she was wearing a seat belt), presumably to protect her, and both times his arm touched her upper chest” (at para 2). After he had exited the car, under the guise of getting his cell phone, he “brushed her breast with his right arm and with his left hand squeezed each of her breasts over her T-shirt” (at para 2).

The trial judge had imposed a custodial sentence of nine months, and he did not undertake an analysis of whether a conditional sentence was appropriate. [ 104 ] After conducting an extensive cross-country review of the case law, this Court set aside the custodial sentence and imposed a conditional sentence to be served in the community for the same term. The Court found these errors in principle: the sentencing judge failed “to give effect to s. 718.2 (d)” and failed to consider “whether a conditional sentence” was appropriate under s. 742.1 of the Criminal Code ( Chrispen at para 38 ).

As part of its analysis, the Court concluded that “the range of sentences in accordance with s. 718.2 (d) … was a conditional sentence between three and twelve months” (at para 46) and that there was “nothing in the facts of this case that would justify bumping the appellant’s sentence to nine months incarceration” (at para 49).

In conclusion, the Court substituted a nine-month conditional sentence, with the following determination: [53] In the instant case, given that it was a single incident of sexual touching of a few seconds, I am of the view that the nine months incarceration sentence imposed does not accord with the principles of proportionality or parity and is therefore demonstrably unfit. It amounts to a marked departure from sentences customarily imposed in circumstances such as these. [ 105 ] Mr. Purcell argues that this case is like Crispen . In my respectful view, it is not.

Unlike in Crispen , the charge did not involve a brief incident of sexual touching that lasted mere seconds. As the trial judge found, the individual acts of touching, which may be considered fleeting if viewed in isolation, were persistent and unfolded over the course of a couple of hours, notwithstanding Mr. Purcell’s having been persistently t

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