Background
R.G. was convicted of sexual assault with a weapon after the trial judge found that he threatened his wife with a knife and forced her to have sexual intercourse in July 2020. He received two years’ imprisonment followed by three years’ probation.
The complainant suffered a traumatic brain injury in a vehicle accident approximately two months after the assault. At trial, the defence argued that her resulting memory difficulties undermined the reliability of her account. The trial judge found that her memory of events preceding the accident remained substantially intact, relying on her testimony and observations from her son, sister, and treating psychologist, Dr. Sharon Jankey. Dr. Jankey had not been qualified as an expert.
R.G. appealed his conviction and sought leave to appeal his sentence. He principally argued that the trial judge improperly treated Dr. Jankey’s assessment of the complainant’s memory as expert evidence.
The Court’s Holding
The Court of Appeal agreed that the trial judge committed an error of law. Dr. Jankey could properly testify about her personal observations, including that she had not noticed general memory difficulties. But when she assessed the significance of the complainant’s inability to recall exact dates, the trial judge gave that assessment enhanced weight because she was an experienced psychologist accustomed to working with accident victims. No foundation had established her expertise in memory, cognition, neuropsychology, traumatic brain injury, or a related field.
The court nevertheless dismissed the conviction appeal under the curative proviso in s. 686(1)(b)(iii) of the Criminal Code. The error could not have affected the verdict because substantial admissible evidence independently supported the trial judge’s conclusion about the complainant’s memory. Dr. Jankey’s improperly weighted assessment merely confirmed a conclusion already reached from the complainant’s evidence and other witnesses’ observations.
The court rejected the remaining challenges to the conviction, granted leave to appeal sentence, and dismissed the sentence appeal. Given the intimate-partner context, penetrative sexual violence, and use of a knife, the two-year custodial sentence was fit—and, if anything, lenient. Neither the availability of a conditional sentence nor the appellant’s immigration consequences justified a reduction.
Key Takeaways
- A professional witness may provide factual observations and admissible lay opinion without being qualified as an expert, but professional credentials cannot be used to give that evidence untested expert authority.
- Trial judges must continue policing the boundary between fact, lay opinion, and expert opinion throughout a witness’s testimony, even when counsel does not object.
- An evidentiary error will not require a new trial where the Crown establishes that it could not have affected the verdict and the remaining admissible evidence independently supports the result.
Why It Matters
The decision clarifies that a witness’s occupation does not automatically transform every inference into expert opinion. The decisive question is what gives the inference its evidentiary force: ordinary observation and experience, or specialized knowledge.
It also warns judges against assigning extra weight to a professional witness’s assessment based on expertise that was never established. At the same time, the ruling illustrates how the curative proviso may preserve a conviction when the improperly weighted evidence was confirmatory rather than foundational.