R. v. Equivel-Benitez, 2020 ONCA 160

CREDIBILITY - RAPE MYTHS - MOTIVE TO FABRICATE

The Appellant was convicted of sexual assault following a judge alone trial. The ONCA concludes that the following errors require the conviction to be set aside and a new trial ordered:

  1. It was a WD error to treat credibility as a competition between the complainant’s and the Appellant’s testimony. It is the TJ’s role to consider whether the evidence as a whole  raises a reasonable doubt, rather than deciding which testimony the TJ prefers.

  2. Not every challenge to a complainant’s credibility perpetuates rape myths or stereotypes about consent. Where the evidence supports a possible motive to fabricate, the TJ must consider this evidence in assessing the complainant’s credibility.

  3. The Appellant was in the courtroom while the complainant testified. Accused persons have a right (and statutory obligation) to be present at their trial. It was an error for the TJ to use this right against an accused person by holding that he had an opportunity to tailor his evidence following the complainant’s testimony, and that he did in fact do so. A TJ can only engage in this type of reasoning  in the face of an allegation of recent fabrication.

Sara Little