Criminal Law

Presser to appear before the Supreme Court of Canada

Toronto criminal lawyer Jill Presser and co-counsel Lou Strezos will appear before the Supreme Court of Canada on Oct. 14 in a sexual assault case that explores whether a trial judge misdirected a jury on the standard to be used in assessing a complainant’s credibility.

“An effective and accurate jury charge is essential to ensuring that jurors have the necessary legal tools to make reliable findings of fact and deliver a true verdict. The charge in this case was in error,” states the respondent’s factum to the SCC.

In Her Majesty the Queen v. C. K-D., Presser and Strezos represent the respondent, who was convicted of one count of sexual interference and one count of sexual assault. Presser, principal at Presser Barristers, is also appearing with her associate Jeff Marshman.

Her client was convicted after a jury trial in which the complainant was 12 years old at the time of the alleged assaults, but was 17 years old when she testified at the respondent’s trial, says the SCC’s online summary of the matter.

The trial judge, in her instructions to the jury, said that “in terms of her (the complainant’s) evidence pertaining to the events, it is the memory of a 12-year-old that you are really considering.”

The respondent appealed the conviction and argued before the Ontario Court of Appeal that the trial judge erred in her instructions to the jury by suggesting that the jury should assess the complainant’s testimony as if she was a 12-year-old witness and not a 17-year-old witness.

The higher court allowed the appeal, set aside the convictions and ordered a new trial.

“It was of the opinion that the trial judge’s statement to the jury could be interpreted to mean that the jury was obliged to assess the complainant’s credibility as if she was 12 years old, and would have been a source of confusion for the jury on the critical issue in the trial, being the assessment of the complainant’s credibility,” summarized the SCC.

Justice Mary Lou Benotto of the OCA, dissented, saying she would have dismissed the appeal. She was of the view that the trial judge’s statement in an otherwise correct charge would not have led the jury to assess the complainant’s testimony about non-peripheral events with a lower standard of scrutiny, and would not have been a source of confusion for the jury.

The Attorney General of Ontario bases its appeal to SCC on contending that the Court of Appeal majority was wrong.

Presser and the rest of the respondent’s legal team maintain the OCA majority was correct to allow the appeal and not to apply the curative proviso. They ask the SCC to dismiss the appeal currently before it.

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