Case information

Criminal law — Evidence — Admissibility — Assessment — Whether the trial judge erred in her analysis of the admissibility of the images on the USB — Whether the trial judge erred in her assessment of the exploitative nature of the relationship between the respondent and J.R.

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The respondent, Robert Joseph DeSutter, was charged with various sexual offences and one charge of assault, in relation to three different complainants, M.H., S.H. and J.R. The trial judge acquitted the respondent of all charges except the assault charge, finding insufficient evidence of a sexual purpose in the respondent’s actions and the lack of an exploitative relationship. The appellant Crown appealed the acquittals in relation to two counts of sexual exploitation (counts 3 and 14), alleging that the trial judge erred in law by excluding from evidence images of women found on a USB stick and concluding that the respondent was not in an exploitative relationship with one of the complainants, J.R. The majority of the Nova Scotia Court of Appeal dismissed the appeal, concluding that the Crown had not met its burden of establishing an error of law on the part of the trial judge justifying appellate intervention. In contrast, Derrick J.A., dissenting, would have allowed the appeal and ordered a new trial on counts 3 and 14. She found that the trial judge erred in her analysis of the USB images’ probative value and prejudicial effect. She also found that the trial judge failed to properly assess the exploitative nature of the relationship between the respondent and J.R., given the power imbalance and J.R.’s vulnerability. In her view, these errors could have materially affected the verdicts, warranting a new trial on the two counts of sexual exploitation.