Last February, Kenneth Rhodes received a conditional sentence of two years after a jury in Thompson, Manitoba had previously found him guilty of one count of sexual assault. Although the starting point in sentencing for a sexual assault that is a rape is three years in the penitentiary, a conditional sentence means he serves the sentence at home.
Both Rhodes and the Crown appealed to the Manitoba Court of Appeal. On Wednesday, three justices of the appellate court allowed the appeal, quashed the conviction, and ordered a new trial. In a relatively rare occurrence, both the prosecution and the defense argued the conviction should be set aside and a new trial ordered. The prosecution took this position reluctantly.
The Crown told the justices that a new trial will require the victim to testify again and Rhodes will have to endure being put on trial a second time. Both may feel they are being treated unfairly. As reported by CBC
, Crown counsel Ami Kotler told the court,
But the strength of our system...relies on the ability to correct our mistakes.
Although there were several grounds of appeal raised, the Court of Appeal had to only deal with one in arriving at the conclusion the conviction could not stand. Both parties agreed, and the court found, that Justice Robert Dewar, the trial judge, erred in applying the principles set down by the Supreme Court of Canada dealing with reasonable doubt and the weighing of conflicting testimony given by Rhodes and the victim. The appellate court did not give reasons for the decision although written reasons are expected to be released at a later date.
This case started out as nothing out of the ordinary from the sexual assault trials that take place across Canada on a daily basis. But some of the comments Justice Dewar made while sentencing Rhodes last February 11 received a lot of attention.
Dewar drew outrage by characterizing the then convicted rapist as a "clumsy Don Juan." He made references to how the victim and her friend were dressed provocatively when they met Rhodes and his friend. The judge stated "sex was in the air" that night and characterized the rape as "a case of mixed signals and inconsiderate behaviour." Many were angry because Dewar imposed a sentence of house arrest rather than a substantial period of incarceration.
After the sentencing, protests were held outside the Manitoba Law Courts against the justice. And several complaints were made to the Canadian Judicial Council, the body that investigates complaints made against Canada's judges. In November, the Judicial Council announced
no further action would be taken against Dewar who had issued a sincere apology and had taken sensitivity training.
is reporting another of Justice Dewar's cases is before the Manitoba Court of Appeal. The Crown appealed alleging the judge engaged in improper speculation in acquitting a man charged with sexually assaulting his pre-teen neice.
The issues before the Manitoba Court of Appeal did not involve Dewar's comments made when sentencing Rhodes. Rhodes remains free on bail and a date for a new trial has not yet been set.