Case information

Criminal law — Evidence — Assessment — Credibility — Appellant challenging trial judge’s remarks indicating that fact that complainant, after viewing her video-recorded statement, recalled two incidents of sexual activity that she had not recounted in detail in that statement bolstered her credibility and reliability of her testimony — Whether trial judge made error in principle or palpable and overriding error in assessment of evidence — If so, whether majority of Quebec Court of Appeal erred in law in finding that there was no error in principle or palpable and overriding error justifying new trial.

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The appellant, M.L., is the complainant’s father. Through a judgment rendered orally, he was convicted of four sexual offences committed against her when she was between the ages of 7 and 10. In her video-recorded statement to the police, the complainant referred to five incidents of sexual activity but specifically described only three of them. At trial, she testified about two other incidents that had come back to her after viewing her statement to the police in preparation for the hearing. On appeal, the appellant challenged certain remarks made by the trial judge when he assessed the complainant’s testimony, including remarks indicating that the fact that she had recalled two additional incidents after viewing her video-recorded statement bolstered the reliability of her testimony.

The majority of the Quebec Court of Appeal dismissed the appeal, noting that the video-recorded statement to the police, produced under s. 715.1 of the Criminal Code, R.S.C. 1985, c. C-46, was an integral part of the complainant’s testimony. The majority emphasized that the complainant had not contradicted herself by describing five incidents at trial rather than three: she had already told the police that there were five incidents, although she had described only three of them in detail. Moreover, while acknowledging that the trial judge’s comments were [TRANSLATION] “ambiguous”, the majority found that the judge had not linked the bolstered reliability of the complainant’s testimony to the addition of the two incidents as such, but rather to her “limpid” and “clear” account and her “precise” recollection of them, as well as to the context in which these memories had come back to her.

Boucher J.A., dissenting, would have allowed the appeal, set aside the guilty verdicts and ordered a new trial.