R. v. Fisher, 2019 NSSC 378

SUPREME COURT OF Nova Scotia Citation: R. v. Fisher , 2019 NSSC 378 Date: 20191216 Docket: CRH No. 479833 Registry: Halifax Between: Her Majesty the Queen v. Michael Oliver Fisher Restriction on Publication: ss. 486.4 and 539(1) DECISION Judge: The Honourable Justice Darlene Jamieson Heard: November 4, 5, 6, 7, 8, 19, 20, in Halifax, Nova Scotia Oral Decision: December 16, 2019 Counsel: Mr. Eric Woodburn, for the Crown Ms. Michelle James, for the Defendant, Mr. Fisher By the Court: Introduction [ 1 ] Michael Oliver Fisher (“Mr.

Fisher”) is charged with sexual assault ( Criminal Code , s. 271 ) and being a person in authority or trust who touched a young person for a sexual purpose ( Criminal Code , s. 153(1) (a)). The Crown is pursuing the s. 271 charge by alleging vitiated consent (s. 273.1(2)( c)). The Indictment alleges the events to have occurred between January 1, 2008 and July 1, 2008. [ 2 ] Mr. Fisher pled not guilty to the charges on September 6, 2018. [ 3 ] I will refer to Ms. R. as the “complainant” throughout this decision. I mean no disrespect in doing so.

It is not disputed that the complainant was a young person under the age of 18, and that there was sexual contact for a sexual purpose in the timeframe of January 1, 2008 to July 1, 2008. There is dispute as to the nature and extent of the sexual contact in this timeframe. The key issues are whether Mr. Fisher was in a position of trust or authority when the sexual activity occurred (s. 153) and, if in a position of trust or authority, whether he abused his position when the sexual activity occurred ( s.271 ). The Position of the Crown [ 4 ] The Crown says that Mr.

Fisher was not just the overseer of the Youth Group at Emmanuel Baptist Church, he was also the Youth Minister. The Crown says, as the Youth Minister, Mr. Fisher sat on the stage of the church during Sunday services and he preached. The Crown says that Mr. Fisher, acting as a mentor and spiritual advisor to the complainant, developed an emotional, physical and spiritual hold over her. The Crown submits that the whole of the evidence points to establishing the sexual activity occurred when Mr.

Fisher was in a position of trust or authority towards the complainant, who was a congregant in the Church and a member of the Youth Group, and that he abused that position. The Position of the Defence [ 5 ] The Defence says Mr. Fisher and the complainant were friends and, by early 2008, they were equals. Mr. Fisher says that a position of trust is not intended to catch this type of relationship. It is intended to catch a power imbalance and that, during the first part of 2008 when the sexual activity occurred, there was no power imbalance between Mr. Fisher and the complainant. Mr. Fisher says that,

during the summer of 2007, the complainant was employed at the Church and, by the fall of 2007, was a member of the Youth MinistryTeam. Mr. Fisher says that relationships can evolve over time and can begin and end differently. He says that a person’s title, in and ofitself, is not determinative of a position of trust, and when all of the evidence is considered it points to equality between Mr. Fisher andthe complainant at the time of the sexual activity. He further says, with regard to the s. 271 charge, that there was no evidence ofinducing, prevailing upon or persuading.

The Evidence Presented at Trial [6] Below I will review the evidence that was presented at trial. Although I will not set out all of the evidence in detail, I havecarefully considered all of the evidence given by all of the witnesses. [7] The Crown called the complainant, Reverend Sheila Ago, Reverend Lennette Anderson, and Detective Constable MichelleDooks-Fahie. Mr. Fisher chose to testify. Ten exhibits were entered during the trial. General Principles Credibility/ Reliability Assessment [8] Fact finding requires that I assess both reliability and credibility. They are different.

Reliability has to do with the accuracy ofa witness’s evidence. It involves an assessment of the witness’s capacity to observe, recall and recount the events in issue. Credibilityinvolves an assessment of the witness’s believability and truthfulness -- in other words, his or her veracity. [9] In reviewing and assessing the evidence and considering any inconsistencies, I refer to the following authorities. In R. v.D.F.M., 2008 NSSC 312, Murphy, J. stated: 9. Assessing evidence is not a credibility contest. It is not a matter of which witness is believed, and who is disbelieved.

The Courtis able to accept some or all of a witness' evidence. Those principles are highlighted by the Supreme Court of Canada in R. v. S. (J.H.),2008 SCC 30 (S.C.C.). I also refer to R. v. F. (S.), 2007 PESCAD 17 (P.E.I. C.A.) and in particular, para. 31 where the Court said asfollows with respect to the credibility issue: A conviction can only come about if the Crown evidence is so reliable, so consistent and so believable that it proves beyond a reasonabledoubt the guilt of the accused. There must be no other reasonable conclusion from the evidence.

If there is any reasonable doubtremaining after you hear the evidence of the Crown, either because of inconsistencies, unreliability, a lack of credibility or anything else,the Court must acquit — no matter what you thought of the accused's evidence. [10] The following, while not an exhaustive list, are helpful considerations when assessing the credibility of witnesses: the attitudeand demeanor of witnesses, prior inconsistent statements, external consistency, internal consistency, motive to mislead, ability to recordevents in memory, and application of common sense to the evidence to consider, whether it suggests the evidence is impossible,improbable, or unlikely. (See R. v.

Ross, [2006] N.S.J. No. 233, 2006 NSPC 20, and R. v. D.F.M., supra). With regard to the demeanorof witnesses, I am cognizant of the caution I must use in considering the demeanor of the witnesses who have testified. There areendless variables that could explain a witness’s demeanor when testifying. As noted in R. v. D.D.S., 2006 NSCA 34 , [2006]NSJ No 103 (NSCA), at para. 77, demeanor can be considered when testing evidence, but standing alone it is hardly determinative. [11] Our Court of Appeal said the following about assessing credibility and reliability in R. v.

D.D.S., supra,: 77 … Experience tells us that one of the best tools to determine credibility and reliability is the painstaking, careful and repeatedtesting of the evidence to see how it stacks up. How does the witness’s account stand in harmony with the other evidence pertaining to it,while applying the appropriate standard of proof in a civil or criminal trial? [Emphasis added] [12] The following statement in Faryna v. Chorny, (1951), (BC CA), [1952] 2 D.L.R. 354 (B.C.C.A.), at paras. 9and 10, is a useful reminder of some of the factors a judge should keep in mind when making findings as to credibility.

While thisstatement is made in the civil context, I am fully mindful of the different standard of proof that exists in a criminal matter as opposed to acivil matter: 9. If a trial judge's finding of credibility is to depend solely on which person he thinks made the better appearance of sincerity in thewitness box, we are left with a purely arbitrary finding and justice would then depend upon the best actors in the witness box. Onreflection, it becomes almost axiomatic that the appearance of telling the truth is but one of the elements that enter into the credibility ofthe evidence of a witness.

Opportunities for knowledge, powers of observation, judgment and memory, ability to describe clearly what hehas seen and heard, as well as other factors, combine to produce what is called credibility, see Raymond v. Bosanquet (1919) (SCC), 59 S.C.R. 452, at 460. A witness by his manner may create a very unfavourable impression of his truthfulness uponthe trial judge and yet the surrounding circumstances in the case may point decisively to the conclusion that he is actually telling thetruth.

I am not referring to the comparatively infrequent cases in which a witness is caught in a clumsy lie. 10 The credibility of interested witnesses, particularly in cases of conflict of evidence, cannot be gauged solely by the test of whetherthe personal demeanour of the particular witness carried conviction of the truth. The test must reasonably subject his story to anexamination of its consistency with the probabilities that surround the currently existing conditions.

In short, the real test of the truth ofthe story of a witness in such a case must be its harmony with the preponderance of the probabilities which a practical and informedperson would readily recognize as reasonable in that place and in those conditions. Only thus can a court satisfactorily appraise thetestimony of quick-minded, experienced and confident witnesses, and of those shrewd persons adept in the half-lie and of long andsuccessful experience in combining skilful exaggeration with partial suppression of the truth.

Again, a witness may testify what hesincerely believes to be true, but he may be quite honestly mistaken. ...

[13] Finally, in R. v. M.G., (1994), 93 C.C.C. (3d) 347, Ont. C.A., the Court commented on the means ofassessing credibility as follows: [27] Probably the most valuable means of assessing the credibility of a crucial witness is to examine the consistency between whatthe witness said in the witness-box and what the witness said on other occasions, whether on oath or not. Inconsistencies on minormatters of detail are normal and are to be expected. They do not generally affect the credibility of the witness. This is particularly true incases of young persons.

But where the inconsistency involves a material matter about which an honest witness is unlikely to be mistaken,the inconsistency can demonstrate a carelessness with the truth. The trier of fact is then placed in the dilemma of trying to decidewhether or not it can rely upon the testimony of a witness who has demonstrated carelessness with the truth. [28] The effect of inconsistencies upon the credibility of a crucial witness was recently described by Rowles J.A. speaking for theBritish Columbia Court of Appeal in R. v.

B. (R.W.) (1993), 40 W.A.C. 1 at pp. 9-10, 19 W.C.B. (2d) 260: Where, as here, the case for the Crown is wholly dependent upon the testimony of the complainant, it is essential that the credibility andreliability of the complainant's evidence be tested in the light of all of the other evidence presented. In this case there were a number of inconsistencies in the complainant's own evidence and a number of inconsistencies between thecomplainant's evidence and the testimony of other witnesses.

While it is true that minor inconsistencies may not diminish the credibilityof a witness unduly, a series of inconsistencies may become quite significant and cause the trier of fact to have a reasonable doubt aboutthe reliability of the witness's evidence. There is no rule as to when, in the face of inconsistency, such doubt may arise but at the least thetrier of fact should look to the totality of the inconsistencies in order to assess whether the witness's evidence is reliable. This isparticularly so when there is no supporting evidence on the central issue, which was the case here.

Assessment of Evidence [14] When it comes to the testimony of the witnesses, as the trial judge, I must decide how much or how little I accept. I maybelieve some, none, or all of it. (R. v. M. (R.E.), 2008 SCC 51 , [2008] 3 S.C.R. 3 (S.C.C.) at para. 65; R. v. François, (SCC), [1994] 2 S.C.R. 827 (S.C.C.) at para. 14). [15] The testimony of all of the witnesses must be assessed in the context of the passage of time.

Regardless of whether there areconcerns about reliability based on the passage of time, some events are so memorable that even when surrounding details are beyondrecall, due to the passage of time, the principal allegations can be accepted as having been proven beyond a reasonable doubt. Thematters in issue here date back approximately 11 years. [16] Similarly, any significance that might be attached to the passage of time, before coming forward to complain, must be assessedin the individual circumstances of the case.

It is well understood that victims of sexual assault cannot be expected to act in any certainway. Each person's experiences and ways of dealing with such incidents are individual to them (R. v. D. (D.) (2000), 2000 SCC 43, 148 C.C.C. (3d) 41 (S.C.C.) at para. 65; R. v. M. (P.S.) (1992), (ON CA), 77 C.C.C. (3d) 402 (Ont. C.A.),at para. 22). Presumption of Innocence and Burden of Proof Reasonable Doubt [17] A fundamental hallmark of our criminal justice system, is the principle of the presumption of innocence.

Every individual whois charged with a criminal offence is presumed to be innocent, unless and until that person is proven guilty beyond a reasonable doubt. The burden of proof rests with the Crown throughout the case. The question before me is not whether I believe that the events allegedby the complainant occurred; rather, the question before me is whether the Crown has succeeded in establishing each and every one ofthe elements of each charge beyond a reasonable doubt. [18] The meaning of “proof beyond a reasonable doubt” is set out in the decision of R. v.

Lifchus, (SCC), [1997] 3S.C.R. 320 (S.C.C.), where Justice Cory discussed the history, essential components, and meaning of proof beyond a reasonable doubt atparas. 27-35, and provided a model jury instruction at para. 39: 39. Instructions pertaining to the requisite standard of proof in a criminal trial of proof beyond a reasonable doubt might be given alongthese lines: The accused enters these proceedings presumed to be innocent.

That presumption of innocence remains throughout the case until suchtime as the Crown has on the evidence put before you satisfied you beyond a reasonable doubt that the accused is guilty. What does the expression “beyond a reasonable doubt” mean? The term “beyond a reasonable doubt” has been used for a very long time and is a part of our history and traditions of justice. It is soengrained in our criminal law that some think that it needs no explanation, yet something must be said regarding its meaning. A reasonable doubt is not an imaginary or frivolous doubt. It must not be based on sympathy or prejudice.

Rather, it is based on reasonand common sense. It is logically derived from the evidence or absence of evidence. Even if you believe the accused is probably guilty or likely guilty, that is not sufficient. In those circumstances you must give thebenefit of the doubt to the accused and acquit because the Crown has failed to satisfy you of the guilt of the accused beyond a reasonable

doubt. On the other hand, you must remember that it is virtually impossible to prove anything to an absolute certainty and the Crown is notrequired to do so. Such a standard of proof is impossibly high. In short, if based upon the evidence before the Court, you are sure that the accused committed the offence, you should convict since thisdemonstrates that you are satisfied of his guilt beyond a reasonable doubt. [19] In R. v.

Starr, 2000 SCC 40 , [2000] 2 S.C.R. 144 (S.C.C.), the Court pointed out that the burden of proof placed uponthe Crown falls "much closer to absolute certainty than to a balance of probabilities." (para. 242). The standard of proof beyond areasonable doubt applies to the final evaluation of guilt or innocence. I must not apply it piecemeal to individual items or categories ofevidence. (R. v. Menard, (SCC), [1998] 2 S.C.R. 109 at para. 23). [20] I wish to note here that as Mr. Fisher gave evidence, I have considered the case of R. v. D.(W.), (1991) (SCC),63 C.C.C. (3d) 397 (SCC).

In that decision, Justice Cory of the Supreme Court of Canada set out the instructions that a trial judgeshould give herself where the accused has placed his credibility in issue. The three instructions are:

(1) If I believe the accused, I must acquit;

(2) If I do not believe the evidence of the accused, but I am left with a reasonable doubt by it, I must acquit;

(3) If I do not believe the evidence of the accused and I am not left [with] a reasonable doubt by the evidence of the accused, am I, onthe basis of the evidence I do accept, convinced beyond a reasonable doubt of the guilt of the accused. (para. 11) [21] Abella, J., in R. v. C.L.Y., [2008] 1 S.C.R. 5, 2008 SCC 2 provided further guidance: [6] ... This Court has consistently warned that verdicts of guilt should not be based on "whether [triers of fact] believe the defenceevidence or the Crown's evidence" (W. (D.), at p. 757).

Rather, the paramount question remains whether, on the whole of the evidence,the trier of fact is left with a reasonable doubt about the guilt of the accused ... [7] ... The key is whether the correct burden and standard of proof were applied, not what words were used in applying them. [8] ... This of course does not give trial judges licence to wrongly analyse credibility issues, but it does serve to remind that what W.(D.) offered was a helpful map, not the only route.

Its purpose was to ensure that triers of fact — judges or juries — understand that theverdict should not be based on a choice between the accused's and Crown's evidence, but on whether, based on the whole of theevidence, they are left with a reasonable doubt as to the accused's guilt. (R. v. Challice (1979), (ON CA), 45 C.C.C.(2d) 546 (Ont. C.A.), at pp. 556 -57; R. v. MacKenzie, (SCC), [1993] 1 S.C.R. 212 (S.C.C.), at pp. 219 and 240). AsFish J.A. noted in dissent in R. c. Levasseur (1994), (QC CA), 89 C.C.C. (3d) 508 (Que.

C.A.), at p. 532, in languageapproved by this Court ( (SCC), [1994] 3 S.C.R. 518 (S.C.C.)): The trial judge must make it indisputably clear to the jury that reaching a verdict is not simply a question of choosing the morebelievable of the two competing stories ... To protect the innocent from conviction, we require proof beyond a reasonable doubt. Theapplication of this standard to questions of credibility is an entrenched part of our law.

The direction most consonant with this principleis a clear and specific instruction, where credibility is an important issue, that the jury must apply to it the test of reasonable doubt. Evidence Evidence of the Complainant [22] The complainant is currently 29 years of age. She is a teacher, teaching grade two students in the Gulf region in the MiddleEast. She was 14 years old when she met Mr. Fisher. Initial Meeting - Age 14 [23] At age 14, the complainant was attending a church in Sackville with her father and also attending Youth Group at that churchon Sunday evenings. The complainant’s parents were divorced.

The complainant was interested in her mother’s church, EmmanuelBaptist Church, and decided to attend the Sunday service with her. During the service, people stood up to greet each other and Mr.Fisher, who was seated in front of her, said hello, asked where she went to school and encouraged her to join the Church Youth Group. She learned Mr. Fisher was the Youth Pastor at the Church. She indicated he held her hand for a long period during the handshake andrecalled going home and asking her mother - who was this guy? On cross-examination she recalled thinking -who does this guy think heis? [24] She described Mr.

Fisher as the Youth Pastor at the Church and also the leader of the Youth Group. She testified that,occasionally on Sunday, he would preach in front of the entire congregation. She was not sure how often, but it was fairly often. Shesaid, regardless of whether he was preaching, he sat on the stage with the other Pastors, Ministers and other guests. Pastor LennetteAnderson was the Lead Pastor at the Emmanuel Baptist Church. Age 15 [25] The complainant testified that she wasn’t happy with the youth group at her dad’s church because she wanted to be moreinvolved, she wished to do more and to serve God more.

She decided to go to the Emmanuel Baptist Church Youth Group after thesummer she turned 15. Her current youth group met on Sunday evenings and the Emmanuel Baptist Church Youth Group met on Fridayevenings and, initially, she attended both. She was invited to attend the startup barbecue for the Emmanuel Baptist Church Youth Group

members. Mr. Fisher attended the barbecue. [ 26 ] The complainant described the youth group as essentially a Sunday School for teenagers. She said Mr. Fisher was the leader of the Youth Group. There were also volunteer adult leaders. There were junior high and high school-aged youth members and also a few kids from upper elementary school. She indicated they would have Bible study at Youth Group, share and talk about their lives and what God wanted for them. She indicated that all of the events were led by Mr. Fisher, unless he wasn’t available, and then there would be a volunteer leader.

She indicated that when she started Youth Group, the volunteer leaders were adults in their thirties and forties. Later, a younger group of leaders were involved who were in their mid to late twenties. [ 27 ] She testified that sometimes Mr. Fisher drove her home after Youth Group as well as, occasionally, the younger child of the Lucas family, with whom Mr. Fisher resided on weekends. She testified that either before or after Youth Group she and Mr. Fisher would hang out and would often stop for food. [ 28 ] She testified that, when she was 15, she and Mr. Fisher began communicating through MSN Messenger (MSN).

She said that during her 15 th year they started to communicate every day. She testified that Mr. Fisher was often online on MSN until late hours. She said that she shared her whole life with him. Mr. Fisher asked her about school, her family life and encouraged her to share. She said she was instantly happy, as someone was paying attention to her. She described her life when she was 15 as being pretty rocky, as her mother and stepfather were arguing quite a lot and this was a struggle for her. She said Mr. Fisher was the only person she could talk to about the things that were going on in her life.

She described him as a spiritual advisor and that her respect and admiration for him grew. She said he quickly became a “rock” in her life. [ 29 ] She testified that during this time Mr. Fisher would make comments to her about being his girlfriend, calling her beautiful and kissing her on the cheek. She thought he must see her as special and important. She did not think of him as her boyfriend, just that he was being silly and goofy, making her feel like he was a big brother. She said she felt special and felt that she was within his inner circle.

She indicated that, during this period, conversations with him would make or break her day because if he was in a good mood she was in a good mood. She said that she took every word and every look from him and held onto them “for dear life”. [ 30 ] The complainant testified that she was struggling with her other youth group at her father’s church because her skills were not being utilized. Mr. Fisher asked her why she didn’t like the other youth group and she told him that God was calling her to be more involved.

She wanted to lead her own little side ministry, being puppetry for the younger children in the church. She told him she wanted to be given a place to be appreciated and said, “Boom, he made it happen.” She said she started doing puppetry for the younger children at Emmanuel Baptist Church and also for the entire Church. Age 16 [ 31 ] The complainant testified that when she turned 16 there was a birthday party for her at her grandfather’s. Mr. Fisher attended the party and gave her a gift of a Bible. [ 32 ] She testified that, during her 16 th year, things got more confusing with Mr. Fisher.

She said there was communication late into the night with Mr. Fisher. She testified she started to wonder if she was living to make Mr. Fisher proud of her versus making God proud of her. She said at that time she was dealing with problems with God and trying to figure out what everything meant. She said she was really struggling with her home life at this time and had started attending Emmanuel Baptist Church on Sundays which bothered her dad and created issues between them. [ 33 ] She said Mr. Fisher’s flirtations increased when she was 16. She testified that, when she was 16, Mr.

Fisher told her that the Lucases were hearing concerns from people at Church about how close they were. She referred to a group outing to Micmac Mall where Mr. Fisher mentioned to her that concerns were shared with him, and told the complainant that she had to stop acting like she cared so much about him. He told her it was because of his position that people would give him a hard time and that he was always being watched. She said she was concerned that things would change but they didn’t. She said everything stayed the same but it was just not as visible. She said Mr.

Fisher ignored her in public situations and didn’t hug her in public but she continued to share the difficult things in her life with him. During this time period she was failing tests and not studying when she should have been. She said, when she was 16, Mr. Fisher began tutoring her. She said he helped her with math and essay writing. She said the tutoring occurred at the Church, at her home, or at the Lucas family home. [ 34 ] The complainant testified that almost every day she and Mr. Fisher communicated on MSN.

During this time he also got a cell phone and asked her to call him to wake him up in the mornings. They also had conversations via webcam and things became more visual as they were able to see each other. She said they would talk until four or five in the morning. She testified she tried to share her whole heart and deepest, darkest problems with Mr. Fisher. She said that, as her Youth Pastor, he was like a counsellor figure she could go to for help. She said when she was 16 they also spent quite a bit of time alone driving.

Age 17 [ 35 ] The complainant testified that she turned 17 in July and that summer she started her first job at the Church working in the Youth Drop-in Centre. Mr. Fisher advised her that she was the strongest candidate by far and that he was looking forward to getting to know her better, as they would be working in the same building. She said she was excited to get to know him better as well. She described it as a good summer. [ 36 ] That fall (2007) she started grade 12 and the Youth Group was still meeting on Friday evenings.

She said it was during this time that new volunteers, all in their mid to late twenties, became volunteer youth leaders at Youth Group. She said, in her grade 12 year, she was determined to get better grades. She testified that her home life remained rocky and she was trying to come to terms with the dynamics of her family, as there was a lot of fighting going on. She said sometimes Mr. Fisher would drop her off at home in the middle of a fight.

At the time, she believed her mom and stepfather would get a divorce, as her mom and she and her siblings would pack their bags in the middle of the night and go to a hotel. She said she took on a protective role with her siblings, making them laugh so that

they would not feel scared. She said she shared all of these issues with Mr. Fisher and he assured her that God was in control and it would be okay. [ 37 ] The complainant testified she and Mr. Fisher would talk about boys and he asked her if there were any boys in her life. She said, on one occasion, she shared that there was someone of interest in her high school, which led to them discussing that she was saving herself for marriage and saving her first kiss. She testified that she talked often about purity with Mr.

Fisher and how she wanted to stay away from sex and wanted to save as many firsts as she could for the man that she would marry. When asked why she was telling Mr. Fisher all of this, she responded that he was one hundred per cent her mentor and she saw him as her guide for all sorts of spiritual things. She said Mr. Fisher seemed quite interested in the physical feelings she had for this boy at school, asking why she felt them and did she want to feel them again. She said she had thought he would chastise her for this but he said it was normal to have these feelings.

She testified that most of her conversations with Mr. Fisher at this time were video chats and phone calls and were at night and into the early morning. [ 38 ] She testified that she relied on Mr. Fisher, trusted him with everything, considered him a gift from God, a powerful voice, and a blessing. She indicated that, although they were backing off in public, at night when they talked it would be completely different as he would speak normally and tell her she looked pretty. She described Mr. Fisher as “my Min”, meaning Minister.

She said he also described himself as her Min. [ 39 ] The complainant said that, in addition to being a member of the Youth Group, she also took on various responsibilities. She made PowerPoint presentations for lessons and started to be utilized more because she was a little older. She said she was invited to leadership meetings and to help plan events for the group when she was 17. She said that she was determined to have a leadership role and said that, when she was 16, she was named as the Youth Group delegate to represent them at conferences.

She said she believed that the volunteer leaders saw her as just a youth member; however, she wanted to be seen as a leader. [ 40 ] She testified that she and Mr. Fisher grew distant when he went home over Christmas (2007/2008). However, when he returned he said he missed her. Around this time, he also told her he had broken up with the person he was in an online relationship with and that he was happy and free of the situation. The complainant testified that, a couple of weeks into January, things were different as they were talking at least three hours every night until 4, 5 and 6 a.m.

It was around this time that Mr. Fisher began telling her that he had feelings for her, that she was beautiful, that he loved spending time with her, and that he wanted to hug her. She recalled during this timeframe, while communicating via webcam, he had a candy cane in his mouth saying that he wanted to share it with her. She described these discussions as confusing but interesting and exciting. She testified that his comments got more sexual as the months went on. She said that he would say that he was feeling “horny” and wanted her to come and massage him.

She said that he implied a lot of sexual things. [ 41 ] She testified that one evening when he went to her house to help her with math, they watched a movie and he asked her if she wanted to sit near him on the sofa. He laid down and invited her to lay with him. They laid together, with him asking her to scratch his neck and head, which she did. She described it as being very nice, intimate and relaxing and that they stayed cuddling most of the night and into the early morning.

She said that she felt that he must really like her and, although it felt strange, it also felt very nice. [ 42 ] She described this timeframe as being a strange cycle, saying that he would “come on” to her and share information and sexual thoughts and comments and they would see each other and be close but then he would change and be cold, nasty and mean. She said it didn’t make any sense from one night to the next. She said, at this point, she was grappling with whether she had feelings for him and finally started to admit to herself that maybe she did.

She believed that obviously he cared for her or he wouldn’t act so close with her. But then they would have conversations to the effect that they couldn’t act like this because of Mr. Fisher’s position in the Church. She testified that Mr. Fisher would say, “We can’t do what you want to do; we can’t hug like you want to; we can’t go where you want to go” -- that he was putting it all on her. She said she would spend a few days in absolute mourning but then, after a few days had passed, he would tell her he missed her and really wanted a massage.

She said she would try to share with him that she was confused and upset and when she had the strength to be articulate enough to speak with him about these things, Mr. Fisher would say that she was coming at him with a “victim attitude” and that she was doing it for his attention. [ 43 ] She gave the following evidence: … he knows me … he knows that I don’t … that I was terrified to be physical with anybody other than the person who wanted to marry me. And because he knew this I fully trusted that when he was being close with me that that meant something.

That meant that, well if he wants to hug me or he’s implying he really wants to kiss me, well then next week at church we’re going to be holding hands and walking into the sanctuary like in a relationship. Because otherwise why would he be leading me in this way, leading me on in this way. February 2008 [ 44 ] She testified that, in early February of 2008, after Youth Group he drove her to her stepsister’s apartment where they were going to watch movies. They had rented three movies. Her stepsister was at home but later went to bed.

She said while watching movies they were lying together, scratching each other’s necks, caressing each others arms. After the movie was over she gave him a light kiss on the lips. She testified that it was like an explosion happened. He took over, saying that he wanted to teach her how. She described that there was a lot of tongue involved, that he licked her lips and kissed her face.

She testified that he kissed her for a long time and her thought was that he must want to marry her because he kissed her. [ 45 ] She testified that he organized for her to go to his room in New Minas where he stayed while attending Divinity College at Acadia University. She said her mother did not want her to go but she assured her mother that she would be staying in a different room. When she finally allowed the complainant to go, Mr. Fisher and she were both excited. They took the bus and went to Boston Pizza when they arrived.

She said he asked her if she wanted a heart-shaped pizza and she thought that he loved her. When they went to his room there was a lot of kissing and massaging. She said that he massaged her whole body. She was not naked and had shorts on and he had not seen her chest at this point. Afterwards, at her request, he put on a song and they slow-danced.

[ 46 ] She described this as a new chapter, where things had turned physical. She said it was a big deal for her first kiss and she was excited about the future and how they would be together. She testified that, shortly after the night at his place, things were on a “linear line” that continued quite quickly from her first kiss, the French kiss, licking, massaging and then to full nakedness. She said he wanted to see her breasts, so on one occasion she was topless and he kissed her breasts and massaged her.

She testified that he would pray with her about these events and then act as if nothing had happened, treating her like any other youth member, essentially like she was a kid. She said, when they saw each other publicly, he wouldn’t talk to her and he wouldn’t come near her unless he had to. She described being devastated because she had started exposing herself to him and was confused about why there was no substance to what was going on between them. She said she was confused, as he would ask her things like why she was stalking him. She said this made her feel that she was too emotional and too young.

She testified that then it would start all over again with him saying that he missed her and needed a massage. [ 47 ] The complainant testified that, leading up to Valentine’s Day, they had the house to themselves. Mr. Fisher had gone to her house to pick up a Valentine’s card that she had made for him. She said they started watching a movie and snuggled and started kissing. She recalls that night he kept saying that he wanted her and missed her. She testified that he asked her if she wanted to go to the bedroom. In the bedroom, he took her clothes off and performed oral sex on her.

She testified that, in addition to performing oral sex on her, he also penetrated her digitally. She testified that he kept saying to her, “don’t hold back, it’s just us.” She testified that he told her he “wanted her” and she said that she wanted him but that they were not married. He then said that he had to go because he wanted her so badly, he couldn’t stay. She testified that a few days later they had a “big’ conversation” about how this would never happen again. She recalled crying herself to sleep, but then things changed once again.

March 2008 [ 48 ] The complainant testified that she again visited his apartment in New Minas where things got more physical. She said this was likely in March of 2008. On this occasion, when they were at his apartment, he directed her where to put her hands, what to do, what to rub. She said that at this point she had not yet seen Mr. Fisher fully naked, as it had been her only who had been fully naked to this point. She described lots of massaging, petting and touching and kissing and that he was trying to give her an orgasm. She described that he digitally penetrated her vagina.

She testified he said to her that he wished he could be inside her, was telling her to relax, that it was just them and whatever happens, happens and not to hold back. She said these were things he would say continuously on these nights. She testified that he reassured her that she could trust him because she was alarmed and wasn’t sure what she wanted. She described trusting him enough to go along with it. [ 49 ] She said, on another occasion, he said that she owed him an orgasm because he had given her one. She said she gave him oral sex and he had an orgasm that night.

She said, “It was the first time I’d ever seen anything like it. I was very weirded out.” She said on another night they performed oral sex on each other, which she described as the “sixty-nine” sexual position. She testified that the above-described nights were not in a row; she said there was time in between the incidents.

She said that, after each time they were physical, he would then have a conversation with her about backing off and stopping and that these conversations would take place the morning after or a day or two later. [ 50 ] She testified that she did not think there was any additional sexual activity in April 2008. In April she travelled to Cuba on holiday with her family. May 2008 [ 51 ] In May the complainant asked Mr. Fisher if he would chaperone a school trip and he agreed. Her teacher, Mr.

Fisher and a person, whom she believed to be in their thirties, were the three chaperones for her high school trip. [ 52 ] The complainant testified that, in May of 2008, the first incident of sexual intercourse occurred. She arranged to be at Mr. Fisher’s apartment in New Minas. She recalled waiting for Mr. Fisher at the library and said she would often wait until he was finished events he had at Acadia, sometimes waiting for him until midnight.

She testified they went to his apartment where there was touching, massaging, petting and several times he used his fingers to digitally penetrate her, saying he wished he was inside of her. She said that he said to her, “Say yes”, and asked why she was playing “hard to get”. She said she looked down, thinking his fingers were in her vagina, but that it was his penis rather than his fingers. She testified his penis was inside her vagina. She described being a bit alarmed but just laid there as he was talking her through it. She said he “pulled out” before he had an orgasm.

She said he asked her if she was hurting and when she replied that she was not, he questioned whether she had been a virgin. [ 53 ] She said that, after this timeframe, Mr. Fisher started being distant and mostly ignored her and no longer asked her about her family or about school. She said she was made to feel like she was a problem. She said there were a few more times that they were physical before her 18 th birthday. She testified that he said to her that she would be “legal” soon but she didn’t know what he meant. He said it a second time leading up to her 18 th birthday.

She testified that she thought he must mean “legal” in the sense of being able to get married without adult permission and she thought they would get married. The complainant turned 18 on July 1, 2008. [ 54 ] In relation to questions about the number of times she visited Mr. Fisher’s apartment in New Minas, the complainant refreshed her memory with her journals and testified that, from the end of January to March of 2008, she visited Mr. Fisher’s apartment in New Minas five times. She said between March and May 2008 there were two overnights at Mr. Fisher’s apartment.

She further testified that, during the timeframe of May to June 2008, she spent two nights in a row at his apartment. [ 55 ] The complainant testified on cross-examination that when she was 16 she was given additional responsibilities at Youth Group, but not “big ones”, for making posters, PowerPoint presentations and helping with suggestions for social things and helping to plan certain things. She said by 2007 she was invited to give input into some Youth Group planning. At some point, she was copied on Youth Group planning emails. By January 2008, the Youth Ministry included Mr.

Fisher as Leader, four adults from the Church and the complainant. She disagreed that she was being treated as an equal with the adult Youth Group Leaders. [ 56 ] In the June 24, 2008 Emmanuel Baptist Youth Ministry Annual Report, submitted by Mr. Fisher, the complainant is listed as a

Key Officer along with five other individuals. On cross-examination the complainant indicated all of the other individuals were in their mid-to-late twenties. She said that she was the only 17-year-old high school student on the Youth Group Leadership Team. [ 57 ] On cross-examination, the complainant testified that when she came home in 2014 from teaching abroad, she discovered that Mr. Fisher had been in a relationship with her good friend, which upset her. The complainant complained to the Church about Mr. Fisher in 2014 and went to the police in 2016.

She said that initially she thought that it was an ethical issue and that it would be better for the Church to report it to the police. She thought people might view it, coming from her, as being out of anger or revenge. She said she also felt a little semi-vicious about the fact that she thought the Church was initially covering up the situation. Reverend Sheila Ago [ 58 ] Reverend Ago testified that she is an ordained Reverend at the Chester United Baptist Church. She is also a counsellor doing both personal and couples counselling. She has been pastoring since 2012 and counselling since 2014.

She and her husband began attending the Emmanuel Baptist Church in July of 2007 and continued as part of the Church until 2017. She said that she came to know Reverend Fisher from the beginning of their church attendance, as he was seated on the stage with the other Ministers. She said the Ministers were very visible on the raised pulpit and she quickly got to know who they were. She testified that the Ministers in 2007 were Reverend Anderson, Reverend Fisher and Reverend Price. She indicated the congregation consisted of between 300 and 400 people. She described Mr.

Fisher as a very prominent figure in the Church. She said he was the Youth Pastor with oversight of young people. She described Mr. Fisher as Reverend Anderson’s right-hand person in 2007 and 2008. [ 59 ] Reverend Ago testified that she saw Mr. Fisher preach in 2007 and 2008 and her recollection is that he preached approximately one-third of the time. She did not know the complainant at that time, as she had nothing to do with youth at the Church at this time.

She came to know her in March of 2014 when she was approached and advised that a young lady in the Church wanted to talk to her in her role as a female Minister. She and two other women from the Church spoke at length with the complainant about the events involving Mr. Fisher. She said they took notes and transcribed them and then allowed the complainant to review the notes to ensure they were accurate. The transcribed document was then given to Reverend Anderson. [ 60 ] On cross-examination, Reverend Ago confirmed that Mr.

Fisher would have been called “Reverend” only after he was ordained and prior to that he was called Minister Michael. Reverend Lennette Anderson [ 61 ] Reverend Anderson is an ordained Baptist Clergyman who has been at Emmanuel Baptist Church since September 1999. He is the Lead and Senior Pastor. He explained the process for ordination. First, a local congregation affirms there is a call upon a person’s life. Then there is a discerning process with theological training. The University of choice for Baptists is Acadia University.

After attending Divinity College there is a one-year internship, followed by an Examining Council process and, if an individual passes this bar, they are deemed worthy of ordination. [ 62 ] Reverend Anderson said he first met Mr. Fisher when he was an international student at Acadia University. Mr. Fisher then moved to Dalhousie University and sporadically attended church services in 2003. Reverend Anderson saw Mr. Fisher as gifted and talented and spoke to him about considering theology. In 2004, Reverend Anderson brought Mr.

Fisher before the leadership of the Church and asked them to give him a Minister’s license. He explained that this is the first step on the journey towards ordination and is necessary to enroll in Divinity College. He said it is not an authoritative degree but is a recognition of being called for the Ministry -- an affirmation of a spiritual call. In 2004, people recognized Mr. Fisher as a Minister and people started calling him “Min”. [ 63 ] Reverend Anderson said that in 2005, Mr. Fisher became a full-time student at Acadia University Divinity College, taking a Masters in Divinity.

The Church entered into an agreement with him whereby the Church would cover the cost of his university tuition and books. In return, the Church expected that Mr. Fisher would carry out a weekend Ministry assignment. He said they asked Mr. Fisher if he would oversee the development of the Youth Group and stay over on Sundays to help lead the worship, do prayers, etc. Revered Anderson testified that Mr. Fisher would take the bus from Wolfville on Friday and a congregant would drive him back on Sunday. [ 64 ] Reverend Anderson testified that Mr. Fisher started leading the Youth Group in 2005.

In his role overseeing the development of the Youth Group, he was to establish a leadership team by finding individuals with a heart for youth, who wanted to come alongside and mentor youth. He said Mr. Fisher was to build the Ministry team and oversee the activities including Scripture readings, movies, outings, etc. Reverend Anderson testified that Mr. Fisher’s main assignment was to establish, create and build a Youth Ministry. He said that, by 2006 and 2007, the Youth Ministry was up and running, with Mr. Fisher as the overseer. [ 65 ] Reverend Anderson testified that Mr.

Fisher’s title during this time was “Minister”. He said that he delegated the responsibility to Mr. Fisher to bring the structure and activities to the Youth Group. He explained there were three Heads of Ministry within the Church, called “HOMs”. There was a Ministry of Men HOM, a Ministry of Women HOM, and a Ministry of Youth HOM. Mr. Fisher was the Minister of Youth HOM. In this role, Minister Fisher was in charge of the team and in charge of the youth. The Head of Ministry’s whole emphasis was to build relationships with the youth. He said Mr.

Fisher, in building relationships, would get to know the youth, provide fellowship, and journey with them by being involved in their schools and teams. He said this would have been more challenging when Mr. Fisher wasn’t there full time. [ 66 ] Reverend Anderson testified about the content of Youth Group meetings and said spiritually, there would be devotional time, praying with the kids, teaching them how to pray, teaching them about the Scriptures, about how they are relevant in their life, and applying them to Christian living.

Reverend Anderson said the Youth Leaders would be in a mentorship role to the youth, would champion them on, would journey with them through life by finding out what was going on in their school and home lives and acting as confidants. [ 67 ] Reverend Anderson testified that Mr. Fisher would normally be on stage each Sunday but not in clergy robes until after ordination. He said that Mr. Fisher was a gifted speaker and orator. When asked whether Mr. Fisher preached at the Church prior to

June 2008, he said that he couldn’t see why he would not have used him in this timeframe, although he could not recall how regularly. [ 68 ] Reverend Anderson explained that Emmanuel Baptist Church was one of 450 churches of the Convention of Atlantic Baptist Churches and each year they would prepare an Annual Church Report. He confirmed that the Annual Church Report at Exhibit 3 would have been sent to Convention Head Office in Saint John, New Brunswick by March 8, 2004. He said each year the report would include the official officers, HOMs, the number of baptisms, etc.

Reverend Anderson confirmed that, in the March 8, 2004 report, under the heading “Officers for the Coming Year”, Mr. Fisher is described as “Minister” and is listed as the Head Volunteer Youth Leader for grades 6 to 12. In addition, in the report under the heading “Field Treasurer & Additional Pastoral Staff”, Mr. Fisher is listed as “Minister Michael Fisher” along with two Pastors. [ 69 ] Reverend Anderson said that Mr. Fisher graduated from Acadia in May 2008 and became a full-time employee on June 1, 2008. Up until June 2008, he was not paid as a staff member.

However, the Church, in lieu of payment, gave him tuition and books for establishing and heading up the Youth Group at the Church. He said that once Mr. Fisher was a full time staff member with the Church, he was able to do more high-level ministry with the youth. He said Mr. Fisher was ordained in November of 2009. [ 70 ] Reverend Anderson testified about raising reported concerns with Mr. Fisher. He said he raised with Mr. Fisher that he had received a call expressing concern that the complainant was the only youth who had attended a youth event at the Wesleyan Church and when Mr.

Fisher arrived she was overly excited to see him. He said that he would have spoken to Mr. Fisher about it being inappropriate for him to be at an event at that time of night alone with a youth member from the Church. Mr. Fisher’s explanation was that the complainant was anxious because she was there by herself and, because they didn’t know anyone else, they did hang out together that night. Reverend Anderson indicated he took this explanation at face value. Reverend Anderson had no recall as to when this conversation happened.

He testified that driving youth home alone would be discouraged by the Church and being alone in a house with youth would also be discouraged. [ 71 ] Reverend Anderson gave evidence that the complainant was part of the children’s church, being involved with the nursery. He confirmed she was also involved with a puppetry ministry. He was unsure whether this church work was under the Children’s Ministry or the Youth Ministry. He confirmed that the report, authored by Mr.

Fisher, for the Annual Provincial Baptist Youth Fellowship Conference dated June 24, 2008 (Exhibit 8) lists six key Youth Officers, including the complainant. He said there was a conference held every July and this report covered the period of July 2007 to June 2008 and listed their ministry events over the year. Reverend Anderson also confirmed sending an email in April of 2008, to these same six individuals and to Mr. Fisher, concerning the Youth Summit to be held May 30 to June 1, 2008. [ 72 ] Reverend Anderson testified that he had not seen anything that caused him concern about the relationship between Mr.

Fisher and the complainant. In the period of 2007, 2008 and 2009, Mr. Fisher never mentioned to Reverend Anderson that he was in a relationship with the complainant. Reverend Anderson said that he knew the complainant was a junior leader in the Youth Ministry but did not know anything of a relational, sexual content. He described being extremely close with Mr. Fisher.

He said he was a confidant, a colleague in ministry, a close friend, and that it had been an absolute joy to serve with him. [ 73 ] In relation to the complaint brought by the complainant, he was advised by members of the Church to bring the complaint forward. He identified Exhibit 4 as the statement Mr. Fisher provided to the Church. He said that the Church was advised to terminate Mr. Fisher’s pastoral position for conduct unbecoming or inappropriate behaviour. Exhibit 5 is the termination letter signed by Reverend Anderson, terminating Mr. Fisher’s employment. The letter states that Mr.

Fisher was being terminated for serious breaches of trust as a Pastor. Reverend Anderson said that the breach of trust was having sexual relations with a congregant. Detective Constable Michelle Dooks-Fahie [ 74 ] Detective Constable Dooks-Fahie was the Lead Investigator in this matter. She gave evidence concerning the events leading up to Mr. Fisher’s videotaped interview, dated June 14, 2017, which was conducted at Halifax Regional Municipality Police headquarters on Gottingen Street in Halifax. She testified that Mr.

Fisher was provided with an opportunity to speak to a lawyer before the interview, was given his rights and was cautioned. The June 14, 2017 statement of Mr. Fisher (Exhibit 8) was admitted into evidence without the necessity of a voir dire . Mr. Michael Fisher [ 75 ] Mr. Fisher chose to testify. [ 76 ] Mr. Fisher testified that his date of birth is September 25, 1978. He is currently unemployed. He has a Masters of Theology, a Masters of Divinity and a Bachelor of Science. He is a permanent resident of Canada, having come to Canada from Bermuda in 2001 to study at Acadia University.

He switched to Dalhousie University after one year. He first became involved with Emmanuel Baptist Church when he was a member of the Acadia Baptist Choir in 2001. He began attending the Church more regularly in 2002. At that time, he volunteered to help out with the Youth Group when he could. [ 77 ] He testified that, in the summer of 2005, after graduating from Dalhousie University, Reverend Anderson spoke to him about whether he had a calling in life. When he went home to Bermuda he had a discussion with his Bishop which led to his decision to pursue Divinity College.

He said Emmanuel Baptist Church agreed to fund his education, which started in the fall of 2005, at Acadia Divinity College. He had a student permit but not a work permit. [ 78 ] Mr. Fisher said that he had a conversation with Reverend Anderson about helping out Carmelita, Sherry and Linden Avery with the Youth Group on Friday nights. He said Reverend Anderson understood how much reading was involved at Divinity College and had said to make it to the Youth Group when he was able.

He said that he got involved in terms of letting Reverend Anderson know what was going on with the Youth Group. [ 79 ] He said he was given a Minister’s license in 2004 because a Provincial Baptist Youth Fellowship was coming up in July and the Church wanted him to lead a workshop. He said in the fall of 2005 he had no idea how often he was at Youth Group. He said he had a

lot of reading at Divinity College, played intramural soccer, was teaching karate class, and that these things would keep him in the valley. He said, if he was in Halifax, he would typically be there for the weekend. He said he was more full time at the Church toward the end of his third year, being 2008, and after he graduated. [ 80 ] Mr. Fisher said that, while attending Acadia University, he lived in New Minas and, when in Halifax on the weekends, he stayed with the Lucas family. He said he would rarely have been in Halifax during the week unless there was a school break.

When asked who was running the Youth Group in 2005 and 2006, he said it wasn’t a matter of running the Youth Group, that there would be a conversation as to what to do the next week and that nobody was in charge at that point. He said for the rest of 2006 and 2007 the team volunteers did not change. [ 81 ] Mr. Fisher testified that he recalled meeting the complainant at Baptist Emmanuel Church on a Sunday morning. He indicated that, generally, if there were first-timers at the Church they would stand. He introduced himself to the complainant.

He knew of the family because the complainant’s mother was good friends with the Lucases. He said he spoke with the complainant and asked where she went to school and, if she was ever around, that she should go to the Youth Group. He said the Youth Leaders went around and introduced themselves to everyone. He understood at that time the complainant was going to another church with her father. He said the complainant started going to Sunday service and got involved in Junior Church as a Junior Leader. He had no role with the Junior Church.

He said he also attended a “welcome back barbeque” for the Youth Group at the Lucas home and the complainant was present but he could not recall the date. He said when the complainant started with the Youth Group she was also going to another church. [ 82 ] Mr. Fisher testified there was no year in which he would have attended every Friday Youth Group meeting until he was a staff member at the Church in June 2008. He said the Youth Ministry Team was like a partnership -- someone would lead Devotion or Bible Study and then another week someone else would do it.

He said in 2007, the complainant had come from doing puppetry Ministry in Children’s Church and she and some others thought they should also do this in Youth Group and at other events. Mr. Fisher told them to “go for it”. He said because the complainant was used to taking photographs and editing things with Adobe and was already a leader in the Junior Church, they said that she could become involved in a miniscule way with the Youth Group. He said that was in early 2007. In summer of 2007, the complainant worked with some of the young people at the church.

He said that in the fall of 2007, when in grade 12, she said that she wanted to take a break from Youth Group and began going to Wesleyan Church in Hammonds Plains. Either in January of 2008 or before he went home to Bermuda for Christmas, she told him she wanted to go back for the second half. She said there were a lot of young kids at the Youth Group and that she would like to take leadership in some part. He told her that he would have a discussion with the other leaders and that she could go to the meeting as well and tell them what she saw her role to be.

He said in 2008 she began attending team meetings. [ 83 ] Mr. Fisher gave evidence that, up until 2008, his relationship with the complainant was that they were friends in the same way he would describe his other friendships. When asked how the relationship developed, he initially said she wanted to be more involved in the church. For example, she and others wanted to paint the roof tiles so he said “go for it”. He said he got to know her better through the Youth Group when she was a member of the leadership team.

He said the kids didn’t see him as a leader and didn’t see the other people as leaders. [ 84 ] He said he was unable to say how often he was at the Youth Group in 2007 as he was on the soccer team at Acadia and travelled and played away at other universities. He said if they were playing in Halifax he would be at Emmanuel Baptist Church. 2008 The First Kiss [ 85 ] Mr. Fisher testified that he went to the complainant’s stepsister’s apartment for the first time in 2008. He said he believed it was after he returned from Bermuda in January, having been there for Christmas, and assumed it was in February.

He and the complainant went to the apartment after Youth Group. The complainant had said her stepsister wanted to see him and that they would watch a movie. He, the complainant, and the complainant’s stepsister watched one movie and had started watching a second movie when the complainant’s stepsister got a call from her boyfriend. She left the room for approximately 15 to 20 minutes, during which time the movie was paused. He and the complainant talked while waiting. He said she told him what was going on with her and she asked him about the online relationship he was having.

He then asked the complainant to check whether her stepsister was coming back. The complainant said she was not coming back and went to get him a ginger ale in the kitchen. When she returned she sat on the couch and reached over and kissed him. He said he did not know how to respond. He asked the complainant why she did that and she replied that she wanted to. He told her that she couldn’t just do that. He said he could not say whether or not he kissed her back. He said he didn’t know the complainant was interested in him. He said he got up and put his shoes on and said goodbye, as he had soccer the next day.

He said he may or may not have given her a hug and then left. [ 86 ] He said it was likely three days later he told her that they needed to talk. Over MSN he asked her why the kiss happened. He discovered she liked him. He told her, “If you like a person, you should have a conversation before you kiss them.” He said he couldn’t recall her reaction to this. He said that, in his mind, after the discussion they were cool. He said he could not recall exactly when he next saw the complainant. [ 87 ] Mr. Fisher testified that he still saw the complainant at Youth Group and they planned Youth Group things together.

He said around March of 2008 they started talking more again and she told him that she liked him. He asked about another boy at school that she had told him she liked and she said she didn’t like guys her age. He said they started communicating then but it wasn’t anything intense. They would communicate by MSN or see each other on the weekend. [ 88 ] He said he didn’t recall any other sexual contact in February. He said he was busy with schoolwork and attending lectures.

He said he did not recall seeing the complainant near Valentine’s Day but after Valentine’s Day he did pick up a Valentine’s Day card from the complainant by dropping by her stepsister’s apartment. Mr. Fisher said he could not recall any sexual contact with the complainant in March, but did not know. [ 89 ] Mr. Fisher testified that he recalled having a conversation with Reverend Anderson about concerns expressed by the Pastor

from the Wesleyan Church about he and the complainant. He said that he thought the discussion was before he and the complainant had sexual intercourse. Sexual Activity at his Apartment in New Minas [ 90 ] When asked about the next sexual contact, he replied he didn’t recall exactly but thought the next time was when the complainant went to his apartment because she wanted to sign a lease for an apartment, as she was planning to attend Acadia. Previously, the owner (a friend of Mr. Fisher), was unavailable so she asked if she could come down and stay overnight in order to sign the lease.

He said it was “cool” with him if it was okay with her parents. He believes he spoke to her stepdad and advised she could sleep in his bed and he would sleep on the floor. He said he thinks they met at Acadia, took the bus to New Minas, and then had something to eat. He testified that he had been playing soccer and grabbed a shower after he put the grey office chair at the edge of the bed so that they could play video games. He told the complainant to call her parents. He said they played video games but is unsure for how long. He said that he told the complainant he was sore from playing soccer.

She told him that she gave her brothers massages all the time and offered to give him a massage. She said to lay down on the bed and said she couldn’t properly give him a massage with his shirt on so he took his shirt off. He said she then started kissing his back. He turned around and they started kissing and this led to their clothes coming off. He said they were kissing and she was sitting on top of him. He took off her top and she took off her bra. He said he was not sure how their bottoms came off. He said they were kissing and touching each other and were close to having sex.

He said that his hands were rubbing her legs and he began to fondle her, touching her vagina. He said he asked if she was sure she wanted to do this. At this point in his narrative of the sexual activity, he said the complainant had wanted to visit him because he was not going to see her for her 18 th birthday. He then said that they were close to having sex.

He said they began to have sex, he started to go inside her and then he said that she didn’t look comfortable so he told her, “It’s not something that we have to do.” He said he had the impression she was hesitant because she wasn’t verbally responding and looked worried. He said there was no further touching after this but doesn’t recall if they cuddled that night, but that it was probable. He said he was on the left side of the bed, got up, put his shorts on and went downstairs. He said he could not remember if there was penetration but, to the best of his recall, there was no full stroking.

He said he has tried his best to recall when this occurred and he is not quite sure but was fairly certain it was close to her 18 th birthday. [ 91 ] On cross-examination he said that he’s unsure whether he placed his hand inside the complainant’s vagina. He said he can’t recall how much of his penis was inside her vagina but that he did not think all of it was. When asked if they talked after the sexual activity he indicated they talked briefly and said that he may have asked her whether she was being honest when she said she was a virgin. [ 92 ] Mr.

Fisher testified that the complainant was at his apartment in New Minas on two occasions. [ 93 ] Mr. Fisher was asked whether there was any other sexual contact prior to her 18 th birthday. He responded that he was not quite sure but there may have been one incident that he knows about. He said he remembered being at the complainant’s home with the complainant and her younger siblings. He said he had not seen the younger siblings for a while and they had been to Youth Group so he dropped them off, they had some food and then went downstairs to watch a movie.

Later, around 10 or 10:30, their mother called them to bed. When the complainant returned she asked him if he wanted to see her bedroom, which was in the basement and had just been renovated. He said that she had a nice bed frame that went to the ceiling. The complainant got on the bed and he was still in the doorway. He said, “Let’s watch the movie”, and she said to him, “Come here.” She then crawled to the edge of the bed and they kissed. He then said to her “You’re going to get me in trouble.” She left to get a drink and when she returned he was lying on the sofa.

He told her she could sit on the sofa and curled up his legs. She sat on the sofa. He said he cannot recall what happened then but thinks he fell asleep and woke up at 2:30 a.m. saying, “Oh my gosh. I have to go.” He said there was no other sexual contact before her 18 th birthday, to the best of his recollection. He said the kiss occurred before she visited him in the valley. Mr. Fisher denied any incidents of oral sex or “actual intercourse” prior to the complainant’s 18 th birthday. [ 94 ] Mr.

Fisher testified that the 71 st Annual Report - Emmanuel Baptist Youth Ministry, dated June 24, 2008 (Exhibit 6) which was submitted to the Church by him, lists the complainant along with the other leaders as Key Officers of the Youth Group. When asked if he made any distinction between the listed individuals, he indicated there was no distinction between the complainant and the other leaders. [ 95 ] Mr. Fisher said that after a couple of weeks on staff, in June of 2008 he became Associate Pastor and Pastor of Student Ministries.

He was an intern for one year and then was ordained in October or November of 2009. [ 96 ] Mr. Fisher said after the initial kissing incident he would not have said to her that he would “teach her how”. He said it’s not something he would say as he doesn’t speak like that. He testified that he did not have to talk the complainant into any of the sexual activity.

He testified that his statement to the Emmanuel Baptist Church was before he knew there was a criminal complaint and, as a result, he was unaware of the timeframe in question in relation to the criminal complaint when he prepared the statement for the church. Similarly, he did not have a timeframe in mind when he spoke to the police. He said that the Church definitely says no one should have premarital sex, whether you are a Minister or not. [ 97 ] Mr.

Fisher said on cross examination that he and the complainant talked about relationships, issues she had at school, issues in her home life, that he learned personal things about her and sometimes she became emotional. She told him about her family members drinking and fighting. [ 98 ] Mr. Fisher said that he went to the movies with the complainant on more than one occasion and that the Lucases’ son was with them. He said that he would also drive her home from the movies. He said that he picked the complainant up at work one or two times when she worked at Tim Horton’s in Hammonds Plains.

He said there were times he drove with her alone. [ 99 ] On cross-examination, Mr. Fisher said that a lot of his communication with the complainant was through MSN. He gave evidence that the MSN chats started in 2007, either at the beginning of 2007 or over the summer, and continued in 2008. He said he and the complainant got to know each other over the summer of 2007 when she was working with young people at the Church. He said that

they would have had conversations off hours, outside of the youth group and the conversations were probably mainly at night. He said that between January 2008 and June 2008 they talked fairly regularly during “off hours” and that the their conversations could go late into the night. [ 100 ] With reference to the late-night MSN chats with the complainant, Mr. Fisher said they discussed family, how school was going, but that they were not really conversations as he was doing work and she was doing work. They discussed who the complainant liked and who he liked, including his online relationship with Ms.

Duncan and said that they talked about that kind of stuff all the time. He said that the complainant would sometimes be upset during their MSN chats. When asked if she would pour her heart out to him, Mr. Fisher said generally this would not happen on MSN. He said, for example, when he went to Tim Horton’s to grab some food, she would tell him everything that was going on at home and he told her that her family would work it out. He said there were times she had family issues and was emotional and they would talk about the situation. He said the complainant felt pressure to be there for her younger siblings.

He would tell her what he would do and he would tell her that she couldn’t cry about it all the time. [ 101 ] On cross examination, Mr. Fisher testified that in 2007 and 2008 he would almost always sit on the stage at Sunday church service and would sometimes preach and that the youth group members, including the complainant, would see this. [ 102 ] Mr. Fisher said on cross-examination that, from the fall of 2007 through 2008, the Youth Group was opened with a prayer.

Sometimes there would be devotion, they would discuss the Bible and things that the youth members had heard in church, and they taught the children life lessons. He said that everything they did at Youth Group was to unite everyone under God. Assessment of Mr. Fisher’s Evidence [ 103 ] Without hesitation, I do not accept Mr. Fisher’s evidence concerning his role at Emmanuel Baptist Church, which goes to the central issue of whether he was in a position of trust. The Defence argued that the evidence of Mr. Fisher was internally consistent and credible. I disagree.

I will review some of the inconsistencies found in the accused’s evidence which leads me to reject this characterization of his evidence. [ 104 ] I find large portions of Mr. Fisher’s evidence to be inconsistent, implausible and evasive. I refer to the following examples. Mr. Fisher admitted that he oversaw the Youth Group at Emmanuel Baptist Church but refused to describe himself as a spiritual advisor or mentor to the youth. He said he wouldn’t describe himself in that way. He further said he didn’t believe that the kids at Youth Group saw him as a leader nor saw the other people as leaders.

In this timeframe, Mr. Fisher was between 25 and 28 years old and he oversaw the Youth Group. Naturally the members of the Youth Group, ranging from junior high to high school students, and some upper elementary students, would see him as a leader. It is implausible to suggest otherwise. [ 105 ] Mr. Fisher described himself much differently in his statement to the police.

When asked if he acted as a mentor to the kids in the Youth Group and talked to them outside of Friday night Youth Group meetings, he described the role as being pretty much everything -- literally everything -- and explained that if their parents were not involved and they were going through something, they would probably “come to any of us.” Additionally, when describing to police his comments in his statement to the Church concerning advice to the complainant with regard to her parents fighting, Mr. Fisher said in his police statement that he considered himself to be more than just a mentor to the complainant.

He said, “It wouldn’t have been just as a mentor … I would have considered us friends or more than that, I think … more than just a mentor.” Further, in his police statement, Mr. Fisher said that he fully understood he was in position of trust in the Church.

When asked to describe what he understood this to mean, he said that he imagined people depended on you for advice and counselling, etc. and he agreed the position would have a little bit of power. [ 106 ] When asked on direct examination who was running the Youth Group in 2005 and 2006 his response was that it wasn’t a matter of running the group, but that there were conversations as to who would do what next and that nobody was in charge at that point. When asked about his nickname “Min” being short for Minister, Mr. Fisher, on several occasions said that “Min” was not necessarily short for Minister.

This is an implausible response. He offered no explanation as to what else this could possibly mean. On cross-examination, Mr. Fisher gave following evidence about his nickname, “Min”.: Q. Right. And I understand that they had the nickname for you even then. The nickname was “Min”. A. Yeah, but it’s not ... they didn’t give me nickname. Q. You gave it to yourself? A. No, I didn’t. Q. Well somebody had to give it to you. A. Yes, my good friend, Larissa Downey, gave me the name. Q. All right. Is she a youth leader? A. No, not at the time. No. Q. Okay. And her name’s not on here. A. No. Q. But the nickname stuck.

People called you “Min”. A. I guess. Yes.

Q. Well you guess? A. No, I mean I guess it stuck because everybody started calling me Min after that. Q. Right. From 2004 on, that was your nickname for the youth group. They called you “Min”. Min this, Min that, Min, can we do this. A. Sure. Q. Is that sure as in shrug-your-shoulders sure or yes, that’s what they did. A. No, because I don’t know if it was in 2004 that they actually started calling me Min. Q. Well when was it? A. I … it was ... she started calling me ... when we met at a provincial Baptist youth conference. I think (complainant) was there taking some pictures as well ... Q. What day/date?

A. … so she called me there. Q. Date? A. This would have been probably around 2004 or before ... 2003/2004 … not quite sure. Q. Well the date of that document’s 2004. A. Yes. Q. So right around that time they started calling you Min. A. I wouldn’t say they started calling me Min. I would say she started calling me Min. Q. Right on. And “Min” is short for Minister. A. Not necessarily. Q. Oh. Did you have ... is your ... Min’s short for Michael? A. Well we have a ... she called me Min Mike, and we have a lot of Ministers in our church but nobody else is called Min so Min wouldn’t necessarily be short for Minister.

Q. Well what would it be short for? A. I ... she would call me Min Mike. This is what I’m saying. Q. Is it short for your middle name? Oliver? A. No. Q. Is it short for your last name? A. No. Q. Is it short for your first name? A. No. Q. So it would be short for Minister. A. Not necessarily. Q. All right. Fair enough. [ 107 ] Throughout his evidence he referred to conversations with people where they called him “Min”. For example, in relation to the complainant’s mother and stepfather, Mr.

Fisher said they had no issue with him being alone, driving the complainant and said they would say, “Okay, Min you’re going to Youth Group. Drop her off at the house, or just give her a ride when you come there …”. However, later on in this same exchange on cross-examination, he said her parents would not have called him Minister or Pastor or saw him in that light and that at no time would her mother have “referred to me as a Minister or Pastor Michael or anything like that.” [ 108 ] Mr. Fisher gave evidence that he would not have used language like Youth Pastor to describe himself.

However, when asked by police whether he had a title in 2005, he responded he thinks that it would have been Associate Pastor but pointed out that he would also have been Youth Minister at the same time. In his police statement, Mr. Fisher said he was a Certified Minister back home and confirmed that he had training back home. However, during his in-court evidence, Mr. Fisher had great difficulty with the title of Minister as noted above. He explained that being a Minister in Bermuda was simply some weekend training for an exhorter license and

that there was no conferring of a title. He further said he had been given the title of Minister by the Emmanuel Baptist Church because the Church wanted him to lead a workshop at a Provincial Baptist Youth Fellowship. On cross-examination, Mr. Fisher said that the “Minister thing was just a nickname, not a title.” [ 109 ] The reality of Mr. Fisher’s role was set out in the Church’s 2004 Annual Report. However, when presented with the Annual Church Report (Exhibit 3) which lists Mr.

Fisher as Head Volunteer Youth Leaders for Grades 6-12, he would not confirm whether this was an accurate depiction, deferring the question to Pastor Anderson. The 2004 Report also lists “Minister M. Fisher” as an additional pastoral staff along with two named pastors. It further notes Mr. Fisher’s email address as being a church address of mfisher@ebchurch.ca. [ 110 ] The differen

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