[14] However, the more significant difficulty with the decision lies in the treatment of the evidence of the accused and his witnesses. The trial judge concluded his reasons thus:
In my opinion, [the complainant's] testimony had
the ring of truth to it and his manner of giving that
testimony had an air of authenticity about it as
well.
I turn, now, to the testimony of Mr. Horton. It
amounted to a bare denial. That is not to be critical
of him, because there is little else he could say
since there were only two persons present. It was his
word against that of young [K.]; but some parts of
his evidence caused me concern.
...
[16] The fundamental error of approach is disclosed by the first and fourth paragraphs quoted supra. Having found the complainant's evidence to have the ring of truth, the trial judge, as the first sentence of the last paragraph shows, placed the burden on the accused to prove that he was not guilty. The case is essentially indistinguishable from the decision of the Ontario Court of Appeal in R. v. S.(W.) (1994), 90 C.C.C. (3d) 242, in which the court, in allowing an appeal from a conviction under s.151, directed an acquittal. Finlayson J.A. for the court, said at pp.253-254:
The trial judge in the present case gave full
reasons and he recited the evidence accurately. He
also referred to the appropriate authorities. I
cannot say that he misdirected himself in a material
way. His overall approach to this particular case,
however, was wrong. Instead of questioning the
veracity and accuracy of the witnesses who, because
of the nature of the charge, were called to support a
negative, he should have been more critical of the
complainant who put forward the affirmative that the
offences took place: see R. v. Norman, supra, at pp.
172-3. This is another example of the way the trial
judge shifted the onus to the appellant in spite of
the Crown's burden to prove all elements of the crime
beyond a reasonable doubt.
...
[18] In R. v. S.(W.), Finlayson J.A. referred to and adopted relevant language in two decisions of this court. The first is R. v. K.(V.) (1991), 68 C.C.C. (3d) 18, 4 C.R. (4th) 338, (B.C.C.A.) in which case Wood J.A. said at p.35:
I have already alluded to the danger, in a case
where the evidence consists primarily of the
allegations of a complainant and the denial of the
accused, that the trier of fact will see the issue as
one of deciding whom to believe. Earlier in the
judgment, I noted the gender- related stereotypical
thinking that led to assumptions about the
credibility of complainants in sexual cases which we
have at long last discarded as totally inappropriate.
It is important to ensure that they are not replaced
by an equally pernicious set of assumptions about the
believability of complainants which would have the
effect of shifting the burden of proof to those
accused of such crimes.
...
[20] It is not a question of asking "why would the complainant lie?" or "which witness do I prefer?" In the circumstances here, where there is no finding against the truthfulness of the complainant, the ultimate question becomes "having regard to all of the evidence, or the lack of it, can the trier of fact be satisfied of guilt beyond a reasonable doubt."
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