Court upholds conviction in 23-year-old rape case

The conviction of a man in the historical rape of a Calgary woman — who died before seeing justice done — has been upheld by the province’s top court.

A three-member Alberta Court of Appeal panel on Monday rejected submissions that a judge made errors in the jury trial of Wayne Howard Bernard.

Defence counsel Brendan Miller had argued multiple grounds of appeal, including that a pre-charge delay and loss of evidence should have resulted in charges being tossed.

Miller also argued the statement by the victim in the case should not have been allowed to go before the jury because she wasn’t around to be cross-examined on it.

The then-51-year-old woman, who can’t be named, was attacked on March 28, 1995, while working overnight at a Macleod Trail catering business.

Jurors — who convicted Bernard of sexual assault with a weapon, robbery and kidnapping — ruled Bernard tricked his way into the woman’s workplace by claiming to be a police officer.

He then grabbed her, took her to a secluded location and raped her.

The woman died in 2007. Bernard, who wasn’t charged until 2015, didn’t go to trial until last year.

Miller argued there was a delay of eight years between a DNA databank “hit” on Bernard in 2007 and his arrest, but the appeal judges said he suffered no prejudice as a result.

And they said the fact police didn’t videotape the woman’s statement, instead relying on a written version, didn’t amount to lost evidence.

Bernard, who claimed he’d had consensual sex with the woman earlier the same night, was sentenced to 12 years.