Car salesman's sex-assault conviction overturned
Stirling W. Peterson, 56, to get a new trial because judge confused different alleged incidents in arriving at credibility findings
A Niagara Falls, Ont., man convicted for an alleged sexual assault that occurred at his Fredericton workplace has won his appeal, seeing his guilty finding overturned.
Stirling W. Peterson, 56, formerly of Fredericton, stood trial in provincial court in 2021 on a summary count of sexual assault, stemming from allegations he touched a co-worker inappropriately Nov. 1, 2019, and April 30, 2020.
At trial, court heard Peterson was the top salesman at Fredericton Hyundai in late 2019 while the complainant - a woman whose identity is protected by a court-ordered publication ban - was employed there in an administrative capacity.
She testified Peterson grabbed her breasts when they were alone in a stairwell, and that he’d grabbed her buttocks on another occasion.
Provincial court Judge Pierre Dubé heard the evidence at the original trial in 2021, but he died before rendering a decision in the case. Eventually, Judge Natalie LeBlanc took over the file, and reviewed the transcripts of the trial to arrive at the guilty finding.
She sentenced Peterson to a year of probation, and ordered him to register as a sex offender for 10 years and to submit a DNA sample for inclusion in a criminal database.
Peterson filed an appeal of his conviction, and it was argued before Court of King’s Bench Justice Terrence Morrison last summer.
New trial ordered
In an appeal decision issued Feb. 27, Morrison overturned the conviction and ordered a new trial, finding that LeBlanc erred in her assessment of the evidence and credibility of witnesses.
The allegations against Peterson consisted of two incidents as related by the complainant.
She testified the first instance of sexual assault occurred in a stairwell in the dealership building in November 2019.
Court heard the woman said she was descending the stairs and Peterson was coming up, and as they passed, he reached across and cupped her breast then slid his hand across both of her breasts.
The second incident, she testified, occurred in early December when Peterson "grabbed her ass" as he walked by while she was bent over at her desk.
No one else witnessed the first incident, court heard, but two other employees - Will Werenka and Troy Stewart - witnessed the latter.
Peterson flatly denied either incident occurred.
The trial saw a significant wrinkle with testimony about a third incident, but it was Werenka who spoke about it, not the complainant.
He said he saw Peterson grab the complainant's breasts around Christmas 2019, and testified he spoke to her about the groping afterward.
Werenka said he reported this third alleged incident to Stewart, who in turn reported it to Jon Brawn, general manager of the dealership.
As a result of internal investigations, court heard, Peterson was suspended from work for five days, which prompted the complainant to report the unwanted touching to police because she felt the workplace action wasn't sufficient.
"I felt if they couldn't protect me, I was going to protect myself," the woman said.
Steele Auto Group of Dartmouth, N.S., which owns Fredericton Hyundai, would eventually fire Peterson after the criminal charge was laid.
‘A miscarriage of justice’
Morrison said LeBlanc's decision on trial clearly shows she misapprehended the evidence, confusing and conflating the alleged incidents and their timing, and her credibility findings based on her flawed understanding of the events were erroneous.
LeBlanc's decision appeared to mix up the details from the second incident alleging touching of the complainant's buttocks with the third, alleging Peterson grabbed her breasts in view of Werenka.
"The confusion on the part of the trial judge is material," Morrison wrote.
"The trial judge questions the appellant's credibility in part because of his reaction or lack of reaction to the allegation he was confronted with by Mr. Brawn."
It's problematic, he wrote, because LeBlanc concluded the third incident that Werenka described wasn't credible, but then she took issue with how Peterson reacted when Brawn spoke to him about that incident.
"In essence, the trial judge finds fault with Mr. Peterson's denial and reaction to an incident that never occurred," Morrison wrote.
"An equally plausible inference is that the appellant's reaction of surprise and denial is reasonable given he was confronted with an incident that the trial judge concluded did not occur."
At trial, court heard the third incident was reported to Brawn, while the buttocks-grabbing instance wasn't. But LeBlanc found in her decision that the second incident was reported to Brawn, the appeal judge wrote, which affected her credibility assessment of the manager, who testified for the defence.
"In my view, the trial judge's confusion over the incident reported to Mr. Brawn permeates her decision and findings of credibility," Morrison wrote.
"Further, the trial's failure to reconcile the stark contradictions in the complainant's version of events and those of Mr. Werenka and Mr. Stewart, taken together with the other errors I have identified, convinces me that there has been a miscarriage of justice in this case which warrants a new trial."
The case has been referred back to provincial court to set a date for the retrial.
It was on the docket Monday, but prosecutor Brian Munn said the Crown needed more time to serve Peterson with notice, as he no longer resides in New Brunswick.
Judge Lucie Mathurin set the matter over to May 15 to set it down for trial.
Civil lawsuit pending
The complainant filed a notice of action and statement of claim in July against Peterson and Steele Auto Group of Dartmouth over the alleged sexual harassment and sexual assault.
She’s seeking unspecified damages for the harm she suffered, loss of earnings and loss of future earning potential.
In her lawsuit, the victim says the dealership didn’t take steps to protect her from Peterson’s ongoing sexual advances, arguing it was because he was the business’s top-earning salesman.
"During the months of October, November and December 2019, the defendant Peterson repeatedly made unwanted sexual gestures toward the plaintiff at the workplace while they were both in the course of their respective employment," her statement of claim says.
Despite his importance to the business, she stated in the lawsuit, she reported him to management for touching her inappropriately.
The statement of claim notes that while Peterson was placed on paid suspension for a period of time, he eventually returned to work and the inappropriate behaviour resumed.
The dealership didn’t take steps to stop the harassment or to protect her, the statement of claim says, and Peterson was fired only after police laid a criminal charge against him.
"The defendants Hyundai and Steele created, enhanced and significantly contributed to the risk that allowed the defendant Peterson to harm the plaintiff," the statement of claim says.
“Hyundai and Steele gave the defendant Peterson the opportunity to abuse his position of power over the plaintiff."
In the wake of Peterson’s successful appeal, none of the plaintiff’s allegations has been proven in court.
In January, Virginia Gillmore, the plaintiff’s counsel in the civil suit, filed a motion with the Court of King’s Bench, noting she was having trouble serving Peterson with the notice of action statement of claim.
The notice of motion states that after filing the lawsuit, the plaintiff sought to have Peterson served with the papers Aug. 25 since he moved to Ontario.
A King’s Bench judge granted the motion, ordering an extension of time for service and permission for the plaintiff to run ads in two Ontario newspapers - the Niagara Falls Review and the Niagara Gazette - as a means to effect substituted service on Peterson.
The Fredericton Independent contacted Peterson through Facebook Messenger for comment but received no response.
Gillmore told the Fredericton Independent recently the ad hadn’t run yet. She also noted she hadn’t been aware Peterson had appealed his conviction or that a decision had been rendered in his favour.
You can contact Don MacPherson at ftonindependent@gmail.com.
Very interesting.