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Evidence - Inconsistencies. R. v. S.M.
In R. v. S.M. (Ont CA, 2025) the Ontario Court of Appeal dismissed a criminal appeal, here from a "conviction for sexual assault following a judge-alone trial".
The court considers the weighing of 'inconsistencies' in the evidence, here in a criminal context:[16] We do not accept that characterization. First, “[t]he assessment of the significance of any alleged inconsistency must be made in the context of the evidence and issues in the particular trial.” See R. v. Polemidiotis, 2024 ONCA 905, 174 O.R. (3d) 359, at para. 37. In other words, the weight given to any inconsistency and its resulting impact on a witness’ credibility and/or reliability, is fact-specific, and “absent legal error”, is owed deference on appeal. See Polemidiotis, at para. 37; R. v. Saleh, 2022 ONCA 735, at para. 22.
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[18] In this case, the trial judge neither misapprehended the complainant’s evidence, nor did any of the alleged inconsistencies highlighted by the appellant go to the heart of the reasoning process. The trial judge expressly found the complainant to be a credible and reliable witness. Her evidence was clear on the central issue at trial: that she did not consent to the sexual activity. Where her memory was limited on minor details, she explained why. The trial judge was not required to address every minor or peripheral inconsistency, nor respond to every argument advanced by defense counsel, particularly where she found that the complainant’s core account was compelling and internally consistent. See R. v. A.M., 2014 ONCA 769, 123 O.R. (3d) 536, at paras. 13-14; R. v. R.E.M., 2008 SCC 51, [2008] 3 S.C.R. 3, at para. 64.
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