Court raps judges over sex-assault trial errors

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.

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.

Similarly, the higher court found Superior Court Justice Kelly Gorman fell into similar error in a case involving G.V. Gorman convicted him in April 2018, saying: “I agree with the Crown’s submission that [his] testimony was structured to meet the allegations he was facing.” The Appeal Court saw this as turning an accused’s constitutional rights into an “evidentiary trap.”