TORONTO — A man found guilty of sexually abusing his stepdaughter decades ago has been granted a new trial after Ontario's top court found the judge improperly relied on evidence to support the complainant's testimony.
The man, who cannot be identified in order to protect the identity of his stepdaughter, was charged with sexual interference, sexual assault and sexual exploitation in connection with alleged incidents dating back to 1988.
He was acquitted in 2018 on the sexual exploitation charge, which related to allegations that he forced his stepdaughter to have sex after she turned 12, because the trial judge found the complainant's evidence relating to this time period was "not sufficiently reliable."
But he was convicted on the other two charges, which stemmed from allegations of sexual touching when the complainant was as young as seven.
In a unanimous ruling released this week, the Court of Appeal for Ontario said the trial judge mistakenly relied on the fact that the complainant had spoken to her mother and sister about the allegations as a child to support her account of what happened.
Another incident, in which the complainant's biological father threatened the accused over the allegations, was also cited by the judge, according to the appeal court.
In fact, the appeal court said, the complainant's prior statements and the incident involving her father could only be used to rebut accusations that she had recently fabricated the allegations.
"Looking at the trial judge's reasons as a whole, this evidence was used improperly to enhance the complainant's general trustworthiness as a witness through her repetition of the allegations on prior occasions," the three-judge appeal panel wrote.
The man also argued his conviction should be replaced by an acquittal, but that argument was rejected by the appeal court.
"The appellant has not established that his convictions cannot be supported on 'any reasonable view of the evidence,'" the panel wrote.
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During trial, the complainant testified that she was often drowsy as a child due to taking medication for attention deficit hyperactivity disorder, and would rest in bed before dinner.
She told the court that several times a week, her stepfather would come into her room when others were out of the house and touch her genitals while he masturbated.
The abuse began to escalate when she was close to 12 years old, she testified. She said her stepfather then began to force her to have sex, doing so several times a week until she left the house for good at age 20.
She described running away from home several times as a teen, often staying in group homes or with friends, and accumulating a criminal record.
The appeal court said the evidence related to the complainant's statements to her relatives was "contradictory."
The complainant testified she told her sister about the abuse when she was 12, and that her sister convinced her to tell their mother.
The sister, however, said the complainant was around seven when this happened. Their mother also gave conflicting information, first saying she learned of the abuse when the complainant was 10 or 11, then when the girl was eight or nine.
The complainant and her mother also gave different accounts of how the father came to learn of the allegations.
The trial judge also highlighted other inconsistencies in the complainant's evidence, between her testimony at trial, what she told a preliminary inquiry and statements she gave to police and child welfare authorities in 1995.
This report by The Canadian Press was first published on May 28, 2020.
Paola Loriggio, The Canadian Press
