New trial ordered after rape conviction overturned

The Yukon Court of Appeal has ordered a new trial for a man convicted of sexual assault in 2014, ruling the Yukon Supreme Court judge who made the original ruling didn’t properly evaluate the evidence presented at trial.

The Yukon Court of Appeal has ordered a new trial for a man convicted of sexual assault in 2014, ruling the Yukon Supreme Court judge who made the original ruling didn’t properly evaluate the evidence presented at trial.

Because much of the case rested on the complainant’s testimony, the judge had to make a ruling based solely on her credibility.

In this case the trial judge rejected the accused’s evidence and didn’t find that his testimony raised any doubt. But the court of appeal found a number of issues with the trial judge’s ruling.

The judge didn’t take into account evidence that contradicted the complainant’s testimony and made findings based on evidence not heard at trial, the appeal court found.

“I consider that the judgment rests on conclusions material to the credibility assessment that are either unsupported by the evidence or are based upon evidence that was misapprehended,” Justice Mary Saunders wrote for the court.

The accused was seeking to be acquitted.

“As there is a body of evidence supporting the charge, I do not consider an acquittal should be entered,” Saunders wrote.

A publication ban prohibits identifying the victim. In the appeal court’s written judgment, the accused is identified only by the initials MTL.

The case stems from the night of Aug. 31, 2013 when the complainant was at the home of the accused, who was a friend, near Whitehorse.

There’s very little in common between the two testimonies, except for the fact the two had sex.

The question at trial was whether it was consensual.

The victim testified it wasn’t, that the accused made her uncomfortable at a bar that night, touching her.

During the trial she testified she stayed at the accused’s home because she didn’t have a place to stay.

When they got to the accused’s home, he tried to kiss her and she avoided his advances.

She testified she woke up on a couch in the accused’s home, with the man on top of her.

MTL testified the sexual encounter took place when the victim came to his bed.

In its ruling the court of appeal only addressed two of the mistakes the judge made, saying those alone were enough to overturn his decision.

At trial, the accused said bite marks on the woman’s neck were a hickey the victim asked for, while she said the accused bit her “really hard” leaving bruises.

The bites were more consistent with a bite than a hickey, the judge said. But it’s not that clear-cut, the court of appeal said.

“Yet having viewed the photographs, I am unable to conclude they support (the victim’s) version of the sexual encounter as the judge said they did,” Saunders wrote.

“They are at best equivocal and do not provide a basis upon which one may say ‘the marks are more consistent with a bite than a hickey.’”

The judge ruled the victim’s testimony was largely corroborated by her partner, who also testified during the original trial.

That was simply not the case, the Court of Appeal found.

“More troubling is that in narrowing the purported area of corroboration, the statement does not grapple with obvious differences in the overall accounts of (the victim’s partner) and (the victim) that could, depending on the trier of fact’s view of those witnesses, reflect adversely on the reliability of (the victim’s) testimony,” Saunders wrote.

The court cited as an example the victim and her partner contradicting each other about how many calls they made to each other after the alleged sexual assault.

“To the extent the judge considered (the victim’s partner’s) evidence largely corroborated (the victim’s), I conclude the corroboration was on narrow and relatively undisputed facts,” Saunders wrote.

“Significant divergence between their evidence was not acknowledged in the reasons for judgment.”

Contact Pierre Chauvin at pierre.chauvin@yukon-news.com

Get local stories you won't find anywhere else right to your inbox.
Sign up here

Just Posted

asdf
WYATT’S WORLD

Wyatt’s World for Jan. 20, 2021

A Copper Ridge resident clears their driveway after a massive over night snowfall in Whitehorse on Nov. 2, 2020. Environment Canada has issued a winter storm warning for the Whitehorse and Haines Junction areas for Jan. 18. (Crystal Schick/Yukon News file)
Winter storm warning for Haines Junction and Whitehorse

Environment Canada says the storm will develop Monday and last until Tuesday

Maria Metzen off the start line of the Yukon Dog Mushers Association’s sled dog race on Jan. 9. (Gabrielle Plonka/Yukon News)
Mushers race in preparation for FirstMate Babe Southwick

The annual race is set for Feb. 12 and 13.

The Yukon government is making changes to the medical travel system, including doubling the per diem and making destinations for medical services more flexible. (Joel Krahn/Yukon News file)
Subsidy for medical travel doubled with more supports coming

The change was recommended in the Putting People First report endorsed by the government

Chloe Sergerie, who was fined $500 under the <em>Civil Emergency Measures Act</em> on Jan. 12, says she made the safest choice available to her when she entered the territory. (Mike Thomas/Yukon News file)
Woman fined $500 under CEMA says she made ‘safest decision’ available

Filling out a declaration at the airport was contrary to self-isolation, says accused

Yukon University has added seven members to its board of governors in recent months. (Crystal Schick/Yukon News file)
New members named to Yukon U’s board of governors

Required number of board members now up to 17

Yukonomist Keith Halliday
Yukonomist: Your Northern regulatory adventure awaits!

“Your Northern adventure awaits!” blared the headline on a recent YESAB assessment… Continue reading

Yukoner Shirley Chua-Tan is taking on the role of vice-chair of the social inclusion working group with the Canadian Academy of Health Sciences’ oversight panel and working groups for the autism assessment. (Submitted)
Canadian Academy of Health Sciences names Yukoner to panel

Shirley Chua-Tan is well-known for a number of roles she plays in… Continue reading

The Fish Lake area viewed from the top of Haeckel Hill on Sept. 11, 2018. The Yukon government and Kwanlin Dün First Nation (KDFN) announced they are in the beginning stages of a local area planning process for the area. (Crystal Schick/Yukon News file)
Local area planning for Fish Lake announced

The Government of Yukon and Kwanlin Dün First Nation (KDFN) announced in… Continue reading

Whitehorse City Hall. (Joel Krahn/Yukon News file)
City hall, briefly

A look at decisions made by Whitehorse city council this week

Fire damage, photographed on Jan. 11, to a downtown apartment building which occurred late in the evening on Jan. 8. Zander Firth, 20, from Inuvik, was charged with the arson and is facing several other charges following his Jan. 12 court appearance. (Gabrielle Plonka/Yukon News)
More charges for arson suspect

The Inuvik man charged in relation to the fire at Ryder Apartments… Continue reading

The grace period for the new Yukon lobbyist registry has come to an end and those who seek to influence politicians will now need to report their efforts to a public database. (Mike Thomas/Yukon News file)
Grace period for new lobbyist registry ends

So far nine lobbyists have registered their activities with politicians in the territory

Most Read