(file photo/paNOW)

By Susan McNeil

Appeal allowed

New trial ordered in sex assault of 5-year-old in Battlefords area

Dec 16, 2024 | 2:34 PM

The Saskatchewan Court of Appeal has ordered a new trial for a man who was previously convicted of sexually assaulting a five-year-old girl in a historic case from 2013.

According to court documents, the girl, identified as N.A., lived with her dad and a sibling in a three-bedroom house on a Saskatchewan First Nation. The accused is her great-uncle – called D.A. by the court — who spent a lot of time in the home over the years.

In 2013, two siblings moved into the house with N.A. who was five at the time and her dad. With them came some bunkbeds for them to sleep on.

After assembling the bed, the girl’s dad, D.A.and some others, including some other men, had a barbecue then began drinking.

N.A. went to sleep in her bedroom on the main floor and awoke at midnight to find a man in her bed, touching her sexually.

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She identified the man as D.A., left the room and went and climbed into the top bunk and went to sleep between her two siblings, who were sharing the bunk.

D.A. then came in the second room she was in, laid down on the bottom bunk and went to sleep.

N.A. never spoke about the assault for three or four years until she heard a sibling talking to an adult about how she had been sexually assaulted by some boys in the community.

She then told her grandmother and named D.A. as the abuser. The grandmother said she reported it to RCMP but no action was taken. D.A. then told her mother about the assault and again said it was D.A. These reports were around 2017 and again, nothing happened.

In 2019, at age 11. N.A. reported the assault once more, this time to a guidance counsellor, who called the RCMP. D.A. was charged and by the time the trial began, N.A. was 14 years old.

The trial judge convicted D.A. and sentenced him to just under four years in prison.

He appealed on several grounds but only one was successful and that was the fact that the trial judge accepted the victim’s prior, consistent statements, identifying D.A.

The accused said the judge should not have relied on those to bolster her identification of who had touched her. The Crown said it should be allowed so the trial judge could assess the reliability of N.A.’s testimony.

“There is no doubt that the trial judge leaned heavily on N.A.’s prior consistent statements when determining the reliability of her identification of D.A. The question is whether he erred in doing so,” wrote Honourable Justice Jerome A. Tholl for the Appeal Court.

The fact that N.A. had identified the same perpetrator several times does not mean she was accurate to start.

“A witness cannot prop up their own testimony through testifying to their previous statements or having others do so for them. Self-corroboration is not permissible,” wrote Tholl.

The conviction was quashed and a new trial ordered.

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susan.mcneil@pattisonmedia.com

On BlueSky: @susanmcneil.bsky.social