While a judge poked several holes in the testimony of the defendant, the unidentified man was acquitted of a fondling charge linked to a visit with extended family at a Nanaimo home nearly a decade ago. (file photo/NanaimoNewsNOW)

By Ian Holmes

judgment

Man found not-guilty for alleged sex offence in Nanaimo involving family member

Dec 15, 2020 | 5:06 PM

NANAIMO — A man was acquitted of fondling allegations stemming from a visit with relatives in Nanaimo.

The BC Supreme Court decision from Madam Justice Heather MacNaughton on Tuesday, Dec. 15 followed a trial focused on two days believed to be over the Christmas holiday season in 2010 at a Nanaimo home.

The acquitted man, 73, was charged with sexual interference of a person under 14. The complainant, who now identifies as male, was 10-years-old at the time.

The identities of all of the parties can’t be named due to a sweeping publication ban.

Justice MacNaughton relayed the victim’s evidence of playing a multiplayer computer game with his brother and the accused.

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The complainant testified back rubs from the great-uncle moved from his back to under his chest area, which continued after moving away from the accused.

The alleged inappropriate touching happened over an extended period of time during the course of two days.

The father of the complainant testified he saw the man’s hand on his child’s shoulder twice, which was removed while walking into the basement both times.

He testified it made him feel uneasy since their family wasn’t “touchy and feely.”

An “awkward conversation” was initiated by the father, who testified he was not comfortable with the defendant’s hand on his child.

“[They were] getting too old for that anyway” the accused responded when confronted; a reply the father said he found odd.

There were no independent witnesses to the touching in question.

Court was told the victim’s family later stayed overnight at the Lower Mainland-area home of the accused.

The complainant told his father in 2018 the full extent of what allegedly happened and filed a formal report to Nanaimo RCMP last year.

Justice MacNaughton noted a hand on a shoulder and draped over the chest does not amount to illegal touching.

The accused, who has no prior criminal record, testified in own his defence, strongly denying the allegations.

Despite finding him not guilty, Justice MacNaughton rejected much of his testimony.

She noted he told court he remembered the set up of the home’s games room, including the specific dimensions of the furniture with detail almost a decade later, but couldn’t recall specifics of being confronted by the complainant’s father.

“It is unlikely that a remark of unwanted touching would not have ‘stuck around’ in (the defendant’s) memory, particularly because of the impact such an allegation would have had on (his) reputation in the community, which he said was important to him.”

Justice MacNaughton charged the accused of exaggerating and tailoring the basement’s configuration to appear less likely he’d have the ability to engage in sexual touching.

The complainant’s testimony was found to be truthful to the best of his ability, though he couldn’t recall what time of year the incident transpired.

Justice MacNaughton said the complainant’s evidence lacked details of how the accused reached into his shirt.

“It’s not the sort of peripheral detail which a child might not recollect,” she said.

She told court it would have been “very risky” for the defendant to fondle the complainant and it’s unlikely he would have done so.

ian@nanaimonewsnow.com

On Twitter: @reporterholmes