Nova Scotia’s Court of Appeal has ordered a new trial for a man in the Annapolis Valley, after the court ruled a trial judge gave too much weight to the victim’s silence during an alleged sexual assault.

According to court documents, the incident took place in 2009 at the Top Hat tavern in Greenwood.

'The only outward sign that she disagreed would have been her crying when [the man] pulled her hair to direct her to himself.'—Justice Gerald R.P. Moir

The names of all parties are covered by a publication ban.

A woman was out drinking with friends to celebrate a new job.

She told the trial judge, Justice Gerald R.P. Moir, that one of her friends led her outside the tavern. She said she thought he was sending her home in a taxi.

Instead, she said the man took her behind the bar and assaulted her next to a dumpster.

She said she didn’t protest or try to leave because she was so shocked.

"[The woman] testified that she never said yes or no to [the man]," wrote Moir in his original ruling. "The only outward sign that she disagreed would have been her crying when [the man] pulled her hair to direct her to himself."

Moir ruled the victim was a credible witness, and found she did not consent to sex. But he said the accused was honestly mistaken about her lack of consent.

He said her lack of protest was significant.

"She was in shock after that. Therefore, she did not walk away although she could have done. She was not compelled by a threat, and nothing except the shock, prevented her from saying ‘Don’t do this’ or ‘I’m leaving.’"

The man was acquitted, but the case was appealed by the Crown.

Now, three court of appeal justices have unanimously overturned that acquittal. They ruled the trial judge gave too much weight to the victim's silence during the assault.

"The judge’s reasons do not include any analysis of the evidence to establish that the respondent took reasonable steps, based on what he subjectively knew at the time, to ascertain consent," wrote Justice Linda Lee Oland, calling that an error of law.

The Executive Director of the Avalon Sexual Assault Centre in Halifax said she's encouraged by the Crown's successful appeal.

"Unfortunately, myths and stereotypes around the issue of sexualized violence exist within our institutions, including the judicial system," said Irene Smith.

With files from Jack Julian.