The other shoe drops!

Appeal court reviewing Dewar decision
By James Turner
March 2, 2011
CBC News

A second sexual assault case involving Court of Queen's Bench Justice Robert Dewar is currently under review by Manitoba's highest court at the request of Manitoba Justice, CBC News has learned.

The news comes on the heels of an announcement that Dewar is currently not being assigned criminal cases of a sexual nature as complaints about his conduct — being investigated by the Canadian Judicial Council — work their way towards a conclusion.

Calls for Dewar's resignation rang out on February 25 as details of a sentencing hearing involving a convicted rapist were revealed. In his decision to hand a man a conditional sentence, Dewar made controversial references to the victim's attire and said "sex was in the air" the night she was assaulted.

'If we are going to have progress for women, he is obviously not going to be part of that process.' —NDP MLA Sharon Blady

Those calls were renewed Tuesday during a rally at the University of Winnipeg. One NDP MLA, Sharon Blady, suggested Dewar's comments have no place in modern society.

"If we are going to have progress for women, he is obviously not going to be part of that process," Blady said.

Second case under review involved pre-teen girl

CBC began investigating prior criminal cases in which Dewar was the presiding judge and discovered a 2010 trial where an accused sex predator was acquitted of a number of serious charges involving a pre-teen relative.

The Canadian Judicial Council is reviewing complaints received against Manitoba Court of Queen's Bench Justice Robert Dewar in regard to comments he made in a sexual assault case about the victim's attire. (Department of Justice Canada)

The Crown is appealing the acquittal in hopes of ordering the accused man back to trial. Neither he nor the victim can be identified due to a publication ban in place protecting their identities.

The man was arrested for allegedly sexually abusing the girl on a number of separate occasions when she was between 11 and 12 years old. The alleged abuse happened in rural Manitoba and in a Winnipeg hotel room.

The girl came forward in 2008 and gave a detailed videotaped statement to RCMP claiming several incidents had taken place, including major sexual assaults on two occasions.

The case proceeded to trial in May and June 2010, where the girl (then 15) testified and was cross-examined. The alleged abuser also took the stand and denied any wrongdoing.

In his June 24 decision to clear the man of all charges, Dewar noted that a lack of evidence in the Crown's case and a number of discrepancies and inconsistencies in the girl's story between the time of her police statement and testimony in court were raising serious doubt in his mind.

"It's important to note that there was very little evidence in the material allegations other than the evidence of [the girl]. There were no witnesses … there was no medical evidence … there was no physical evidence that could comfort a court assessing the reliability of [the girl's] evidence," he said.

'Slow reporting'

Also concerning, Dewar said, was that the girl returned to the home after she was allegedly abused when it "was surely not a safe place to be."

"Slow reporting and returning to the environment in which the alleged incidents occurred are matters which could be inconsistent with the allegations," Dewar said.

The Crown and the girl each contended there was no other place for her to go. The girl had come to live with relatives because her mother had a drinking problem.

"I accept they have a point," Dewar said. "Notwithstanding, I must at least acknowledge that it's possible she went back because she was safe there."

'I'm not prepared to convict on unreliable evidence.' — Justice Robert Dewar in June 2010 decision

Dewar also raised issues of the girl's ability to recall events while testifying. At points she said she couldn't recall certain details, or in one case couldn't remember an entire incident she told police about.

The Crown asked for an adjournment believing the girl was tired. When court resumed the next day, she still could not remember an event she told police had happened and formed the basis of one of five sexual assault charges.

"I'm not prepared to convict on unreliable evidence," Dewar said in acquitting the man of the specific charge.

"Her lapse on the witness stand … raised a concern," Dewar said.

"She may well have been tired as the Crown alleges, but I cannot rule out that her hesitation at that time was attributable to something else, like an unwillingness, for some reason, to proceed."

He went on to detail a number of other problems with the girl's story in how the alleged abuse came to light in the first place.

Ultimately, he threw out the charges, despite noting that the accused man tended to be "argumentative and defensive" at points in his testimony.

"The law says it is wrong to convict in the face of reasonable doubt and if that notion is to be respected … I must acquit," Dewar ruled.

"In doing so, I am not saying that [the girl] is necessarily wrong, I say only that the Crown has not proven its case to the requisite standard."

The Manitoba Court of Appeal has reserved its decision in the case and it's not known when a ruling will be issued.

With file from the CBC's Sean Kavanagh