R. v. SANDHU, 2024 BCCA 34, FEBRUARY 6, 2024.

FACTS:  The accused was convicted by a jury of the offence of sexual assault.  The primary issue at the trial was consent. The accused appealed from conviction, arguing that the trial judge in instructing the jury, invited the jury “to evaluate the complainant’s credibility and reliability by reference to…a ‘prescribed pattern of behaviour’; namely, a stereotype of someone who had just engaged in consensual sexual activity’ (see paragraph 13).

In instructing the jury, the trial judge said the following (see paragraph 12):

As to consent, you may consider [the complainant]’s behaviour and demeanour after the sexual activity with Mr. Sandhu. You have heard her evidence that she called a friend and then called 9-1-1 very soon after Mr. Sandhu dropped her at her vehicle. She attended the hospital that day for a sexual assault examination. You may consider whether these actions are consistent with someone who has just engaged in consensual sexual intercourse. 

[Emphasis added by the Court of Appeal.]

HELD:  The appeal was dismissed.   The British Columbia Court of Appeal noted that “post‑event conduct is circumstantial evidence that may be used to assess the credibility and reliability of the complainant’s testimony of non‑consent, but only if it is grounded in the evidence. What is impermissible is to rely on assumptions, generalizations, common sense or stereotypes, untethered to the evidence, about what ‘someone’ would do or not do after consensual sexual activity in assessing…It follows, in my view, that in assessing the complainant’s assertion that she had not consented to the sexual activity, the jury is entitled to consider the complainant’s (and the accused’s) conduct during and after the event to ask whether that conduct is consistent or inconsistent with the assertion of non‑consent. What matters is that this assessment be grounded in the evidence of what this complainant did, what the appellant did, and the context of their interaction” (Court of Appeal’s emphasis, at paragraphs 14 and 24).

The Court of Appeal held that “the impugned instruction properly told the jury that they could consider whether the complainant’s conduct, after the event (and clearly grounded in what she did), was consistent or inconsistent with her assertion of non‑consent. The jury were not being invited to assess the complainant’s assertion on non‑consent in a manner unconnected to the evidence before them” (at paragraph 27).