03/03/2016 03:21 EST | Updated 03/03/2016 04:59 EST

Ontario Court Of Appeal Overturns Sex Assault Conviction Due To Misremembered Cushion Detail

Shutterstock / Rob Wilson

TORONTO — An Ontario man's convictions in a sexual assault case involving two young boys have been overturned over misremembered evidence about the placement of a couch cushion.

The Ontario Court of Appeal said in a ruling released this week that the trial judge's "main articulated reason'' for rejecting the accused's account was the belief that he had changed his evidence during cross-examination.

At issue was the man's recollection of watching movies on the couch with the boys, then seven and nine, and their grandmother.

Under cross-examination, the accused said one of the boys would lie down and put his head on a cushion in the man's lap.

'The main issue for the trial judge was credibility'

The Crown suggested he had not mentioned the cushion in his examination in chief — a "mischaracterization'' the appeal court said heavily informed the trial judge's decision.

In fact, the three-member panel said, the man had referenced the cushion in his earlier testimony.

"The trial judge concluded, based primarily on the misapprehension of the evidence about the cushion, that the credibility and reliability of the appellant's testimony was undermined,'' the panel wrote.

"Consequently, the convictions cannot stand.''

"The main issue for the trial judge was credibility. His conclusion as to the credibility of the appellant was tainted by an error of fact. The error infected the core of his reasoning on the credibility of the appellant,'' it wrote.

"Consequently, the convictions cannot stand.''

A new trial may be ordered at the discretion of the Crown.

2014 convictions

The man, who was renting a room in the home belonging to the boys' grandmother, was convicted in 2014 of two counts of sexual assault, two of sexual interference, and one of invitation to sexual touching.

The brothers alleged he had touched their genitals and buttocks and, on one occasion, showed them pornography. They cannot be identified due to a publication ban.

Court documents say that though there had been a confrontation about the allegations at the house in 2011, nothing was reported to authorities until two years later.


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