B9

Tammy Scott-Wallace
Telegraph-Journal

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SUSSEX - The provincial court judge who found John William Shay guilty of sexually assaulting a young girl over a three-year-period described the encounters as "creepy".

Shay, 46, appeared before Judge Henrik Tonning in Sussex Provincial Court on Friday for his verdict in a bizarre case that spanned Jan. 1, 2002 to Dec. 31, 2005.

It is a case Tonning admitted to struggling with a week ago when he was to give his decision. He needed another week to review more case files and adjourned his decision until now.

While there was evidence that the sexual integrity of the victim was violated, there was no apparent sexual gratification for the accused, Tonning explained.

The testimony of the witness released during an earlier trial revealed consistent patterns of sexual assault that began when the young victim was eight years old. Her identity, or information leading to her identity, is protected under a publication ban.

Tonning revisited the victim's testimony in court Friday, starting back to when the abuse began in Sussex in 2002.

The strange incidents happened for three years, from the time the victim was eight until after she celebrated her 11th birthday.

The victim soon wanted to stop seeing the accused, the testimony showed.

"She didn't want to be there because of the way she was forced to interact with the accused," Tonning said.

In 2005 the victim revealed stories of the abuse with her mother.

Shay flatly denied the activity, and stayed that course throughout the court process.

"His position (has been), none of this is true. This is simply a dirty trick," Tonning said of the explanation Shay gave during his trial. "Just because someone looks like they're telling the truth doesn't mean they are.

"No, he didn't hurt her. The contact involved here is minimal," Tonning said of the physical aspect of the sexual assault. "One a scale of one to 10 (in terms) of sexual assault, this is on the low end, but it's an odd situation that causes me some concern. This is an unusual case, it's strange.

"It is clear from the evidence there doesn't seem to have been any overt sexual contact involved," he continued. "There is no evidence of sexual interaction or no sexual excitement."

However, after reviewing the case law, Tonning said there was no doubt the events described by the victim - who holds little resentment toward the accused - were inappropriate and sexual in nature because, by their very nature, the acts compromised her sexual integrity.

"Would a reasonable person come to the same conclusion?" Tonning asked. He believed they would.

"It's so unusual it has to be true," Tonning said.

"This is a case of sexual assault," he added. "Sexual gratification doesn't need to be present."

Tonning found Shay not guilty of the second charge of inviting someone under the age of 14 to touch him for a sexual purpose since the invitation to touch his parts was with a washcloth, and there is no evidence that it was for a sexual purpose.

"I have reasonable doubt," Tonning said. "One can conclude it's for a sexual purpose, it's creepy enough to be for a sexual purpose" but the evidence doesn't support that.

Shay will return to Sussex court for sentencing on Nov. 27 at 10:30 a.m. Tonning ordered a pre-sentence report and victim impact statements, and asked Crown prosecutor Kelly Winchester to research similar cases, as he will do, for sentencing purposes.

"All I'm saying is it's an odd case. Sentencing may be tricky," the judge said.

He added that while newer laws dictate indictable sexual assaults must carry a minimum period of incarceration, Shay was charged before the law changed and therefore incarceration won't be a mandatory sentence.