A man accused of sexually assaulting a teenager in her bed following a wild party involving heavy drinking was acquitted Monday, even though the judge said there?s a good chance the accused is guilty.
However, strong suspicion does not meet the legal test of proof beyond a reasonable doubt during criminal proceedings and the Crown had not sufficiently proven the case against Eric Dubien, 22, said veteran Justice Guy Mahaffy.
?If I were to enter a conviction based on the evidence submitted...I would never feel comfortable,? said Mahaffy in acquitting Dubien.
Mahaffy said he had ?no doubt whatsoever? the female teenage complainant was sexually assaulted the night in question, but there was insufficient evidence to prove Dubien was the man responsible, said Mahaffy.
There was heavy drinking by numerous males at the party and the complainant could give no clear identification of the person responsible for the sexual assault.
If this were a civil proceeding, where the test for conviction is based on the balance of probabilities, then he would not have a difficult time registering a conviction, but there are too many inconsistencies in the Crown?s case to register a criminal conviction on such a serious charge, said Mahaffy.
Court heard the during the evening of Sept. 14, 2002, the complainant and several friends were at a party where ?everyone was drinking heavily?.
The complainant had been out of the house for a large part of the evening to attend a bonfire and went to bed shortly after returning to the residence in the early morning hours.
She awoke to find a man sexually assaulting her for about 15 minutes, she testified to police during a video statement she gave four days after the incident.
However, there were a number of concerns from the video, said Mahaffy.
The girl was not notified of the consequences of not telling the truth even though the video statement was not made under oath and the importance of recalling only what she remembers and not what others told her about that evening was not presented to her, said Mahaffy.
The girl?s stepmother also made comments during the police videotape about the accused?s drinking habits and other important factors the complainant would not have known about unless informed by others, said Mahaffy.
?This raises a real concern if all the statements were from recollection or filled in by others...this is a very real concern from my point of view,? he said.
The ?most disturbing detail? is the complete lack of questioning about whether anyone else at the party might have been responsible for the sexual assault, said Mahaffy
There were a number of young men at the party who had all been drinking heavily and the complainant admitted she never got a good look at who attacked her. Yet Dubien was singled out as the only suspect, said Mahaffy.
Dubien came across as a believable witness and even though he admitted to opening the door to the girl?s room that night, he denied going inside.
Mahaffy ruled he did believe Dubien uttered the word ?sorry? to the girl?s brother the next morning, but his explanation of apologizing for opening the door is just as believable as suggestions he said sorry for committing a criminal act.
Once stressing he believed the complainant was telling the truth about the assault, convicting Dubien based on all the evidence would leave him ?feeling very uneasy,? said Mahaffy.
?Keith Lacey
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