A summary follows:
H was acquitted at trial of two counts of sexual assault on his 17 year-old cousin. A alleged that on two occasions in 2006, H had non-consensual sexual intercourse with her while she was sleeping with him in his bed. A testified that she told H to "stop" both times but that he eventually had intercourse with her. On both occasions, she spent the rest of the night with H in his bed. A did not tell anyone about the occurrences but posted a poem online very soon after the first incident as "an outlet", and this led to the incidents coming to light. At trial, H denied any sexual contact with A. The trial judge had "absolutely no doubt" that sexual intercourse had taken place between H and A but was not satisfied that A was sexually assaulted without her consent. The court of appeal concluded that the trial judge erred in law in mishandling the evidence by taking a "piecemeal" approach incompatible with his obligation to consider the cumulative effect of all relevant evidence.
While it is an error of law for a trial judge to assess the evidence piecemeal, the trial judge's reasons here did not disclose any such error. The court of appeal misapprehended the record when it faulted the judge for not referring to A's testimony on the issue of consent, as he did so on at least three occasions. Moreover, the trial judge did not have to "reject" A's evidence in order to be left with a reasonable doubt arising from the whole of the evidence. In fact, he gave extensive reasons as to why he was left with a reasonable doubt on consent. There was also no basis for concluding that the trial judge used small excerpts from the poem out of context. He quoted the poem as a whole and then drew attention to language that raised concerns in his mind. Finally, the court of appeal erred in concluding that a couple of brief excerpts from the poem that had "tipped" the balance in favour of acquittal. The trial judge's concerns regarding consent were based on the evidence of the relationship between H and A, the testimony of the A's sister about how many times she had been in H's bed, and the fact that A had returned both times to the same bed in which she had been violated. The judge's references to the poem excerpts were in the context of his references to other aspects of the evidence, and he explicitly stated that he was taking account of all the circumstances of the case in reaching his conclusion.
The Crown's right of appeal from an acquittal of an indictable offence is limited to "any ground of appeal that involves a question of law alone". The jurisprudence currently recognizes at least four types of cases in which alleged mishandling of the evidence may constitute an error of law alone giving rise to a Crown appeal of an acquittal; this may not be an exhaustive list. First, it is an error of law to make a finding of fact for which there is no evidence. However, a conclusion that the trier of fact has a reasonable doubt is not a finding of fact for the purposes of this rule. Second, the legal effect of findings of fact or of undisputed facts may raise a question of law. Third, an assessment of the evidence based on a wrong legal principle is an error of law. Fourth, the trial judge's failure to consider all of the evidence in relation to the ultimate issue of guilt or innocence is an error of law, but this error will be found to have been committed only if the reasons demonstrate that this was not done. The trial judge's reasonable doubt did not have to be based on the evidence; it could arise from the absence of evidence or a simple failure of the evidence to persuade him to the requisite level of beyond reasonable doubt. It is only where that reasonable doubt is tainted by a legal error that appellate intervention in an acquittal is permitted.
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