Criminal Law

Former groundskeeper acquitted of sexually assaulting Halifax woman

Canadian PressTHE CANADIAN PRESS

HALIFAX — A Halifax judge has acquitted a former Saint Mary's University groundskeeper of an alleged sexual assault last year.

The 35-year-old was charged with sexual assault, voyeurism and overcoming resistance by choking. It was alleged he sexually assaulted a woman at a home in the Armdale area on Sept. 3, 2017.

Following a lengthy trial earlier this year, a provincial court judge found him not guilty of all three counts Friday.

Even with the acquittals, though, the man remains behind bars — he's facing three additional and separate sexual assault trials.

In an interview with AdvocateDaily.com, Calgary criminal lawyer Greg Dunn says as a general rule, collateral allegations of sexual misconduct are not relevant and are inadmissible as “evidence of bad character.”

“Each accused is entitled to be tried on the allegations before the court, and only those before the court,” says Dunn, principal of Dunn & Associates Criminal Defence Lawyers.

He says there are two possible exceptions of note.

“One, if an accused testifies, then the record of prior criminal convictions may be put to him, as well as the sentence he received for that offence," Dunn explains.

"Two is a relatively rare exception called ‘similar fact evidence.’ In certain circumstances, the Crown could adduce into evidence the facts and circumstances of prior sexual crimes. Those prior sexual crimes would have to be probative to an issue outside of the simple fact that they were committed as to elevate their probative value to outweigh the prejudicial effect. For example, the acts were conducted in a similar fashion or manner as the case at bar,” he says.

In this case, the court heard that the groundskeeper and the complainant met a few times before they exchanged numbers and met downtown one night in September 2017.

The woman's name is protected under a publication ban.

The 22-year-old complainant said the two went to a few bars, then decided to leave. They were going to share a cab home.

While recapping the case, Judge Bill Digby said the pair ended up at the man's home. The complainant said he was massaging her feet and then starting kissing her before lifting her up and carrying her into his bedroom, where she said he performed non-consensual sex acts on her.

Some of what happened was recorded and played during his trial.

When rendering his decision, the judge said there was no reason to question the complainant's motives but said at one point during the recorded video, there was giggling and that some actions seemed voluntary.

Digby said the complainant ``holds the belief she was sexually assaulted'' but that the Crown failed to prove its case beyond a reasonable doubt.

``The video itself from our point was never consensual and it took different forms. It didn't video the entire event,'' said Crown attorney Rick Woodburn.

``It was cut up in certain ways, in our view at least, to make it look like it was consensual.''

Dunn says in 20 years of practising criminal law, he has never seen a case where a sexual encounter was recorded by video and presented as evidence.

“However with ubiquitous smartphones and ease of recording, we will no doubt see it more and more in these kinds of cases,” he says.

”Video evidence has long been admissible in criminal trials so long as the tendering party can show that the video accurately depicts the scene of the crime and that it has not been altered or changed. In this case, the accused could have simply said, ‘I recorded it and it accurately depicts the sexual act.’ It would, of course, be up to the trial judge to accept or not accept the recording as authentic.”

Despite the not guilty verdicts, Woodburn said he applauded the victim, and that she ``did an excellent job coming forward.''

``After talking to her, she was happy that she was able to tell her story. Even to come forward and tell her story was something she wanted to do, even before the verdict came. When she was finished, she felt justice had been served through the process,'' he said.

Woodburn said sexual assaults are always difficult to prosecute.

``The standard is high, it's beyond a reasonable doubt. It applies to all people,'' he said

``If anybody is charged with a crime, the level of proof that the Crown has to go through in order to make sure somebody is found guilty is high and in Canada, that's the level of proof that we want for each person.''

Dunn agrees that sexual assault cases have always been difficult to prosecute, defend and adjudicate and the rise of the #MeToo movement, coupled with heightened media interest, has only exacerbated that situation.

“However, there is much at stake — courts are tasked with higher and more fundamental obligations than simply to bend to the changing winds of cultural and social norms. When you’re a lawyer you understand that, even when nobody else does,” he says.

Woodburn said both the Crown attorney's office and the police take sexual assault allegations very seriously and spend a lot of time with the victims to ensure they are part of the processes, so they can tell their story.

``An acquittal does not mean that you are not telling the truth,'' said Woodburn. ``It just means that we haven't proven it beyond a reasonable doubt.''

— with files from AdvocateDaily.com

© 2018 The Canadian Press

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