Case information

Criminal law - Evidence - Assessment - Generalizations and stereotypes - Admissibility - Complainant’s sexual activity - Whether the trial judge’s verdict was unsafe because he erred in law by relying on faulty analysis, generalizations and stereotypes in rejecting the appellant’s evidence - Whether the trial judge erred in law by failing to determine the admissibility of evidence of the complainant’s sexual activity as required by s. 276.1-276.4 of the Criminal Code (s. 278.93) based upon the conditions of admissibility set out in s. 276(2) and by applying the factors in s. 276(3), as well as a determination of whether further evidence might be elicited on the subject - Whether the failure of the trial judge to observe the requirements of s. 276 may have led to a misapprehension of the evidence resulting in a substantial wrong or miscarriage of justice - Criminal Code, R.S.C. 1985, c. C-46, ss. 276 and 276.1 to 276.4.

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(PUBLICATION BAN IN CASE)

At trial, Mr. Delmas was convicted of sexual assault contrary to s. 271 of the Criminal Code, R.S.C 1985, c. C-46. A majority of the Court of Appeal of Alberta dismissed Mr. Delmas’ appeal against conviction. In the majority’s view, the trial judge did not utilize impermissible reasoning in rejecting Mr. Delmas’ evidence, nor did he base his decision on sexual stereotypes and generalizations. The trial judge was entitled to arrive at the conclusion he did on reliability and credibility. The balance of his assessment was his skepticism respecting Mr. Delmas’ own evidence and the problematic generalization was but one small part of the entire set of reasons. Although the majority held that a s. 276 voir dire should have been held, it saw no reasonable possibility that the verdict could have been different had this error not been made. There was no prejudice to Mr. Delmas and no substantial miscarriage of justice had occurred. O’Ferrall J.A., in dissent, would have allowed the appeal, quashed the conviction and ordered a new trial. In his view, the trial judge’s reliability and credibility assessments rendered the verdict unsafe. The trial judge appeared to have placed significant weight on stereotypical views and generalizations to discredit the testimony of Mr. Delmas. On the s. 276 issue, O’Ferrall J.A. concluded that the trial judge’s failure to observe the requirements of s. 276 may have led to a misapprehension of the evidence which could have affected either the credibility or the reliability assessment of the complainant’s recollection of events. The trial judge ought to have sought submissions from the parties as to whether he was permitted to consider the evidence improperly brought into the record in his assessment of the complainant’s evidence. O’Ferrall J.A. was not persuaded that no substantial wrong or miscarriage of justice had occurred as a result of the wrong decision on a question of criminal procedure.