Mother of slain woman ejected from court after voicing anguish at sentencing hearing
WARNING: This story contains strong language.
A grieving mother was ejected from a Moncton courtroom Thursday shortly before a judge ruled a woman would serve no additional jail time for helping her daughter's killer get away.
Megan Marten, 41, of Fredericton was being sentenced on a charge of being an accessory after the fact to manslaughter in the July 11, 2023, death of Kyla Cindy LaPointe.
Marten admitted she stood over LaPointe's bleeding body for about two minutes after Dylan Jackson stabbed the 32-year-old in the back, didn't call for help, and then drove Jackson away from the scene.
"Megan, I hate you with every fibre of my spirit, my core, everything," LaPointe's mother, Nicole Blanchard, yelled at Marten in the courtroom prisoner's box.
As Justice Robert Dysart asked Blanchard to stick to her written victim impact statement, she continued.
'You took my first baby from me'
"Your time is going to come. Karma will get you. You took my first baby from me. As much as I'm hurting, as much as I'm in pain, I wouldn't even wish that on you, a f---king monster like you….You will be out one day, and we will meet. You killed my daughter, you f--king b--h."
Multiple court sheriffs approached Blanchard and began to removing her.
"You were covered in her f--king blood and walked away as she was dying," Blanchard yelled while being escorted out of the courtroom, followed by several people in the courtroom gallery clapping. Another person walked out, calling the process a farce.
Marten had faced a second-degree murder charge, but pleaded guilty in February to the accessory charge.
Marten was given the chance to address the court, but said nothing.
Her defence lawyer and the judge noted that she had expressed remorse during the preparation of a pre-sentence report.
Crown and defence lawyers jointly recommended a sentence of almost 2½ years. Crown prosecutor Robert Johnston said sentences imposed for the crime range from 18 to 30 months.
However, Marten was credited 1½ days for each day spent in custody since her arrest. As a result, the sentence was no further time in jail.
Judge accepts sentence
The Supreme Court of Canada has directed judges to generally follow joint recommendations.
Dysart ruled the sentence was suitable after reviewing the circumstances of the case, sentences imposed in similar cases, Marten's Indigenous background, her guilty plea and lack of a prior criminal record.
"She has served her sentence," Dysart said in his decision.
Dysart described her actions as a "jarring, morally reprehensible act."
Marten was ordered to submit a DNA sample and was prohibited from possessing firearms for 10 years.
Dysart expressed condolences to LaPointe's family, saying no sentence would bring their loved one back but he hoped it would bring some closure.
Family, friends voice grief
Prior to the sentence being imposed, Dysart heard victim impact statements from four people and read several other written statements.
The statement described LaPointe as struggling in her early life in the foster system, but using that experience to advocate for improvements to the system to help protect other children.
She was described as a kind, loving mother of four.
"She was grace, poise and patience," Sadie Sloan said of her friend.
Laura Aubé, LaPointe's stepmother, spoke about how some of LaPointe's children would grow up without their own memories of their mother and how the children wouldn't get to experience life's firsts with LaPointe.
"She was my girl, and she was not finished living her life," Aubé said. "I'm angry, and I hope the court knows how much she was loved and how much she loved."
Blanchard said she had only begun to feel normal again after the death of another daughter in 2015. Then LaPointe was killed. She said after one difficult day in court, she considered taking her own life but didn't want to cause her family more pain.
Blanchard said Marten didn't deserve to walk free after what happened.
"My heart hurts to know how scared and confused my daughter must have been to be stabbed from behind and then … bleeding out and struggling to breath," Blanchard said through tears.
"Did she ask you for help? Did she look at you with fear in her eyes?"
Blanchard later began saying things that weren't in the written version of her victim impact statement, leading to her ejection from court.
There were more sheriffs in the courtroom than normal for the sentencing, and two uniformed RCMP officers sat in the hall outside the courtroom.
The facts Marten admitted to were outlined in a document when she pleaded guilty in February.
Jackson and LaPointe were part of a group of five that travelled from Fredericton to Moncton to buy fentanyl.
LaPointe and her boyfriend, Brody Leblanc, went to the drug dealer's apartment while Jackson and Megan Marten waited in a car with another man. The transaction took longer than expected, and LaPointe left and wandered around Moncton.
Eventually, she walked past the car on Belleview Avenue where the three others, including Marten and Jackson, were waiting. What followed was captured on video. Jackson ran up behind her, stabbed her immediately, then went back to the car.
Marten walked up to LaPointe, standing beside her for about two minutes as she bled on the street.
Neither Jackson nor Marten provided care or called for help as LaPointe bled. A neighbour called 911.
Marten drove the car up to LaPointe's body, Jackson retrieved the knife, and the three fled the scene. RCMP stopped the car moments later.
Jackson was sentenced in March to 10 years after pleading guilty to manslaughter. It was a sentence Blanchard told reporters the family wasn't happy with, saying she would have preferred the case go to trial.
Try Our AI Features
Explore what Daily8 AI can do for you:
Comments
No comments yet...
Related Articles
The Province
20 hours ago
- The Province
Supreme Court of Canada quashes B.C. sex conviction, extends 'rape shield' law
High court rules 'rape shield' law that prevents defence lawyers from bringing up sexual past also applies to prosecutors The Supreme Court of Canada quashed a sexual-assault conviction against a B.C. man in a precedent-setting decision that strengthened the 'rape shield' law, ruling that even a complainant's lack of a sexual past can't be brought up in court. Photo by Corgarashu / Fotolia The Supreme Court of Canada quashed a sexual-assault conviction against a B.C. man in a precedent-setting decision that strengthened the 'rape shield' law, ruling that even a complainant's lack of a sexual past can't be brought up in court. This advertisement has not loaded yet, but your article continues below. THIS CONTENT IS RESERVED FOR SUBSCRIBERS ONLY Subscribe now to read the latest news in your city and across Canada. Exclusive articles by top sports columnists Patrick Johnston, Ben Kuzma, J.J. Abrams and others. Plus, Canucks Report, Sports and Headline News newsletters and events. Unlimited online access to The Province and 15 news sites with one account. The Province ePaper, an electronic replica of the print edition to view on any device, share and comment on. Daily puzzles and comics, including the New York Times Crossword. Support local journalism. SUBSCRIBE TO UNLOCK MORE ARTICLES Subscribe now to read the latest news in your city and across Canada. Exclusive articles by top sports columnists Patrick Johnston, Ben Kuzma, J.J. Abrams and others. Plus, Canucks Report, Sports and Headline News newsletters and events. Unlimited online access to The Province and 15 news sites with one account. The Province ePaper, an electronic replica of the print edition to view on any device, share and comment on. Daily puzzles and comics, including the New York Times Crossword. Support local journalism. REGISTER / SIGN IN TO UNLOCK MORE ARTICLES Create an account or sign in to continue with your reading experience. Access articles from across Canada with one account. Share your thoughts and join the conversation in the comments. Enjoy additional articles per month. Get email updates from your favourite authors. THIS ARTICLE IS FREE TO READ REGISTER TO UNLOCK. Create an account or sign in to continue with your reading experience. Access articles from across Canada with one account Share your thoughts and join the conversation in the comments Enjoy additional articles per month Get email updates from your favourite authors In a 9-0 unanimous decision released Friday, the court overturned a decision by B.C.'s Appeal Court in which Dustin Kinamore was found guilty of one count of sexual assault. The top court ordered a new trial. The B.C. Prosecution Service is reviewing the decision before deciding if it will be retried, said spokeswoman Damienne Darby in an email. 'The decision brings needed guidance,' including that such evidence needs to be approved by a judge before it is introduced at a trial, she said, adding such evidence can, if it meets certain criteria, still be included at trial. The decision would affect any current trials but she wasn't aware of any in jeopardy because of the ruling, she said. The B.C. Supreme Court and the Appeal Court had both allowed prosecutors to introduce the complainant's texts, which were sexual in nature but also told Kinamore that she did not want to have sex with him. Essential reading for hockey fans who eat, sleep, Canucks, repeat. By signing up you consent to receive the above newsletter from Postmedia Network Inc. Please try again This advertisement has not loaded yet, but your article continues below. Section 276 of Canada's Criminal Code, known as the rape shield law, limits the defence's use of evidence about a complainant's sexual history in court. The trial and appeal court judges had ruled that the prosecution's use of the complainant's sexts, which included that she was a virgin, weren't subject to Section 276 because they weren't about sexual activity but about sexual inactivity. The Supreme Court of Canada disagreed, concluding prosecution 'applications are subject to the same substantive admissibility and procedural requirements that apply to defence-led evidence,' law, wrote Chief Justice Richard Wagner. It said a complainant's sexual inactivity can 'evoke distinct myths and stereotypes that these rules seek to eliminate.' This advertisement has not loaded yet, but your article continues below. Kinamore's lawyer, Matt Nathanson, said in a text that he was pleased with the ruling and that its significance goes far beyond his case and has 'broken new ground' on sexual assault law that promotes 'consistency and fairness' for both parties because the prosecution has to apply to introduce that evidence in the same way that the defence does. He said Section 276 has long recognized that myths and stereotypes about complainants shouldn't be used to attack their credibility and now, 'for the first time,' the court says 'inverse' myths and stereotypes shouldn't be used to 'unfairly enhance their credibility either.' It is wrong to suggest complainants are more likely to have consented because of sexual history, and 'it is now wrong to suggest that a lack of previous sexual activity means they are less likely to have consented,' he said. This advertisement has not loaded yet, but your article continues below. Kinamore, then 22, met the complainant, then 16, in May 2020 and texted each other for months, up to Aug. 3, 2020, when they met at his apartment, according to the decision. She said he sexually assaulted her, and he said the sexual activity was consensual and didn't go as far she said it did because he stopped when she said to stop, it said. At trial, the prosecution introduced text exchanges, some explicitly sexual, without having a hearing known as a voir dire to test their admissibility. In many of them, she made it clear she wasn't interested in a sexual relationship with the accused and some referred to her virginity, and both the prosecution and the defence relied on the evidence, Wagner's judgment said. The Appeal Court ruled the texts were admissible because the complainant's messages expressing she wasn't interested in sex 'fell outside the exclusionary rule governing a complainant's sexual history,' according to Wagner's decision. This advertisement has not loaded yet, but your article continues below. In dismissing that, Wagner wrote that inadmissible evidence was used by the trial judge in her reasons to assess the credibility of the accused and the complainant and she 'relied heavily on this evidence in her reasons for finding Mr. Kinamore guilty.' A new trial was needed because 'her error was not harmless,' Wagner wrote. Relying on a complainant's past sexual inactivity 'remains grounded in false assumptions' that 'undermine the fairness of a trial by distorting its truth-seeking function,' he said. Screening evidence protects the complainant's dignity and privacy, he said. He also said the 'increasing complexity of sexual offence trials' add to the overburdened system and his ruling would will 'assist in minimizing unnecessary cost and delay.' This advertisement has not loaded yet, but your article continues below. Hilla Kerner of the Vancouver Rape Relief and Women's Shelter said it's unfortunate in this case because the conviction was overturned, but she welcomed the guidance from the higher court to speed up long trials. Consent is at the core of any sexual assault case, Dalya Israel of the Salal Sexual Violence Support Group, formerly Women against Violence Against Women, said in a text. 'When courts focus on context over consent, even well-meaning approaches, including those led by the Crown, can unintentionally reinforce the very myths the legal system is meant to reject,' she said. Read More Vancouver Canucks Sports Sports Vancouver Canucks News
Toronto Star
a day ago
- Toronto Star
‘Pretendian' or ‘victim': Inside this would-be Ontario lawyer's attempt to remake a life built on fraud
Before the headlines, Nadya Gill's life was filled with promise. Originally from the GTA, she played on Canada's youth national soccer team. At 16, she entered university in the U.S. on athletic scholarships, where she excelled on the pitch and in the classroom and earned the first of five post-secondary degrees. A coach told a Connecticut TV station her competitive drive could easily lead her to becoming a lawyer, a doctor, or 'a UN ambassador.' She graduated from law school, where she won awards and worked summers at the Crown law office in Toronto. After passing the bar exam, she landed a dream articling position at a sports law firm. It allowed her to work remotely and play professional soccer in Norway. Then came the rumblings online; her life fell apart — and she had to pick a new name. ARTICLE CONTINUES BELOW Two years ago, Nadya Gill and her twin, Amira, now 26, were outed as 'pretendians,' first by online sleuths and then a reporter in Nunavut, for falsely claiming to be Inuit to receive scholarships and grants. In September 2023, the RCMP charged the sisters and their mother, Karima Manji, with fraud. Last year, it was Manji alone who pleaded guilty, admitting she sent enrolment forms to Nunavut Tunngavik Incorporated (NTI) with the false information that she'd adopted her own daughters from an Iqaluit woman. The forms were approved and she was provided enrolment cards that entitled the twins access to benefits earmarked for Inuit students. Manji had in fact given birth to her daughters in Mississauga in 1998. In court, it was revealed that the girls had received more than $158,000 for their education from September 2020 to March 2023. Contributors Opinion The violence of pretending to be Indigenous The recent call for organizing a Canada-wide dialogue about Indigenous identity by the First Nations University of Canada (FNUniv) is a solid step Contributors Opinion The violence of pretending to be Indigenous The recent call for organizing a Canada-wide dialogue about Indigenous identity by the First Nations University of Canada (FNUniv) is a solid step To many, Nadya's successes were a slap in the face and a reminder of the harm caused by more famous Canadians who've been exposed for falsely claiming to be Indigenous. In March 2024, Toronto Life magazine published an exposé on the family under the headline, 'The Great Pretenders: How two faux-Inuit sisters cashed in on a life of deception.' It went to press before a judge in Iqaluit sentenced Manji to three years in prison and called the twins 'victims.' On a warm sunny morning this past week in an Etobicoke park not far from where she grew up, the Star spoke with Nadya Gill under her new name, Jordan Archer, about her involvement in Canada's first criminal case of Indigenous identity fraud. ARTICLE CONTINUES BELOW ARTICLE CONTINUES BELOW It's the first time she has spoken publicly about the scandal that she says has destroyed her life. In the basic facts, Archer's story is this: She's a first-generation Canadian, born to a mother who immigrated from Tanzania and lived for only a brief period in Nunavut. Her father, Gurmail Gill, is British. No member of the family is Inuit, nor of Indigenous background. Still, Archer says, the story the public thinks they know is wrong — not that her version will convince everyone who sees her as a villain. For the first time since the scandal broke in 2023, Jordan Archer speaks about being at the centre of Canada's first criminal case of Indigenous identity fraud. The daughter of a 'proven fraudster' 'How would you have expected me to know,' Archer says, referring to her teenage self while sitting on a park bench in athletic wear after jumping off an old hybrid bike. 'Put yourself in my shoes. If your mom came up to you, gave you the story, with proof.' 'Proof,' Archer says, was the Inuit enrolment card her mother applied for — by outright fraud — in February 2016, when Archer was 17 and already going to school in the U.S. Like many teens, Archer says she was only too happy to let her mother handle all her applications, finances and logistics. Manji was controlling, the kind of 'soccer mom' who would scold her daughter after a match if she hadn't performed up to her standards. She was also someone a judge would call a 'habitual and persistent fraudster.' ARTICLE CONTINUES BELOW ARTICLE CONTINUES BELOW At the time she filed the false applications, Manji was already facing serious fraud charges. In August 2017, she was sentenced to defrauding the charity March of Dimes, her longtime employer, of $850,000, for which she received a non-custodial sentence after reimbursing $650,000. Karima Manji, seen after her arrest in the March of Dimes fraud case. Toronto Police Service As unlikely as it may sound — the case was publicized — Archer says she wasn't aware of those charges until much later. At the time, she was living in the U.S. and had distanced herself from her mom, who still controlled many of her life decisions. She returned home from school in the U.S. at 20, which is when Manji told her: 'You're going to Saskatchewan … to a program where you'll do property law in the summer. It's for Indigenous students.' That's when, she says, Manji presented her with 'officially issued proof' — the Inuit enrolment card — and told her 'the story.' Manji had lived in Iqaluit in the '90s and had grown close to an Inuit family. That much was true. As her mother explained, when the father became ill with cancer, Manji took care of a daughter. That connection, Manji lied, had made her eligible for Inuit enrolment and, by extension, so were her daughters. Should Archer have questioned things? Maybe. But she says she believed her mother. In the interview, she likened the logic of her mom's explanation to a marriage — it wasn't a blood tie but 'a connection.' (In retrospect, this explanation is nonsense. To qualify, an applicant must both be Inuk according to Inuit customs and identify as an Inuk.) ARTICLE CONTINUES BELOW ARTICLE CONTINUES BELOW Still, Archer emphasizes that she accepted and embraced the connection she now thought she had — believing in some way that 'I belonged to the Iqaluit community.' She says she immersed herself in learning about Indigenous culture and participated in ceremonies, activities and educational sessions. She volunteered for the Akwesasne Community Justice Program and facilitated Kairos blanket exercises where participants step into roles of Indigenous groups throughout Canadian history. If she knew about the fraud, why would she do that, she asks. 'I think if you're trying to hide something, you stay under the radar.' As for what the card meant, Archer says she was kept in the dark as her mom secured tens of thousands of dollars for her education. 'I know the card gets you benefits, you have some kind of status with it, but I had no idea what (Manji) was doing with it.' Who questions their parents about things that happened before they were born, she asks? 'I know my dad's from England … I didn't say, 'Show me your birth certificate.'' 'Our communities are small, we know each other' The Iqaluit RCMP charged both Manji and the twins with defrauding the NTI — the organization tasked with enrolling Inuit children under the Nunavut Land Claims Agreement — in September 2023. As is often the case with fraud, the big lie ended up being trivially easy to disprove. Manji had written on the application forms that Nadya and Amira were the birth daughters of a real Inuk woman named Kitty Noah, and then the application was approved without a shred of proof. (While there's no question her mother 'dug this hole,' Archer asks how the bogus application forms could have been accepted without a birth certificate.) ARTICLE CONTINUES BELOW ARTICLE CONTINUES BELOW Manji then used the girls' status cards to apply for benefits from Kakivak Association, an organization that, among other things, provides sponsorship funding to help Inuit students from Baffin Island pay for education. By early 2023, while Archer was articling and had already played in Norway, social media users began questioning the story of the successful 'Inuit' sisters from Toronto with the South Asian names. 'Our communities are small, we know each other. We know of each other and our families. There are only around 70,000 of us in Canada,' famed Inuk throat singer Tanya Tagaq wrote in a tweet asking how the twins could get scholarships meant for Inuit students. 'The resources and supports are limited.' In late March 2023, a reporter with Nunatsiaq News asked Amira to respond to the social media allegations. In a statement, Amira passed on Manji's story, that the twins' 'Inuit family ties' were through a family her mother had lived with. (Amira Gill declined to be interviewed for this story. 'My sister has chosen to keep her life personal, away from the public eye,' Archer said when asked about her twin.) But that's not what Manji put on the form; NTI soon released a statement that Noah was not the twins' birth mother and asked the RCMP to investigate. Kitty Noah has since died. When she found out she'd been listed on the application, she was 'flabbergasted,' her son later told CBC. ARTICLE CONTINUES BELOW ARTICLE CONTINUES BELOW Why Jordan Archer wants to tell her story Today, Archer says she struggles to make ends meet. She's working part-time at a hockey rink as a community service representative, 'directing people to the lost and found.' A Zamboni driver recently asked about her background. 'How much time do you have?' Archer told him, recalling the exchange. 'No matter what career I try to explore, I don't want this to come back.' Michelle Mengsu Chang/ Toronto Star She lost friends along with her articling job. In the wake of the case, the Law Society of Ontario initiated an investigation into her status as a lawyer. To practise law in Ontario, applicants for a licence must be of 'good character'; Archer feels she has no choice but to abandon a law career, at least at this point. She says she used to be puzzled when people described being debilitated by stress, but 'now, I really, really do understand. There were months when I wouldn't move or go anywhere.' Last fall, Archer thought she'd found a lifeline and signed a contract to play pro soccer. She felt she had been forthright about her past before signing but, ultimately, the league decided to rescind its approval of the contract. She was devastated. But it was also a 'turning point' — the realization she had to do something to try to clear the air and provide a 'fulsome' picture of the story. ARTICLE CONTINUES BELOW ARTICLE CONTINUES BELOW 'No matter what career I try to explore, I don't want this to come back.' She's since written a memoir, titling it 'When Life Conspired Against Me.' A summary provided to the Star described the book as an examination of the toll of the public backlash that destroyed her professional reputation. She's 'a victim of online bullying and was crucified in the media, despite not being involved in the fraud,' the summary reads. (The book does not have a publisher.) 'I'm serving a life sentence for a crime I didn't commit,' Archer says in a prepared blurb. 'I was the victim, but that means nothing when the court of public opinion plays both judge and executioner. In their story, I'm the villain, and that's all that matters.' Looking back, Archer says she now knows her mom would have pursued any chance at an advantage. 'She saw, you know, a bureaucratic loophole and she just went for it,' she says. 'Whether it was an Indigenous community or any other community, she would have just gone for it.' Confronting her mom was 'one of the hardest things I've ever had to do,' she told the Star in the days after the interview. Their relationship is messy, she adds. 'She didn't just hurt me, she detonated my life … and yet she's my mom.' She feels a 'heavy, inescapable obligation' to still be there for her mother, but 'supporting her didn't mean forgetting the harm. It didn't mean pretending everything was OK.' 'She trusted me 120 per cent' Soon after Manji pleaded guilty last year, the Crown withdrew the charges against Nadya and Amira. In response, the then-president of NTI called the withdrawal of charges against the twins 'unacceptable.' The twins 'benefitted from their mother's fraud scheme, and yet their role in the scheme will go unanswered,' Aluki Kotierk told Toronto Life. ARTICLE CONTINUES BELOW ARTICLE CONTINUES BELOW There's little chance Archer's story will convince anyone who believes she should have known. 'How can they say they didn't know they were not Inuit,' one First Nations advocate wrote on X. To those skeptics, Archer says she never claimed to be Inuk by blood; that was her mom's lie. Still, she hopes the doubters read the judge's words. Canada 'Egregious exploitation': Toronto woman sentenced to 3 years for Inuit identity fraud Karima Manji, who is not Indigenous, pleaded guilty to one count of fraud over $5,000, after her twin daughters used fake Inuit status to receive Canada 'Egregious exploitation': Toronto woman sentenced to 3 years for Inuit identity fraud Karima Manji, who is not Indigenous, pleaded guilty to one count of fraud over $5,000, after her twin daughters used fake Inuit status to receive 'The true victims of Ms. Manji's crime are the Inuit of Nunavut,' Iqaluit judge Mia Manocchio wrote. Manji 'defrauded the Inuit of Nunavut by stealing their identity. She has further victimized the Noah family and the memory of Kitty Noah. This is an egregious example of the exploitation of Indigenous Peoples.' 'Finally,' Manocchio continued, 'Ms. Manji has victimized her own children, her two daughters, whose lives and careers have been severely compromised by her fraud.' Manji is now serving a three-year sentence — a term that, the judge wrote, serves as 'a signal to any future Indigenous pretender that the false appropriation of Indigenous identity in a criminal context will draw a significant penalty.' Manji was also ordered to pay back $28,254 — what remained after she had already reimbursed $130,000. (Not that the 'proven fraudster' deserved any credit for paying back the fruits of her crimes, Manocchio wrote — 'if such were the case, then a fraudster with means could essentially buy their way into a reduced prison term, whereas an impecunious fraudster would serve the longer term.') Reached by phone at a halfway house, where she was in the middle of drywalling, Manji, 60, insisted to the Star that Nadya — she doesn't call her Jordan — was unaware of the scheme. ARTICLE CONTINUES BELOW ARTICLE CONTINUES BELOW 'I never, ever said a word to Nadya,' she said. 'She trusted me 120 per cent, if you can imagine, when this all started, she was in the States … her whole focus was on soccer.' Manji said she is appalled by the hurt she caused not only to Inuit communities, but to her own children, 'especially Nadya.' (The girls have an older brother.) While serving some of her sentence at Grand Valley Institution for Women in Kitchener, Manji said it would take weeks to read her daughter's letters, because 'I just feel so awful.' Unprompted, Manji offers up an explanation for her actions: She was brought up in a strict, conservative family and believed that if you were a doctor, lawyer or engineer, 'you would do fine in life.' She had an unhappy upbringing and marriage and wanted to make sure her kids didn't go through that. 'If I made sure they were successful in terms of their education and career, that they wouldn't have to have gone through what I've gone through,' she says.
Vancouver Sun
a day ago
- Vancouver Sun
Supreme Court of Canada quashes B.C. sex conviction, extends 'rape shield' law
The Supreme Court of Canada quashed a sexual-assault conviction against a B.C. man in a precedent-setting decision that strengthened the 'rape shield' law, ruling that even a complainant's lack of a sexual past can't be brought up in court. In a 9-0 unanimous decision released Friday, the court overturned a decision by B.C.'s Appeal Court in which Dustin Kinamore was found guilty of one count of sexual assault. The top court ordered a new trial. The B.C. Prosecution Service is reviewing the decision before deciding if it will be retried, said spokeswoman Damienne Darby in an email. Start your day with a roundup of B.C.-focused news and opinion. By signing up you consent to receive the above newsletter from Postmedia Network Inc. A welcome email is on its way. If you don't see it, please check your junk folder. The next issue of Sunrise will soon be in your inbox. Please try again Interested in more newsletters? Browse here. 'The decision brings needed guidance,' including that such evidence needs to be approved by a judge before it is introduced at a trial, she said, adding such evidence can, if it meets certain criteria, still be included at trial. The decision would affect any current trials but she wasn't aware of any in jeopardy because of the ruling, she said. The B.C. Supreme Court and the Appeal Court had both allowed prosecutors to introduce the complainant's texts, which were sexual in nature but also told Kinamore that she did not want to have sex with him. Section 276 of Canada's Criminal Code, known as the rape shield law, limits the defence's use of evidence about a complainant's sexual history in court. The trial and appeal court judges had ruled that the prosecution's use of the complainant's sexts, which included that she was a virgin, weren't subject to Section 276 because they weren't about sexual activity but about sexual inactivity. The Supreme Court of Canada disagreed, concluding prosecution 'applications are subject to the same substantive admissibility and procedural requirements that apply to defence-led evidence,' law, wrote Chief Justice Richard Wagner. It said a complainant's sexual inactivity can 'evoke distinct myths and stereotypes that these rules seek to eliminate.' Kinamore's lawyer, Matt Nathanson, said in a text that he was pleased with the ruling and that its significance goes far beyond his case and has 'broken new ground' on sexual assault law that promotes 'consistency and fairness' for both parties because the prosecution has to apply to introduce that evidence in the same way that the defence does. He said Section 276 has long recognized that myths and stereotypes about complainants shouldn't be used to attack their credibility and now, 'for the first time,' the court says 'inverse' myths and stereotypes shouldn't be used to 'unfairly enhance their credibility either.' It is wrong to suggest complainants are more likely to have consented because of sexual history, and 'it is now wrong to suggest that a lack of previous sexual activity means they are less likely to have consented,' he said. Kinamore, then 22, met the complainant, then 16, in May 2020 and texted each other for months, up to Aug. 3, 2020, when they met at his apartment, according to the decision. She said he sexually assaulted her, and he said the sexual activity was consensual and didn't go as far she said it did because he stopped when she said to stop, it said. At trial, the prosecution introduced text exchanges, some explicitly sexual, without having a hearing known as a voir dire to test their admissibility. In many of them, she made it clear she wasn't interested in a sexual relationship with the accused and some referred to her virginity, and both the prosecution and the defence relied on the evidence, Wagner's judgment said. The Appeal Court ruled the texts were admissible because the complainant's messages expressing she wasn't interested in sex 'fell outside the exclusionary rule governing a complainant's sexual history,' according to Wagner's decision. In dismissing that, Wagner wrote that inadmissible evidence was used by the trial judge in her reasons to assess the credibility of the accused and the complainant and she 'relied heavily on this evidence in her reasons for finding Mr. Kinamore guilty.' A new trial was needed because 'her error was not harmless,' Wagner wrote. Relying on a complainant's past sexual inactivity 'remains grounded in false assumptions' that 'undermine the fairness of a trial by distorting its truth-seeking function,' he said. Screening evidence protects the complainant's dignity and privacy, he said. He also said the 'increasing complexity of sexual offence trials' add to the overburdened system and his ruling would will 'assist in minimizing unnecessary cost and delay.' Hilla Kerner of the Vancouver Rape Relief and Women's Shelter said it's unfortunate in this case because the conviction was overturned, but she welcomed the guidance from the higher court to speed up long trials. Consent is at the core of any sexual assault case, Dalya Israel of the Salal Sexual Violence Support Group, formerly Women against Violence Against Women, said in a text. 'When courts focus on context over consent, even well-meaning approaches, including those led by the Crown, can unintentionally reinforce the very myths the legal system is meant to reject,' she said.
