The defence lawyer for an Orthodox church archbishop accused of sexually assaulting two young brothers 28 years ago said the separate testimony of the alleged victims shouldn't be used to support each other's allegations.
Lawyer Jeff Gindin said the testimony offered by the two brothers is prejudicial to Seraphim Storheim and can only be admitted in exceptional circumstances, adding this case is not exceptional.
Storheim is charged with two counts of sexual assault against two 11-year-old boys at his home in Winnipeg during the summer of 1985. He pleaded not guilty to the charges.
Storheim was the parish priest at Holy Trinity Sobor Orthodox church on Manitoba Avenue at the time. Storheim had befriended the boys' family while he served at another parish in another community and the boys visited him separately that summer.
Storheim is now an archbishop with the Orthodox Church in America, which has historical ties to the Russian Orthodox Church. He had been the most senior cleric of his church in Canada when the charges were laid in the fall of 2011, holding the title of Archbishop of Ottawa and Canada, but was subsequently suspended from that post pending the outcome of the criminal charges and an internal church investigation.
The testimony of the two brothers is known in legal terms as similar-fact evidence -- similar testimony about two separate incidents -- and is not normally admissible in court.
This kind of evidence is not allowed because rather than judging the accused based on the evidence, it essentially states an accused did this type of behaviour on another occasion, so he more than likely repeated that type of behaviour being considered.
"It's not enough to say it sounds similar so we should allow it," Gindin said, adding combining the testimony of the two brothers does more harm to Storheim than it would help prove the case against him.
Crown attorney Breta Passler made an application the testimony of the two brothers should be admitted and considered in support of their allegations.
The brothers, who are now 39, were allowed to testify this week but Justice Chris Mainella must determine whether their testimony can be used in support of both charges. He will announce his decision early next week.
Passler said there are strong similarities between the alleged incidents described by each brother: They both came to Winnipeg at Storheim's invitation and at his own expense, though at separate times. Each brother said Storheim routinely walked around the house naked and invited each boy to touch his genitals.
Passler said there was no indication the two brothers had colluded to make up the allegations or one brother had influenced the other.
Gindin argued the testimony of the two brothers was extremely different: The first brother to testify was confused about much of the events, his recollection was poor, and he admitted he suffered a range of mental illnesses. Gindin said it was difficult to understand what he was saying, let alone believe he had been the victim of a sexual assault.
Gindin said while the second brother was clear and more detailed about his encounter with Storheim, he said that doesn't mean his testimony should be used to bolster the testimony of the other brother.
Gindin said while the two brothers testified they didn't speak to each other about the alleged assaults after they happened, it's unlikely two young brothers who grew up together and even lived together for a number of years as adults would not have shared details about the incidents with each other before reporting them to police.