A Surrey provincial court judge found a father not guilty of sexually molesting his 10-year-old daughter despite not believing the accused’s evidence.
“I do not believe the evidence of the accused, but find that in the context of the evidence as a whole, it raises a reasonable doubt in my mind as to his guilt. Accordingly, I am obligated to find the accused not guilty of the two charges before the court,” Judge Michael Libby noted in his reasons for judgment. “A finding that a complainant is telling the truth, or a finding that the accused is not telling the truth, does not equate to a finding of guilt: an accused’s lack of credibility does not amount to proof beyond a reasonable doubt.”
The judge noted that the main issues at trial were the credibility and reliability of the complainant and accused and whether the Crown proved its case beyond a reasonable doubt.
There is a publication ban on information that could identify the father and daughter. The father denied the crimes took place. He was charged with one count of sexual assault and one count of sexually touching a minor.
“If I believe the accused’s evidence, I must acquit,” Libby explained. “If I do not believe the accused’s evidence, but I am left in a reasonable doubt by it, I must acquit. Even if I am not left in a reasonable doubt by the accused’s evidence, I must consider whether, based on the evidence I do accept, I am convinced, beyond a reasonable doubt, by the evidence of the accused’s guilt; and if after careful consideration of all the evidence, I am unable to decide who to believe, I must acquit.”
Libby noted that while proving a case beyond a reasonable doubt doesn’t require proof to an absolute certainty, proof beyond a reasonable doubt is much closer to absolute certainty than it is to a balance of probabilities.
“In sexual assault cases,” he explained, “triers of fact must scrupulously avoid stereotypical reasoning when it comes to considering the evidence of a complainant. At the same time, they must be cautious not to apply problematic stereotypical thinking in the other direction. For example, it must not be assumed that complainants in sexual assault cases are believable, tell the truth and/or would not expose themselves to the rigours of trial unless what they were saying was true. Such assumptions would reverse the presumption of innocence and impermissibly shift the burden to an accused to prove his innocence.”
The court heard that the girl told a family friend her mother swore at her and hit her but on cross-examination the girl conceded it wasn’t true. She went to live with her father, whom she believed was using drugs though she never actually saw him consume drugs.
Libby said a judge must not compare and select which differing version of events the judge prefers. “When the accused and complainant provide conflicting evidence, the determination of proof of guilt must not devolve into a credibility contest,” he said. “Instead, the verdict must be based on the assessment of the evidence as a whole and whether the trier of fact is left with a reasonable doubt as to the accused’s guilt.”
Moreover, he added, a judge ought not to apply a more rigorous scrutiny of an accused’s evidence compared to a complainant’s evidence. “When an accused testifies, that testimony must not be considered in isolation from all the evidence received,” he said.
Libby also noted that while there are no “hard and fast” rules concerning an adult’s testimony compared to that of a child, details like time, place and frequency of events may be missing from a child’s recollections because “such details may be less important to children, and they may be more prone to suggestibility and less able to express themselves precisely compared to adults.”
Moreover, presumption of innocence and putting the burden of proof on the Crown are “necessary protections” to avoid wrongful convictions, he added. “While this may mean that sometimes a guilty person will be acquitted, that is the unavoidable consequences of ensuring that innocent people are not convicted.”
Libby agreed with the Crown prosecutor that the girl was “cogent, mature, and articulate, that she made appropriate concessions on cross-examination, and that she did not embellish her evidence.
“Generally speaking, I agree with the Crown’s description of (her) evidence and the manner in which she gave it,” he concluded.
But, he added, the defence identified issues with her evidence “which can be said to go to her credibility,” including inconsistency between her testimony and her police statement.
“In considering this inconsistency, I am mindful of the comments set out above concerning incremental disclosure and the assessment of evidence of children. The defence also points to the girl’s admission she falsely accused her mother of hitting her shortly and her assertion that her memory of events in the summer of 2022 “are better now than they were two months after they occurred. All of this must be considered as part of the whole body of evidence presented to the court.”
Libby said that he “ultimately” found the girl’s evidence to be credible and found the manner in which her father testified “troublesome,” and that he believes that the events she described “likely took place in the way she described them.
“Had this matter been a question of determining proof on a balance of probabilities, I likely would have found him guilty,” Libby determined. “But that is not the test; this matter is a question of proof beyond a reasonable doubt. Proof beyond a reasonable doubt is a high standard. Before entering a conviction, the court must be sure of the guilt of the accused. Absolute certainty is not required, but proof by the Crown that an accused is probably guilty, or likely guilty, is not sufficient.”
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