Defence dismantles testimony in trial of retired OPP officer

Source:My Kawarthra
Mary Riley
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Feb 23, 2010 - 8:45 AM

Defence counsel for a retired OPP officer accused of dozens of historical sex-related offences continued to dismantle the testimony of one of the first witnesses in the case.
Leo Kinahan, representing Robert George (Bob) Lewis, is currently delivering final submissions in a Brampton courtroom before Justice Joseph Fragomeni.

Mr. Lewis, 62, of Fenelon Falls, was charged in 2006 with 25 sex-related offences dating back to the 1970s.

Many of the incidents allegedly occurred while on duty during his 30-year career with the Ontario Provincial Police. He was posted to Downsview, Islington, Minaki, Caledon and Coboconk before retiring in 1997. Caledon OPP began the investigation in 2006 after 10 male complainants came forward.

A publication ban prevents the publication of any details that could identify the witnesses.

Mr. Kinahan began his submissions Monday (Feb. 22). He began by attacking the credibility of two of the early witnessess in the trial, which began last May and concluded in December.

One witness had testified that Mr. Lewis molested him when he was a teenager while giving him a ride from his home in southern Ontario to visit friends in northern Ontario. During the trial last year, court heard the teenager was molested in the car and in a motel where the two spent a night on the trip.

The man alleged his descent into a life of alcohol and drug abuse was a direct result of the abuse he suffered at the hands of Mr. Lewis.

But, on Monday, Mr. Kinahan made it clear that historical sexual assault cases are dependent on the accuracy and veracity of witnesses' memories, and he challenged the fairness of such trials when the memory of the accused is also faulty. He told the court the number of inconsistencies in the man's testimony is "monstrous," accusing the witness of saying "whatever comes into his head" and that there are serious discrepancies in testimony the man gave to police at the preliminary hearing in 2008 and at trial.

Mr. Kinahan said the witness often used the phrase "I'm pretty sure" when answering specific questions about his allegations; questions the lawyer said "were not difficult." He continued to remind the court that when someone is accused of such serious crimes, "pretty sure" isn't good enough. He said the inconsistencies revealed in the testimony of most of the witnesses in the trial should be "disturbing" to the court.

Mr. Kinahan pointed out that nobody's memory is perfect and that it stands to reason a witness may be mistaken on what he called "minor" details, such as a specific date or a description of what was inside a room where an alleged offence took place. But he made it clear that "some details are not major points but they become significant in the overall assessment of credibility."

He told the court that an honest admission from a witness that he could not remember a given detail is preferable to giving "multiple versions" of an answer.

The lawyer attacked the man's testimony in which he said that when he and Mr. Lewis stayed in the motel, the "only" incident that occurred was fondling. That story, Mr. Kinahan said, later changed to allegations of anal penetration attempts and forced oral sex, "escalating" in different versions.

"How does one get that confused...four different versions on four different occasions?" Mr. Kinahan asked. "These aren't minor...they are major, major encounters."

He pointed to testimony in which the witness testified that some of his prior statements to investigating police and at the preliminary hearing were not consistent with his testimony at trial.

"Even on the most inconsequential things...he can't keep it straight. He will say the first thing that comes to his mind. If he had got up and said, 'Maybe some of the things I said yesterday weren't quite accurate,' it would be different.

"How does one forget [such sexual molestation]?" he continued.

Citing one point where the witness had testified, "Maybe I don't want to remember," Mr. Kinahan said, "This is not a shot at [the man]...maybe it's something [he] thinks happened through his years of alcohol and drug abuse."

Mr. Kinahan said trying to reconcile the man's initial statement to police and testimony at the preliminary hearing and trial could take days.

"It's impossible to keep track of the inconsistencies...for the sake of brevity, I'm bypassing a significant number of contradictions. It's astounding.

"Even when confronted with his own words, he won't give a straight answer or acknowledge an inconsistency."

Submissions continue this week. .