R v. Keyes, 2013 NSPC 25

PROVINCIAL COURT OF NOVA SCOTIA Citation: R v. Keyes, 2013 NSPC 25 Date: 20130408 Docket: 2400582-84, 2401349-50, 2401354-56 Registry: Kentville Between: Her Majesty the Queen v. Douglas Keyes Restriction on publication: s. 486.4 Criminal Code name of complainant or information leading to identity IDENTIFYING INFORMATION HAS BEEN REMOVED Judge: The Honourable Judge Alan T. Tufts Heard: October 26, 2012; January 4, 2013 in Windsor, Nova Scotia Charge: s. 271 Criminal Code x 4 s. 153(1) Criminal Code x 4 s. 152 Criminal Code x 2 Counsel: William Fergusson, Q.C. for the Crown Joel Pink, Q.C., for the defence

By the Court : INTRODUCTION [ 1 ] The accused is charged with offences under s. 271 , s. 152 and s. 153 of the Criminal Code . These charges include allegations of sexual assault, invitation to sexual touching and sexual exploitation. The events giving rise to these allegations took place in Chester, Lunenburg County; Halifax, and Gypsum Mines, Hants County – all in Nova Scotia. These charges are included in five separate sworn Informations before the Court, which include other charges under the Criminal Code not mentioned above. This decision deals only with those charges under the sections mentioned. Attached as Appendix “A” is a

schedule of the details of the various offences charged. [ 2 ] It is not necessary at the outset to detail the particulars of each charge and the elements of each alleged offence because the central focus in this proceeding is credibility. I will return to particularize each allegation later in my reasons. BACKGROUND [ 3 ] The accused is the principal of a high school in Windsor, Nova Scotia. Before that he was a guidance counsellor and vice- principal at Windsor Regional High School, West Hants Regional High School and West Hants Middle School.

The complainant was born May […], 1985 and was a student at Windsor Regional High School and first met the accused when he was in Grade 7. This was in the period September 1998 to June 1999. [ 4 ] The complainant had a difficult family life and sought help and guidance from the accused when the accused was his guidance counsellor at the school. As a result of this the complainant went to visit the accused at his home in Gypsum Mines as well as the accused’s family cottage in Chester. The timeframe for these visits was very much in dispute during the trial proceeding.

The complainant’s relationship with the accused grew over the years to the point that eventually the complainant moved into the accused’s home in Gypsum Mines. The complainant left school when he was 16 or 17, prior to June 2002, but their friendship continued until 2008.

NATURE OF ALLEGATIONS [ 5 ] I will discuss the allegations again in my analysis but by way of introduction I will summarize them now. [ 6 ] The complainant testified that during the summer of 1999 – near the end of his Grade 7 year when he was 13 or 14 years of age – the accused had invited him to the family cottage in Chester, Nova Scotia for an overnight visit. There, the complainant described, the accused supplied alcohol and both drank and played games including wrestling.

The complainant says that during the wrestling sessions the accused placed his hand down the complainant’s pants and onto the complainant’s penis. He also described that the accused had had an erection because he could “feel it”. Nothing was said nor did he describe any further sexual activity. The complainant said this happened, “a couple of other times” at the Chester cottage over that summer.

This was the first type of sexual contact described by the complainant. [ 7 ] As the Grade 8 year started and progressed the complainant described spending a considerable amount of time at the accused’s home in Gypsum Mines. He testified that the wrestling sessions he described earlier continued but became more sexual. The accused wanted him to remove his shirt and he described the accused masturbating and the accused masturbating the complainant. He described the liberal use and presence of alcohol, the watching of adult pornography and smoking of marihuana.

He said occasionally other students were present. [ 8 ] In one incident he described that he awoke in the middle of the night and saw the accused and another boy watching pornography and each was masturbating. [ 9 ] The complainant said this continued past the time he left school and said that the sexual activity was in exchange for the complainant’s request for money. The complainant testified that near the time he left school – which appears to be in 2002 – he and the accused travelled to Halifax and stayed at the Delta Hotel.

Again he described drinking and sexual activity including sex games and oral sex. [ 10 ] The complainant testified that the night after the incident at the hotel he told his friend M.F. what had occurred between him and the accused. He later told K.M., the mother of his children, in 2011, what had occurred with the accused. [ 11 ] The complainant continued to live at the accused’s home. The import of his testimony was that there was considerable presence of alcohol, drugs and pornography. Other young people frequented the accused’s home.

The accused assisted the complainant financially and helped him gain access to a course at a community college. [ 12 ] I will refer to more details of the allegations in my analysis below. DEFENCE EVIDENCE [ 13 ] Kale MacKenzie and Jeremy Long both testified for the defence. Each lived at the accused’s residence – Mr. MacKenzie beginning late 2009 or early 2010 when he was 18, until 2011 for approximately 18 months. Mr. Long moved into the accused’s residence in 2004 and stayed until 2007. He gave a very compelling reason why he came to live there because Mr.

Long’s mother had expelled him from his home. [ 14 ] Both men testified that they never saw any pornography at the accused’s residence or any sexual activity. Each said that there was no alcohol or drugs given to anyone under the age of 18 and they never saw the accused smoking marihuana.

[ 15 ] Mr. MacKenzie specifically denied watching pornography with the accused and masturbating as the complainant described in his testimony. When asked about this he said, “This is a lie, this isn’t true”. [ 16 ] Brett Lane also testified for the defence. He was a friend of Mahlon Hess, who lived with the accused in 1999 and 2000. He visited his friend at the accused’s residence frequently. Again he never witnesses any pornography at the accused’s residence nor did he see the accused give anyone under 19 beer nor did he see the accused smoking marihuana.

He did not remember the complainant being at the residence during that period. [ 17 ] The accused testified in his own defence. He described his background, education and job experience. After a short career in bookkeeping he returned to university and graduated from Saint Mary’s University in 1989. After a few years doing temporary teaching assignments on the South Shore of Nova Scotia he secured a job at Windsor Regional High School starting in September of 1995. He lived in an apartment during the school year and returned to the South Shore for the summer. He had three different apartments.

He purchased his home in Gypsum Mines in April 2000. [ 18 ] The accused also described his career path since coming to Windsor Nova Scotia. He continued as a guidance counsellor for the school years 1998-99 to 1999-2000. He then became vice-principal at Windsor Regional High School for 2000-2001 to 2001-2002.

In September 2002 he moved to Hants West Rural High School as vice-principal and stayed at the school, now called West Hants Middle School, as vice-principal the following year in 2003-2004. [ 19 ] In 2004-2005 he returned to the classroom as a teacher at Hants West Middle School and then became vice-principal at Avonview High School in September 2005. He stayed in that position continually for the next number of years until September 2009 when he became acting principal and later principal. [ 20 ] He also described that he had a series of teenage boys and young men live at his home in Gypsum Mines.

Mahlon Hess lived with him at his apartment in Windsor and then at his home in Gypsum Mines after he purchased it in 2000. Mr. Hess remained there until sometime in 2003. There were no young men living at his home after Mr. Hess left until May or June of 2004 when Jeremy Long moved in. Mr. Long stayed there until 2007. The accused acknowledged that the complainant lived at his home for a portion of 2008 – “off and on” – as he described.

In 2009 Kale MacKenzie lived at his home and in 2011 the complainant was there for a period of time. [ 21 ] All of these young men lived on the second floor of the accused’s home in a finished attic which was all one room and furnished – it extended the full length of the house. [ 22 ] The accused denied the specific allegations. He said he never wrestled with the complainant as the complainant described nor touched him sexually during the times alleged. He said he never served alcohol to any underage teenagers nor was there ever any drugs in his home to his knowledge.

He denied that there were any sex games, oral sex, mutual masturbation or pornography as the complainant described. [ 23 ] The accused said that the complainant never came to his home until late in the 2001-2002 school year for extra help, which the accused agreed to provide, to allow the complainant to get through an English assignment. He said he recalls this event specifically because he had to call the English teacher to clarify the assignment. This was May or June of 2002 when the complainant was age 17. This event involved bringing the boy to his home, completing the assignment and returning him home.

This was the complainant’s second year in Grade 9. [ 24 ] The accused said the complainant did not go to his cottage in East Chester when he was younger, but only after Jeremy Long began living there. He said that the complainant was friends with Jeremy Long and went to the cottage as Jeremy Long’s friend. Only on one occasion did he attend there alone with the accused when he was young and that was on an occasion for the complainant to mow the neighbour’s lawn – a chore Jeremy Long had but could not be there because he had a sporting event that weekend.

The accused said they travelled to East Chester and returned the same day. [ 25 ] The accused acknowledged the complainant did go to his cottage alone with the accused later and more in recent years when he was grown and over the age of 20. [ 26 ] The accused provided details of his stays at the Delta Hotel in Halifax by producing a copy of a printout of his Delta Hotel membership history. It began for the year 2006 and continued to 2012. There are no entries before March 2006.

He said he never stayed in a hotel with the complainant in 2001 or 2002, the timeframe alleged by the complainant. [ 27 ] The accused did say that the complainant stayed with him in the Westin Hotel in Halifax on one occasion when the accused had a court appearance in Halifax regarding a threat charge. The accused’s criminal record – an exhibit before the Court – shows the threat offence occurring July 2004 and the accused being sentenced April 21, 2006. It does not list the other appearance dates.

The accused was aged 19 when he committed the offence and age 20 – almost 21 – when he was sentenced. [ 28 ] The accused also acknowledged he stayed in a hotel with the complainant at the Delta hotel, but this was much later. The accused was never questioned nor cross-examined about the details any of these visits. LAW ON CREDIBILITY [ 29 ] As I mentioned at the outset, credibility or testimonial veracity is the central focus of this proceeding. This should be distinguished from reliability or accuracy, which in the end is really not an issue here.

There are some aspects of the complainant’s testimony that may be unreliable as a result of his recollection of dates but as I conclude, in my opinion, this proceeding turns on the issue of credibility or testimonial veracity. [ 30 ] It would be helpful therefore, in my opinion, to set out some guiding legal principles which apply when trial judges are required to make credibility findings.

[31] First of all, the Supreme Court of Canada has acknowledged that credibility assessment is not a science nor is it some kind ofmathematical exercise nor is it purely intellectual[1]. Judges and juries are asked to use their common sense, logic and their ownknowledge and experience with human behaviour when deciding issues of credibility. Indeed our own Court of Appeal recognizes thatsome decisions are not easy to verbalize[2]. [32] Yet, at the same time, credibility assessment is not a purely intuitive exercise. It is not based on “impressions” which the judgemay form of a witness.

This risks placing too much emphasis on demeanor, which appeal courts have clearly said cannot be the soledetermining factor[3]. Findings of credibility are based on legal principles. I will outline those principles which are applicable in thisproceeding now: 1. Of course, when credibility is the main or central focus and is one of the determining factors in a case it must be remembered thatrule of reasonable doubt applies to that issue. In this context it means that even if the Crown witnesses are believable and the Court failsto accept or believe the accused’s testimony the burden never shifts to the accused.

In this instance the accused’s testimony or the wholeof the evidence may raise a reasonable doubt. It is only after weighing all of the evidence and being satisfied beyond a reasonable doubtof the accused’s guilt can the accused be convicted – see R. v. W.(D.) (SCC), [1991] 1 S.C.R. 742. 2. It is not a credibility contest. Also, because the Court hears the Crown’s case first, it cannot measure the defence evidence or theaccused’s testimony against that of the Crown. As I explained above the burden on the Crown never shifts to the accused.

Having saidthis, it is not wrong to assess the accused’s testimony or other defence evidence by looking at other evidence presented, including thecomplainant’s testimony. 3. “Why would the complainant lie about something like this?” This is, at first blush, a very compelling response. However, it is veryclear that such reasoning is not appropriate and an error of law. Simply put, it reverses the burden of proof and suggests that the accusedprovide an explanation or response and, in a sense, prove his own innocence[4]. 4.

Not all cases which turn on the testimony of the complainant and the accused fail to discharge the Crown’s burden of proof. Thereare cases where the compelling features of a complainant witness’s testimony is so strong – usually detailed – that a denial by theaccused when the context would require more would be sufficient to allow a trier of fact to reject the accused’s testimony and be left withno reasonable doubt about the accused’s guilt. 5. A prior consistent statement made by the complainant cannot be used to infer guilt.

In other words, because the complainant toldsomeone else earlier, or more than one person for that matter, does not strengthen or bolster the complainant’s testimony. It can, in someinstances, be used to rebut other suggestions, but not to suggest that the allegation is more likely to have occurred. 6. One of the most important measures of credibility is to identify and reconcile, if possible, inconsistencies in a witness’s account ofevents.

This includes internal inconsistencies in a witness’s trial testimony, inconsistencies with earlier statements the witness may havegiven, and any inconsistencies between a particular witness and other testimony or objective evidence. The Supreme Court of Canada hasreminded trial judges that it is critical that such inconsistencies be addressed and reconciled, if possible[5]. This is particularly so whenthe inconsistency is material to the allegations. If the inconsistencies cannot be reconciled it may give rise to a reasonable doubt that theallegations have been proven to the criminal standard of proof. 7.

Outside the accused, a witness’s history of dishonesty is a relevant factor to take into account when assessing the witness’scredibility. The same is true if there is any animus that the witness may harbour towards the accused or any other motive that exists forthe witness not to be truthful in his or her account relative to the accused. This of course is to be distinguished from suggesting that theaccused has a motive to be untrue to escape criminal liability, which is not a permissible inference to draw. 8.

Special care should be exercised when assessing the testimony of a child witness or an adult witness who recounts events whichoccurred while that witness was a child, especially if the events are dated. This means that such witnesses should not be held to the samedegree of accuracy relative to time, sequence and location of events which children – even teenagers – can be confused about.

In otherwords, inaccuracies or inconsistencies or conflicts related to these aspects of a witness’s recounting of events which occurred while theywere young should not necessarily be a cause to reject or necessarily doubt the veracity of their testimony. A trial judge needs to keep inmind the perception of the witness who is recounting dated events, especially when they may have occurred when the witness was veryyoung. Having said this, this does not mean that the criminal burden of proof is lowered in such cases.

The same burden of proof exists.The Court must be satisfied beyond a reasonable doubt that the essential elements of the offence have been established. What isparticular challenging, however , is when the timeframes become critical because of the legal features or character of the conductchanges depending on the timeframe. For example, in this case the age of the complainant is one of the essential elements of the offencefor some of the offences charged. Also, time can be a critical element when determining when the accused was in a position of trust orauthority relative to the complainant.

While a young witness – or adult witness recounting dated events – may be mistaken or in conflictin their recounting of time periods may not be determinative of their credibility generally this does not mean that conflicts with respect totime periods themselves should be overlooked. When the time period itself is essential to the allegation, weaknesses in the evidence onthat issue cannot necessarily be overlooked or forgiven because the witness is relating events which happened when they were young.

Inother words, unreliability with respect to essential timeframes, while not necessarily raising issues of trustworthiness, may raise issueswith respect to the reliability of that testimony which may result in that evidence being not sufficient to prove one of the essentialelements of the allegation beyond a reasonable doubt. ANALYSIS [33] It is helpful to briefly set out a timeframe of events which include references made primarily in the testimony of thecomplainant and the accused.

Much of this is developed from the accused’s testimony, including the various exhibits which chronicle hiscareer and ages of the complainant and the grade which the complainant was in at various times. I accept the testimony of the accusedwith regard to the timeframes as accurate. He was in a position – given his responsibilities at the school – to accurately detail thetimeframes. Also, his testimony with respect to the timeframes was detailed and compelling and unchallenged on cross-examination.

Thedate of the purchase of his home was evidenced by documents which were objective and unrebutted and admitted by the Crown.

[ 34 ] What follows is a brief chronology: Time Frame until 2008 1. May […] 1985 -The complainant is born 2. September 1995 – The Accused becomes Guidance Counsellor at Windsor Regional High School 3. November -Accused moves to an apartment in Windsor NS 4. May […]1998 - The complainant turns age 13 5. Sept 1998 – The complainant starts grade 7 6. May […] 1999 - The complainant turns age 14 7. January 1999 - Mahlon Hess moves into Accused’s apartment in Windsor 8. May – June 1999 – The complainant alleges - Trip to Chester – 1 st alleged sexual contact – complainant is age 14 9.

Summer 1999 – The complainant alleges more events at Chester when the complainant is aged 14 10. September 1999 - The complainant starts Grade 8 11. 2000 – 2002 – Accused becomes Vice Principal at Windsor Regional 12. May […] 2000 – The complainant turns age 15 13. April 2000 – Accused buys house in Gysum Mines – M Hess moves into house at Gysum Mines 14. September 2000 – The complainant starts Grade 9 15. May […] 2001 – The complainant turns 16 16. March – June 2001 – C alleges Delta Hotel incident happens 17. June 30 2001 – End of the complainant’s grade 9 year – 18.

September 2001 - The complainant starts Grade 9/10 19. June 2002 – Accused helps the complainant with school assignment 20. June 2002 - The complainant leaves school 21. End of 2002 early 2003 – M. Hess moves out of Accused’s home 22. May […] 2002 - The complainant turns 17 23. Sept 2002 - Accused becomes Vice Principal – HWRHS (aka WHMS) – June 2004 24. May […] 2003 - The complainant turns 18 25. May […] 2004 - The complainant turns 19 26. May/June 2004 - Jeremy Long moves into Accused’s home 27. September 2004 – June 2005 – Accused is teacher only at WHMS 28.

September 2004 - The complainant returns to school for 2 months 29. May […] 2005 - The complainant turns 20 30. September 2005 – Accused becomes Vice Principal at Avonview High School to June 2009 31. May [...] 2006 - The complainant turns 21 32. May […] 2007 - The complainant turns 22 33. December 2007 - Jeremy Long moves out of Accused’s home 34. January to December 2008 - The complainant living at Accused’s home “on and off” 35. May […] 2008 - The complainant turns 23. [ 35 ] As I indicated at the outset the primary issue in this proceeding is credibility.

I will now identify and detail the credibility issues and concerns which, in my opinion, are important.

1. The Complainant’s Presence at the Accused’s Home (

a) The accused purchased his home at Gypsum Mines in April of 2000. This is clear. The complainant however testified, when describing the incident in Chester, that it had occurred between Grade 7 and Grade 8 – that is in 1999. In cross-examination he did concede it could have occurred in the next year – 2000. In particular he said he was at the Gypsum Mines home prior to the Chester incident. He said that partway through Grade 7 – before the Chester incident – he had been at the accused’s home in Gypsum Mines. He was in Grade 7 from 1998 to June 1999.

The accused said the first time that the complainant was at his home was in June of 2002, when the accused helped him with a homework assignment. The accused’s recollection of this event was detailed and it was compelling, in my opinion. I accept his evidence on this point. (

b) However, it is clear that the complainant’s recollection of the timeframe is simply wrong. He was not at the accused’s home in Gypsum Mines in 1999 because the accused did not own the home at that time. In my opinion he was not there in 2000 or in 2001 either. This casts serious doubt as to whether he was even in Chester in the summer of 1999 – between Grade 7 and Grade 8 – as he described. The complainant turned age 14 in May of 1999. If anything happened in Chester it did not happen in 1999 before the complainant was age 14. (

c) When confronted with the timeframe for the accused’s purchase of his home in 2000 the complainant suggested that it may have been a year later. In my opinion it is clear that the complainant did not know the timeframes of when he had first been at the accused’s residence or when he was first at the Chester cottage. I will discuss below how this impacts on the accused’s veracity or truthfulness. 2. Date of Hotel Incident (

a) The complainant testified that the accused went to the Delta Hotel in Halifax. He said he was in school – near the end of Grade 9 – when he was age 15 or 16. He was in Grade 9 from September 2000 until June of 2001. He was 16 in June of 2001. It is possible he was referring to the next year when he returned to do a combined Grade 9 and Grade 10 in the 2001-2002 school year. He was 17 in June of 2002. The complainant did return to school in September of 2004 but for only two months to take Grade 10 again. He was not in school in 2005. (

b) The complainant testified he told his friend M.F. about the hotel incident the night after the incident. Mr. F. confirmed that he did have a conversation with the complainant about what had happened between him and the accused. This, of course, does not support or buttress the complainant’s allegation of what happened but it is evidence regarding the timing of the event. Mr. F. said this conversation occurred in 2005 or 2006. He testified that the complainant was “21 or so” when he told him. The complainant turned 20 in May of 2005 and 21 in May of 2006.

The accused’s Delta Hotel statement shows nothing before 2006. In my opinion the hotel incident, if it happened, did not occur when the complainant was age 15 or 16, as he testified. It may have occurred in the Spring or the Fall of 2004 or perhaps 2006 when the complainant was 21, as Mr. F. described. It did not occur when the complainant was under the age of 18 and it was possibly beyond the time when the complainant was a student in school. (

c) The complainant was incorrect and wrong when he testified he was 15 or 16 and that he was still in school when he stayed at a hotel in Halifax with the accused. 3. Kale MacKenzie Incident (

a) The complainant described numerous incidents of sexual activity between himself and the accused at the Gypsum Mines residence. He also described the liberal use of alcohol and the presence of marihuana as well. He said no one else was even present when “anything” ever happened between them. (

b) He described that on one occasion Kale MacKenzie was at the accused’s residence. The complainant said that he had passed out and when he awoke he started to make his way to the bathroom. He passed a room where he saw the accused and Kale MacKenzie watching pornography on a computer and both were masturbating. No timeframe for this incident was described. (

c) Mr. MacKenzie testified. When the incident which the complainant described was put to him he denied it completely. He said he never watched pornography with the accused and said that the mutual masturbation described by the complainant did not happen. Mr. MacKenzie was, in my opinion, a credible witness. (

d) In my opinion the incident which the complainant described involving Mr. MacKenzie simply did not happen. At the very least Mr. MacKenzie’s testimony of this event seriously affects the complainant’s overall credibility. [ 36 ] The above incidents represent, in my opinion, serious inconsistencies in the complainant’s account. The first two incidences completely erode the complainant’s recollection of the timelines where the age of the complainant is critical.

These inconsistencies would make it impossible to determine beyond a reasonable doubt the complainant’s age at the time of the allegations and in particular whether he was under the age of 14 at the time of the Chester incident. In fact it was clear that he was not. It further casts doubt on whether he was under the age of 18 at the time of the other allegations. The inconsistencies in the hotel incident lead to the conclusion that this event did not happen while the complainant was under the age of 18 nor while he was a student at school. [ 37 ] However, can these inconsistencies be otherwise reconciled?

Was the complainant simply confused about the times – regarding the first two instances described, or mistaken about Kale MacKenzie’s presence and that this event occurred in any event? [ 38 ] In my opinion these inconsistencies cannot be reconciled. As will be apparent when I comment on the accused’s credibility generally, in my opinion, the complainant was attempting to describe conduct which fell into a timeframe – when he was under the age of 14, 16 or 18 and when he was a student – to buttress his allegation against the accused.

As I mentioned above I accept the accused’s testimony that the complainant never went to the accused’s home until June of 2002 when he was 17 to work on a homework assignment. The timeframes here are not historic. The complainant was not 8, 9 or 10 years of age. The accused bought his home in 2000 – 11 years before the complainant went to the police. This is a time which could easily have been recalled or verified by the complainant. The same can be said regarding the hotel stay. Any stay in the hotel was in 2006, or at the very best, 2005 – not that long ago. The only

Information Sworn Date of Offence Location Criminal Code Charge Description December 22, 2012 May 19, 1998 – Oct. 31, 1998 Chester s. 271 Sexual Assault conclusion I can reach is that the complainant tailored his evidence to bring these allegations within a timeframe which would align them with the offences charged and when he was much younger. As such this seriously affects the veracity of any of the complainant’s testimony. [ 39 ] There is more. Other parts of the evidence impugn the complainant’s credibility. They are: 1. The accused had loaned the complainant his gas card to get gas for the complainant’s car.

The complainant purchased within a 14 minute period in excess of $300.00 worth of gasoline in four separate purchases. He explained in a text message he sent to the accused he was filling gas jugs because his car gas tank had leaked. He testified in court that his truck had a large tank and that he filled the truck with $353.32 worth of fuel – 325.04 litres. In my opinion it is clear that the complainant was filling the vehicles of other people. For what reason or his motive is not clear. His explanation is not credible. This was

an act of dishonesty and furthermore his testimony in court regarding this incident in my opinion was not truthful. 2. At one time the accused asked the complainant to help repair his vehicle. The accused gave him $300.00 to purchase parts to effect the repair. No car parts were purchased and the money was never returned. Again, this was

an act of dishonesty on the part of the complainant. 3. The complainant has a record for crimes of dishonesty – two counts of theft, theft of a credit card and fraud. I must take this into account when assessing the accused’s credibility. [ 40 ] As well, I found many parts of the complainant’s testimony lacking in detail. He generalized and was vague in his description of the events that he recalled, particularly when describing other subsequent events in Chester in the summer between Grade 7 and Grade 8 he used expressions such as, “and stuff like that” when referring to the alleged sexual conduct.

At one time I had the clear and distinct impression that he was making up his account while he was conveying his testimony. As well, his description of the presence of the alcohol, drugs and pornography lack specificity and while he was specific in the types of sexual activity he recalled, his description lacked context as to circumstances, surroundings or timeframes. His descriptions did not paint a picture that was convincing or compelling.

While this does not necessarily make him less credible, his testimony lacks those compelling and convincing features which may in some instances overcome other weaknesses I detailed above and inconsistencies which are not possible to reconcile. [ 41 ] Finally, there is a clear motive by the complainant to fabricate these allegations. He became accustomed to asking the accused for money and in the Fall of 2011 asked the accused for $8-900. 00, which the accused refused. [ 42 ] In conclusion, the complainant was not a credible witness.

He tailored his evidence with respect to the timeframes to, in my opinion, strengthen the serious allegations against the accused. He was simply wrong about the allegation regarding Kale MacKenzie, his evidence about the gas charges was, in my opinion, false, and he has a history of dishonest conduct. His testimony cannot be relied on to support a finding of guilt in a criminal proceeding. [ 43 ] Finally, I accept the accused’s testimony. It was believable. At the very least it cannot be rejected. The accused is not required to prove anything. The burden is on the Crown to prove guilt beyond a reasonable doubt.

It has not done so. [ 44 ] Let me therefore summarize my conclusions on the offences charged: 1. Regarding the two counts under s. 152 of the Criminal Code . The Crown is required to prove inter alia that the complainant was under the age of 14 at the time. The evidence is clear that there was no offending conduct by the accused before the complainant was under the age of 14. The accused is found not guilty of the two counts under s. 152 of the Criminal Code . 2.

Regarding the four counts under s. 153(1) of the Criminal Code the Crown must prove inter alia that the complainant was under the age of 18 and that the accused was in a position of trust or authority relative to him at the time of the allegations. The complainant turned age 18 on May […], 2003. Any stay by the accused with the complainant at the Delta Hotel in Halifax did not occur before the complainant was age 18. The accused is found not guilty of the charge under s. 153(1) of the Criminal Code regarding the incident in Halifax.

Given my findings with respect to the complainant’s credibility and my acceptance of the accused’s testimony, in my opinion the Crown has failed to prove beyond a reasonable doubt the remaining charges under s. 153(1) of the Criminal Code and in particular that the accused was under the age of 18 at the times of the events that he described. 3. There are four charges under s. 271 of the Criminal Code . The Crown is obliged to prove inter alia beyond a reasonable doubt that any sexual touching was without the consent of the complainant.

Again, given my conclusions with respect to the complainant’s credibility and my acceptance of the accused’s testimony, the Crown has not proven beyond a reasonable doubt that the accused touched the complainant sexually without his consent. [ 45 ] The accused is therefore found not guilty with respect to the two counts under s. 152 of the Criminal Code , the four counts under s. 153(1) of the Criminal Code and the three counts under s. 271 of the Criminal Code . He is therefore acquitted of those charges. J. ** At the alleged times prior to May 2008 s. 152 specified the age of 14 years

December 22, 2012 May 19, 1998 – Oct. 31, 1998 Chester s. 153(1) Sexual Exploitation December 22, 2012 May 19, 1998 – Oct. 31, 1998 Chester s. 152 Invitation to Sexual Touching ** December 22, 2012 May 19, 2000 – Sept. 30, 2000 Halifax s. 271 Sexual Assault December 22, 2012 May 19, 2000 – Sept. 30, 2000 Halifax s. 153(1) Sexual Exploitation December 15, 2012 May 19, 1998 – May 19, 1999 Chester s. 271 Sexual Assault December 15, 2012 May 19, 1998 – May 19, 1999 Chester s. 153(1) Sexual Exploitation December 22, 2012 Oct. 31, 1998 – May 19, 1999 Gypsum Mines s. 271 Sexual Assault December 22, 2012 May 19, 1998 – May 19, 2002 Gypsum Mines s. 153(1) Sexual Exploitation December 22, 2012 Oct. 31, 1998 – May 19, 1999 Gypsum Mines s. 152 Invitation to Sexual Touching **