The young man, who was accused of having assaulted his younger daughter during the holiday season, reached his majority in November of that year. The victim was able to identify this date, since she had in her possession an electronic tablet that her family had received, according to her, on the Friday before Christmas. The complainant believed that the device had been returned to the company around January 2.
However, the day after his son’s trial, the father of the victim and the accused presented an email as new evidence mentioning that this famous electronic tablet would have been in the family’s possession in October… while the accused was still a minor.
“The presence of this device in the accused’s home may seem banal,” judge Jean-Guillaume Blanchette said in his 12-page decision. But this is not the case. For the complainant, this is a significant event, since the arrival of this item at their home, combined with the Christmas holidays, helps her to place in time the attack that she says she suffered. As the accused is a minor between the time his father receives the email and [la date du 18e anniversaire de l’accusé]a question of jurisdiction then arises.”
Credibility
For the judge, the accused was not credible during his testimony. “His version is not believed and, in itself, does not raise reasonable doubt in the mind of the Court,” assured Judge Blanchette.
According to the magistrate, the accused “has very few details to provide about the disputed day”. “In the vast majority of his answers, he mechanically repeats that he has no memory,” he reported.
“This appears quite surprising,” considered the magistrate. Indeed, he relates having offered to his sister to draw it explicitly […] what she would have accepted. They went to the latter’s room and she then allegedly pulled down her “legging” pants as they came face to face. This would be the one and only time such a situation has occurred. However, how could a situation so unusual, even twisted, leave the accused with so little memory?
He described the accused’s memory as “selective”, citing a few examples.
It was the testimony of the accused’s father that convinced the judge. The father “gave disinterested testimony and he seemed anxious to inform the Court well,” Judge Blanchette believed. He did not contradict himself and he was consistent.”
“This evidence is likely to raise reasonable doubt in the mind of the Court as to the date of the events. […] It is not frivolous to think that it is possible that the device was in their home before the accused came of age. The complainant’s certainty as to the date they took possession of the device is therefore shaken by this evidence,” he ruled.
For the rest
In theory, since the indictment was withdrawn and the individual was not acquitted, the young man could be charged again before a youth court, confirms Legal Aid lawyer, Me Samuel Bouchard. Moreover, there is no limitation period. “The Crown could lay charges in 10 years. But I don’t think the prosecution would take that long to make its decision. I believe he will be proactive. Once the decision is made, we very rarely see a change in position, unless there is new evidence or additional elements,” summarized the defense lawyer.
The prosecutor for criminal and penal prosecutions in the case, Me Raphaëlle Samson, now has two choices: to file a new charge in the Youth Chamber or abandon the proceedings. “It’s a decision that I will have to make in the coming days,” she confirmed.
As a youth, the accused would face a much lesser sentence. In the Criminal Chamber, the minimum sentence is five years when someone is found guilty of incest. In youth, there is no minimum sentence. For Legal Aid lawyer Me Samuel Bouchard, “these are major issues”.
“If my client is ultimately accused as a youth, he will not face this sentence,” analyzed Me Bouchard. We can consider this as a certain victory. It’s at least one less stress.”
In defense, we believe that this file contained several particularities. The fact that doubt about age was raised after the trial is extremely rare. “Most of the time, we’re going to know up front. Often in these situations, it is a party that takes place for the accused’s 18th birthday and we wonder whether the offense would have been committed before or after midnight,” he described.
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