Background
In R. v. Gilbert, the British Columbia Court of Appeal considered an appeal from a conviction of sexual assault following a judge-alone trial in the Provincial Court. The appellant, Jesse Gilbert, and the complainant, J.A., gave generally consistent testimony about their initial interaction on the night of August 15, 2020 — including walking to a 7-Eleven and returning together — but diverged sharply on whether a sexual encounter in a wooded area was consensual (paras 1–4).
J.A.’s story changed considerably over the lifetime of the case: she initially told police that she was grabbed by a stranger who dragged her into the woods and assaulted her. That account was later discredited when police obtained surveillance footage showing her and Mr. Gilbert together at a 7-Eleven.
J.A. then gave a different account in a revised complaint. She then revised it again. She eventually gave five statements to police, correcting her account to align with what was captured on video (paras 6–8, 11).
Mr. Gilbert, for his part, initially denied any sexual contact but later admitted to a consensual encounter, explaining his earlier denial as an effort to conceal the incident from his girlfriend (paras 9–10).
At trial, J.A. testified that she clearly said “no” to Mr. Gilbert's suggestion to “fool around” and described a violent assault (para 13). Mr. Gilbert testified the encounter was consensual, acknowledged his intoxication, and said he stopped when he felt she was not fully into it (para 16). Physical evidence included minor injuries to J.A., the recovery of her panties at the scene, and Gilbert’s hat nearby (paras 14–15).
The trial judge preferred J.A.’s evidence, found her credible, and concluded that the Crown had proven the sexual assault beyond a reasonable doubt (paras 18–30).
Outcome
The BCCA allowed the appeal and ordered a new trial. It agreed with our submissions that there had been multiple serious legal errors that warranted a new trial.
First, the trial judge misapprehended key aspects of the evidence and failed to consider the evidence as a whole. In particular, the judge overstated the significance of the discovery of J.A.’s panties at the scene, treating it as directly contradicting Gilbert’s testimony when in fact it did not contradict his account (paras 44–45).
The judge also overstated Gilbert's supposed admission of having been “rough or violent,” although he never acknowledged violence, and only tentatively admitted the possibility of being “rough” due to memory gaps caused by intoxication (para 46).
Second, the judge failed to properly apply the W.(D.) framework in assessing reasonable doubt. Although he recited the legal test, his reasons were conclusory and failed to meaningfully address whether Gilbert’s testimony (or the evidence as a whole) raised a reasonable doubt (paras 42–43, 52–53). In fact, the Court of Appeal was concerned by the judge’s statement that even if Gilbert’s evidence were reliable and credible, the defence would still fail — a comment that fundamentally misapprehends the W.(D.) framework (para 56).
Third, the trial judge treated J.A.’s initial erroneous statement as “peripheral” rather than engaging with how her evolving narrative may have been influenced by Gilbert’s second police statement, and the implications this had for credibility and the burden of proof (paras 48–51, 57).
Given these errors, the Court concluded that the trial was not fair and that the verdict was not safe. The errors fatally undermined the credibility assessment and the judge's application of the burden of proof (para 63).
Key Takeaways
- Misapprehension of Evidence Can Be Fatal: A trial judge’s mischaracterization or misunderstanding of key evidence — such as misattributing definitive statements to a witness, or exaggerating inconsistencies — can warrant appellate intervention (paras 44–47).
- Importance of theW.(D.) Framework: Trial judges must do more than recite W.(D.); they must engage meaningfully with whether the accused’s evidence raises a reasonable doubt, even if that evidence is partially unreliable (paras 41–43, 52–54).
- Holistic Evidence Assessment Required: Courts must consider the evidence in its entirety, including how one party’s account may have influenced the other’s. Treating parts of the narrative as “peripheral” without examining interdependencies can be a legal error (paras 48–51).
- Prior Inconsistent Statements Must Be Carefully Weighed: When a complainant recants an initial, materially different version of events, the court must consider how and why the narrative changed, and whether those changes raise a reasonable doubt (paras 48–50).
- Credibility Cannot Be Assessed in Isolation: The Crown’s and defence’s evidence must be compared and weighed together. Disregarding the evolution of the complainant’s story or the corroborative aspects of the accused’s version undermines trial fairness (paras 32–33, 53–55).