Sex-assault conviction overturned

Appeal court rules man’s trial judge ‘lacks impartiality’ after he commented that accused cried ‘crocodile tears’

A man convicted of sexually assaulting a teenager has been granted a new trial after the Ontario Court of Appeal ruled his trial judge unfairly accused him of crying “crocodile tears.”

“The trial judge’s disdain for the appellant is palpable in reading the reasons for judgment,” the recently released court decision states.

The May decision written by Justice Jean MacFarland, with justices Gladys Pardu and Gary Trotter concurring, tosses out three sexual-assault convictions reached April 2, 2014.

The case, called R. v P.G., was heard by Justice Stephen D. Brown of the Ontario Court of Justice.

The name of the accused and victims are protected by a publication ban.

The Court of Appeal decision sharply criticizes Brown’s conduct, including his reaction after the accused cried when talking about how a girl he had coached in Australia had been raped and then committed suicide.

Brown told the initial trial he considered this testimony “staged and dramatic” and made solely to elicit sympathy.

“I viewed his crying as being nothing more than crocodile tears,” Brown said. “They have large crocodiles in Australia.”

The Court of Appeal slammed this comment by the trial judge as “intemperate, condescending and sarcastic in the extreme.”

“His extreme dislike of the appellant is apparent; he lacks impartiality,” the Court of Appeal judgment continues.

The complainant in the case was 15 at the time of the alleged assaults and 18 when she testified that she suffered three incidents of sexual assault involving touching of her breasts, leg, buttocks and vaginal areas, all over her clothing.

On one occasion, the appellant allegedly kissed her on her lips. She stated that, on each occasion, she told him to stop or pushed him away.

The decision noted that there was hostility between the alleged victim and her mother and that the mother wanted her former boyfriend to return to Canada from Australia, where he had moved after the alleged assaults.

The Court of Appeal notes that Brown clearly favoured the testimony of the alleged victim over her mother, stating: “This was a child who was a victim of a vicious separation and divorce, an uncaring and somewhat deranged mother who constantly yelled, screamed and caused havoc in the household . . . ”

The Court of Appeal also notes that Brown described the cross-examination by the defendant’s lawyer as “brutal,” “no holds barred,” “distasteful,” “a full-scale attack on a disturbed and vulnerable teenager” and something that “mocked and belittled” the complainant.

The Court of Appeal decision accuses Brown of unfairly attacking the testimony of the alleged victim’s mother, who testified for the defence.

“The trial judge’s task is to impartially assess the witness’s credibility,” the court of appeal decision states.