Alberta judge admonished for seeming to force accused in sex-assault case to prove innocence

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In a message to judges not to unfairly convict in sexual-assault cases, Alberta's Court of Appeal has admonished a lower-court judge for appearing to require an accused to prove his innocence, rather than oblige the prosecution to prove his guilt.

The case involved a 68-year-old man convicted of sexually assaulting two girls in his care, age 13 or under, when he was in his early 50s. The appeal court, in a 2-1 ruling this month, criticized the trial judge for saying part of the man's testimony did not meet "the test for acquittal."

"An accused is presumed to be innocent," the majority said, and "does not have to prove anything. The test for conviction is 'proof beyond a reasonable doubt' and there is no 'test for acquittal.'" The dissenting judge said the majority took the phrase out of context.

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The ruling comes as the justice system's treatment of sex-assault complainants is in the spotlight in North America, and judges are increasingly participating in intensive training programs in how not to put alleged victims on trial.

The appeal court's finding is a reversal of a recent pattern in Alberta. In the past two years, judges of the appeal court and the Court of Queen's Bench have criticized lower-court judges at least five times for being unfair to complainants in sex-assault cases, by imposing myths and stereotypes such as an insistence they fight back if they truly don't consent, a review of databases by The Globe and Mail has found.

In the best-known of these cases, Justice Robin Camp, then of the Alberta Provincial Court, asked a complainant in R v Wagar in 2014 why she didn't keep her knees together. The appeal court overturned the acquittal, and a disciplinary body has since recommended Justice Camp's removal from the bench.

But the appeal court majority took a different tack in the case of R v H. The two sisters, and a third, sometimes stayed overnight with the man, because their mother was abusive and their father absent for work. The accused, who had employed their father, testified he had been a grandfather figure to the girls, and that he had never touched them in a sexual way. Last March, Justice Stephen Hillier of the Court of Queen's Bench in Edmonton found him guilty of having sexual intercourse with one child and sexually touching another during a truck ride, saying he lacked credibility. He acquitted the man on a charge involving a third sister. The appeal court threw out the convictions.

In Canadian law, higher courts are generally supposed to defer to the factual findings of trial judges, including their assessments of credibility. As in many sexual-assault trials, the case turned on whom to believe. Deborah Hatch, an Edmonton lawyer who represented the convicted man in his appeal, said that miscarriages of justice can be found on both sides in sex-assault cases.

"Miscarriages of justice cut both ways – it's important to understand that wrongful convictions are human tragedies," she said in an e-mail, speaking generally, and not about the case in which she was involved. "People are jailed, lose their children, their spouses, their jobs, and the consequences often cannot be reversed. It is critical to ensure that accused persons are treated fairly, and that the burden of proof remains solely on the prosecution. This is no less the case in sexual assault prosecutions."

Constance Backhouse, the Chair in Sexual Assault Legislation at the University of Ottawa, said after reading the ruling she was struck by how the traditional criminal-law rules stacked the deck against sex-assault victims. "It's not that I disagree with the traditional rule that you can't convict unless the Crown proves its case beyond a reasonable doubt, it's just that in application it always tilts away from credible complainants."

Justice Hillier found the man's testimony lacked common sense when he testified why one girl of 10 or 12 at times came into his bedroom: that if she couldn't sleep, she brought a blanket and pillow in, lay down on the floor and for a few minutes watched a TV that was up on a dresser.

But the appeal court majority said the accused man was never asked in court how high the dresser was, and the prosecution did not view the testimony about television watching as important. "The overall tone is that [the accused] had some sort of persuasive burden to explain why [the first complainant] would watch TV in the bedroom from the floor," Justice Frans Slatter and Justice Myra Bielby said in their jointly written majority ruling. "There is nothing obviously implausible about this evidence."

They also said that unjustified criticisms of the way he gave his evidence "raises an overall question of whether [the accused] was dealt with fairly."

Writing in dissent, Justice Marina Paperny said that appeal-courts should overturn trial judges' findings on credibility only in rare cases.

In this case, she said, Justice Hillier's reasons for his ruling, read as a whole, were fair to the accused man, she said.

A Justice Department spokeswoman said the province's prosecution service is reviewing the ruling and it would be inappropriate to say yet whether an appeal is planned.