Brent Hawkes' lawyer told his gross indecency trial Wednesday that the evidence against the Toronto pastor is "weird," but the prosecutor contended that doesn't make it any less plausible.
Defence lawyer Clayton Ruby said in his closing argument that the entire case will be remembered as weird, amid "an abundance of evidence" that the testimony of the witnesses is unreliable.
"The weirdness tells you things that ordinary cases don't tell you," Ruby told provincial court Judge Alan Tufts in Kentville, N.S.
A middle-age man testified last week that Hawkes led him down a hallway naked during a drunken get-together at his trailer in Greenwood, N.S., in the mid-1970s, and forced oral sex on him in a bedroom when he was about 16 years old. Two other men have also testified they attended the get-together as teenagers, and one said he witnessed Hawkes performing oral sex on the complainant.
Hawkes, a high-profile rights activist, was then a teacher in the Annapolis Valley.
Responding to Ruby, Crown lawyer Bob Morrison said weirdness does not necessarily diminish probability.
"Just because it's weird doesn't make it less plausible that it happened. A lot of weird things happen and we see that all the time in provincial court," said Morrison just after the trial wrapped up for the day.
'Their testimony is unreliable'
Ruby said the Crown has "many problems" proving its case beyond a reasonable doubt, including that the alleged offences happened more than 40 years ago and that some witnesses testified they were drunk.
"I have not got the evidence to show that the three witnesses are lying... but we do have an abundance of evidence that their testimony is unreliable," said Ruby.
Ruby said there is a lot of unreliability in the testimony of the Crown witnesses, including "reconstructed" memories.
He pointed to a number of examples, including that the complainant said in his police statement that he was coerced into going to the trailer, but on the witness stand he admitted he had no memory of that happening.
"That's a danger zone. It too marks the evidence as unreliable," said Ruby.
But Morrison called those types of details "extrinsic."
Crown says Hawkes contradicted himself
"I describe them as discrepancies on extrinsic details, but there are some consistencies in the vivid or clear memories that the witnesses talk about — the important memories," said Morrison.
Morrison noted that Hawkes contradicted himself, noting that he said he didn't serve alcohol to any students and was concerned about students drinking, but evidence shows he allowed students to drink while they were at his trailer.
"I would suggest there's contradiction there," Morrison told Tufts, encouraging the judge to compare the witnesses' testimony with Hawkes' and to ask himself if his testimony is plausible.
"Is it plausible that Mr. Hawkes was concerned with underage drinking and took steps to prevent it while also conceding that he allowed (the students) to drink to excess?"
Ruby said two of the witnesses who testified about the party said they were very drunk, including the complainant, and that alcohol impairs memory and can lead to "imagination inflation."
"What the alcohol does ... is it produces contradictory and unreliable accounts of events," Ruby said, citing testimony from a psychologist he called to the stand on Monday. "The alcohol alone makes these unreliable witnesses."
Morrison told the judge that it was the Crown's position that it was a drinking party that got out of control, and that the sexual activity was at the instigation of Hawkes.
Judge reserves decision
Tufts noted that one witness testified the oral sex on the complainant took place in the living room but the complainant testified it happened in a bedroom. Morrison said he accepts that those testimonies are contradictory, but believes the witness did in fact observe the sex act but was perhaps mistaken on the details.
Ruby also suggested there was collusion among the witnesses after the alleged offences, but Morrison noted all the witnesses testified they had not spoken with each other since high school and never talked about the day at Hawkes' trailer.
Tufts reserved his decision until Jan. 18.
Hawkes has categorically denied the allegations and pleaded not guilty to charges of indecent assault and gross indecency.
Originally from Bath, N.B., Hawkes has been senior pastor at the Metropolitan Community Church of Toronto for 38 years. Considered one of the spiritual leaders of Toronto's gay community, he is also known as a vocal proponent of same-sex marriage, and in 2007 was appointed to the Order of Canada.
CBC reporter Blair Rhodes live blogged from the trial.