Kentville Justice Centre
By Kirk Starratt
The Nova Scotia Court of Appeal has overturned an acquittal in a Greenwood sexual assault case and ordered a new trial.
The alleged sexual assault occurred behind the former Top Hat tavern in Greenwood in March 2010. The identities of both the alleged victim and the accused, the respondent in the Crown’s appeal, are protected by a publication ban.
The appeal was heard in Halifax on May 27. The Crown argued that the judge's reason for acquittal suggested stereotypical thinking. The Crown further said that there was no air of reality to the defence of honest, but mistaken belief in consent and stated that the judge failed to consider certain statutory provisions.
The acquittal has been overturned unanimously by three court of appeal justices.
“With respect, the judge’s reasons do not include any analysis of the evidence to establish that the respondent took reasonable steps, based on what he subjectively knew at the time, to ascertain consent. His (the judge’s) failure to conduct such an analysis amounts to an error of law,” Justice Linda Lee Oland stated in a written decision released Sept. 10.
At the trial, Justice Gerald Moir heard evidence from two witnesses; the complainant and a friend the complainant spoke with after the alleged assault. The respondent did not testify.
On the night of the alleged assault, the complainant was out drinking with friends celebrating being accepted into the full-time forces. The woman testified that at about 1 a.m., when the accused led her to a secluded place, she was drunk but able to walk. In cross-examination, she argued that her judgement may have been impaired, “but I still knew what I was doing.”
She said the accused approached her at the edge of the dance floor in the tavern. He asked whether she would go with him and she said “yes.” They were friends and she trusted him, she said.
She testified that, outside the tavern, she asked, “Where are we going?” and the accused said only, “Follow me.” She thought he was going to tell her she had too much to drink and to go home.
Instead, they ended up behind the tavern. Under oath, the woman recounted the details of the alleged assault and said the man told her afterwards, “This never happened.” She said she vomited and went back into the tavern to the women’s washroom, where she found a woman she considers a good friend and described what had happened.
The complainant testified that she had never said “yes” or “no” to the accused. The only outward sign that she disagreed would have been her crying when the accused pulled her hair. The place was dark and there is no evidence the accused saw or heard crying.
In cross-examination, the woman said she had no idea what the man was doing until he exposed himself and that she was in shock after that. She was not compelled by a threat and nothing except the shock prevented her from refusing.
In acquitting the accused, the judge was not satisfied beyond a reasonable doubt that the accused knew the complainant was not consenting to the sexual activity or that he was reckless about it.