JANUARY 24, 2022: In L.L., the appellant argues that the trial judge’s use of a short statement he made to the police was tainted by legal error [2]. The appellant did not testify at his trial; however, the trial judge admitted into evidence a very short statement the appellant had made to the police [6]. Voluntariness of the appellant’s statement was admitted in this case [8]. Both the complainant and her mother testified and the appellant was found guilty in L.L. on a number of sexual offences.

The appellant appealed his conviction on the basis that the trial judge made two main reversible errors in his use of the Statement [13] :

[14]     First, the trial judge improperly used the Statement to infer that since the appellant acknowledged having sexual relations with the complainant after she turned 19, he must have had sexual relations with her before that age. According to the appellant, that inference was the product of impermissible propensity reasoning and the application of stereotypical assumptions.

[15]      The second error was the failure of the trial judge to treat the Statement as exculpatory in part and conduct a proper analysis in accordance with the principles in R. v. W.(D.), [1991] 1 S.C.R. 742.

The Court of Appeal rejected both grounds of appeal and dismissed the appeal.

Regarding the appellant’s argument for the first ground of appeal, the impermissible reasoning errors, the appellant argued that the trial judge’s reasoning ran afoul of three basic rules:

1. The general rule against propensity reasoning;
2. The rule that judges must avoid speculative reasoning that invokes “common-sense” assumptions that are not grounded in the evidence or appropriately supported by judicial notice; and
3. The rule that factual findings, including determinations of credibility, cannot be based on stereotypical inferences about human behaviour.

The ONCA rejected that argument and found that Appellate review requires a functional and contextual reading of a trial judge’s reasons, reading them in context and as a whole, in light of the live issues at trial, and without finely parsing the reasons in a search for error: R. v. G.F., 2021 SCC 20, 71 C.R. (7th) 1, at para. 69. When read in that way, the ONCA doES not see the trial judge’s use of the Statement as tainted by reversible error [18].

On the second ground of Appeal, the ONCA indicated that while the elements of the trial judge’s W.(D.) analysis are found in different parts of his reasons, when read as a whole the reasons disclose a proper W.(D.) analysis. The reasons make it clear that the trial judge did not accept the appellant’s admission in the Statement of sexual intercourse as credible evidence denying the allegations against him or raising a reasonable doubt. As he stated in his reasons: “The circumstances are such that very little weight can be attached to the statement [as] evidence of an alternate narrative.” Later in his reasons the trial judge completed his W.(D.) analysis, explaining why he was convinced beyond a reasonable doubt of the appellant’s guilt with respect to the incidents in the truck – namely, the appellant’s Statement confirmed the complainant’s evidence of a lengthy history of sexual offences against her in the truck, often accompanied by the payment of money [27].

The case of L.L. provides a perfect example of the dangers of making a statement to the police, no matter how short or minor that statement may seem. Not testifying at trial may not be enough to save you from the damage of that extrajudicial statement you made.

This shows the importance of remaining silent when talking to the police because any statement made to the police, no matter how short or minor, may be used to incriminate you.