Case information

Criminal law — Sexual Assault — Appeals — Unreasonable verdict –– Whether the Court of Appeal erred in law in concluding that the verdicts were not unreasonable.

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After a trial before judge alone in the Ontario Superior Court of Justice, the appellants were convicted of one count of sexual assault of the complainant, for which they were jointly charged.

A majority of the Ontario Court of Appeal dismissed the appellants’ appeals, finding the verdicts were not unreasonable. First, the guilty verdicts were available on all of the evidence and were therefore not unreasonable in the sense that no trier of fact, properly instructed and acting judicially, could reasonably have rendered them. Second, the verdicts were not unreasonable for being reached in an illogical or irrational manner. The trial judge fully understood the appellants’ challenge to the complainant’s memory of the assault. She carefully considered the complainant’s evidence and made findings that were open to her on the evidence. These findings were entitled to deference.

In dissent, Dawe J.A., would have allowed the appeals, set aside the convictions and ordered a new trial. He agreed that the verdicts were not unreasonable in the sense that no trier of fact, properly instructed and acting judicially, could reasonably have rendered them. He concluded however that the verdicts were nevertheless unreasonable because of the way in which they were reached — a reasoning path he considered illogical or irrational. In his view, the trial judge’s reasons revealed that she never properly grappled with the central issue before her: namely, whether the complainant’s sleeping flashback was a true memory, as opposed to a confabulation created by her sleeping mind. The trial judge assumed the truth of the critical premise that the sleeping flashback was an actual memory. This made her conclusion that the sleeping flashback was not a dream essentially tautological.