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Judge 'properly applied' test in sex assault acquittal

The recent acquittal of a Newfoundland man accused of sexual assault is a stellar example of trial fairness rather than a "bold" legal decision, Toronto criminal lawyer Laurelly Dale tells AdvocateDaily.com.

The judge in the case used his ruling to mount a defence of the court's handling of sexual assault cases more generally, explaining how it was possible to find an accused person not guilty, even though the complainant was credible.

"It is important to understand that when a verdict of not guilty is rendered by a trial judge it does not mean that our criminal trial process is 'broken' or that it has 'failed' the complainant. It is not necessarily even an indication that the trial judge disbelieved the complainant's evidence," Judge Wayne Gorman wrote in the provincial court ruling.

However, Dale, principal of Dale Legal Firm, says it is slightly dispiriting that the judge felt it necessary to clarify his decision.

“I’m happy with the decision. It’s always a great day for justice and true believers in fair trials for those accused of what society views as one of its most heinous of crimes when a person is properly acquitted,” she says. “It’s important that these types of judgment keep coming out because we see many where the judge is swayed the other way.

"At the same time, it’s disappointing that a judge is considered bold for reaffirming due process and trial fairness,” says Dale, who is also a civil litigator.

Dale explains that Gorman essentially performed a routine application of a landmark 1991 Supreme Court judgment, which laid out the three-step analysis for assessing an accused person’s credibility when applying the reasonable doubt standard:

  • In the first step, the trial judge must ask whether they believe the testimony provided by the accused. If so, it must result in acquittal. If not, then they must proceed to step two.
  • The second step is for the trial judge to analyze whether the accused person's evidence results in a reasonable doubt concerning their guilt. If so, an acquittal must be entered. The third step is only required if the answer to both the first and second question is ‘no.’
  • The final step requires the trial judge to consider the totality of the evidence presented by the Crown to determine whether the accused’s guilt has been proven beyond a reasonable doubt.

“There’s nothing new in this decision. The judge properly applied the test,” Dale says. “It reaffirms the binding case law and emphasizes that these cases are not simply a contest of credibility between the Crown and the accused, but an analysis based on the totality of the evidence."

The complainant in the case, a former employee of the defendant, alleged that he sexually assaulted her by touching her buttocks on numerous occasions between 2016 and 2017. The employer denied any sexual touching occurred.

The judge concluded that the complainant was credible but ultimately entered an acquittal after finding the Crown had not proven its case beyond a reasonable doubt.

"A criminal trial never constitutes simply choosing between competing narratives. To take such an approach would be contrary to the presumption of innocence and the burden of proof," Gorman wrote, noting there were weaknesses in the testimony of both parties.

For example, he struggled with the defendant’s assertion that he had never talked to the complainant about anything other than work, considering the small size of his operation, and the frequency of their interactions.

"Though I have concerns about the veracity of some of [the defendant's] evidence, I am not able to reject the essence of it. I cannot articulate a rational basis to reject it because no such basis exists," the judge concluded. When looking at the evidence as a whole, he added, the contradictions raised a reasonable doubt in his mind, requiring an acquittal.

“This does not mean that I found [the complainant's] evidence to be unreliable or untruthful," he said.

If there is a boldness to the decision, Dale says it rests in Gorman’s apparent belief in the complainant’s testimony.

“Generally when the complainant is found credible, the decision sways the other way,” she says. “But, this is a reminder that the test set out by the Supreme Court stands, and that the judicial system is not set up to provide justice for every complainant.

“People’s interpretation of justice differs on an individual basis, but the system is set up to deal with those accused of crimes. That’s not to say that complainants should never be believed or that crimes don’t happen to them, but proof beyond a reasonable doubt is a rightfully high standard, because a criminal conviction is a very serious consequence, particularly in proceedings involving allegations of sexual assault,” Dale says.

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