Charges were dismissed against a caregiver accused of sexually assaulting his disabled Red Deer client.
On Wednesday, Leo Denis Ducharme, 59, walked out of Red Deer Court of Queen’s Bench a free man after Justice Vital Ouellette determined there was no reasonable chance of convicting him, based on evidence presented by the Crown.
The judge granted defence lawyer Craig Paterson’s application for having the case dismissed — after first denying the Crown’s attempt to have a mistrial declared.
Explaining his rationale for the dismissal, Ouellette said prosecutor Jillian Brown did not enter any evidence that indicated the complainant’s state of mind on Aug. 9, 2010, when the disabled man’s mother testified she saw Ducharme stroking her son’s genitals in her home.
The onus was on Brown to prove that the complainant, who cannot speak and has limited physical abilities due to cerebral palsy, was unable or unwilling to consent to the alleged sex act.
This would mean proving he lacks cognitive function and/or the ability to communicate.
But evidence presented by the Crown indicated that the 31-year-old has cognitive abilities, having graduated from Grade 12 through a modified public school program in 2000. He can also communicate by answering yes or no questions through head motions, the movement of one arm, his eyes, body language, and by making non-verbal throat sounds.
“That ability lessened, but was still existent when he was lying down,” said Ouellette, who believes no reasonable person could come to a guilty verdict based on the evidence heard on Tuesday.
The Crown’s only witness was the disabled man’s mother. After stating for 1 1/2 years of trial preparations that the Crown has no intention of putting the complainant on the stand, Brown tried at the last minute to call him as a witness when the trial was already in progress.
This was denied by Ouellette, who considered it unfair to the defence, at that late juncture.
The judge’s refusal to allow the disabled man to be questioned on the stand was one of the reasons Brown used to justify her application for a mistrial earlier on Wednesday.
She also argued that Ouellette had prejudged the case by stressing several times that the Crown needed to prove beyond a doubt that the disabled complainant was unable or unwilling to give consent.
“How I perceived (the judge’s comments) changed from ‘How are you going to prove this?’ to ‘I don’t think you can prove this,’” she said.
Paterson disagreed with Brown’s mistrial application, saying he saw no impropriety or bias. The defence lawyer questioned whether the Crown’s real motive was getting another chance to prove the case by putting the disabled client on the stand at a second trial.
Brown denied this. But Ouellette rejected her motion for a mistrial, citing several case law examples that indicated hard evidence of bias had to be presented — not just opinions of bias — as judges are always presumed to be impartial.
Ouellette told Brown that his comments stressing the need for consent-based evidence were just restating what other judges had been telling the Crown for more than a year.
“You were aware of the issue, but took no steps to address it,” said the judge, who noted the Crown had chosen not to call an expert medical witness and decided the disabled man was not competent to give evidence — until Brown tried for a last-minute reversal.
But even then, Ouellette noted that the disabled man was allowed to sit in the courtroom to hear his mother being cross-examined — which would have disqualified him from testifying later, even it had been allowed.
The prosecution “blew it,” concluded the disabled man’s father, who cannot be named to protect his son’s identity. He considers the case an “eye-opener” for parents in his situation.
“We are not happy with this decision, after all we went through,” said the complainant’s mother, who noted that no one proved in court that her son did consent to the alleged sexual touching.
But Paterson stated it’s never up to the accused to prove his innocence, but to the prosecutor to prove guilt.
“We’re satisfied that the correct and proper decision was made” in dismissing the case, the lawyer added.
The Crown has 30 days to file an appeal.
lmichelin@www.reddeeradvocate.com