Background
B.B. was convicted of incest and sexual interference based on his daughter S.B.’s evidence that, on February 19, 2019, he used a vibrator on her and had sexual intercourse with her. He was also found guilty of sexual assault, but that count was conditionally stayed. The trial judge imposed six years’ imprisonment and several ancillary orders, including lifetime registration under the Sex Offender Information Registration Act.
The trial judge accepted the central features of S.B.’s account despite finding parts of her evidence unreliable. Among the supporting evidence were a gap in B.B.’s phone activity, testing showing that S.B. had consumed cocaine, and a large quantity of S.B.’s DNA on a pink vibrator. On appeal, B.B. challenged the exclusion of evidence concerning an alleged October 2018 incident, the trial judge’s treatment of inconsistencies and corroborating evidence, and the lifetime registration order. He also moved in the Court of Appeal to introduce S.B.’s post-trial statements as fresh evidence impeaching her trial testimony; she continued to allege a sexual assault but identified another man as the perpetrator.
The Court’s Holding
The Court of Appeal dismissed the conviction appeal. It held that the trial judge was entitled to exclude evidence concerning the October 2018 allegation because its limited probative value was outweighed by the risk of a collateral trial. The trial judge adequately addressed the material inconsistencies in S.B.’s testimony, and it was open to him to treat the phone records and the large quantity of S.B.’s DNA on the vibrator as supporting aspects of her account.
The court refused to admit S.B.’s post-trial statements as fresh evidence. Her new identification of another perpetrator was neither credible nor reliable, and, considered against the trial record, the statements lacked sufficient impeachment value to reasonably be expected to change the verdict. The court nevertheless granted B.B. a remedy under s. 24(1) of the Charter, reducing his lifetime SOIRA registration order to 20 years after the governing mandatory-lifetime provision had been struck down. It dismissed his sentence appeal as abandoned because he did not pursue it.
Key Takeaways
- A trial judge may exclude evidence offered to prove that a complainant made another false sexual-assault allegation when its limited probative value is outweighed by collateral-litigation and trial-management concerns.
- A post-trial recantation offered only to impeach trial testimony must be sufficiently cogent that it could reasonably be expected to affect the verdict; some impeachment value is not enough.
- The Court of Appeal may reduce a lifetime SOIRA order imposed under the unconstitutional former provision through a s. 24(1) Charter remedy where the required constitutional notice has been given.
Why It Matters
The decision illustrates the demanding standard for admitting post-trial recantations as fresh evidence, especially where the complainant continues to allege the same assault but changes the perpetrator’s identity. Courts assess the recantation in the context of the entire trial record, including evidence supporting the original account and possible reasons for the changed story.
It also confirms the appellate route for correcting lifetime SOIRA orders imposed under the provision invalidated by the Supreme Court of Canada, while distinguishing that constitutional remedy from a sentence appeal.