BY KEITH LACEY
Even though he didn't believe the testimony of the accused and found a young girl's evidence believable, a judge still found a Greater Sudbury man not guilty of raping his niece four years ago. She was 10 years old at the time.
On Monday, Justice John Poupore of the Ontario Superior Court of Justice, found the 49-year-old man not guilty of sexual assault, inviting sexual touching to a girl under age 14, and threatening death.
Northern Life is not publishing the man?s name in order to protect the identity of the girl.
The man was accused of entering the girl's room in 2001, fondling her, raping her, then threatening to kill her if she told anyone.
Even though he didn't believe the man?s version of events, Poupore said he was not satisfied beyond a reasonable doubt he was guilty and had no choice but to acquit him on all charges.
?Given the accused's exaggerations, inconsistencies and his past criminal record, I have some difficulty in believing the accused's evidence,? said Poupore, following a brief trial held several weeks ago.
?However, I am not satisfied that the Crown has proven its case beyond a reasonable doubt on the four counts of the indictment. I say this after assessing all the evidence, particularly the evidence of the accused's physical disabilities making it impossible to commit the offences as described by the complainant. This evidence is not contradicted.?
The accused suffers from serious physical injuries caused by an industrial accident in 1990. The injuries resulted in permanent damage to the nerves in his neck and loss of feeling on his left side.
Defence counsel Charles Conroy argued there were no additional claims of sexual advances or threats by the accused. He also said there were other people in the house that night who heard nothing, and it's highly unlikely she would not have cried out in pain. Finally, the accused could not have removed the girl's clothing and committed a sexual assault as described considering his physical disabilities.
Poupore said the court did not rely on stereotypes of how a girl should act or react during a sexual assault.
?Not much reliance should be put on how we think women ought to respond in these traumatic, stressful and degrading situations,? he said.
?Rather, one's response is entirely individualistic. It is the evidence of the participants that needs to be assessed and weighed, not our pre-conceived ideas of what should have happened.?
There was no corroboration of the events, but there seldom is in sexual assault trials and no weight was given to this consideration, said Poupore.
While the Crown had a solid case, he was not convinced beyond a reasonable doubt and the man was acquitted on all charges.