Trial judge did not err considering rejected defence evidence, NS appeal court says
In a recent sexual assault case, the Nova Scotia Court of Appeal affirmed the decision of a trial judge who said that he had a reasonable doubt that the complainant’s paternal step-grandfather intentionally touched her.
The complainant alleged sexual touching for over 30 minutes while the lights were turned off and while the whole family was watching TV. The respondent also rubbed her upper legs and vaginal area and put his hands down her pants and digitally penetrated her for 10 to 15 minutes, the complainant said.
The respondent testified that it was a momentary accidental touch. He alleged that he stood up to leave the room, used his hand to support himself, and slipped so his hand touched the complainant’s vaginal area. He said that he immediately moved his hand and apologized.
The trial judge acquitted the respondent. The judge – in the third step of the framework in R. v. W.(D.),  1 S.C.R. 742 – said that he had a reasonable doubt that the respondent intentionally touched the complainant.
He said that the complainant’s evidence was exaggerated. He found difficulty believing that the complainant’s grandmother and great-grandmother would be unaware and unresponsive to a sexual assault occurring close by for 30 minutes.
On appeal, the Crown argued that the judge’s conclusion that he had a reasonable doubt that the respondent intentionally touched the complainant was inconsistent with his earlier disbelief of the respondent’s testimony that he touched the complainant’s groin by accident.
In R. v. C.E.G., 2023 NSCA 1, the Nova Scotia Court of Appeal dismissed the appeal. The appellate court said that it lacked the jurisdiction to intervene since it found no legal errors in the trial judge’s reasons.
According to the appellate court, it was not a legal error for the judge to consider rejected defence evidence in the third step of the W.(D.) analysis. Though the judge had doubts about the respondent’s credibility, he never actually rejected the respondent’s evidence that any touching was unintentional, the court explained.
The judge properly directed himself that it was not a question of preference between the complainant’s and respondent’s evidence and instead asked himself, based on all the evidence, whether the Crown proved beyond a reasonable doubt that the respondent committed a sexual assault, the Court of Appeal ruled.
The Crown acknowledged that it could not find any cases supporting its position that considering disbelieved evidence in the third step of the W.(D.) framework would be a legal error, the appellate court noted.