B.C.’s Court of Appeal has ordered a new trial for a man convicted of sexual assault and two counts of sexual interference.
The man appealing, A.B., argued the trial judge misdirected the jury on how to approach and assess the evidence in deciding whether the Crown proved the offences beyond a reasonable doubt.
He was convicted in November 2021.
“The appellant has persuaded me of misdirection,” Justice Joyce DeWitt-Van Oosten wrote in the March 12 decision of the unanimous, three-judge panel.
The man was charged with committing sexual offences between 2001 and 2011 against his stepdaughter. She was between seven and 16 years old when the offending occurred.
The Crown had alleged multiple incidents of highly invasive sexual misconduct.
The girl disclosed the abuse after she turned 18.
DeWitt-Van Oosten said the judge’s directions encouraged a segregated approach to assessing the evidence; shifted the burden of proof by encouraging the jury to form a conclusion on whether the sexual assault and interference allegations were proved beyond a reasonable doubt before turning to the evidence of the appellant; and directed the jury to adopt a piecemeal approach in applying the standard of proof.
What that meant. A.B. argued, was that the judge incorrectly encouraged the jury to “silo” the evidence of the stepdaughter and the man from each other and from the remainder of the case.
And, A.B. argued, the judge improperly shifted the burden of proof to the accused with the suggestion that his evidence had to counter a possible conclusion of guilt at which the jury had already arrived.
DeWitt-Van Oosten said such an approach could marginalize A.B.’s evidence. She said the jury was obliged to consider all evidence in the case rather than applying a piecemeal approach to the expected standard of proof.
“Given the nature of the errors established by the appellant, there is no option but to allow the appeal, set aside the convictions for sexual assault and sexual interference, and order a new trial,” DeWitt-Van Oosten said.
