C.A.C. No. 02922
NOVA SCOTIA COURT OF APPEAL
Cite as: R. v. I.T.G., 1994 NSCA 82
Jones, Hallett and Matthews, JJ.A.
BETWEEN:
I.T.G. ) Joseph A. MacDonell
) for the Appellant
Appellant )
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- and - )
) William Delaney
) for the Respondent
HER MAJESTY THE QUEEN )
)
Respondent ) Appeal Heard:
) March 16, 1994
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) Judgment Delivered:
) March 16, 1994
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Editorial Notice
Identifying information has been removed from this electronic version of the judgment. |
THE COURT: Appeal allowed per oral reasons for judgment of Jones, J.A.; Hallett and Matthews, JJ.A. concurring.
The reasons for judgment of the Court were delivered orally by:
JONES, J.A.
This is an appeal by a young offender from a conviction for sexual assault contrary to s. 271(1)(a) of the Code.
The appellant and the complainant were junior high students at [...]l High School. The students had been playing basketball on the evening in question at the school. The appellant and three other male students were standing near the gym doors. The complainant and a friend joined the group. The students were joking about sexual fantasies. One of the group invited the complainant to go and have sex. The complainant jokingly agreed and they proceeded to an equipment room which was not regularly used where the assault allegedly took place on a mat on the floor.
There were at least two students present in the room with the appellant and the lights were turned off and on several times. There was considerable laughing and joking according to the witnesses. The complainant said that the appellant had sexual intercourse with her. The students left the room and went back to the gym when the janitor opened the door.
A complaint was only made to a school guidance counsellor a month or so later when rumours of the event circulated in the school. She made the complaint to still the rumours. The complainant was a reluctant witness on the trial. While she did say she did not consent, she also said that she did not complain as it did not bother her. When asked if she thought it was rape she stated she did not think so. She was also asked if she allowed the appellant to undo her jeans and she replied
"Well I was telling him no but". The other students who testified did not clearly substantiate that there was a sexual assault or lack of consent. The appellant while admitting that there was sexual contact denied that intercourse had taken place. The appellant had been confronted by the school counsellor and the complainant regarding the incident. While he apologized to the complainant he did not admit that there had been an assault.
The main issue on the trial was consent. The trial judge considered the issue primarily as to whether the appellant had an honest belief that the complainant consented. The trial judge then embarked on a minute consideration and weighing of the evidence in order to determine whether there was lack of consent. After considering all the evidence the trial judge found that there was no consent and entered a conviction.
The appellant has appealed from his conviction. The main ground of appeal is that the verdict is unreasonable and cannot be supported by the evidence. Needless to say the burden was on the Crown to prove beyond a reasonable doubt that the complainant had not consented. There was no burden on the appellant. The evidence of lack of consent had to be established through the complainant. Her evidence was admittedly reluctant and equivocal if not contradictory on this issue. After carefully reviewing the evidence we are satisfied the Crown failed to discharge the burden of proof and in our view it would be dangerous to uphold the conviction based on the complainant's evidence.
We allow the appeal and set aside the conviction and disposition.
Jones, J.A.
Concurred in:
Hallett, J.A.
Matthews, J.A.
C.A.C. No. 02922
NOVA SCOTIA COURT OF APPEAL
BETWEEN:
I.T.G.
)
Appellant )
- and - ) REASONS FOR
) JUDGMENT BY:
HER MAJESTY THE QUEEN )
) JONES, J.A.
) (orally)
Respondent )
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