Following a judge alone trial in the Provincial Court of Nova Scotia, Mr. Gerrard was convicted of thirteen charges related to assaulting, threatening (including with firearms), and damaging the property of his common law spouse over a period of almost eight years. Applying the principles set out in the Supreme Court of Canada’s decision in R. v. W.(D.), the trial judge concluded that the complainant was not motivated to lie or embellish her testimony, nor did the evidence give rise to such an inference. The trial judge also rejected Mr. Gerrard’s evidence that the complainant was lying and that she went to police in retaliation, and concluded that his evidence did not raise a reasonable doubt. Mr. Gerrard was sentenced to thirty months jail followed by two by years probation (amended to thirty months jail, no probation, after the trial judge realized it was an illegal sentence).A majority of the Nova Scotia Court of Appeal dismissed Mr. Gerrard’s appeal from conviction. In the majority’s view, the trial judge did not misapply W.(D.) by considering the complainant’s evidence in isolation, nor did she shift the burden of proof by choosing which versions of events she preferred. The majority also held that the trial judge did not err in assessing the complainant’s credibility. The Court did allow, however, the appeal from sentence, and substituted a custodial sentence of thirty months. The trial judge erred by imposing an illegal sentence and then changing it; she was functus officio when she attempted to do so. In dissent, Bryson J.A. would have allowed the appeal from conviction and ordered a new trial. In his view, the trial judge relied on negative credibility findings to conclude that the complainant’s evidence was reliable, and assessed her evidence in isolation, concluding it raised no reasonable doubt, thereby shifting the burden of proof to Mr. Gerrard.Mr. Gerrard appealed to the Supreme Court of Canada as of right.

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