Accused’s Credibility Cannot Be Based on Questions Regarding Sexual Orientation

In a 2017 proceeding, a man convicted of three charges — sexual assault, sexual interference with a person under 16 years of age, and invitation to sexual touching of a person under 16 – successfully appealed his convictions in the B.C. Court of Appeal. The accused’s/appellant’s grounds for appeal were that the trial judge erred when she relied on the accused’s responses to questions pertaining to his sexual orientation as evidence that he lacked credibility. The Appellate Court allowed the appeal and ordered a new trial based on a finding that the judge’s questions were unfair and irrelevant and further, an accused’s sexual orientation is rarely admissible as evidence, where identity is not an issue in the trial.

The Original Trial: R. v. T.J.B.

The appellant/accused was charged with five sexual-related offences in the original trial but for two of the offences, the Crown directed a stay of the proceedings. The complainant, S.S., was a 12-year-old male at the time of the trial, and the sexual assaults were alleged to have taken place when he was 9 to10 years of age. The case rested largely on the testimony of the complainant and the accused.

The defence argued that the accused man and his two corroborating witnesses were credible, forthright and reliable witnesses, and their testimony was believable and should at least raise a reasonable doubt that the accused was guilty. The Crown disagreed and stated that there were serious credibility concerns with the accused’s evidence and the testimony of one of his witnesses and also, the testimony of the other witness contradicted some of the key testimony presented by the accused. The Crown also argued that the minor inconsistencies in the complainant’s testimony did not weaken the reliability of his evidence when viewed as a whole and further, the Supreme Court has found that a child’s memory and observations cannot be judged by the same standards as an adult’s.

The trial judge did not find the accused’s evidence or his mother’s evidence to be credible and believed that the evidence given by the accused’s friend did not sufficiently corroborate his testimony on key points so as to raise reasonable doubt on his guilt.

In contrast, although the trial judge acknowledged that there were reliability issues with the complainant’s evidence, the judge noted that, at the age of 9 or 10, a child cannot be expected to have perfect recall of past events, particularly when the events occurred multiple times over a long period. The judge found the complainant’s evidence credible despite several false statements, such as when the complainant told the Court and police that the accused forced him to watch pornography and also when he blamed the accused for the pornography found on his iPod. There were other discrepancies in the complainant’s evidence at the trial versus his evidence at the preliminary inquiry, which the defence argued as challenging his credibility.

The trial judge stated that additional incidents of sexual touching that were reported in the complainant’s second interview with police were not signs of fabrication since both children and adults may forget events when under stress and remember them later when they are calm. The judge also dismissed the defence’s argument that the complainant was told what to say by members of his family; for example, it was clear that terms such as ‘masturbate’, ‘sexual assault’ and ‘dry humping’ had been explained to the complainant prior to giving evidence.

The judge declared a belief that the complainant had no motive to fabricate his accusations against the accused. Although the accused refused to allow the complainant to use his credit care for iPod apps, the judge believed, if this had been motivation for inventing allegations, the allegations would likely have occurred at an earlier date. The trial judge also dismissed the defence’s argument that the complainant’s parents encouraged the complainant to make allegations against the accused because the parents owed the accused money. One of the judge’s reasons for dismissing this argument was that she found it unlikely that the parents would spread rumours about the accused’s sexual improprieties with their son if they were holding these accusations over the accused’s head.

The accused’s conviction was based on the trial judge finding that the complainant’s evidence was reliable and genuine. The judge also believed that the close physical and emotional relationship between the accused and complainant, the accused’s constant desire to spend time alone with the complainant, and the gifts he shared with the complainant, were evidence of the accused’s guilty state of mind. Finally, given the age of the complainant, the trial judge noted that consent cannot serve as a defence on the sexual assault charge.

Court of Appeal Arguments and Decision

In R. v. T.J.B. (2017), the appellant/accused argued that the trial judge erred in two ways: 1) in permitting the Crown to present improper rebuttal evidence; and 2) in the manner the trial judge assessed the appellant’s credibility, in particular, by inappropriately considering his responses on questions pertaining to sexual orientation. The first issue is one of procedural fairness and concerns the judge’s decision to allow the Crown to present rebuttal witness testimony by the principal at the complainant’s school. Essentially, the principal testified that it was he who called a meeting with the accused in response to rumours about unusually close and inappropriate contact between the accused and the complainant. The principal’s testimony contradicted the accused’s testimony that it was, in fact, he who arranged a meeting with the principal and police to discuss false rumours concerning his relationship with S.S.

Justice Willcock rejected the appellant’s argument that the rebuttal evidence was inadmissible because it was not asked directly of him when he testified, contrary to a rule stated in Browne v. Dunn (1893). Instead, Justice Willcock found that the principal’s evidence was in response to a point made for the first time in the appellant’s testimony and therefore, the trial judge did not err in allowing the evidence in rebuttal (Krause v. The Queen (1986), R. v. LaHaie (1988)).

On the second key argument, the appellant stated that the trial judge made the following errors in assessing the facts leading up to her decision on the appellant’s credibility:

1. The judge relied on allegations concerning the appellant’s conduct that were not put to the appellant in cross-examination.
2. The appellant’s evidence was erroneously described.
3. The judge did not place weight on evidence presented by the appellant’s friend, C.R.
4. It was a mistake to conclude the complainant and his mother had not been cross-examined on certain questions.
5. The judge placed weight on the way the accused answered questions concerning his sexual orientation.

The Crown acknowledged that there were instances where descriptions of evidence made by the trial judge were erroneous, such as the question of where the complainant took a shower when at the accused’s home. The Crown also recognized that some evidence given by the complainant’s mother, C.S. were not put to her in cross-examination, including whether the accused was asked to be a volunteer at the complainant’s school. On appeal, Justice Willcock noted that a failure to cross-examine a Crown witness on the accused’s evidence may unfairly affect an assessment of the accused’s credibility, as it could result in an inference that the accused has not been consistent in their evidence, has not informed their own lawyer of evidence they intend to give or wishes to prevent the Crown witness from being able to answer his/her case.

Justice Willcock found that the impact of the acknowledged errors was difficult to assess in terms of the trial judge’s ultimate decision. In any case, Justice Willcock believed that a more substantial error was made when the Crown was permitted to question the appellant on his sexual orientation and then factor his answers in a determination of his credibility.

In cross-examination on questions of his sexual orientation, the appellant was asked multiple questions (such as whether he talked about girls with his friends or had ever dated a girl) and his answers consistently supported the fact that he was heterosexual. Upon consideration of this testimony, the trial judge commented that she believed his answers were contrived and disingenuous, and she found the accused to be “highly defensive of his sexuality”.

Justice Willcock believed that the trial judge’s assessment of the accused’s testimony as ‘disingenuous and contrived’ suggests that she found his evidence on this issue to be intentionally untruthful. In fact, there was no evidence presented in the trial that contradicted the appellant’s account of his sexual orientation except for the allegation that he was involved in homosexual acts with the complainant; however, the latter allegation cannot be assumed to be factual for the purposes of assessing the appellant’s credibility. Justice Willcock concluded that simply commenting on the appellant’s demeanour in responding to the questions on sexual orientation, even if the judge had not come to any conclusion on the honesty of the appellant’s answers, was unfair and not evidence-based.

Justice Willcock further stated that the appellant’s sexual orientation is not relevant in deciding whether he is guilty of the charges. The courts have found that evidence of sexual orientation cannot be used to make an inference that a person is more likely to have committed a crime (R. v. Wilson (1990), R. v. Taylor (1982), R. v. Gratton (1995)).

In R. v. M.F. (2009), the Court found that, with the possible exception of a crime involving sexually deviant behaviour such as paedophilia, the fact that someone found another person sexually attractive does not increase the likelihood that they sexually assaulted the other person.

The Crown noted that defence counsel did not object to the questions put to the appellant during the trial so the trial judge was not obligated to rule on admissibility. The Crown also stated that, in the absence of argument and evidence that may have been led to a ‘voir dire’ (i.e. a trial within a trial), the court must be cautious with respect to finding fault. Justice Willcock agreed that the court must scrutinize an appeal based on objections to evidence to which there were no objections during the trial or a ruling by the trial judge. However, Justice Willcock pointed out that the Crown did not have arguable grounds for admitting the evidence of the appellant’s sexual orientation, given that this matter was not made an issue by the defence. Further, the judge asserted that a reliance on this inadmissible evidence to evaluate the accused’s credibility is problematic.

A person is placed in an unfair position when asked about sexual orientation and there may, in fact, be no right answer as any reply may be construed as inappropriate or may result in an unsubstantiated inference. Further, there are many reasons why someone may not wish to assert their sexual orientation, and their reasons may have no relation to their guilt or innocence. For example, a gay man who faces a sexual assault charge against a boy would have reasonable concerns that if he acknowledges his homosexuality, his admission could be wrongly viewed as a sign of sexual attraction which could lead to a false inference that he was increasingly likely to have committed the crime.

Justice Willcock concluded that it was unjust for the trial judge to have judged the appellant on the value of his responses, after allowing him to be placed in the unfair position of answering questions on his sexual orientation. The appellant relied on Fanjov v. The Queen (1985) and R. v. Ahmed (2015) in arguing that the conviction must be set aside because an inappropriate cross-examination damages the appearance of fairness in a trail and results in a miscarriage of justice. However, Justice Willcock believed that resolution of this case did not require that he resolve the appellant’s argument. Since the trial judge’s decision was largely based on her findings on credibility, Justice Willcock asserted that we cannot know to which extent the identified errors negatively influenced her findings on the appellant’s credibility. Therefore, the Crown had not met its onus of establishing that the trial judge’s decision would have been the same if the errors had not occurred. Accordingly, Justice Willcock allowed the appeal, set aside the conviction, and ordered a new trial.

A sexual assault conviction has a substantial impact on a person’s life including the prospect of facing a lengthy jail term, receiving a criminal record and a negative effect on current and future employment prospects. There is also the public stigma and embarrassment of being labelled a sexual offender and placement on the National Sex Offender Registry. If you are charged with a sexual assault offence or any type of sexual offence, contact an experienced sexual offences lawyer at Kruse Law. The Kruse Law team has successfully represented many clients accused of sexual assault or domestic assault and you can be assured that we have the requisite resources and knowledge for achieving the best possible outcome for your case.