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The trial judge committed an error of law by refusing to consider permissible inferences from the complainant's inconsistent testimony about avoidance, having misapplied the law on myths and stereotypes; that error materially tainted the credibility assessment and the conviction, warranting setting aside the conviction and ordering a new trial.
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The trial judge did not commit legal error in assessing inconsistencies or delayed disclosure; her credibility and factual findings stand and the 5-year global custodial sentence is fit given the egregious sexual interference and assault of a young person, therefore convictions and sentence are upheld.
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The British Columbia Court of Appeal dismissed an appeal from a sexual interference conviction, holding the jury charge properly addressed delayed disclosure and motive to fabricate.
Trial judgment on multiple sexual offence charges against a grandfather. The court convicted on five counts and acquitted on one count.
After a detailed assessment of credibility and reliability the trial judge accepted the complainant’s evidence as truthful and reliable, rejected key parts of the wife’s evidence as exaggerated or advocacy-driven, applied the expanded W. (D.) framework and concluded the Crown proved the accused guilty beyond a reasonable doubt on all eight counts.
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The court convicted Robert Matthew Gerrard on one count of sexual interference involving J.I. and acquitted him on the count involving S.C., applying credibility and reasonable doubt analysis.
The appeal is dismissed because the trial judge’s credibility findings and inferences were supported by the record, the verdicts were reasonable on any proper view of the evidence, demeanour and delay were properly treated as factors (not conclusive), and no misapprehension or legal error was shown that would displace appellate deference to the trial judge.
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Trial judge accepted the complainant's core evidence as credible and reliable and found beyond a reasonable doubt that the accused intentionally touched the complainant's breasts, buttocks and inner thigh in circumstances constituting sexual interference (s.151); the Crown also proved sexual assault (s.271) but stays were imposed in relation to the two s.271 convictions under principles raised for Kineapple, such that convictions for s.151 were sustained while s.271 convictions were stayed.
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The convictions were reasonable: the trial judge provided a detailed, principled credibility assessment, properly considered inconsistencies, delayed and piecemeal disclosure, demeanour and corroborative evidence from independent witnesses, and did not err in applying W.(D.), D.D. or J.J.R.D.; therefore the appeal against conviction fails.
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Read in context the trial judge properly conducted a W.(D.) analysis, accepted the complainant's consistent and compelling evidence, permissibly drew an adverse credibility inference from the appellant's unexplained denial of his earlier statement, and made no palpable and overriding errors; the conviction is therefore affirmed and the sentence, being within the appropriate range, will not be disturbed.
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