Man found guilty of tying up, photographing woman without her consent

Looking directly at Ernest McKinnon, Superior Court Justice Edward Gareau pointed Friday to a "blatant lie" the accused had told the court while testifying during his July trial on sexual abuse charges.

This lie, along with serious difficulties in other aspects of the 61-year-old bricklayer's evidence, cast a real doubt on his believability, the judge said when he convicted the local man of four offences and stayed a fifth charge.

"The court was left with the impression that the accused was trying to spin a narrative to justify his actions and conduct" on Feb 4, 2016, "particularly on the issue of consent."

At times, McKinnon's evidence was "incredulous, difficult to accept, and lacked the ring of truth," Gareau said as he read portions of his 24-page written ruling to those gathered in the courtroom to hear his decision.

The complainant's evidence was compelling, believable and had the ring of truth that was lacking in McKinnon's testimony of what occurred that night two years ago, he said.

Although she was vigorously cross-examined by defence lawyer Bruce Willson "her version of events were not seriously shaken."

At times she had difficulty recalling the sequence of events that night, but she was consistent in her recollection and retelling of what had happened, Gareau said.

A publication ban prohibits reporting any information that could identify the woman.

"This is a case about consent," the judge stated, noting the complainant had testified that the evening had started with consensual relations, which led to non-consensual acts, and that she didn't consent to the acts McKinnon performed on her.

"The accused gave completely polar evidence," indicating it started as a consensual activity and remained that way until the end, he said.

McKinnon testified that there was nothing that indicated that the complainant objected to what he was doing - including tying her wrists and ankles, anal sex, taking photographs and putting his initials on her thigh. 

He insisted the woman was actively engaged in the sexual experience, consented throughout and that he honestly believed that she consented, raising the defence of mistaken belief in consent, the judge said.

Gareau concluded it was impossible to take the evidence of both witnesses and "cobble together" aspects of both versions to support a defence of honest mistaken belief of consent.

"This defence has no air of reality." 

Prosecutor David Kirk's vigorous and effective cross-examination of the accused "exposed problems in his evidence and the incredulity of the tale he was trying to spin to the court," Gareau said.

The judge noted that McKinnon took every opportunity to indicate the woman consented or that he believed she did.

"It did not matter that this response was relevant" or not to the question.

He found McKinnon guilty of sexual assault, unlawful confinement and voyeurism (for surreptitiously taking photos with his cellphone).

On a charge of sexual assault with a weapon, the judge said he was satisfied that the accused had penetrated the woman with a magic marker, but questioned whether it met the definition of a weapon.

Gareau found him not guilty of that offence, but guilty of the included offence of sexual assault.

A fifth count of assault for using a pen to put his initials on the victim's body was stayed.

Gareau's comment that McKinnon blatantly lied on the witness stand referred to his testimony about a black mark on his index finger that was visible in photographic evidence the court viewed during the five-day trial.

McKinnon insisted it was a cut that was healing.

But when one of the photos was enlarged it provided a different answer, the judge noted

"There is absolutely no doubt" that it is a black magic marker mark, he said.

"The accused clearly lied under oath to the court about this point."

A sentencing hearing is scheduled for Nov. 19.

Gareau denied a Crown request that McKinnon be remanded into custody pending sentence.

EDITOR'S NOTE: SooToday does not permit comments on court stories