Case in Brief

Cases in Brief are short summaries of the Court’s written decisions drafted in plain language. They are prepared by communications staff of the Supreme Court of Canada. They do not form part of the Court’s reasons for judgment and are not for use in legal proceedings.

R. v. Kwon

Case summary

The Supreme Court orders a new trial for a man accused of sexual assault

Soon Hyong Kwon is a bar owner. One night, Mr. Kwon drove one of his clients, the complainant, home after the bar closed. The complainant had consumed alcohol during the evening. On the way home, Mr. Kwon and the complainant had unprotected sexual intercourse. At trial, Mr. Kwon testified that he believed that the complainant had consented. The complainant testified that she had minimal recollection of the drive. The trial judge inferred from the evidence that the complainant lacked capacity to consent to the sexual activity because she was incapacitated by alcohol. She did not find Mr. Kwon to be a credible witness. Mr. Kwon was convicted of sexual assault. Mr. Kwon appealed his conviction.

The Court of Appeal unanimously agreed that the trial judge erred in the assessment of Mr. Kwon’s evidence and erred in relying on myths and stereotypes about human behaviour in a sexual encounter in her reasons. However, the Court of Appeal was divided on the issue of remedy. The evidence of the complainant’s capacity to consent was circumstantial. As such, the trial judge could not convict unless the evidence met the test specified in R. v. Villaroman. In that case, the Supreme Court had stated that “where the Crown’s case depends on circumstantial evidence, the question becomes whether the trier of fact, acting judicially, could reasonably be satisfied that the accused’s guilt was the only reasonable conclusion available on the totality of the evidence”.

The majority concluded that the trial judge did not apply the Villaroman principles in this case. The circumstantial evidence permitted at least one other reasonable possibility inconsistent with guilt. Therefore, there was no legally admissible evidence at trial that would permit a properly instructed trier of fact to convict Mr. Kwon. The Court of Appeal allowed the appeal and entered an acquittal.

The dissenting judge concluded that a reasonably instructed trier of fact could have found Mr. Kwon guilty based on the same evidence. Accordingly, he would have set the conviction aside and ordered a new trial.

The Supreme Court allowed the appeal.

As such, the conviction for sexual assault is set aside and a new trial is ordered.

Justice Moreau read the judgment of a majority of the Court. You can watch a recording of it here.

A print version of the judgment that was read out will be available here once finalized.