The appeal court ordered a new trial for a man accused of repeated sexual assaults against members of his family after finding the trial judge believed the complainants for the wrong reason.
A passage in Provincial Court Justice Alan Cooper’s ruling suggested that since the complainants are the accused’s nieces and great niece, their evidence is by default more credible than it would have been had they not been related to him.
Cooper’s faulty statement reads the complainants “had to testify about a family member, which in my view makes their allegations more credible than a complaint against a non-family member.”
The appeal court said this line of thought is “clearly improper.”
“The impugned passage expresses the view that, because of the difficulties in family relationships that sexual allegations often create, allegations of sexual misconduct made against a family member are inherently more credible than allegations of sexual misconduct made against a non-family member,” the Court of Appeal ruled.
“Such an approach is clearly improper and, standing alone, requires that we set aside the convictions and order a new trial.”
But the decision doesn’t mean the complainants’ family ties with the accused are irrelevant, says criminal lawyer Daniel Brown.
“In some cases you say, ‘Why would this person make up a lie that would essentially tear their family apart?’” he says. “The problem in this case is that the judge seemed to premise right from the start that in cases where complainants testify against their own family members, they’re automatically more credible.
“You have to look at the family context and the family dynamics in each particular case as opposed to having a general premise that complainants who testify against family members are automatically more credible in the same way police officers are more believable than other witnesses.”
The Crown had argued the trial judge was simply pointing at the lack of motive in the case and not setting a general principle. But the appeal court read the words differently.
“Although we agree that the passage must be read in context, we are unable to accept the Crown’s submission,” the court said.
Despite the problematic statement, the conviction would have had a better chance of standing had there been more corroborative evidence, says Brown.
“Sometimes judges make mistakes like that and it may not affect the outcome of the case. But this case was particularly unique because it wasn’t what we might call an overwhelming Crown case,” he adds.
“The last thing the Court of Appeal wants is judges to apply general rules of credibility of witnesses instead of looking at it in a particular case by case basis.”