Article contentDuring the meeting, Naggi denied the sexual assault and told Michaud that he was outside the cab hugging the complainant, and the boyfriend’s mother was there as well.Article contentNaggi told Michaud that he and the complainant exchanged numbers and planned to go on a date. He said he texted her, but she did not respond.Article contentThe accused’s version that his only physical contact with the woman was a hug in the presence of the boyfriend’s mother was never put to the complainant in cross-examination.Article contentNaggi chose not to testify at trial. His lawyer argued that the complainant was unreliable and her evidence could not establish proof of the offence beyond a reasonable doubt.Article contentThe Crown agreed there were errors and inconsistencies in the complainant’s evidence but asserted that they were limited to inconsequential matters, while the evidence regarding the alleged sexual assault was clear, consistent, reliable and credible.Article contentArticle contentThe defence argued that the appellant’s decision to return from India to face trial added credibility to his denial. The Crown maintained there was “no evidence” of a denial by the appellant on the record.Article contentThe defence did not correct the inaccurate assertion and did not mention the exculpatory statement by the appellant to his supervisor.Article contentNaggi appealed his February 2023 conviction on the ground that Judge Marc Chisholm erred by failing to properly assess the exculpatory statement.Article content“In reviewing the transcript and applying the legal principles, I agree with the appellant,” Brothers wrote in a decision released Monday. “I allow the appeal and return the matter to provincial court for retrial before another judge.”Article contentBrothers said trial counsel’s “failure to appreciate” the out-of-court exculpatory statement laid the groundwork for the trial judge’s reasons.Article contentArticle content“There is no debate that a trial judge’s reasons need to be reviewed in a functional way, and that deference is afforded to all credibility findings,” she said. “However, the appellant is entitled to know why the trial judge was not left with a reasonable doubt.Article content“Unfortunately, the trial judge was not properly briefed by counsel concerning all of the live issues in the trial. The exculpatory portion of the appellant’s out-of-court statement was an important live issue which was neither addressed by counsel nor ultimately contended with by the judge.”Article contentBrothers said the evidence capable of establishing the essential elements of the offence came from a single witness – the complainant.Article content“Despite inconsistencies in her evidence, the trial judge nonetheless found that the complainant’s evidence was credible and reliable,” she said. “However, had the appellant’s exculpatory out-of-court statements been properly considered, the trial judge might have had a reasonable doubt.Article content“Neither counsel nor the judge turned their minds to the exculpatory aspects of the denial, focusing instead on the potential inculpatory statement by the appellant that he and the complainant hugged. … With trial counsel and the court all blind to the denial, it cannot be successfully argued that the principles of reasonable doubt have been respected.”Article content
Former Nova Scotia taxi driver’s conviction for sexual assault quashed on appeal
