In a 2016 trial, R. v P.S., a man was accused of sexual assault that was alleged to have taken place 13 years in the past, while he was purportedly babysitting a young relative. As in many sexual assault cases, the deciding of this case rested on the credibility and reliability of the witnesses who testified, particularly on that of the complainant and the accused.
P.S., the accused, was charged with having committed sexual assaults on three occasions against a seven-year-old girl, while he was babysitting the complainant. The girl, D.C., lived with her grandmother at the time of the alleged assaults, and the accused is a first cousin to the grandmother. D.C. alleged that the accused man committed three incidents of assault against her: he allegedly forced a popsicle down her throat until she choked and vomited; he was alleged to have used his thumb to hook her cheek and lead her around, or forced his thumb down her throat; and finally, he allegedly attempted to insert his penis into her mouth, after giving the complainant a bath.
The positions of the opposing parties
The accused testified that, not only didn’t the offences take place, he also never babysat the complainant. He further testified that the complainant had never been to his home, and he provided evidence that they lived in two separate towns at the time of the alleged incidents. While the defence acknowledged that the complainant may have been traumatized in some way as a child, they argued that inconsistencies in the complainant’s and her sisters’ recollection of the events surrounding the alleged assaults suggest that the complainant’s testimony is unreliable. Therefore, the Crown has not proven that the accused is the person who committed the assault against her.
The complainant was 20-years-old at the time of the trial. She asserted that she had a clear recollection of the three incidents, which would have taken place roughly 13 years in the past, if true. The Crown acknowledged that there are some difficulties in its case, such as the complainant’s memory of her age when the events were alleged, as well as some discrepancy in the records of when the accused may have lived at the house described by D.C. However, the Crown argued that many of the details that the complainant was able to recall are accurate, and also, testimony from her mother about a trigger that D.C. continues to experience since the alleged assaults suggests that the assaults occurred as described. The Crown admitted that the accused’s testimony was not impeached, but they drew attention to previous incidents of dishonesty as reason to disbelieve his statement that the complainant never came to his house.
Considerations for evidence given by children
Citing R. v. R.W. (1992), the judge in this case noted that one cannot assume that evidence given by children is necessarily less reliable than that of adults. Further, the courts must recognize that children and adults experience the world differently, and children may not remember different details, such as time and place, that would be remembered by adults. Therefore, the testimony of young children should not be judged on the same exacting standard as imposed on adults. Also, the evidence of an adult testifying as to events that happened when they were a child should be assessed on the same credibility criteria as other adults, but their memory of specific details, particularly peripheral matters, should be considered in the context of their age when the events occurred.
Justice Lacelle agreed with the defence’s position that this case rests on the reliability of the complainant’s testimony. Although there was no reason to doubt the complainant’s credibility or the fact that she experienced trauma, the issue for the court was whether the complainant’s evidence is sufficiently reliable to meet the high standard of proof ‘beyond a reasonable doubt’. On this issue, the judge acknowledged that there were discrepancies with other evidence presented, that raise questions about the facts of the case.
Inconsistencies in evidence
There was an important contradiction in evidence with regards to the house where the accused lived when the alleged assault occurred. Based on MTO documents, the accused did not live in the house which the complainant and her sisters described and alleged to have visited until six years later than when the assaults were alleged. This means that D.C. would have been thirteen, rather than seven, during the time of the assaults. The significant difference in age raises questions about the complainant’s account of what she wore and how she was treated by the accused, as her descriptions make less sense as a thirteen-year-old. Also, the complainant stated that she clearly remembered attending her first communion after the assaults occurred, which took place when she was seven, not thirteen.
A second inconsistency concerns the complainant’s description of the bathroom where one of the assaults was alleged to have occurred, which was described by the owner of the property as having a different layout than described by D.C.
There was also a discrepancy between the accounts given by the complainant and her sister, A., when describing the assault alleged in the bathroom. Specifically, the sister has no memory of ever being at the accused’s house while the complainant was there, although the complainant stated that her sister was present while she was chased outside and caught by the accused, while wearing only a towel. Yet, A’s testimony that she went to the house only when she was twelve or thirteen, is consistent with the MTO evidence.
A fourth inconsistency is the fact that the complainant’s sisters agree with the accused, in his assertion that he never babysat or picked up the children to take them to his house. This testimony cannot be reconciled with the complainant’s memory of having been babysat by him, sometimes with her sisters.
Finally, the complainant’s description of the accused’s former spouse was different than that of all the other witnesses, including the testimony given by her own mother and sisters.
Although Justice Lacelle acknowledged that there can be some difficulty with precise memories of certain events and details, when the events occurred during one’s childhood, the significant gap in the complainant’s evidence and that of other witnesses, raised questions as to the reliability of the complainant’s account. Also, at times during her account, it appeared that the complainant was filling in the gaps with other memories of what she thinks she would have been wearing or doing, rather than truly remembering the details.
In consideration of all the evidence, Justice Lacelle found that he could not believe all of the accused’s account, which led him to be uncertain as to what occurred between the complainant and the accused. The judge noted that he did not believe that she was making up her allegations, but he had reasonable doubt that the accused assaulted her as alleged. As a result, the accused was acquitted and found not guilty on all counts.
As in any criminal prosecution, the onus always rests on the Crown to prove the charge beyond a reasonable doubt. If the judge or jury believes the accused’s evidence, or is left with a reasonable doubt, then the accused must be acquitted. However, even if the accused is disbelieved, the Crown has still not necessarily proven its case because a judge must make a determination based on all the evidence presented. This is called the ‘W.D. test.’
At Kruse Law, we have successfully represented many clients accused of sexual assault. Contact our office to learn about your legal rights and allow us to begin working on having the charge dismissed if you have been charged with a sexual assault offence.