Kelly Eberhard

The Crown appealed an acquittal on a sexual assault charge involving a young person respondent and a child complainant, arguing that the trial judge approached the child’s evidence too critically, relied on conjecture about timing, and invoked stereotypes concerning disclosure.

The appeal court held that the trial judge correctly instructed herself on the law governing child witnesses, credibility, reliability, and the burden of proof, and was entitled to treat material inconsistencies as bearing on reliability.

The court also held that the trial judge's concerns about timing were grounded in the evidence and were not the decisive basis for the acquittal.

The appeal was dismissed.

Sentencing for sexual interference and invitation to sexual touching involving repeated sexualized touching of a child over a period of years in a family-friend setting.

The court emphasized the primacy of denunciation and deterrence in child sexual offence sentencing, citing contemporary appellate guidance that such offences are violent crimes causing profound and lasting harm.

Despite finding high moral culpability and recognizing that jail would ordinarily be required, the court treated the pandemic, the offender's age, and significant health conditions as exceptional circumstances justifying a conditional sentence.

A sentence of two years less one day to be served in the community under house arrest, together with probation and multiple ancillary protective orders, was imposed.