A Toronto judge used a man’s presence at his own trial as a factor against him when she convicted him of sexual assault, Ontario’s top court ruled Monday.

The Court of Appeal overturned Manuel Esquivel-Benitez’s conviction and ordered a new trial. The top court found that Superior Court Justice Carole Brown, among other errors, had “used the appellant’s presence in the courtroom” while the complainant testified as a basis for rejecting his own testimony.

Brown had mentioned several times in her ruling that Esquivel-Benitez’s testimony came after the complainant’s, and that his evidence “essentially mirrored hers.”

“Accused persons have not only a statutory obligation but also a right to be present at their trial, grounded in their constitutionally guaranteed rights to a fair trial and to make full answer and defence,” the appeal court said in its brief ruling.

“On our review of her reasons, the trial judge used this right against the appellant to find that he had the opportunity to tailor his evidence and that he did so. This line of reasoning is not permissible.”

The Crown acknowledged that unless there’s an actual allegation of recent fabrication regarding the appellant’s testimony, it is “impermissible to reason” that an accused person tailored their testimony to match the prosecution’s evidence, the appeal court said.

“Mr. Esquivel-Benitez looks forward to vigorously asserting his innocence and having his name cleared at a new trial,” his appeal lawyer, Lance Beechener, told the Star.

It’s the latest in a string of sexual assault cases to be overturned by the appeal court in recent months due to errors made by trial judges.

It also comes as the federal government reintroduced a bill on mandatory training on sexual assault law for federally-appointed judges, largely mirroring a similar bill introduced by former Conservative leader Rona Ambrose that died in the Senate before last fall’s election. That bill had been sparked by several high-profile sexual assault acquittals and controversial remarks made by judges in some of the cases.

In the Esquivel-Benitez case, the Court of Appeal also found that Brown “failed to meaningfully recognize or address” evidence the complainant may have had a motive to fabricate her testimony.

According to the top court, it was undisputed that Esquivel-Benitez and the complainant had sex on a couch after an evening of partying while the complainant’s husband slept in a nearby room. They were caught by the complainant’s husband, who persistently questioned his wife on the walk home, stating repeatedly, “Tell me this guy abused you” or “Did he abuse you?” the top court said in its ruling.

“The fact that the complainant did not immediately, when confronted, tell her husband that she had been assaulted and did so only after they had returned home, in response to his repeated entreaties, was relevant to whether she had a motive to fabricate, and ultimately to her credibility,” the appeal court said.

The court said that instead of giving this issue proper consideration, Brown said she was dismissing the defence’s focus on it as “part of an ongoing myth regarding sexual consent.”

Loading... Loading... Loading... Loading... Loading... Loading...

The top court said this was an error. They said the judge was entitled to accept the complainant’s testimony that she did not consent to sexual activity, but in the circumstances of the case, should have also considered “whether the events gave rise to a motive to fabricate.”

Finally, the appeal court found Brown erred when, after finding that she preferred the complainant’s testimony over Esquivel-Benitez, she failed to step back and consider whether all of the evidence in the case gave her a reasonable doubt.