So says Peter Abrametz, defence lawyer for a Saskatchewan grandfather whose sex-crime conviction was quashed after it was found the trial judge gave insufficient weight to an unusual letter Abrametz received from the victim.
The Jan. 15 Court of Appeal for Saskatchewan ruling in R v H.L., 2025 SKCA 6 involved a man identified in the written appeal decision as H.L., who in 2022 was convicted of committing a “historical” crime of sexual interference against his granddaughter around a decade ago, when the girl was somewhere between10 and 11.
(A publication ban prohibits divulging anything that could identify the complainant, the granddaughter.)
Peter Abrametz, defence lawyer
The incident in question is alleged to have occurred sometime between 2015 and 2016. The granddaughter testified at trial that it happened when she was with H.L. in his home after her father had “gone home without her.”
“The complainant testified that H.L. asked her to come upstairs to his bedroom and lay beside him. She did so,” states the appeal decision. “He proceeded to touch with two fingers the complainant’s vagina over her clothing for a few minutes while making groaning noises. His eyes were closed at the time. After the touching, H.L. told the complainant he had been dreaming of her kookum (H.L.’s wife).”
(According to Social Innovation Canada, “kookum” is an Indigenous term for “grandmother.)
The granddaughter did not tell her father about the incident until the summer of 2021. At trial, she claimed she had not done so before this because she had not realized the incident was considered “bad.”
That incident, she said, had led to her having nightmares.
Her father — the son of H.L. — testified at trial that he confronted H.L. about the accusation, to which H.L. said that he realized what he did was wrong and that he was “drunk” and “on drugs” at the time it happened.
During cross-examination, the son admitted that he, himself, had been drinking when this conversation with H.L. occurred and that H.L. had later told him at some point that “he did not recall the events but was sorry for what might have happened.”
In his defence, H.L. argued that his granddaughter’s evidence lacked credibility and reliability, “pointing to the fact that her recollection of the assault arose primarily out of her nightmares and that she could not distinguish memory from dream.”
H.L. also maintained that he did not “intentionally touch the complainant” and that if any touching happened, he was either asleep or unconscious at the time.
In his oral decision, the trial judge found the granddaughter’s evidence to be credible and reliable, and thus rejected H.L.’s version of things. He convicted H.L. of sexual interference, finding that H.L. had essentially admitted to the crime during conversations with his son.
But it was on the morning that H.L. was to be sentenced that the complainant sent a letter about herself and H.L. to Abrametz.
In her letter, the granddaughter said that prior to telling her dad about the alleged incident, she had been living with an aunt who made her believe H.L. was her “abuser," that she was depressed and “easily influenced," that she was “unsure of everything” — and thus worried about having H.L. charged — and that she believed H.L. was an “innocent man.”
The granddaughter also wrote that she believed H.L. was on drugs at the time of the alleged incident, as he seemed “completely out of it.”
Based on this, H.L. brought an application for a mistrial — or, failing that, to have the trial reopened and the letter be brought forth as “fresh evidence.” H.L. argued that the letter “amounted to a recantation” on the part of his granddaughter, that it was “relevant to the complaint’s credibility and reliability,” and that it served as proof H.L. was either not conscious or acting involuntarily at the time of the incident.
But the trial judge rejected this, finding that “the letter was not a recantation but instead amounted to an expression of regret by the complainant for the charges being prosecuted.”
H.L. was handed 18 months in prison, followed by 24 months probation.
The Appeal Court notes that no victim impact statement was filed by the granddaughter.
H.L. appealed his conviction, placing his granddaughter’s letter at centre stage. H.L. argued, among other things, that the trial judge failed to properly grapple with evidence pointing to his innocence and erred in not granting his application for a mistrial or to have the trial reopened.
In the end, Appeal Court Justice Jillyne Drennan, with Justices Neal Caldwell and Jeffery Kalmakoff concurring, found the trial judge to have indeed mishandled the matter of the letter.
“The trial judge’s singular focus on whether the letter constituted a recantation led him to err in his consideration of both the application for a mistrial and the application to reopen the trial to adduce the letter as fresh evidence,” writes Justice Drennan. “As a result, he did not address how trial fairness might be compromised by H.L.’s inability to put the letter to the complainant, nor how the letter could have affected the trial’s result via its potential impact on the complainant’s credibility and reliability or on the issue of whether any touching was intentional in nature.”
Thus, H.L.’s conviction was set aside and a new trial was ordered.
In an interview with Law360 Canada, Abrametz said the ruling is a reminder that these types of cases — particularly those involving sex crimes from years past — can be tough to untangle.
“I think it’s simply a reminder that these things are complicated — that’s the bottom line. These things are complicated, and they are not as simple as they sometimes seem to be,” he said.
Still, what happened here is not uncommon.
“It’s not unprecedented that these things happen. Applications to reopen a trial, they happen all the time — or, alternatively, for a mistrial. So that’s nothing new. ... But … the legal significance, I think, [is] that the trial isn’t over until there is a sentence imposed.”
Abrametz said the case could also have been reopened if the granddaughter’s letter had come to light after H.L.’s sentencing.
When the prosecutor who acted at the appeal was asked for comment, a government spokesperson responded via email.
“As this matter is still within the appeal period, we will not be providing any additional statements at this time,” the spokesperson said.
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