Crown must prove disabled man unable to give consent

The case of a Ponoka man accused of sexually assaulting a client with cerebral palsy hangs on the Crown proving that the disabled man was unable to give consent.

The case of a Ponoka man accused of sexually assaulting a client with cerebral palsy hangs on the Crown proving that the disabled man was unable to give consent.

Red Deer Court of Queen’s Bench Justice Vital Ouellette cautioned Crown prosecutor Jillian Brown on Tuesday that the onus is on her to prove beyond a reasonable doubt that the 31-year-old disabled Red Deer man was unable or unwilling to consent to a sex act.

Leo Denis Ducharme, 59, stands accused of sexually assaulting a client while working as a caregiver at a private home in Red Deer.

The de facto complainant, who can’t be identified, has had cerebral palsy since birth and is unable to talk or walk. He can make some limited gestures with one hand, a “rudimentary sign language” understood by family members, and has a constricted ability to nod or shake his head.

But Ouellette pointed out that the complainant did graduate from Grade 12 in 2000, albeit in a modified public school program. “He has mental capacity and the ability to (indicate) yes or no.”

His mother testified that her son has about 25 per cent of the normal range of head motions — and even less so when lying down as he was during the alleged incident on Aug. 9, 2010.

The mother, who can’t be named to protect her son’s identity, told court she twice saw Ducharme making unusual and suggestive arm motions while standing over her disabled son as he was lying prone in his bed.

Both times, she said she witnessed Ducharme from behind, as he was making these elbow movements. She was in another room, and when Ducharme heard her approaching, she said he stopped the repetitive motions.

The third time she saw Ducharme behaving in this “suspicious” manner, the mother said she was able to get to the foot of her son’s bed without Ducharme noticing her approach.

That was when, she told the court, she saw the caregiver “stroking” her son’s genitals.

“I asked him what he was doing and he said he was trying to make him feel better,” she said, adding that her son had recently been in hospital with kidney stone problems.

The mother recalled that she told Ducharme “that was sex assault and not part of the job he was supposed to be doing.”

She had hired the caregiver 10 months previously to come to the house for one hour Monday to Friday morning to help get her son dressed, lift him out of bed and into his wheelchair.

Ducharme also visited with the disabled man to provide some respite while his mother walked the dog.

On cross examination, Ponoka lawyer Craig Paterson, suggested that Ducharme’s actions were misconstrued and he could have only been wiping the man’s genitals, as the disabled client sometimes had incontinence problems.

“I’ve never used that motion to clean him,” said the mother, who had earlier testified that Ducharme was not expected to bath her son with a washcloth on his own — although sometimes she did ask Ducharme to assist with this in her presence.

“Perhaps your style of washing may be different than somebody else’s,” responded Paterson.

The defence lawyer also raised the possibility that consent to a sex act could have been given by the disabled man by nodding his head.

The question of the complainant’s mental competency was left unanswered on Tuesday.

While some people who are physically stricken with cerebral palsy are not mentally disabled, the mother said her son was only evaluated as an elementary school student and she did not know his “mental age.”

The Crown can’t call a medical expert this late in the trial. And Brown declined to comment on why a medical opinion was not sought earlier.

However she’s the third Crown prosecutor to work on the case, with one bowing out due to a pregnancy leave and another one taking it on temporarily.

A late attempt by Brown to put the disabled man on the witness stand earlier raised objections from Paterson and was ultimately refused by Ouellette.

The Justice said the Crown had indicated for the last year and a half — including in a letter written less than a week ago — that it had no intention of doing this. He ruled it would be an unfair move and not helpful at this juncture.

The trial continues on Wednesday.