The decision could lead to one brother's accusation, which has been marked by vague memories and sometimes contradictory testimony, being dismissed due to a lack of evidence.
"His evidence is weak ... it's jumbled," defence lawyer Jeff Gindin told court Friday.
"It may not amount to a criminal offence and I'm going to suggest it doesn't."
Gindin represents Seraphim Storheim, a former parish priest in the Orthodox Church in America who rose to archbishop — the church's top position in Canada.
The church, which has 700 churches, missionaries and other facilities in North America, is separate from other Orthodox religions such as the Greek Orthodox Church and the Ukrainian Orthodox Church.
In 1985, Storheim worked as a priest in Winnipeg and had invited the brothers, who lived in another province, to live and work with him for a summer as altar boys. The brothers, who were pre-teens at the time and cannot be identified under a publication ban, visited on separate occasions, court was told.
One brother testified that Storheim got into bed with him and asked to be touched sexually. The brother admitted to large gaps in his memory, couldn't provide many specifics and could not remember any touching occurring. He said he is on several medications and has spent time in a psychiatric hospital for schizophrenia and other conditions.
The other brother's testimony has been much more clear. He told the trial Storheim would routinely walk naked around the small house attached to the church and would sometimes lie on the floor naked and touch himself. On another occasion, the man testified, Storheim touched him and inspected his groin for pubic hair as the boy sat naked on a bed.
The Crown has asked Court of Queen's Bench Justice Christopher Mainella to admit each brother's testimony as evidence in the other's case.
Storheim's lawyer said that would be prejudicial and suggested evidence about different events at different times should be separated. He also said the two men might have influenced each other's memories, because they discussed their experiences soon after leaving Winnipeg and returning to their mother.
"These were children with impressionable minds," Gindin said.
The Crown rejected that idea.
"There is no evidence of collusion between the two of them," Crown attorney Breta Passler told court.
"Whatever discussions there were, were brief."
Both sets of allegations are at the moment being tried jointly without a jury, so Mainella has a number of options.
He could accept the Crown's application to have each brother's evidence used as part of the other's allegation. If he rejects the Crown's request, he could separate the case into two trials or continue to hear the joint trial but consider each brother's testimony separately.
Gindin said he will wait for the judge's ruling before deciding whether to move to have one brother's complaint dismissed.
The case is to resume Tuesday.
Storheim, now in his 60s, was arrested in 2010 after the brothers went to the police. He had worked as a parish priest in Alberta, North Carolina, London, Ont., and other areas.Suggest a correction