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The fate of a man accused of sex crimes against a young boy will be decided Monday, after lawyers gave their final submissions Friday morning.
The man, who can only be identified as T.B. due to a publication ban, is accused of months of inappropriate touching and sexual assaults on a young boy in the South Okanagan in 2011 and 2012. What has gone undisputed is the two slept in the same bed at T.B.’s place, and that the two were close friends for some time, despite a 10-year gap in their age.
The boy claimed T.B. put his hand down the boy’s pants while the two shared a bed, that T.B. ejaculated on the boy and that T.B. penetrated the boy anally.
In closing remarks, defence lawyer Don Skogstad pointed to inconsistencies in the boy’s testimony, while Crown lawyer John Swanson said T.B.’s story “doesn’t make sense.”
While the two had rather disparate takes on the trial and the pending verdict, they both relied on a single piece of case law, known as R. v. W.(D.), a Supreme Court of Canada decision considered the benchmark for sexual assault cases relying largely on contradictory testimonies.
According to that decision, a defendant can be found to be an unreliable witness, but the defence can still demonstrate reasonable doubt in their guilt.
In this case, the trial heard testimony from both the boy and from T.B., as well as from the boy’s parents. But both lawyers focused on the testimony from the boy and from T.B.
With respect to W.(D.), Skogstad noted the Crown had to effectively show reason not to believe the the defendant’s testimony.
“I’m having trouble thinking of one myself,” he said. “I’m going to suggest that what (Swanson) might say is ‘look at this, it’s the injunction of the events, the association. Young guy, old guy, together, sleeping in the same bed.’ So from that we’re supposed to make out a criminal offence,” Skogstad said, adding he didn’t buy it.
Swanson did follow that line in his closing submissions, attempting to drive home that it was uncharacteristic of T.B. to become friends with a boy half his age.
“He admitted that prior to his relationship with (the boy) he had no friends who were children. No friends who were half his age. No friends who were nine or 10 years old,” Swanson said.
“He would like you to believe that on this particular occasion he was actually trying to develop a friendship with a nine or 10 year old boy. T.B. doesn’t say ‘well, wait a minute, I was trying to be a big brother.’ T.B. doesn’t say ‘I was trying to be a mentor.’ T.B. doesn’t say ‘I was trying to teach him how to be a man.’”
Swanson also pointed to T.B.’s testimony that when the boy slept over, he only began sleeping on the bed with the boy after it had become “normalized” through sharing a mattress at the boy’s father’s place and at the boy’s grandparents’ place.
“He knew it was wrong, so he needed to set up an excuse for why he would move from the couch into the bed,” Swanson said. “It didn’t become ‘normalized.’ It was wrong from the very beginning and it was wrong up until the end.”
Skogstad characterized the boy as shifting blame from himself in any way he could when he is found to be in the wrong.
“He demonstrated that to you. So, what was the clearest case of that? It has to do with the iPod,” Skogstad said, referring to one of numerous gifts T.B. gave to the boy.
The boy had claimed the iPod had gone missing or been stolen, when a string of pornographic downloads were charged to T.B.’s credit card, which was linked to his Apple account.
But Skogstad said the boy’s own mother testified to finding the iPod later on, and said it was evidence that the boy diverted blame for his own misdeeds.
Swanson painted the present as “grooming” behaviour by T.B., referring to when a perpetrator makes an emotional connection with a child victim to lower their defences against abuse.
When it came to the boy’s claims against T.B., Skogstad pointed to the boy’s “inappropriate behaviour” with another boy, which he said was brought up when the boy’s father brought him to Vancouver Island in December 2012.
But Swanson noted a child’s testimony cannot be evaluated as one would evaluate an adult’s testimony — one can expect some inconsistency in a young boy’s testimony, especially when that testimony is several years after the incident.
“In my submission, the iPod issue is really a red herring,” Swanson countered. “Whether (the boy) lost his iPod or it was stolen from in him January of 2012 or whether it was stolen from him later or misplaced later really doesn’t go to the key issue. The key issue is to what extent was T.B. exploiting (the boy).”
On those issues, Swanson argued, the boy was steadfast in his testimony.
Justice Alison Beames said she would not have time to properly articulate her reasons for her verdict by Friday afternoon. She is expected to deliver her verdict Monday morning.