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Judges rapped for springing 'evidentiary trap' on sexual assault accused

TORONTO — Two men accused of sexual assault in separate cases must have new trials because the judges who convicted them found they had tailored their testimony in light of what they heard in court before testifying, Ontario's top court ruled on Thursday.

In quashing the convictions, the Ontario Court of Appeal faulted both judges for undermining the bedrock principles of an accused to be in court and mount a vigorous defence. The result, it said, would mean new hearings in sensitive cases.

"The two appeal decisions are being released together to draw attention to the error that has been identified by this court in a number of cases over the last two decades, in order to highlight its significance," the court said.

The complainants in both cases alleged the accused had sexually assaulted them. Both accused admitted to sexual activity, but argued it was consensual.

In convicting one of the accused, M.D., in November 2017, Superior Court Justice Calum MacLeod rejected his testimony the sex was consensual.

"I formed the impression that many of his answers were tailored precisely to the evidence he knew would be forthcoming or to the forensic disclosure," MacLeod, a regional senior judge, said of many of M.D.'s answers.

While the judge gave no examples, the Appeal Court noted M.D. had attended a preliminary inquiry and received disclosure, including DNA evidence against him, from the prosecution. He had also heard testimony from all the Crown's witnesses before admitting on the stand to various sexual acts with the complainant, but insisting the woman had consented.

In its ruling, the Appeal Court noted an accused has the constitutional right and legal obligation to be present at trial. Similarly, an accused is entitled to make full answer and defence to the charges faced. MacLeod, the appellate court said, was wrong to question M.D.'s credibility because he came up with answers based on the evidence against him.

"This reasoning...turned the appellant's constitutional rights into an evidentiary trap," the Appeal Court said. "This error is far from harmless. It goes to the heart of trial fairness and the right to make full answer and defence."

Similarly, the higher court found Superior Court Justice Kelly Gorman had fallen into similar error in a case involving G.V. As with M.D., the complainant testified G.V. had forced her into sexual acts against her will. She said he banged her head on a wall and choked her. He denied hurting her, and said she had agreed to the sex.

Gorman convicted him in April 2018. Among her reasons was that she assessed the complainant as entirely credible but found the opposite of G.V.

"I agree with the Crown's submission that (his) testimony was structured to meet the allegations he was facing," Gorman said.

The Appeal Court again saw this as turning an accused's constitutional rights into an "evidentiary trap."

This report by The Canadian Press was first published on May 14, 2020.


Colin Perkel, The Canadian Press

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