At trial, the respondent, Mark Smith, was found guilty of sexually assaulting the complainant, a woman he had just met at a party. The Crown sought to admit statements made by the complainant to her friend immediately following the alleged assault as prior consistent statements to rebut a notion of recent fabrication, and the defence sought to admit them as prior inconsistent statements for the purpose of challenging the complainant’s credibility. The trial judge did not expressly rule on the admissibility of the statements, nor did she explicitly comment on whether they were consistent or inconsistent with the complainant’s testimony. Ultimately, she found the complainant to be credible and reliable and convicted the respondent.

A majority of the Court of Appeal for British Columbia allowed the respondent’s appeal and ordered a new trial on the basis that the trial judge misapprehended the evidence in failing to address inconsistencies in the witnesses’ accounts. The majority also found that the trial judge’s failure to rule on the admissibility of the complainant’s prior statements, and, if admitted, to consider whether they were consistent or inconsistent with her testimony, was a misapprehension of the evidence. Justice Dickson dissented.

The Crown appealed to the Supreme Court of Canada.