An NWT Court of Appeal judge has ruled that releasing a woman from jail while she appeals a sexual assault conviction is not contrary to the public interest.
The woman, from an Arctic community, was convicted last year of sexually assaulting a male employee and sentenced to two years less a day in jail.
(Cabin Radio is not naming the woman, nor the community, to avoid identifying the employee.)
She appeals the conviction in part on the grounds that while the employee consistently maintained he had not consented to what took place, the jury was also instructed by the trial judge on an alternative theory that he could have consented but that consent was invalidated.
The woman says that alternative theory should never have been put to the jury as it would require the jury to reject the employee’s own evidence that he did not consent at all.
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Justice Kevin Feehan, ruling on whether the woman can be released from jail while that appeal is advanced, said several tests had to be met:
- whether the appeal is frivolous;
- whether the woman was likely to surrender herself into custody again at a later date as required; and
- whether her detention “is not necessary in the public interest.”
In a decision made last week and circulated by the court on Wednesday, Feehan ruled the appeal passed the “low bar” of not being so frivolous that it was bound to fail.
He found that the woman’s past record of complying with police undertakings meant she posed no flight risk, which the Crown did not dispute.
Lastly, he said the woman’s release posed “no reasonable risk to the public” and would not undermine public confidence in the justice system.
“A reasonable, fair-minded member of society informed about the philosophy of the legislative provisions” would find the woman’s release is “not contrary to the public interest,” the judge concluded.
