The appeal of a former South Surrey border guard who was convicted last year of sexual assault and breach of trust was denied Wednesday in the B.C. Court of Appeal in Vancouver.
Daniel Johnson Greenhalgh, who worked at the Douglas (Peace Arch) border, was disputing his convictions and sentence, including a two-year provincial jail term, imposed a year ago in B.C. Supreme Court in New Westminster.
Justices Elizabeth Bennett, P.D. Lowry and Anne MacKenzie denied the convictions appeal after a short hearing Wednesday morning, ruling the trial judge did not err in considering the testimony of four witnesses as similar-fact evidence.
A date for the sentencing appeal has not been set.
The penalty was imposed last March after a jury found Greenhalgh guilty of three counts of sexual assault and one count of breach of public trust, following a trial in which three women testified that he touched them inappropriately during strip searches he conducted on his own in a men's public washroom and other places.
A fourth woman said she was made to strip, but was not touched.
The incidents occurred in 2007 while Greenhalgh was on duty, and involved victims aged 19 to 30.
Wednesday, Greenhalgh's lawyer Derek Birch argued the fact that all four women's evidence was considered as similar-fact "resulted in an unfairness to Mr. Greenhalgh in the trial process."
He noted one witness was impeached at trial, after conceding she hadn't been truthful about discussing her evidence with a friend – who was also a witness – between the preliminary hearing and the trial, and that the impeachment tainted her friend's evidence.
The "very weak and very tainted evidence" bolstered that of the two other women, Birch said.
"By allowing that group into the mix… it's created this problem where the evidence of an impeached witness is being used to support the other witnesses, and the evidence of the other witnesses is being used to bolster the impeached witness.
"The trial judge ought to have exercised a gatekeeper function to, at least, keep the evidence of (the two friends) out of the similar-fact pool."
Crown Susan Brown disputed the arguments, arguing the trial judge "very thoroughly" addressed the issues, and that the jury wasn't asked to consider the two women's testimony together. There was no error in the application of legal issues and the trial judge's exercise of discretion was not unreasonable, she said.
Brown submitted the judge's instructions to the jury "adequately addressed the concerns that the appellant raises."
In giving oral reasons for judgment, Bennett noted the trial judge found the evidence of all four women "reasonably capable of belief." He found no motivation for the women to fabricate their evidence and determined it was unlikely the stories were concocted.
Throughout the trial, Greenhalgh maintained his innocence. His lawyers at the time described the penalty – which also included three years probation, a 10-year firearms prohibition, a $400 victim surcharge and an order to provide a DNA sample – as “stiff” and said Greenhalgh would apply to have the verdict overturned.
Greenhalgh's father was in court Wednesday for the hearing. Asked about the ruling, he declined to comment.
Daniel Greenhalgh has served about nine months of his sentence. Released on bail in December, he was remanded Wednesday morning before the hearing, and will remain in custody pending his sentencing appeal.