‘Oversight’ gets child sex case tossed

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This article was published 07/12/2023 (880 days ago), so information in it may no longer be current.

Sex assault charges against a Manitoba man and woman have been tossed out of court for what a Crown prosecutor called an “oversight” after the now 10-year-old alleged victim wasn’t asked at trial to identify the two accused, one of them her own mother.

While the accused conceded they were the people named in court documents, there was no agreement they were the same people alleged to have assaulted the girl, King’s Bench Justice Scott Abel said in a ruling in which he acquitted the two last September.

Abel’s ruling followed a defence motion for a directed verdict or acquittal due to the lack of identification.

“Identity is an essential element of the offence,” Abel said. “There is not any evidence upon which a reasonable jury, properly instructed can return a verdict of guilty.”

The girl’s father, who has had sole custody of his daughter since the alleged June 2020 assault, called the decision “heartbreaking.”

“I feel terribly wronged,” he said this week. “I feel there is no accountability here… What has happened is really ridiculous.”

”What has happened is really ridiculous.”–Victim’s father

The girl testified she was at the home of her mother’s then-boyfriend in June 2020 when her mother held her arms down as she lay on a bed on her stomach and the boyfriend sexually assaulted her. She was six years old.

“After that, my mom told me not to tell anybody,” the girl told court.

The girl said she did not see the face of the male accused during the assault, but knew it was him because there was no other male in the house.

The girl alleged her mother had physically abused her prior to the sexual assault and locked her in the basement.

The girl, whose parents shared custody at the time, returned to her father’s home a day or two later, told him what had happened, and he called police, she told court.

Under cross examination, the girl provided frequently conflicting testimony as to how many times she had met the male accused, the circumstances of the alleged assault, who was present in the home and other details.

To secure a conviction, prosecutors, unless it is conceded by the defence, are required to prove the person named in an indictment is the same person before the court accused of the offence.

The girl testified from a separate, child-friendly courtroom with no visual access to the two accused.

During direct examination by the Crown, the girl wasn’t asked to visually confirm the two accused were the same people she alleged had assaulted her.

After the Crown closed its case, defence lawyers Andrew Synyshyn and Matt Raffi argued a motion for a directed verdict, specifically respecting the issue of identification.

“We’re submitting that at this point, the Crown has not led any evidence whatsoever that could be accepted by a reasonably instructed jury in relation to the evidence of the two co-accused,” Synyshyn said.

After a break, prosecutor Jeannelle Allard requested that the Crown be allowed to reopen its case to satisfy the identification issue, arguing it was a “complete oversight.”

“The Crown’s had a misunderstanding on what the agreement was with respect to identification,” Allard said. “I did read in it was the people named in the indictment and we’ve been referring to the same people, and it’s (the child’s) mom.

“So, it wasn’t in the Crown’s mind she would have to point anyone out, and how would we do that using the child-friendly courtroom?… It would defeat the entire purpose to have her come into the courtroom and point them out.”

”How would we do that using the child-friendly courtroom?… It would defeat the entire purpose to have her come into the courtroom and point them out.”–Prosecutor Jeannelle Allard

Synyshyn argued the Crown was well aware identity was still an issue and had no grounds to reopen its case.

“This isn’t a sort of an error or a mistake. This is a crucial element of the offence,” Synyshyn said. “The need to prove beyond doubt that someone is the individual that’s being named in an accusation or indictment is essential in every case.”

Abel rejected the Crown’s motion, ruling it was clear at a pretrial hearing that identity remained an issue in the case, with no indication at trial that anything had changed.

“I am not satisfied that the Crown’s request to reopen its case is due to an oversight or to prove a matter which it had failed to do so inadvertently,” Abel said.

Abel said it was understandable that the Crown would have requested the use of a child-friendly courtroom, but doing so hampered its ability to satisfy the identity requirement.

“The (girl) could have made other attempts to identify the accused short of seeing them, or other evidence could have been called by the Crown to identify either or both of the accused,” Abel said. “This was not done.”

The Crown is not appealing the case “as this was a matter of the judge’s discretion,” a provincial government spokesperson said in an email Wednesday.

“Manitoba Prosecution Service is directing Crowns to ensure they are clear on the accused’s position with respect to admitting identity and that it is clearly documented in pre-trial memoranda to avoid any confusion in future cases,” the spokesperson said.

“Manitoba Prosecution Service will also review procedures for proving identity when a child testifies in a child-friendly courtroom instead of in the presence of the accused.”

dean.pritchard@freepress.mb.ca