A man has been acquitted of sexual assault and sexual interference charges after the Crown failed to identify him as the same person who inappropriately touched a girl in Whitehorse in 2018.
Yukon territorial court judge Michael Cozens issued his reasons for judgement Nov. 12.
According to the decision, George Rowe was charged in October 2018 in relation to an incident that allegedly happened the month before.
His trial was held this May.
In police video statements and at trial, the complainant, a 10-year-old girl, said she’d met a man named “George” after he gave her and her parents a ride home from the food bank in September 2018.
According to the girl, as well as testimony from her mother, George frequently visited their home after that, at one point even staying there for a few days.
The mother testified George “brought stuff for the kids,” and one day, asked if he could take the girl “and buy her something that she wanted.”
The girl told police George, whom she described as an older man with white hair and a beard, brought her to his apartment and invited her to lay down on his bed with him.
“She stated that the man was trying to do sex with her with his clothes on,” the decision says.
Crown attorney Kevin MacGillivray argued there was “persuasive evidence” the girl was sexually assaulted by Rowe, noting she’d provided consistent, detailed statements and that her descriptions of the apartment matched photographs taken of Rowe’s.
However, Rowe’s lawyer Vincent Larochelle argued that at no point did the girl or her mother identify Rowe as the “George” they were talking about.
Cozens ultimately agreed with the defence, writing that there was not “sufficient evidence” to establish beyond a reasonable doubt that Rowe was “George.”
In particular, Cozens noted the police constable who arrested Rowe and testified at trial did not give concrete reasons on how or why he landed on Rowe as a suspect, other than saying he’d used a police database and the Yukon Motor Vehicles Branch’s system during his investigation.
“We know that Cst. Smee’s investigative process somehow led to Mr. Rowe as a suspect,” Cozens wrote. “But why? Based upon what? That he is an older male with white hair and beard who lives in an apartment/condo in the same area as (the girl) testified…? Was Mr. Rowe the only person who fit that description living in the area?”
There was also no evidence, Cozens continued, the constable ever got the girl or her mother to identify Rowe as the assailant, nor was the girl ever shown photos of Rowe’s apartment to confirm if it was the same place she’d described.
Cozens wrote there was “almost nothing in the way of evidence” presented at trial that linked Rowe to “George.”
“On the basis of the failure of the Crown to prove the identity of the accused as the individual (the girl) states sexually assaulted her, I acquit Mr. Rowe of the charges he is facing,” he wrote.
Cozens added that he found the girl’s evidence of “George” sexually assaulting her “compelling and very capable of being believed.”
“She was in my opinion, generally an honest, credible and, taking into account her age and other factors, a reliable witness, in particular with respect to her testimony regarding the incident,” he wrote.
He declined, however, to say whether he would have convicted Rowe had the identification issue not arisen.
Contact Jackie Hong at email@example.com