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MONTREAL — The Quebec Court of Appeal has ordered a new trial in a sexual assault case after concluding that the lower court judge based his ruling on "myths, prejudices or generalizations."

The recent high court decision involves the June 2021 acquittal of a brother charged with sexual assault and incest against his sister. At the time of the alleged incidents, between January 1996 and December 1997, the brother was 13 and the sister was 11. Neither can be named under provisions of the Youth Criminal Justice Act, and the trial took place in an unspecified jurisdiction.

Quebec court Judge Luc Joly was critical of the alleged victim for being unable to situate the events in time or state the number of assaults that allegedly occurred. Notably, the trial judge reproached the sister for not being able to provide certain details, like the clothes she or the accused were wearing when she was allegedly assaulted. 

The sister wasn't able to answer why she said her brother possessed many condoms. In response, the judge said the sister's statement was "a rather extraordinary situation for a young man who was then 13-14 years old."

Court of Appeal justices Julie Dutil, Simon Ruel and Guy Cournoyer unanimously ruled that the brother should stand trial again. 

"A criminal trial must be held before a judge who analyzes the evidence presented in a rational and objective manner, with an open mind, without relying on myths, prejudices or generalizations that have no basis in fact," the ruling, dated Sept. 29, said.

The sister filed a criminal complaint against her brother more than 20 years after the alleged acts and was the only witness to testify. She recounted several sexual acts, including one involving anal penetration.

Joly concluded that while the complainant was credible and sincere, her memories of the events were fragile, which affected her reliability and left him with reasonable doubt. 

The high court agreed with the Crown that the lower court's ruling was based on speculation, assumptions and elements not presented into evidence.

It ruled that the alleged victim's testimony should be based on "the circumstances taking into account the strengths and weaknesses that characterize the testimony" and not according to "inflexible rules, rigid stereotypes or generalizations without factual basis."

People who have experienced repeated childhood sexual abuse often present a descriptive memory on central elements but without peripheral details, the Court of Appeal said.

This report by The Canadian Press was first published Oct. 14, 2022.

Sidhartha Banerjee, The Canadian Press