Stepdad acquitted of sex-abuse charges
Judge finds 66-year-old man not guilty after trial, notes Crown’s case was “problematic”
A judge ruled this week a young girl’s evidence that her stepfather sexually assaulted her was tainted by an outside influence and the lack of key elements proving the crime beyond a reasonable doubt.
A 66-year-old capital-region man stood trial in Fredericton provincial court last year on charges that he sexually assaulted his underage stepdaughter and touched her for a sexual purpose.
There’s a court-ordered publication ban on the girl’s identity, and to comply with that order, the Fredericton Independent isn’t naming the defendant or communities in which events unfolded.
Judge Scott Brittain rendered his decision on the trial Monday, and he acquitted the defendant of both counts.
The two charges against the man originally alleged events in a capital-region community between Dec. 1 and 25, 2020.
However, Brittain noted in his ruling Monday that just days ahead of the scheduled trial, the girl and her stepmother - her father’s new spouse - revealed the alleged offences couldn’t have occurred during the originally reported timeframe.
The girl was out of province visiting her father and her stepmother for the holidays in late 2020, court heard, so the Crown amended the charges to indicate a new timeline: between Oct. 3 and Dec. 7, 2020.
“At the time of this (alleged) offence, [the girl] was nine years old,” the judge said.
Brittain said testimony at trial came from two witnesses: the girl, now 12 years old, and her stepmother, both delivering their evidence remotely by video conference from the outside province where they live.
The defendant didn’t testify, he said, as is his right.
Evidence at trial showed the defendant is married to the girl’s mother, and the child lived with them in New Brunswick full-time prior to the police involvement.
The girl would visit her father in another province on occasion as part of a custody agreement, the judge said, as was the case in December 2020.
It was between Christmas Day and New Year’s Eve 2020, court heard, that the girl revealed to her stepmother that her mother’s husband had touched her inappropriately.
“According to [the girl], she came from outside (the house) and [the defendant] touched her on her vaginal area,” Brittain said during his decision Monday.
“She stated [the defendant] placed his hand ‘inside my underwear.’”
The girl reported she told him immediately to stop, court heard, and he did.
“She never told her mother about what happened,” the judge said.
The girl and stepmother told her father about what she’d said when he returned home from work that day, court heard, and the father called the Department of Social Development in New Brunswick the following day.
The girl has remained with her father and stepmother ever since.
Girl wanted to move beforehand
Brittain said testimony showed that when the girl told her stepmother of the incident in question, the stepmom understandably asked a number of followup questions, but they were leading ones.
Court also heard the girl was unhappy with her mother and stepfather in New Brunswick. She was home-schooled, with limited opportunities to socialize, and she reported she didn’t care for the small house in which they lived. There were younger, step-siblings in the home as well, making for cramped and somewhat chaotic conditions, court heard, and the girl found the home to be dirty.
That was in comparison to her father and stepmother’s larger, tidier home in another province, the judge said.
Before the girl’s trip to visit her father in late 2020, Brittain said, she told her mother she wanted to leave New Brunswick and live with her father permanently.
Court heard the mother told her she could decide where she wanted to live when she turned 13, but the girl testified she didn’t believe her mother.
When the child was out of province with her dad and stepmom, the judge said, they’d spoken about the possibility of her moving there permanently as well, and those discussions happened before the girl reported the inappropriate incident.
“[Defence lawyer Emily] Cochrane put it to [the girl] that [her stepfather] never touched her vaginal area, but [the girl] disagreed,” Brittain said.
However, the girl also admitted that until she reported the incident, she didn’t think she’d be able to remain in the other province with her father and stepmother for good.
The child also testified that she’s much closer to her father and stepmother, and that she doesn’t feel her mother in New Brunswick gives her much attention. They argued a lot, she said.
The girl insisted the defendant had touched her, the judge said, noting she said, “[He] put his hand down my pants and into my underwear.”
But Brittain said the child couldn’t say when it happened and was vague about exactly what happened and how.
The time when a crime occurs is an essential element of an offence the Crown must prove beyond a reasonable doubt, the judge pointed out.
‘An unduly influential role’
The evidence pointing to the revised timeline came from the stepmother, he said, and that was an issue.
“This is problematic for the Crown’s case,” Brittain said.
The girl said she couldn’t remember exactly when it happened, but said because her stepmother had booked her flight in late 2020, she trusted the stepmother’s input on the timeline.
Another issue, he said, was the fact that the girl made the revelation only after the stepmother had broached the subject of “bad touches” with her.
The stepmother “had an unduly… influential role on [the girl’s] evidence, either on purpose or unintentionally,” Brittain said, noting there was a legitimate concern about the child’s testimony being coached.
The defence argued the Crown failed to meet the burden of proof beyond a reasonable doubt because it hadn’t proven when the alleged offence happened, the judge said, and he agreed.
Furthermore, he said, the girl’s quest to move from New Brunswick to the other province to what she perceived as a better life was a factor the court had to consider.
“She saw her mother as a major barrier to achieving this goal,” Brittain said.
The girl is clearly thriving with her father and stepmother in the other province, he said.
That being said, he added, that doesn’t mean he rejects the girl’s evidence or doesn’t believe her.
It’s entirely plausible the defendant could have touched the girl inappropriately, the judge said, but ultimately, after hearing the evidence, he just doesn’t know what happened and isn’t convinced with any certainty that it did.
So not only is the date of the offence not proven beyond a reasonable doubt, Brittain said, but the act itself wasn’t either. As such, he found the defendant not guilty.
Don MacPherson can be contacted at ftonindependent@gmail.com.