Ontario Criminal

Criminal Law


Sexual assault

Trial judge considered complainant’s mental development

Accused was convicted of sexual assault and touching complainant under age of 14 for sexual purpose.Accused was found to be dangerous offender and sentenced to indeterminate term of imprisonment. Accused appealed convictions and sentence. Appeals dismissed. Accused did not establish that trial judge was uneven in scrutiny of his testimony and of complainant’s. Trial judge’s reasons revealed keen awareness of issues raised about complainant’s credibility and reliability. Complainant did not get free pass from trial judge but, in some respects at least, her evidence was confirmed by other testimony and findings including condition of her cervix and anus and DNA deposits around fly of accused’s pants and crotch area of complainant’s clothes. Trial judge provided reasons for rejecting accused’s testimony that were firmly grounded in evidence and in manner in which accused testified, and there was nothing unfair, unreasonable or hypercritical in trial judge’s approach or findings. Balance of trial record did not suggest that accused’s testimony was subjected to more demanding level of scrutiny than complainant’s. Trial judge’s reasons did not reflect either inappropriately superficial level of scrutiny of complainant’s evidence or diminution of standard of proof. Despite recognized issues with complainant’s evidence, trial judge accepted her evidence on central issue of whether sexual assault occurred as truthful. Trial judge considered complainant’s mental development, understanding and ability to communicate but did not weaken standard of proof by situating evidence in that context. Trial judge was entitled to reach conclusion he did.

R. v. Radcliffe (2017), 2017 CarswellOnt 2870, 2017 ONCA 176, David Watt J.A., S.E. Pepall J.A., and M. Tulloch J.A. (Ont. C.A.); affirmed (2009), 2009 CarswellOnt 3711, P.F. Lalonde J. (Ont. S.C.J.). (Ont. C.A.); affirmed (2010), 2010 CarswellOnt 7882, 2010 ONSC 5829, Paul F. Lalonde J. (Ont. S.C.J.).

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