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Emotions were palpable in a Penticton courtroom, as man accused of sexual assault on a minor and sexual exploitation has been found not guilty.
The trial for the man, who can only be referred to as T.B. due to a publication ban, ran the duration of last week, and covered a string of alleged incidents from 2011 to 2012.
In her decision, Justice Alison Beames said she found too many inconsistencies in the evidence presented by the now-15-year-old alleged victim.
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“There is no question that the close relationship between the accused and the complainant, a child 11 years younger than him, was unusually close,” Beames said.
“The extent of the relationship, even to the extent admitted by the accused, is at least enough to raise suspicions. However, as I have already said, the Crown must prove its case beyond a reasonable doubt. Suspicions are not enough.
“Having reviewed all of the evidence, more than once, I will say, I have concluded that I cannot be sure what happened. I do not know who to believe. That means that the Crown has failed to prove its case beyond a reasonable doubt. I do have a reasonable doubt.”
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As Beames said she found T.B. not guilty, numerous members of the complainant’s family let out exasperated sighs, and stormed out of the courtroom.
Walking out of the courtroom, the boy’s mother was heard yelling “Are you f—-ing kidding me?”
In her decision, Beames made note of a 1991 Supreme Court of Canada decision, R. v. W.(D.), which set the benchmark for trials of sexual assault, in which both the accused and the complainant have testified.
According to the W.(D.) ruling, even if the accused’s testimony is not found to be believable, but if it raises reasonable doubt in the testimony of the complainant, the trial judge must acquit.
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“If I don’t know who to believe, I must acquit him,” Beames said. “There are genuine concerns with respect to the complainant. He was confronted in cross-examination with numerous inconsistencies.”
Beames said considering the boy’s age and the time between the alleged offences and the trial, the court must take into account that there will be some level of inconsistencies in his testimony.
“But not to the degree that I find exists in this case,” she said, adding she found some inconsistencies between the boy and his mother.
Family members of the boy were visibly upset at the decision in Penticton’s B.C. Supreme Court chambers, and some expressed disdain at comments from defence lawyer Don Skogstad following the hearing.
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“Let’s hope this is the first day this kid can get his life back after six years,” Skogstad said.
In his closing remarks Friday morning, Crown lawyer John Swanson had attempted to dodge inconsistencies in some of the boy’s testimony, including testimony surrounding an iPod T.B. gifted to the boy, by characterizing it as peripheral.
On the main issues — the claims of sexual assault and exploitation — Swanson said the boy was steadfast in his allegations.
But Beames took Skogstad’s view of inconsistencies in the boy’s story to provide some shadow of doubt in T.B.’s guilt, particularly as she noted that T.B. was not confronted with any inconsistencies in his own testimony.
In trial, the boy accused T.B. of instructing him to masturbate him, as well as touching his penis. On one occasion, the boy claimed T.B. ejaculated on his back, and on at least two occasions the boy said T.B. penetrated him anally.
T.B. admitted to sleeping in the same bed as the boy in numerous occasions, as well as buying him gifts, which the Crown characterized as “grooming” behaviour, but denied any sexual contact with the boy.
Prior to the trial, the Western News was one of two publications applying to remove the publication ban on T.B.’s name, arguing the ban would be a detriment to the open court principle and freedom of expression.
However, the defence and Crown both argued in favour of the publication ban, with concerns that the publication of T.B.’s name could lead some to the identity of the underaged complainant.
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