S. McNaughton

In a judge-alone criminal trial involving multiple intrafamilial sexual offence allegations, the court assessed the evidence of child complainants and an adult complainant describing abuse said to have occurred during childhood.

Applying the principles governing assessment of children's evidence, the court accepted the evidence of two complainants on the core acts of sexual touching, despite inconsistencies on peripheral details and timing.

The court rejected another complainant's allegation because stark differences between two statements and the possibility of inadvertent tainting after family discussions created a reasonable doubt.

Findings of guilt were entered for sexual interference and sexual exploitation relating to one complainant, and for one count of sexual interference relating to another; the accused was acquitted on the remaining counts.

The Crown applied to admit similar act evidence of alleged sexual misconduct by the accused towards another complainant.

The accused had previously been tried and acquitted of the charges relating to that other complainant, although the trial judge in that case noted the allegations were likely true on a balance of probabilities.

The court dismissed the Crown's application, holding that the doctrine of issue estoppel prevents the Crown from re-litigating an issue determined in the accused's favour in a prior criminal proceeding, even if decided on the basis of reasonable doubt.

Admitting the evidence would violate trial fairness and judicial finality.