NOVA SCOTIA COURT OF APPEAL
Citation: R. v. Graves, 2002 NSCA 157
Date: 20021204
Docket: CAC 177355
Registry: Halifax
Between:
Gary Hugh Graves
Appellant
v.
Her Majesty the Queen
Respondent
Judges: Roscoe, Bateman and Cromwell, JJ.A.
Appeal Heard: December 4, 2002, in Halifax, Nova Scotia
Written Judgment: December 5, 2002
Held: Appeal allowed, conviction set aside and a new trial ordered per oral reasons for judgment of Bateman, J.A.; Roscoe and Cromwell, JJ.A.
Counsel: Shannon L. Ingraham, for the appellant
Laurel Halfpenny-MacQuarrie, for the respondent
Reasons for judgment:
[1] This is an appeal from a decision of Judge Robert White of the Provincial Court wherein he found Gary Hugh Graves guilty of aggravated assault contrary to s. 268 of the Criminal Code of Canada, R.S.C. 1985, c. C-46, and sentenced him to a five year term of incarceration.
[2] We are unanimously of the view that the trial judge misplaced the burden of proof. The Crown must satisfy the trier of fact, beyond a reasonable doubt, that the accused was not acting in self defence. The decision reveals, most notably at paragraphs [59], [62] and [63], that the trial judge failed to appreciate that the accused was not required to affirmatively establish self defence.
[3] Accordingly, the appeal is allowed, the conviction set aside and a new trial is ordered.
Bateman, J.A.
Concurred in:
Roscoe, J.A.
Cromwell, J.A.