Photo by Whitehorse Star
The Court of Appeal of Yukon has overturned a Carcross man’s convictions of breaking and entering and sexual assault.
Justice Elizabeth Bennett released her 18-page written decision on Tuesday, setting aside the conviction and ordering a new trial. Justices Susan Cooper and John Hunter agreed with the decision.
The name of the man, the complainant and several witnesses cannot be published.
Bennett explained that the trial judge was wrong to infer that the man was guilty by finding his alibi concocted.
“Although Mr. H. (the man) raises a number of issues, in my view, the trial judge erred in his analysis of Mr. H.’s alibi defence, and I would allow the appeal and order a new trial on that basis without considering the other grounds,” Bennett said in the decision.
Before elaborating on these points, she touched upon some background.
The alleged sexual assault took place on Dec. 1, 2016 at the complainant’s residence in Carcross. She was sleeping at the time, and claims the assault woke her up.
The man was convicted on July 30, 2018.
Bennett pointed out that the man gave notice of his alibi to the Crown before a Nov. 9, 2017 court date. It was at this time that the trial was scheduled.
The trial judge rejected evidence given by the man’s ex-spouse that backed up his alibi. They were a couple at the time of the alleged assault.
Part of the reasoning the judge used was that she did not provide her evidence until nearly eight months after hearing about the alleged incident.
The trial judge also found that the ex-spouse had an unusually great recollection of events that day and felt she was angry and argumentative on the stand.
He felt that they both had the opportunity to meet and go over many details of the man’s defence. This included the details of a phone call between them when he was at the complainant’s residence, what time he returned home and what the ex-spouse cooked for dinner.
The man, through his lawyer, Vincent Larochelle, raised four issues.
First was an objection to the way the trial judge treated the alibi evidence.
Second was a failure to follow the appropriate legal principles.
The third was that the judge misapprehended evidence.
The last issue is that the man had received “ineffective assistance” from his previous counsel during the trial.
“Given that I agree with Mr. H. that the judge’s treatment of the alibi evidence was in error, it is not necessary to address the other three issues,” Bennett said in the decision.
The man also wishes to adduce (cite as proof) some fresh evidence.
This includes statements made by a male friend of the complainant to the RCMP. He claims that complainant told the friend that she chased the man out of her residence with a stove poker, and later she told him she was unsure if he “actually did anything.”
Another piece of evidence is an RCMP statement given from the complainant’s sister. She told the complainant to bring her close to the nursing station because they have evidentiary value.
There are also three affidavits.
The first is from the man’s previous counsel. This goes over why specific questions were not asked during cross-examinations.
The second is from the man himself. In it, he goes over the circumstances of which he disclosed his alibi early on to his lawyer.
The last is from Kailey Irwin. In it, she explains that she had received an email containing the alibi issues when the man first met with his original lawyer. This is not the same lawyer he had during the trial.
Bennett explained that while she did have to address the issue regarding effectiveness of counsel, she did not have to consider the admissibility of the first three statements.
As for the alibi, she pointed out that the trial judge did in fact lay out the appropriate law but did not properly apply it.
She explained that an accused party must provide an alibi in a timely manner to allow both police and the Crown to investigate it.
If the accused fails to do this, a judge can draw inference, but only against the defence itself, as per case law.
She explained that this cannot lead to an “adverse inference of guilt.”
“The distinction between drawing inferences about the defence itself and about the accused’s guilt is vital to the careful but fair treatment of alibis,” Bennett said in the decision.
Failing to disclose an alibi in a timely manner can impact the credibility of the defence.
The complainant testified that the alleged assault had occurred at approximately 6:30 p.m., and she called her sister after the man left her residence.
Bennett said telephone records indicate a call was made between 6:35 and 6:37 p.m.
The ex-spouse told the court that the man was at their shared home in bed at 4:35 p.m. She added that he did not leave the house at any point that night.
Bennett said this alibi was disclosed seven months before the trial.
The trial judge indicated that he did not believe the ex-spouse’s evidence for several reasons.
This includes her not coming forward right away to police with information that could have potentially cleared the man. She claims that she did not go to the RCMP immediately because she does not trust them, and investigators never asked her questions.
Bennett explained that a third party does not have to go to police to give information.
She added there cannot be a negative inference drawn against a defendant because of a third party not presenting information to police that could eliminate the accused as a suspect.
She said the trial judge linked his disbelief in her evidence and inferring the man’s guilt. She explained that the judge used his discretion in that assessment of the ex-spouse’s evidence, and that there was nothing wrong with that.
That said, she pointed out he applied this too broadly when he inferred guilt, which was wrong.
Bennett also addressed the standard to determine a fabricated alibi. There needs to be independent evidence of that that is used to discredit the defendant’s story.
She said there was no such evidence. She explained that the mere fact that the man and the ex-spouse talked about the accusations against him does not mean they concocted a story.
“In my view, the trial judge erred in concluding that Mr. H. participated in the concoction of the alibi,” Bennett said in the decision.
The trial judge indicated that he would not have believed the man’s evidence even if he was wrong about the alibi being fabricated.
Bennett said this does not do anything to “correct the grave error he made.”
She concluded this mistake was demonstrable without looking at the fresh evidence.
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