OTTAWA (CP) - A British Columbia cult leader who was convicted on several counts of sexually abusing teenage girls will get a retrial on two charges, allowing his lawyers to further cross-examine an alleged victim about her diary.
The Supreme Court of Canada ruling Thursday has significant implications for the ability of defence lawyers to cross-examine witnesses. Ivon Shearing, leader of the Kabalarian Society, was convicted by B.C. Supreme Court in 1997 on two counts of rape, three of sexual assault, four of indecent assault and three of gross indecency involving seven teenage girls between 1966 and 1989.
Two of the four indecent assault convictions were overturned by the B.C. Court of Appeal in 2000, and a retrial ordered.
The high court ruling Thursday granted a retrial in a case regarding a 15-year-old girl who, with her mother and sister, was living in the same group home with Shearing in 1970, when he allegedly raped and assaulted her.
Shearing's lawyers had appealed all the convictions, arguing the trial judge shouldn't have allowed the testimony of two witnesses and shouldn't have limited cross-examination of one complainant about the contents of her diary.
The court ruled in a 7-2 decision that the testimony of the woman, now in her 40s, and that of her sister was admissible in the trial, but agreed with Shearing that his lawyers should have been allowed to question why the alleged rape was not mentioned in the diary.
Shearing's other convictions, including the rape and indecent assault of the woman's sister, are not affected by the ruling.
Justice Ian Binnie wrote that the woman's privacy concerns did not "substantially outweigh" Shearing's right to cross-examine on the diary "to test the accuracy and completeness of (her) recollection of events 27 years previously."
The ruling sets an important precedent in allowing more thorough use of evidence already in the possession of defence lawyers, said defence lawyer Nikos Harris.
Defence lawyer Richard Peck added the ruling won't significantly alter the fate of his client, now in his late 60s.
Shearing, who had served about 16 months of a five-year sentence, returned to jail this week after being out on bail since 2000 awaiting the outcome of the appeal.
The high court ruling said the diary's omission of the alleged rape is not proof the rape did not happen.
"These cases should be decided without resort to folk tales about how abuse victims are expected by people who have never suffered abuse to react to the trauma," Binnie wrote for the majority.
But he said that doesn't outweigh the right of the defence to ask questions about the omission, particularly in light of discrepancies between the diary and her testimony on other matters.
Madame Justice Claire L'Heureux Dube and Justice Charles Gonthier dissented from the majority on the subject of the diary, saying the woman's privacy rights should outweigh any right of the defence to cross-examine.
Prosecution lawyer Geoffrey Gaul said Thursday the Crown was reviewing the reasons for the judgment, and could not comment on its contents.
"It's a lengthy decision and one that's going to take some time for us to examine and analyse," he said.
Shearing preached that sexual experience was a way to progress to higher levels of consciousness and that he could help young girls reach higher levels through sexual and spiritual contact.
Some of his victims testified they were led to believe they were being exorcised of the invading minds of dead people when he performed sexual acts with them.
A spokesman for the Kabalarians in Vancouver said Ivon Shearing has had "no role or position" within the groups since the fall of 1995.
The Kabalarian Society holds beliefs that include clean living, rational thinking and numerology.
In 1995, three woman sued members of the society's board of directors and alleged its founder, Alfred J. Parker, abused them as children.