Acquittal in sexual assault case doesn't mean system 'broken,' judge says

CORNER BROOK, N.L. — A Newfoundland judge is making a spirited defence of how courts handle sexual assault cases, after acquitting a man despite finding the complainant credible.

In a new ruling, Judge Wayne Gorman described the tricky balance of determining guilt in cases where evidence pits the word of the complainant against that of the accused.

A young woman had alleged that her former employer repeatedly sexually assaulted her by touching her buttocks, and said the unwanted touching happened "too many times to count" in 2016 and 2017.

The employer denied ever sexually touching the woman.

Gorman said he found the complainant credible and suggested that he believed her story, but ultimately acquitted the man because the Crown did not convince him beyond a reasonable doubt.

In his ruling, the judge made a case for the integrity of a justice system that considers all versions of events.

"It is important to understand that when a verdict of not guilty is rendered by a trial judge it does not mean that our criminal trial process is 'broken' or that it has 'failed' the complainant. It is not necessarily even an indication that the trial judge disbelieved the complainant’s evidence," Gorman wrote in a recently released provincial court ruling.

"A criminal trial never constitutes simply choosing between competing narratives. To take such an approach would be contrary to the presumption of innocence and the burden of proof."

Gorman wrote that the decision cannot be based on whose story the judge believes more, but on the totality of evidence if individuals' stories contradict each other.

At the same time, Gorman stressed the importance of the public's understanding and interpretation of judges' rulings.

"By placing his or her reasons in writing a trial judge affords the community an opportunity to fully understand the judge’s reasoning process and to therefore reach an informed decision as to the quality, or lack thereof, of the trial judge’s reasons for judgment."

The ruling addressed the nuances of interpreting a witness's credibility, especially under the stresses of a courtroom in sensitive cases like sexual assault.

As an example, Gorman referenced moments in cross-examination when the complainant answered questions sarcastically.

The judge wrote he did not view this as damaging to her credibility considering the pressures of the situation.

"Every witness is different. Some find cross-examination, in particular, to be a frustrating experience," Gorman wrote.

"To view impatience or sarcasm as always reflecting a lack of credibility would constitute turning a trial into a less than human process."

In the case, the woman eventually quit but asked for her job back the next day. She also argued her record of employment should state she was "laid off" rather than "quit."

Gorman wrote that he found her behaviour understandable. In her mind, she was forced to leave her job because of her employer's behaviour, making her resignation involuntary.

The woman had said he also made suggestive comments, and asked her to lift up her blouse.

The judge said she lived in an area where jobs are scarce, explaining why she stayed at her job without complaint for several months. 

The judge also wrote that some of the employer's testimony raised red flags.

The man said he never spoke to the complainant about anything other than work, even about the weather. Gorman found this was "unlikely" considering the small size of the staff and how often they saw each other.

But the not-guilty ruling arose from doubts raised by contradictions in the totality of evidence, he said.

Testimony from the accused and complainant "(could not) be reconciled," being "starkly different in nature and content," so the judge decided he had to follow the Supreme Court of Canada's precedent and rule based on doubts raised by the employer's steadfast denial.

"Though I have concerns about the veracity of some of (the employer's) evidence, I am not able to reject the essence of it. I cannot articulate a rational basis to reject it because no such basis exists," Gorman wrote. 

"I hasten to add that this does not mean that I found (the complainant's) evidence to be unreliable or untruthful," he wrote.

"This is not the question a trial judge in a criminal trial must ultimately answer."

Other employees had said they did not witness such behaviour from the employer, but their shifts did not often overlap with the complainant's.

Partial video evidence submitted by one employee, a relative of the accused, never showed him in the area where the complainant said much of the abuse happened.

- By Holly McKenzie-Sutter in St. John's, N.L.

The Canadian Press

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