SYDNEY — The Nova Scotia Court of Appeal has upheld the sexual assault conviction and sentence of a former Cape Breton man.
In writing the decision for a three-member panel of the court, Justice Anne Derrick said she was dismissing the appeal against conviction and granted leave to appeal the sentence but dismissed that appeal as well. The decision was released Friday.
The name of the accused is banned from publication in order to protect the identity of the victim who at the time of the offences was the girlfriend of the man’s grandson. The accused no longer resides in Nova Scotia.
Supreme Court Justice Robin Gogan presided over the trial for the man who was facing a six-count indictment. After the trial, Gogan acquitted the accused on five counts and entered a conviction on one count of sexual assault.
The accused was given a suspended sentence and probation. At the time of the offences, he was 73 and the female victim was 20. At the time of trial in 2019, he was 84.
According to the decision, the first incident occurred outside a storage barn on the man’s property when he reached over and touched the woman’s breast.
The second incident happened several months later when the man asked the victim for a hug and pulled her close and began kissing her neck.
Gogan concluded both incidents were sexual in nature and that the woman did not consent to such contact.
“I find the trial judge did not commit the errors complained of by the accused. Her factual findings are supported by the record. She correctly applied the law in accessing credibility,” said Derrick.
Derrick said Gogan’s decision to impose a suspended sentence rather than a conditional discharge is entitled to deference. A discharge would have meant no criminal record for the accused.
“I find the judge did not misapprehend any evidence. There was support in the record for her factual findings. She did not treat the evidence as a credibility contest,” said Derrick.
In her sentencing decision, Gogan said she was not persuaded that discharge would not be contrary to public interest noting sexual assaults are rarely found to comply with public interest requirements.
“There is no surprise in this. A woman’s dignity as well as her right to sexual integrity must be respected and decisions of the court should reflect and support this important public interest consideration,” said Gogan.
