In Court

Jury in Kobylanski trial begins deliberation

Jury deliberation in the sexual assault trial of Michael Raymond Kobylanski began Monday. Thanks to Blair Rhodes’s live tweeting, I could follow along even when trapped at school.

The defence argued that the girl’s allegations “didn’t make sense” — no one heard anything; she could have left at any time. The Crown argued instead that the then-17-year-old girl was too afraid to leave.

According to the complainant’s testimony last week, Kobylanski paid her $50 per week to work 25 hours per week and have sex with him regularly. The complainant in this case is a person with ADHD (as am I) and with a Grade 11 education who was living on a very low income. In closing argument, the Crown reminded the jury of a moment in her testimony: When asked how much per hour $50 per week was for 25 hours per week, the girl was unable to calculate that it was $2 per hour.

As soon as the jury left the courtroom to begin their deliberations, Blair Rhodes let loose a report on Kobylanski’s violent criminal history. The information could not be revealed to jurors because it would be highly prejudicial to the defendant’s presumption of innocence, as he was convicted of violently attacking a 14-year-old girl in Ontario in 1995.

Tuesday, the jury sent several questions to the judge. In Canada, lawyers for the Crown and defence must be able to discuss with the Court how they think the response should be worded. The jury must always get a complete and accurate answer in response to any question, even if the answer is repetitive (R v S (WD)).

Tuesday’s questions were literally repetitive, as the jury wanted to listen again to portions of testimony from several witnesses, such as a description of bruises on the complainant’s face provided by her mother. The courtroom recordings had to be queued up, which apparently took ages, but the process of answering jury questions is just as critical to a case’s strength or weakness on appeal as a judge’s initial instructions to the jury.  

Police officer charged with breaching probation for domestic violence

Jason Richard Murray pleaded guilty in November 2016 to assaulting his ex-girlfriend and was sentenced to eight months probation. Now he’s charged with breaching his probation by speaking to her. Murray has been released on conditions until his April arraignment.

In the News

Crown to appeal Downey acquittal

The Crown will appeal the acquittal of Markel Jason Downey for a home invasion in November 2014, in which Amber Kearse was shot. Kearse was the only identification witness at trial, and the Crown alleges several errors of law surrounding identification in its appeal.

Today, Downey was one of three men who appeared in court on weapons charges in an unrelated incident in North Preston early Tuesday morning.

There’s a meth lab in Kentville and it just caught fire

On Friday, police were alerted to a suspicious odour in a Kentville rooming house, where they found signs of a meth lab in the basement. A 22-year-old man was charged in connection with the discovery. By Saturday, the building had to be evacuated due to a fire in another unit thought to be caused by an electrical appliance.

Recent Decisions

Sexual assault conviction overturned due to lawyer mistake

A young woman, HM, testified that she was sexually assaulted by her then-stepfather, KDS, when she was in Grade 1 or 2. KDS denied all allegations, and apparently wanted his lawyer to submit documents indicating that he was working full-time or at UCCB doing an apprenticeship program. His lawyer submitted only one. The judge did not accept KDS’s denial of the allegations, based on lack of credibility.

Writing for the Court of Appeal, Chief Justice J. Michael MacDonald found that the omission of one of the other documents left KDS open to having the reliability of just one document challenged, and made him look like he was trying to stretch the truth.

The Court of Appeal did not accept arguments from KDS that the trial judge made an error in failing to consider the fact that the complainant did not remember KDS having a “conspicuous” Prince Albert piercing. On the issue of credibility, however, the Court admitted as fresh evidence the second document in question, which refuted some of the challenges to his version of events. The Chief Justice set aside his convictions and ordered a new trial.

Seven illegal votes too few for new Stewiacke election

Justice Michael J. Wood ruled this week that seven illegal votes were not enough to alter the course of history in Stewiacke’s October municipal election, where victory was decided by 14 votes for mayor and 12 votes for council. Apparently you can vote by phone in Stewiacke, and two people took advantage of it: Janice Peterson cast one illegal vote on behalf of someone else, and Judy Stoddart — wife of councillor Russell Stoddart — voted on behalf of six people.

Peterson and Stoddart used telephone PINs of other people without being confirmed as assisting voters. Steve Bruce writes, “Stoddart testified … that she voted for her mother, her aunt, for Bernie and Hazel Graves and for Charlotte and Douglas Green. She said she voted as instructed in all six cases.” Peterson voted on behalf of her mother. Justice Wood found that ordering a new election for seven votes would unfairly disadvantage other electors.

Student classified as a CFA: judge finds denial of permanent residency unreasonable

Justice Wood cleared another case off his desk this week. Yifei Xing sought to become a permanent resident of Nova Scotia after studying at Acadia University and then working in Halifax. His nomination for permanent residency was rescinded when a Canada Border Services Agency interviewer got the impression he didn’t really intend to live in Nova Scotia permanently.

“Mr. Xing,” writes Justice Wood, “meets all of [the] requirements [of the Nova Scotia Nominee Program’s International Graduate Stream] since he was nominated under the program. He is the sort of person Nova Scotia wants to attract to the province because they will make a positive contribution to our economy.” Justice Wood found the CBSA decision to be unreasonable. The parties have until April to decide on an appropriate remedy, as the program under which Xing was nominated has faded into the mists of bureaucracy and no longer exists.

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