A Yukon territorial court judge found a Dawson man not guilty of sexual assault, citing inconsistencies in the evidence both the complainant and the accused gave during trial.
In a written judgment released Feb. 8, Judge Heino Lilles also criticized the RCMP’s handling of the investigation.
The accused, the complainant and the complainant’s sister all testified during trial. A publication ban prohibits publishing any information that would identify the complainant, which includes the names of her sister and the accused man.
The charge stems from a night in November 2015 when the three were drinking at the Westminster Hotel, also known as the Pit, in Dawson City. The accused was at the time the partner of the complainant’s sister.
They had all started drinking early that Friday before going to the bar.
Each witness’s evidence of what happened after that differed.
The complainant said she had been drugged at the Pit, “presumably to explain her behaviour, her incomplete recall of the events of that evening, and why the bartender refused to serve her,” Lilles wrote.
The complainant testified she didn’t remember leaving the bar but remembered waking up in her bed.
The accused started to undress, she testified, and she told him to leave. She said she tried to move but her body was “frozen.”
The accused forced himself on her three times before running away from her room as her sister arrived home, the complainant testified.
The complainant’s sister told the court she was upset that night because the accused and the complainant were dancing together at the bar and she felt left out.
When she heard her sister and the accused had left together by the back door “she rushed home, apparently suspicious that something was going on between (the complainant) and (the accused),” Lilles wrote.
When she arrived home, the complainant’s sister saw the accused “dash out” of her sister’s bedroom. She testified she pulled the blanket off her sister, who was naked, and yelled at her, but her sister didn’t say anything.
Lilles wrote the complainant testified she denied having sex with the accused to which her sister said, “Two people I love the most in my life (I) caught cheating.”
The accused testified he danced with the complainant that night at the bar and that she was “dancing provocatively with him.”
He testified there was “ongoing mutual physical contact” when they walked home and that she called him to her bedroom.
He told the court there was consensual kissing and fondling and that the two cuddled. When his partner got home he testified she yelled “You had better not be doing what I think you are doing,” and he ran to his room.
The judge said he didn’t believe the accused’s claim that nothing besides kissing and fondling happened.
“It could serve to minimize the serious of the sexual assault or alternatively, it is an attempt to recover his relationship with (the complainant’s sister) and his children by positing that sexual intercourse had not taken place.”
Lilles also zeroed in on the police’s handling of the investigation.
Two RCMP officers interviewed the complainant in the presence of her sister. One of the officers acknowledged during the trial it was “neither her usual practice nor best practice,” Lilles wrote.
That only became problematic because the complainant’s sister was a witness too.
“As a result of the conflicting evidence presented at the trial, in hindsight, it was very poor practice,” Lilles wrote.
He also noted that despite the fact the complainant went to see a doctor three days after the alleged assault — at the suggestion of police — no evidence from that examination was filed in court.
“Apparently no effort was made by the police to speak to the doctor or to subpoena the medical records relating to these samples,” Lilles wrote.
While inconsistencies in testimony are to be expected because of the amount of alcohol involved that night, Lilles wrote, the judge said he had concerns with the complainant’s evidence.
She wasn’t able to recall any interactions with the accused at the bar but provided many details about her bedroom and herself as the accused came into her room.
Lilles also questioned why she didn’t tell her doctor about the sexual assault when she came in to take samples related to her suspicion she was drugged. She had an “apparent motive,” he wrote, to claim she didn’t consent to the sexual activity.
“Her explanation that she did not consent would place her in a better light with her parents and could also serve to recover or improve her relationship with her sister,” Lilles wrote.
Contact Pierre Chauvin at firstname.lastname@example.org