A judge should not rely on “myths and prejudices” in a trial for sexual assault, has just recalled the Court of Appeal of Quebec. The rebuffed trial judge reproached the complainant for not remembering her clothes worn at age 11 and for not being able to explain why the accused had a lot of condoms.
Posted at 12:00 a.m.
The highest court in the province recently ordered a new trial in this incest case that went under the radar in the youth division of the Court of Quebec. The accused had been acquitted of sexual assault and incest charges by Judge Luc Joly in June 2021 in an unspecified district. The identity of the accused and the victim is protected by law, as they were minors at the time.
The facts would have taken place 20 years ago, when the complainant was 11 years old and her brother, 13 years old. At trial, the complainant recounted several sexual events involving her brother. Once, because she was afraid of becoming pregnant, her brother suggested that she use a condom and engage in anal penetration. He had chosen a condom from a drawer containing several condoms, she said.
The supposed “flaws” of the testimony
Judge Luc Joly pointed out “several flaws” in the complainant’s testimony, accusing her, among other things, of being unable to determine the number of sexual acts or to place the elements in time – which is false according to the Court of Justice. ‘call.
Judge Joly also criticized the complainant several times for being unable to provide certain details, for example the clothes she was wearing at the time of the assaults or those worn by the accused, and to whom belonged a pornographic film watched at the time or who had found it.
Thus, even if the complainant was “credible and sincere”, the reliability of her story was affected by the lack of context surrounding the assaults, according to the judge, which thus gave the accused the benefit of a reasonable doubt.
In arriving at this conclusion, Justice Joly seemed to infer that a teenager could not hold that many condoms. “The victim also does not explain why the accused has a drawer full of condoms in his room, which is a rather extraordinary situation for a young man who was then 13-14 years old,” he concluded.
Problematic requirements
According to the Court of Appeal, this is a “generalization without any factual basis which vitiates the judge’s reasoning”. In addition, it is “particularly problematic” that the judge reproaches the victim for his inability to explain why his brother had several condoms in a drawer, considers the Court of Appeal.
The Court of Appeal recalls that a judge must take into consideration the age of the plaintiff at the time when it comes to events that occurred during childhood, especially with regard to inconsistencies relating to related questions. . Indeed, a victim of repeated childhood sexual abuse may omit peripheral details from the story, argues the Court of Appeal. However, Justice Joly did not assess this issue under the rules established in 1992 by the Supreme Court.
“A criminal trial must be held before a judge who analyzes the evidence presented in a rational and objective manner, with an open mind, without relying on myths, prejudices or generalizations that have no basis in fact”, thus concluded the judges of the Court of Appeal Julie Dutil, Simon Ruel and Guy Cournoyer, on September 29th.
Another decisive error: the judge erroneously concluded 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 raised no problem, concluded the Court of Appeal. This error by the judge then reverberated throughout his analysis of the evidence.