Sask. principal has sexual assault conviction overturned in light of 'butt-grabbing game'

(Rory MacLean/CTV News)

A Saskatchewan principal convicted to six months behind bars for sexual assault has another chance to prove he’s the victim of a middle-school prank that escalated out of control.

Geoffrey McFarlan was charged with the sexual assault of a minor in September 2021 and convicted to six months in jail and two years of probation following a trial in January 2023.

Now, McFarlan is getting a new trial after a King’s Bench judge overturned his conviction, ruling the trial judge made a “palpable” error overlooking a significant amount of evidence that cast doubt on the former school principal’s guilt.

The charges stemmed from an incident in a busy hallway during a five-minute break between class at a school that CTV News is not naming to protect the identities of the children involved.

“While getting something out of her locker, the complainant says, ‘I had gotten my butt grabbed,’” Judge Brenda Hildebrandt wrote in her Nov. 12 decision.

The complainant, a 12-year-old girl, was in Grade 7 at the time of the incident.

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Hildebrandt says the hallway was busy, with about 40 students passing through on their way to class. She also notes that it was a common prank among the Grade 7s at that time for people to grab each other’s butts.

The complainant did not see who touched her, but told court she concluded it was the school principal, McFarlan, “because he was walking away.”

Two other students testified they saw McFarlan touch her, and the entire case turned on the reliability of the testimony of two middle-school witnesses.

In the January 2023 trial, McFarlan’s lawyer tried to portray the accusation as absurd.

“If Mr. McFarlan, as the principal of a school, wanted to touch a child on the butt, why would he do it in a crowded hallway? Why would he do it where everyone could see it? Why would he do it to a child that he has no relationship to,” the lawyer asked.

Judge Hildebrandt says McFarlan’s defence relied on the law of parsimony — Occam’s razor.

“Occam’s razor tells us that when faced with competing explanations for the same occurrence, the simplest explanation is usually the one correct and closest to the truth. In this case, the incident took place in a crowded hallway at a time when the Grade 7 class was in the practice of grabbing one another’s butts as a joke. Indeed, the complainant testified of this.”

Court heard from both teachers and students about just how crowded the hallway was at the time, with about 20 Grade 7 students at their lockers, and another 20 Grade 9 students in the lockers along the other side of the hallway.

According to Hildebrandt, the trial judge seemed unconvinced that anyone else could have grabbed the student, despite how crowded the hallway was.

“There’s virtually no other evidence of a perpetrator. There’s evidence of other children in the hallway, but no evidence of someone else in a position to commit the assault,” the trial judge said, according to the court transcript.

In her appeal decision, Hildebrandt says the trial judge made “palpable and overriding errors,” overlooking the “significant evidence” before them.

“This, in my view, constitutes a misapprehension of the evidence discussed above concerning both the Grade 7 butt-grabbing game and how busy the hallway was on the break between classes,” she writes.

There were serious issues with the stories of the two student witnesses, Hildebrandt writes.

One witness testified that the other could not have even seen the incident from where their locker was stationed, the two disagreed about what direction McFarlan was traveling at the time, and elements of both their testimony contradicted the complainants version of events.

They were also both friends of the complainant, which Hildebrandt writes “raises the sceptre of a motivation to fabricate.”

Given these issues with the reliability of testimony and the errors in law, Hildebrandt ordered a new trial, for which a date has not yet been set.