Update: March 22, 2018 — The B.C. Court of Appeal subsequently overturned the conviction and ordered a new trial. T.J.B. was acquitted at that second trial.
An Oliver man is getting a new trial on charges of sexually assaulting a young boy.
T.J.B. was convicted of sexual assault and invitation to sexual touching with a person under 16 after a trial in 2014 and was quickly released on bail after filing an appeal, serving less than one week of his 4.5-year sentence.
After a B.C. Court of Appeal decision, T.J.B. will get a new trial.
T.J.B. appeared in person in Penticton Supreme Court on Feb. 27, currently seeking counsel for a re-trial. T.J.B. will return to court sometime after March 20 to confirm he has secured counsel.
The appeal court’s decision, handed down by a three-judge appeal panel on Feb. 7, states Justice Catherine Bruce’s comments on T.J.B.’s sexuality while analyzing his credibility during her decision were unfair.
T.J.B. was examined on his sexual orientation during multiple points in the trial and while the decision notes that neither defence counsel nor Crown raised T.J.B.’s sexual orientation as an issue, Bruce placed some weight upon this evidence.
“I found the accused highly defensive of his sexuality. He appeared to try too hard to convince the court that he was heterosexual. I found his responses to be disingenuously and contrived,” Bruce said in her decision.
“I can only conclude she found it to be deliberately untruthful. I do not know how she came to that conclusion, there being no evidence to contradict the appellant’s description of this sexual orientation other than the allegation he engaged in homosexual acts with the complainant,” the decision states.
The appeal court found there was no evidence of T.J.B.’s sexuality, and furthermore he could not be held accountable for the alleged crimes due to his sexuality.
“Similarly, a gay man charged with sexually assaulting a boy could properly harbour concerns that acknowledging his homosexuality would be wrongly taken as acknowledgment of sexual attraction and could lead to an improper inference that he is more likely to have committed the crime charged,” the decision states.
According to the decision, Crown submitted if the appeals court concluded it was wrong for T.J.B. to be cross-examined on his sexual orientation, the court should “nevertheless dismiss the appeal because no substantial wrong or miscarriage of justice has occurred.”
However, the appeal court panel ruled for the conviction to be set aside and a new trial ordered.
“In my view, everything turned on the trial judge’s credibility findings in this case and it is impossible to know the extent to which the errors identified influenced the negative credibility findings she made in relation to the appellant,” the decision states.
T.J.B., who was known to volunteer in the community, including activities that involved youth, denied the charges during trial that he engaged in sexual conduct with the boy, who was between the ages of nine and 10 during the time of the alleged offences occurring between June 2011 and August 2012.