R. v. MacLeod (G.D.), (1993) 122 N.S.R.(2d) 449 (CA)

• Judge: Clarke, C.J.N.S., Matthews and Chipman, JJ.A.
• Court: Court of Appeal of Nova Scotia (Canada)
• Case Date: May 25, 1993
• Jurisdiction: Nova Scotia
• Citations: (1993), 122 N.S.R.(2d) 449 (CA)

R. v. MacLeod (G.D.) (1993), 122 N.S.R.(2d) 449 (CA);

    338 A.P.R. 449

MLB headnote and full text

Her Majesty The Queen (appellant) v. Gregory Donald MacLeod (respondent)

(S.C.C. No. 02774)

Indexed As: R. v. MacLeod (G.D.)

Nova Scotia Court of Appeal

Clarke, C.J.N.S., Matthews and Chipman, JJ.A.

May 25, 1993.

Summary:

The accused was acquitted of sexual assault by a jury. The Crown appealed, submitting that the trial judge erred in in­structing the jury on the defence of mistake of fact in relation to consent in the absence of any evidentiary basis for doing so.

The Nova Scotia Court of Appeal dis­missed the appeal.

Criminal Law - Topic 674

Sexual offences - Rape or sexual assault - Defences - Mistake of fact - The accused was charged with sexual assault for alleged nonconsensual intercourse with the victim - The accused admitted having sexual intercourse, but claimed it was consensual - The victim claimed it was nonconsensual - The trial judge instructed the jury on the defence of mistake of fact in relation to consent - The jury acquitted the accused - The Nova Scotia Court of Appeal held that the trial judge erred in leaving the defence with the jury, where there was no evidentiary basis for the defence - The only issue was consent versus nonconsent - The court dismissed the appeal, how­ever, where the Crown failed to prove that the verdict would not necessarily have been the same but for the error - The court stated that "in acquitting the [accused], clearly, the jury could not have believed the complainant".

Criminal Law - Topic 5041

Appeals - Indictable offences - Dismissal of appeal if error resulted in no miscar­riage of justice - [See Criminal Law - Topic 674 ].

Cases Noticed:

R. v. Pappajohn (1980), 32 N.R. 104; 52 C.C.C.(2d) 481 (S.C.C.), refd to. [para. 4].

R. v. Reddick (S.J.) (1991), 122 N.R. 348; 47 O.A.C. 289; 64 C.C.C.(3d) 257 (S.C.C.), refd to. [para. 5].

R. v. Morin, [1988] 2 S.C.R. 345; 88 N.R. 161; 30 O.A.C. 181; 44 C.C.C.(3d) 193; 66 C.R.(3d) 1, refd to. [para. 6].

R. v. Vézeau, [1977] 2 S.C.R. 277; 8 N.R. 235; 28 C.C.C.(2d) 81, refd to. [para. 7].

R. v. MacKenzie, [1993] 1 S.C.R. 212; 146 N.R. 321; 118 N.S.R.(2d) 290; 327 A.P.R. 290, refd to. [para. 8].

Statutes Noticed:

Criminal Code, R.S.C. 1985, c. C-46, sect. 265(4) [para. 4]; sect. 686(4) [para. 6].

Counsel:

Kenneth W.F. Fiske, Q.C., for the appel­lant;

Kevin Drolet, for the respondent.

This appeal was heard on May 25, 1993, before Clarke, C.J.N.S., Matthews and Chip­man, JJ.A., of the Nova Scotia Court of Appeal.

On May 25, 1993, Matthews, J.A., delivered the following judgment orally for the Court of Appeal.