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Man acquitted of sex assault, complainant's credibility raises reasonable doubt

A man has been acquitted of sexually assaulting his stepdaughter after Toronto criminal lawyer Ryan Handlarski argued her testimony did not meet the test of common sense.

Handlarski’s 50-year-old client, who is not being named because it might identify the complainant, was charged with one count of sexually assaulting her, allegedly in 1998 or 1999, when she was between 15 and 16 years old.

The stepdaughter, now 33, claimed that he sexually assaulted her for several years in their northwest Toronto home starting when she was 10 or 11, Ontario Superior Court Justice Julie Thorburn wrote in her judgment.

She first reported the alleged sex assaults to police in 1998, but said she recanted the next day under pressure from her mother, Thorburn wrote.  

The stepdaughter said that after years of therapy she went back to police in 2014 because she knew what her stepfather did to her was wrong. 

She alleged the defendant abused her in other ways. She claimed he beat her, called her demeaning names, deprived her of food, followed her to school, stopped her from going out or having friends visit, taped her telephone calls, and left condoms hidden throughout the home, Thorburn wrote. 

“It was a very challenging case,” says Handlarski, principal of RH Criminal Defence. “The greatest challenge was that the complainant appeared to have a coherent story. The complainant also presented as a normal person with a sincere demeanour.”

Her plausible demeanour was one of the reasons the defendant elected to be tried by judge alone rather than by jury, Handlarski tells AdvocateDaily.com. “Judges are much more alert to the fact that demeanour is not a good indicator of credibility. A lot of wrongful convictions historically have been based on the sincere demeanour of the witness.”

Handlarski’s strategy was to subject the complainant’s story, which was largely consistent internally, to external inconsistencies, he says.

His client took the stand and denied the allegations. Handlarski also called his client’s wife — mother of the complainant — and his other daughter. They both testified they never saw the accused mistreat his stepdaughter in any way. 

But perhaps the most crucial evidence was given by a neighbour, he says. 

The neighbour testified that she saw nothing unusual in the way the defendant looked after his children and grandchildren and that she would have intervened if she saw anything untoward.

“The neighbour was such a powerful witness,” Handlarski says. “She had no stake in the family or reason to protect the accused. I strongly felt after she testified that her evidence was enough in itself to raise a reasonable doubt.”

The stepfather testified that after his stepdaughter recanted her first police complaint in 1998, he asked her why she had made the allegations and “she said that she did not want to go to school so she made up this allegation and told her aunt, who telephoned police,” Thorburn wrote.

Her mother also testified the complainant told her the allegations were untrue. 

The family members and neighbour portrayed the accused in a very different light from the complainant. They described him “as a person who cooked, organized family shopping trips and who took care of the children and grandchildren often, and someone in whom the complainant herself entrusted her children,” Thorburn wrote. 

“The complainant’s behaviour in often leaving her children with (the accused) and her mother in Toronto and allowing them to take her children out of the country, given her depiction of him as verbally, physically abusive and a sexual predator, is troubling. She told police in 2014 that ‘I would not even leave a butterfly around him,’” Thorburn wrote.

“The fact that she was less than forthright about this fact is also troubling,” the judge added. 

Handlarski says he believes that detail weighed heavily in the judge’s decision to acquit, because it made no sense for the complainant to allow her stepfather to babysit and travel with her children, one of whom was a girl, if he had sexually abused her. 

His main argument at trial, Handlarski says, was that “credibility is fundamentally a probability analysis and that we have to subject the evidence of the witnesses against common sense based on the known facts. And when you do that in this case, there is reasonable doubt.”

The judge agreed with the Crown that it is not impossible that the assaults took place simply because no one else observed them. But she concluded that she was not satisfied beyond a reasonable doubt that they occurred. 

The defendant, “a good man who obviously loved children,” was very happy with the result, Handlarski says. “He was on a strict bail that didn’t allow him to be around children unless he had a surety with him. And that really hurt him because he had been, in his family, the main caregiver of children his entire life.”

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