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Criminal law - Trial - Reasons of trial judge - Whether paragraph 202(d) of the trial judge’s reasons or paragraph 202(e), read in context, did not reverse the burden of proof or presumed the Respondent’s guilt and accordingly fell into the category of harmless and unnecessary comments.

On April 3, 2005, the deceased, Ms. Courtepatte, and her friend, K.B., were lured from West Edmonton Mall on the false promise of being taken to a party. The pair left the Mall and got into a car with the Respondent, three youths, and one Michael Erin Briscoe. They drove to a golf course west of Edmonton. Upon arrival, a wrench and sledge hammer were retrieved from the trunk of the car and the group walked to a fairway on the golf course. The Respondent is said to have instructed one of the youths to strike the victim with the wrench. Shortly thereafter, it is alleged that the Respondent and one of the other youths had sexual intercourse with the victim without her consent and then killed her by hitting her several times in the head with the sledge hammer. Her badly beaten body was found on the golf course the next day.

The Respondent was jointly tried with Michael Briscoe. The Respondent testified at his trial. He acknowledged being present at the time of the victim’s kidnapping, sexual assault and murder, but he denied participating in any crime. The trial judge rejected the Respondent’s evidence and convicted him of first degree murder, aggravated sexual assault, and kidnapping. In the initial step of his analysis under R. v. W.(D.), [1991] 1 S.C.R. 742, he stated that he disbelieved the Respondent, in part for the following reasons: (para. 202 (d)) “The fact that he has a very great motive to be untruthful given the consequences of being convicted of the offences charged.”

On appeal, the majority of the Court of Appeal allowed the appeal and ordered a new trial. Rowbotham J.A. dissenting would have dismissed the appeal on the ground that: “Neither para. 202(d), nor the trial judge’s reference to motive in para. 202(e), read in context, reversed the burden of proof or presumed the Respondent’s guilt. Accordingly, they fall into the category of harmless and unnecessary comments.”