Keeping Up Is Hard to Do:
A Trial Judge’s Reading Blog


R. v. E.S., 2024 NLCA 12, APRIL 1, 2024.

FACTS:  The accused was charged with two sexual offences. The offences alleged that the accused had sexually assaulted a child (JP) who was in the foster care of the accused.  At the trial, JP testified that he had told a social worker “what was going on”.

The accused was acquitted.  In entering the acquittal, the trial judge made the following comments concerning the disclosure to the social worker (at paragraph 9): 

Upon hearing the evidence of M.S., the Crown had the option to call rebuttal evidence to address the circumstances under which J.P. was removed from the S. home. Because the Crown did not call rebuttal evidence, I am left with questions as to the circumstances under which the children were removed from the home and why the police were not involved at the time. It is not for me to speculate. I must be guided by the evidence, or as in this case, the lack of evidence.

In considering the evidence as a whole, there are gaps in the Crown’s evidence that I find problematic, including: the lack of evidence documenting J.P.’s report to the social worker and the circumstances under which J.P. and the other children were removed from the S. home; and the lack of evidence explaining why police would not have spoken with J.P. when he was removed from the home. Because of these gaps in the evidence, in the context of the evidence of M.S. as to why the children were removed from the home, I am not satisfied beyond a reasonable doubt as to E.S.’s guilt.

The Crown appealed from acquittal, arguing that the trial judge “erred in law by basing her judgment on speculation regarding evidence not before her and by drawing an unsupported adverse inference against the Crown”.

HELD: The appeal was allowed and a new trial ordered.  The Court of Appeal concluded that “the trial judge made an error of law that materially affected the acquittal” (at paragraph 2).  The Court of Appeal concluded as follows (at paragraph 19):

The trial judge’s conclusion that there was a reasonable doubt because of a gap in the evidence respecting the reason for the children’s removal from the home resulted from legal errors in her assessment of the evidence. First, the reason that authorities moved the foster children was a collateral issue. Any gap in evidence regarding that reason was irrelevant to whether the Crown had proved the elements of the offence. The Crown ought not to have been permitted, let alone expected, to introduce rebuttal evidence to corroborate JP’s testimony regarding this collateral issue. This evidence was also only marginally relevant to JP’s credibility. Second, the gap the trial judge found in the evidence could only have been filled by evidence demonstrating that JP had made a prior consistent statement. A prior consistent statement is not admissible to bolster the credibility of a witness. Third, the trial judge did not consider that the evidence of MS regarding the reason for the children’s removal was hearsay evidence.