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SCC restores Quebec assault conviction

Ruling says appeal court went too far in assessing evidence
|Written By Glenn Kauth

The Supreme Court of Canada has restored the indecent assault conviction in a case that dates back more than 30 years after concluding the Quebec Court of Appeal went too far in assessing the evidence at trial.

“Whereas the question whether a verdict is reasonable is one of law, whether a witness is credible is a question of fact. A court of appeal that reviews a trial court’s assessments of credibility in order to determine, for example, whether the verdict is reasonable cannot interfere with those assessments unless it is established that they ‘cannot be supported on any reasonable view of the evidence,’” wrote Justice Marie Deschamps in quoting from R. v. Burke.

The case, [a target="_blank" href="http://scc.lexum.org/en/2012/2012scc22/2012scc22.html"]

R. v. R.P.

[/a], hinged in large part on the evidence of two witnesses: the complainant M.L. and her sister G.L., who was also the  accused R.P.'s wife. M.L. was 13 years old at the time of the assaults, which occurred more than 30 years before R.P.’s trial. Among M.L.’s allegations were that R.P. sexually assaulted her while babysitting for the couple when G.L. was about to leave for the hospital to give birth to their second child. But G.L. testified that M.L. didn’t babysit on that occasion. Instead, she said she brought the first child to stay with her mother. M.L., the court noted, didn’t contradict G.L. Instead, she could only say repeatedly: “I have no idea. I don’t know.”

Nevertheless, the trial judge believed M.L.’s testimony. It was clear, Deschamps noted in this morning’s decision, that he took into consideration the weaknesses of the complainant’s testimony and found they weren’t determinative given that the incident had taken 34 years before the trial and given M.L.’s young age at the time.

“The trial judge’s approach was coherent and was also supported by the evidence,” Deschamps wrote on behalf of the majority that included justices Rosalie Abella, Thomas Cromwell, Michael Moldaver, and Andromache Karakatsanis. “It did not justify the intervention of the Court of Appeal.”

Key to the ruling was the question of how far the Court of Appeal should have gone in considering the evidence.

“It is now well established that where a trial judge draws inferences or makes findings of fact that are contrary to the evidence, he or she engages in an ‘illogical or irrational reasoning process’ that invites appellate intervention,’” wrote Justice Morris Fish in his dissenting opinion that referenced R. v. Sinclair.

The inconsistencies in the case, including the evidence related to the assault around the time of the birth of the second child, made the trial judge’s findings unreasonable, Fish concluded.

“In short, the complainant testified that she was abused by R.P. while babysitting when G.L. was in the hospital giving birth to their second and third children,” wrote Fish in a dissenting opinion supported by Justice Louis LeBel. “G.L. testified that the complainant did not babysit on either occasion. The complainant’s evidence was that R.P. again abused her ‘practically every time’ she babysat during the five years covered by the indictment. G.L. testified that R.P. was rarely home without her and that, when home, she had an unobstructed view of the scene of the alleged abuse during much of the relevant period.

“It thus seems to me unreasonable, if I may say so with respect, to find that G.L.’s testimony does not ‘interfere with’ ? or tend to contradict or render implausible ? the evidence of the complainant, M.L.”


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