Man found guilty of sexually assaulting girl, 15, in Halifax mall washroom

A man has been found guilty of sexually assaulting a 15-year-old girl in a washroom at a Halifax mall in November 2020, shortly after he was released from prison on parole.

Cody Dylan MacIntosh, 28, stood trial on three charges from an incident at Park Lane on Spring Garden Road: sexual assault, sexual interference and making child pornography by recording the encounter on his cellphone.

MacIntosh’s trial got underway in March 2022. After several delays, Judge Elizabeth Buckle delivered the verdict last month.

The judge convicted MacIntosh on all three charges and scheduled his sentencing hearing for April 5.

The defence applied for a mistrial after the complainant refused to testify during cross-examination.

Rather than grant the mistrial, the judge decided excluding the complainant’s evidence would preserve MacIntosh’s right to a fair trial.

The defence then argued that the exclusion of the evidence did not remedy the prejudice to the accused and sought a judicial stay of proceedings.

In her decision, the judge said she was satisfied that MacIntosh had a fair trial in accordance with the fundamental principles of justice and that no stay of proceedings was required.

MacIntosh testified at trial, admitting he had sex with the teen in the mall washroom Nov. 26, 2020, and that he recorded the activity on his cellphone.

He was 24 at the time of the incident. At 15, the girl was too young to be able to legally consent to the sexual activity.

But MacIntosh told the court he believed the complainant was at least 18 and was consenting.

The video from MacIntosh’s phone was entered into evidence at the trial.

In her analysis, the judge said that if she accepted MacIntosh’s defence of mistaken belief in age, it could have entitled him to acquittals on the charges of sexual interference and making child pornography and could have allowed him to rely on factual consent or mistaken belief in communicated consent as a defence on the sexual assault charges.

Buckle said she had to consider whether the Crown had met its burden to prove MacIntosh knew the complainant was under the age of 16.

“To do that, I first considered whether he had an honest but mistaken belief in her age,” she said. “I found that the Crown had disproven that defence (and) proved beyond a reasonable doubt that he did not take all reasonable steps to ascertain (her) age.”

‘Reckless’ about age

She then moved on to the issue of whether the Crown had proven MacIntosh knew how old the girl was or was reckless or wilfully blind about her age.

“I concluded that the Crown had proven beyond a reasonable doubt that he was at the very least reckless about (her) age, meaning he knew there was some risk that she was under 16 … and then proceeded, despite that risk and without asking questions that he needed to ask,” the judge said.

“In the result, he knowingly touched a person who was under 16 for a sexual purpose, he knowingly made a sexual recording of a person who was under 18, and (he) could not rely on consent as a defence to sexual assault.”

In case the judge is found to be wrong in her analysis of age, she went on to consider the question of consent for the sexual assault charge.

“I concluded, based on Mr. MacIntosh’s evidence and the video showing the sexual activity, that (the complainant) was factually consenting at the beginning of the activity but then changed her mind,” Buckle said.

“I also concluded that the Crown proved beyond a reasonable doubt that Mr. MacIntosh did not take reasonable steps to ensure she was consenting to (all the) activity so did not have an honest belief in communicated consent. Finally, I concluded that the Crown proved … that Mr. MacIntosh knew, in the sense of being reckless, that (she) was consenting to that activity. He may have misunderstood what was required for legal consent, but that is no defence.

“As such, if I was wrong about my analysis about age, I would still have found Mr. MacIntosh guilty of sexual assault because (the complainant) did not consent and he knew that.”

Was on parole

MacIntosh was paroled from a federal prison in the late summer of 2020 and was living at the Jamieson Community Correctional Centre, a halfway house in Dartmouth, at the time of the Park Lane incident. His parole was revoked after his arrest, and he was returned to prison to serve the rest of his five-year sentence for assaults in New Brunswick.

He finished serving the sentence last October and is free on bail on the Halifax charges.

Peter Planetta was MacIntosh’s lawyer at the start of the trial but later announced he was leaving the legal profession. MacIntosh then retained the services of Michelle James.

The judge thanked James for stepping into a “factually complex trial.” She also expressed gratitude to James and Crown attorney Alicia Kennedy for being “civil and professional” throughout the hearing.

“It’s been a long road,” Buckle said.