Appeal court overturned sexual assault conviction due to trial judge’s misapprehension of key evidence regarding timing of bolt removal, which was material to credibility assessment and reasoning process.
In R. v. CEK, 2020 ABCA 2, the appellant was convicted of sexually assaulting his partner over 18 months. The case centred on credibility between the complainant’s allegations of various sexual assaults and the appellant’s complete denial.
Key evidence involved bolts allegedly used to tie the complainant to a bed during assaults. The complainant testified that bolts were removed from the bed in summer 2011 after their separation. Her friend corroborated removing bolts but testified this occurred in spring 2014, not 2011 – a three-year discrepancy.
The trial judge misapprehended this evidence, incorrectly stating that the friend’s testimony supported the complainant’s timeline. The judge described the friend’s evidence as “important,” “striking,” and supportive of the complainant’s credibility, using it to reject the defense theory that the complainant fabricated the bolt evidence.
The Court of Appeal found this misapprehension was material, not merely peripheral detail. The three-year timing gap was significant because it opened other possible explanations for the bolts’ presence that the trial judge never considered. The error played an essential part in the credibility assessment and reasoning process.
The court also criticized the trial judge’s harsh characterization of the appellant’s denial as “unbalanced and self-serving,” noting this undermined presumption of innocence principles, and her failure to properly assess evidence regarding the complainant’s alleged motive to fabricate.
The conviction was set aside and a new trial ordered.
