PART III: HOW TO CRIMINALLY CONVICT THE INNOCENT IN CANADA

When a criminal indictment is brought, or a trial takes place, one normally knows that a crime has occurred. The central issues in a bank robbery case, for instance, are not whether the bank was robbed or when that happened. Rather, the central issues go to whether the accused is the person or persons who robbed it.

In cases of alleged sexual assault that rely on the accuracy of the memory of complainants or the accused, it’s often the case that a pre-trial agreement about the ‘facts’ is entered into.

In this case, one of those facts agreed to is that the complainants each visited Fr. Seraphim in Winnipeg at different times. And, that is certainly the case.

Yet, another of the ‘facts’ agreed to is that the complainants visited separately in the summer of 1985.

But that is not the case. One went in July 1985; the other, in July 1986. So, they visited separately, their visits being about a year apart.

The narrative the Crown presented was that, separately, over the course of one summer, two 11-year-old boys, twins, had visited Fr. Seraphim.

The entire case was structured around this narrative, as was all of the judicial reasoning of the bench. As Judge Mainella said in his ruling: “[The two complainants] came to Winnipeg only during the summer of 1985.”

This agreed-upon narrative both coloured and affected the relevance of, the interpretation of, and the weight given to the testimony of each of the witnesses for the defense.

It also implied that Fr. Kostoff was not the parish priest when the mother initially made her allegations of misconduct. The court reasoned that her initial disclosures of sexual misbehavior were made to a Fr. Beldan (spelled incorrectly this way in the ‘ruling’).

In fact, because Fr. Kostoff became the parish priest in October 1985, Fr. Belden (now spelled correctly) had never had any disclosures made to him by her or anyone. He'd left the parish well before she made her initial allegations to anyone. We can say that because she made those allegations after her second boy had returned home. So, the earliest she spoke to anyone about her boys’ visits was in or after July 1986.

The court treated the implication that the mother had spoken to more than one priest as a fact.

Because of this agreed-upon narrative, the mother’s own sworn statements that she’d initially spoken with Fr. Kostoff, her parish priest, was unacceptable to the court. Instead, the court chose to believe that (and I quote here) “she made different disclosures about the abuse. She said she told Father Kostoff, who I [Judge Mainella] actually take to be Father Beldan, that the accused touched the boys when he was naked.” (Emphasis is mine.)

This also meant that Fr. Kostoff’s sworn testimony that she’d never told him of any such physical contact was looked at against the ‘fact’ that she’d made her initial disclosures of sexual touching to Fr. Beldan and others who were never called as witnesses.

This also meant that anyone who accurately recalled that the youths had visited separately a year apart was ruled out as a witness for the defense. In other words, the agreed-upon narrative not only colored how the trial testimony was being interpreted and weighed, but it also served to filter out those called to testify. This eliminated anyone with a reliable memory of when the visits took place.

Moving along, there is another extremely serious problem with this case.

It, too, has to do with the set of agreements made pre-trial.

Among those agreements was the agreement that the members of the family of the complainants would not be called back to testify after they returned home.

On its face, that seems fair.

It would have fair if the trial had been held altogether in one piece. If it had been, rather than spread out to different days spread months apart, these family members could have been recalled to resolve any inconsistencies between what they testified to and what other witnesses testified to. By the time some witnesses testified, they couldn't be recalled.

Cross-examination of inconsistencies and contradictions between testimony is a vital part of full answer and defense. The right to full answer and defense is a pre-Charter common law right embedded in principles of fundamental justice judicially constructed well before the Charter.

The failure of the Bench as the Court was to protect this right in common law within its scheduling of the trial testimony. As it is, the scheduling made it impossible to fully exercise this right.

Scheduling the trial into days spread months apart made it impossible to conduct any cross-examination of the complainants about clear contradictions in other Crown witness testimony.

When it’s impossible to cross-examine three of five Crown witnesses due to a pre-trial agreement and due to court scheduling, something’s seriously amiss. That this raises sections 7 and 11 of the Charter is yet another matter. For, though the Charter has gone unmentioned throughout this trial, serious Charter issues are invoked by the pre-trial agreements.
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That’s all for today, folks.