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The Ontario Court of Appeal dismissed Charles Kennedy’s appeal from convictions for assault, unlawful confinement and sexual assault, rejecting arguments about consent and delayed reporting.
Judge found both complainant and accused equally credible on core facts; prosecution did not prove beyond a reasonable doubt that the accused invited sexual touching on the two earlier occasions (s.152) and the accused's credible evidence that the complainant brought a condom, initiated oral sex and that he made ongoing inquiries created reasonable doubt on the s.271 sexual assault charge and established an air of reality to an honest but mistaken belief defence; accordingly acquittals were entered on both counts.
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The trial judge committed reversible error by adopting an analytical framework that treated allegations against family members as inherently more credible than allegations against non-family members; that error, together with reliance on inadmissible opinion evidence, required setting aside the convictions and ordering a new trial.
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The court upheld the trial judge's admission of similar fact evidence because the evidence demonstrated a high degree of connectedness (common pattern: targeting boys in vulnerable conditions under guise of assistance, initial genital fondling, position of trust) and its probative value outweighed prejudicial effect; the jury charge adequately warned against propensity reasoning and instructed on proper use of the pattern; however the sentencing judge misapplied D.(D.) by treating aggravating features as present to a greater degree than supported, so the global sentence was excessive and redu…
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