R. v. Mosher (C.A.), (2007) 269 N.S.R.(2d) 231 (SC)

• Judge: Warner, J.
• Court: Supreme Court of Nova Scotia (Canada)
• Case Date: May 30, 2007
• Jurisdiction: Nova Scotia
• Citations: (2007), 269 N.S.R.(2d) 231 (SC);2007 NSSC 189

R. v. Mosher (C.A.) (2007), 269 N.S.R.(2d) 231 (SC);

    860 A.P.R. 231

MLB headnote and full text

Temp. Cite: [2008] N.S.R.(2d) TBEd. OC.068

Her Majesty The Queen (plaintiff) v. Christopher Alfred Mosher (defendant)

(CRSK 276742; 2007 NSSC 189)

Indexed As: R. v. Mosher (C.A.)

Nova Scotia Supreme Court

Warner, J.

May 30, 2007.

Summary:

The accused was charged with sexual assault. The issue was whether the complainant consented to sexual intercourse.

The Nova Scotia Supreme Court acquitted the accused on the ground that the court was not satisfied beyond a reasonable doubt that the complainant did not consent.

Criminal Law - Topic 666

Sexual offences - Rape or sexual assault - Consent and extorted consent - The Nova Scotia Supreme Court stated that following principles respecting the defence of consent to a charge of sexual assault: "1. Consent, in the context of the actus reus is determined by the complainant's subjective state of mind towards the touching at the time it occurred. The approach is purely subjective. 2. While the complainant's testimony is the only source of direct evidence as to her state of mind towards the touching, the credibility of the claim that she did not want or consent to the intercourse must still be assessed in light of all the evidence, including her words and actions before and during the incident. 3. The accused's perception of the complainant's state of mind is not relevant. 4. I may only come to one of two conclusions: either she consented or she did not. There is no third option of implied consent. 5. Even if she ostensibly consented to sexual touching, or there is a reasonable doubt on that point, there is no consent in law if she submitted or participated by reason of factors listed in s. 265(3) or the circumstances listed in s. 273.1(2) of the Code." - See paragraph 2.

Criminal Law - Topic 666

Sexual offences - Rape or sexual assault - Consent and extorted consent - The accused was charged with sexual assault - The complainant testified that she did not consent to sexual intercourse - The accused testified that she did - The Nova Scotia Supreme Court acquitted the accused, as the Crown failed to prove beyond a reasonable doubt that the complainant did not consent - Both the accused and complainant were credible witnesses who gave their testimony in a straightforward and responsive manner - At the conclusion of the evidence, the court was unable to determine whose version of events was true - Applying the R. v. D.W. (S.C.C.) test, the court was bound to acquit the accused - Further, the court had concerns with the complainant's description of the sex act (which was improbable) and evidence of the possible motive she had to fabricate her evidence - There was no physical evidence conclusive of a sexual assault.

Criminal Law - Topic 5221

Evidence and witnesses - Burden of proof - Proof of guilt beyond a reasonable doubt - The Nova Scotia Supreme Court stated that reasonable doubt was defined as: "1. A reasonable doubt is not a doubt based upon sympathy or prejudice. Rather it is based upon reason and common sense. 2. It is logically connected to the evidence or absence of evidence. 3. It does not involve proof to an absolute certainty; it is not proof beyond any doubt nor is it an imaginary or frivolous doubt. 4. More is required than proof that the accused is probably guilty; if he is probably guilty, I must acquit. 5. Proof beyond a reasonable doubt is closer to absolute certainty than it is to probable guilt." - See paragraph 5.

Cases Noticed:

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. 2].

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. 5].

R. v. Brown (J.R.) (1994), 132 N.S.R.(2d) 224; 376 A.P.R. 224 (C.A.), refd to. [para. 7].

R. v. D.C.S. (2000), 184 N.S.R.(2d) 299; 573 A.P.R. 299 (C.A.), refd to. [para. 7].

R. v. J.M. (2002), 207 N.S.R.(2d) 262; 649 A.P.R. 262; 2002 NSCA 99, refd to. [para. 7].

R. v. P.S.B. (2004), 222 N.S.R.(2d) 26; 701 A.P.R. 26 (C.A.), refd to. [para. 7].

R. v. Saulnier (L.M.) (2005), 231 N.S.R.(2d) 342; 733 A.P.R. 342; 2005 NSCA 54, refd to. [para. 7].

R. v. Lake (P.E.) (2005), 240 N.S.R.(2d) 40; 763 A.P.R. 40; 2005 NSCA 162, refd to. [para. 7].

R. v. D.D.S. (2006), 242 N.S.R.(2d) 235; 770 A.P.R. 235; 2006 NSCA 34, refd to. [para. 7].

R. v. J.H.S. (2007), 250 N.S.R.(2d) 360; 796 A.P.R. 360; 2007 NSCA 12, refd to. [para. 7].

R. v. D.W.S. (2007), 251 N.S.R.(2d) 228; 802 A.P.R. 228; 2007 NSCA 16, refd to. [para. 7].

Faryna v. Chorny, 1951 CarswellBC 133 (C.A.), refd to. [para. 9].

R. v. J.H., [2005] O.A.C. Uned. 3; 192 C.C.C.(3d) 480 (C.A.), refd to. [para. 9].

R. v. L.H., [2007] O.T.C. Uned. 672 (Sup. Ct.), refd to. [para. 10].

Counsel:

Darrell Carmichael, for the Crown;

Peter Van Feggelen, for the accused.

This case was heard on May 29-30, 2007, before Warner, J., of the Nova Scotia Supreme Court, whose following oral judgment of May 30, 2007, was released in writing on June 19, 2007.