A Halifax judge has acquitted a Bedford, N.S. man of sexually assaulting another Dalhousie University student, saying the testimony of the sole witness in the trial – the complainant – was neither credible nor reliable .
Michael James Allain, who is in his early twenties, was accused of sexually assaulting a young woman in his dorm room at Halifax University in the fall of 2019.
In a decision released last Thursday, Halifax Provincial Court Judge Perry Borden said even the Crown acknowledged that its case had weaknesses, including the reliability of the plaintiff’s testimony.
Borden told the court he had concerns about the woman’s reliability and credibility, particularly regarding her “fuzzy memory” when recalling the events of the night in question.
“This recurring memory impairment is extremely concerning,” he said.
“My view, this goes to the root of his credibility and establishes that there is absolutely no evidence of his actions during the pivotal period, or his state of mind.”
Borden noted that Allain initially faced two counts of sexual assault regarding this complainant. However, at the end of the Crown’s case, and in part thanks to the complainant’s testimony, a Crown attorney proposed that the court acquit him of one charge.
In the second incident he was charged with, the woman testified that she had just smoked cannabis with a friend when she received a Snapchat message from Allain saying he was excited and wanted her to come over.
Borden noted that she replied that she “might be interested”, but that she was too tired. She agreed to sleep in her 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 hazy, but that at one point he undressed and had sex with her using a condom.
After about three minutes, she described having a panic attack and pushing him away with both hands. She said Allain had asked if he could spoon it, and she replied that it would comfort her.
The Complainant testified that as she picked up a spoon, she heard the sound of latex and felt his naked penis inside her vagina, and he squeezing her tightly. When he loosened his grip, she jumped off the bed and got dressed.
The witness was evasive
She wrote in her diary the day after the incident.
“Talking to her diary the next day, she admitted she was confused if it was right or wrong…because she told him or made him think it was OK to take the condom off” , Borden said.
He said there was an element of “escapism” in his cross-examination that was not demonstrated in his examination-in-chief.
“Several times she tried to explain her answers with pretty convoluted answers,” Borden said.
He said an example of this was during his testimony about his feelings for Allain.
Memory lapses never explained
She testified she was not interested in him, but later admitted she told police she ‘dived’ when asked about his flirtatious behavior towards her, then described using those words because she had trouble explaining things because she had ADHD.
“She asserts a position, and then the same position…is watered down for no apparent reason,” Borden said.
“It would have been easier if [the complainant] just been upfront with the court rather than providing an explanation that made no sense.”
Borden noted that the complainant testified that she had lapses in her memory, but the cause of those lapses was never explained. He also noted that she told the court that she was able to remember some things over time.
“How can I reconcile this gaping hole in the most critical part of his testimony?” Borden said.
“I’ve thought long and hard about this question, and quite frankly, I can’t think of any reasonable explanation for fuzzy memory. In short, I’m left without [a] rational explanation for this recurring fuzzy memory.”
The judge left with a “serious doubt”
Borden concluded that if the complainant had memory lapses during the most critical portions of the evidence, “how could she say she was not consenting when there are these competing memory lapses?” »
“At the end of the day, I’m left with serious doubts about what was reported to the police, what was testified in court and what was ignored in cross-examination,” Borden said.
“Fuzzy or blocked memory is extremely problematic…and evidence of [the complainant] alone cannot withstand the criminal’s rigorous and exacting standard of proof.
Allain faces a new trial
“This does not mean that the alleged events did not occur. On the contrary, it is impossible to conclude with any degree of certainty about what is true and what is false.”
Borden said the Crown therefore failed to prove the essentials of the charge beyond a reasonable doubt. He found Allain not guilty of sexual assault.
Allain will be tried in June on one count of sexual assault involving another complainant.