R. v. Bowden (L.S.), (2016) 371 N.S.R.(2d) 109 (CA)

Judge:MacDonald, C.J.N.S., Hamilton and Farrar, JJ.A.
Court:Nova Scotia Court of Appeal
Case Date:November 19, 2015
Jurisdiction:Nova Scotia
Citations:(2016), 371 N.S.R.(2d) 109 (CA);2016 NSCA 17
 
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R. v. Bowden (L.S.) (2016), 371 N.S.R.(2d) 109 (CA);

    1169 A.P.R. 109

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Temp. Cite: [2016] N.S.R.(2d) TBEd. MR.023

Lewis Seward Bowden (appellant) v. Her Majesty the Queen (respondent)

(CAC 435924; 2016 NSCA 17)

Indexed As: R. v. Bowden (L.S.)

Nova Scotia Court of Appeal

MacDonald, C.J.N.S., Hamilton and Farrar, JJ.A.

March 10, 2016.

Summary:

The accused was convicted of three counts of assault, assault with a weapon, and five counts of breaching a recognizance or probation order. The complainant was a woman he had been living with. The accused was sentenced to 30 months' imprisonment, less credit for time already served on a 1.0 to 1.0 basis (eight months and one week). The accused appealed the convictions and the sentence.

The Nova Scotia Court of Appeal dismissed the conviction appeal. The sentence appeal was allowed to the extent of granting the accused enhanced credit for time already served.

Criminal Law - Topic 4399.6

Procedure - Charge or directions - Jury or judge alone - Directions re elements of offence (incl. time) - Bowden was charged with a number of assaults and other offences respecting a woman he had been living with - The Information stated that the assaults occurred between April 30 and June 14, 2014 - The trial judge misstated the dates on two occasions by stating "mid-April to June 21, 2014" and "between April 30th and June 20th of 2014" - Bowden appealed, arguing that his conviction should be overturned because the trial judge might have convicted him of assaults that occurred outside the dates set out in the Information - The Nova Scotia Court of Appeal dismissed the appeal, stating "There is no merit to this argument. The Crown does not need to prove that the assaults occurred on the dates alleged in the Information, or on any particular date, because an assault is a crime regardless of when it occurs and the dates of the assaults were not crucial to the appellant's defence - that they did not happen" - See paragraphs 19 to 29.

Criminal Law - Topic 4731

Procedure - Information or indictment - Charge or count - Indictable offences - Form and content - Date and description of offence - [See Criminal Law - Topic 4399.6 ].

Criminal Law - Topic 5204.3

Evidence and witnesses - General - Admissibility - Evidence of disposition or propensity of accused - Bowden was convicted of a number of assaults and other offences respecting a woman he had been living with - He appealed, arguing that the trial judge improperly relied on propensity evidence, namely, the complainant's testimony that she had gone to a women's shelter on three previous occasions due to Bowden's behaviour - The Nova Scotia Court of Appeal dismissed the appeal - The trial judge was simply describing the complainant's evidence rather than finding facts - In explaining why she rejected Bowden's denial of the assaults, the trial judge did not mention the complainant's testimony of her prior visits to the women's shelter - She did not accept or rely on the evidence in assessing credibility or in convicting Bowden - See paragraphs 13 to 18.

Criminal Law - Topic 5831.9

Sentencing - Considerations on imposing sentence - Domestic violence - [See Criminal Law - Topic 5861 ].

Criminal Law - Topic 5848.2

Sentencing - Considerations on imposing sentence - Time already served - Bowden was convicted of three counts of assault, assault with a weapon, and five counts of breaching a recognizance or probation order - The complainant was a woman he had been living with - Bowden was sentenced to 30 months' imprisonment, less credit for time already served on a 1.0 to 1.0 basis (eight months and one week) - The Nova Scotia Court of Appeal allowed Bowden's sentence appeal in part - The fact of pre-sentence custody alone would generally be a sufficient basis on which to award enhanced credit - It appeared that the trial judge thought an inference of lost eligibility for parole or early release should be limited to cases such as that of a first-time offender, an offence that was an isolated incident, or a case where there was evidence of good conduct on remand - These limitations ran counter to the law as set out in Summers (SCC 2013) - Bowden was entitled to credit on a 1.5 to 1.0 basis - The court reduced his sentence by four months and four days - See paragraphs 45 to 51.

Criminal Law - Topic 5861

Sentence - Assault - Bowden was convicted of three counts of assault respecting a woman he had been living with - Bowden (1) kicked and shoved the complainant and grabbed her by the hair; (2) threw juice in her face; and (3) spat on her - He was also convicted of assault with a weapon for throwing a metal kettle at the complainant - Bowden was sentenced to consecutive sentences of six months' imprisonment for each offence - He appealed, arguing that the trial judge erred in sentencing him to six months for the juice offence because it was less serious than the other assaults - The Nova Scotia Court of Appeal rejected this argument - The assault with the juice was not as insignificant as Bowden suggested - The trial judge accurately stated that "these are relatively low-level offences committed over a matter of weeks. But, and I stress 'but', the behaviour was demeaning, controlling, abusive and repetitive both physically and psychologically." - See paragraphs 42 to 44.

Cases Noticed:

R. v. G.B. et al. (No. 2), [1990] 2 S.C.R. 30; 111 N.R. 31; 86 Sask.R. 111, refd to. [para. 24].

R. v. S.D. (2011), 414 N.R. 1; 2011 SCC 14, refd to. [para. 24].

R. v. Jacques (C.A.) (2013), 423 Sask.R. 156; 588 W.A.C. 156; 2013 SKCA 99, refd to. [para. 24].

R. v. Dossi (1918), 13 Cr. App. R. 158, refd to. [para. 24].

R. v. Bou-Daher (J.) (2015), 366 N.S.R.(2d) 241; 1154 A.P.R. 241; 2015 NSCA 97, refd to. [para. 35].

R. v. C.A.M., [1996] 1 S.C.R. 500; 194 N.R. 321; 73 B.C.A.C. 81; 120 W.A.C. 81, refd to. [para. 40].

R. v. Carvery (L.A.) (2012), 321 N.S.R.(2d) 321; 1018 A.P.R. 321; 2012 NSCA 107, affd. (2014), 456 N.R. 35; 343 N.S.R.(2d) 393; 1084 A.P.R. 393; 2014 SCC 27, refd to. [para. 47].

R. v. Stonefish (S.T.) (2012), 288 Man.R.(2d) 103; 564 W.A.C. 103; 2012 MBCA 116, refd to. [para. 47].

R. v. Summers (S.) (2013), 304 O.A.C. 322; 2013 ONCA 147, refd to. [para. 47].

Counsel:

Lee Seshagiri, for the appellant, for the part of the sentence appeal relating to remand credit;

Lewis Seward Bowden, appellant in person for the convictions' appeal and the appeal of the length of his sentence for the assault with the juice;

William Delaney, Q.C., for the respondent.

These appeals where heard in Halifax, N.S., on November 19, 2015, before MacDonald, C.J.N.S., Hamilton and Farrar, JJ.A., of the Nova Scotia Court of Appeal. Hamilton, J.A., delivered the following reasons for judgment for the court on March 10, 2016.

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