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| John L. Hill |
AR alleged that he took piano lessons from Chong for several years. In March 2009, when AR was 15, AR said that during a private lesson at Chong’s home, Chong gave him a belt. While helping AR put it on, Chong allegedly reached into AR’s pants and briefly cupped his genitals.
AR pushed Chong’s hand away, became very upset, told his father immediately, and never returned. AR’s father confirmed that AR reported the incident.
MJ’s allegations described his dealings, which began with lessons with Chong in 2001, when he was 14 and 15. The lessons eventually moved to Chong’s home. MJ described increasingly intimate contact: prolonged hugs, Chong’s hands moving to his buttocks, chest‑to‑chest and crotch‑to‑crotch contact, and massages that progressed from his shoulders to his groin. MJ said Chong eventually put his hands down MJ’s pants and touched his penis and buttocks. During one lesson, Chong allegedly brought MJ into his bedroom, played pornography, told him to undress, instructed him to masturbate, and then performed oral sex on him. Chong told MJ not to tell his father.
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The trial judge refused to treat the four complainants’ accounts as similar fact evidence, finding that the prejudicial effect outweighed the probative value. She emphasized that each count had to be decided only on evidence admissible for that count.
Chong was acquitted of charges involving complainants DP and MR. The judge found that some touching occurred, but credibility issues raised a reasonable doubt as to whether it was sexual. However, the judge found AR and MJ credible and reliable on the core allegations. For AR, she rejected Chong’s version as internally inconsistent and illogical. For MJ, she rejected defence arguments that MJ was unreliable, noting that much of what was put to MJ in cross-examination was “fabricated by the Accused.” She accepted MJ’s account of grooming, sexual touching and the bedroom incident.
After conviction but before sentencing, the Crown advised the judge that, at the relevant time in 2001, the age of consent and the definition of sexual interference were 14. The age of consent was now 16, at which age consent could be given. Whether consent could have been given was not addressed during the trial. The Crown asked to lift the conditional stay on the sexual assault charge involving MJ and to enter an acquittal on the related sexual interference charge. Defence sought a mistrial, arguing that no one had considered whether MJ was old enough to consent or had consented. The Crown responded that defence counsel should have known the age-of-consent law and that no prejudice resulted.
The judge held that she could not re-evaluate the evidence but could determine whether her original reasons already implied a finding of non-consent. She concluded that MJ’s evidence clearly indicated he did not consent and that this finding was implicit in her earlier reasons. She found all elements of sexual assault proven beyond a reasonable doubt. The judge ruled that a mistrial was unnecessary. She found the defence argument concerned trial fairness, not any misunderstanding of MJ’s evidence. She noted that the defence strategy was a complete denial of sexual touching, not a claim of consensual activity.
The outcome was that the judge lifted the conditional stay on the sexual assault conviction involving MJ and entered an acquittal on the sexual interference charge.
Chong appealed the 2023 conviction to the Alberta Court of Appeal. He argued that the trial judge erred in her credibility assessment and that she was functus officio and could not convict in the MJ case. On Jan. 9, 2026, the Appeal Court delivered its decision (R. v. Chong, 2026 ABCA 4).
The appellate court found no piecemeal assessment, no material misapprehension of the evidence, and no improper reliance on confrontation principles. The appellant’s grounds of appeal were without merit. Reading the reasons holistically, the trial judge correctly applied the governing principles from R. v. P.E.C., 2005 SCC 19 and R. v. Belval, 2024 ABCA 215. While each count had to be decided on admissible evidence for that count, the judge was entitled to consider the totality of Chong’s testimony when assessing credibility. The judge properly cautioned that credibility findings on one count could not be automatically transferred to others without explanation, consistent with R. v. R.A.G., 2008 ONCA 829. There was no legal error.
The record also did not support the claim that the judge assessed the evidence piecemeal. Consistent with R. v. J.M.H., 2011 SCC 45, the judge evaluated the evidence as a whole. She accepted several aspects of Chong’s general evidence while rejecting his denials of sexual misconduct involving AR and MJ. The acquittals of DP and MR were based on concerns about their reliability, not on any affirmative belief in Chong’s denials. That his evidence was “largely believed” in relation to another complainant was unsupported.
The trial judge accepted MJ’s testimony on the core allegations and found him clear, consistent and honest, and reasonably rejected Chong’s conflicting account. There was no material misapprehension of the evidence. Further, the Crown’s failure to cross-examine on minor matters does not affect credibility assessments. Properly read, the trial judge’s comments reflected an evaluation of the limited weight of that evidence, not an adverse inference.
The court addressed whether the trial judge had jurisdiction, after conviction but before sentencing, to correct an error regarding the age of consent and its impact on the sexual assault conviction involving MJ.
A trial judge sitting alone is not functus officio until the case is fully disposed of, including sentencing (Head v. The Queen, [1986] 2 S.C.R. 684). In exceptional circumstances, a judge may reopen or correct a decision. Here, sentencing had not yet occurred, so the judge retained limited “variation jurisdiction,” as recognized in R. v. D.E.A., 2022 ABCA 308. The doctrine of functus officio does not bar the correction of errors where no reconsideration of evidence is required, and the court’s intention is manifest, as explained in R. v. Vader.
Citing R. v. Calnen, 2019 SCC 6, the court emphasized that trial fairness ultimately concerns the risk of wrongful conviction. Here, correcting the legal error did not compromise fairness. Trial judges must be permitted to correct inadvertent errors before final disposition where fairness is not affected.
In conclusion, the trial judge properly exercised her limited post-conviction jurisdiction to substitute an acquittal on the sexual interference count and to confirm the sexual assault conviction. The legal standard changed, not the factual findings, and no unfairness resulted.
John L. Hill practised and taught prison law until his retirement. He holds a JD from Queen’s and an LLM in constitutional law from Osgoode Hall. He is also the author of Pine Box Parole: Terry Fitzsimmons and the Quest to End Solitary Confinement (Durvile & UpRoute Books) and The Rest of the (True Crime) Story (AOS Publishing). Contact him at johnlornehill@hotmail.com.
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