His Majesty the King v. Edwin Tsang

(British Columbia) (Criminal) (By Leave)

(Publication ban in case)


Criminal law - Trial - Criminal law — Trial — Judgments — Sexual assault — Whether the Court of Appeal erred by not applying a deferential standard of review, and intervening on the basis that the trial judge erred in law by basing her credibility conclusions on unfounded generalizations — Whether the Court of Appeal erred by not conducting a functional and contextual review of the trial judge’s reasons — Whether the Court of Appeal erred by improperly re-weighing the evidence in concluding that the alleged unfounded generalizations were material — What is the appropriate remedy for the Court of Appeal’s errors?



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The respondent and the complainant had mutual friends, but met for the first time at an event. When that event ended, the respondent drove the complainant and her friend, to Commodore Ballroom. The respondent and the complainant continued drinking and dancing and later left the Commodore in the respondent’s car. On the way to the complainant’s home, they got into the back seat to “make out”. The trial judge found that what ensued after the initial consensual foreplay was a sexual assault. The trial judge convicted the respondent of sexual assault. The Court of Appeal allowed the conviction appeal, set aside the conviction and ordered a new trial.