Background
In R v Viau, 2024ABCA 291, the Alberta Court of Appeal considered a Crown appeal from the acquittal of Daniel Austin Viau on charges of sexual assault. The charges arose from allegations by two sisters, HM and ZM, who visited Viau’s tattoo studio to get matching tattoos (para 2).
HM testified that during her tattoo session, Viau touched her clitoris intermittently over the course of up to three hours. ZM, who was 20 years old and in the same room, testified that although she was near HM—at times close enough to touch her—she did not notice anything inappropriate. She was intermittently using her phone, walking around, and sometimes not directly observing (paras 2–3).
After HM’s session, which lasted about six hours, ZM underwent a two-to-three-hour tattoo session. She later made her own allegations of inappropriate touching.
Outcome
The Crown argued that the trial judge improperly relied on stereotypical assumptions about how sexual assault victims behave—specifically, the finding that HM’s failure to disclose the assault to her sister despite numerous opportunities undermined her credibility. The Crown submitted that this reasoning was prohibited by recent Supreme Court’s guidance in R v Kruk, 2024 SCC 7, and constituted a legal error warranting appellate intervention under R v Hodgson, 2024 SCC 25 (paras 8–9).
The Alberta Court of Appeal unanimously dismissed the appeal.
The Court accepted that Kruk clarified that generalized myths must not be used in credibility assessments, but emphasized that appellate courts must not interfere with fact-finding absent a palpable and overriding error. The Court noted that Kruk also affirmed trial judges may make common-sense inferences grounded in the specific evidence before them (paras 9–10).
The Court of Appeal accepted Defence written arguments that the trial judge's reasoning was specific to the complainants’ relationship and the facts presented. There was no indication that the Trial Justice relied on prohibited generalizations or myths. Rather, his conclusion—that it was improbable HM would remain silent if the alleged assault had occurred—was based on their closeness, ZM’s attentiveness, and HM’s subsequent silence even as ZM underwent a similar session (para 12).
The Court found no error of law or palpable and overriding error of fact. The trial judge’s reasons - although delivered prior to Kruk –aligned with the principles later affirmed in that case. Accordingly, the acquittal stood (paras 12–13).
Key Takeaways
- Deference to Trial Judges in Fact-Finding
The case reinforces that appellate courts must defer to a trial judge’s findings of fact and assessments of witness credibility unless there is a clear legal error or palpable and overriding factual mistake. In this case, the trial judge’s conclusion was based on specific facts rather than improper assumptions (paras 9–10, 12). - Kruk Affirms Permissible Inferences
The Crown relied on R v Kruk to argue that the trial judge improperly applied stereotypes. However, the Court clarified that Kruk does not prohibit all inferences about witness behaviour. Judges may still use common-sense reasoning grounded in specific evidence, particularly when assessing credibility (paras 9–10). - Limits on Crown Appeals from Acquittals
The decision highlights the narrow scope of Crown appeals under R v Hodgson, which restricts appellate intervention to clear questions of law. Disagreement with a trial judge’s factual reasoning or evidentiary weight is insufficient to overturn an acquittal (paras 11–13). - Silence and Disclosure Are Fact-Specific
The Court acknowledged that a complainant’s failure to disclose an assault is not inherently indicative of fabrication. However, in this case, the judge's skepticism stemmed from the specific circumstances: HM’s silence during a prolonged encounter despite being alone with a trusted sister, and ZM’s lack of observations (paras 7–8, 12). - Precedential Clarity Post-Kruk
This case illustrates how courts are applying Kruk shortly after its release. While reinforcing the prohibition on myths and stereotypes, Kruk does not strip trial judges of their ability to draw logical, case-specific inferences.
Conclusion
This was an important case in which the Court of Appeal accepted our written arguments and provided helpful guidance to courts around the province as to important boundaries on Crown appeals and the lawful scope of inferences in sexual assault trials after the Supreme Court case of R v Kruk.