A B.C. Supreme Court judge in Nanaimo has ruled that a man accused of molesting a child while they played World of Warcraft is not guilty of sexual interference.
The accused is a 71-year-old man, who isn’t being named to protect the identity of the complainant, a 20-year-old transgender man.
While the complainant came forward to Nanaimo RCMP in September 2019 in order to seek closure, and couldn’t recall when the alleged incident occurred, Judge Heather MacNaughton accepted that it likely occurred in December 2010, when the accused visited the complainant’s family in their north Nanaimo residence.
The two had been playing World of Warcraft, an online game, with other family members, when the accused is said to have fondled the complainant under his shirt, primarily rubbing the left chest area and pinching his nipples, MacNaughton said.
The complainant testified that the incident began as a back rub and heard the accused making grunting and huffing noises. Despite moving his body away, the touching did not stop, MacNaughton said during her ruling. The touching happened for a few hours on more than one day.
The complainant’s father saw the accused touching his child’s right shoulder and it made him feel uneasy, said MacNaughton. On another occasion, the father saw the accused’s hand over the child’s shoulder at the front the child’s chest.
The father spoke to his child, who said he didn’t like the contact, MacNaughton said. The father then spoke to the accused and told him they were not comfortable with the accused’s hand on the child’s shoulder. The accused responded by saying the complainant was getting too old for that anyway, said MacNaughton, which the father found troubling.
The family did continue to see the accused, even visiting him at his residence on the Lower Mainland.
MacNaughton said she had to assess the credibility of both parties’ evidence, referring to their truthfulness or honesty, and reliability of evidence. Guilt must be proven beyond a reasonable doubt, she said. MacNaughton said she didn’t believe the accused’s evidence and on the basis of his evidence alone, she was not left with a reasonable doubt that the alleged touching occurred.
However, finding the accused’s evidence is not reliable doesn’t prove guilt, MacNaughton said. There is no independent evidence of the complainant and accused’s interaction. The father observing the hand over his child’s shoulder did not amount to touching to for a sexual purpose and is not the basis of the indictment.
The father’s impression of the accused’s behaviour and the concern it raised could not lead the judge to conclude that the alleged offence took place. The family didn’t feel concerned enough to cut off contact, until after the complainant’s full disclosure of the incident to his father in 2018, said MacNaughton.
The complainant’s evidence also lacked detail in relation to how the accused reached under his shirt. He did not explain if the accused put his hand down his shirt from the neck, or through the sleeve, or from the bottom. How the accused was able to touch the complainant in the way he recalled is not a peripheral detail which a child might not recollect, giving MacNaughton doubt.
The accused had no prior convictions.
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