Her Majesty the Queen v. James Craig Michaud Restriction on Publication: s.486.4 of the Criminal Code DECISION Judge: The Honourable Justice John Keith, 2022 NSSC 160

SUPREME COURT OF Nova Scotia Citation: R. v. Michaud , 2022 NSSC 160 Date: 20220607 Docket: CRH 508174 Registry: Halifax Between: Her Majesty the Queen v. James Craig Michaud Restriction on Publication: s.486.4 of the Criminal Code DECISION Judge: The Honourable Justice John Keith Heard: May 3 – 6, 2022 Oral Decision: June 2, 2022 Counsel: Tanya Carter, for the Crown Scott Brownell, for the Defendant Order restricting publication — sexual offences 486.4

(1) Subject to subsection (2), the presiding judge or justice may make an order directing that any information that could identify the victim or a witness shall not be published in any document or broadcast or transmitted in any way, in proceedings in respect of (

a) any of the following offences: (

i) an offence under

section 151, 152, 153, 153.1, 155, 160, 162, 163.1, 170, 171, 171.1, 172, 172.1, 172.2, 173, 213, 271, 272, 273, 279.01, 279.011, 279.02, 279.03, 280, 281, 286.1, 286.2, 286.3, 346 or 347, or (ii) any offence under this Act, as it read from time to time before the day on which this subparagraph comes into force, if the conduct alleged would be an offence referred to in subparagraph (

i) if it occurred on or after that day; or (

b) two or more offences being dealt with in the same proceeding, at least one of which is an offence referred to in paragraph (a). NOTE: In reducing to writing the oral decision rendered in this matter, editing has taken place to include omitted citations and quotes from secondary sources and to make changes to format or to grammar for readability. No changes have been made to the substantive reasons for decision.

By the Court (Orally): Brief Background and The Issue [ 1 ] James Craig Michaud stands accused of sexual assault contrary to

section 271 of the Criminal Code and sexual interference contrary to

section 151 of the Criminal Code . The sexual offences were said to have occurred between September 1, 2013 and June 30, 2015 at Kingswood Elementary School in Hammonds Plains, Halifax Regional Municipality where Mr. Michaud worked as an Educational Program Assistant (“ EPA ”). [ 2 ] The complainant is EH. EH was 18 years old at the time of trial; however, the allegations of sexual abuse date back to when EH was between 9 and 11 years old and a student at Kingswood Elementary. She attended Kingswood Elementary from Grade1 until Grade 6.

The Crown asserts that the alleged abuse began after EH entered Grade 5 and continued until about June 30, 2015, when EH (then 11 years old) completed Grade 6 and left Kingswood Elementary. After leaving Kingswood Elementary, EH had no further contact with Mr. Michaud. [ 3 ] For clarity, the period of alleged abuse (September 1, 2013 – June 30, 2015) is a date range only. The Crown does not suggest that the sexual abuse began immediately on EH’s first day of school in September, 2013 and ended exactly on her last day of school in June, 2015. Rather, the Crown alleges that Mr.

Michaud molested EH on virtually a daily basis while she was in Grades 5 and/or 6 at Kingswood Elementary. [ 4 ] EH is a special needs student who had EPA support every year at Kingswood Elementary. EH says that in Grades 5 and 6, Mr. Michaud was one of two EPAs who worked with her. She remembers Mr. Michaud working with her in the morning one week and in the afternoon the next; and that the other EPA would support her for the balance of each day. [ 5 ] EH says that every time she saw Mr.

Michaud during class time, he would lead EH to a small room called the “pod” and located at the back of the class – ostensibly as a quiet place to complete her schoolwork. [ 6 ] Once in this pod, EH says that Mr. Michaud would close the door and direct EH face away from him and sit on his lap with her legs spread, as if she was riding a horse. He would then massage her vagina over her clothes (i.e. there was no direct contact).

EH says that this pattern of abuse repeated itself on a daily basis in Grades 5 and 6, although her memories of Grade 6 are more clear. [ 7 ] If the Crown proves beyond a reasonable doubt that Mr. Michaud touched EH as alleged, all parties agree that Mr. Michaud would be guilty of the charges against him because the alleged contact is clearly and objectively sexual in nature and certainly would have violated EH’s sexual integrity. At that stage, the remaining elements of the offences become a foregone conclusion. Put slightly differently: 1.

If the alleged sexual contact occurred, then with respect to the remaining elements of sexual assault under

section 271 of the Criminal Code : a. There is no question EH did not consent to the alleged sexual contact. Indeed, as a disabled child between the ages of 9 and 11 years old, EH could not give valid consent; b. There is no question that the sexual contact was intentional. Mr. Michaud would obviously have intended such regular and repeated sexual contact; c. There is no question Mr. Michaud would have known (and could never have been mistaken about the legal fact) that EH did not consent to any such sexual touching. 2. Similarly, if the alleged sexual contact occurred, then with respect to the elements of sexual interference under

section 151 of the Criminal Code : a. There is no question that EH was less than 16 years old at the time; b. There is no question that Mr. Michaud would have intentionally touched EH; and c. There is not question that the alleged touching was for a sexual purpose. [ 8 ] In short, this case narrows to a single question: has the Crown proven beyond a reasonable doubt that Mr. Michaud sexually touched EH as alleged? The Law [ 9 ] The following three principles or legal approaches are of particular importance to this case: 1. The presumption of innocence and two vital concepts that flow from that presumption: a.

The Crown must prove the accused is guilty. Mr. Michaud is not required to prove his innocence; b. Guilt must be proven beyond a reasonable doubt; 2. The analytical framework which applies when assessing the credibility of the accused and other witnesses in a criminal trial; and

3. The unique considerations which apply to testimony from a child or vulnerable witness. [10] I address each matter separately below. Presumption of Innocence [11] It is a fundamental principle of the law in Canada that a person accused of a criminal offence is presumed innocent until provenguilty. This presumption is firmly anchored in the bedrock of Canadian criminal law. The Supreme Court of Canada describes it as “thegolden thread of criminal justice” (R. v. Lifchus, (SCC), [1997] 3 S.C.R. 320 (“Lifchus”, at paragraph 27). Thus,section 11(

d) of the Canadian Charter of Rights and Freedoms states: “Any person charged with an offence has the right … to bepresumed innocent until proven guilty according to law in a fair and public hearing by an independent and impartial tribunal.” Mr.Michaud is entitled to this presumption at the beginning of the trial, throughout the trial, and until the evidence proves his guilt. [12] Two further rules flow from the presumption of innocence: 1. Because the Crown accuses Mr. Michaud of criminal conduct, the Crown that must prove those accusations. The accused,Mr. Michaud, does not have to prove anything; 2.

Guilt must be proven beyond a reasonable doubt.

At paragraph 36 of Lifchus, the Supreme Court of Canada defined“reasonable doubt” by reference to the following key characteristics: A reasonable doubt is not a doubt based upon sympathy or prejudice; rather, it is based upon reason and common sense; it is logically connected to the evidence or absence of evidence; it does not involve proof to an absolute certainty; it is not proof beyond any doubt nor is it an imaginary or frivolous doubt; and more is required than proof that the accused is probably guilty — a jury which concludes only that the accused is probably guilty mustacquit.

Having said that, “the Crown is not required to prove its case to an absolute certainty since such an unrealistically high standard couldseldom be achieved” (Lifchus, at paragraph 31). [13] As indicated, reasonable doubt can arise from both the evidence and the absence of evidence including the absence of evidencefrom a material witness. For clarity, it would be rare to draw an actual adverse inference (i.e. make an adverse finding of fact) against theCrown for failing to call a witness. The Crown is given considerable latitude to present the case as it sees fit.

However, the “lack ofevidence” from a material witness may give rise to a reasonable doubt (E.G. Ewaschuk, Criminal Pleadings & Practice in Canada, 2ndEdition § 17:121. See also R. v. Gallagher, 1994 CarswellBC 1030 (BCCA), confirming that the failure to call a witness may leave agap in the Crown's case which will leave the burden of proof undischarged and entitle the accused to an acquittal; R v M (D), 2010ONSC 7170 at paragraph 30; and R. v. E. (P.C.) (1998), 1998 ABCA 180 , 126 C.C.C. (3d) 457 (Alta.

C.A.). [14] Before leaving this section, one further comment regarding the presumption of innocence is appropriate in the especiallyemotive context of alleged sexual assaults against children. Society’s most innocent and vulnerable must be protected. Sexual predatorsmust be held accountable. At the same time, the Court must guard against the presumption of innocence sinking under a wave ofvengeful anger. In R. v. J. (F.E.) (1990), (ON CA), 53 C.C.C. (3d) 64 (Ont.

C.A.), Galligan, J.A. wrote about howthe impulse for retribution can trigger a rush to judgment and test our commitment to the presumption of innocence: … Sexual abuse of children is a despicable crime. It is not easy to detect and, because it invariably happens in private, it can be difficultto prove. Usually, it comes down to the word of a child against that of an adult. It is easy, therefore, to be sympathetic with the efforts ofthose who try to discover these crimes and prosecute their perpetrators.

While there is no scale upon which conflicting evils can be weighed, it should be remembered that, revolting as child sexual abuse is, itwould be horrible for an innocent person to be convicted of it.

For that reason, I think the courts must be vigilant to ensure that the zealto punish child sexual abusers does not erode the rules which the courts have developed over the centuries to prevent the conviction ofthe innocent. [at paragraphs 7 – 8] [15] In R v W.(R.), (SCC), [1992] 2 S.C.R. 122 (“W.(R.)”), the Supreme Court of Canada echoed the same concernwhen it wrote: Protecting the liberty of the accused and guarding against the injustice of the conviction of an innocent person requires a solidfoundation for a verdict of guilt, whether the complainant be an adult or a child. [at paragraph 26] [16] In the book “Getting Away with Murder”, David Paciocco, now of the Ontario Court of Appeal, offers a compellingexplanation as to how the presumption of innocence is most vulnerable (and in greatest need of protection) when it is all that standsbetween societal outrage and a single accused denying responsibility for a horrific crime. (See pages 185 – 189 dealing specifically withthe crime of sexual assault) Assessing the Credibility and Reliability of Witnesses in a Criminal Trial

[17] Sexual assaults often occur away from plain view where violence can hide behind a screen of privacy. In these circumstances,the question of guilt often turns primarily on the complainant’s testimony - and perhaps the accused’s testimony if the accused decides totestify. [18] The complainant, EH says that she was repeatedly, sexually abused by Mr. Michaud when she was between 9 and 11 years oldand a student at Kingswood Elementary. As indicated, the assaults occurred during class time, in her homeroom, but within a separatepart of the classroom called the “pod”. [19] In this case, the accused, Mr.

Michaud, elected to testify. His evidence conflicts with that of EH. Mr. Michaud agrees that hewas working as an EPA at Kingswood Elementary when EH was in Grades 5 and 6. However, he says that he was only ever assigned tomale students. He denies working with EH directly as her EPA. He denies being in the pod with EH. And he denies touching EH asalleged. [20] I examine their conflicting evidence in detail below. For present purposes, the point is that the evidence of the two keywitnesses is both critical and diametrically opposed.

Accordingly, concerns around credibility and reliability pervade. [21] The mere presence of conflicting evidence, by itself, does not give rise to a reasonable doubt. The Court does not automaticallyacquit simply because the accused offers a contradictory account and, without anything more, manages to establish a “he-said/she-said”scenario. [22] At the same time, importantly, the Court does not convict an accused of sexual assault because the complainant’s testimonyseems preferable or more believable.

A criminal trial is not a credibility contest where the question of guilt is determined by the Courtsimply choosing between the complainant’s evidence and that offered by the accused. This sort of binary choice between the evidenceof the complainant and the accused threatens the presumption of innocence because it forces the accused to present a version of eventswhich is deemed better than the accused’s version. It also ignores the fact that the burden of proof rests with the Crown. The Crown isrequired to prove its case beyond a reasonable doubt.

The accused is not required to present better testimony and effectively prove hisinnocence. [23] In

summary, if the question of guilt turns on the testimony of the complainant: 1. The accused is not compelled to offer a version of events that the Court might deem better than the complainant’s version;and 2. It is not enough that the complainant’s testimony be preferable. It must be sufficiently credible (or believable) and reliable(or trustworthy) to dispel any reasonable doubt as to the alleged criminal conduct. If it is, the Court will properly render a guilty verdict.

If the complainant’s testimony raises a reasonable doubt either alone or when considered with other admissible evidence, the Courtcannot safely render a guilty verdict. [24] In R. v. W. (D.), (SCC), [1991] 1 S.C.R. 742 (“W.(D.)”), the Supreme Court of Canada provided an analyticalframework which reinforces these fundamental principles. It stated: A trial judge might well instruct the jury on the question of credibility along these lines: First, if you believe the evidence of the accused, obviously you must acquit.

Second, if you do not believe the testimony of the accused but you are left in a reasonable doubt by it, you must acquit. Third, even if you are not left in doubt by the evidence of the accused, you must ask yourself whether, on the basis of the evidence whichyou do accept, you are convinced beyond a reasonable doubt by that evidence of the guilt of the accused. [at para 28] [25] In the subsequent decision of R. v.

S. (J.H.), 2008 SCC 30, the Supreme Court of Canada emphasized that the specific questionslisted in W.(D.) were not to be rigidly repeated in a manner that suggested an unintended "level of sanctity or immutable perfection". Rather and returning to the central theme that inspired the W.(D.) framework: "The main point is that lack of credibility on the part ofthe accused does not equate to proof of his or her guilt beyond a reasonable doubt" (at paragraph 13).

Similarly, in the earlier decision ofR v C., 2004 NSCA 135, Cromwell, J.A. (as he then was) confirmed: The W.(D.) principle is not a magic incantation which trial judges acting as triers of fact must mouth to avoid appellate intervention.

Thequestion for the appellate court in a judge alone case is whether, upon consideration of the whole of the judge's decision and theevidence at trial, it appears that the judge did not apply the proper test and therefore did not apply his or her mind to the possibility thatdespite having rejected the evidence of the respondent, there might nevertheless be a reasonable doubt: R. v. Brown (1994), (NS CA), 132 N.S.R. (2d) 224 (N.S.

C.A.); Sheppard at para. 65. [at paragraph 21] [26] In the recent decision of R. v Gauthier, 2022 ABCA 121, the Alberta Court of Appeal synthesized the principles which apply tothe W.(D.) analysis as follows: i.

The burden of proof is on the Crown to establish the accused's guilt beyond a reasonable doubt and that burden remains on theCrown so that the accused person is never required to prove his innocence, or disprove any of the evidence led by the Crown (subject tothe caveat that this does not apply to defences, such as that found in s 16 of the Criminal Code, where the onus rests with the proponentof the defence);

ii. In that context, if the accused's evidence denying complicity or guilt (or any other exculpatory evidence to that effect) is believed,or even if not believed still leaves the jury with a reasonable doubt that it may be true, then the jury is required to acquit (again subject todefences with additional elements such as an objective component); iii. While the jury should attempt to resolve conflicting evidence bearing on the guilt or innocence of the accused, a trial is not acredibility contest requiring them to decide that one of the conflicting versions is true.

If, after careful consideration of all the evidence,the jury is unable to decide whom to believe, they must acquit; and iv. Even if the jury completely rejects the accused's evidence (or where applicable, other exculpatory evidence), they may not simplyassume the Crown's version of events must be true. Rather, they must carefully assess the evidence they do believe and decide whetherthat evidence persuades them beyond a reasonable doubt that the accused is guilty. Mere rejection of the accused's evidence (or whereapplicable, other exculpatory evidence) cannot be taken as proof of the accused's guilt.

Childhood Memories and Vulnerable Witnesses [27] EH is a vulnerable witness testifying as to childhood memories. Although she was 18 years old at the time of trial, she was achild throughout the period of alleged sexual abuse (September, 2013 – June, 2015). In September, 2013, EH was 9 years old andbeginning Grade 5. [28] EH was also born with a number of physical and cognitive issues including: 1. A learning or processing disorder which makes math and reading particularly difficult; 2. Global Developmental Delay which means that she is behind her peer group, socially and intellectually; 3. Anxiety; and 4.

A functional neurological disorder which now causes seizures ranging from a relatively mild and temporary state ofdetachment to severe convulsions. [29] All too frequently, the victims of sexual crimes are among society’s most vulnerable: children and persons with mentaldisabilities. One insidious and troubling danger is that the physical or mental vulnerabilities preyed upon to commit sexual abuse notsubsequently be used as a weapon to attack the victim’s testimony. The ability of vulnerable persons to testify in Court must be protectedand reasonably accommodated.

At the same time, the Court must still ensure that the accused is afforded the right to make full answerand defence. McLachlin, C.J. discussed this quandary in R. v D.A.I., 2012 SCC 5, at paragraph 1: Sexual assault is an evil. Too frequently, its victims are the vulnerable in our society — children and the mentally handicapped. Yet rulesof evidence and criminal procedure, based on the norm of the average witness, may make it difficult for these victims to testify in courtsof law.

The challenge for the law is to permit the truth to be told, while protecting the right of the accused to a fair trial and guardingagainst wrongful conviction. [30] Embedded within this larger problem are three distinct legal issues: 1. Testimonial competence (i.e., whether the vulnerable witness has the capacity to testify in a court of law); 2. Admissibility (i.e., whether the evidence given by a vulnerable witness may properly become part of the Court record); and 3. Weight (i.e., the evidentiary value attributed to admissible evidence).

This third issue (weight) engages related sub-issuesaround the credibility and reliability of the admissible evidence. [31] In this case, the testimonial capacity of EH and the admissibility of her evidence is not in issue.

The legal controversy revolvesaround the weight to be given her evidence which, in turn, raises issues of credibility and reliability. [32] Recall the challenge identified by McLachlin, CJ in I.D.: protecting vulnerable persons from the trauma of sexual assault andpermitting the truth to be told while, at the same time, protecting the presumption of innocence and the accused’s right to a fair trial. Thefollowing related but, at times, competing pressures arise: 1.

On the one hand, the Court has firmly denounced the proposition that the evidence of children or childhood memories areinherently unreliable and therefore should be either automatically discounted or treated with special caution. The historic legalrequirement for corroboration of a child’s evidence has been repealed. (See (W.(R.) at paragraph 23. See also R. v B. (G.), (SCC), [1990] 2 S.C.R. 30 (“B.(G.)”) at paragraph 56 and R. v Marquard, (SCC), [1993] 4 S.C.R. 223(“Marquard”) at paragraphs 20 - 21). The Court now recognizes that vulnerable witnesses may not perceive the world in the samemanner as adults.

The fact that childhood memories may not be retrieved with photographic precision does not mean the essentialaspects of the memory are not true. Or, as Wilson, J succinctly wrote in B.(G.) at paragraph 56: “…a flaw, such as a contradiction, in achild's testimony should not be given the same effect as a similar flaw in the testimony of an adult. ... While children may not be able torecount precise details and communicate the when and where of an event with exactitude, this does not mean that they havemisconceived what happened to them and who did it.” 2.

On the other hand, and importantly, assessing the veracity and accuracy of children and vulnerable witnesses must notbecome so forgiving that the presumption of innocence is ignored or diminished. [33] In response to these competing pressures, the Court approaches the testimony of vulnerable witnesses by applying “criteriaappropriate to her mental development, understanding and ability to communicate” (W.(R.) at paragraph 26). In addition, the Court takes“a common sense approach when dealing with the testimony of young children and not impose the same exacting standard on them as it

does on adults” ( B.(G.) at paragraph 56). The factors which bear upon this assessment will include the witness’ mental development, their ability to understand the questions being asked, the presence of any animus, and their capacity to accurately recollect and communicate their memories to the Court. [ 34 ] In addition, mistakes, inaccuracies or inconsistencies on peripheral matters will not necessarily raise a reasonable doubt or fatally wound a complainant’s credibility. ( R. v Bishop , 2009 NSCA 32 at paragraph 5 and see also R v R.B. , 2018 NSCA 78 at paragraph 80 ).

By separating those issues which are “peripheral” from those which are “core”, the Court recognizes both the strengths and frailties of childhood memories in a common sense and contextual way while vigorously protecting the accused’s fundamental right to a fair trial. [ 35 ] A difficult but practical question arises as to how “peripheral” issues are distinguished from those that are “core”. Evidence that clearly goes to the elements of the offence must be considered “core” and approached with increasing scrutiny. However, separating “core” from “peripheral” evidence is not always so obvious.

There is no fixed list of issues deemed to be “peripheral”. Equally, there is no clear formula by which “peripheral” and “core” issues can be easily tagged or categorized. The analysis is more nuanced. As Derrick, J (as she then was) observed in R. v A.W.H. , 2017 NSPC 19 , “The assessment of a child's evidence should not fall prey to rigidity and should draw on common sense” (at paragraph 75). [ 36 ] The case law reveals the underlying complexity.

In W.R. , the Supreme Court of Canada confirmed that that the scope of “peripheral matters” includes the exact time and location of the alleged offence (at paragraph 26). In R. v Hughes , 2020 NSSC 143 , D.B. was the victim of multiple sexual assaults. However, he could not remember the precise date or time of day each attack occurred. He did recall significant details as to who sexually assaulted him; where the various assaults occurred and how he was violated. At paragraphs 5 – 31, Arnold, J. concluded: “D.B. was unsure about the dates and times of the events he described.

Considering his age at the time of those events, and the frequency with which they occurred, his inability to testify accurately about the chronological issues is peripheral to the more pertinent aspects of the alleged sexual assaults” (paragraph 66). [ 37 ] Examples of other details considered “peripheral” in the jurisprudence include the complainant’s inability to recall whose shirt she was asked to wear, or the title of a book described during the complainant’s testimony, or whether the complainant was on the accused’s left or right when alleged assaults occurred. ( R. v. G.S. , 2021 NSSC 133 ).

Similarly, in R . v D.G. , 2020 ONCA 671 , the Ontario Court of Appeal addressed certain inconsistencies in the complainant’s evidence around whether the bedroom door was locked during the first alleged assault and whether the back seat of a car was folded down during the second assault. The Court noted that the trial judge described these details as “peripheral”. The accused disputed that characterization.

The Court of Appeal disagreed with the accused and determined that the trial judge “accepted the complainant’s evidence as to what the appellant did and concluded that this satisfied her beyond a reasonable doubt. That conclusion was available to her on the evidence” (at paragraph 11). [ 38 ] Notably, accommodating mistakes or inconsistencies involving time and location does not mean that these issues are totally irrelevant or should simply be ignored whenever assessing the reliability or credibility of a child or vulnerable witness.

To make such a categorical pronouncement would offend the presumption of innocence. In R. v M.(J.M.) 2012 NSCA 70 , the complainant was an adult testifying as to alleged abuse when she was a teenager. She insisted that the historic abuse occurred in an old trailer and denied that it occurred in the family’s new trailer. That recollection was clearly wrong. The Nova Scotia Court of Appeal found that this error could not simply excused as a flawed but forgivable childhood memory as to location.

It wrote that the trial judge’s failure to bring “an uncritical and superficial eye to the complainant's evidence by forgiving her inconsistencies and ignoring her inability to recall events, dates, and places on the basis that she was ‘a child’. That failing, in this case, amounts to reversible error” (at paragraph 49). [ 39 ] A similar complication arises around mistakes or inconsistencies regarding frequency or the alleged number of assaults. In R. v B. (H.S.) , 2008 SCC 52 , the complainant testified as to 14 different assaults as a child.

The trial judge found “…the complainant's evidence as to the frequency and duration of the incidents unreliable. However, he also found that the frailties in the complainant's evidence were explicable as the natural distortion that occurs when events from childhood are recounted at an older age” (at paragraph 11).

The Supreme Court of Canada upheld this finding and concluded that “It is also clear that the trial judge found the frailties in the complainant's evidence to be an understandable result of trying to remember events that happened in childhood and were, in any case, related to peripheral, not core, issues” (at paragraph 14). [ 40 ] In R. v A.A.G. , 2020 ONCA 356 , the accused was convicted of numerous sexual assaults over a period of 2 ½ years, including sexual touching, forced oral sex and vaginal intercourse, sometimes facilitated by forced consumption of marijuana or sleeping pills.

The complainant was between 12 and 14 years old at the time of the offences and 24 years old at the time of trial. She testified that the abuse occurred daily during a trip from British Columbia to Ontario and that it was "persistent, constant, and unrelenting" thereafter (paragraph 14). The trial judge agreed that numerous sexual assaults occurred in the chronological order described by the complainant. However, "it was probably not daily"; rather, the attacks occurred "perhaps with less frequency" (paragraph 12). The trial judge found that this inaccuracy did not undermine the complainant’s reliability.

It was "more likely a marker of the memory of a child” (paragraph 12). The Court of Appeal agreed and concluded: “The frequency with which the assaults were alleged to have happened was by no means a trivial matter, but in the context of historical offences said to have occurred repeatedly over a period of several years, we cannot say that the trial judge erred in placing the weight he did on the complainant's characterization of the frequency of the abuse” (paragraph 13). [ 41 ] These cases all involved numerous assaults over a prolonged period of time.

A childhood victim of multiple sexual assaults is not required to either recall with scientific exactitude the number of times they were attacked or expected to keep a precise running record of the abuse. In the mind’s eye, persistent attacks in various locations may so predominate childhood memories that they seem part of daily life. [ 42 ] Again, however, this does not mean that any and all mistakes as to the frequency of alleged assaults are excused as “peripheral” and can never impact the Court’s assessment of a vulnerable witness’s credibility or reliability.

Consider the decision in R. v H.(D.) , 2016 ONCA 569 (“ R v H.(D.) ”) where the complainant originally reported 10 different incidents of alleged abuse to the police. By the time of trial, the number of alleged incidents of abuse rose from 10 times to possibly 120 times (paragraph 53). The Ontario Court of Appeal concluded that:

Although the trial judge was entitled to treat the frequency of the abuse as a peripheral matter in terms of an adult recalling events from childhood, the trial judge failed to also treat and assess the major inconsistency between the complainant's report to the police and her trial evidence the next year about the number of times the sexual abuse occurred, as a prior inconsistent statement.

She failed to consider how this significant change in the complainant's memory should be viewed in the context of both her credibility and reliability in recounting the events in a formal context with legal consequences. [paragraph 54] [ 43 ] Overall, in my view, the Court will extend a degree of latitude regarding mistakes, inaccuracies, or inconsistencies as to time, location, and frequency (in circumstances involving multiple assaults) when assessing the credibility and reliability of a vulnerable witness.

The natural frailties of childhood memories on peripheral matters cannot be exploited so as to fatally wound the credibility and reliability of a vulnerable witness. Rather, the Court will accommodate such inaccuracies or inconsistencies as common sense and context permits. [ 44 ] However, mistakes and inconsistencies around the time, location or frequency of childhood abuse are not automatically forgiven; and cannot always be excused as a frailty of childhood memories on peripheral matters.

Thus, as indicated, important concerns arise with respect to a complainant who alleges 10 separate incidents of sexual abuse and then, over time, alleges 120 assaults. Where these types of mistakes and inconsistencies touch upon central issues or compromise the accused’s ability to make full answer and defence, the complainant’s credibility and reliability may be called into question. [ 45 ] Ultimately, before finding an accused guilty of sexually assaulting a child, the Court must approach the important issue of credibility and reliability in a careful and critical manner.

The closer these matters come to the essence of the allegations against the accused and the essential elements of the offence, the presumption of innocence and concern over reasonable doubt compel greater scrutiny. Application of the Law to the Facts [ 46 ] To properly understand the issues and allegations being made, it is necessary to begin with a general description as to how special needs children were supported at Kingswood when EH was in Grades 5 and 6 – and how/when Mr.

Michaud, as an EPA, would have interacted with EH. [ 47 ] EH’s medical conditions meant that she qualified as a special needs child entitled to additional educational supports. In Nova Scotia, a document called an Individual Program Plan or “IPP” is prepared to define the scope of support and her expected educational outcomes for special needs children. The outcomes could involve academic expectations, social goals and/or independent lifestyle skills.

Unlike the provincial curriculum applied to the general student body, the supports and outcomes established under an IPP are uniquely tailored to the individual requirements, abilities, and interests of a special needs child. [ 48 ] As indicated, an IPP defines the scope of any required support. It could include minor adaptations to the method of learning. It might also confirm the need for help from a person known as an Educational Program Assistant (EPA). [ 49 ] In very simple terms, an EPA assists the teacher fulfil the outcomes defined within the IPP.

In addition, an EPA helps achieve certain related benefits including: [ 50 ] Special needs children are not automatically separated from their peer groups and educated in social isolation. Every reasonable attempt is made at inclusion although the process of inclusion comes with certain challenges as teachers attempt to balance the demands of special needs children with those of the broader community of students. EPAs help strike that balance.

They allow teachers to meet the individual requirements of special needs children while, at the same time, ensuring that all other children in the classroom also receive a proper education. [ 51 ] I understand that each school operating under the Halifax Regional Centre of Education (“ HRCE ”) is allocated a certain number of EPAs based on the perceived requirements of those special needs students who attend each individual school. Thus, HRCE may decide that two special needs students each require an EPA for ½ of a school day.

In this example, the HRCE may allocate a single full-time EPA to provide the ½ day support for those two students. Having said that, the way in which EPAs are actually deployed once at the school is more fluid and may not follow that individual allocation formula. Each school deploys its team of EPAs in a way that supports the individual requirements of a special needs student while also meeting the school’s needs as a whole. [ 52 ] At Kingswood, the person responsible for scheduling EPAs and assigning EPAs them to a particular student was Regina Waymakers. Ms.

Waymakers was also in charge of the school’s learning centre - an entirely separate room dedicated to accommodating special needs children. [ 53 ] In EH’s case, Ms. Waymakers testified that: 1. EH had EPA support each year at Kingswood Elementary. 2. EH preferred to work in her home classroom with her classmates. She did not like attending the learning centre; 3. EH had a distinct preference for female (not male) EPAs. Every effort was made to accommodate that preference. She testified that a male EPA (including Mr.

Michaud) would not have been assigned to work with EH except, possibly, as a last resort and on the rare occasion where her regular EPA was on break or if there was a staff shortage due to illness. [ 54 ] EH’s main EPA at Kingswood Elementary was Marsha Mason, who testified at trial. Ms. Mason worked as an EPA throughout the entire time EH was a student at Kingswood Elementary. Ms. Mason also confirmed that EH preferred to work with a female EPA and liked to stay in her homeroom class.

[ 55 ] Ms. Mason said that she worked with EH every morning during Grade 1. However, EH’s need for support diminished over time. By Grades 5 and 6, Ms Mason only assisted EH during brief periods of time, usually for math. [ 56 ] I find as a fact that in Grades 5 and 6, EH almost always worked in her home classroom and would have almost always been assigned a female EPA. As well, EH’s formal EPA support in Grades 5 and 6 would have been less than what she received in Grade 1. [ 57 ] Given these facts, a question arises as to whether Mr.

Michaud had the opportunity to sexually abuse EH on a daily basis, as alleged. [ 58 ] Neither the school nor the HRCE kept records as to precisely where an individual EPA was working each day. As indicated above, the situation on the group was fluid. However, the evidence was clear that: 1. At all material times, Mr. Michaud was the only male EPA working at Kingswood Elementary; and 2. Mr. Michaud recalled working in EH’s homeroom class for a part of each day during the time period in question. [ 59 ] Thus, Mr.

Michaud at least had the opportunity to assault EH, although he insisted that he was assigned to another male student and that he neither worked with EH nor was he ever alone in the pod with EH, where the sexual assaults allegedly occurred on virtually a daily basis. [1] [ 60 ] At this point, it is useful to describe the “pod” in greater detail.

Because the curriculum of children with special needs was different from those children in the regular stream, I understand based on the evidence that it would not be uncommon for special needs children to work in either a “pod” or an entirely separate room in the school called the “learning centre”. The evidence was clear that EH did not like the learning centre. To the extent she would be separated during class time, it would be in the pod. [ 61 ] The pod is a quiet, separate learning space often used by children with some form of disability or unique learning needs.

It is also used by children who may become upset and need time to regain their composure. In EH’s case, it would have been used mainly as a way to enhance her learning experience. [ 62 ] Children with special needs can move into the pod when required and focus on their schoolwork without either being distracted or distracting others. Having this separate space is particularly useful for children on an Individual Program Plan because their schoolwork is uniquely tailored to their particular needs and abilities.

As such, their work is often different from the rest of the class. [ 63 ] As to the pod’s physical lay-out, various witnesses created hand-drawn sketches of the classroom and the pod while testifying at trial. The sketches were of varying degrees of accuracy and quality. If there was a photograph of EH’s home classroom and the pod, it was unfortunately not tendered as evidence at trial. [ 64 ] In any event, as best I can tell from the evidence, the pod is a separate room located in one corner of the classroom and actually straddles the wall separating two adjacent classrooms.

Each classroom has their own door to the pod. As such, both classrooms are able to share and use the same pod. [ 65 ] The pod is small with a footprint of approximately 8 feet x 10 feet - enough for a desk, a couple of chairs, a whiteboard, and a computer. [ 66 ] As mentioned, entry to the pod is through two doors, one in each of the two adjacent classrooms. A large window is located directly beside each pod door (i.e., two windows in total).

Based on the witnesses’ estimates, the windows are about 4 feet height and extend from the pod door to the wall which separates the two classrooms (i.e., each window is about 4-5 feet in length). As such, people in the pod can see out to the classroom and people in the classroom can see out to the pod. [ 67 ] With that background, we can return to the evidence against Mr. Michaud. [ 68 ] EH states that Mr. Michaud was her EPA for ½ of each day in both Grades 5 and 6.

She says that he alternated between being her EPA during the entire morning one week and then the entire afternoon the next. [ 69 ] EH says that in Grades 5 and 6, Mr. Michaud brought EH into the pod under the pretence of completing schoolwork. Once in the pod, he would close the door and direct EH to face away from him and sit on his lap with her legs spread, as if she was riding a horse. He would then massage her vagina over her clothes (i.e., there was no direct contact). EH says that this pattern of abuse repeated itself over the course of at least a year. [ 70 ] The case against Mr.

Michaud ultimately turns on the credibility and reliability of EH’s evidence because, in my view, Mr. Michaud was neither a credible nor reliable witness. My reasons include: 1. His evidence was evasive in terms of his interactions with EH and his admissions were forced. He initially testified in chief that he was only ever assigned to male students. He made a point of emphasizing that his job description referred to male students only. However, he conceded during cross-examination that, at times, he may have been asked to assist with female students; 2.

During his examination in chief, he minimized any potential interaction with EH. However, during cross-examination, he conceded that he was likely in the same classroom as EH for Grades 5 and 6 working with another student. When asked why he suddenly recalled being in the same classroom as EH, he explained that “thinking about it now”, the memory came back to him. It apparently did not occur to him during examination-in-chief when he was also asked questions about his interactions with EH; 3. The way in which Mr. Michaud recovered memories improved over time raises another concern. The police first contacted Mr.

Michaud about these allegations on May 1, 2020. He did not call the police back, explaining that he was shocked and panicked. When the police called a second time, he hung up. On May 16, 2020, the police called twice. Mr. Michaud didn’t respond. On May 19,

2020 the police called and threatened arrest. At that point, Mr. Michaud immediately drove to the Valley Regional Hospital in Kentville, N.S. and checked himself in. Mr. Michaud testified that he was diagnosed with a rare disorder called “dissociative amnesia” which he says temporarily wiped out any memories of the time in question. When Mr. Michaud finally went to the police station on June 9, 2020, he said that he could not remember anything at all. Following his arrest and in the lead-up to trial, Mr.

Michaud said that he began recovering his memory to the point that, by the time of trial, he was now confident that his recollections were reliable. I did not share Mr. Michaud’s confidence. Mr. Michaud said that he was still retrieving his memories and that this recovery process was ongoing even during the course of this trial testimony. As indicated, it was only during cross-examination that Mr. Michaud suddenly remembered being in EH’s class during the years in question; working as an EPA for another male student.

It appears the diagnosis of “dissociative amnesia” was not based on any physical evidence but, rather, Mr. Michaud self-reporting a sudden, complete loss of memory. There was no expert opinion evidence as to the cause or effect or long-term consequences of “dissociative amnesia”, let alone any evidence as to the accuracy of this strange and rare phenomenon. To be clear, I do not find that Mr. Michaud’s post-offence conduct somehow is consistent with guilt or a guilty conscious.

I agree that being accused of sexual assault is an extremely stressful event and, upon receiving this information, different people will reasonably react in different ways. At the same time, absent persuasive corroboration or expert opinion evidence, I cannot accept Mr. Michaud’s self-serving statement that memories which he says were completely lost two years ago are now reliably recovered and, indeed, even improving while giving evidence at trial. [ 71 ] Were my task simply to prefer the evidence of EH over Mr. Michaud, the choice would be obvious and simple.

However, as indicated, this is not a credibility contest. Mr. Michaud is entitled to the presumption of innocence, and I am required to consider whether the Crown has still met its evidentiary burden and proven guilt beyond a reasonable doubt based on the totality of the evidence before me. [ 72 ] As I consider the remaining evidence, I am reluctantly but very clearly left with a reasonable doubt. For emphasis, the issue before me is not whether it is likely or probable that Mr. Michaud sexually assaulted EH.

Rather, the question is whether the Crown has proved the essential elements of the offences beyond a reasonable doubt. I am entirely satisfied that the Crown has not met this burden. [ 73 ] I begin by acknowledging that EH was a communicative and effective witness. She has a plain and unvarnished manner of speaking which is compelling. She listened carefully, demonstrated no animus and, in my view, was not susceptible to suggestive questioning during cross-examination. I also acknowledge that, while there were problems with how the police photo line-up was conducted, EH immediately and emphatically recognized Mr.

Michaud as the person who committed the alleged abuse. [ 74 ] I also wish to confirm that there were deficiencies and inconsistencies within EH’s testimony that I consider peripheral and did not diminish her credibility or reliability, having regard to her age, the fact that she was attempting to recall childhood memories, and her cognitive challenges. For example: 1. EH she clearly recalled her Grade 6 teacher (Ms. Peckham) and actually connected a visual memory of her sitting at her desk with her memory of the alleged assault. EH could not similarly recall the name of her Grade 5 teacher.

EH’s mother also testified at trial, and she remembered EH’s Grade 5 teacher was Ms. Weatherbee. In my view, that is a minor and excusable error; 2. EH did not recall the first or last time she was abused by Mr. Michaud. Consistent with the jurisprudence, this sort of temporal gap in her memory did not diminish EH’s credibility or reliability.

It is precisely this type of situation where a child witness is afforded some latitude on peripheral events. [ 75 ] Again, these issues had no bearing on my assessment of EH’s credibility and reliability. [ 76 ] The manner in which EH reported the alleged assault also had not bearing on my assessment of EH’s testimony. EH said that she only first disclosed the abuse to her Grade 10 English teacher at Charles P. Allen (or “CPA”) High School – several years after it occurred. EH explained that she had been told by Mr. Michaud to keep it secret.

However, during a presentation about abuse, she remembers looking at a slide and then raising her hand and saying, “I’ve been sexually abused”. In my view, there is nothing in that sequence of events that would diminish her credibility. [ 77 ] That said, there were other aspects of her evidence that caused me significant concern and, in my mind, raises a reasonable doubt as to her reliability sufficient to render a finding of guilt of such a serious offence unsafe in the circumstances. My reasons include: 1. EH’s evidence included new memories and elements of embellishment.

For example, she testified for the first time at trial that the sexual abuse did not always happen in the pod. She said Mr. Michaud also sexually assaulted her outside her home classroom and possibly the learning centre. She believed he led her to the learning centre because somebody may have been in the pod. The allegation came as a surprise to both the Crown and the defence. EH acknowledged not mentioning this event to the police but explained her memory was actually better at trial than at that time.

Very respectfully, this evidence of new assaults 7 years after the events and more than 2 years after first making these allegations to the police is concerning in terms of my assessment of EH’s credibility; 2. EH was clearly wrong about Mr. Michaud being her EPA. He was never assigned to EH as her EPA and certainly would not have been her EPA everyday for a half-day, as she said. Indeed, by Grades 5 and 6, EH did not have any EPA for a half-day. At most, Mr. Michaud might have only been rarely assigned to EH as a fill-in.

By itself, these errors might be considered peripheral until considered against the totality of the evidence and the essential allegations being made against Mr. Michaud. EH says that Mr. Michaud worked with EH as her assigned EPA on a daily basis and exploited that opportunity every time they met. In fact, based on formal EPA assignments, Mr. Michaud would have that opportunity very rarely (not daily). The Crown did not argue, and EH did not say, that the alleged abuse only occurred on a rare occasion.

Similar to R. v H.(D.) (see paragraph 41 above), the difference between allegations of daily abuse over a two year period and, perhaps, a rare opportunity to commit sexual assault become sufficiently significant as to influence the Court’s assessment of the complainant’s credibility and reliability; 3. Setting aside Mr. Michaud being formally assigned as EH’s EPA, I also considered the possibility that Mr. Michaud may have exploited the opportunity to abuse EH while he was in her home classroom assisting a male student who he was actually assigned to help.

As best I can tell from the evidence, the pod is a very open space with a large window facing the classroom. In my view, repeatedly taking EH into the pod and sitting her on his lap would have been not only visible, especially given the volume of alleged

assaults, but highly irregular given that, again, Mr. Michaud was assigned to another male student – not EH. Mr. Michaud would have had to regularly and relentlessly abandoned his male student and, without prompting or explanation, taken EH from her desk and brought her alone into the pod with him. All of this would have occurred under the pretense of helping EH with her schoolwork and in front of the homeroom teacher (Ms. Peckham in Grade 6 and Ms. Weatherbee in Grade 5). On this, Ms.

Mason testified that the pod was visible from the teacher’s desk in Grade 6, and it is notable that, as indicated, EH, connects a mental image of Ms. Peckham at her desk with the alleged assaults. The Crown submitted that Mr. Michaud was a sexual predatory hiding in plain sight. However, respectfully, the Crown did not call either the Grade 6 teacher (Ms. Peckham), or the Grade teacher (Ms. Weatherbee), or any other of EH’s Kingswood homeroom teachers as witnesses at trial to discuss what would have to be highly questionable behaviour on the part of Mr. Michaud.

As mentioned in paragraphs 11 - 12 above, the absence of relevant evidence can lead to reasonable doubt. For clarity, I do not say that the evidence of children must necessarily be distrusted unless corroborated. That legal requirement was repealed many years ago, as indicated. However, given what would have been relentless and highly unusual behaviour and also taking into account the inconsistencies in EH’s testimony, the absence of evidence from EH’s teachers reinforces my reasonable doubt. Conclusion [ 78 ] Mr. Michaud is acquitted of the charges of sexual assault and sexual interference.

Keith, J [1] There was one additional allegation of abuse outside the homeroom class that was raised by EH for the first time at trial. The Crown confirmed that it was not pursuing this allegation and I return to it below.