Her Majesty the Queen v. C. K-D.
(Ontario) (Criminal) (As of Right)
(Publication ban in case) (Publication ban on party)
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Criminal law - Charge to jury - Whether the majority of the Court of Appeal erred in law in holding that the trial judge misdirected the jury on the standard to be used in assessing the complainant’s credibility given that the offences occurred when she was 12 years old and she testified when she was 17 years old - Whether the majority of the Court of Appeal erred in law in failing to apply the curative proviso in section 686(1)(b)(iii) of the Criminal Code, R.S.C. 1985, c. C-46.
Following a jury trial, the respondent was convicted of one count of sexual interference and one count of sexual assault. The complainant was 12 years old at the time of the alleged assaults, but was 17 years old when she testified at the respondent’s trial. In her instructions to the jury, the trial judge told the jury, in respect of the complainant’s testimony, that “in terms of her evidence pertaining to the events, it is the memory of a 12 year old that you are really considering”. The respondent appealed his conviction, arguing that the trial judge erred in her instructions to the jury by suggesting that the jury should assess the complainant’s testimony as if she was a 12-year-old witness and not a 17-year-old witness. The majority of the Court of Appeal allowed the appeal, set aside the convictions and ordered a new trial. It was of the opinion that the trial judge’s statement to the jury could be interpreted to mean that the jury was obliged to assess the complainant’s credibility as if she was 12 years old, and would have been a source of confusion for the jury on the critical issue in the trial, being the assessment of the complainant’s credibility. Benotto J.A., dissenting, would have dismissed the appeal. He was of the view that the trial judge’s statement in an otherwise correct charge would not have led the jury to assess the complainant’s testimony about non-peripheral events with a lower standard of scrutiny, and would not have been a source of confusion for the jury.
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