» EDITOR’S NOTE: This story contains graphic elements that may be upsetting to some readers.
A judge has found a man guilty after a trial of sexually assaulting his niece when she was as young as five years old.
At the same time, the man was also acquitted of sexual interference, sexual exploitation and sexual assault in relation to another one of his nieces.
"When dealing with cases of sexual assault, inconsistencies in the evidence of the complainant are to be expected. The credibility of the complainant and the accused is therefore critical," Justice Scott Abel said in his decision on Monday in Brandon Court of Queen’s Bench.
"As a result, judges must take particular care in assessing the testimony of the parties and the credibility of all witnesses based on the evidence or lack of evidence. It is not a credibility contest between the complainant and the accused, but rather whether, in the end based on all of the admissible evidence, the Crown has met the burden upon it to prove the charges beyond a reasonable doubt."
The man, whom The Brandon Sun is not naming in order to protect the identity of the victims, went to trial in April for the charges, which stem from the 1990s — when the first victim was approximately five years old — and between 2008 and 2016 — when the second victim would have been between the ages of five and 13.
Both girls testified their uncle had touched them inappropriately a number of times when they were younger during family get togethers, Abel summarized, including touching their vaginas over top of their clothing and at different times laying on top of them and gyrating.
The first victim recalled one instance occurring when she was visiting her grandparents and had gone into the guest room to get a doll.
The accused followed her into the room, hugged her and told her she was a good girl, she testified, and said that he wanted to "show her what good girls do to show love."
The man kissed her on the cheek and touched her backside before sliding his hand to her front and touched her vagina over her clothes.
He then led her over to the bed and climbed on top of her, she testified, continuing to touch her while gyrating on her body.
The girl remembered the man grunting and groaning until she heard her father talking in the hallway outside the room, which is when the man got off of her and hid between the bed and the wall.
He then told her she was a good girl and not to tell anyone what had happened because they would be mad, she testified.
She also recalled other incidents of the man touching her inappropriately when she was around six years old, while swimming or when he would carry her on top of his shoulders.
The victim said she eventually told her sister what had happened when she was 14 years old, a conversation her sister testified that she remembered having.
The second victim testified the man had touched her numerous times between the ages of five and 12.
She remembered the man picking her up weird at times, rubbing her vagina over her clothes as he did so, Abel summarized.
The man also laid on top of her, she said, sometimes when she was on her back and other times when she was laying on her stomach face down.
When confronted later on by her aunt, the girl testified she initially denied that anything had happened, but once she found out something had happened to her cousin as well — the other complainant — she acknowledged the incidents had happened.
The man also took the stand during trial, adamantly denying ever touching either of the girls or laying on their bodies.
He told the court he didn’t pay much attention to them, other than occasionally teasing them or pretending to sit on them when they were on the couch. He also testified that he was never alone with either girl.
The man testified that 10 years ago he attempted to "fool around" with his sister-in-law, who rejected his advances.
The accusations started at the same time his other sister-in-law found out about his indiscretion, he said.
In relation to the second victim, Abel said he must acquit the man of sexual exploitation as the victim did not meet the definition of a young person as per the Criminal Code.
The definition of a young person for sexual exploitation is someone between the ages of 16 and 18, as per the criminal code. The victim in this case was younger than that.
However, even if she did meet the definition, Abel said the man was also not in a position of trust or authority over the victim and the victim was not dependent on him, which is a key factor in the charge of sexual exploitation.
As for the charges of sexual interference and sexual assault in relation to the second victim, Abel said he was unable to decide who to believe and must acquit.
"(The second victim’s) lack of detail or details muddied together is not concerning. … However, the complainant admitted to not being truthful at the preliminary inquiry," Abel said, adding she also contradicted evidence heard in the accused’s testimony as well as a witness testimony.
"I am not confident I can accept the evidence of the Crown of the assaults taking place."
However, Abel said he did accept the evidence surrounding the first victim in relation to the incident that occurred in the guest room and convicted the man of one count of sexual assault.
A sentencing hearing is expected to be scheduled in August.
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