Reversal in statements raised no reasonable doubt about whether complainant was assaulted: case
The Ontario Court of Appeal recently upheld a trial judge’s finding that a woman did not initially tell police about an incident where her husband allegedly sexually assaulted her because she feared his retaliation.
In January 2017, the appellant allegedly assaulted the complainant and injured her thumb. The appellant was arrested in June 2018. The complainant, who was the appellant’s wife, told police that he did not sexually assault her.
Later, the complainant disclosed that the appellant forced her to engage in non-consensual anal intercourse in October 2017. She also gave evidence that her thumb was still bruised six months after the January 2017 incident.
The trial judge convicted the appellant of three counts of assault and one count of sexual assault against his wife. On appeal, the appellant alleged that the judge misapprehended the evidence about the sexual assault and wrongly assessed credibility regarding all charges.
The appellant claimed that the reversal in the complainant’s earlier and later statements about whether a sexual assault occurred should have raised a reasonable doubt about whether he sexually assaulted her.
He also said that the judge erred by concluding that an assault occurred and by accepting the complainant’s “convoluted and contradictory” evidence about the alleged assaults. There was no medical evidence on which the judge could rely, given that the doctor simply said that “everyone heals differently,” he added.
Evidence not misapprehended
In R. v. S.F., 2022 ONCA 854, the Ontario Court of Appeal dismissed the appeal.
First, the appellate court ruled that the complainant’s reversal in statements about whether the appellant sexually assaulted her was not enough to raise a reasonable doubt about whether a sexual assault occurred.
The trial judge was entitled to accept the complainant’s evidence that she initially did not tell police about the October 2017 sexual assault since she was afraid of her husband’s retaliation and was entitled to find that the complainant was in a “bad physical and emotional state” then, the Court of Appeal said.
Second, the appellant argued that the trial judge misapprehended the evidence about the October 2017 sexual assault by stating that the complainant said that “90 percent of the occasions” were not consensual when the complainant in fact said that “90 percent of the situation” was nonconsensual. The appellate court disagreed and found no material misapprehensions.
Third, the Court of Appeal determined that the trial judge was entitled to accept the complainant’s evidence regarding the assaults. The appellate court said that the judge recognized frailties in the complainant’s evidence and self-cautioned himself.
The judge’s finding that the assault occurred did not depend on whether the complainant’s thumb injury lasted over six months, the appellate court noted. Apart from relying on the doctor’s evidence that the injury could last, the judge also accepted the complainant’s evidence about the injury, the appellate court said.
