Alberta man granted new trial after appealing conviction for 2015 incident involving young Kamloops girl

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B.C.’s highest court has ordered a new trial for a man convicted of sexually interfering with a teenaged girl in 2015 while visiting friends in Kamloops.

Cory Richard Swain was convicted in 2019 of sexual interference.

Court heard Swain and his family were visiting Kamloops from Alberta in the summer of 2015. They were staying with relatives, the daughter of whom also had a friend staying over.

The sexual interference was alleged to have taken place with that friend. The complainant, who was 15 at the time of the alleged incident, told court Swain touched her buttocks, then placed his hand down her pants and put her hand on his genitals. She also said he kissed her.

Swain denied having touched or kissed the girl. He said she came on to him, but he pushed her away.

Swain appealed his conviction. Lawyers Robert Diab and Marshall Putnam argued the trial judge improperly relied on the young girl’s lack of a motive to make up the allegations, and placed some onus on Swain to explain why she might have done so.

In a decision made public on Wednesday, a three-judge B.C. Court of Appeal panel ruled that had the effect of “shifting the burden of proof onto” Swain.

“This error was significant to the trial judge’s credibility assessment,” B.C. Court of Appeal Justice Peter Voith wrote on behalf of the panel.

The judges set aside Swain’s conviction and ordered a new trial. A date for the new hearing has not yet been set.