A Langford businessman convicted five years ago of sexually assaulting a female employee has won the right to a new trial.
Kyle Christopher Mostowy was found guilty on May 7, 2019, of one count of sexual assault in connection with six incidents between April 1, 2014 and June 30, 2014.
Mostowy had previously been convicted in January 2016 of five counts of sexual assault against five other female employees, resulting from incidents in 2010 and 2011.
After he was arrested then released on bail in 2012 on those charges, one of the conditions was that he not employ women at his business.
After media coverage of the first trial — the one that resulted in the 2016 conviction — another female employee reported to police that Mostowy had sexually assaulted her between April 1, 2014 and June 30, 2014, resulting in a charge of sexual assault and breaching conditions against Mostowy.
The latter charge is the result of the fact that the woman, whose identity is protected by a publication ban and who is identified only as B.F., was employed at Mostowy’s construction company at the time he was subject to the condition.
In pre-trial conferences before the second trial, judges expressed “strong concern” that the count of breaching conditions could prejudice a jury against Mostowy, as it implied a conviction on another offence, Justice Mary E. Saunders wrote in the B.C. Court of Appeal decision.
Crown prosecutors and Mostowy’s defence lawyer advised judges his previous convictions would become known to the jury through B.F.’s testimony.
Before the jury’s decision, the judge directed them to acquit Mostowy on the count of breaching his bail condition, calling it ambiguous because there were competing interpretations over whether he was prohibited from employing women anywhere, including job sites, or just at his home office.
Mostowy appealed his second conviction, arguing the judge made a mistake in not trying the two counts separately and that he received ineffective assistance from his lawyer, resulting in an unfair trial and a miscarriage of justice.
A panel of three B.C. Court of Appeal justices in a May 28 judgment allowed Mostowy’s appeal on the basis that he received ineffective assistance. His defence lawyer failed to apply for the counts to be tried separately, which amounted to a miscarriage of justice, Saunders wrote in the decision.
Mostowy was sentenced to three years in jail for the five counts of sexual assault, and nine months after the second trial. He was ordered to pay nearly $1 million to one of the victims after she sued him.
In a victim-impact statement at the time of his second sentencing, B.F. described her life as dominated by anger, anguish and uncertainty after the assaults.
