The following story contains 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.
Closing arguments in the trial of Paul Deuling, a former Whitehorse teacher accused of sexually assaulting a young woman both during and after her time as a student in the 1980s, were heard on Sept. 28 and 29.
Following more than a week of testimony and evidence presentation earlier this month, Crown counsel Benjamin Eberhard argued that Deuling could not have had a consensual relationship with the young woman because he was in a position of authority over her.
The closing argument from Deuling’s lawyer, Richard Fowler, attacked the alleged victim’s credibility and honesty on the witness stand. Fowler also explained the legal standards around consent and positions of authority that were in force at the time of the alleged offences and how they differ from the standard that is applied today.
Deuling is facing one charge of indecent assault and four counts of sexual assault.
The alleged victim’s identity is protected by a publication ban.
Eberhard explained each of the counts Deuling faces and also highlighted principles established in case law including the lowered standard of accuracy regarding time, location and other details to be expected of adults testifying about events that occurred in their childhoods.
The crown counsel said the defence of consent does not apply to the first count because the alleged victim was younger than 14 at the time it is supposed to have occurred. This is the indecent assault charge that Eberhard said deals with Deuling allegedly pressing his groin against the alleged victims back while coaching sports or teaching physical education. He drew from comments the court heard Deuling allegedly made regarding the alleged victim’s developing breasts and the boys she was spending time with in arguing that the physical contact was sexual in nature.
In the remaining four counts, which are said to have occurred later in the alleged victim’s teens, the defence was free to argue that sexual activity was consensual. Eberhard argued that Deuling was in a position of authority over the alleged victim at all times including after she was no longer a student of his or playing on a team he coached. The court heard that if Deuling was exercising this authority, the consent to sexual activity was not legally obtained. The crown counsel highlighted that the alleged victim had firmly stated that the sexual activity between her and Deuling was not consensual throughout her evidence.
“These were not two people of equal power dealing fairly with each other,” Eberhard said.
Eberhard submitted to the court that the complainant had been a very reliable witness who should be believed.
In his final statements on Deuling’s behalf, Fowler argued the opposite, stating that the unreliability of the alleged victim’s testimony regarding events with no other witnesses present means that the judge must find his client not guilty.
In arguing that the complainant was not credible, Fowler drew on the differences between her accounts of abuse in her childhood home at the hands of two stepmothers and the emphatic denial that this ever happened that both of those women gave on the witness stand. He added that testimony from the alleged victim’s siblings also did not square with the claims of abuse.
Fowler argued this is relevant because the “extraordinary violence” the woman said she endured at home during her childhood resurfaced through much of her testimony as an explanation for her actions.
The defence lawyer also drew on inconsistencies between the woman’s testimony in court and a police report she gave.
He said the inconsistencies amount to deliberate lies under oath that can taint the complainant’s whole testimony and argued that the judge can’t believe anything she said if it is not clearly corroborated by another source.
“In my respectful submission, this is one of those rare cases where her lack of credibility about all that taints her whole evidence. You cannot be sure what happened,” Fowler said.
Fowler’s final submission also dealt with the different legal norms and standards that existed decades ago when the offences were alleged to have taken place. He noted the difference between Deuling being in a position of authority compared to actually using that authority to obtain consent. While modern sexual assault law doesn’t draw a distinction between the two, the laws at work in this case did.
Judge Brian Neal, who presided over the trial beginning on Sept. 12 said he would prepare a written judgement to be presented on Dec. 9.
Contact Jim Elliot at email@example.com