(STEVE ARSTAD / iNFOnews.ca)

OLIVER - An Oliver man who was accused of lying about his sexual orientation under oath will have a new trial after a Supreme Court judge overturned the trial judge’s decision.

The man, only identified as T.J.B., was convicted of sexual interference with a person under the age of 16, sexual assault and invitation to sexual touching of a person under the age of 16.

But T.J.B. appealed those convictions, saying the original trial judge erred when relying on T.J.B.’s answers to questions about his sexual orientation to conclude he lacked credibility.

Supreme Court judge Peter Willcock has now ruled that the questions surrounding T.J.B.’s sexual orientation were irrelevant and unfair. In his Feb. 7 decision, Willcock says a new trial is required considering it is not known what the result of the original trial would have been, had the judge not given significant wait to T.J.B.’s answers in her determination of his credibility.

The victim in the case, who can't be identified due to a court-ordered publication ban, was nine and 10 years old at the time of the alleged assaults that occurred between July 1, 2011 and Aug. 31, 2012. T.J.B. was 20 and 21 years old at the time.

Supreme Court judge Catherine Bruce said in her original decision from November 2014 that T.J.B. and the young boy developed a friendship after T.J.B.’s father died in 2011. They spent weekends together, went to movies, snowboarded and did other activities.

Bruce said T.J.B. would buy the boy expensive gifts including an iPod and a snowboard. During their weekend sleepovers, the young boy testified during trial that on dozens of occasions, T.J.B. had touched him, dry humped him and asked the boy to touch his penis, among other things.

Bruce found T.J.B. guilty of the three charges, but in her decision she said she believed T.J.B. was trying too hard to convince the court he was heterosexual.

“When asked in cross-examination if he was gay, the accused strongly denied that he was anything other than heterosexual,” Bruce said. “When asked if he talked about girls, he said “Oh yeah”. He commented that he had seen a good looking girl during a break in the trial and he would comment on this sighting to his friends.”

Bruce said she found T.J.B. “highly defensive” of his sexuality and found his responses in cross-examination disingenuous.

Willcock said in his decision that Bruce must have concluded that T.J.B. was “deliberately” lying about his sexual orientation.

“I do not know how she came to that conclusion, there being no evidence to contradict the appellant’s description of his sexual orientation other than the allegation that he engaged in homosexual acts with the complainant,” Willcock said. “Even if the judge had not reached any conclusion with respect to the truthfulness of the answers but was merely commenting on the appellant’s demeanour in answering questions, in my view, it was unfair do so.”

Willcock says T.J.B.’s sexual orientation has nothing to do with the charges against him and cannot be used to draw an inference of guilt.

“There may be many reasons unrelated to guilt or innocence why a person may not wish to publicly assert their sexual orientation,” Willcock said. “Those reasons may be very strong in a small or religious community.”

He says a gay man accused of assaulting a boy may be more likely to harbour his sexual orientation because an acknowledgement of homosexuality could be wrongly taken as an acknowledgement of sexual attraction and could lead to an improper inference that he is more likely to have committed the crime charged.

“A negative answer might be viewed as an obvious lie even, as in this case, in the absence of evidence of its falsity, and as an attempt to avoid responsibility,” Willcock said.

Willcock says he will set aside the conviction and order a new trial, considering no one knows the extent Bruce’s assessment of T.J.B.’s answers on sexual orientation had on her decision.

No new trial date has been set yet.

– This story was updated at 11:12 a.m. Wednesday, Feb. 8, 2017 to remove the initials of the complainant in the case.

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