Acquittal upheld in sexual assault case where accused claimed touch was accidental

Trial judge did not err considering rejected defence evidence, NS appeal court says

Acquittal upheld in sexual assault case where accused claimed touch was accidental

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.), [1991] 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.

Acquittal affirmed

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.

Recent articles & video

There are tools to fight 'deep fakes' but there are limitations, OBA webinar attendees told

Alberta Court of Appeal to reconsider decision on disciplinary costs for regulatory bodies

BC Supreme Court awards damages despite credibility and pre-existing condition concerns

Ontario Superior Court requires father to undergo counseling before resuming parenting time

Ontario Court of Appeal increases fine for Dairy Queen in workplace injury case

BC Supreme Court denies application to sue on behalf of father's estate

Most Read Articles

SCC reinforces Crown's narrow scope to appeal acquittal

Ontario Court of Appeal upholds paramedics' convictions over death of shooting victim

Support orders not automatically spent if ‘child of marriage’ hits age of majority: BC appeal court

BC Supreme Court awards damages for chronic pain and mental health issues from car accident