Daughter's evidence in incest case 'strong' but reasonable doubt remains: judge

Superior Court Justice Michael Varpio rejected "in its entirety" the evidence of a 76-year-old local man accused of historical sexual abuse offences involving two young family members that were alleged to have occurred decades ago.

Calling the accused's evidence "deeply flawed," he said Wednesday that it "is not worthy of belief since his version of events is largely implausible and in some very important ways, impossible."

But despite this, the judge acquitted him on three charges - rape, incest and sexual intercourse with a female under the age of 14 - stemming from complainants made by his daughter about incidents that she testified occurred between 1971 and 1980.

Varpio said after reviewing all of the evidence and the applicable law, he has reasonable doubt that the accused perpetuated the offences upon his daughter.

Varpio found the retired steelworker guilty of two offences - indecent assault and gross indecency - involving his former sister-in-law that occurred between 1964 and 1971 when she was a child.

The ruling was not well-received by many of the 20 people crowded into the small courtroom to hear his judgement. It followed an eight-day trial that took place in September and October.

In whispered asides, one woman said the justice system 'is f...ed up," while another suggested this is why children don't disclose things.

A court order prohibits publishing any information that could identify the complainants.

During the trial, the daughter, now in her 50s, testified about incidents that she said began with touching when she was about seven years of age and over time escalated to sexual intercourse.  

She told the court this continued until the fall of the year she was 14, and ended when she kicked him in the chest during the sexual abuse.

The witness said she disclosed the abuse to her mother on New Year's Eve one year and about a month later, the woman took her children and left the accused.

Varpio heard the complainant went to police when she turned 16, and officers also spoke to her mother, but no charges were laid in 1980.

In his 32-page decision, which he read in court, the judge called the daughter's evidence "a generally powerful recitation of the events that happened in her childhood."

"She described the events of her childhood in what appeared to be an honest and blunt fashion."

The judge noted that her mother's testimony corroborated the woman's evidence on important collateral issues.

In total, the daughter's evidence regarding the sexual abuse was "strong, clear, unequivocal, unshaken and powerful."

Varpio said if this was the only evidence he had to consider, "I would have no  problem finding the accused guilty," beyond a reasonable doubt, of the offences.

"This is, of course, not the case," he said, referring to issues the defence had raised about the complainant's credibility.

Many of these issues can be dismissed, but others can't, the judge said pointing to three areas of testimony that caused him some concern.

The most important evidence that caused considerable concern was the woman's "adamant" insistence that she never spoke to her aunt (the second complainant) about this trial.

Varpio noted that the aunt had candidly admitted that the pair had talked before the older woman gave a statement to police.

He disagreed with a defence suggestion that the conversation was evidence of collusion, stating there is no evidence that the women discussed their testimony.

During cross-examination, the defence clearly pushed the daughter into a defiant stance on this point, Varpio said.

The "daughter initially took an uncertain position and it is clear from the evidence that her temper caused her to 'dig in' to a position during cross-examination that was factually incorrect." 

Varpio said this suggests to him that the woman lied, and he can't ignore the fact that she "specifically reversed her evidence on a material, important point."

This reversal, coupled with his other concerns, undermines her credibility to where it raises a reasonable doubt about her testimony, he said.

But for the daughter's lie regarding the conversation, Varpio said he might have found the accused guilty of the three charges, despite some concerns about collateral points in her evidence.

"I would have done so based largely on the strength of her recollections as well as the mother's evidence that corroborated many collateral but important facts."

The judge said he can't ignore the woman's dishonesty about the conversation with her aunt.

"A witness that is willing to lie about collateral - but important - evidence simply cannot be trusted to tell the truth about the gravamen (essence or most serious point of a complaint or accusation) of criminal offences."

While indicating he generally accepts the daughter's evidence and finds the described events probably occurred, Varpio concluded her evidence is "sufficiently discreditable" that it prevents him from making findings of guilt on those charges.

Referring to the two counts involving the aunt, Varpio said he has no doubt those events occurred.

She testified in a "specific, direct and clear" manner, he said, calling her evidence "powerful to the point of being overwhelming."

The woman was "an almost immaculate witness who recounted what were clearly difficult events in her life with as much dignity as one can muster," especially during a firm cross-examination.

In contrast, the judge said he found the accused's evidence contrived and unworthy of belief.

A date for sentencing on these charges will be set at the accused's next court appearance.

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