Sufficiency, Logical Coherence, and the Inferential Scope of a Trial Judge’s Reasons predicated on an Illogical Foundation, resulting a reviewable failure to explain the rejection of a Defence in a Sexual Assault Case.

Published On: Oct 18,2019

Appeal Lawyers in Criminal Sexual Assault Case.
Failure to Consider a defence by the Trial Judge resulting the conviction being overturn.

The sufficiency of reasons is often raised as an issue in appellate matters that involve criminal proceedings. A deeper examination of the factual record of a trial can unearth the hidden assumptions and non-sequiturs, demonstrative of a fairly innocuous yet fallacious application of inferential reasoning. Conversely, sometimes Judges just forget….

In Regina v. T.S., 2019, ONCA 807, the Court of appeal considered whether the argument from the defence was sufficient to justify appellate intervention.   The charge before the trial court was sexual assault and sexual exploitation of a person with a disability (Criminal Code, s.153.1).  The accused was acquitted of the latter but convicted of the former (sexual assault).   The complainant had an intellectual disability that described disability in the following terms in its released decision:

[9]         Dr. Jones diagnosed J.M. as having an intellectual developmental disorder. This was described as a mild disability, placing J.M.’s intellectual functioning at the bottom two percent of the general population. Academically, J.M. functions at the level of someone in the range of 10-12 years. Nevertheless, she demonstrated strong communication skills at trial.

[10]      In terms of adaptive functioning, Dr. Jones said that J.M. requires “a substantial level of supports day-to-day.” Employees of Pathways testified that J.M. was unable to care for herself in terms of preparing her own food and taking medications. They also described J.M. as being very trusting and easily taken advantage of by others. These observations are consistent with Dr. Jones’ testimony on how these qualities are engaged in the context of consent. Dr. Jones explained that J.M. is capable of consenting to sexual activity. However, J.M.’s ability to consent would be impaired by an “unequal relationship with a person of trust or authority.” In a social-sexual relationship with such a person, she may acquiesce more easily. As noted below, J.M. testified that she did not consent to any sexual activity with the appellant.

[11]      Dr. Jones also provided an opinion about J.M.’s predisposition to being overly suggestible when questioned. In this case, the focus was on the manner in which J.M. was questioned by persons in authority about her allegations of sexual assault.

[12]      Generally, people with intellectual disabilities are “highly predisposed to being more suggestible and [to] acquiesce”. In Dr. Jones’ opinion, J.M. is in the 75th percentile for suggestibility within the overall population, “[b]ut average compared to other people with intellectual disabilities.” Suggestibility decreases if the subject of discussion is “more personalized, significant and emotive to the person.” Sexual assault would fall into this category. Moreover, if the information is both visual and verbal, the person is less likely to be suggestible, “meaning that they’re able to recall that information more and less likely to change their answer.”

[13]      Dr. Jones testified that a person like J.M. is more vulnerable to suggestibility when the questioner is a person in authority, like a police officer or a caregiver. Questioners must be careful to avoid asking questions that press for a particular response because a person with an intellectual disability may acquiesce and provide what he or she perceives to be the desired response. In other words, such an individual will be more likely to respond to a leading question by agreeing with what the questioner suggests, even when the suggestion is unintentional. The individual will have a heightened propensity to acquiesce and provide an affirmative response when he or she is uncertain about something.

[14]      Dr. Jones further testified that, when a highly suggestible person is questioned repeatedly, it may result in the provision of new information not previously disclosed, and/or by the modification or distortion of information given before. Because answers may be influenced by the content and presentation of the questions, it is difficult to assess the reliability of information provided unless there is an accurate record of the questioning that elicited the response.

[15]      Dr. Jones reviewed a transcript from J.M.’s first interview with a police officer on September 10, 2013. Dr. Jones observed “multiple” examples of leading questions or forced-choice questions where J.M. changed or distorted what she had said before. But there were also examples “where the information stayed the same”. Dr. Jones explained that J.M.’s level of suggestibility is not static, but rather depends on the facts and the question posed “to her, whether it is pressured or not.” She said that “[t]here are numerous examples where [J.M.] stayed with the same answer and then numerous examples where she went back to [the] initial answer.” Dr. Jones was not asked to provide examples of the phenomena she described. Defence counsel at trial did not ask for a recording or transcript of this interview to be entered into evidence.

In terms of the allegations, the complainant was living with a couple during the relevant time period. The accused and his wife were neighbours. They were friends with the couple that the complainant stayed with. She testified that the accused sexually assaulted her on several occasions while he was walking the dog. The testimony proffered by the accused was a categorical denial of the described events.   His spouse provided evidence to corroborate that support the defence.

The Trial Court found that the accused committed the sexual assaults sometime between 2009 and 2013. The trial judge convicted accordingly.

The Court of Appeal allowed the appeal and overturned the conviction.  The majority of the Court of Appeal held:

[6]         I would allow the appeal and order a new trial. As discussed below, the trial judge’s reasons suffer from several deficiencies which – taken together – foreclose meaningful appellate review. First, the reasons fail to adequately address J.M.’s reliability. This was the central issue at trial. The appellant relied on the evidence of an expert witness called by the Crown who testified that J.M. was highly suggestible, a feature that was evident during one of her police interviews. This evidence is not mentioned, let alone addressed, in the trial judge’s reasons. Second, in an important passage in his reasons, the trial judge appeared to find that J.M.’s evidence was self-corroborating, when it was not. Lastly, the trial judge failed to explain why he rejected the evidence offered by the appellant and his wife. Indeed, the trial judge did not explicitly state that he rejected their evidence, although it is now clear that he did. His reasons for doing so remain a matter of speculation, impervious to review. It is for these reasons that the verdict must be set aside.

It is clear that the Court of Appeal felt that trial judge’s reasons suffered from “several deficiencies which when taken together had foreclosed meaningful appellate review.”

Three (3) key points follow:

(a) the reasons failed to adequately address the complainant’s reliability, especially her propensity for suggestibility; (b) in a key passage in his reasons, the trial judge appeared to find that the complainant’s evidence was self-corroborating, when it was not; and (c) the trial judge failed to explain why he rejected the evidence of the accused and his wife.

This case illustrates the importance of examining the underlying facts that buttress the Trial Court’s reasoning despite the higher degree of deference according to findings of fact rendered by a trial court. A review of this nature is not technical but rather speaks to the core of a trial judge’s reasoning and impugns its logical coherence and inferential structure.

If you have been charged with a Criminal Offence, call Mr. J.S. Patel, Barrister at 403-585-1960.