In R. v. Kruk, 2022 BCCA 18, January 20, 2022, the accused was convicted of the offence of sexual assault.  The essence of the conflicting evidence, presented at the trial, was set out by the British Columbia Court of Appeal in the following manner (at paragraphs 13 and 14):

Inside Mr. Kruk’s home, the complainant eventually passed out or fell asleep in Mr. Kruk’s bedroom. She testified that she woke up to find Mr. Kruk on top of her with his penis inside her vagina. Her pants were off. She did not think he was wearing a condom. She pushed him two times. The second time, she was able to push him off. She did not feel him moving when his penis was inside her and was unable to say whether he ejaculated. She was not asked to provide any other details of the assault.

Mr. Kruk denied having sex with the complainant. He testified that he had given her a glass of water which she spilled on herself. He then gave her some pyjamas to change into in the privacy of his bedroom. When he subsequently found her passed out on his bed with her pants around her ankles, he put a blanket over her. He was unable to wake her, even with the assistance of his father. He became annoyed with the situation. He wanted the complainant gone. He checked his phone but it was not charging due to a faulty charger. He then fell asleep. When he woke up, he again tried to waken the complainant. This time she came to in a startled fashion.

In convicting the accused, the trial judge described the complainant as being “an obviously unreliable witness because of her state of intoxication.”  However, on the issue of whether the accused had inserted his penis into the complainant’s vagina, the trial judge stated:

[The complainant’s] evidence is devoid of detail, yet she claims to be certain that she was not mistaken.  She said she felt [Mr. Kruk’s] penis inside her and she knew what she was feeling.  In short, her tactile sense was engaged. It is extremely unlikely that a woman would be mistaken about that feeling.

The accused appealed from conviction, arguing that the trial judge “erred in taking judicial notice of a ‘highly contentious fact’”.

The appeal was allowed and a new trial ordered.  The British Columbia Court of Appeal concluded that the trial judge’s conclusion “was not grounded in the evidence” (at paragraphs 66 to 69):

The Crown never asserted at trial that the judge should accept the complainant’s testimony because, as a matter of medical science or common sense, it was extremely unlikely that any complainant, even one who was highly intoxicated, would be mistaken about the feeling of a penis inside their vagina. The issue was never what any complainant would feel or even what this complainant would feel. The issue was always, appropriately, what this complainant did feel.

After reviewing the whole of the record and the whole of the reasons, I am unable to find that the judge’s conclusion regarding the extreme unlikelihood of any complainant, in all circumstances, being mistaken about the feeling of a penis in their vagina is the proper subject of judicial notice or common sense. It is a finding that was not sought by the parties, was not grounded in the evidence, and engages questions of neurology (the operation of the body’s sensory system), physiology (the impact of alcohol on perception, memory and the body’s sensory system) and psychiatry (the impact of alcohol and/or trauma on perception and memory).

To be clear, I am not saying that highly intoxicated complainants are incapable of giving reliable testimony about the invasive feeling of penises in their vaginas. I am simply saying that, in this case, the judge fell into error by engaging in speculative reasoning that was not grounded in the evidence.

In all of the circumstances, I am of the view that the judge erred in law. He did not grapple with the evidence and arguments of the parties on the central issue in the case. He did not make a finding that was tethered to the evidence. Instead, he engaged in speculative reasoning. He made an assumption on a matter that was not so well known as to be notorious, that was not capable of immediate and accurate proof by resort to a readily accessible source of indisputable accuracy, or that was a matter of common sense.