R. v. Kwon
| Date | March 27, 2025 |
| Neutral Citation | 2025 CSC 11 |
| On Appeal From | Saskatchewan Court of Appeal |
| Judges | Majority: Martin, Kasirer, O’Bonsawin, Moreau Dissent: Rowe |
| Case Number | 41322 |
Supreme Court orders new trial for man accused of sexual assault.
Soon Hyong Kwon is a bar owner. One evening, after the bar closed, Mr. Kwon drove one of his customers, the complainant, home. The complainant had been drinking during the evening. En route, Mr. Kwon and the complainant had unprotected sexual intercourse. At trial, Mr. Kwon testified that he believed the complainant had consented. The complainant testified that she had minimal recollection of the drive home. The trial judge inferred from the evidence that the complainant lacked the capacity to consent to the sexual activity because she was impaired by alcohol. The judge found Mr. Kwon not to be a credible witness. He was convicted of sexual assault. He appealed his conviction.
The Court of Appeal unanimously concluded that the trial judge had erred in her assessment of Mr. Kwon’s testimony, and that she had also erred in relying in her reasons on myths and stereotypes about human behavior during sexual intercourse. However, the Court of Appeal was divided on the issue of redress. The evidence regarding the complainant’s capacity to consent was circumstantial. For this reason, the trial judge could not convict the accused unless the evidence met the test specified in R. v. Villaroman . In that case, the Supreme Court stated that “where the Crown’s case depends on circumstantial evidence, the question is whether the trier of fact, acting judicially, could reasonably conclude that the accused’s guilt was the only reasonable inference that could be drawn from the evidence as a whole.”
The majority concluded that the trial judge had failed to apply the principles of Villaroman in this case. The circumstantial evidence allowed for at least one other reasonable possibility, a possibility that was inconsistent with guilt. Consequently, there was no legally admissible evidence at trial that would have allowed a properly instructed trier of fact to convict Mr. Kwon. The Court of Appeal allowed the appeal and entered an acquittal.
The dissenting judge concluded that a reasonably instructed trier of fact could have convicted Mr. Kwon on the same evidence. He would therefore have set aside his conviction and ordered a new trial.
The Supreme Court allowed the appeal.
Accordingly, the conviction for sexual assault is quashed and a new trial is ordered.
Justice Moreau read the Court’s majority judgment. You can watch the video here .
The printable version of the judgment delivered at the hearing will be available here once the document has been finalized.
