Seraphim Storheim was convicted early this year of sexually assaulting a boy who had come to visit him in Winnipeg in 1985.
Storheim's lawyer, Jeff Gindin, presented three Appeal Court judges with photos and documents Friday that suggest the boy was in Winnipeg in 1986 and not 1985. Storheim's handwriting on the pictures says a boy "not from here" is participating in a church ceremony in 1986.
Gindin argued the new evidence casts doubt on the credibility of the victim and the Crown's version of events.
"I never suggested this evidence taken by itself was a smoking gun," he told the judges. "It could have been used to cross-examine witnesses presented by the Crown in a different way."
The three judges reserved their decision on whether to consider the new evidence and grant an appeal. But Justice Alan MacInnes questioned the veracity of the pictures, which don't name the boy.
"This is an exceptional remedy you're seeking. It's that way for good reason," MacInnes said. "At some point in time, cases end."
MacInnes pointed out that Christopher Mainella, the trial judge who convicted Storheim and who now sits on the Appeal Court, didn't believe Storheim's testimony.
"The irony of this is the person who is accused was not believed by the trial judge and now we're being asked to believe his evidence," MacInnes said. "Your own client said it was 1985. On your argument, your client was wrong.
"Why should we be accepting the motion for fresh evidence?"
While Storheim was convicted of sexually assaulting one boy, he was acquitted on the same charge involving the victim's brother, who also visited on a separate occasion.
The victim testified that during that visit Storheim would routinely walk around naked and would sometimes lie naked on the floor and touch himself. The man testified that another time Storheim touched him and inspected his groin as he sat naked on a bed.
Storheim testified he talked to the boy about puberty and inspected his pyjama bottoms at the request of the boy, but denied anything inappropriate took place.
Gindin also argued that Storheim's denial of abuse was credible and should not have been dismissed by the judge. The "benefit of the doubt" was given to the Crown, Gindin said.
"The trial wasn't fair."
He further challenged the eight-month sentence handed to Storheim, which the lawyer called "harsh and excessive." Gindin argued the former cleric should not face any jail time, because his reputation has been ruined and he didn't have a previous criminal record.
The assault he was convicted of committing lasted a few seconds, Gindin said.
"That has to be, on the scale of things ... on the lower end," he said. "It wasn't even fondling. It didn't lead anywhere after that."
Storheim, 68, has been free on bail pending his appeal hearing. He sat apart from a handful of supporters in court Friday and showed no emotion as he held a string of prayer beads.
Crown attorney Ami Kotler said the new evidence brought forward by Gindin is not compelling enough to be considered by the appeal judges. New evidence should only be admitted in exceptional circumstances when someone has been wrongfully convicted, he said.
"The time for calling relevant evidence is at that trial," he said. "The time to determine whether evidence is important is during the trial and not after you get the judge's decision."
Gindin is trying to have the case retried at the Appeal Court level, Kotler said, which should not be allowed. A trial judge is allowed some discretion when it comes to weighing evidence and imposing sentence, he said.
"He accepted and rejected evidence from both the Crown and defence witnesses," Kotler said.
Storheim was a priest in the Orthodox Church in America, but later rose to archbishop — the church's highest-ranking cleric in Canada. He was placed on leave when he was arrested in 2010 and retired following his conviction.
The Orthodox Church in America has 700 parishes, missions and other institutions across North America. It is separate from other Orthodox churches such as the Greek Orthodox Church and the Ukrainian Orthodox Church.