HALIFAX — A Nova Scotia woman has lost a bid to have her brother's sexual assault conviction overturned — after his death.
William Roger MacLellan was convicted in 2016 after a university student accused him of molesting her in his taxi in Antigonish, N.S.
The young woman alleged MacLellan put his hands down her pants after she got into his vehicle on the early morning of Oct. 19, 2014.
He was convicted of one count of sexual assault but had filed an appeal before his death in April 2017.
An application was submitted for MacLellan's sister to continue the appeal, arguing the case raised identification issues because MacLellan was African Nova Scotian and he was alternately described by witnesses as Latin, Filipino or Mexican.
A Nova Scotia Supreme Court judge denied the bid in November 2017, saying the trial judge recognized and properly dealt with those issues.
In a recent ruling, the Nova Scotia Court of Appeal dismissed the appeal.
Justices Duncan Beveridge and Elizabeth Van den Eynden said appeal courts now recognize that in exceptional circumstances they can hear cases involving deceased people.
But they found that the judge in this case committed no legal error.
"As (the judge) pointed out, the case against the appellant was largely a circumstantial case... Conviction was based on the totality of the evidence," the Jan. 18 decision said.
"He was not able to conclude that an acquittal was a real possibility."
The justices said they were tasked with deciding whether it was in the interest of justice to hear the appeal, and concluded "there is no basis to interfere with the discretion exercised by (the judge)."
But in a dissenting decision, Chief Justice Michael MacDonald said it was his view that it is in the interest of justice to allow the appeal.
He said the judge made legal errors, noting that MacLellan's appeal was already well-advanced at the time of his death, with a date set and documents filed.
"Mr. MacLellan’s attendance would not have been necessary. It would have been simply a matter of filing written submissions and arguing the appeal on the assigned date," he said.
"Failing to consider the limited cost to judicial resources of hearing the appeal represents an error in principle that affected the (judge's) decision."
MacDonald also argued that there will be "serious collateral consequences" to his family.
"While alive, Mr. MacLellan's right to appeal his conviction was absolute. That was his and every offender's basic right. Now, by dying, Mr. MacLellan's family has been denied what would have been a basic right," he wrote.
The Canadian Press