Comprehensive Legal Notes on Barr Trial Appeal and Consent Jurisprudence and Sexual Assault Consent Standards of Consent
Legal Context and Comparisons to Prior Jurisprudence: Shepherd and Walker
The proceedings open with a discussion regarding the sufficiency of judicial reasons to prevent situations similar to those that lead to complex appeals, referencing a potential for a "one to find a thousand today" scenario.
The Shepherd Precedent:
In the case of Shepherd, the issue was characterized as one of opaqueness.
There was a lack of underlying evidentiary analysis beyond a simple credibility determination leading to a guilty verdict.
In the current case (Barr), it is argued that the judge made statements regarding credibility based on a witness who testified and was believed, rather than a mere assertion of guilt or innocence without context.
The Walker Framework:
The court states that the deficiency of reasons is established by the specific grounds of appeal.
A distinct standard applies depending on whether the appeal concerns a guilty verdict or an acquittal.
For a guilty verdict, the justice must explain the reasons for the factual findings that lead to the conclusion.
It is argued that the current decision is consistent with Walker and not deficient under the Shepherd standard.
Grounds for Appeal by Prosecution:
Insufficient reasons linked to a question of fact do not generally constitute a ground of appeal for the prosecutor.
Extending this would inappropriately widen the scope of prosecution grounds for appeal.
Appeal is only open if there is insufficient evidence relative to the assessment of findings, but a complete absence of reasons is a different legal threshold.
Analysis of the Sexual Assault Allegations and Credibility Findings
The 2017 Event Findings:
The trial judge concluded that the complainant's testimony was not credible and noted issues related to fabrication and a child custody dispute.
The judge's findings for the event of must be evaluated against the standard of reasonable doubt.
There was a notion of capacity to consent and continuous consent at issue during the event.
The Time Lapse Argument:
The appellant's own testimony admitted to a physical act lasting maximum or minutes before stopping.
The complainant did not contradict this description of the physical event.
Counsel Mowell notes a nuance: the or minutes detail originated from a recording, not the appellant's direct testimony.
The appellant was cross-examined on this recording, explaining they had been fighting for hours and were intoxicated; he claimed the timeframe was a "way of speaking."
The appellant remained categorical that sexual relations were discussed, and when the complainant refused, he turned around and slept on his side of the bed (referenced at page of the file).
Rejection of Complainant Testimony:
The judge did not provide a step-by-step account of why the complainant was rejected but provided an overall assessment that the evidence was not credible.
Specific elements were identified as fabricated to be used in court, particularly given the timing of the complaint coinciding with a child custody application.
The judge accepted the accused's testimony, which is argued to be sufficient to establish reasonable doubt.
The Event: Capacity to Consent, Intoxication, and Location Discrepancies
Subject of Consent and Prior Ability:
Capacity to consent is a question of law.
Findings of fact are required to determine if the complainant consented in error.
As per page of the decision, ability to consent is a prior necessary condition; if a plaintiff is incapable of consenting, there can be no voluntary consent throughout the duration of sexual relations.
The Location Error (Bathtub vs. Son's Bed):
The trial judge erroneously stated that the event took place in the bathtub (noted twice at tab of the respondent's book).
The actual disputed relation occurred in the couple's son's bed.
This misdescription is significant because different legal considerations might apply to the bathtub interactions versus the bed interactions.
The Crown argues the judge might have improperly used consent given in the bathtub to infer a "subjective consent" or a "general consent" for what happened later in the son's bed.
Evidence of Participation:
The judge concluded that consent was not only given but fulfilled.
The appellant's testimony claimed the complainant joined him in bed, though the evidence actually showed they both ended up in the son's bed separately.
The complainant was reportedly heavily intoxicated, had no reaction other than "spreading her legs," and later claimed she did not remember or want the contact (the "next day" testimony).
The JMH Error: Findings of Fact in the Total Absence of Supporting Evidence
Definition of the JMH Error:
A conclusion of fact based on no evidence constitutes an error of law.
This occurs when a judge draws a conclusion that is not supported by any witness testimony or evidence in the record.
The Rain Metaphor:
If water is dripping down a window, a judge may infer it is raining (a conclusion of fact based on credibility or inference).
If a witness never mentions water and says the window was open, but the judge concludes it is raining based on the witness, that is a conclusion drawn in the absence of evidence.
Application to the Case:
The "JMH error number one" specifically concerns the event.
The trial judge found that the complainant invited the appellant into the bed.
Both the majority and the dissenting judge agreed there was no evidence the complainant invited him into the son's bed; rather, the appellant initiated contact after she had already gone there to sleep because she did not want to be with him.
The Crown argues that without this erroneous finding of an "invitation," there is almost no evidence left to buttress the judge's conclusion that consent was fulfilled.
The Allegations: Vitiated Consent and Power Dynamics
Vitiated Consent and "Giving In":
In the event, the complainant testified they were arguing about sex, she "got tired," and she "gave in" to his advances to end the argument.
The Crown argues this represents an abuse of power and a vitiated consent.
The trial judge is criticized for not examining whether consent was vitiated and failing to apply the "no means no" principle in this context.
The lack of substance in the judge's reasoning makes it impossible to follow the steps taken to reach an acquittal.
Appellate Review Standards and Procedural Remediations
Graveline Test and Acquittals:
The possibility for the Crown to appeal an acquittal is very narrow.
The court must determine if the reasons are so unintelligible that they fail to provide a basis for appellate review.
The Crown submits that the reasons in this case are not just "laconic" but deficient/unintelligible because they fail to address key legal thresholds like capacity and continuous consent.
Proposed Remedies:
Maintain Acquittal: The appellant argues that the reasons, while imperfect, allow for an understanding of the judge's rejection of the complainant's credibility.
New Trial: The Crown and the majority of the Court of Appeal suggest a new trial is necessary because the path to acquittal is logically unreachable without committing errors in law.
Partial New Trial: At tab , it is suggested that if an error of law is found only for one event (e.g., ), a new trial could be ordered specifically for that event while maintaining the other acquittals.
Curative Proviso: Discussion of whether the curative proviso should apply, as per the Shepherd and Graveline standards.
Questions & Discussion
Jury Trial Comparison: A justice asks if it would be sufficient for a judge to instruct a jury simply to "decide if they believe the witness" without more. The response is that the current trial judge's reasons are essentially at that level of insufficiency.
The Southall Case: Reference is made to Southall from Nova Scotia (paragraph ), where a judge found sexual activity occurred while a person was asleep, but that finding was not supported by the record.
Intelligibility of Reasons: Justice Jamal asks how the informational credibility leads to the trial judge's reasoning. Counsel responds that the reasons must be intelligible to the Court of Appeal to show the judge understood the legal requirements of Section .
The Nature of the "Invitation": Discussed by Miss Weiler; the "no supporting evidence" error is factual findings "conjured out of whole cloth." She argues the JMH standard is workable and easily applied by asking a binary "yes/no" question: "Is there evidence in the record to support the finding?"
Final Rebuttal points: The appellant's counsel argues that even if the judge's reasons were more fulsome, the result (reasonable doubt) would remain the same because the core issue was the complainant's lack of credibility.