R. v. I.E.B., (2013) 334 N.S.R.(2d) 83 (CA)

• Judge: Saunders, Oland and Bryson, JJ.A.
• Court: Court of Appeal of Nova Scotia (Canada)
• Case Date: May 27, 2013
• Jurisdiction: Nova Scotia
• Citations: (2013), 334 N.S.R.(2d) 83 (CA);2013 NSCA 98

R. v. I.E.B. (2013), 334 N.S.R.(2d) 83 (CA);

    1059 A.P.R. 83

MLB headnote and full text

Temp. Cite: [2013] N.S.R.(2d) TBEd. SE.013

Her Majesty the Queen (appellant) v. I.E.B. (respondent)

(CAC 369580; 2013 NSCA 98)

Indexed As: R. v. I.E.B.

Nova Scotia Court of Appeal

Saunders, Oland and Bryson, JJ.A.

September 10, 2013.

Summary:

The accused was acquitted of sexual assault. The Crown appealed from the acquittal, arguing that the judge erred in law: (a) in giving effect to the defence of honest but mistaken belief in consent in the absence of evidence giving the defence an air of reality, and (b) in his interpretation of consent under ss. 265, 273.1 and 273.2 of the Criminal Code.

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 - [See Criminal Law - Topic 669 ].

Criminal Law - Topic 669

Sexual offences, rape or sexual assault - Intention or mens rea - The accused was acquitted of sexual assault - The Crown appealed from the acquittal, arguing that the trial judge erred in law: (a) in giving effect to the defence of honest but mistaken belief in consent in the absence of evidence giving the defence an air of reality, and (b) in his interpretation of consent under ss. 265, 273.1 and 273.2 of the Criminal Code - The Nova Scotia Court of Appeal allowed the appeal - Assuming without determining that the trial judge properly found an air of reality to the defence of honest but mistaken belief in consent, he failed to consider the limitation in s. 273.2(b) of the Code that the accused must have taken "reasonable steps, in the circumstances known to the accused at the time, to ascertain that the complainant was consenting" - The judge's reasons did not include any analysis of the evidence to establish that the accused took reasonable steps, based on what he subjectively knew at the time, to ascertain consent - It was an error of law to fail to conduct the reasonable steps analysis - The court ordered a new trial - See paragraphs 23 to 49.

Criminal Law - Topic 674

Sexual offences - Rape or sexual assault - Defences - Mistake of fact - [See Criminal Law - Topic 669 ].

Criminal Law - Topic 4828

Appeals - Indictable offences - Right of appeal - By Crown - [See Criminal Law - Topic 4860 ].

Criminal Law - Topic 4860

Appeals - Indictable offences - Grounds of appeal - Question of law or error of law - The accused was acquitted of sexual assault - The Crown appealed from the acquittal, arguing that the judge erred in law: (a) in giving effect to the defence of honest but mistaken belief in consent in the absence of evidence giving the defence an air of reality, and (b) in his interpretation of consent under ss. 265, 273.1 and 273.2 of the Criminal Code - The accused argued that the appeal did not raise a question of law alone (Criminal Code, s. 676) and, consequently, the Crown had no right to appeal and the court lacked the jurisdiction to hear the appeal - The accused submitted that the judge had a reasonable doubt on mens rea which, he said, was a question of fact and not a question of law - The Nova Scotia Court of Appeal stated that "a trial judge's determination that he has a reasonable doubt does not entirely preclude the Crown from bringing an appeal from an acquittal. If the judge has misdirected himself as to the legal meaning or definition of consent, or the reasonable doubt is tainted by legal error, then his conclusion regarding reasonable doubt becomes a question of law and thus reviewable by an appellate court" - See paragraphs 10 to 21.

Cases Noticed:

Lampard v. The Queen, [1969] S.C.R. 373, dist. [para. 12].

R. v. Ewanchuk (S.B.), [1999] 1 S.C.R. 330; 235 N.R. 323; 232 A.R. 1; 195 W.A.C. 1, consd. [para. 16].

R. v. J.M.H. (2011), 421 N.R. 76; 283 O.A.C. 379; 2011 SCC 45, refd to. [para. 18].

R. v. Schuldt, [1985] 2 S.C.R. 592; 63 N.R. 241; 38 Man.R.(2d) 257, refd to. [para. 18].

R. v. R.G.B. (2012), 275 Man.R.(2d) 119; 538 W.A.C. 119; 2012 MBCA 5, refd to. [para. 19].

R. v. J.A., [2011] 2 S.C.R. 440; 417 N.R. 1; 279 O.A.C. 1; 2011 SCC 28, refd to. [para. 26].

R. v. Ewanchuk (S.B.) (1998), 212 A.R. 81; 168 W.A.C. 81; 1998 ABCA 52, refd to. [para. 36].

R. v. Robertson, [1987] 1 S.C.R. 918; 75 N.R. 6; 20 O.A.C. 200, refd to. [para. 37].

R. v. Osolin, [1993] 4 S.C.R. 595; 162 N.R. 1; 38 B.C.A.C. 81; 62 W.A.C. 81, refd to. [para. 38].

R. v. Park (D.G.), [1995] 2 S.C.R. 836; 183 N.R. 81; 169 A.R. 241; 97 W.A.C. 241, refd to. [para. 38].

R. v. Cinous (J.), [2002] 2 S.C.R. 3; 285 N.R. 1; 2002 SCC 29, refd to. [para. 39].

R. v. Dippel (A.) (2011), 505 A.R. 347; 522 W.A.C. 347; 2011 CarswellAlta 970; 2011 ABCA 129, refd to. [para. 40].

R. v. Esau (A.J.), [1997] 2 S.C.R. 777; 214 N.R. 241, refd to. [para. 40].

R. v. Cornejo (L.) (2003), 179 O.A.C. 182 (C.A.), refd to. [para. 43].

R. v. Malcolm (R.E.) (2000), 148 Man.R.(2d) 143; 224 W.A.C. 143; 2000 MBCA 77 (C.A.), leave to appeal refused (2001), 267 N.R. 192 (S.C.C.), refd to. [para. 44].

R. v. Cassidy, [1989] 2 S.C.R. 345; 100 N.R. 321; 36 O.A.C. 1, refd to. [para. 48].

R. v. Cogger (M.), [1997] 2 S.C.R. 845; 214 N.R. 64, refd to. [para. 48].

R. v. Tookanachiak (M.) (2007), 412 A.R. 42; 404 W.A.C. 42; 2007 NUCA 1, refd to. [para. 48].

Statutes Noticed:

Criminal Code, R.S.C. 1985, c. C-46, sect. 273.2 [para. 42]; sect. 676(1) [para. 11].

Counsel:

Mark Scott, for the appellant;

Kevin A. Burke, Q.C., for the respondent.

This appeal was heard on May 27, 2013, at Halifax, N.S., before Saunders, Oland and Bryson, JJ.A., of the Nova Scotia Court of Appeal. The following judgment of the Court of Appeal was delivered by Oland, J.A., on September 10, 2013.