Jennifer McPhee
Northern News Services

Iqaluit (Mar 11/02) - James Arvaluk is going back to court.

Last June, the Nanulik MLA was acquitted of assault causing bodily harm. But an appeal judge overturned that verdict last week and ordered a new trial.

Arvaluk has 60 days to appeal the appeal.

Arvaluk was charged in Coral Harbour on August 2000 after a night of drinking led to a physical fight with his then girlfriend.

In overturning the not guilty verdict, appeal Judge John Edward Richard found the trial judge did not base his verdict on the evidence and did not instruct himself properly about consent.

Last June, Justice Howard Irving ruled the incident was a drunken, mutually consensual brawl and that Arvaluk did not intend to harm his girlfriend.

But the appeal judge found there is no evidence the fight was consensual. He said even if the fight was consensual: "the law does not always allow the defence of consent in instances of mutual fights resulting in non-trivial injuries."

Richard found the evidence also does not support the trial judge's statement that "the injures sustained were not intended."

Richard said un-intentional striking does not account for her injures, including a swollen and bruised right cheek and a swollen, stitched lower lip.

The judge noted the woman testified she had damage to her facial nerves, numbness in her mouth area and had difficulty eating for three weeks. Ten months after the assault, her mouth area was still numb.

Arvaluk did not return phone calls. His former girlfriend no longer lives in Nunavut and did not attend the hearing.

Crown attorney Bruce Coates said: "We're very pleased with the judgment."