A judge must not rely on “stories and prejudices” in a trial for sexual assault, Quebec’s Court of Appeal has now recalled. The overruled trial judge admonished the complainant that she could not remember what she wore at the age of 11 and could not explain why the accused had so many condoms.
Published at 12:00 am.
The province’s Supreme Court recently ordered a new trial in the sex case, which went under the radar in the youth division of Quebec court. The accused was acquitted of sexual assault and sexual assault charges in an unspecified district in June 2021 by Judge Luke Joly. The identity of the accused and the victim are protected by law because they were minors at the time.
The facts would have happened 20 years ago, when the complainant was 11 years old and his brother was 13 years old. During interrogation, the complainant narrated several sexual incidents involving her brother. Once, fearing she might get pregnant, her brother suggested using a condom and having anal penetration. He selected a condom from a drawer of several condoms, she said.
Alleged “defects” of testimony
Judge Luke Joly pointed out “several flaws” in the complainant’s testimony, alleging, among other things, that he was unable to determine the number of sexual acts or place the elements at the right time – which the court said was wrong. call
Judge Joly repeatedly criticized the complainant for not being able to provide certain details, such as the clothes he was wearing at the time of the attack or the clothes worn by the accused, who or whom the pornographic film was seen at that time. It was discovered.
Therefore, even if the complainant was “credible and honest”, the credibility of her story was undermined by the lack of context surrounding the assaults, according to the judge, giving the accused the benefit of reasonable doubt.
In reaching this conclusion, Judge Jolie seemed to assume that a young man could not have so many condoms. “The victim also did not explain why there was a drawer full of condoms in the accused’s room, which was a very unusual situation for a youth of 13-14 years at the time,” he concluded.
Problem requirements
According to the Court of Appeal, this is “a generalization without any factual basis which distorts the judge’s reasoning”. In addition, the appeals court found it “particularly troubling” for the judge to blame the victim for not being able to explain why her brother kept so many condoms in a drawer.
The Court of Appeal recalls that the judge must consider the plaintiff’s age in relation to childhood events, particularly in conflicts related to relevant questions. Indeed, a victim of repeated childhood sexual abuse may omit extraneous details from the story, the appeals court argued. However, Judge Joly did not assess the issue according to the rules established by the Supreme Court in 1992.
“A criminal trial must be conducted before a judge who analyzes the evidence presented in an open-minded, rational and objective manner, without relying on myths, prejudices or generalizations that have no basis in fact”, the court judges concluded. Appeal by Julie Tudle, Simon Ruel and Guy Cournier, on 29 September.
Another decisive error: the judge wrongly decided that the Crown had to prove that the accused was 12 years old at the time of the events. However, the age of the accused did not raise any issue, the appellate court concluded. This error by the judge reverberated throughout the analysis of the evidence.
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