The Yukon Court of Appeal has ordered a new trial for a man convicted of a 2018 sexual assault.
The man now appealing his conviction was on trial for assaulting the alleged victim while the two were drinking and socializing at his house. The alleged perpetrator and victim are distant cousins. Their names and the community they live in are anonymized in court documents.
The trial judge in the initial case believed the alleged victim’s evidence that sexual activity between them was not consensual and convicted the man who brought the appeal.
A Feb. 2 decision from a three-judge panel, called for the new trial based on evidence that the convicted man gave police a statement that was not entirely voluntary. The judgment was penned by Justice Elizabeth Bennett and concurred with by Justices Susan Charlesworth and Joyce DeWitt-Van Oosten.
The problem with the initial trial that caused the Court of Appeal judges to call for the new trial was the improper waiver of a pre-trial inquiry to determine if the defendant’s statement to police was given voluntarily. The Court of Appeal judges cited “red flags” related to the voluntariness of the defendant’s statement. These included an epileptic seizure he allegedly suffered prior to giving the statement, his lack of memory and his belief that he had no choice but to give a statement and risked detention if he didn’t.
According to a summary of the Court of Appeal’s reasons for ordering a new trial, the day before the trial began, the defence lawyer advised the crown that the defendant would not be contesting the voluntariness of the statement but the judge was not advised of this.
The judgment says the crown counsel used the statement to cross-examine the accused man. The trial judge was not told about the waiver of the statement’s voluntariness until after the cross-examination was concluded. The court of appeal judges say the trial judge was obligated to stop proceedings and declare a voir dire inquiry to determine the voluntariness of the statement.
The trial judge accepted the evidence of the complainant and found the defendant guilty, partially relying on the statement to find the defendant’s evidence not credible.
The appeal judges note in their written reasons that a statement given to a person in authority by an accused person out of court is not admissible at trial until the crown proves beyond reasonable doubt that it was given voluntarily. The reasons for their judgment state that a statement is voluntary only when it is given without fear of prejudice or hope of advantage and is the product of an operating mind.
Because the initial trial failed to determine if the statement was voluntary, a new one is being ordered.
Contact Jim Elliot at jim.elliot@yukon-news.com