Conviction quashed due to message on Facebook

Ex-wife’s forgotten post cast doubt on guilt of man she said sexually assaulted her

TORONTO— A seven-year-old Facebook message has scuttled a conviction against a man accused by his ex-wife of sexually assaulting and threatening to kill her.

In a decision Friday, Ontario’s top court said evidence about the message, had it been allowed at trial, could have affected the guilty verdict handed down to the man, who can only be identified as A.B.

“The message was allegedly sent about midpoint in the time frame of the sexual assault allegations,” the Appeal Court said in its decision. “It would not be unfair to say that the message recounted several incidents of sexual activity between the appellant and complainant and made it clear that the sexual activity was consensual on the complainant’s part.”

At the trial in late 2011 in Barrie, the complainant maintained she had no memory of sending the message and further testified she didn’t think she had done so. In any event, after the prosecution objected on procedural grounds, Superior Court Justice Guy Di Tomaso ruled against further cross-examination and directed jurors to set aside the evidence they had heard about the post.

The jury convicted A.B., prompting him to turn to the higher court.

On appeal, both sides in the dispute agreed the new evidence was believable and, the prosecution acknowledged, could have affected the original verdict.

As a result, the Appeal Court agreed to allow the message evidence, quashed the conviction and ordered a new trial. At the request of both prosecution and defence, the court then stayed its new trial order, essentially putting an end to the case.