CHARLOTTETOWN — A P.E.I. man found guilty of molesting his three stepdaughters has had his conviction overturned after an appeal court found problems with the length of time it took to get videotaped statements from the girls.
The appeal court said the trial judge failed to hear evidence about whether the time gap between the alleged sexual touching and assaults and the girls' statements could be considered reasonable.
The man was convicted last year of seven sex-related offences and two counts of assault and sentenced to 4.5 years in prison.
In a ruling this week, the appeal court found one girl, who was between seven and 10 years old when the alleged offences took place, gave her video statement more than four years after the last incident, while the two others gave their statements 22 months to four years later.
It found the trial judge admitted the video statements as evidence before hearing evidence on timing. The decision says the onus was on the Crown to prove the video was made in a reasonable time, but the trial judge did not hear evidence to support that argument.
"He had no evidence on many of the factors he had to consider before making his ruling on admissibility," Judge John Mitchell wrote on behalf of the three-judge appeal court. "At the time the trial judge ruled on the admissibility (of one) video recorded statement, he did not know when the video was made and there was no evidence to explain the delay."
The alleged assaults occurred between 2005 and 2011, when the girls were between the ages of seven and 15. Their identities are protected under a publication ban.
The appeal court acknowledged that video statements are used to protect young victims of sexual assault from any trauma associated with testifying at a trial, while preserving their recollection of events and "the discovery of the truth."
But the judges cited several cases involving children that relied on video statements made months after alleged offences. In one, a mother and child waited 20 months before making a statement because they thought the matter was being handled internally at the girl's school. The judge ruled that was not reasonable.
However, the judge in another case ruled a three-year delay was acceptable because the young girl feared the accused would hit her mother, as he had previously, if she told authorities.
In the P.E.I case, the appeal court said there was evidence that the girls feared their stepfather, who had separated from their mother six months before the video statements were given.
The decision noted one of the complainants remained in touch with him until weeks before the statements were made.
"There are also photographs and videos tendered into evidence showing the complainants frolicking in a pool with the accused and all seemed happy," the decision says.
The judges also found some discrepancies in the girls' account of the timing of when the alleged offences occurred.
The Crown did not respond to a request for comment on whether it would pursue a new trial.
The Canadian Press