Unreasonable Verdict – Recovered Memories  

Cory Wilson is a criminal lawyer, serving Calgary, Okotoks, Airdrie, Strathmore, Cochrane, Canmore, Didsbury, Medicine Hat, Lethbridge and Turner Valley.

Background

On November 2, 2017, Angus Waterman was found guilty by a jury and convicted of indecent assault and gross indecency against a male from incidents that occurred between 1974 and 1981 (the Criminal Code offences were on the books at that time). The sections of the Criminal Code were as follows:

1. 156. Every male person who … indecently assaults another male person is guilty of an indictable offence and is liable to imprisonment for ten years.
   157. Every one who commits an act of gross indecency with another person is guilty of an indicatable offence and is liable to imprisonment for five years.

The question on appeal was whether the verdict rendered by the jury was unreasonable.

Facts

The complainant described five incidents of a sexual nature involving Waterman. The first incident occurred when Waterman and the boy were driving a motorcycle down the highway. It was alleged that Waterman put the boy’s hand on his exposed penis. The second incident was described as Waterman pulling out his penis and having the boy hold onto it. The third was similar to the first incident. The fourth incident occurred at Waterman’s house where Waterman is alleged to have masturbated in front of the boy until his spouse came home and caught him and ordered the boy to leave. The last incident was when the boy was 13. Waterman was driving the boy in his car and began to pull his penis out. The boy punched Waterman on the side of the head and told him that if he kept doing this, he would find him when he was older and meaner.

Issue

The only issue on appeal was whether the verdict of the jury was unreasonable and unsupported by the evidence because the Crown failed to adduce the evidence necessary to prove the offences beyond a reasonable doubt.

Analysis

Section 686(1) of the Criminal Code provides authority for the Court to set aside a conviction:

On the hearing of an appeal against a conviction … the court of appeal

(a) may allow the appeal where it is of the opinion that

(i) the verdict should be set aside on the ground that it is unreasonable or cannot be supported by the evidence,

Whether a verdict is unreasonable is a question of law:

A verdict is unreasonable or cannot be supported by the evidence if it is one that a properly instructed jury acting judicially could not reasonably have rendered.

1. It is for the jury to decide, notwithstanding difficulties with a witness’s evidence, how much, if any, of the testimony it accepts.  As McLachlin J. put it, at p. 836:

More problematic is a challenge to credibility based on the witness’s alleged lack of truthfulness and sincerity, the problem posed in this appeal.  The reasoning here is that the witness may not have been telling the truth for a variety of reasons, whether because of inconsistencies in the witness’s stories at different times, because certain facts may have been suggested to her, or because she may have had reason to concoct her accusations.  In the end, the jury must decide whether, despite such factors, it believes the witness’s story, in whole or in part.

2. Credibility assessment does not depend solely on objective considerations such as inconsistencies or motives for concoction …
3. The jury is entitled to decide how much weight to give to factors such as inconsistency and motive to concoct.  Particularly where the complainant offers an explanation for inconsistencies, the jury may reasonably conclude that those inconsistencies lose “their power to raise a reasonable doubt with respect to the accused’s guilt”: François, at p. 839.  …
4. To sum up, the reviewing court must be deferential to the collective good judgment and common sense of the jury.  …

The appellate court must not act as a 13^th juror” or simply give effect to vague unease or lurking doubt based on its own review of the written record. The Supreme Court of Canada said in R v. Francois:

On the other hand, however, the review cannot be limited to assessing the sufficiency of the evidence.  A positive answer to the question of whether there is some evidence which, if believed, supports the conviction does not exhaust the role of the reviewing court.  Rather, the court is required “to review, analyse and, within the limits of appellate disadvantage, weigh the evidence” (Biniaris, at para. 36) and consider through the lens of judicial experience, whether “judicial fact-finding precludes the conclusion reached by the jury”: para. 39 (emphasis added).  Thus, in deciding whether the verdict is one which a properly instructed jury acting judicially could reasonably have rendered, the reviewing court must ask not only whether there is evidence in the record to support the verdict, but also whether the jury’s conclusion conflicts with the bulk of judicial experience

Application of the Legal Principles

In her charge to the jury, the trial judge drew attention to the numerous and significant inconsistencies in the complainant’s statement to the police and his testimony at the preliminary inquiry and trial. The complainant explained that what he told police was what he remembered at the time. His memory changed after he underwent counselling. This leads to the issues of recovered memories. The complainant admitted that some of the things he told police were triggered by nightmares and didn’t actually happen.

These recovered memories called for the Crown to adduce expert evidence to explain considerations that would be relevant in assessing the effect of the complainant’s counselling. However, the Crown, which has the onus of proving the offences beyond a reasonable doubt, did not adduce expert evidence to assist the jury in assessing the possible effect of counselling on the complainant’s explanation for the numerous and substantial changes in his story.

The Court of Appeal found that in the circumstances, a properly instructed jury acting judicially could not reasonably have rendered a verdict of guilty beyond a reasonable doubt. The verdict was set aside and an acquittal entered. 

---

Cory Wilson is a criminal defence lawyer based in Calgary. If you have been charged with a criminal offence or are a suspect in a criminal investigation, call today for a free, no obligation consultation.