R. v. Howe (L.D.), 2015 NSCA 84

• Judge: Beveridge, Hamilton and Farrar, JJ.A.
• Court: Court of Appeal of Nova Scotia (Canada)
• Case Date: September 04, 2015
• Jurisdiction: Nova Scotia
• Citations: 2015 NSCA 84;(2015), 365 N.S.R.(2d) 114 (CA)

R. v. Howe (L.D.) (2015), 365 N.S.R.(2d) 114 (CA);

    1151 A.P.R. 114

MLB headnote and full text

Temp. Cite: [2015] N.S.R.(2d) TBEd. SE.008

Lyle Howe (appellant) v. Her Majesty the Queen (respondent)

(CAC 429933; 2015 NSCA 84)

Indexed As: R. v. Howe (L.D.)

Nova Scotia Court of Appeal

Beveridge, Hamilton and Farrar, JJ.A.

September 4, 2015.

Summary:

The accused, a 29 year old lawyer, was convicted by a jury of sexual assault for having non-consensual oral, anal and vaginal intercourse with a teenaged girl after a night of socializing and drinking. The Crown and accused jointly recommended a sentence of three years' imprisonment.

The Nova Scotia Supreme Court, in a judgment reported (2014), 350 N.S.R.(2d) 149; 1105 A.P.R. 149, accepted the joint recommendation and sentenced the accused to three years' imprisonment. The accused appealed his sexual assault conviction.

The Nova Scotia Court of Appeal allowed the appeal and ordered a new trial.

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 - [See Criminal Law - Topic 4357 ].

Criminal Law - Topic 674

Sexual offences - Rape or sexual assault - Defences - Mistake of fact - [See Criminal Law - Topic 4357 ].

Criminal Law - Topic 4357

Procedure - Jury charge - Directions regarding defences and theory of the defence - The accused, a 29 year old lawyer, was convicted by a jury of sexual assault for having non-consensual oral, anal and vaginal intercourse with a teenaged girl after a night of socializing and drinking - He was acquitted of administering a stupefying drug with intent to facilitate a sexual assault - The accused appealed on the ground that the trial judge erred in failing to leave the issue of honest but mistaken belief in consent with the jury and in failing to properly review the evidence respecting that defence - The Nova Scotia Court of Appeal allowed the appeal and ordered a new trial where there was an air of reality to the honest but mistaken belief in consent defence - The Crown and accused had agreed that the issue should be put to the jury - The trial judge refused to do so, without providing cogent reasons - The trial judge erred in stating that the Crown's theory was that the girl was unconscious during sexual activity (i.e., incapable of consent) - However, the girl's evidence was not that she did not consent, but that she could not remember consenting - The Crown corrected the trial judge, but the matter of honest but mistaken belief in consent was not revisited - There was evidence, supported by a witness, that the girl did and said things that would lead the accused to believe that she was consenting to sexual activity and that she was not so intoxicated as to be incapable of giving consent - The issue should have been left with the jury - See paragraphs 30 to 72.

Criminal Law - Topic 4865

Appeals - Indictable offences - Grounds of appeal - Verdict unreasonable or unsupported by evidence -The accused, a 29 year old lawyer, was convicted by a jury of sexual assault for having non-consensual oral, anal and vaginal intercourse with a teenaged girl after a night of socializing and drinking - He was acquitted of administering a stupefying drug with intent to facilitate a sexual assault - The accused appealed on the ground that the verdict was unreasonable and unsupported by the evidence, particularly because the acquittal on the stupefying drug charge was inconsistent with a conviction for sexual assault - The Nova Scotia Court of Appeal rejected this ground of appeal - The verdicts were not inconsistent - The essential elements of the two offences were distinct - The court stated that "To convict, the jury were asked to draw an inference that because the complainant testified that she could not recall the events, she must have been given a stupefying drug. The jury may not have been satisfied beyond a reasonable doubt that her lack of recall was due to the ingestion of a stupefying drug as opposed to alcohol consumption, or if she had ingested a drug that the [accused] was a party to that act." - The acquittal on the stupefying drug charge was not inconsistent or irreconcilable with a conviction for sexual assault - See paragraphs 73 to 87.

Cases Noticed:

R. v. Cinous (J.) (2002), 285 N.R. 1; 2002 SCC 29, refd to. [para. 30].

R. v. Cairney (M.J.) (2013), 450 N.R. 1; 561 A.R. 192; 594 W.A.C. 192; 2013 SCC 55, refd to. [para. 30].

R. v. Gauthier (C.) (2013), 445 N.R. 97; 2013 SCC 32, refd to. [para. 30].

R. v. Buzizi (D.) (2013), 444 N.R. 30; 2013 SCC 27, refd to. [para. 30].

R. v. MacLeod (C.M.) (2014), 346 N.S.R.(2d) 222; 1095 A.P.R. 222; 2014 NSCA 63, affd. (2014), 465 N.R. 304; 355 N.S.R.(2d) 398; 1123 A.P.R. 398; 2014 SCC 76, refd to. [para. 30].

R. v. Davis (G.N.), [1999] 3 S.C.R. 759; 248 N.R. 44; 182 Nfld. & P.E.I.R. 78; 554 A.P.R. 78, refd to. [para. 53].

R. v. Fontaine (J.), [2004] 1 S.C.R. 702; 318 N.R. 371; 2004 SCC 27, refd to. [para. 53].

R. v. Esau (A.J.), [1997] 2 S.C.R. 777; 214 N.R. 241, refd to. [para. 55].

R. v. Flores (M.R.) (2011), 274 O.A.C. 314; 2011 ONCA 155, refd to. [para. 67].

R. v. W.H. (2013), 442 N.R. 200; 335 Nfld. & P.E.I.R. 1; 1040 A.P.R. 1; 2013 SCC 22, refd to. [para. 73].

R. v. Pittiman (R.) (2006), 346 N.R. 65; 209 O.A.C. 388; 2006 SCC 9, refd to. [para. 74].

R. v. Ewanchuk (S.B.), [1999] 1 S.C.R. 330; 235 N.R. 323; 232 A.R. 1; 195 W.A.C. 1, refd to. [para. 76].

R. v. M.V., [2010] O.T.C. Uned. 2474; 2010 ONSC 2474, refd to. [para. 77].

Counsel:

Brian H. Greenspan, Philip J. Star, Q.C., and Sharon E. Lavine, for the appellant;

Mark Scott, for the respondent.

This appeal was heard on March 25, 2015, at Halifax, N.S., before Beveridge, Hamilton and Farrar, JJ.A., of the Nova Scotia Court of Appeal.

On September 4, 2015, Farrar, J.A., delivered the following judgment for the Court of Appeal.