Case information

Criminal law — Evidence — Assessment — Credibility — Whether trial judge erred in law in failing to resolve material inconsistencies in complainant’s evidence — Whether trial judge erred in law in failing to assess complainant’s testimony in light of evidence as a whole?

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Mr. Berg and the complainant met when Mr. Berg checked into a hotel while the complainant was working at the check-in desk. They exchanged contact information, communicated with one another over the next two days, and then the complainant accepted an invitation to come to Mr. Berg’s hotel room and hang out after her shift ended. The complainant testified that she was sexually assaulted in the hotel room. Mr. Berg testified and described consensual sexual intercourse. The only issue at trial was whether the Crown proved beyond a reasonable doubt that the complainant did not consent to the sexual intercourse. The defence argued that the complainant fabricated her version of events and her evidence had credibility issues because she was materially inconsistent in some of her testimony. The trial judge convicted Mr. Berg of sexual assault. A majority of the Court of Appeal dismissed an appeal from the conviction. In part, the majority held that the trial judge did not disregard material contradictions in the complainant’s testimony nor did the trial judge fail to properly consider issues with her evidence that would bring his credibility analysis into question. Drennan J.A., in dissent, held that the trial judge failed to consider material inconsistencies in the complainant’s evidence relevant to a material issue and to the ultimate question of guilt or innocence. Drennan J.A. held the appeal should be allowed, the conviction should be set aside, and a new trial should be ordered.