The following story contains explicit details of sexual assault. Rapid access counselling is available in the Yukon at 867-456-3838. Mental health support is available 24/7 at the Wellness Together Canada hotline at 1-866-585-0445.
The Yukon Court of Appeal heard the appeal of a former teacher who was convicted of sexually assaulting a former student in the 1980s.
Paul Deuling was charged with five sexual offences and was found guilty of sexual assault against Desire Mitchell.
A previous publication ban protecting the identity of Mitchell was reversed after she made an application for it to be lifted.
In December 2022, the Yukon Territorial Court presided over by Judge Brian Neal found Deuling guilty of raping Mitchell twice during a camping trip when she was still his student in the Whitehorse school system at the time of the offence.
However, Deuling was acquitted on four of the five counts on the basis that the evidence of the complainant was either not credible, trustworthy or reliable.
Presenting to the three-judge panel at the appeal hearing on Nov. 24, Deuling’s lawyer, Richard Fowler, asked the court to overturn the conviction. He said some aspects of Mitchell’s testimonies were vague and inconsistent about who was present when the assaults were alleged to have taken place, arguing that “compartmentalization of evidence is an error in law.”
He said she provided allegations that were refuted by witnesses, noting that on cross-examined she was prompted to correct or withdraw the allegations but she declined.
Fowler said the trial judge’s analysis was inconsistent and noted that it needed to be scrutinized.
In the events leading to the rape during the camping trip, Fowler argued Mitchell’s testimonies, including if she noticed any road traffic and the weather on that day, which was between -10 C and -20 C, that she was not properly clothed for the weather and was outdoors for more than 12 hours, were “highly unbelievable.”
He added that the evidence of being cold despite living in the Yukon is not credible.
He further argued against the credibility of Mitchell’s testimony of fearing Deuling would kill her if she didn’t cooperate after seeing him skinning a bear he had hunted because she didn’t mention it in the police statement.
Fowler noted her version of being subjected to abuse by her stepmother at home, which led her to visiting Deuling in his office to seek refuge. He said there was exaggeration and clear conflict of accounts on the violence she faced at home.
He noted while Mitchell provided an objective detail of being abused, he said that is not a “rational and logical reason” for finding her testimonies credible. He said her evidence was not reasonable or plausible.
“These issues about credibility arise from evidence that are relevant.”
Fowler submitted that Neal erred in law in his assessment of credibility.
He said Mitchell made allegations against other people in her testimony, including her stepmother, principal and other teachers at the school whom she said told her to get an abortion. Much of what she had to say was denied or contradicted by witnesses.
Crown attorney Madeleine Williams asked the court to dismiss the appeal.
She said the trial judge considered all the evidence before him despite disagreement by Fowler. She added that Neal reconciled the inconsistencies in the evidence and gave a rational basis for that.
The Crown said maybe Mitchell was incorrect in what she was wearing, but she was shaken that day. Neal had said Mitchell was unshaken during cross-examination.
The judges hearing the case asked Williams if she accepted that there was a general issue of credibility and reliability with Mitchell’s testimonies.
Williams disagreed. She said the trial judge was very careful with the issue of reliability, credibility and truthfulness. She said the trial judge was careful and thorough to have convicted the accused.
The judges reserved their decision.
Contact Patrick Egwu at patrick.egwu@yukon-news.com
