Nova Scotia's highest court has ordered a new trial for a Cape Breton woman who stabbed a man she says was trying to force himself on her.
Michelle Marie Francis, 36, was convicted of assault causing bodily harm for stabbing Douglas Barrett in his home in September 2015.
At her trial last October in Sydney provincial court, Francis said she took a knife into Douglas's bedroom because she was afraid of him and that she stabbed him in self-defence.
Francis, who was a sex-trade worker at the time, said Barrett picked her up the night of Sept. 18, 2015, and gave her money to buy a hydromorphone pill. They then drove to Barrett's house on Terrace Street in Sydney.
Barrett testified he took her home because she had no place to stay. Francis testified she went to Barrett's home because he offered her clean injection gear for her to take the opioid.
'He was on top of me'
At Francis's trial, court hear how Barrett had a reputation for mistreating and abusing sex workers, although Francis had not been victimized in the five years she knew him.
At the home, Barrett called Francis into his bedroom. She took a knife from his kitchen and concealed it near the bed. At her trial, Francis testified that she told Barrett she wanted to leave and that she didn't want him touching her.
"And he's like, 'No, we could just fool around for a bit,'" Francis said. "And that's when I had grabbed the knife and I had poked him in the back with it. He was on top of me."
Barrett spent a week in hospital being treated for a collapsed lung.
In convicting Francis, Judge Alain Begin said the stabbing was the first violent act that night.
"I'm not saying that someone going on top of someone is not a violent act, the, the threat of sexual assault," the judge said. "That can be the threat of a violent act, but at that point in time I don't think consent was an issue."
Appeal Court overturns conviction
In a decision released Wednesday that overturned Francis's conviction, the Nova Scotia Court of Appeal strenuously disagreed with Begin's interpretation of the facts.
"The first violent act was not, as the trial judge isolated, the stabbing of Mr. Barrett, but rather his sexual assault of the appellant," Justice Linda Lee Oland wrote for the three-member appeal panel.
"He faulted the appellant for not leaving earlier and for bringing the knife to Mr. Barrett's bedroom," Oland wrote.
"He did not take into account Mr. Barrett's intentional application of force to the appellant in circumstances of a sexual nature such as to violate her sexual integrity."
A spokesperson for Nova Scotia's Public Prosecution Service said the Crown is still studying the Court of Appeal decision before deciding whether to move ahead with a new trial.