A North Okanagan businessman found guilty of sexual assault last year has had the conviction overturned and will get a new trial.
The accused, whose name is protected by a publiction ban, successfully appealed his 2022 BC Supreme Court conviction involving a woman who was 16 years old at the time of the alleged sexual assault, which took place in 2004 when he was 36.
The accused was the girl’s hockey coach and family friend at the time, and the assault was alleged to have taken place in the accused’s home the night before a game.
The accused was sentenced to 23 months jail on Oct. 28, 2022, but served no time as he immediately filed an appeal of the sentence.
The accused raised two grounds of his appeal. First, he argued the trial judge erred by admitting content of the complainant’s prior consistent statement to her parents in which she disclosed the alleged assault, and by relying on that statement for the truth of its contents.
The accused also claimed the judge erred by misapplying the legal principles applicable to the assessment of adult witnesses testifying to events that occurred in childhood, in discounting the inconsistencies arising from the complainant’s evidence.
According to the BC Court of Appeal’s Nov. 16 ruling, “the judge relied on the content of the complainant’s prior consistent statement to her parents in finding the complainant’s evidence to be credible and reliable. The content of the statement should not have been admitted, and the judge made a clear error of law in relying on it to corroborate the complainant’s testimony.”
The appeal court ruling continued, “the error is not so harmless or minor that it could not have had any impact on the verdict, since the credibility of the complainant and appellant were central to resolving the key element of consent, and the judge relied on the statement in finding the complainant credible. Further, the evidence against the appellant was not so overwhelming that any other verdict would have been impossible to obtain. As the first error has been established and is dispositive, the second alleged error is not addressed.”
Based on this reasoning, Justice Lauri Ann Fenlon set aside the conviction and ordered a new trial.
The Morning Star has reached out to the BC Prosecution Service for word on when a date for a new trial will be set.
Editor’s note: This story has been updated to adhere to a publication ban.
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