Crown: M. Denomme, Assistant Crown Attorney, Toronto
Defence: Craig Penney, Criminal Defence Lawyer, Toronto
¶ 1 THE COURT: In a case such as this, the Court is faced with an extremely difficult decision. There are, basically, only two witnesses before the Court, and their stories are extremely different. For each of the parties before the Court, the situation is one of extreme personal involvement, personal embarrassment, and almost anguish. The anguish for the accused is that he stands accused of a minor sexual assault. Something teenage boys, or adult men, are not supposed to do. It did not result in any physical harm. There is no bodily injury. But if it occurred, it causes in our society, extreme anguish. The charge for him is extremely difficult. The situation for the alleged victim is equally anguished. She has had to come to Court to talk publicly of things which teenagers may talk about among themselves, but certainly never want to talk about publicly.
¶ 2 One of the things that I wrote during the course of the trial today is that the Court process for a complainant is so often so much worse than the attack upon her. Now, her alleged responses to the sexual touchings of this young man were, "Ew (ph). It's yucky. Don't do that." In my mind, these were normal rational responses, indicating that in her mind something inappropriate had occurred, but it wasn't the end of the world. Today is much closer, in mind, for the complainant, to the end of the world than a year ago. Putting a woman, or a man, through what she has gone through today, principally on cross-examination, would lead many victims to say, "It isn't worth it to come here. I will just keep my mouth shut." It is not only today for each of them coming before this Court. I would imagine it is constant weeks of worry that builds up towards today. As I say, today is a harrowing day, and the aftermath of it after today will continue on.
¶ 3 As I said at the start, this is an extremely difficult decision. The law requires that the Crown prove its case beyond a reasonable doubt. That is an extremely high standard. For those of you who watched the O.J. Simpson proceedings, you know that the criminal law standard was much higher than the civil law standard. In effect, Mr. Simpson was found responsible for the murder of two people in a civil suit, and not responsible because of reasonable doubt in a criminal suit. And, in Canada, if anything, our standard of reasonable doubt may be even higher than it is in the United States. It means, basically, that I have to be convinced, in effect, beyond almost any doubt. And I am not. I am just not sure what happened on that day. This is not to say that I disbelieve [the complainant]. It is to say that I cannot believe her enough. This is not to say that her parents cannot believe her story. Because they certainly can, as can all her friends. It is only to say, in the high standard that is required in this Court and in all Courts, the case hasn't been proven beyond a reasonable doubt.
¶ 4 If I were a surgeon and I had to make a decision whether to operate on either [the complainant] or the accused on the basis of today's evidence, I would be very reluctant to get out my surgical knife. I would want some other evidence.
¶ 5 I would remind those in Court that you know much more than I do. The laws of evidence are very strict. You have heard this. You have heard this from other people. You have heard other things about the day. You have talked about it, I am sure, with other people. I do not have that benefit or that detriment. I have only, basically, the evidence of the two witnesses before me, and each of them was credible.
¶ 6 At this time, therefore, the charge is dismissed.
