R. v. Denny

R. v. Denny

The appeal is allowed and a new trial ordered because, although the trial judge's factual finding that there was a reasonable doubt about absence of consent was supportable, he committed an error of law by failing to consider whether any apparent consent was vitiated by threats or fear under s.265(3) of the Criminal Code; that legal error created a realistic possibility the verdict would have been different and mandates remittal.

Citation
2017 NSSC 9
Parties
Crown / Appellant: Her Majesty the Queen; Respondent: Hope Denny
Court
Supreme Court of Nova Scotia
Jurisdiction
Canada
Judgment Date
10 January 2017
Procedural Posture
Summary Conviction Appeal (assault) / Appeal Decision Remitting Matter for New Trial
Outcome
Appeal allowed; acquittal set aside and new trial ordered
Legal Topics
Assault, Consent, Vitiation of Consent, Self Defence, Defence of Property, Burden of Proof, Standard of Review, Remittal for New Trial
Source Language
English
Criminal Law Evidence Procedure Family/domestic Violence Law Assault Consent Vitiation of Consent Self Defence +4 more

Case Brief

Summary, issues, holding and outcome

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Parties

Her Majesty the Queen

Crown / Appellant

Hope Denny

Respondent

Procedural Posture

Summary Conviction Appeal (assault) / Appeal Decision Remitting Matter for New Trial

Legal Issues

  1. 1 Whether the trial judge erred by placing a burden on the Crown to justify the complainant's actions under s.35 Criminal Code
  2. 2 Whether the trial judge misapprehended or failed to consider relevant evidence regarding consent
  3. 3 Whether apparent consent was vitiated by threats or fear under s.265(3) Criminal Code

Ratio Decidendi

The appeal is allowed and a new trial ordered because, although the trial judge's factual finding that there was a reasonable doubt about absence of consent was supportable, he committed an error of law by failing to consider whether any apparent consent was vitiated by threats or fear under s.265(3) of the Criminal Code; that legal error created a realistic possibility the verdict would have been different and mandates remittal.

Court Disposition

Appeal allowed; acquittal set aside and new trial ordered

Orders

  • Appeal allowed and acquittal set aside
  • Matter remitted for a new trial