R. v. C.B.K.,

• Jurisdiction: Nova Scotia
• Judge: Scanlan, Saunders and Van den Eynden, JJ.A.
• Neutral Citation: 2015 NSCA 111
• Court: Court of Appeal of Nova Scotia (Canada)
• Citation: 2015 NSCA 111,(2015), 367 N.S.R.(2d) 65 (CA),367 NSR(2d) 65,(2015), 367 NSR(2d) 65 (CA),367 N.S.R.(2d) 65
• Date: 10 November 2015

R. v. C.B.K. (2015), 367 N.S.R.(2d) 65 (CA);

    1157 A.P.R. 65

MLB headnote and full text

Temp. Cite: [2015] N.S.R.(2d) TBEd. DE.038

C.B.K. (appellant) v. Her Majesty the Queen (respondent)

(CAC 437414; 2015 NSCA 111)

Indexed As: R. v. C.B.K.

Nova Scotia Court of Appeal

Scanlan, Saunders and Van den Eynden, JJ.A.

November 10, 2015.

Summary:

The 26 year old accused, in a judgment reported [2014] N.S.R.(2d) Uned. 286, was convicted of sexual assault, unlawful confinement, assault causing bodily harm, uttering a death threat, uttering a threat to damage property, and theft. The victim was the woman the accused had a recently terminated relationship with. The offences resulted from the accused's jealousy.

The Nova Scotia Supreme Court, in a judgment reported (2015), 356 N.S.R.(2d) 190; 1126 A.P.R. 190, sentenced the accused to three years' imprisonment for sexual assault, one year's imprisonment (consecutive) for assault causing bodily harm, one year's imprisonment (concurrent) for unlawful confinement, six months' imprisonment (consecutive) for the death threat, six months' imprisonment (concurrent) for the threat to damage property and six months' imprisonment (concurrent) for theft, for a total sentence of 4.5 years' imprisonment. After 525 days' credit for remand time on a 1.5 to 1.0 basis, the sentence left to be served was three years and 23 days. The accused appealed against conviction and sentence. The accused conceded that if the conviction appeal was dismissed there was no merit to the sentence appeal.

The Nova Scotia Court of Appeal dismissed the appeal.

Editor's Note: Certain names in the following case have been initialized or the case otherwise edited to prevent the disclosure of identities where required by law, publication ban, Maritime Law Book's editorial policy or otherwise.

Criminal Law - Topic 666

Sexual offences, rape or sexual assault - Consent and extorted consent - The accused was at his estranged partner's trailer when he went into a jealous rage over her perceived infidelity while he was recently incarcerated - He repeatedly beat her off and on over a nine hour period - He threatened to blow up the trailer - The partner was terrified - He insisted that she take a polygraph test to prove her fidelity and that she pay for it - In an effort to stop the beating, the partner turned over $420 in cash to the accused - The beating continued - The accused, seeing that the partner was a physical and emotional mess, testified that he thought it appropriate to console her with sexual intercourse - The partner did not object or resist - She testified that she did so in a further attempt to stop the beatings - After sexual intercourse, the beatings continued until she managed to escape to a neighbours - The partner suffered two black eyes and bruising and swelling about her face and arms - She had been warned not to leave the trailer until her bruises disappeared - The accused was convicted of a number of offences, including sexual assault and theft - The accused appealed, arguing that he should not have been convicted of sexual assault or theft where the partner, by her actions, consented to sexual intercourse and voluntarily gave him the $420 - The Nova Scotia Court of Appeal dismissed the appeal - The partner handed over the money in an attempt to stop the accused from beating her - She did not voluntarily hand over the money - Consent was vitiated by the accused's actions - Likewise, consenting to sexual intercourse in an attempt to stop the accused from continuing to beat her was not legal consent - The trial judge did not err in finding that, even if the accused believed that the partner was consenting to sexual intercourse, he could not have honestly believed that she was doing so voluntarily - The partner was clearly unlawfully confined, beaten and threatened - The trial judge's findings were unassailable and the verdicts were reasonable - See paragraphs 11 to 20.

Criminal Law - Topic 674

Sexual offences - Rape or sexual assault - Defences - Mistake of fact - [See Criminal Law - Topic 666 ].

Criminal Law - Topic 1662

Offences against property - Theft - Defences - Taking of property with the consent of the owner - [See Criminal Law - Topic 666 ].

Cases Noticed:

R. v. Izzard (T.A.) (2013), 332 N.S.R.(2d) 264; 1052 A.P.R. 264; 2013 NSCA 88, refd to. [para. 11].

R. v. D.W., [1991] 1 S.C.R. 742; 122 N.R. 277; 46 O.A.C. 352, refd to. [para. 12].

R. v. Lifchus (W.), [1997] 3 S.C.R. 320; 216 N.R. 215; 118 Man.R.(2d) 218; 149 W.A.C. 218, refd to. [para. 12].

R. v. Starr (R.D.) (2000), 258 N.R. 250; 148 Man.R.(2d) 161; 224 W.A.C. 161; 2000 SCC 40, refd to. [para. 12].

R. v. MacFie (B.S.) (2001), 277 A.R. 86; 242 W.A.C. 86; 2001 ABCA 34, refd to. [para. 17].

Counsel:

Darlene MacRury, for the appellant;

Marian Fortune-Stone, Q.C., for the respondent.

This appeal was heard on November 10, 2015, at Halifax, N.S., before Scanlan, Saunders and Van den Eynden, JJ.A., of the Nova Scotia Court of Appeal.

The judgment of the Court was delivered orally on November 10, 2015, with the following written reasons filed by Scanlan, J.A., on December 16, 2015.