Appeal court overturns Sydney woman’s conviction

The Nova Scotia Court of Appeal has overturned a Sydney’s woman’s conviction on a charge of assault causing bodily harm and ordered a new trial.

In writing the majority decision for a three-member court panel, Justice Linda Lee Oland said the trial judge erred in his application of the law regarding self-defence and the law dealing with consent.

“His errors had a critical affect on his assessment of reasonableness and, therefore, on the verdict. I would allow the appeal,” said Oland.

Judge Alain Bégin convicted Michelle Marie Francis, 35, after a provincial court trial in 2017.

She was charged in connection with the stabbing of Douglas Barrett at his Sydney home in September 2015.

A sex trade worker, Francis testified the stabbing was a case of self-defence as Barrett attempted to have sexual relations with her despite her repeated refusals.

As noted in the appeal court decision, the evidence presented at the trial was contradictory.

Both Barrett and Francis testified to having numerous previous encounters that involved sex for money.

Francis said Barrett was well known to other sex workers in the local area and that he had mistreated some in the past.

Francis said the night she decided to go with Barrett, she was in withdrawal and needed a fix and Barrett was ready to pay.

After purchasing a hydromorphone pill, both Barrett and Francis went to his home as Barrett offered her clean injection gear and a safe place to use.

Barrett testified that after using, Francis fell asleep on the couch and he went to bed. When Francis later ventured upstairs to use the bathroom, Barrett said he asked her for a back rub and while he was face down on the bed, she stabbed him.

Francis testified that Barrett called her to the upstairs bedroom and before she did, she went to the kitchen and retrieved a knife that she hid under chair in Barrett’s bedroom.

Francis said she did get into bed with Barrett and fell asleep, only to wake up to Barrett touching her breasts.

“He doesn’t pay me to touch me while I’m awake. He pays to touch me while I’m sleeping. And I pretend like I don’t know he’s touching me but this night

I said ‘no,’” she testified.

At about 8:30 a.m., Francis said Barrett returned from the bathroom and began peeling back the bed blankets and got on top of Francis as she tried pushing him off.

“That’s when I grabbed the knife and I stabbed him on the shoulder blade,” testified Francis at the trial.

Barrett did manage to gain control of the knife and gave Francis $25, which she took before fleeing the home.

Barrett was hospitalized for one week and treated for a collapsed lung.

“The judge made no explicit findings as to credibility nor did he resolve the inconsistencies between the testimony of Ms. Francis and Mr. Barrett,” said Oland, adding it appeared the judge felt the actions of Francis were not reasonable.

In his decision, Bégin said the first violent act between the pair was the stabbing.

The appeal court disagreed with such an assessment. “He (the trial judge) did not consider Mr. Barrett’s behaviour — getting on top of Ms. Francis and peeling away the blankets to get at her despite her resistance and saying ‘no’ — to have been the first violent act committed,” said Oland.

“The first violent act was not, as the trial judge isolated, the stabbing of Mr. Barrett but rather his sexual assault of the appellant (Francis).”

The appeal court decision stated that the references to the first violent act and consent are more than just confusing or poor expressions.

“They demonstrate that the judge erred in his application of the law of consent in the sexual assault context,” stated the court.

“He faulted the appellant for not leaving earlier and for bringing the knife to Mr. Barrett’s bedroom. He did not take into account Mr. Barrett’s intentional application of force to the appellant in the circumstances of a sexual nature such as to violate her sexual integrity.”

Francis was credited with the 300 days she has served on remand and the judge imposed a further one day served by her presence in court. She was also ordered to serve a twoyear probation period.

No date has yet been set for a new trial in the case.