SUPREME
COURT OF CANADA
Between:
Garry
Howard James
Appellant
and
Her
Majesty The Queen
Respondent
Coram: LeBel, Rothstein, Moldaver, Karakatsanis and Wagner JJ.
|
Reasons for
Judgment:
(paras. 1 to 6)
|
Moldaver J. (LeBel, Rothstein, Karakatsanis and Wagner JJ.
concurring)
|
R.
v. James, 2014 SCC 5, [2014] 1 S.C.R. 80
Garry Howard James Appellant
v.
Her Majesty The Queen Respondent
Indexed as: R. v. James
2014 SCC 5
File No.: 35373.
2014: January 17.
Present: LeBel, Rothstein, Moldaver, Karakatsanis and
Wagner JJ.
on appeal from the court of appeal
for british columbia
Criminal law — Offences — Sexual assault — Evidence
— Consent — Accused stating to police that complainant consented to sexual
relations — Statement not admitted into evidence and accused maintaining that
he had virtually no recollection of events — Accused acquitted but new trial
subsequently ordered — In assessing consent, trial judge could not rely on
police statement not forming part of record and should have taken into account
other circumstantial evidence.
APPEAL
from a judgment of the British Columbia Court of Appeal (Ryan, Smith and
Hinkson JJ.A.), 2013 BCCA 159, 336 B.C.A.C. 207, 574 W.A.C. 207, 297 C.C.C.
(3d) 106, [2013] B.C.J. No. 677 (QL), 2013 CarswellBC 856, setting aside the
acquittal entered by Romilly J., 2011 BCSC 612, 86 C.R. (6th) 107, [2011]
B.C.J. No. 879 (QL), 2011 CarswellBC 1129, and ordering a new trial. Appeal
dismissed.
Christopher Darnay and Michelle
Poulsen, for
the appellant.
Margaret A. Mereigh, for the respondent.
The judgment
of the Court was delivered orally by
[1] Moldaver J. — We agree with the majority of the British Columbia Court of Appeal
that there must be a new trial in this matter.
[2] In
assessing the crucial issue of consent, the trial judge found that the
complainant was suffering from some sort of memory loss at the time the
appellant claims that “she gave him her consent for sexual relations”
(2011 BCSC 612, 86 C.R. (6th) 107, at para. 45).
[3] With
respect, the appellant gave no such evidence of consent. Only in his statement
to the police did he claim that the complainant consented. But that statement
was not admitted into evidence and formed no part of the record. At trial, the
appellant maintained that he had virtually no recollection of the events on
that evening due to alcohol and drug consumption. He did not testify that the
complainant consented to sexual relations.
[4] In
our view, the trial judge’s reliance on evidence that did not form part of the
record may have coloured his thinking on the issue of consent, particularly in
assessing whether the complainant may have consented to sexual relations but
forgot that she had done so due to memory blackout, or, as she claimed, that
she was unconscious at all material times and never consented to sexual
relations.
[5] In
addition to this error, in assessing the issue of consent, the trial judge
failed to take into account the several occasions throughout the evening when
the complainant made it known to the appellant that she was not interested in
having sexual relations with him. Her evidence in this regard was confirmed in
part by an independent witness found by the trial judge to be credible.
Similarly, the trial judge failed to consider the complainant’s distraught
condition a short time after the event when she reported the alleged sexual
assault to the police.
[6] For
these reasons, we agree with the majority of the Court of Appeal that a new
trial must be ordered. Accordingly, we would dismiss the appeal.
Judgment accordingly.
Solicitors
for the appellant: Christopher Darnay, Vancouver; Michelle Poulsen, Vancouver.
Solicitor
for the respondent: Attorney General of British Columbia, Vancouver.
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