Nova Scotia

Bedford man acquitted in Dalhousie University sexual assault case

A Halifax judge has acquitted a Bedford, N.S., man of sexually assaulting a fellow Dalhousie University student, saying the evidence of the trial’s only witness — the complainant — was not credible or reliable.

Warning: this story contains explicit details of a sexual nature

Judge Perry Borden handed down his decision in Halifax provincial court on Thursday, March 24. (Robert Short/CBC)

A Halifax judge has acquitted a Bedford, N.S., man of sexually assaulting a fellow Dalhousie University student, saying the evidence of the trial's only witness — the complainant — was not credible or reliable.

Michael James Allain, who is in his early 20s, was accused of sexually assaulting a young woman in his dorm room at the Halifax university in the fall of 2019.

In a decision handed down last Thursday, Halifax provincial court Judge Perry Borden noted that even the Crown acknowledged its case had weaknesses, including the reliability of the complainant's testimony.

Borden told the court he had concerns about the woman's reliability and credibility, particularly as it pertained to her "blurred memory" when recalling the events of the night in question.

"This recurring memory deficiency is extremely concerning," he said.

"My view, it goes to the root of her credibility and it establishes that there is absolutely no evidence of her actions during the pivotal time, or her state of mind."

Complainant's testimony

Borden noted that Allain was originally facing two counts of sexual assault in relation to this complainant. However, at the conclusion of the Crown's case, and due in part to the evidence of the complainant, a Crown lawyer proposed that the court acquit him of one charge.

During the second incident for which he was charged, the woman testified she had just smoked cannabis with a friend when she received a Snapchat message from Allain saying he was aroused and wanted her to come over.

Borden noted that she replied she "could be interested," but that she was too tired. She agreed to sleep over in his room.

When she got to his room, he started kissing her, but she told him she wanted to sleep. She testified that her memory is then blurred, but that at some point he took his clothes off and had sex with her while using a condom.

After about three minutes, she described having a panic attack and pushing him off with both hands. She said Allain asked if he could spoon her, and she replied that it would comfort her.

The complainant testified that while spooning, she heard a latex sound and felt his bare penis inside of her vagina, and him squeezing her tightly. When he loosened his grip, she jumped out of bed and put her clothes back on.

Witness was evasive

She wrote in her journal the next day about the incident.

"In addressing her journal entry the next day, she acknowledged she was confused if it was right or wrong ... because she told him or made him believe that it was OK to take the condom off," said Borden.

He said there was an element of "evasiveness" during her cross-examination that was not exhibited during her direct examination.

"Several times she attempted to explain her answers with replies that were quite convoluted," said Borden.

He said an example of that was during her testimony about her feelings for Allain.

Memory gaps never explained

She testified that she was not interested in him, but later conceded that she told police she "dove in" when asked about his flirtatious behaviour toward her, and then described using those words because she has a hard time explaining things because she has ADHD.

"She asserts a position, and then the same position... is watered down for no apparent reason," Borden said.

"It would have been easier had [the complainant] just been candid with the court rather than provide an explanation that made no sense."

Borden noted the complainant testified she had gaps in her memory, but the cause of the gaps was never explained. He also noted that she told the court that she has been able to remember some things as time went on.

"How do I reconcile this gaping hole in the most critical part of her evidence?" Borden said.

"I thought long and hard about this issue, and quite frankly, I cannot think of any reasonable explanation for the blurred memory. In short, I am left without [a] rational explanation to explain this recurring blurred memory."

Judge left with 'serious doubt'

Borden concluded that if the complainant had memory gaps during the most critical parts of the evidence, "how could she say she was not consenting when there are these competing memory gaps?"

"The bottom line, I am left with serious doubt about what was reported to the police, what was testified in court and what was walked off in the cross-examination," said Borden.

"The blurred or blocked memory is extremely problematic ... and the evidence of [the complainant] on its own cannot withstand the rigorous, exacting, criminal standard of proof.

Allain faces another trial

"This does not mean the alleged events did not occur. Rather, it's impossible to conclude with any degree of certainty about what is true and what is false."

Borden said the Crown had therefore not proven the essential elements of the charge beyond a reasonable doubt. He found Allain not guilty of sexual assault.

Allain will stand trial in June for one count of sexual assault involving another complainant.

ABOUT THE AUTHOR

Aly Thomson

Reporter/Editor

Aly Thomson is an award-winning journalist based in Halifax who loves helping the people of her home province tell their stories. She is particularly interested in issues surrounding justice, education and the entertainment industry. You can email her with tips and feedback at aly.thomson@cbc.ca.

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