R v Murillo, 2023 SKCA 78

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in accordance with s. 486.4(1) of the Criminal Code directing that any information identifying the complainant shall not be published.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: CACR3520 Citation: R v Murillo 2023 SKCA 78 Date: 2023-07-06 Between: Alexis Murillo Appellant And His Majesty the King Respondent Before: Caldwell, Leurer and Barrington-Foote JJ.A. Disposition: Appeal allowed Written reasons by: The Honourable Mr. Justice Barrington-Foote In concurrence: The Honourable Mr. Justice Caldwell The Honourable Mr.

Justice Leurer On appeal from: CRM 267 of 2020 Appeal heard: June 10, 2022 Counsel: Brian Pfefferle and Thomas Hynes for the Appellant Erin Bartsch for the Respondent Barrington-Foote J.A. I. Introduction [ 1 ] On November 19, 2021, a judge of the Court of Queen’s Bench for Saskatchewan found Alexis Murillo guilty following trial of sexual assault contrary to s. 271 of the Criminal Code . Mr.

Murillo has appealed his conviction, alleging that the trial judge erred in law by providing insufficient reasons in assessing the complainant’s credibility; relying on impermissible common sense assumptions or stereotypes; and applying different standards of scrutiny to his evidence and that of the complainant. [ 2 ] I have concluded that the first and second of these grounds of appeal have merit and would accordingly grant Mr. Murillo’s appeal. I have not addressed the uneven scrutiny ground, as it is not necessary to do so. My reasons for these conclusions follow. II.

Background [ 3 ] On the evening of September 8, 2018, the complainant, a university student from China, and Mr. Murillo, who was then 22, attended a house party hosted by Bolin Cai and Kelly Bugler. That was the first time the complainant and Mr. Murillo had met. Everyone but Mr. Cai was drinking alcohol. Sometime after midnight, Mr. Murillo, Ms. Bugler, the complainant, and another friend went to a bar, where the group continued to drink. The complainant and Mr. Murillo stayed together at the bar, while Ms. Bugler and her friend sat elsewhere. When she was asked by Ms.

Bugler to join her and her friend, the complainant refused, indicating that she preferred to stay with Mr. Murillo, whom she told Ms. Bugler reminded her of her ex-boyfriend. Ms. Bugler took a photo of Mr. Murillo and the complainant together and sent it to Mr. Cai, expressing surprise. [ 4 ] The group stayed at the bar until it closed at 3:00 a.m., when Mr. Murillo and the complainant made their way back to Ms. Bugler’s house. Mr. Murillo volunteered to walk the complainant home from there and she accepted his offer.

It was her evidence that he made sexual comments more than once as they walked, stating that he would show her his penis. When they arrived at the complainant’s home, she discovered that she was locked out. They spent some time on a swing set in the back yard, talking. Mr. Murillo told the complainant he had a girlfriend with whom he would probably break up and that he wanted to hang out with the complainant. She told him she was interested in a man who lived in Edmonton. He flirted with her, jokingly asking that she marry him. He offered to book her a hotel room or that she come to his residence.

She declined the hotel room and instead accepted his invitation to accompany him to his home, where he lived with his parents. [ 5 ] Mr. Murillo and the complainant arrived at his home at approximately 5:00 a.m. She claimed that he insisted that she sleep in his bed, rather than on the couch as she had suggested. He testified that she turned down an offer to sleep in the spare bedroom, as she wanted to be with him. [ 6 ] Mr. Murillo claimed that after some time, they went to his room, had a beer, and played a game called “truth or dare”. The complainant denied that those things had occurred.

Both gave evidence that, at some point, they ended up together in the bathroom. She stated that he had entered the bathroom when she was already there and asked for a hug, and that. in response, she got on her knees to avoid him and asked him to leave. He, on the other hand, testified that they had been kissing in his room while playing truth and dare, and that she had asked to see his penis, but said he should wash it first. He claimed that he went to the bathroom to do so and that she had entered the bathroom as he was finishing.

He said she had kissed him, gotten on her knees, removed his boxer shorts, and tugged his penis. He

maintained that they had then returned to his room, that she resumed masturbating him while he continued to touch her sexually, and thatboth of them had taken their clothes off. He said that they had tried to have sex, but that he could not maintain an erection, so they went tosleep in his bed. [7] The complainant’s evidence was that after she had rebuffed Mr. Murillo in the bathroom, she had returned to his bedroom and,after some further socializing, she went to sleep in his bed. She said he had promised he would sleep on the couch.

She recalled waking up tofeel him against her back, and that she then pushed him off the bed and onto the floor. She claimed that she went back to sleep, and that whenshe was awakened by the alarm, she had set for 8:00 a.m., he was back in the bed. She stated that she tapped on him to wake him up andasked for a cab ride home, and that, in response, he had pushed her down on the bed, flipped her onto her stomach, and removed her bottomclothes and his clothes while he held both of her hands with one of his. [8] The complainant testified that Mr.

Murillo had then inserted his fingers into her vagina and attempted to have intercourse withher but was unable to maintain an erection. She claimed that she had repeatedly told him to stop and tried to push him, but that he hadnonetheless continued to do the same things. She recalled that she could not move because he was sitting on her thighs and had held both ofher hands with one of his throughout the incident.

She maintained that the assault went on for approximately 90 minutes and that he hadfinally stopped when she threw a pillow at him, when he promptly offered to call her a cab. [9] The complainant gave evidence that at that juncture, she had expressed her anger and threatened to call 911, and that he hadresponded by taking her phone from her. She said she had then knocked on the door of Mr. Murillo’s father’s room, which was next door.Mr. Murillo’s father confirmed this had occurred, and that he had told Mr. Murillo to give her phone back. Mr. Murillo’s mother also becameinvolved. Mr.

Murillo’s parents later drove the complainant home. [10] Mr. Murillo’s story of the morning’s events was very different. He said that he had woken the complainant up because he wantedher to leave, as he had realized his girlfriend was coming over. He testified that she had become upset, called him a liar and a cheater, andthreatened to call 911. He acknowledged that he had grabbed her phone as she was typing on it and claimed that he had again told her toleave, but that she had instead knocked on his father’s door.

It was his evidence that when they were with his parents, she had repeatedlyinsisted that he had to pay her money and that he had refused to do so. [11] Before Mr. Murillo took her phone, the complainant had texted Ms. Bugler, stating “I think he raped me from the time my alarmrang…until now”. Later that day, the complainant spoke to friends about what had occurred. She asked that Mr. Murillo apologize and payher compensation, and when he refused to do so, she reported the alleged sexual assault to the police three days later.

As to her demand formoney, she claimed that she wanted it to pay for a therapist, as she could not tell her wealthy parents she had been raped. She also gaveevidence that she had asked for compensation on the advice of her landlord and because that was how things were done in China. [12] Five witnesses testified at the trial – Mr. Murillo, the complainant, Mr. Cai, Ms. Bugler and Mr. Murillo’s father. In his judgment,the trial judge provided a brief overview of the events that took place before Mr. Murillo and the complainant returned to Mr. Murillo’sresidence. He identified consent as the central issue at trial.

He referred to the presumption of innocence, the burden of proof, and theinstruction on analyzing credibility found in R v W.(D.), (SCC), [1991] 1 SCR 742 [W.(D).].

He cited the four-partformulation of the W.(D.) test that was adopted by this Court in R v McKenzie (1996), (SK CA), 106 CCC (3d) 1 (QL)(Sask CA) at para 5, which adds a fourth step to the three specified in W.(D.), as follows: First, if you believe the accused, obviously you must acquit; Secondly, if, after a careful consideration of all of the evidence, you are unable to decide whom to believe, you must acquit; Thirdly, if you do not believe the evidence of the accused but you are left in reasonable doubt by it, you must acquit; Fourthly, even if you are not left in doubt by the evidence of the accused, you must ask yourself whether, on the basis of the evidence whichyou do accept, you are convinced beyond a reasonable doubt by that evidence of the guilt of the accused. [13] The trial judge then assessed the evidence based on this four-part test.

As to the first part, he found he could not believe Mr.Murillo because his evidence seemed to be contrived and calculated to place his actions in the best light. The trial judge reviewed Mr.Murillo’s evidence about the sexual encounter and said he did not believe it because it did not “make sense.” [14] As to the second question, the trial judge explained that he did not believe all of Mr. Murillo’s evidence, “especially the sexualincident part” (at para 18). He referred to Ms. Bugler’s testimony that she had told Mr.

Murillo before he and the complainant left her housethat the complainant was not interested in him. He briefly summarized the complainant’s version of the incident. He then said that after areview of all the evidence, he believed Ms. Bugler and the complainant, but not Mr. Murillo. [15] Dealing next with the third question, the trial judge found that Mr. Murillo’s evidence did not raise a reasonable doubt. Hereiterated that Mr.

Murillo’s evidence was an attempt to rationalize his actions rather than being an honest statement about what took place. [16] Finally, the trial judge addressed the question of whether he was, based on the evidence he did accept, convinced beyond areasonable doubt of Mr. Murillo’s guilt? He found that the complainant’s evidence was “forthright and convincing”, that she had testified in a“straightforward manner”, and that she was credible and reliable. He again briefly summarized her version of the events that had occurred inthe morning, including the fact that she had texted her friend that she thought Mr.

Murillo had raped her. He then summarized his conclusionas to the fourth W.(D.) question: [23] [Mr. Murillo’s] explanation of why [the complainant] would be upset when they woke up was not credible. His explanation was thatwhen he told [the complainant] she would have to leave because his girlfriend - was coming over, [the complainant] threatened to call 911.[Mr. Murillo] then grabbed her phone and would not give it back until he was told by his father to do so. Why this would happen isunbelievable unless events had happened the way [the complainant] described - that he had just sexually assaulted her.

I find I do not believe[Mr. Murillo] and that all the other evidence does not raise a reasonable doubt as to [Mr. Murillo’s] guilt. III. Analysis

A. Did the trial judge err in law by providing insufficient reasons? [17] Mr. Murillo contends that the trial judge erred in law in the course of his credibility analysis, as he did not address materiallyinconsistent statements made by the complainant. In particular, he notes that in her statement to the police and in her testimony, Ms. Buglersaid that the complainant had told her that she woke up to Mr. Murillo inserting his penis into her. The complainant, on the other hand,denied in court that this was how the sexual assault had occurred, stating that she was awakened by her alarm and that Mr.

Murillo assaultedher only after she then woke him up to ask for a ride home. The trial judge found that both of these witnesses were credible and reliable butdid not refer to the differing accounts by the complainant about this important aspect of the alleged sexual assault. [18] Mr. Murillo acknowledges that a trial judge is not required to address every inconsistency in the evidence of a witness. However,he submits that this is a material inconsistency and relies on R v Dinardo, 2008 SCC 24, [2008] 1 SCR 788 [Dinardo], for the propositionthat the failure to deal with such an inconsistency is an error of law.

As Charron J. there explained: [26] At the trial level, reasons “justify and explain the result” (Sheppard, at para 24). Where a case turns largely on determinations ofcredibility, the sufficiency of the reasons should be considered in light of the deference afforded to trial judges on credibility findings.

Rarelywill the deficiencies in the trial judge’s credibility analysis, as expressed in the reasons for judgment, merit intervention on appeal.Nevertheless, a failure to sufficiently articulate how credibility concerns were resolved may constitute reversible error (see R. v Braich,[2002] 1 SCR 903, 2002 SCC 27 at para 23). As this Court noted in R. v Gagnon, [2006], 1 SCR 621, 2006 SCC 17, the accused is entitled toknow “why the trial judge is left with no reasonable doubt”. … [31] … [T]he inquiry into the sufficiency of the reasons should be directed at whether the reasons respond to the case’s live issues.

In thiscase, the complainant’s truthfulness was very much a live issue — the trial judge recognized it as so during the voir dire to determinewhether the complainant was competent to testify. At trial, two of the witnesses testified that the complainant could be untruthful andmanipulative. While it was open to the trial judge to conclude that he was convinced beyond a reasonable doubt of the guilt of the accused, itwas not open to him to do so without explaining how he reconciled the complainant’s inconsistent testimony, particularly in light of theaccused’s own evidence denying her allegations. [19] Mr.

Murillo also cites R v R.A., 2017 ONCA 714, 355 CCC (3d) 400 (aff'd 2018 SCC 13, [2018] 1 SCR 307, on this point. In thatcase, Huscroft J.A., writing for the majority, made the following observation: [45] …[Significant] testimonial inconsistencies should be addressed because, as the Supreme Court noted in R. v Gagnon, 2006 SCC 17,[2006] 1 SCR 621, at para. 21, the accused is entitled to know “why the trial judge is left with no reasonable doubt”.

However, a trial judgeis not required to refer to or resolve every inconsistency raised by the defence in the course of his or her reasons: R. v R.(C.), 2010 ONCA176, 260 OAC 52, at para. 48. … [77] …A trial judge giving reasons for judgment is neither under the obligation to review and resolve every inconsistency in a witness’evidence, nor respond to every argument advanced by counsel: R. v M. (R.E.), 2008 SCC 51, [2008] 3 SCR 3, at para. 64.

That said, a trialjudge should address and explain how she or he has resolved major inconsistencies in the evidence of material witnesses: G. (M.), at p356; R. v Dinardo, 2008 SCC 24, [2008] 1 SCR 788, at para 31. [20] On a related note, Mr. Murillo submits that the trial judge was required to address the complainant’s motive to fabricate andattempt to extricate money from him in his credibility analysis. He points to the evidence that she was prideful, claimed to be very wealthy,and believed that she had been misled by Mr. Murillo, a poor man, to whom she referred as a “sweet talker”.

He notes his evidence that shehad gotten angry and threatened to call 911 only after he had told her to leave in the morning because his girlfriend was coming over. Hesuggests that she claimed she was sexually assaulted to save face. As to the complainant’s demands that he pay her money, Mr. Murillocharacterizes this as attempted “extortion” – a demand for payment as the price of avoiding a false complaint. [21] Mr. Murillo correctly notes that a motive to fabricate can be an important factor bearing on credibility.

Justice Doherty nicelymade this point in R v Batte, (2000) (ON CA), 145 CCC (3d) 449 (Ont CA), as follows: [120] …It is difficult to think of a factor which, as a matter of common sense and life experience, would be more germane to a witness’credibility than the existence of a motive to fabricate evidence. Similarly, the absence of any reason to make a false allegation is a factorwhich juries, using their common sense, will and should consider in assessing a witness’ credibility. [22] That does not mean, of course, that evidence demonstrating a motive to fabricate is determinative.

Rather, as Doherty J.A. alsosaid in Batte, “[t]he presence or absence of a motive to fabricate evidence is only one factor to be considered in assessing credibility” (at para121). [23] These principles were explored in R v W.D.M., 2022 SKCA 64, [2022] 9 WWR 606 [W.D.M.] by Leurer J.A., who pointed to thefollowing authorities that demonstrate that a trial judge is required to consider a motive to fabricate where there is a basis for such a defenceallegation in the evidence: [37] In R v Ignacio, 2021 ONCA 69 at para 35, 400 CCC (3d) 343, leave to appeal to SCC refused, , Pepall J.A. foundthat the trial judge in that case “was required to consider motive to fabricate due to the defence allegation that the complainant had a motiveto fabricate” (at para 35, emphasis added).

Similarly, in R v S.R., 2022 ONCA 192, the Ontario Court of Appeal stated that “[a]s in Ignacio,at para. 35, the trial judge was required to consider motive to fabricate due to the defence allegation that the complainant had a motive tofabricate” (at para 30). [38] In R v R.P., 2020 ONCA 637, the trial judge was found to have committed several errors in assessing witness credibility, one ofwhich was the failure to adequately address the complainant’s alleged motive to fabricate her testimony. While the trial judge had

commented on the alleged motive for fabrication, the Court of Appeal determined that “the trial judge did not engage in the necessary closeexamination” of the evidence (at para 19). Justice Harvison Young noted: Moreover, the motive to fabricate argument had some strength given the tensions at home, which predated the alleged incident.

This calledfor a closer examination of the complainant’s credibility, and of the various alleged inconsistencies in the evidence, which I will review inmore detail shortly. ... [39] Justice Harvison Young went on to explain that the conflicting evidence “went directly to the complainant’s credibility and hermotive to fabricate”, but this was “not addressed in the reasons”.

Finally, she concluded that, “[g]iven the centrality of credibility in this case,these issues required greater scrutiny” (at para 20). [40] In R v Swain, 2021 BCCA 207 at para 28, 406 CCC (3d) 39, Voith J.A. noted that the existence of proof that a complainant had amotive to fabricate an allegation “may substantially challenge the credibility of the complainant, which may be capable of raising areasonable doubt”. [41] Finally, on this issue, I would mention R v JOL, 2020 ABCA 73 (Alta CA), 7 Alta LR (7th) 180.

This case again illustrates the needfor a trier of fact to consider motive to fabricate when there is evidence supporting its existence.

In that case, the Alberta Court of Appealfound that the trial judge had erred in failing to provide a specific instruction about this issue: [52] We agree the trial judge erred in refusing defence counsel’s request to provide a specific instruction regarding motive to fabricate.While not determinative, the existence of a motive to fabricate is relevant to assessing credibility: R v CEK, 2020 ABCA 2 at para 26; R vZapeda, 2018 ABCA 425 at para 10; R v Batte, (ON CA), 145 CCC (3d) 449 (Ont CA) at paras 119–121.

This applies toall matters, including sexual assault trials. [24] R v Esquivel-Benitez, 2020 ONCA 160, 61 CR (7th) 326, is also of interest here. In that case, the complainant’s husband, havinglearned that his wife had intercourse with the appellant, had repeatedly questioned her as to whether the appellant had abused her. She finallyclaimed that he had done so, but only after repeated entreaties by her husband. The trial judge dismissed this evidence as irrelevant,characterizing it as “part of an ongoing myth regarding sexual consent”.

In a per curiam decision, the Ontario Court of Appeal explained whythis reasoning constituted error, commenting as follows: [13] This was an error. Undoubtedly it was open to the trial judge to accept the complainant’s evidence that she did not consent to sexualactivity and that her response to her husband’s questioning was due to a myriad of factors that had nothing to do with fabrication.

However,in the circumstances of this case, the trial judge was also obliged to consider whether the events gave rise to a motive to fabricate and, if so,how that reflected on her assessment of the complainant’s credibility. [14] A motive to fabricate can be an important factor that is germane to a witness’s credibility: R. v Batte (2000), (ONCA), 145 CCC (3d) 449 (Ont CA), at para 120. [15] Here, it was incumbent on the trial judge to consider the evidence that was both consistent and inconsistent with consent, which wasthe central issue at trial. … [25] In her case comment on this decision, Professor Lisa Dufraimont notes that R v Villaroman, 2016 SCC 33, [2016] 1 SCR 1000,requires that where a case turns on circumstantial evidence, “the criminal standard of proof beyond a reasonable doubt requires triers of factto consider ‘other plausible theories’ and ‘other reasonable possibilities’ which are inconsistent with guilt”.

She then offers the followinginsightful observation: [15] The same holds true even in sexual assault cases where the Crown relies on the direct evidence of the complainant; the trier of factmust still consider whether the evidence as a whole, including circumstantial evidence relied on by the defence, raises a plausible theory ofinnocence. As the Court of Appeal put it in Esquivel-Benitez, “it was incumbent on the trial judge to consider the evidence that was bothconsistent and inconsistent with consent”. [26] I agree.

To be clear, this does not mean the Villaroman test applies where proof of an essential element of the offence does notturn wholly or substantially on circumstantial evidence. The Crown need not demonstrate that a finding of guilt is the only reasonablepossibility in such a case. However, the trier of fact must consider other plausible theories, whether they arise as a result of the evidence ofthe accused or otherwise. [27] In response to Mr.

Murillo’s contention that the trial judge did not address key conflicting evidence and the complainant’s motiveto fabricate, the Crown emphasizes that the law does not require that every item of evidence be mentioned or that every argument of counselbe addressed. It relies on the principle that, as Brown J. said in R v Smith, 2021 SCC 16 at para 1, “the trial judge’s failure to deal properlywith the prior inconsistent statements does not mean that she failed to consider or give effect to them”.

It stresses that, as is noted in Dinardo,the sufficiency of reasons related to findings of credibility must be assessed in light of the deference accorded to such findings. It also notesthe undoubted principle that reasons must be read generously and assessed through a functional lens, in light of the evidence as a whole, thelive issues and the submissions of counsel, see: R v R.E.M., 2008 SCC 51, [2008] 3 SCR 3 at paras 16–17 [R.E.M.]. [28] The Crown also raised other arguments in response to this ground of appeal.

It notes that a trial judge may accept some, none, orall of the evidence of a witness, and that the trial judge in this case may not have accepted Ms. Bugler’s evidence of what the complainantreported to her as to how the sexual assault began, despite having found that she was credible and reliable. It observes that the complainantfaced language barriers, which might be of particular importance in that Mr. Murillo’s counsel did not put the inconsistent statement to thecomplainant and that she accordingly did not have a chance to deny or explain it.

It contends that the evidence of a motive to fabricate wasnot strong, and that the trial judge was entitled to accept the complainant’s evidence that she was sexually assaulted – an allegation that shetexted to Ms. Bugler before leaving Mr.

Murillo’s house, and thus before she learned what others were saying about her night with Mr.Murillo. [29] The legal principles emphasized by both parties are well established, including the rule that, when a trial judge’s reasons arereviewed to determine their sufficiency, they must be read in the manner described by the Crown; that is, “as a whole, in the context of theevidence, the arguments and the trial, with an appreciation of the purposes or functions for which they are delivered": R.E.M. at para 16.

Further, as Schwann J.A. said in R v Hoskins , 2021 SKCA 23 at para 83 , “reasons will be sufficient if they inform the parties of the basis for the verdict, provide public accountability and permit meaningful appellate review” (see also: R v Sheppard , 2002 SCC 26 , [2002] 1 SCR 869 at para 55 ; and R v Braich , 2002 SCC 27 , [2001] 1 SCR 903 at para 31 ). [ 30 ] The question here, accordingly, is whether the reasons of the trial judge, read in the proper manner, pass that functional test, despite having failed to address these inconsistencies. In my respectful opinion, they do not.

The evidence of conflicting versions as to how the sexual assaults occurred was important in and of itself, as it related to the alleged assault. The credibility of the complainant was very much a live issue at trial; indeed, it was central to Mr. Murillo’s defence. Despite this, and as in W.D.M ., the trial judge did not simply fail to reconcile the evidence of conflicting reports by the complainant as to how the sexual assault occurred. He did not refer at all to any of this evidence. The same is true of the evidence that could have been found to support Mr.

Murillo’s contention that the complainant was motivated by a desire to save face and to get money from him, as she claimed to have been encouraged to do by her landlord. [ 31 ] As the Crown correctly notes, it was open to the trial judge to find that there were innocent explanations for the conflicting reports of the assault attributed to the complainant – assuming he found there was such a conflict to begin with – and for the complainant’s demands for an apology and compensation. However, this possibility does not justify the failure to advert to this evidence or to these issues in the reasons.

Reasons must always serve their purpose, and these reasons did not do so given the issues, evidence, and arguments in this case. As Nordheimer J.A. said in R v C.G. , 2021 ONCA 809 , 407 CCC (3d) 552, “[w]hile…a trial judge is not required to address each and every piece of evidence, a trial judge is required to address crucial evidence that bears directly on the credibility and reliability of a witness” (at para 42).

This was such evidence. [ 32 ] In the result, I have concluded that the trial judge erred in law by failing to address the conflicting evidence and the complainant’s motive to fabricate and that the appeal should be allowed for that reason. In doing so, I echo the following comments by Leurer J.A. in W.D.M. : [58] …[I]n R.E.M . and G.F ., the Supreme Court has communicated its deep concern that safe convictions, particularly in matters involving sexual offences, are being overturned not for legal error “but on the basis of parsing imperfect or

summary expression on the part of the trial judge” ( G.F. at para 76). However, I do not interpret either decision to be a call to shield insufficient reasons and potentially dangerous convictions from appropriate appellate scrutiny.

Rather, I agree with Nordheimer J.A. when he stated, with specific reference to G.F. , that it “does not direct appeal courts to overlook or disregard material reasoning errors, nor does it dispense with the need for trial judges to give adequate reasons for their decisions before stigmatizing and punishing someone” as guilty of a criminal offence ( C.G. at para 56 ). [ 33 ] Essentially the same point is made in R v M.J ., 2022 SKCA 106 , where , having referred to the Supreme Court of Canada’s repeated direction that “an appellate court should not ‘parse’ the reasons of the trial judge, and to the presumption of correct application — that is, that a judge is presumed to know and apply the law…[and] that a trial judge need not refer to all of the evidence, or indeed, to every frailty in the evidence” (at para 28), this Court said this: [30] …[T]he principles emphasized by the Crown should not be interpreted in a manner that precludes effective appellate review and the careful consideration of the reasons.

The reasons, read in the context of the evidence, the issues and the arguments at trial, are all an appellate court has to determine if an accused has been found guilty in accordance with the law. Appellate courts should not uphold judgments that disclose material errors that have resulted in an unreasonable verdict or a miscarriage of justice, simply because there was a correct route that could have been taken to achieve that result. [ 34 ] The same is equally true where the error alleged is a material error of law. B.

Did the trial judge err in law by relying on impermissible common sense assumptions or stereotypes? [ 35 ] The legal principles engaged by this ground of appeal were usefully unpacked by Paciocco J.A. in R v JC , 2021 ONCA 131 , 401 CCC (3d) 433, at paras 58–70 .

He there identifies two rules relating to prohibited reasoning as to the plausibility of human behaviour, as follows: [58] The first such rule is that judges must avoid speculative reasoning that invokes “common-sense” assumptions that are not grounded in the evidence or appropriately supported by judicial notice: R v Roth , 2020 BCCA 240 , at para. 65 ; R v Cepic , 2019 ONCA 541 , 376 CCC (3d) 286, at paras. 19-27 ; R v Perkins , 2007 ONCA 585 , 223 CCC (3d) 289, at paras. 35-36 .

For clarity, I will call this “the rule against ungrounded common-sense assumptions”. [59] To be clear, there is no bar on relying upon common-sense or human experience to identify inferences that arise from the evidence.

Were that the case, circumstantial evidence would not be admissible since, by definition, the relevance of circumstantial evidence depends upon using human experience as a bridge between the evidence and the inference drawn. … [63] The second relevant, overlapping rule is that factual findings, including determinations of credibility, cannot be based on stereotypical inferences about human behaviour. I will call this “the rule against stereotypical inferences”.

Pursuant to this rule, it is an error of law to rely on stereotypes or erroneous common-sense assumptions about how a sexual offence complainant is expected to act to either bolster or compromise their credibility: Roth , at para. 129 ; R v A.B.A ., 2019 ONCA 124 , 145 OR (3d) 634, at para 5 ; Cepic , at para 14 .

It is equally wrong to draw inferences from stereotypes about the way accused persons are expected to act: R v Quartey , 2018 ABCA 12 , 430 DLR (4th) 381, at para. 21 , aff'd 2018 SCC 59 , [2018] 3 SCR 687; and see Cepic , at para 24 . [ 36 ] This reasoning has been frequently applied by appellate courts: see, for example: R v M.J . , 2022 SKCA 106 at para 39 ; R v Adebogun , 2021 SKCA 136 at paras 23–29 , [2022] 1 WWR 187; R v Pastro , 2021 BCCA 149 at paras 40–43 ; R v D.C ., 2023 NSCA 20 at para 56 ; R v Al-Rawi , 2021 NSCA 86 at paras 67–68 ; R v Mazhari-Ravesh , 2022 MBCA 63 at para 114 ; and Caron c R , 2022 QCCA 1550 at para 30 .

[ 37 ] In my respectful opinion, the trial judge erred by invoking common sense assumptions not grounded in the evidence that could not have been the subject of judicial notice and by relying on stereotypical inferences about human behaviour. That is demonstrated by the following reasoning: [17] … [Mr. Murillo] says that he and [the complainant] arrived at his house at approximately 5:00 a.m. on September 9, 2018, after walking from [Mr. Cai] and [Ms. Bugler’s] house to [the complainant’s] place, and then on to his house. Once at his house, [Mr.

Murillo] says that he and [the complainant] talked and then started to play “truth or dare”. This makes no sense when you consider that it was at least 5:00 a.m. and they had walked all the way from [Ms. Bugler’s] house in the cold . [Mr. Murillo] says that [the complainant] asked him about the size of his penis. He told her that she could find out by seeing it herself. He says that [the complainant] then said he would have to rinse his penis off.

Why would he have to rinse his penis off in order for her to see it ?... (Emphasis added) [ 38 ] There is no doubt but that two young people, having spent the evening together socializing and drinking, might continue their evening by playing a game. That is so despite that they had walked home, that it was cold when they did so, and that it was 5:00 a.m. That would be true even if the complainant had not yet decided that she was or might be willing to engage in sexual activity, but only to continue talking. Similarly, the answer to the trial judge’s question as to why the complainant would ask Mr.

Murillo to wash himself is readily apparent if, as he claimed, she intended to join him in the bathroom and initiate sexual activity in the manner he described. It is plausible and accords with human experience that a person might make such a request in those circumstances. Indeed, and with respect, the notion that events could not have unfolded in the manner described by Mr. Murillo appears to be rooted in a stereotypical assumption that a woman would not initiate sex in this way. [ 39 ] In my view, this error of law was highly material to the verdict of guilt in this trial, relating as it did to Mr.

Murillo’s credibility and, indirectly, to the complainant’s credibility. It is a “substantial wrong” because credibility was at the heart of this case (s. 686(1)(b)(iii)). [ 40 ] I have reached this conclusion despite that the trial judge ultimately stated that Mr. Murillo’s story as to why the complainant threatened to call 911 and why Mr. Murillo grabbed her phone was “unbelievable unless events had happened the way [the complainant] described – that he had just sexually assaulted her” (at para 23).

This conclusory reasoning results from and cannot be separated from the flawed analysis that precedes it. [ 41 ] Indeed, I am inclined to the view that the reasoning in paragraph 23 reflects a third error of the same kind; that is, it is the result of an ungrounded assumption about what a person in the position of the complainant would do if events unfolded as Mr. Murillo claimed. It must be kept in mind that Mr.

Murillo claimed that he woke the complainant up, told her that she had to leave because his girlfriend was coming over, and that it was this that generated the complainant’s angry response, accusations that he was a liar and a cheater – or, as she later said to his parents, a “sweet talker” – and her threats to call 911. If this was what occurred, both her reaction and his would certainly fall within the range of normal human behaviour. IV. Conclusion [ 42 ] For these reasons, I would set aside the conviction and order a new trial. “Barrington-Foote J.A.” Barrington-Foote J.A.

I concur. “Caldwell J.A” Caldwell J.A. I concur. “Leurer J.A.” Leurer J.A.